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Corps: Directors DOL
Directors owe corporations a duty of loyalty. One w/ a fiduciary relationship to the corp is prohibited from acquiring in opposition to the corp, property in which the corp has an interest or tangible expectancy or which is essential to its existence
A corporate opportunity exist when a proposed activity is reasonably incident to the corporation's present or prospective businessees and is one in which the corp has the capacity to engage. The corporate opp must be disclosed. If the corp passes on the opp, only then can a director seize the benefit
Corp: Damages from Director breach of DOL
*Director owes a corp a duty of undivided loyalty
If a corp opp is usurped, a constructive trust is a potential remedy.
It's an equitable remedy in which the trustee's sole duty is to transfer title and possession to the beneficiary.
It allows the corp to claim the benefit of the transaction.
In addition, any profits derived from usurpation of the corp opp must be accounted for and paid over to the corp
Contracts: PA UCC- Unconscionability defense
Unconscionablity can be both procedural and substantive. Procedural unconscionablity addresses bargaining unfairness. Substantive unconscionability focuses on the one-sided nature of the actual terms of the clause in question.
If a k or a clause is unconscionable, the crt may: 1. refuse to enforce the k; 2. enforce the remainder of the k w/out the unconscionable clause; or 3. limit the application of the clause to avoid any unconscionable result.
Family: PA food stamp law
Pa law provides that the distribution of food stamps is governed by the law of the recipient's domicile.
Corps: Duty of Care (burden on P)
Director must discharge her duties in GF and w/ R belief that her acts are in the best interest of the corp
She must also act w/ a degree of care that a prudent person would use w/ regard to her own business
EXCEPTION: Business judgement fule-- Director not liable if she meets the BJR. A crt won't second guess director is decision was made in GF and was informed and had a rational basis
Corps: Corporate Opportunity Doctrine
Director can't usurp a corporate opportunity
A corporate opportunity includes: 1. necessary to the corp; 2. in the corps business line; 3. something the corp has an interest or expectancy
Director MUST: 1. disclose the opp to the brd,; and 2. wait for the brd to reject the opp
Property: Easement Appurtenant
An easement appurtenant requires a dominant and serviant tenement. An easement may be created expressly through a writing, by implication, by prescription or by estoppel..
*Created expressly by including description of easement in the deed
Will: Will Contest (undue influence)
- Contestant must show:
- 1. existence and exertion of the influence
2. effect is to overpower the mind and will of T
3. Result is a will that would not have been executed but for the influence
*Circumstantial evidence- susceptability and access alone is not enough
free agency of T must be destroyed
(will expressed was not that of T, but the one exerting the influence)
Will: Will Contest (compacity)
Personal rep chooses to challenge will, must resign as PR
- Must show one of 4 problems:
- 1. nature of act
- 2. nature/character of his property
- 3. natural objects of his bounty
- 4. disposition he wished to make
Will: Will Contest (Insane Delusion)
Where will or gift in will is a product of an insane delusion, i.e has no basis in fact or reason
A condition imposed in a will must be specific and articulate. Normally, conditions are not favored in law and when a reasonable interpretation can be provided in favor of the beneficiary, it will be in support of providing such gift.
Fed Tax: Personal Residance as Tax
Generally, tax deductions are not allowed for a personal residence except where the rental payments are ordinary and necessary expenses related to the carrying out of a business.
An allocation of the totla rent paid must be made between the business portion and the personal portion. A taxpayer can choose an allocation as long as it is made on some reasonable basis
Fed Tax: Cash method of accounting
Income is reported when on a cash method of accounting based on the calender year the income is received. Gifts on the other hand are not considered gross income.
Fed tax: Transfer of stock
A transfer of stock is valid when there is intent to transfer the stocks and amount and type of stock, including the intended person's name is provided.
A valid delivery is required for the stocks to be transfered. The transfer of the registration of stock ownership on the books of the corporation has been held to constitute legal delivery. (necessary steps for stock delivery)
Torts: PA contributory negligence
According to PA law, the general rule is that the fact that the P may have been guilty of contrib neg shall not bar a recovery by the P where such neg was not greater than the causal neg of the D against whom recovery is sought
any damages sustained by the P shall be diminished in proportion to the amount of neg attributed to the P
If more than 50% barred
Evidence: Subsequent similar occurences
Evidence of subsequent similar occurrences is ordinarily not admissible under PA law to show that a D had notice of a condition prior to the subject accident
HOWEVER, evidence of subsequent occurrences is admissible for the purposes of determining whether the D exercised reasonable care in repairing the condition.
PA rules of professional conduct: Imputed disqualification
While lawyers are associate w/ the same firm, non shall knowingly rep a client when any one of them alone would be prohibited by the PA rules from doing so..
No lawyer shall rep a client if the rep involves conflict of interest.
Lawyer can if clients consent. Client cannot consent unless Lawyer believes that Lawyer can provide competent and diligent representation.
UCC Sales: Express Warranty
Express warranties by seller are created when seller makes an affirmation to buyer that goods conform to that affirmation or promise
UCC Sales: Warranty Implied warranty of merchantability
A warranty is implied in a K for the sale that goods are merchantable if sold by merchant who deals w/ goods of a like kind
Goods must pass w/out objection in the trade and be fit for ordinary purpose
UCC Sales: Implied Warranty of Fitness
To establish breah of implied warranty of fitness for a particular pupose, buyer must show the merchant knew the purpose of the required goods, and the buyer relied on the skill and judgment of the merchant to furnish suitable goods
UCC Sales: Defense to Disclaimer
A seller's statment creating an express warranty cannot use disclaiming language to render a warranty inoperative
A disclaimer defense is available to a seller where there is language in which common understanding calls the buyer's attention to the exclusion of warranties and makes clear there is no implied warranties
ex; "as is"
Corps: Dissenting SH rights---Full value buyout (SH when merger proposed)
A SH who disagrees w/ a corps proposed merger is entitled to rights and remedies of disenting SH including valuation and buyout.
Dissenting SH must:
- 1. file written notice demanding fair value prior to SH vote
2. not change beneficial ownership of shares
3. not vote to approve merger @ SH meeting
- *Once the merger is approved and notice is given by the corp, dissenting SH must demand fair buyout value
Corps: Dissenting SH rights---Injunctive relief
Where fraud or fundamental unfairness exists in a corp decision, dissenting SH may seek injunctive relief
*Corp wins if it can state legitimate business reason (BJR)
Corp: Liability for Claims After Merger
When two or more corps merge to become a single corp, the surviving corp gains responsibility for the former corps rights, benefits and liabilities
Fed Tax: Gross income
Gross income is defined as income from whatever source derived and includes income acquired by illegal gain
Fed Tax: Itemized deductions
IRC allows itemized deduction for any restitution made
Professional responsibilty: Unauthorized practice of law
PA rules prohibit lawyers from aiding non-lawyers in the unauthorized practice of law
Crim- Making terroristic threats
Occurs when one communicates a threat to commit any crime of violence w/ intent to terrorize another
When one intends to harass, annoy or cause alarm in another person, communicates any threatening words
Occurs where a person, w/ intent to unlawfully restrict freedom of action of another to that person's detriment, threatens to commit any criminal offense
Torts: Defamation defense-- Privilege of fair reporting
This privilege permits the press to publish accounts of official proceedings or reports even if they include defamatory speech
*W/out this rule the CL rule is that one who republishes a defamatory stateent is as liable as the original defamer.
For this privilege to prevail the publication must be a fair and accurate
summary of the proceedings or reports.
- The fair reporting privilege acts to reduce the chilling effects on press of reporting newsworthy events, as it removes the pressure to verify the truth and accuracy of the matters on which it reports
Torts: Defamation-- Public figure actual malice req (constitutional defense)
A pub fig cannot recover damages for defamation relating to her official conduct unless she establishes the statement was made w/ actual malice (clear and convincing evidence)
- Actual mailce is knowledge of the falsity of the statements made, or reckless disregard of whether such statements are false. ---- P must show that D was HIGHLY aware of falsity, not mere failure to investigate
*Requires press and citizens to verify the truth of their words before they report (ensures responsible reporting)
Civ Pro: Motion for summary judgement
SJ may be granted if there is no genuine issue of material facts and the moving party is entitled to judgment as matter of law
*Crt must view facts in light most favorable to non-moving party
moving party bears burden of proof (no triable issues to affirmative defenses)
Corps: Freezing out minority SH
PA law holds that a corp majority SH owe a fiduciary duty to minority SH's not to exclude them from their proper share of benefits derived from the corp (decisions that lower share value)
Any attempt by majority SH to "freeze out" minority SH for the benefit of the majority SH is a breach of their fiduciary duties
Corps: Restriction of Stock Transferibility
Adopted for lawful purposes and apper in the corps articles or by-laws in a written agreement of SH are generally enforceable in PA law
Any such restriction is enforceable w/ respect to a transferee only if it's noted conspiciously on the face or back of stock certificates or if the transferee has actual knowledge of the restriction
Transferee not bounded by restriction if they don't have notice of restriction
UCC: Avoidance of K
- Under the PA UCC, a k will be avoided if:
- 1. the k is for specific, custom or unique goods that are identified when the k is made, AND
2. before the risk of loss passes to the buyer, the goods are destroyed w/ a total loss @ no fault of either party
UCC: TP beneficiaries and express warranties
Under the PA UCC, a TPB may assert a claim for breack of express or implied warranty
An express warranty is created when the seller makes a promise to buyer relating to the goods for sale, and this promise become part of the basis of the bargain
TPBs of warranties include guests in the buyer's home if it's reasonable to expect that a guest may be affected by the goods sold under the warranty, and a guest is injured by breach of that warranty
Fed tax: Tax consequences from sale of land
1. Amount realized from sale of property = the total amount of cash received + the FMV of non-monetary property received
2. The adjusted basis of the property is the original cost of the property + the amount spent on improvements to the property
3. The gain realized on the sale is calculated by subtracting the AB from the AR
The GR is exempt from taxation as a principal residence
In order to define property as a PR, it must be used as such for 2 out of the last 5 years.
W/ sale of a PR, gainst up to 250k are not included in income for tax purposes
Wills: Latent ambiguity
When such an ambiguity exists, extrinsic evidence is admissible to explain the ambiguity
Specifically, the Testator's declarations of intent are admissible to help w/ the interpretation
Crim: Criminal tresspass
Requires the perp to knowingly "break into" a building or occupied structure
"break into"= gain entry by force
infliction of serious bodily injury in the course of committing theft (include flight)
Family law: Equitable distribution of property
At the bequest of either party, crts will equitably distribute marital property in a just manner
all property acquired during marriage is presumed to be marital property
marital property also includes the increase of value of non-marital property
Gifts typically non- marital, but Gifts btw spouses are considered marital property, simply a shift in assets
Pa crts equitably distribute marital property w/out regard to fault
In addition, crts divide marital property by taking into account 11 statutory factors, including income sources and future opps