.

User avatar
Agoraphobia
Posts: 193
Joined: Sat Jun 15, 2013 7:30 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Agoraphobia » Sat Jul 27, 2013 11:38 pm

releasethehounds wrote:
Torts Illustrated wrote:
yeff wrote:s but also there's the UCC variation, right? If that shirt(s) cost > $500 and fall under the UCC


The shirts don't need to cost more than $500 for the UCC to apply. Any sale of goods is covered by the UCC. But if the goods cost more than $500, that triggers the Statute of Frauds.

(Right? Someone please, for God's sake, correct me if I'm wrong.)


You're correct. The only reason $500 matters is because now you need a writing to be able to enforce the contract under Statute of Frauds if one party breaches*. If both parties perform fully and there's no writing, statute of frauds was satisfied by full performance. Also keep in mind EXACTLY 500 doesn't need a writing, but $500.01 will.

If it's a sale of goods and you want to modify it, ANY cost is fine. If I want to sell you a fake rolex for 10 dollars then in good faith we agree I should sell it to you for 12, that's kosher.

The one area those will overlap is if you want to modify the contract and the modification is in the realm of statute of frauds, you'll need a writing to be able to enforce the contract against a breaching* party. Example: I sell you a TV for $499. We don't need a writing, statute of frauds doesn't care. But I encounter unexpected difficulties in getting the TV supplied and we agree you will now pay $510 dollars. The contract AS MODIFIED is in the statute of frauds. So we need a writing to enforce the contract if one of us breaches*.


Edit: * = or claims there isn't a contract


And same for the reverse - if the TV at first costs $501, and we have a written contract, and then I claim we orally modified the contract for the sale price to be $350, I don't have to produce a written contract because as modified the K is NOT within the SOF. (Right?)

releasethehounds
Posts: 163
Joined: Thu Jul 11, 2013 5:11 pm

Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 11:40 pm

Reinhardt wrote:Yeah I mean I just picked that up from here:
http://legal-dictionary.thefreedictiona ... Bargaining

"When a prosecutor or defendant revokes a plea agreement, the statements made during the bargaining period are not admissible against the defendant in a subsequent trial. This rule is designed to foster free and open negotiations. There are, however, notable exceptions. The rule applies only to prosecutors: a defendant's statements to government agents are admissible. Furthermore, a prosecutor may use statements made by the defendant during plea negotiations at a subsequent trial to impeach the defendant's credibility after the defendant testifies."

Have no idea if it's even correct


Parsing through that, it makes sense:

1. Rule only applies to prosecutors: It only applies to statements made to someone that the defendant reasonably believes they can actually negotiate a plea with. It's only reasonable to believe that a defendant can negotiate a plea with a prosecutor. This is half the truth so far as I understand it but for purposes of what you need to know for the bar, probably all true so if you're confused about this, stop reading here. I sincerely doubt that the bar would go this in depth (unlike my evidence professor), but if a cop tries to tell a defendant that they can negotiate a plea and circumstances make it reasonable for the defendant to have believed them, then that statement will also be covered. It's usually unreasonable because if you're a defendant in a plea negotiation and you don't have your attorney with you....you've got bigger sixth amendmenty issues.

2. a subsequent trial to impeach the defendant's credibility after the defendant testifies This would HAVE to be a perjury trial, I would think. The only reason a perjury trial would even happen is if the defendant testified (and obviously lied on the stand). The only reason we'd be attacking the defendant's credibility in a subsequent trial is if it was a perjury trial. Or I suppose if they're acting as a witness in another trial, but then we circle back to the earlier exception that plea agreements can be used against witnesses to show bias (thus impeach credibility).
Last edited by releasethehounds on Sat Jul 27, 2013 11:44 pm, edited 2 times in total.

releasethehounds
Posts: 163
Joined: Thu Jul 11, 2013 5:11 pm

Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 11:41 pm

Agoraphobia wrote:
releasethehounds wrote:
Torts Illustrated wrote:
yeff wrote:s but also there's the UCC variation, right? If that shirt(s) cost > $500 and fall under the UCC


The shirts don't need to cost more than $500 for the UCC to apply. Any sale of goods is covered by the UCC. But if the goods cost more than $500, that triggers the Statute of Frauds.

(Right? Someone please, for God's sake, correct me if I'm wrong.)


You're correct. The only reason $500 matters is because now you need a writing to be able to enforce the contract under Statute of Frauds if one party breaches*. If both parties perform fully and there's no writing, statute of frauds was satisfied by full performance. Also keep in mind EXACTLY 500 doesn't need a writing, but $500.01 will.

If it's a sale of goods and you want to modify it, ANY cost is fine. If I want to sell you a fake rolex for 10 dollars then in good faith we agree I should sell it to you for 12, that's kosher.

The one area those will overlap is if you want to modify the contract and the modification is in the realm of statute of frauds, you'll need a writing to be able to enforce the contract against a breaching* party. Example: I sell you a TV for $499. We don't need a writing, statute of frauds doesn't care. But I encounter unexpected difficulties in getting the TV supplied and we agree you will now pay $510 dollars. The contract AS MODIFIED is in the statute of frauds. So we need a writing to enforce the contract if one of us breaches*.


Edit: * = or claims there isn't a contract


And same for the reverse - if the TV at first costs $501, and we have a written contract, and then I claim we orally modified the contract for the sale price to be $350, I don't have to produce a written contract because as modified the K is NOT within the SOF. (Right?)


I believe that's correct. Though seriously, if someone agrees to knock $151 dollars off the price, who would not get that in writing?

releasethehounds
Posts: 163
Joined: Thu Jul 11, 2013 5:11 pm

Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sat Jul 27, 2013 11:45 pm

Man. I honestly believe more schools should have their own bar prep class you have the option to take in your last year. Particularly Arizona, now that they're allowing 3Ls to take the bar February before they graduate starting 2014.

You'd think schools would want to be busting their ass to get their pass rates as high as possible, particularly in this economy. University of Illinois (my alma mater, despite not being from IL or wanting to stay) was nearly creaming itself when we had the highest pass rate in the state last summer. Granted it's the IL bar (which all you IL takers will do PHENOMENALLY ON), and UI probably just wanted to be able to say it's doing something right after employment statistics and admissions scandals galore.

Sigh. Paul Pless. I miss you, you were a good bro.


Also, for a bit of honest possible inspiration: I really think we'll all pass. If you give a shit enough about bar prep to put in the work and then go discuss it with other people beyond 'oh fml, i hate bar prep', you care more than a lot of people. And caring means you actually worked.

yeff
Posts: 333
Joined: Mon Dec 07, 2009 2:32 pm

Re: THEMIS BAR REVIEW Hangout.

Postby yeff » Sat Jul 27, 2013 11:52 pm

agree we're in the weeds here, but here's FRE 410, the rule at issue.



Federal Rules of Evidence
RULE 410. PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.


Fighting the hypo a bit -- reality is the snitch usually doesn't get to consummate his deal until he actually testifies, though, right? So at the co∆s trial there wouldn't be a completed bargain about which to question them on.

User avatar
Bikeflip
Posts: 1833
Joined: Fri Jul 11, 2008 3:01 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sat Jul 27, 2013 11:53 pm

God. One thing I hate is when I know the legal elements, but I still get the question wrong. "Oh, that can't be an excited utterance. Oh. It was. Fuck." I would say that the bar leans towards finding a hearsay exception, but I don't think that's the case.

Torts Illustrated
Posts: 32
Joined: Sat Dec 29, 2012 7:23 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Torts Illustrated » Sat Jul 27, 2013 11:57 pm

releasethehounds wrote:You're correct. The only reason $500 matters is because now you need a writing to be able to enforce the contract under Statute of Frauds if one party breaches*. If both parties perform fully and there's no writing, statute of frauds was satisfied by full performance. Also keep in mind EXACTLY 500 doesn't need a writing, but $500.01 will.

Edit: * = or claims there isn't a contract


Thanks. Good to know I'm not going crazy only going crazy in other ways.

User avatar
Bikeflip
Posts: 1833
Joined: Fri Jul 11, 2008 3:01 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sat Jul 27, 2013 11:59 pm

releasethehounds wrote:Sigh. Paul Pless. I miss you, you were a good bro.


Wasn't he the reason why UofI got in a shit ton of trouble?

releasethehounds
Posts: 163
Joined: Thu Jul 11, 2013 5:11 pm

Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sun Jul 28, 2013 12:14 am

Bikeflip wrote:
releasethehounds wrote:Sigh. Paul Pless. I miss you, you were a good bro.


Wasn't he the reason why UofI got in a shit ton of trouble?



He was A reason. I personally think (and I know the guy and his wife is the most amazing professor I've ever had, so I'm admittedly biased as fuck) that he definitely fucked up but that he also got scapegoated hard. In part because his testimony in investigations into the campus-wide admissions scandal about a decade back lead to the dismissal of a dick ton of people who are still associated with the university (gone but not forgotten, eh?). Admittedly a little conspiracy theory, but I actually read (skimmed) through the 2000 page report they ultimately produced from the investigation and shit doesn't add up at all.

They fed us this story that he was acting as a lone wolf and no one in the law school administration had any idea what he was doing. And I call absolute bullshit on that. Absolute, absolute bullshit. Also he was never given a chance to explain. Ever. Which whatever, he was still always a very good person to me. And I base m'opinion off how he treated me personally.

releasethehounds
Posts: 163
Joined: Thu Jul 11, 2013 5:11 pm

Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sun Jul 28, 2013 12:17 am

yeff wrote:agree we're in the weeds here, but here's FRE 410, the rule at issue.



Federal Rules of Evidence
RULE 410. PLEAS, PLEA DISCUSSIONS, AND RELATED STATEMENTS

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(1) a guilty plea that was later withdrawn;

(2) a nolo contendere plea;

(3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

(b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or

(2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.


Fighting the hypo a bit -- reality is the snitch usually doesn't get to consummate his deal until he actually testifies, though, right? So at the co∆s trial there wouldn't be a completed bargain about which to question them on.



I would agree but my understanding would be that once the defendant has a chance to impeach him using the plea, it'd have to be done on cross examination--which means direct has now taken place and he's consummated his deal. So prosecution's bound now.

User avatar
Bikeflip
Posts: 1833
Joined: Fri Jul 11, 2008 3:01 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sun Jul 28, 2013 12:20 am

releasethehounds wrote:
Bikeflip wrote:
releasethehounds wrote:Sigh. Paul Pless. I miss you, you were a good bro.


Wasn't he the reason why UofI got in a shit ton of trouble?



He was A reason. I personally think (and I know the guy and his wife is the most amazing professor I've ever had, so I'm admittedly biased as fuck) that he definitely fucked up but that he also got scapegoated hard. In part because his testimony in investigations into the campus-wide admissions scandal about a decade back lead to the dismissal of a dick ton of people who are still associated with the university (gone but not forgotten, eh?). Admittedly a little conspiracy theory, but I actually read (skimmed) through the 2000 page report they ultimately produced from the investigation and shit doesn't add up at all.

They fed us this story that he was acting as a lone wolf and no one in the law school administration had any idea what he was doing. And I call absolute bullshit on that. Absolute, absolute bullshit. Also he was never given a chance to explain. Ever. Which whatever, he was still always a very good person to me. And I base m'opinion off how he treated me personally.

Fair 'nuff. He was a cool bro on TLS. I will give them that.

releasethehounds
Posts: 163
Joined: Thu Jul 11, 2013 5:11 pm

Re: THEMIS BAR REVIEW Hangout.

Postby releasethehounds » Sun Jul 28, 2013 12:37 am

Bikeflip wrote:Fair 'nuff. He was a cool bro on TLS. I will give them that.


Yeah, he really was. I applied to UI because my GPA blew and they tended to take lower GPA candidates (and at the time was 23 in the country :( ) but doubted I'd actually go. I got a pretty substantial scholarship (...they must have really wanted California students?) and he was so excited to offer it that he sent me a personalized non-form email about a week before decisions were mailed out to tell me. From what I understand he did that for a lot (not sure about all) of my friends who were California kids thinking about heading to the Midwest.

I remember him being real great about explaining the admissions process to people who were confused and freaking out. He made me feel a tooon better and that was before I even realized I was going to apply.

User avatar
kalvano
Posts: 11725
Joined: Mon Sep 07, 2009 2:24 am

Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Sun Jul 28, 2013 12:44 am

Bikeflip wrote:
Citizen Genet wrote:
I don't know what legal mechanism - if any - A can use against A's Bank to demand a credit to his account. For purposes of this part, I'll just assume they will credit his account to keep up good relations. BUT if someone knows how A could force A's Bank to credit his account the amount missing, I'd love to know what it is.


EDIT: Just saw your edit. I'm not really sure about suing someone who you didn't transact with (privity, I guess). For sure, what you'll want to do on the bar is show off that you know everyone who can sue someone else.



You're right about A & A Bank. A cannot sue A Bank under the warranties, but A may have a claim under wrongful payment.

As about whether or not A Bank could sue C, I think if you sue under a warranty theory, you can only sue the institution immediately before you. So A Bank must sue C Bank, and A Bank cannot sue C. It makes sense if you think about it. Let's say A Bank sues C. C Bank's still screwed.



I just wanted to follow up with this. Texas had a question that (I think) directly addressed what you all are talking about. A's check (drawn on Bank Y) is stolen by X, and X forges A's indorsement and deposits the check at Bank C, who pays X and passes the check on to Bank Y for payment and Bank Y debits A's account. That's the fact scenario here? If so, great, keep reading. If not, then this may not be relevant and I'm sorry to waste your time.


Under that scenario, A can recover the amount of the check from his bank (Bank Y) because X never negotiated the instrument and wasn't entitled to enforce it since the indorsement was forged.


To be negotiated, an order paper must be delivered and properly indorsed by the holder. To effect a negotiation, the indorsement must be authorized and valid. A forged or unauthorized indorsement is generally invalid; no transferee after the forged or unauthorized indorsement can become a holder. If an instrument has been lost, destroyed, or stolen, a person who was entitled to enforce the instrument when loss of possession occurred may bring an action to enforce the instrument despite her current lack of possession of the instrument. An instrument is converted if it is taken by a transfer from a person not entitled to enforce the instrument, or a depository or payor bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or obtain payment.

In this case, Stan’s check was stolen and Julia’s indorsement was forged. The thief was not a holder of the instrument because the paper was not delivered to the thief and was not properly indorsed. Thus, the thief could not enforce the instrument. Local Bank should not have accepted the instrument because the thief was a holder who could not enforce the instrument. Accordingly, Julia has a claim against Local Bank for conversion for cashing Stan’s check.

User avatar
Bikeflip
Posts: 1833
Joined: Fri Jul 11, 2008 3:01 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sun Jul 28, 2013 12:58 am

kalvano wrote:
Bikeflip wrote:
Citizen Genet wrote:
I don't know what legal mechanism - if any - A can use against A's Bank to demand a credit to his account. For purposes of this part, I'll just assume they will credit his account to keep up good relations. BUT if someone knows how A could force A's Bank to credit his account the amount missing, I'd love to know what it is.


EDIT: Just saw your edit. I'm not really sure about suing someone who you didn't transact with (privity, I guess). For sure, what you'll want to do on the bar is show off that you know everyone who can sue someone else.



You're right about A & A Bank. A cannot sue A Bank under the warranties, but A may have a claim under wrongful payment.

As about whether or not A Bank could sue C, I think if you sue under a warranty theory, you can only sue the institution immediately before you. So A Bank must sue C Bank, and A Bank cannot sue C. It makes sense if you think about it. Let's say A Bank sues C. C Bank's still screwed.



I just wanted to follow up with this. Texas had a question that (I think) directly addressed what you all are talking about. A's check (drawn on Bank Y) is stolen by X, and X forges A's indorsement and deposits the check at Bank C, who pays X and passes the check on to Bank Y for payment and Bank Y debits A's account. That's the fact scenario here? If so, great, keep reading. If not, then this may not be relevant and I'm sorry to waste your time.


Under that scenario, A can recover the amount of the check from his bank (Bank Y) because X never negotiated the instrument and wasn't entitled to enforce it since the indorsement was forged.


To be negotiated, an order paper must be delivered and properly indorsed by the holder. To effect a negotiation, the indorsement must be authorized and valid. A forged or unauthorized indorsement is generally invalid; no transferee after the forged or unauthorized indorsement can become a holder. If an instrument has been lost, destroyed, or stolen, a person who was entitled to enforce the instrument when loss of possession occurred may bring an action to enforce the instrument despite her current lack of possession of the instrument. An instrument is converted if it is taken by a transfer from a person not entitled to enforce the instrument, or a depository or payor bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or obtain payment.

In this case, Stan’s check was stolen and Julia’s indorsement was forged. The thief was not a holder of the instrument because the paper was not delivered to the thief and was not properly indorsed. Thus, the thief could not enforce the instrument. Local Bank should not have accepted the instrument because the thief was a holder who could not enforce the instrument. Accordingly, Julia has a claim against Local Bank for conversion for cashing Stan’s check.



Ah. K. Was Julia the drawer?

User avatar
kalvano
Posts: 11725
Joined: Mon Sep 07, 2009 2:24 am

Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Sun Jul 28, 2013 12:59 am

Facts probably would have been helpful, I guess.

Stan owed Julia $425 for yard work. Stan gave Julia a check payable to Julia for $425 drawn on Local Bank in satisfaction of that debt. A thief stole the check out of Julia's purse, indorsed the check by signing Julia's name, and cashed it at Local Bank. Immediately after the check cleared, Stan closed his account at Local Bank.

User avatar
Bikeflip
Posts: 1833
Joined: Fri Jul 11, 2008 3:01 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sun Jul 28, 2013 1:34 am

kalvano wrote:Facts probably would have been helpful, I guess.

Stan owed Julia $425 for yard work. Stan gave Julia a check payable to Julia for $425 drawn on Local Bank in satisfaction of that debt. A thief stole the check out of Julia's purse, indorsed the check by signing Julia's name, and cashed it at Local Bank. Immediately after the check cleared, Stan closed his account at Local Bank.



K. So Stan is the drawer. Julia is the payee. Local Bank is the drawee and the depository bank. Thief steals from Julia, and thief forges her indorsement on the back of the check. Julia's pissed and wants to be paid. How can Julia get paid?

Julia wants a file a conversion claim. Conversion occurs when a person not entitled to enforce the instrument deprives a person entitled to enforce the instrument, and that deprivation was not a negotiation (e.g. a thief steals a check). The person entitled to enforce the instrument, Julia, can bring a claim of conversion against the depository bank, Local Bank.

It's similar to the presentment and transfer warranties, but not quite. Drawers cannot bring an action for conversion, and I don't think payees can bring an action under the warranties.

The way I read the warranties, it's kinda sorta (maybe not, but just go with it) about making the drawer whole. Conversion is kinda sorta (maybe not, but just go with it) about making sure the payee is paid.

But now I'm confused again. mainly, what happens if a claim for conversion and a claim for improper presentment warranties both occur? Let's continue with your example, Kalvano: Stan is the drawer. Julia is the payee. Local Bank is the drawee and the depository bank. Thief steals from Julia, and thief forges her indorsement on the back of the check. Thief makes off with the money. Julia's pissed and wants to be paid. How can Julia get paid? Stan's pissed because his check went to the wrong person, and he doesn't want to write another check. What should be done about Stan?

The way my brain wants to make it work for both Julia and Stan looks like this: While Stan can bring a warranty claim, he still needs to pay Julia. If Local Bank just deals with Stan's claim, Julia's going to be pissed, because Stan may not write her another check. If Local Bank just deals with Julia, Stan will be pissed, but since he owes Julia money, he'd still have to pay. Local Bank doesn't want to deal with both, Local Bank will have to 1. reimburse Stan for $425, credit (dunno if this is the right word, but fuck it, I'm tired) Julia for $425 and 3. probably won't recover the $425 from the thief. So how can Local Bank minimize their losses? Bank probably realizes if Stan gets the $425, Julia's going to want it. Julia will claim that if stan gets to get the $425 from the presentment warranty claim, Stan would get the yardwork for "free." ($425 went to the wrong person. Stan loses $425. Stan complains under warranty. Stan gets $425.) So should Local Bank just 1. Recredit Stan for $425, 2. Immediately take that money out of Stan's account, and 3. Use that money compensate Julia for the conversion?

User avatar
kalvano
Posts: 11725
Joined: Mon Sep 07, 2009 2:24 am

Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Sun Jul 28, 2013 1:40 am

2. Julia does not have a claim against Stan because he properly negotiated the instrument.

If a check is taken for an obligation, the obligation is suspended to the same extent that the obligation would be discharged if an amount of money equal to the amount of the instrument were taken. In the case of an uncertified check, suspension of the obligation continues until dishonor of the check or until it is paid or certified. In this case, Stan properly negotiated the instrument to Julia in satisfaction for payment, and the check was debited from his account. Stan paid his debt to Julia. Yet through no fault of Stan’s, Julia did not receive the payment. Julia does not have a claim against Stan because he properly negotiated the instrument. Accordingly, Julia must seek her recovery from either the thief or Local Bank.


While a bank normally has no liability on a non-certified instrument, they assume liability once they accept the instrument. Stan did everything right, so he's in the clear. The bank accepts liability when they accepted the check from the thief after his presentment.

User avatar
Bikeflip
Posts: 1833
Joined: Fri Jul 11, 2008 3:01 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sun Jul 28, 2013 1:45 am

kalvano wrote:
2. Julia does not have a claim against Stan because he properly negotiated the instrument.

If a check is taken for an obligation, the obligation is suspended to the same extent that the obligation would be discharged if an amount of money equal to the amount of the instrument were taken. In the case of an uncertified check, suspension of the obligation continues until dishonor of the check or until it is paid or certified. In this case, Stan properly negotiated the instrument to Julia in satisfaction for payment, and the check was debited from his account. Stan paid his debt to Julia. Yet through no fault of Stan’s, Julia did not receive the payment. Julia does not have a claim against Stan because he properly negotiated the instrument. Accordingly, Julia must seek her recovery from either the thief or Local Bank.


While a bank normally has no liability on a non-certified instrument, they assume liability once they accept the instrument. Stan did everything right, so he's in the clear. The bank accepts liability when they accepted the check from the thief after his presentment.



Right. What I'm wondering is what does the bank do when they get a claim for conversion and a claim for a warranty violation, and the claims relate to the same negotiation. I probably shouldn't wonder about it, as that scenario probably won't be tested.

User avatar
kalvano
Posts: 11725
Joined: Mon Sep 07, 2009 2:24 am

Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Sun Jul 28, 2013 1:47 am

Bikeflip wrote:
kalvano wrote:
2. Julia does not have a claim against Stan because he properly negotiated the instrument.

If a check is taken for an obligation, the obligation is suspended to the same extent that the obligation would be discharged if an amount of money equal to the amount of the instrument were taken. In the case of an uncertified check, suspension of the obligation continues until dishonor of the check or until it is paid or certified. In this case, Stan properly negotiated the instrument to Julia in satisfaction for payment, and the check was debited from his account. Stan paid his debt to Julia. Yet through no fault of Stan’s, Julia did not receive the payment. Julia does not have a claim against Stan because he properly negotiated the instrument. Accordingly, Julia must seek her recovery from either the thief or Local Bank.



Right. What I'm wondering is what does the bank do when they get a claim for conversion and a claim for a warranty violation, and the claims relate to the same negotiation. I probably shouldn't wonder about it, as that scenario probably won't be tested.



The bank is still at fault because they accepted liability. They would have to go after the thief and eat the loss in the meantime.

Maybe this will help: https://www.dropbox.com/s/99mg5qdzkmfnk ... Q%26A.docx


It's basically a bunch of Texas Commercial Paper essays and sample answers to them.

User avatar
Bikeflip
Posts: 1833
Joined: Fri Jul 11, 2008 3:01 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sun Jul 28, 2013 1:52 am

Fuck, I'm dumb. I just poasted a few poasts ago that a drawer can't have a presentment warranty against the bank. It has to be for something else like wrongful payment.

With that said, I'm still not sure happens if the bank gets a claim for wrongful payment from Stan and a conversion claim from Julia. Under your facts, this might be impossible. Like you said, Stan did all he had to do. Not his fault Julia lost the check.
Last edited by Bikeflip on Sun Jul 28, 2013 1:58 am, edited 1 time in total.

User avatar
kalvano
Posts: 11725
Joined: Mon Sep 07, 2009 2:24 am

Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Sun Jul 28, 2013 1:56 am

There was a presentment warranty violation by the thief. He's the only party that presented anything. So he's ultimately liable, if the bank can hunt him down. But they never should have taken the instrument.

User avatar
Bikeflip
Posts: 1833
Joined: Fri Jul 11, 2008 3:01 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sun Jul 28, 2013 1:59 am

kalvano wrote:There was a presentment warranty violation by the thief. He's the only party that presented anything. So he's ultimately liable, if the bank can hunt him down. But they never should have taken the instrument.



Yeah, you're right. I'm way overthinking this. Thanks for hashing it out with me, though.

User avatar
kalvano
Posts: 11725
Joined: Mon Sep 07, 2009 2:24 am

Re: THEMIS BAR REVIEW Hangout.

Postby kalvano » Sun Jul 28, 2013 2:01 am

For what it's worth, the Texas essays usually have the bank that took the instrument and paid on in presenting it to the drawee bank, which sometimes pays and sometimes doesn't. That's when they want stuff delving into presentment and transfer warranties, it seems.

User avatar
Bikeflip
Posts: 1833
Joined: Fri Jul 11, 2008 3:01 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Bikeflip » Sun Jul 28, 2013 2:05 am

kalvano wrote:For what it's worth, the Texas essays usually have the bank that took the instrument and paid on in presenting it to the drawee bank, which sometimes pays and sometimes doesn't. That's when they want stuff delving into presentment and transfer warranties, it seems.



True. The warranties tend to occur when a bunch of banks look at/transfer the check. I think I'm just combining shit that really doesn't get combined IRL.

Torvon
Posts: 352
Joined: Tue Sep 01, 2009 6:09 pm

Re: THEMIS BAR REVIEW Hangout.

Postby Torvon » Sun Jul 28, 2013 2:21 am

locusdelicti wrote:
Bronx Bum wrote:
locusdelicti wrote:
Bronx Bum wrote:Wait... Fuck... So does the felony murder merge with a robbery? See this is the problem with Themis's weakness strategy. I haven't had a question like this since June.


The underlying felony merges with the felony murder.

Good thanks.


Although I feel like there's more to it. I feel like we've seen fact patterns on the MBE where someone is convicted of both robbery and felony murder, but then in other questions, it's just felony murder because of merger. Does it have to do with separate trials? Double jeopardy? I know that you must be guilty of the underlying felony in order to be guilty of felony murder. (Not in PA, though! In PA, you can be convicted of felony murder even if you are not found guilty of the underlying felony... weird.)


The robbery and the felony-murder don't merge, but there are some restrictions. If D is found not-guilty of the robbery, then he can't be found guilty of felony-murder. Also, the prosecutor can't bring a charge for robbery, get a not-guilty verdict, then bring a charge for felony-murder.




Return to “Bar Exam Prep and Discussion Forum”

Who is online

Users browsing this forum: iwantmybar, svitlanlazaresku and 2 guests