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I thought this was a good thread in the student forums when we were going through 1L and think it would be similarly useful here, so feel free to post whatever questions about the material you have and hopefully somebody will be able to help you out.

Awesome Possum!

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For the MBE (UBE NY at least), do we assume a non-goods contract can be modified without consideration as long as it is fair and equitable in light of unanticipated circumstances (the modern view) or do the prevailing rule is that the more traditional CL rule that it requires consideration?

speed_the_loot wrote:Does anyone have a good example that distinguishes primary and secondary assumption of the risk?

In the abstract, I get that primary AR means that the defendant owes no duty of care to plaintiff, whereas secondary AR means that the defendant breached a duty w/r/t plaintiff, which plaintiff voluntarily encounters anyway. But I'm not understanding the real-world implications of that distinction.

I think that is all you need to know. For practical purposes, secondary assumption of risk is simply an argument that the other person was also negligent (if contributorily negligent in a traditional JX then it bars recovery). In primary, D is arguing that there was no duty, so P cannot even reach the question of breach, there is no exposure to liability. I doubt this distinction will matter for purposes of the MBE.

mvp99 wrote:For the MBE (UBE NY at least), do we assume a non-goods contract can be modified without consideration as long as it is fair and equitable in light of unanticipated circumstances (the modern view) or do the prevailing rule is that the more traditional CL rule that it requires consideration?

For purposes of the MBE, I'm 99% sure that we will be tested on knowing that a CL modification requires consideration whereas it does not under the UCC. But I imagine discussing both on an essay is a good idea.

Question about property. Speifically fixtures.

I solved problem 14 on Emmanuels 5th edition. Facts: life estate to A, then to B. A tells B they are installing fixture, A dies. Then A's executor removes fixture, B sues to have it reinstalled. Answer: Executor can remove fixture here b/c representative is permitted to remove before A leaves the estate or shortly thereafter.

My confusion stems from an earlier Barbri question I did, which suggested that a person renting a property must remove their added fixture (without damaging the property) before the rental period ends, and that the added fixture becomes part of the property if not removed by the end of the rental.

What gives? Is there a different rule depending on whether the fixture is added by a life-estate holder versus a renting tenant?

LionelHutzJD wrote:

mvp99 wrote:For the MBE (UBE NY at least), do we assume a non-goods contract can be modified without consideration as long as it is fair and equitable in light of unanticipated circumstances (the modern view) or do the prevailing rule is that the more traditional CL rule that it requires consideration?

For purposes of the MBE, I'm 99% sure that we will be tested on knowing that a CL modification requires consideration whereas it does not under the UCC. But I imagine discussing both on an essay is a good idea.

CL modification needs some sort of consideration. What counts as consideration is another story.

UCC doesn't need consideration, but it must be done in good faith, even if there is new consideration.

On an essay, only discuss the relevant rule. If it's sale of goods, discuss UCC. If it's not, discuss CL. If it's both, discuss each in the relevant portion of the essay.

nachosrgood wrote:Question about property. Speifically fixtures.

I solved problem 14 on Emmanuels 5th edition. Facts: life estate to A, then to B. A tells B they are installing fixture, A dies. Then A's executor removes fixture, B sues to have it reinstalled. Answer: Executor can remove fixture here b/c representative is permitted to remove before A leaves the estate or shortly thereafter.

My confusion stems from an earlier Barbri question I did, which suggested that a person renting a property must remove their added fixture (without damaging the property) before the rental period ends, and that the added fixture becomes part of the property if not removed by the end of the rental.

What gives? Is there a different rule depending on whether the fixture is added by a life-estate holder versus a renting tenant?

My understanding was that they pass with the property, however a tenant who installed their own can (not must) remove it if they won't cause substantial damage to the property.

I also think that a commercial tenant can always take their fixtures with them, regardless of damage.

Looking at the question, maybe it is because A's executor told B not only that they were installing, but it was to be removed after her death, and the old fixture reinstalled. I don't really know when the "end" of a "tenancy" is for a life estate, but I guess it is a reasonable time after (during the time the executor takes the person who dies stuff out would make sense, I guess?)

Prob not helpful. lol

nachosrgood wrote:Question about property. Speifically fixtures.

I solved problem 14 on Emmanuels 5th edition. Facts: life estate to A, then to B. A tells B they are installing fixture, A dies. Then A's executor removes fixture, B sues to have it reinstalled. Answer: Executor can remove fixture here b/c representative is permitted to remove before A leaves the estate or shortly thereafter.

My confusion stems from an earlier Barbri question I did, which suggested that a person renting a property must remove their added fixture (without damaging the property) before the rental period ends, and that the added fixture becomes part of the property if not removed by the end of the rental.

What gives? Is there a different rule depending on whether the fixture is added by a life-estate holder versus a renting tenant?

If I recall correctly, you get a reasonable period of time to remove fixtures if you die (what I recall from the lecture a few weeks ago, but it's not in my bar prep's company's outlines). I don't think it matters if you're a tenant vs. a life estate, as they are the same for these purposes. Also, with trade fixtures, CL is that you must remove by end of lease, but most states don't follow that and give you a reasonable time to remove after the lease ends.

Yeah, Sublime and Whitecollar. reasonable time to remove fixtures after a death would resolve the discrepancy (I can see a good policy reason why you would allow time to allow a deceased person executor to remove stuff but not a living tenant-- the former cannot predict their death, but the later does know when their lease ends)

Thanks for chiming in.

Does anyone have a flowchart or a table breaking down possible remedies?

blueapple08 wrote:Does anyone have a flowchart or a table breaking down possible remedies?

Seconded.

apologies if this was asked elsewhere but if anyone can clarify RE: CivPro Impleader and when a Plaintiff can bring a claim against a third party D

Lecture notes say: a plaintiff may assert a claim against a third party defendant so long as it arises out of the same transaction/occurence

But, does the limitation apply here as well? i.e. if the case is based on diversity - even if the Plaintiff's claim against the third party defendant arises out of the same T/O - if it does not have its own SMJ, then the plaintiff could not bring a claim against a third party defendant, correct? just clarifying.

ellewoods123 wrote:apologies if this was asked elsewhere but if anyone can clarify RE: CivPro Impleader and when a Plaintiff can bring a claim against a third party D

Lecture notes say: a plaintiff may assert a claim against a third party defendant so long as it arises out of the same transaction/occurence

But, does the limitation apply here as well? i.e. if the case is based on diversity - even if the Plaintiff's claim against the third party defendant arises out of the same T/O - if it does not have its own SMJ, then the plaintiff could not bring a claim against a third party defendant, correct? just clarifying.

Impleader is a type of cross-claim. Cross-claims will always fall out of the same T/O and will thus always have supplemental jurisdiction. Impleader will occur in case where the third party would be cross-claimed by the defendant most likely for contribution or indemnity. Basically, any cross-claim where the third party would be responsible to the defendant for some or all of the money he might owe to the plaintiff.

If I'm mistaken, anyone please feel free to correct me.

whitecollar23 wrote:

ellewoods123 wrote:apologies if this was asked elsewhere but if anyone can clarify RE: CivPro Impleader and when a Plaintiff can bring a claim against a third party D

Lecture notes say: a plaintiff may assert a claim against a third party defendant so long as it arises out of the same transaction/occurence

But, does the limitation apply here as well? i.e. if the case is based on diversity - even if the Plaintiff's claim against the third party defendant arises out of the same T/O - if it does not have its own SMJ, then the plaintiff could not bring a claim against a third party defendant, correct? just clarifying.

Impleader is a type of cross-claim. Cross-claims will always fall out of the same T/O and will thus always have supplemental jurisdiction. Impleader will occur in case where the third party would be cross-claimed by the defendant most likely for contribution or indemnity. Basically, any cross-claim where the third party would be responsible to the defendant for some or all of the money he might owe to the plaintiff.

If I'm mistaken, anyone please feel free to correct me.

right, I get that (sorry if I wasn't clear!) but my question is, one D properly impleads a third party defendant, i understand that (1) the plaintiff may assert a claim against the third party defendant, provided it arises out out same T/O (or has its own SMJ) BUT:

if the case is based on diversity, is plaintiff barred from asserting a claim against a third party defendant (that lacks its own SMJ) even if the claim arises out of the same T/O? I think the answer is: yes, based on the limitation that bars plaintiffs claims from invoking supplemental jurisdiction. Correct?

ellewoods123 wrote:

whitecollar23 wrote:

ellewoods123 wrote:apologies if this was asked elsewhere but if anyone can clarify RE: CivPro Impleader and when a Plaintiff can bring a claim against a third party D

Lecture notes say: a plaintiff may assert a claim against a third party defendant so long as it arises out of the same transaction/occurence

But, does the limitation apply here as well? i.e. if the case is based on diversity - even if the Plaintiff's claim against the third party defendant arises out of the same T/O - if it does not have its own SMJ, then the plaintiff could not bring a claim against a third party defendant, correct? just clarifying.

Impleader is a type of cross-claim. Cross-claims will always fall out of the same T/O and will thus always have supplemental jurisdiction. Impleader will occur in case where the third party would be cross-claimed by the defendant most likely for contribution or indemnity. Basically, any cross-claim where the third party would be responsible to the defendant for some or all of the money he might owe to the plaintiff.

If I'm mistaken, anyone please feel free to correct me.

right, I get that (sorry if I wasn't clear!) but my question is, one D properly impleads a third party defendant, i understand that (1) the plaintiff may assert a claim against the third party defendant, provided it arises out out same T/O (or has its own SMJ) BUT:

if the case is based on diversity, is plaintiff barred from asserting a claim against a third party defendant (that lacks its own SMJ) even if the claim arises out of the same T/O? I think the answer is: yes, based on the limitation that bars plaintiffs claims from invoking supplemental jurisdiction. Correct?

"1367(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332."

Basically, a plaintiff's claim against an impleaded party would fall under Rule 14 (impleader is a type of cross-claim), and thus if that claim doesn't have AIC or diversity, it can't be brought.

Correct me if I'm wrong, but a cross-claim on the defendant's end can only be brought under supplemental jurisdiction in a diversity action if it doesn't destroy complete diversity, right? Supp only helps with AIC. (But like I mentioned above, it definitely won't help a P bring a supp claim based on 1367(b).)

whitecollar23 wrote:

ellewoods123 wrote:

whitecollar23 wrote:

ellewoods123 wrote:apologies if this was asked elsewhere but if anyone can clarify RE: CivPro Impleader and when a Plaintiff can bring a claim against a third party D

Lecture notes say: a plaintiff may assert a claim against a third party defendant so long as it arises out of the same transaction/occurence

But, does the limitation apply here as well? i.e. if the case is based on diversity - even if the Plaintiff's claim against the third party defendant arises out of the same T/O - if it does not have its own SMJ, then the plaintiff could not bring a claim against a third party defendant, correct? just clarifying.

Impleader is a type of cross-claim. Cross-claims will always fall out of the same T/O and will thus always have supplemental jurisdiction. Impleader will occur in case where the third party would be cross-claimed by the defendant most likely for contribution or indemnity. Basically, any cross-claim where the third party would be responsible to the defendant for some or all of the money he might owe to the plaintiff.

If I'm mistaken, anyone please feel free to correct me.

right, I get that (sorry if I wasn't clear!) but my question is, one D properly impleads a third party defendant, i understand that (1) the plaintiff may assert a claim against the third party defendant, provided it arises out out same T/O (or has its own SMJ) BUT:

if the case is based on diversity, is plaintiff barred from asserting a claim against a third party defendant (that lacks its own SMJ) even if the claim arises out of the same T/O? I think the answer is: yes, based on the limitation that bars plaintiffs claims from invoking supplemental jurisdiction. Correct?

"1367(b) In any civil action of which the district courts have original jurisdiction founded solely on section 1332 of this title, the district courts shall not have supplemental jurisdiction under subsection (a) over claims by plaintiffs against persons made parties under Rule 14, 19, 20, or 24 of the Federal Rules of Civil Procedure, or over claims by persons proposed to be joined as plaintiffs under Rule 19 of such rules, or seeking to intervene as plaintiffs under Rule 24 of such rules, when exercising supplemental jurisdiction over such claims would be inconsistent with the jurisdictional requirements of section 1332."

Basically, a plaintiff's claim against an impleaded party would fall under Rule 14 (impleader is a type of cross-claim), and thus if that claim doesn't have AIC or diversity, it can't be brought.

Correct me if I'm wrong, but a cross-claim on the defendant's end can only be brought under supplemental jurisdiction in a diversity action if it doesn't destroy complete diversity, right? Supp only helps with AIC. (But like I mentioned above, it definitely won't help a P bring a supp claim based on 1367(b).)

I'm mistaken on the latter part. 13(a) and 13(g) claims get in under SJ without concern for destroying complete diversity (or reaching AIC). With 13(b) claims, the courts are split in that regard (probably not relevant for Bar exam purposes, though).

Anyone have a systematic approach for tackling future interest questions? I sometimes have trouble classifying them, let alone dealing with RAP.

doctoroflaw91 wrote:Anyone have a systematic approach for tackling future interest questions? I sometimes have trouble classifying them, let alone dealing with RAP.

With RaP:

1) Is this even subject to RaP? (purchase options, powers of appointment, rights of first refusal, remainders subject to open (class gifts that aren't closed), contingent remainders, executory interests)
2) Who are the lives in being? (I think they are usually any person who is identifiable at the time of the conveyance, and a class can't be used as lives in being unless it is already closed at time of conveyance.)
3) What are the interests in the conveyance?
4) Can any of those interests vest more than 21 years after the lives in being die?
5) If only a specific clause or clauses violate the rule, cut them off and only consider what's left.

Also, fee simples subject to an executory interest will often violate the RaP, as they will often require a condition to occur that can happen hundreds of years late. For example, "O conveys Blackacre to A and if the land is ever destroyed in an acid rain storm to B." Since an acid rain storm might not happen for hundreds of years, the lives in being (O and A) might have died more than 21 years previously. Thus, you cut out the executory interest and end up with only "O conveys Blackacre to A" and A has a fee simple absolute.

Honestly, I doubt we'll see more than 1 questions of RaP on the Bar, so don't go crazy trying to understand it. If you have a general idea, you're already ahead of the pack. And for all we know, the answer might simply be that it doesn't apply b/c the interest isn't even subject to the rule.

If anyone can chime in if I'm mistaken anywhere, feel free to do so!

Anybody have a good method for analyzing a commercial paper essay? I can try to memorize the outline, but I don't understand the topic conceptually.

Box falls off a truck. Pedestrian sees it happen, goes to box, sees the owner's address is on the box. Pedestrian decides to return box to owner. Pedestrian gets to owner's front door, decides to keep the box, starts to take it home with him.

How is that not larceny? Yeah, the original taking wasn't wrongful or trespassory or whatever. But isn't it larceny when Pedestrian changes his mind and decides to keep it?

HALP

BigZuck wrote:Box falls off a truck. Pedestrian sees it happen, goes to box, sees the owner's address is on the box. Pedestrian decides to return box to owner. Pedestrian gets to owner's front door, decides to keep the box, starts to take it home with him.

How is that not larceny? Yeah, the original taking wasn't wrongful or trespassory or whatever. But isn't it larceny when Pedestrian changes his mind and decides to keep it?

HALP

That should be larceny as you can form the intent even after you take it. Only thing I could think of is that the guy didn't get it yet, but I don't think that matters.

Where did you see this?

My understanding was that larceny is one of the few crimes that you can form the intent for later.

sublime wrote:My understanding was that larceny is one of the few crimes that you can form the intent for later.

Just read something online that would clarify this situation. Later developed intent only works if the initial taking was wrongful. In the case mentioned here, the initial taking wasn't wrongful. Thus, you can't develop intent later.