1L Substantive Law Questions (Get your BLL on ITT) Forum

[Br3v]

Are you talking like Mailbox rule or what?

Nah, mailbox rule concerns when the acceptance becomes effective, correct? I mean the offeree's duty to notify offeror of acceptance. This is one of those things I'm making more complicated than it needs to be I'm guessing...

Yeah just know that you have to inform promisor of acceptance within reasonable time

[Easy-E]

Are you talking like Mailbox rule or what?

Nah, mailbox rule concerns when the acceptance becomes effective, correct? I mean the offeree's duty to notify offeror of acceptance. This is one of those things I'm making more complicated than it needs to be I'm guessing...

Yeah just know that you have to inform promisor of acceptance within reasonable time

Makes sense, I don't where I pulled all these different bits from.


Question about "overtaking rejection", this is something that would need to be provided for in the contract I'd assume? Overtaking rejection being the ability to put acceptance in mail, but still reject if that gets to offeror first (different medium, faster mail).

[Swimp]

Question about "overtaking rejection", this is something that would need to be provided for in the contract I'd assume? Overtaking rejection being the ability to put acceptance in mail, but still reject if that gets to offeror first (different medium, faster mail).

Remember, acceptance takes effect upon dispatch, so if you mail the acceptance first, that's it. Game over.

If, however, you send a REJECTION first, the rejection only takes effect upon receipt, so you can still mail an acceptance afterward. Since there are now two conflicting responses in transit, whichever gets to the offeror first takes effect. I.e. if the acceptance overtakes the rejection somewhere along the way, the offer is accepted, even though you mailed the rejection first.

Remember, these are default rules, so an offer could certainly stipulate that acceptances will take effect upon receipt if the offeror wanted. In that case, it would be possible for a rejection to overtake an acceptance that was mailed first.

[Easy-E]

Question about "overtaking rejection", this is something that would need to be provided for in the contract I'd assume? Overtaking rejection being the ability to put acceptance in mail, but still reject if that gets to offeror first (different medium, faster mail).

Remember, acceptance takes effect upon dispatch, so if you mail the acceptance first, that's it. Game over.

If, however, you send a REJECTION first, the rejection only takes effect upon receipt, so you can still mail an acceptance afterward. Since there are now two conflicting responses in transit, whichever gets to the offeror first takes effect. I.e. if the acceptance overtakes the rejection somewhere along the way, the offer is accepted, even though you mailed the rejection first.

Remember, these are default rules, so an offer could certainly stipulate that acceptances will take effect upon receipt if the offeror wanted. In that case, it would be possible for a rejection to overtake an acceptance that was mailed first.

Ohhh I got it. I thought maybe it had to be stipulated in the contract, since it would basically nullify the mailbox rule. So it's the acceptance overtaking the rejection, got it. But since rejection is effective upon receipt and acceptance upon mailing, in the the case you laid out (sent rejection first, sent acceptance after), assuming rejection hasn't been received, isn't the offer accepted no matter which arrives first, as acceptance became effective the moment it's "in the mailbox", even if the rejection letter was out for delivery.

[Swimp]

Ohhh I got it. I thought maybe it had to be stipulated in the contract, since it would basically nullify the mailbox rule. So it's the acceptance overtaking the rejection, got it. But since rejection is effective upon receipt and acceptance upon mailing, in the the case you laid out (sent rejection first, sent acceptance after), assuming rejection hasn't been received, isn't the offer accepted no matter which arrives first, as acceptance became effective the moment it's "in the mailbox", even if the rejection letter was out for delivery.

You might expect that to be the case, but actually no. If the rejection is already en route, any subsequent acceptance becomes effective only on receipt too.

[moonman157]

When you're determining personal jurisdiction, and the defendant moved to the forum state after the incident but before the claim was filed, what do you do?

[kay2016]

When you're determining personal jurisdiction, and the defendant moved to the forum state after the incident but before the claim was filed, what do you do?

I think...


PJ typically looks at where the D had contacts at the time of the event in question, where as venue and other things look at the time the suit was filed.

However, if the D has permanently moved to the forum state and is now domiciled there, General Jurisdiction should make it okay..


ETA: Ignore my answer, Jsa is right. Duh.

[Easy-E]

Do I have covenants right under implied conditions?

independent - can sue other party for breach, but cannot cite their breach as reason for your breach
dependent - performance of one depends on performance of other; no duty before prior condition performed
mutual condition - conditions performed at same time, failure of one is grounds for alleging breach

I don't even remember the professor talking about them, but my brain is kinda fried right now. Is this even something I need to know?

[Jsa725]

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[BluePurgatory]

Hey can someone help me interpret this. This is from a practice exam, and the issue involves recognizing whether this is a race statute, a notice statute, or a race-notice statute. I know it isn't a notice statute, so it's either RS or R-NS, but I can't tell which one because of the pesky term "and without notice" that's in there.
Anxiety Civil Code 569.01 reads, in relevant part
No conveyance, transfer, or mortgage of real property, or of any interest therein, nor any lease for a term of 1 year or longer, shall be good and effectual in law or equity against creditors or subsequent purchasers for a valuable consideration and without notice, unless the same be recorded according to law.

[Jsa725]

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[arklaw13]

Can anyone help me out with a Civpro question? I feel like it's really basic but there must be something I'm missing

Plaintiff sued defendant in federal court for civil rights violations arising out of an arrest. Two weeks after answering the complaint, the defendant realized that he failed to include three defenses in his answer: lack of venue, failure to join an indispensable party, and statute of limitations. Can he still raise these defenses? Why or why not? If so, how? What further information do you need?

Lack of Venue

Assuming he hasn't used up his one free shot to amend within 21 days under Rule 15, as long as he didn't file a 12(b) motion that failed to include this, then he can amend to include it.

Failure to join indispensable party

Even if he made a 12(b) motion that didn't include this, it isn't one of the four Rule 12 defenses that are waived. So he can make raise this defense as long as the amendment is allowed, whether as a matter of course or with leave of the court.

Statute of limitations

Seems like this can be included as long as he can amend the complaint.


Is there something I'm missing here?

[Easy-E]

Is there practical difference between impracticability and impossibility? I understand that one can't be performed, and one is just prohibitively expensive/dangerous to perform, but the test seems to be the same, correct?

[arklaw13]

Is there practical difference between impracticability and impossibility? I understand that one can't be performed, and one is just prohibitively expensive/dangerous to perform, but the test seems to be the same, correct?

Yeah the test is the same. The defense was historically called impossibility, but modern cases recognize that performance doesn't necessarily have to be "impossible."

[Swimp]

Can anyone help me out with a Civpro question? I feel like it's really basic but there must be something I'm missing

Plaintiff sued defendant in federal court for civil rights violations arising out of an arrest. Two weeks after answering the complaint, the defendant realized that he failed to include three defenses in his answer: lack of venue, failure to join an indispensable party, and statute of limitations. Can he still raise these defenses? Why or why not? If so, how? What further information do you need?

Lack of Venue

Assuming he hasn't used up his one free shot to amend within 21 days under Rule 15, as long as he didn't file a 12(b) motion that failed to include this, then he can amend to include it.

Failure to join indispensable party

Even if he made a 12(b) motion that didn't include this, it isn't one of the four Rule 12 defenses that are waived. So he can make raise this defense as long as the amendment is allowed, whether as a matter of course or with leave of the court.

Statute of limitations

Seems like this can be included as long as he can amend the complaint.


Is there something I'm missing here?

I haven't looked over Civ Pro too much yet, but I believe if you look at Rule 12, it lists improper venue and failure to join a Rule 19 party as defenses you have to assert before filing an answer on the merits. So it looks like those may have been waived in the hypo.

As for statute of limitations, I'm not sure. Would that fall under 12(b)(6)?

[arklaw13]

Can anyone help me out with a Civpro question? I feel like it's really basic but there must be something I'm missing

Plaintiff sued defendant in federal court for civil rights violations arising out of an arrest. Two weeks after answering the complaint, the defendant realized that he failed to include three defenses in his answer: lack of venue, failure to join an indispensable party, and statute of limitations. Can he still raise these defenses? Why or why not? If so, how? What further information do you need?

Lack of Venue

Assuming he hasn't used up his one free shot to amend within 21 days under Rule 15, as long as he didn't file a 12(b) motion that failed to include this, then he can amend to include it.

Failure to join indispensable party

Even if he made a 12(b) motion that didn't include this, it isn't one of the four Rule 12 defenses that are waived. So he can make raise this defense as long as the amendment is allowed, whether as a matter of course or with leave of the court.

Statute of limitations

Seems like this can be included as long as he can amend the complaint.


Is there something I'm missing here?

I haven't looked over Civ Pro too much yet, but I believe if you look at Rule 12, it lists improper venue and failure to join a Rule 19 party as defenses you have to assert before filing an answer on the merits. So it looks like those may have been waived in the hypo.

As for statute of limitations, I'm not sure. Would that fall under 12(b)(6)?

I don't think that's right. As I understand it, you're never required to make a 12(b) motion. You can choose to to avoid filing an answer if the judge agrees with one of your defenses, but you can just go ahead and file an answer if you want to.

Rule 12(b)How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

[Swimp]

Can anyone help me out with a Civpro question? I feel like it's really basic but there must be something I'm missing

Plaintiff sued defendant in federal court for civil rights violations arising out of an arrest. Two weeks after answering the complaint, the defendant realized that he failed to include three defenses in his answer: lack of venue, failure to join an indispensable party, and statute of limitations. Can he still raise these defenses? Why or why not? If so, how? What further information do you need?

Lack of Venue

Assuming he hasn't used up his one free shot to amend within 21 days under Rule 15, as long as he didn't file a 12(b) motion that failed to include this, then he can amend to include it.

Failure to join indispensable party

Even if he made a 12(b) motion that didn't include this, it isn't one of the four Rule 12 defenses that are waived. So he can make raise this defense as long as the amendment is allowed, whether as a matter of course or with leave of the court.

Statute of limitations

Seems like this can be included as long as he can amend the complaint.


Is there something I'm missing here?

I haven't looked over Civ Pro too much yet, but I believe if you look at Rule 12, it lists improper venue and failure to join a Rule 19 party as defenses you have to assert before filing an answer on the merits. So it looks like those may have been waived in the hypo.

As for statute of limitations, I'm not sure. Would that fall under 12(b)(6)?

I don't think that's right. As I understand it, you're never required to make a 12(b) motion. You can choose to to avoid filing an answer if the judge agrees with one of your defenses, but you can just go ahead and file an answer if you want to.

Rule 12(b)How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

Right, and then it lists the motions, and then it goes on:

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.

I just know, for instance, if you're filing a 12(b)(2) motion contesting personal jurisdiction, your lawyer has to make a special appearance basically to say "We don't have to address the merits of this case, because you have no personal jurisdiction," but if he starts talking about how you're not guilty, BOOM. You've surrendered to the jurisdiction of the court and you have to appear.

[Easy-E]

Is there practical difference between impracticability and impossibility? I understand that one can't be performed, and one is just prohibitively expensive/dangerous to perform, but the test seems to be the same, correct?

Yeah the test is the same. The defense was historically called impossibility, but modern cases recognize that performance doesn't necessarily have to be "impossible."

Good stuff, thanks. I'm gonna be infesting this thread with K's questions for the next 36 or so hours.

[arklaw13]

Right, and then it lists the motions, and then it goes on:

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.

I think that's just saying that you can't make the motion after you file your answer. I know for a fact that a 12(b) motion is completely optional.

I just know, for instance, if you're filing a 12(b)(2) motion contesting personal jurisdiction, your lawyer has to make a special appearance basically to say "We don't have to address the merits of this case, because you have no personal jurisdiction," but if he starts talking about how you're not guilty, BOOM. You've surrendered to the jurisdiction of the court and you have to appear.

Well, that situation only exists in state courts when you make a special appearance contesting PJ. In federal court, the rules allow you to assert lack of PJ along with your other defenses without losing your PJ objection, which really makes a lot more sense if you ask me.

[Swimp]

Right, and then it lists the motions, and then it goes on:

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.

I think that's just saying that you can't make the motion after you file your answer. I know for a fact that a 12(b) motion is completely optional.

I just know, for instance, if you're filing a 12(b)(2) motion contesting personal jurisdiction, your lawyer has to make a special appearance basically to say "We don't have to address the merits of this case, because you have no personal jurisdiction," but if he starts talking about how you're not guilty, BOOM. You've surrendered to the jurisdiction of the court and you have to appear.

Well, that situation only exists in state courts when you make a special appearance contesting PJ. In federal court, the rules allow you to assert lack of PJ along with your other defenses without losing your PJ objection, which really makes a lot more sense if you ask me.

I guess where I'm getting hung up is that the hypo says that the ∆ has answered the complaint already. Two weeks later, he realizes he didn't assert these affirmative defenses. And you're saying they're not waived?

[arklaw13]

Right, and then it lists the motions, and then it goes on:

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.

I think that's just saying that you can't make the motion after you file your answer. I know for a fact that a 12(b) motion is completely optional.

I just know, for instance, if you're filing a 12(b)(2) motion contesting personal jurisdiction, your lawyer has to make a special appearance basically to say "We don't have to address the merits of this case, because you have no personal jurisdiction," but if he starts talking about how you're not guilty, BOOM. You've surrendered to the jurisdiction of the court and you have to appear.

Well, that situation only exists in state courts when you make a special appearance contesting PJ. In federal court, the rules allow you to assert lack of PJ along with your other defenses without losing your PJ objection, which really makes a lot more sense if you ask me.

I guess where I'm getting hung up is that the hypo says that the ∆ has answered the complaint already. Two weeks later, he realizes he didn't assert these affirmative defenses. And you're saying they're not waived?

Well, he can still amend his answer once as a matter of course within 21 days. No defenses are waived if he includes them in that amendment. After that time, he can still amend with the leave of the court, but certain defenses listed in 12(b)(2)-(5) are waived. Every other defense can still be added if the answer is amended with the leave of the court, which it almost always is. The general rule is not to waive objections that early in the suit. The idea is that the waivable ones like PJ and ones related to service should be known when you get the complaint and you don't have an excuse to wait forever to raise it.

[Easy-E]

How do you determine whether P can get reliance damages? Is it just whether they "reasonably relied upon promise", or is it something more like the elements of promissory estoppel?

[arklaw13]

How do you determine whether P can get reliance damages? Is it just whether they "reasonably relied upon promise", or is it something more like the elements of promissory estoppel?

Reliance damages are going to come up really whenever P can't get expectation damages for whatever reason. It could be in PE, quantum meruit, and maybe in situations where substantial breach results in a total forfeiture but P can sue for what he spent on the contract (less sure about this one).

[Easy-E]

How do you determine whether P can get reliance damages? Is it just whether they "reasonably relied upon promise", or is it something more like the elements of promissory estoppel?

Reliance damages are going to come up really whenever P can't get expectation damages for whatever reason. It could be in PE, quantum meruit, and maybe in situations where substantial breach results in a total forfeiture but P can sue for what he spent on the contract (less sure about this one).

Makes sense, thanks.

[Easy-E]

Quick hypo that's been bothering me. 17 year old girl's car breaks down in the snow in middle of nowhere, finally finds a motel which seems to be the only thing around for miles. She goes to rent a room, owner sees she is desperate and has nowhere else to turn, and instead of charging the usual 100$ rate, he charges her 200$. I think that's everything relevant.

Do her parents have to pay this (or at least, can they get $100 back)? Shes a minor obviously, but no issue because its for necessity (shelter). Is his raising of the price unconscionable? Hotels raise prices for certain events and holidays all the time, but this is pretty different, especially since the rate for anyone else that night seemed to be $100. Doesn't seem to be a duress issue since he didn't really threaten her unless you can argue a "constructive threat" since she had no other option. Unconscionability due to the lack of meaningful choice seems okay too, but not great. What do you guys think?