1L Substantive Law Questions (c/o 2017) Forum

[Traynor Brah]

Civ Pro

1) Is it right that the notice pleading standard is effectively irrelevant post-Twiqbal?

1. It still serves notice, but it's also a screening tool now.

To state this another way:

On an exam, would you go right to Twiqbal analysis, or would you analyze whether the pleading has given notice (e.g. Conley) before applying twiqbal?

[chargers]

This might be a stupid question, Contracts has my head all in a knot.

Say I am interpreting a term in a contract to determine whether it is a condition or a promise. I decide that it does not appear on its face to be a condition, and looks more like a promise. However, based on the presumed intent of the parties it appears that Party A's party's performance is dependent on Party B's fulfillment of this promise, meaning the term is a constructive condition precedent to Party A's obligation to perform.

Is this general analysis right?

[CardozoLaw09]

Is there any reason why you think the presumed intent of the parties doesn't align with what the term in the contract says? What about the term makes it look more like a promise? Also, I don't think a promise and an express condition have to necessarily be mutually exclusive. I could be wrong, though.

[chargers]

Edit: stupid question that I realized the answer to.

[CardozoLaw09]

Edit: stupid question that I realized the answer to.

Care to share?

[TheoO]

Can someone explain to me the chart on page 259 in Gilbert's Prop? Specifically, why is the privity of estate in assignment by landlord between assignee and tenant but in assignment by tenant its assignee and landlord?

[blackacre10]

can someone help me out with a property problem? it's rule against perpetuities.
apparently, RAP doesn't apply to vested remainders subject to divestment (E&E 181). this is fine, but it has confusing applications. for example--

vested remainder subject to divestment: O grants Blackacre to A for life, then to A's kids, but if A's kids don't turn 35, then to B and his heirs. A's kids, M and N, are 3 and 4.

RAP applied -- huge tornado the next day, killing O, A, B, and B's heirs. M and N survive. M and N won't turn 35 in 21 years, but since it's a vested remainder, RAP isn't supposed to apply? So M and N get the property? (and when do they get the property-- after they turn 35 or after the tornado when everyone dies?) (i get that RAP would apply to B and B's heirs' future interest)

contingent remainder: O grants Blackacre to A for life, then to A's kids if they turn 35; and if they don't turn 35, then to B and his kids. M and N are 3 and 4.

RAP applied -- huge tornado, killing O, A, B, and B's heirs. M and N survive. M and N won't turn 35 in 21 years, so the condition is struck, leaving Blackacre to M and N as a fee simple absolute.

i guess the main difference is-- if RAP doesn't apply to a vested remainder subject to divestment, then when would M and N in the first example get Blackacre?

[BVest]

can someone help me out with a property problem? it's rule against perpetuities.
apparently, RAP doesn't apply to vested remainders subject to divestment (E&E 181). this is fine, but it has confusing applications. for example--

vested remainder subject to divestment: O grants Blackacre to A for life, then to A's kids, but if A's kids don't turn 35, then to B and his heirs. A's kids, M and N, are 3 and 4.

RAP applied -- huge tornado the next day, killing O, A, B, and B's heirs. M and N survive. M and N won't turn 35 in 21 years, but since it's a vested remainder, RAP isn't supposed to apply? So M and N get the property? (and when do they get the property-- after they turn 35 or after the tornado when everyone dies?) (i get that RAP would apply to B and B's heirs' future interest)

contingent remainder: O grants Blackacre to A for life, then to A's kids if they turn 35; and if they don't turn 35, then to B and his kids. M and N are 3 and 4.

RAP applied -- huge tornado, killing O, A, B, and B's heirs. M and N survive. M and N won't turn 35 in 21 years, so the condition is struck, leaving Blackacre to M and N as a fee simple absolute.

i guess the main difference is-- if RAP doesn't apply to a vested remainder subject to divestment, then when would M and N in the first example get Blackacre?

This is a Vested Remainder Subject to Open for as long as A is alive (in addition to being subject to divestment based on the "reach 35" language). As such, it is subject to the RAP for so long as the class remains open (i.e. as long as A is alive, or, if A is a man, until 40 weeks after A's death, because he could have a child born that long after).

[Manteca]

Merger doctrine in Crim Law. Why do assaultive-type felonies merge?

[swampman]

vested remainder subject to divestment: O grants Blackacre to A for life, then to A's kids, but if A's kids don't turn 35, then to B and his heirs. A's kids, M and N, are 3 and 4.

RAP applied -- huge tornado the next day, killing O, A, B, and B's heirs. M and N survive. M and N won't turn 35 in 21 years, but since it's a vested remainder, RAP isn't supposed to apply? So M and N get the property? (and when do they get the property-- after they turn 35 or after the tornado when everyone dies?) (i get that RAP would apply to B and B's heirs' future interest)

B's future interest is void under the RAP, so strike that language from the grant (get rid of "but if A's kids don't turn 35, then to B and his heirs") and you're left with "to A for life, then to A's kids." M and N get the property upon A's death (subject to open - A could have more kids, but since the class closes upon A's death and A is a life in being this doesn't cause any problems under the RAP).


In the second example, "then to A's kids if they turn 35" is the contingent remainder and is void. Everything after "to A for life" is void under the RAP and is struck from the grant. We're left with "to A for life." A gets a life estate with a reversion in O.

[Germaine]

vested remainder subject to divestment: O grants Blackacre to A for life, then to A's kids, but if A's kids don't turn 35, then to B and his heirs. A's kids, M and N, are 3 and 4.

RAP applied -- huge tornado the next day, killing O, A, B, and B's heirs. M and N survive. M and N won't turn 35 in 21 years, but since it's a vested remainder, RAP isn't supposed to apply? So M and N get the property? (and when do they get the property-- after they turn 35 or after the tornado when everyone dies?) (i get that RAP would apply to B and B's heirs' future interest)

Not entirely sure what you're asking, but it's a vested remainder subject to full divestment because the placement of the phrase "but if" distinguishes it from the example below. Readling left to right, A gets a life estate, A's kids have a vested interest (at A's death, which will happen), but if they don't make it to 35, their vested interest can be divested. So this is not a contingent interest, in that they have the interest vested now. What they don't have (and may never have) is possession, but that's not at issue here. All RAP cares about is vesting. So no RAP applied to A's kids' interest, because it's either vested (as it is now), or it's non-existent (if the condition kicks).

To your example, it's true that M and N won't turn 35 in 21 years, but that doesn't matter because their interest has already vested. They are their own measuring lives. What RAP is more worried about is B's executory interest (or B's heirs interest), which could vest way down the line if events occurred that way.

contingent remainder: O grants Blackacre to A for life, then to A's kids if they turn 35; and if they don't turn 35, then to B and his kids. M and N are 3 and 4.

RAP applied -- huge tornado, killing O, A, B, and B's heirs. M and N survive. M and N won't turn 35 in 21 years, so the condition is struck, leaving Blackacre to M and N as a fee simple absolute.

i guess the main difference is-- if RAP doesn't apply to a vested remainder subject to divestment, then when would M and N in the first example get Blackacre?

[pancakes3]

Merger doctrine in Crim Law. Why do assaultive-type felonies merge?

So you don't charged 5 different times with increasingly severe penalties for the one punching of some dude's face.

[blackacre10]

germaine, bvest, swampman-- thanks! makes sense. all this cramming is leading me in circles.. i probably could have come up with a better example, since like you guys pointed out, A's kids can be their own measuring lives.

i guess here's what confused me: vested remainders are pretty much contingent remainders, but phrased differently (check the link on vested remainder subject to divestment -- https://www.law.cornell.edu/wex/future_interest). so why does RAP apply to contingent remainders but not vested remainders subject to divestment if the only difference is the wording?

edit: i think the link has a typo, since it first says "vested remainder subject to open" where i think it means "vested remainder subject to divestment," given the example that follows

[pancakes3]

germaine, bvest, swampman-- thanks! makes sense. all this cramming is leading me in circles.. i probably could have come up with a better example, since like you guys pointed out, A's kids can be their own measuring lives.

i guess here's what confused me: vested remainders are pretty much contingent remainders, but phrased differently (check the link on vested remainder subject to divestment -- https://www.law.cornell.edu/wex/future_interest). so why does RAP apply to contingent remainders but not vested remainders subject to divestment if the only difference is the wording?

edit: i think the link has a typo, since it first says "vested remainder subject to open" where i think it means "vested remainder subject to divestment," given the example that follows

1) Massive difference between vested remainders and contingent remainders and it's exactly hinged upon the phrasing. That comma between:

O to A, and if A...
and
O to A if A...

makes the very significant difference between O saying that A gets it definitively before the conditions possibly taking it away and that A is only possibly being vested pending a condition.

2) RAP applies to time of vesting. At the time of writing the conveyance, you already know for sure someone is going to get it, there is no uncertainty, which is what the RAP is trying to eliminate. That's why figuring out what is vested and what is contingent, even based on the presence of a comma or not is so important.

3) Didn't click on the link but it's probably not a typo. Does your prof or supplement call "VR subject to open" as "VR subject to partial divestment" ? It goes to the certainty of who gets what at the time whatever conveyance you're analyzing. Even though a subject to open is technically "vested" there is uncertainty as to who is vested what, so it's subject to RAP. A VR subject to complete divestment is fully vested at the time of conveyance and the uncertainty is to how long he gets to keep it, not who gets it.

[blackacre10]

germaine, bvest, swampman-- thanks! makes sense. all this cramming is leading me in circles.. i probably could have come up with a better example, since like you guys pointed out, A's kids can be their own measuring lives.

i guess here's what confused me: vested remainders are pretty much contingent remainders, but phrased differently (check the link on vested remainder subject to divestment -- https://www.law.cornell.edu/wex/future_interest). so why does RAP apply to contingent remainders but not vested remainders subject to divestment if the only difference is the wording?

edit: i think the link has a typo, since it first says "vested remainder subject to open" where i think it means "vested remainder subject to divestment," given the example that follows

1) Massive difference between vested remainders and contingent remainders and it's exactly hinged upon the phrasing. That comma between:

O to A, and if A...
and
O to A if A...

makes the very significant difference between O saying that A gets it definitively before the conditions possibly taking it away and that A is only possibly being vested pending a condition.

2) RAP applies to time of vesting. At the time of writing the conveyance, you already know for sure someone is going to get it, there is no uncertainty, which is what the RAP is trying to eliminate. That's why figuring out what is vested and what is contingent, even based on the presence of a comma or not is so important.

3) Didn't click on the link but it's probably not a typo. Does your prof or supplement call "VR subject to open" as "VR subject to partial divestment" ? It goes to the certainty of who gets what at the time whatever conveyance you're analyzing. Even though a subject to open is technically "vested" there is uncertainty as to who is vested what, so it's subject to RAP. A VR subject to complete divestment is fully vested at the time of conveyance and the uncertainty is to how long he gets to keep it, not who gets it.

thanks! appreciate the help

[eliminatorjr]

So can someone help me understand how present estates and future interests fit together? I feel like I can recite what language creates what in a vacuum, but I have a hard time applying it on practice exams.

[pancakes3]

... who has it now vs. who gets it later. not sure what you're asking...

[eliminatorjr]

So I'm thinking of something like "to A for life, then to A's children (who are now alive) for as long as Blackacre is used as a bar." I can see a whole bunch of language in there that is setting off alarm bells, but I'm having trouble teasing it out.

[koval]

So I'm thinking of something like "to A for life, then to A's children (who are now alive) for as long as Blackacre is used as a bar." I can see a whole bunch of language in there that is setting off alarm bells, but I'm having trouble teasing it out.

There's no RAP problem as far as I can see. All children, upon A's death, would get fee simple determinable estates in a tenancy in common arrangement. I am a 1L though, so I could be wrong.

[pancakes3]

So I'm thinking of something like "to A for life, then to A's children (who are now alive) for as long as Blackacre is used as a bar." I can see a whole bunch of language in there that is setting off alarm bells, but I'm having trouble teasing it out.

Setting off alarm bells how? What's the question that you think you won't be able to answer? Can you label every person's interest? Are you confused as to if it survives RAP? Are you just unsure/insecure about your skills at identifying the interests?

Pretty much every clause in a vesting statement adds a wrinkle in its own way. Luckily there are but so many kinds of wrinkles. To A for life is a life estate. Then to A's children is some sort of future interest. Since A is presumed alive seeing as he's being vested a life estate, the class of A's children is subject to open (also called subject to partial divestment). Since it's subject to open, the RAP applies so we'll put an asterisk there until the parsing is complete. For as long as BA is used as a bar contains durational language and it's looking to divest the children. So the kids don't have an absolute (indefeasible) remainder. So I would say that A's kids have a vested remained subject to complete divestment. That also means O has a possibility of reverter. It's not a reversion because it's not automatic like in a life estate, and it's not a right of re-entry because the language is durational, not conditional.

As far as RAP goes, the key is to identify a vesting life. Does everyone get indisputably whatever they were intended at the end of the vesting life - and that vesting life has to be a life in being (alive) at the time of construction (when the vesting statement is written). A is "clearly" the vesting life because of the asterisk aforementioned. A's kids can't be the vesting life because there's no guarantee that any given child will survive A and A needs to die to close the class of children so that BA vests completely without being subject to open.

If you're confused or unsure, I would only suggest that you do practice problems - in your casebook or in a supplement. Don't waste time agonizing over the answer. Do it on the first pass. Check the answer. See if you got it wrong. If you did, figure out why it's wrong. Repeat. It's a lot like the LSAT where you just do enough that you know more or less what the question is asking because there are but so many permutations.