Doctrinal Outlines
These are full outlines for the 1L core, written by students who took the courses. Pick a subject, then open any part to read the rules, cases, and elements inside it. Everything starts collapsed, so you only open what you need.
Study aid only, not legal advice. Outlines reflect a particular course and professor; always confirm against your own materials.
Intent must bring about some sort of physical or mental effect upon the other person but does not need to include a desire to “harm that person. The rule that a person who intends to commit one intentional tort and in fact commits another is liable for the tort actually committed, applies no matter which kind of torts are involved.
Substantial Certainty
Tort law also calls an action intentional if the actor knew with substantial certainty that result would occur due to his/her action.
- But if is not “substantially certain” that the invasion of plaintiff’s interest in his person will occur, but merely highly likely, the act is not an intentional tort.
Glass jaw rule
If D taps P lightly on the chin, and it somehow breaks P’s jaw, D will be liable for any unforeseeable injury suffered by P as a result of the tap. It matters not that D didn’t intend to cause such harm, or that an ordinary person would not have suffered such injuries. As long as the tap on the chin was intentional, D is liable.
Ignorance of the law is no excuse of tort action.
Insane persons are liable for their torts
Unless they are in a facility or location in which they have purposely been taken because of people’s awareness of their condition. In which case harm to a nurse, let’s say, would not qualify as an intentional tort against the nurse, as the insane person was taken to that facility specifically because they act this way. However, if an insane person commits an intentional tort in public, they are liable as the law attempts to treat them as anyone else since we decided they would be able to co-exist in society (assuming they are capable of forming intent).
Transferred intent
holds that as long as the defendant held the necessary intent with respect to one person, he will be held to have committed an intentional tort against any other person who happens to be injured.
Different kind of tort intended
If a defendant intended to commit an assault, but in fact hit the other person, they will be deemed to have had the necessary intent for battery. This also applies to transferred intent cases.
Nominal Damages
If a judge or jury decides that a defendant’s conduct constituted an intentional tort, they may award nominal damages (a token sum), even if the plaintiff cannot show any actual pecuniary (monetary/injury cost) harm.
Punitive Damages
An intentional tort victim may also recover punitive damages if defendant’s conduct was outrageous or malicious. Such damages can be substantial and may awarded even when little or no compensatory damages were awarded.
In negligence cases, neither nominal or punitive damages are awardable.
Scope of Liability
unlike in negligence cases where a defendant will generally be held liable only for those con sequences which were at least somewhat foreseeable, the intentional tortfeasor will be liable for virtually every result stemming directly or even somewhat directly from his conduct, however unlikely it might have seemed at the time of his act that such will follow.
Child Liability
Children may be liable for intentional torts as long as the injured party can prove the required elements, including intent.
Battery
is the infliction of a harmful or offensive bodily contact. Ex: punch in the face.
Necessary Intent for Battery
There is necessary intent for battery if defendant (D) either:
- D intended to cause a harmful or offensive bodily contact; or
- D intended to cause an imminent apprehension of P’s part of a harmful or offensive bodily contact (even if D did not intend to cause the contact itself).
Regarding “2.” here, this means an intent to commit an assault suffices as the intent for battery if it occurs, even if D never intended to actually batter plaintiff.
- Think “prank gone wrong,” still counts as battery.
Please remember that states can either be dual or single intent. This means some states only require that contact was intentional, while others require showing that it was both intentional and intended to cause a harmful or offensive bodily contact.
Harmful or Offensive Contact
Battery doesn’t just include infliction of bodily pain/damage, it also includes contact that is offensive, damaging a person’s “reasonable sense of dignity.”
- Let’s say for instance if a doctor operates on a person’s left ear when the surgery was only meant for the right ear. It doesn’t matter if the ear was fixed or looks better, the plaintiff here can sue for battery because contact was unauthorized an could be deemed reasonably offensive (see standard below).
Reasonable Standard for Offensive Contact
In determining if contact is offensive, the standard is not whether the particular plaintiff was offended, but whether an ordinary person not unduly sensitive as to their dignity would have been offended.
Contact Beyond Level Consented
Battery can occur if the plaintiff authorized certain contact on their person from the defendant, but then the defendant goes beyond that authorized level of touching.
Extends to Personal Effects
Battery can be committed not only by bodily contact but also contact with clothing, something one is holding, or something so closely identified with one’s body that contact with is as offensive as contact with the body would be.
Plaintiff’s awareness of the contact
It is not necessary that plaintiff have actual awareness of the contact at the time it occurs.
Indirect Contact
Contact can also be indirect. For example – If I order my dog to attack you, or if I put peanut butter (an I know you are allergic) in a place I know you will later touch or be around.
Unforeseen consequences
Once it’s established that the defendant intended to commit a harmful or offensive touching such that a contact occurred, the defendant is liable for any consequences which ensue, even though he did not intend them, and in fact could not have reasonably foreseen them.
Example – plaintiff died at the hospital from being injected with poison, but plaintiff was only at the hospital because defendant purposely hit him on the head with a golf club.
Damages
If the plaintiff can establish battery, they may recover nominal damages even if they suffered no physical injury. They may also recover from pain and suffering caused by mental disturbance, or of course if any actual injury occurred. If the defendant’s conduct was particularly outrageous, they will be subject to punitive damages awarded to the plaintiff. Economic damages (cost related to the injury or as a result of the injury) are also awarded.
Assault
is the intention of causing an apprehension of harmful or offensive contact. In other words, the defendant has committed the tort of assault if D has intentionally caused the plaintiff to think that they will be subjected to harmful or offensive contact.
Intent for Assault
the defendant must have either intended to cause the apprehension of contact or have intended to cause the contact itself. So if the defendant merely intends to frighten the plaintiff and does not intend an actual contact, that’s still necessary intent.
Attempted Battery
Furthermore, if the defendant intends to commit a battery, and does not intend to put the plaintiff in apprehension of contact, he also has the necessary intent for assault (say if I sneak up behind someone and attempt to hit them with something but miss).
No hostility required
As in the case of battery, it is not necessary that the defendant bear malice or hostility to the plaintiff, or intended to harm them.
Transferred intent also applies to assault.
“Words Alone” rule
words alone are not sufficient to constitute assault unless they are accompanied by some overt act, no matter how slight, that adds a threatening character of the words.
- Example: A gangster calls me and says he is going to shoot me, and then I see him in person which he states that “my time has come”. This counts as assault to the words accompanied by an overt act of hostility.
Words may negate assault
if someone acts in a way that could be threatening but makes it clear that there is no threat to be interpreted, assault is negated.
- Example: I grab a knife in a room alone with someone I just met while looking them in the eyes. They may think they are in danger and that this constitutes assault, but then I state, “you ready to help me cut the chicken so we can prepare dinner?” There also happens to be fresh chicken near us, and we were talking about getting dinner ready, therefore my words negate the possibility of assault.
Plaintiff must be aware of danger
Since assault is a tort that protects the plaintiff’s mental condition, they must be aware of the threatening situation.
Apprehension is not the same as fear
Even if I’m not scared or I think I can handle myself if D does intend to strike me, the fact there is a legitimate “apprehension” of danger of my part constitutes that the assault occurred.
- A drunk skinny dude attempts to fight someone, not knowing they are attempting to fight the boxing heavy weight champion of the world. Regardless of how confident the boxer is in his ability to beat the drunk defendant, this still constitutes assault.
Where threat itself is incapable of performance
But if it appears to the plaintiff that even without action on their part the defendant will be unable to make good on their threat of harm, there is no assault.
- Example: D points a gun at my face. I know that the gun isn’t loaded, and that there is no danger to this threat. Therefore, no assault occurred (regardless if the holder of the gun intended to stoke fear into me).
Unreasonable Apprehension
courts have held that plaintiff’s who are unusually timid or offended may not recover for assault where a normal person would not have an apprehension of contact.
Threat to Third Persons not Actionable
The plaintiff must have an apprehension that he himself will be subjected to bodily contact. He may not recover for his apprehension that someone else will be so touched.
Ability to Carry Out Threat
The plaintiff must believe that the defendant can carry out the threat they pose, but the defendant can know that, for instance, a gun is not loaded. Yet if the plaintiff does not know this it is still assault.
Conditional Threats
Unless the plaintiff had a legal right to compel with threatened action, a conditional threat “give me your money or else” constitutes an assault.
Assault is Not Attempted Battery
despite the tendency of some courts to think it is. Assault is committed where the defendant intends to frighten the plaintiff by pointing a pistol at them, but does not intend to shoot them, this is clearly not an attempted battery. But assault and attempted battery can go hand in hand (they assaulted you, then made good on their assault and attempted to batter you).
Abandoned attempt
The tort of assault is complete as soon as the plaintiff suffers the requisite apprehension. It is not negated by the fact the defendant had second thoughts and abandoned their plans.
Damages for assault are the same as in the case of battery.
False Imprisonment
defined as the intentional infliction of a confinement. Plaintiff must show that the defendant intended to confine them. As with assault and battery, they can meet this burden by showing that the defendant knew with “substantial certainty” that the confinement would result.
Transferred intent
this doctrine, just as in assault and battery, be applied here. Let’s say plaintiff was shopping at D’s store. D unreasonably believes that X stole from the store, and therefore shuts all the exits, trapping plaintiff as well. This has the effect of confining P, who D doesn’t even know is in the store, yet regardless they will be liable to both P and X for false imprisonment.
Nature of Confinement
plaintiff must be confined within definite physical barriers. In other words, the essence of “confinement” is that the plaintiff is held within certain limits, not prevented from entering certain spaces.
Means of Escape
It is irrelevant that there is some means of escape from the area of confinement, provided that the plaintiff does not know of this means. Even if plaintiff knows of these means, they will not lose their action unless means is reasonable.
Use of threats
If defendant threatens to use force or other kinds of duress to ensure confinement, this also falls under false imprisonment. This includes threats to a third person or property.
Plaintiff’s Desire to Clear Himself
However, if the plaintiff’s confinement is due solely to his own desire to clear himself of suspicion, there is no false imprisonment.
Purely Verbal Commands
If the plaintiff voluntarily submits to commands that are strictly verbal, unaccompanied by force or threats, there is no false imprisonment.
Threats of future harm
However, all threats must be imminent. A threat of future harm (“if you don’t stop I’ll call the police and send them to your house”) does not fall under false imprisonment.
Assertion of Legal Authority
Just as the confinement may be caused by threats of force, so it may be caused by the defendant’s assertion that they have legal authority to confine plaintiff. This is so even if the defendant does not in fact have legal authority, as long as the plaintiff reasonably believes that they have. Of course, if they are an actual office and have the legal authority to restrain someone, this does not apply. Rules vary by state and scenario regarding when an officer is legally allowed to restrain someone.
Instigation in arrest
If a private citizen participates in an arrest which turns out to be unlawful, they may be liable for false imprisonment even though they were not the one who ultimately made the arrest (must be an active role more than just giving information).
Duty to Aid in Escape or Release
It may happen that the plaintiff consents to an initial confinement (thus negating the tort ONLY IF THEY HAVE THE AUTHORITY TO CONFINE). If so, there will nonetheless be a false imprisonment if the defendant is under a duty to release the plaintiff, or to help them escape, and does not do so.
Plaintiff must be aware that they are being confined.
Damages
Plaintiff may recover nominal damages for false imprisonment, even if they have suffered no physical or mental harm. They may also recover for any suffering, loss of time, humiliation, inconvenience, etc. And where actual malice is shown, they may recover punitive damages.
IIED Definition
defined as the intentional or reckless infliction of emotional distress, via extreme or outrageous conduct, even in the absence of physical harm.
In the case of infliction of mental distress, the necessary mental state is broader than the other intentional torts we’ve seen. There are three possible mental states on D’s part, any of which will qualify:
- D desires to cause P emotional distress
- D knows with substantial certainty that P will suffer emotional distress; and
- D recklessly disregards the high probability that emotional distress will occur.
Meaning of “reckless”
For the defendant to be “reckless,” however, it must be in the face of risk that is significantly higher than the risk of harm that would make their conduct negligent. It has to be more than just unreasonable.
- Basically, it has to be a willful and “reckless” disregard for the high probability that other party would suffer emotional distress, therefore act was intentional.
Transferred intent
Usually not applicable in IIED cases, as it would be too wide to litigate. However, one exception applies and that is if the defendant directs their conduct at a member of the immediate family of the plaintiff, and the plaintiff is present.
Bodily Harm Exception Under Restatement
Any person who is present at a beating, attack, threat, etc. made to another may recover if they suffer “bodily harm” from watching the episode, even if the witness is not a member of the victim’s immediate family.
Emotional Distress where Other Tort Attempted
If the defendant attempts to commit some other tort, and the only effect on the plaintiff is emotional distress, the tort of IIED has not occurred. This differs from the mental suffering that allows recovery in assault, for instance.
Extreme and Outrageous
Must be so outrageous in character and extreme to a degree as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.
Actual Severe Distress
Once the Plaintiff has shown that the defendant’s conduct was extreme and outrageous, they must also show that he/she, the plaintiff, in fact suffered severe emotional distress. At a minimum, the plaintiff must always show that their mental distress was sufficiently sever that they sought medical aid. Court may also look to bodily harm as a guarantee that emotional distress is real, but if outrageousness of the act is clear enough, liability will be found without bodily harm.
Reasonable Standard
In addition to the requirement that the plaintiff suffer severe mental distress, the defendant’s conduct must be such that a reasonable person would have suffered such distress.
EXCEPTION: If the defendant had notice that the plaintiff is unusually sensitive (conduct must still be outrageous while in line with plaintiff’s sensitivities).
Constitutional Limits on IIED awards
IF the conduct by the defendant that causes the distress is the delivery of a message or communication, a state’s act of awarding damages against the defendant for IIED may well violate the defendant’s First Amendment Freedom of Speech.
Public Figure Rule
One Scenario in which such a First Amendment Violation can easily result from an IIED action arises where the plaintiff is a “public figure.” A public figure can recover only by showing the defendant either knew that his speech about P was false or recklessly whether it was true or false. See Hustler Magazine v. Falwell.
Statement of a Matter of Public Concern
Another way a tort recovery for IIED can violate the defendant’s first amendment right is if the alleged distress stems from the communicative impact of the defendant’s speech, and the speech involves a matter of public concern.
Common Carriers and Public Utility
are actually held to a stricter Standard of conduct than everyone else, and this is the one case where insults may be liable for use against Carrier’s or Utility’s customers.
Trespass to Land
Trespass to Land Definition
Can occur when the defendant enters the plaintiff’s land, or causes another person or an object to enter the plaintiff’s land. Alternatively, it can occur if the defendant remains on the plaintiff’s land without the right to be there, even if they initially entered rightfully. Finally trespass can occur if the defendant fails to remove an object from the plaintiff’s land which they have a duty to remove.
Today, virtually all American jurisdictions have rejected strict Liability for trespass except where the defendant has been carrying out some abnormally dangerous activity. Thus, the restatement of torts (second) provides that where entry on land is neither intentional nor negligent, the defendant is liable only if the entry occurred pursuant to his carrying out of an abnormally dangerous activity.
Kind of intent required
As with other intentional torts, the defendant can have the requisite intent even though he does not intend any harm to the plaintiff’s property interest. If the defendant has the intent to commit a physical contact with the plaintiff’s land, they will have the requisite intent for trespass even if their decision to make the contact is the result of a mistake Thus D’s mistake about legal title or consent won’t block liability. Mistake is no defense to trespass even if mistake is reasonable.
Induced by Plaintiff’s Conduct
However, if the defendant’s mistaken belief is induced by the plaintiff’s conduct, this may amount to an implied consent by the plaintiff.
Damages
Plaintiff who can show trespass is entitled to nominal damages only if there was intentional trespass when no harm occurred.
Scope of Liability
Once trespass is established, defendant is liable for virtually all consequences of the trespass, no matter how and unpredictable.
Only possessor has claim
Only the possessor of the property has the right to bring an action in trespass. Thus if the owner of an apartment building has rented it to X, and D trespasses in the building, only X, not the owner, can bring a trespass action.
Vacant Land
If unoccupied, the owner may sue in trespass, under the legal fiction that they are in constructive possession of the property.
Indirect Invasion
If the defendant causes a tangible object to enter the plaintiff’s land, there is trespass even though the defendant himself has not made entry. The defendant also trespasses if they causes a person to enter the land.
Most courts hold that a defendant who has caused particles, however fine, or gases to enter the plaintiff’s property, has committed trespass.
Airspace
Property owner also owns airspace above the land, and therefore trespass to their airspace can occur, let’s say, if someone puts up telephone wires in their airspace, or fires a shot in their airspace. Obviously, air travel doesn’t apply to this rule.
The refusal to leave rule constitutes trespass rule applies to objects as well that were originally authorized on land but later ordered to be removed.
Trespass to Chattels
Intentional
If the interference is intentional, the action will be either trespass to chattels or conversion, depending on the severity of the interference. If the interference is so great that it is fair to require the defendant to pay the full value of the chattel (regardless of whether it could be returned in some for to the plaintiff), the action will he conversion; if the interference is less substantial, the action will be for trespass to chattels.
Trespass to Chattels Definition
Any intentional interference with a person’s use or possession of the chattel is a trespass to the chattel. For reference, a chattel is a personal possession.
Intent
As in the case of trespass to land, it is unnecessary that the defendant had intended to cause harm to the plaintiff’s interest in his property. They must merely intend to do an act which turns out to constitute an interference.
Example: D picks up P’s book in the library, thinking it was her own. She underlines a few pages, then discovers the error, and returns the book, Although D’s mistake was completely innocent, she nonetheless intended the physical act of picking up the book and marking it, and she is liable for trespass to chattels.
Must be Actual Damages
Most courts hold that a trespass to chattels occurs only where the plaintiff can prove some actual harm. In other words, in contrast to the rule for trespass to land, the plaintiff is not entitled to nominal damages where he merely shows that the defendant has touched his property.
Loss of Possession
If the trespass to chattels is such that the plaintiff loses possession of the chattel for any time, no matter how brief, this loss of possession will be deemed to be an “actual harm” and recovery will be allowed. Some value will be placed on the temporary loss of possession.
Contact not causing dispossession
On the other hand: where D merely makes contact with the chattel, without taking the chattel out of P’s possession, D is liable only where some harm to chattel or some interference with P’s use and enjoyment of the chattel, occurs.
As we have said, mistakenly believing an object is yours is no defense, even if the mistake is a reasonable one.
Electronic trespass on computer
If the defendant’s intrusion causes harm to the plaintiff’s computer data system or data – or even poses a real risk of such harm – then that will satisfy the requirements for a trespass-to-chattels claim.
Return of chattel
If trespasser is still in possession of the chattel at the time suit is brought, they have the right to tender the goods to the plaintiff, in mitigation of the latter damages.
Conversion of Chattels–Trover
Conversion of Chattels Definition
occurs when the defendant so substantially interferes with the plaintiff’s possession or ownership of the property that it is fair to require the defendant to pay the property’s full value.
Intent
Exclusively an intentional tort, but the requisite intent need not include a desire to harm the plaintiff’s possessory interest. An innocent mistake by the defendant as to the ownership of goods, for instance, will not negate the existence of the required intent. However innocent intentions may be a factor in determining whether the interference with the plaintiff’s rights is so sever as to constitute conversion; this factor is discussed below.]
Negligence Excuse
But if the defendant’s exercise of dominion or control of the plaintiff’s property is merely negligent, not intentional, there will be no conversion. Instead, the plaintiff must sure for the tort of negligence.
Documents Closely Associated With Right
Where the “property” in question is a document that embodies or is highly important to some underlying ownership right of the plaintiff, courts will generally hold that the document can be the subject of conversion or trespass to chattels. Also, computer files are usually found to be the sort of property that can be converted or trespassed upon.
Factors Determining Conversion
The second restatement lists these factors, among others:
- Dominion: The extent and duration of the defendant’s exercise of “dominion” or “control.”
- Good faith: The defendant’s good faith;
- Harm: The harm done to the property; and
- Inconvenience: The inconvenience and expense caused to the plaintiff.
Example
D, leaving a restaurant, mistakenly picks up P’s hat from the coat rack, thinking it is his own. When he gets to the sidewalk, D puts on the hat, realizes that it is not his own, and returns it to the rack. This is not a conversion, because no harm is done, the interference with P’s rights of control is limited, and D acted in good faith. But if he borrowed the hat for 3 months before discovering his mistake and then returning the hat, this counts as conversion. If the hat was destroyed, even by accident, that counts as conversion. If he stole the hat purposely, even if he quickly changed his mind and returned it to a police officer, this counts as conversion.
A claim for conversion thus lies against theft or fraud.
Bona fide purchaser
Bona fide means “good faith”, and in this case bona fide purchasers or stolen goods is a converter, even if there is no way they could have known that they were stolen. However, some courts hold that Bona fide purchasers are not liable for conversion if after they become aware of the stolen good they return it in good faith.
Bailment
One who takes goods as a bailee (a person or party to whom goods are delivered for a purpose, such as custody or repair, without transfer of ownership), for the purpose of storing or transporting them, is not a converter if the goods turn out to have been stolen or lost (so long as the bailee has no knowledge of the goods status).
Removal of goods
One who removes goods from one place to another may be liable for conversion, if the removal constitutes a sufficiently serious interference with the plaintiff’s right to possession and control.
Dominion
If the defendant refuses to return the plaintiff’s goods, it is irrelevant that the defendant is not using them for his own purpose, or that no permanent damage to them occurs, provided that the interference with the plaintiff’s rights is otherwise sufficiently grave. The essence of the conversion is that the defendant exercised dominion (control) over the goods.
Demand
Generally, there is no liability for conversion until the plaintiff has demanded return of the chattel and has been refused. It is only intentional refusal to return goods that gives rise to an action for conversion. If the defendant is unable to return the goods because he lost them, the plaintiff’s only remedy will be an action for negligence.
Qualified refusal
Once the plaintiff demands return of his goods, the defendant is entitled to take a reasonable time necessary to check the validity of the plaintiff’s claim, provided that he gives the reasons for not yielding immediate possession.
Partial alteration
If only part of a chattel is destroyed or altered, there may not be a conversion of the whole, depending on how hard the partial alteration is to repair.
Generally
if the plaintiff has consented to an intentional interference with his person or property, the defendant will not be liable for that interference. In fact, most courts take the position that as to all intentional torts except trespass to land, lack of consent is part of the plaintiff’s prima facie case, and they must plead and prove it.
Implied Consent
If it reasonably seemed to the defendant that the plaintiff consented, consent will be held to exist regardless of the plaintiff’s subjective state of mind. That is, it is the objective manifestations by the plaintiff that are taken into account.
Manifestation
may be not only words spoken by plaintiff, but any other conduct or even lack of conduct in which a reasonable person in the position of the defendant would believe that the plaintiff had consented to the invasion of their interest.
Real but Unmanifested Consent
On the other hand, if the plaintiff subjectively consents, and there is some way to prove this, the consent will be effective even though it was never manifested by the defendant.
Example
I tell family that I would be glad to let B use my tennis court. I made not such statement to B, and do nothing else to manifest consent, and no one in my family tells B this. B then uses my tennis courts. I have actually consented to B’s entry and there is no trespass.
Custom
If you can show that it was customary for one in the plaintiff’s position to consent to a certain act by the defendant, there will be consent even if the plaintiff made no objective manifestation of consent in this particular case.
Inaction
If a reasonable person could say there was consent due to the plaintiff’s inaction, there was consent.
Lack of Capacity to Consent
If P is a child, intoxicated, unconscious, etc., no consent can be given regardless of what P does or says, at least where the defendant knows or should know given the situation.
Consent by Relative
A close relative may consent on your behalf if you are incapacitated.
Minors
aren’t capable of consent, a parent must consent or an emergency must exist. However, if the patient is a minor who is approaching the age of majority, they will be able to consent on their own regardless of whether parents also consent.
Scope of Consent
Even if they consented to one thing, you can’t go beyond the scope of that consent, even if related, if you typically would need consent for the action beyond the reasonable scope.
Consent to Act, Not Consequences
If they consented to the action, and the consequences went beyond what they were expecting, that is not on the defendant.
Emergency
An emergency can justify extending consent beyond that consented to (think lifesaving surgery).
Athlete’s Consent
Consent to a violent sport may still not constitute consent to all injuries arising from the sport if the injury spawned from an unnecessary/Abnormal/unsportsmanlike action from participants in the sport.
This becomes Reckless or Intentionally-Harmful conduct Beyond the Usual Bounds if it not only violates the rules of the sport, but constitutes a flagrant violation by means of actions that unrelated to the normal method of playing the game. There are cases where this occurs and courts still rule for defendants because “the idea of being sued for you misconduct on the field lowers the incentive to give it your all.”
Consent due to mistake
If you consented due to being mistaken about some material aspect of the transaction, as a general rule such mistake is not by itself to make the consent ineffective (unless it was induced by the defendant)
Collateral Matter
Even where the defendant induces the plaintiff’s mistaken consent, that consent will be ineffective only if the mistake related to some essential aspect of the transaction.
Consent to Criminal Acts
If the defendant’s act against the plaintiff is a criminal act, the courts are split as to whether the plaintiff’s consent to that act is effective. Majority rule says consent is ineffective if the act consented to is a crime. For instance, where the plaintiff and defendant fight each other, these courts hold that each may recover from the other. However, 8 states say consent to criminal act is always effective.
Certain Class Protected
Consent is ineffective if the consent was given by a person of a protective class who aren’t allowed to consent to certain acts, regardless of what statements they make.
Two issues
In determining whether the privilege exist, there are two questions:
- Does the privilege exist? Was the defendant privileged to use some kind of force to defend themselves?; and
- What degree of force? If so, were they privileged to use the degree of force they did?
What May be Defended Against
A person is entitled to use reasonable force to prevent any threatened harmful or offensive bodily contact, and any threatened confinement or imprisonment. This is tru whether the threat is intentionally imposed or merely negligent.
Burden of Proof
The defendant (person raising the defense) bears the burden of proving that the privilege of self-defense existed.
Apparent Necessity
Self-defense may be used not only where there is a real threat of harm, but also where the defendant reasonably believes there is one.
Reasonableness
But the defendant’s belief that a threat exist must, as noted, be reasonable. Thus if one is abnormally timid or paranoid, the use of force would no be privileged, regardless of how real their fear was.
Self-Protection Only
Defendant may use only the force reasonably required to protect themselves from harm.
Therefore, they may not use any degree of force in retaliation for a tort already committed on them, or as punishment.
Disarmed or Helpless Adversary
Similarly, once the defendant’s adversary is disarmed or helpless, the defendant may not use force against them.
Verbal Provocation
Defendant may not use self-defense in response to verbal provocation, such as taunts or insults – UNLESS the case where words used constitute assault and the defendant has reason to believe they are in imminent danger.
Harm Must be Imminent
not future, unless it is reasonably appears to defendant that there will not be a later chance to prevent the danger.
Degree of Force
Only the degree of force necessary to prevent that harm may be used. If the defendant uses more force than necessary, they will be liable for damage caused by the excess.
Minor Assaults
Even if a threatened harmful or offensive contact or imprisonment does not seem likely to lead to more than a minor injury, the person threatened may use such force as necessary to avoid it.
Deadly Force
The general rule is that this can only be used if defendant is in danger of death or serious bodily harm, AND THERE WAS NO OTHER WAY TO REASONABLY STOP THE PLAINTIFF.
May Have to Submit
The “deadly force rule” means that even if the defendant cannot protect themselves against a non-deadly attack without the use of deadly force, they still may not use deadly force.
Deadly force
will depend not only upon the weapon, but upon the way it is used. Thus, if a MMA fighter is capable of breaking an adversary’s neck, it will be deadly force.
Rape
The threat of rape or sodomy is deemed sufficiently serious that the victim may use deadly force if there is no other way to prevent the attack.
Retreat
This one is complicated, some courts say if the harm can be prevented through retreat, then one must retreat. Other states, however, have stand your ground rules, which say the defendant may stand their ground and use force/ even deadly force (if the situation calls for it) against an attacker even if retreat is possible.
The restatement says a person being attacked may always refuse to retreat if they are willing to use only non-deadly force to repel the attack. The restatement also says in the case the persona attacked wants to use deadly force to defend themselves, they may not do so if they are attacked somewhere other than there dwelling if they could safely retreat.
Homeowners
A homeowner who is robbed at gunpoint may not shoot the robber unless there is another, less deadly, way of disposing of the threat.
Prevention of Crime
But if it does appear to the homeowner that there is no way to prevent a burglary or robbery except by, say, shooting the perpetrator, they may do so even if they themselves are not directly attacked. This is because deadly force may be used to prevent most felonies.
Injury to a Third Person
If a person defends themselves and by accidently hurts an innocent third person, so long as they didn’t act negligently, self defense is still valid.
General Rule
Today, even if a bystander sees a complete stranger being attacked, all courts would allow the bystander to use reasonable force to intervene.
Degree of force
The intervenor is subject to the same rules of reasonable force as the person being attacked would be.
Reasonable Mistake
Courts are split, but the modern view is that if a person makes a reasonable mistake about the need for force (including the degree of danger), the defense-of-others is not forfeited (unless an unreasonable mistake).
General Rule
There is a privilege to defend property (both land and chattels) on essentially the same basis as the right to defend oneself.
Verbal Demand Required First
The owner must first make a verbal demand that the intruder stop, unless it reasonably appears that violence or harm will occur immediately, or that the request to stop will be useless.
Mistake
A reasonable mistake of property owner will have different consequences, depending on whether the mistake relates to the existence of the danger or the intruder’s own lack of privilege.
Mistake as to Danger
If the property owner is mistaken, but reasonably believes that force is necessary to protect their property, use of force will be privileged.
Mistake as to Intruder’s Privilege
But if a property owner reasonably believes that the intruder has no right to be there, and it turns out that the intruder’s presence was in fact privileged for some reason, the property owner’s use of force will NOT be privileged.
Deadly Force
Even when intrusion can only be prevented this way, property owner can’t use deadly force unless they believe, unless kept out, the intruders will cause death or seriously bodily injury. HOWEVER, PROPERTY OWNER MAY BE PRIVILEGED TO USE DEADLY FORCE TO PREVENT FELONIES OF DEATH, SERIOUS BODILY INJURY, OR THE BREAKING AND ENTERING OF A DWELLING PLACE (so long as one believes nothing short of that force will prevent harm).
The lethal force against burglars when given no other option only applies if it occurs in the place of your dwelling. This is also not applicable to trespassers.
One may not eject an intruder if this is likely to cause them serious bodily harm or injury (think of Ploof v. Putnam, where plaintiff’s boat was unmoored during a storm which injured the plaintiff and their family).
Mechanical Devices
These devices to protect property are only privileged if they would be privileged to use a similar degree of force if homeowner was present and acting themselves. Therefore, serious injury on an intruder when homeowner isn’t home is not valid. Deadly force from a mechanical device can only be used to prevent serious injury to inhabitants, or, (must be actual dwelling) felonies of breaking and entering in a dwelling.
WARNING (PLEASE READ)
In the case of non-deadly mechanical devices, most courts have held that the owner must post some kind of warning of the existence of such devices, unless its use in the area is so common that it is reasonable to assume an intruder is aware that it may be present.
E. Recapture of Chattels, Re-entry Into Land, Necessity, Arrest and Other Authority of Law, Discipline, and Justification.
Recapture of Chattels – Reasonable Mistake
If person wrongly assumes person has their chattel, it is the chattel owner, not the third person, who must bear the consequence of there mistake, and no pivelege will exist.
However, in the case of a suspected shoplifter, the merchant may be protected against a reasonable but mistaken suspicion if the property owner is in “fresh pursuit” to recover their property.
Recapture of Chattels – Reasonable Force
Force must reasonable under the circumstances, and deadly force CAN NEVER be used.
Wrongful Taking
recapture privilege only exists if the property was taken wrongfully from the owner. If the owner parts willingly with possession, and then an event occurs which gives them the right to repossess the goods, they will not be able to use force to regain it.
IMPORTANT
A shopkeeper can retain a reasonably suspectable potential shoplifter from leaving the store if detention is limited to 10 to 15 minutes, and the shop keeper can’t falsely state that the shoplifter is under arrest (if this occurs the privilege terminates and it becomes false imprisonment). Also, can’t coerce payment for goods “stolen.” Also can’t attempt to obtain a confession once it is determined that crime was committed. Also detention must be on store premises.
Recapture of Chattels – Entry to Land
Technically, you can attempt to recover your item in a reasonable time and manner by going to the thief’s home, but you may only use reasonable force to reobtain the chattel and you are liable for any property or substantive harm you cause. If you negligently caused the item to end up in other’s home (where the other didn’t steal the chattel), you can’t barge into their home to recover. In that case you must bring Replevin (recover suit).
Re-entry on Land
Property Owner who has been deprived of their land may sometimes recover it by force, but not in the case of a tenant who overstayed their lease. In this case there are appropriate authority/means to use and force is never allowed.
Necessity
This is the public good law. Essentially, if you need to burn someone’s house/property down because otherwise the whole town/neighborhood will burn down, you are allowed to do so. Usually this is done by public officials, but if you were acting on behalf of the community you can raise the public necessity defense too. Unfortunately for the victim, they typically can’t recover from person who destroyed their property in public necessity (some states have added compensation measures though – similar to imminent domain cases where government compensates you).
Private Necessity
This goes back to our boat cases that needed to be docked for safety. If private necessity of another’s personal property is needed to keep a group/person safe, than they may raise this defense. However, this may only happen if there is no less-damaging way of preventing harm and will be weighed against evidence of severity and likelihood of the danger the defendant seeks to avoid. In addition, if plaintiff has suffered damages as a result of defendant’s use of their property, the defendant must pay for the damages they caused the plaintiff, which makes private necessity a more limited privilege than public necessity.
Arrest
If you have the authority to make an arrest and follow all the proper procedure, you have a defense against false imprisonment. However, if you have a warrant, let’s say, and you misidentify the individual, therefore making the wrong arrest, you are liable. As for a citizen’s arrest, this is only valid if a felony has in fact been committed. However, the citizen. Arresters may only use reasonable force for the given situation.
Discipline
A person who by virtue of their job or status is charged with maintaining discipline may sometimes be privileged to use force and restraint to ensure that discipline.
Justification
Catch-all defense that states that even if defendant conduct does not fit within one of the conventional defenses discussed above, they may be entitled to the general defense of “justification,” used where there are good reasons for exculpating the defendant for what would otherwise be an intentional tort (obviously judge/jury would be the decider regarding this defenses validity).
Negligence Generally and the Element of Duty
Okay let’s first start out by saying the elements:
Duty – What was your duty to plaintiff?
Breach – Did you breach that duty to plaintiff?
Cause – Were you the Proximate Cause or Cause in Fact of the plaintiff’s injury?
Injury – What was the plaintiff’s injury and what damages are you liable for?
Stewart v. Motts
In a negligence case, the defendant is held to the standard of care that a reasonable person would exercise under the circumstances, even if the defendant is engaged in the use of a dangerous instrumentality (thus eliminating the need for a specific heightened care standard).
Defenses to Prima Facie Negligence
knock out an element or raise an affirmative defense.
Must point to alternative conduct that some reasonable person would have taken
Frameworks of Duty
- Foreseeability of Harm
- Special Relationship
- Public Policy (statutes)
Reasonable Care Standard
The only standard of care is that of reasonable care. The care required varies with the danger involved and is proportionate to it.
Posas v. Horton
In Nevada, a defendant whose vehicle strikes the back of plaintiff's vehicle is not guilty of negligence if she was confronted with a sudden emergency which she did not create and accordingly acted like a reasonably prudent person would have under like circumstances. However, the sudden-emergency doctrine does not apply if the defendant was placed in a dangerous position due to the defendant’s own failure to exercise reasonable care.
Sudden Emergency Doctrine
A sudden emergency prevents one from liability if it is evident one was placed into a position of peril through no negligence of her own, and in the emergency acted as a reasonably prudent person would in a similar situation.
Shepherd v. Gardner Wholesale Inc.
The conduct of an actor with physical disability is negligent only if it does not conform to that of a reasonably careful person with the same disability.
Rule
A person with physical disability such as defective vision is not required to exercise a higher degree of care to avoid injury than is required of a person under no disability.
Gipson v. Kasey
A duty of care is created by a criminal statute if the statute is designed to protect the class of persons in which the plaintiff is included, against the risk of the type of harm which has in fact occurred as a result of its violation.
An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.
Creasy v. Rusk
(1) Adults with mental disabilities are generally held to the same standard of care as that of a reasonable person under the circumstances, without regard to their capacity to control or understand the consequences of their actions. (2) Institutionalized Alzheimer's patients with no capacity to control their conduct do not owe a duty to their professional caregivers to refrain from violent behavior.
Hill v. Sparks
Key Point: Those with specialized knowledge must exercise care under that knowledge. The standard of a reasonable person requires only a minimum of attention, perception, memory, knowledge, intelligence, and judgement in order to recognize the existence of the risk. If the actor has in fact more than the minimum of these qualities, they are required to exercise the superior qualities that they have in a manner reasonable under the circumstances.
Stevens v. Veenstra
A minor who engages in a dangerous adult activity is charged with the same standard of care as an adult.
Negligence Per Se
Using Safety-Related Rules to Specify Particular Tort Duties
Martin v. Hergzog
An omission, or failure to perform an act required by statute, constitutes negligence per se. In this case, the guy was negligent per se because he was required to have his headlights and didn’t.
Replacing common law duty of care with a duty of care from a statute of regulation. Automatic breach if satisfied = breach per se
So if Negligence Per Se found, then both Duty and Breach Elements are satisfied. The next step would be to find if the defendant’s negligent per se actions were the cause of the plaintiff’s injuries.
Smith v. Wells
Your negligent per se if you break speed limit / drive at a speed that prevents you from fully braking before striking a car or pedestrian (because by definition all states have a statute that say it is your duty to follow speed limit and braking laws).
Important Note
Negligence Per Se is not applicable to all statutes. First the doctrine only applies to statutes that declare conduct unlawful but are silent as to civil liability statutes which do not expressly provide for civil liability or which “cannot be readily interpreted as impliedly creating a private right of action.” Where a statute itself provides for civil liability, creating a private right of action, the court must simply apply it.
Example
Statute that provides that owner of a dog is liable to pay damages for any harm caused by a dog to a property or person.
Courts usually apply the negligence per se rule to violations of city ordinances and even to violations of admin regulations as well as to state and federal statutes.
O’Guin v. Bingham County
MOST IMPORTANT CASE OF THIS SECTION. Negligence Per Se Occurs when:
- A statute or regulation clearly defines the required standard of conduct = did defendant violate their duty to follow law?
- The statute or regulation was intended to prevent the harm that occurred = was the harm suffered by plaintiff within the law’s scope for injury it tries to prevent?
- The plaintiff is a member of the class the statute or regulation was meant to protect = Is the plaintiff the type of person or group which the law can apply to?
- The defendant’s violation was the proximate cause of the injury = was the defendant’s negligence per se the reason the plaintiff got injured?
Basically, this lays out what is required to apply negligence per se, and if all elements are meant then the case has basically been solved. You basically have duty, breach, cause, injury all within these 4 elements.
Goldstein, Garber & Salama, LLC v. J.B.
Negligence per se applies only if an injured party is within the class of persons a statute protects and the injury incurred is the type of injury the statute guards against.
Getchell v. Lodge – Moose Case!
An actor’s statutory violation, which would normally be negligence per se, is generally excused if it is the result of the actor being confronted with an emergency (sudden emergency doctrine) that is not caused by the actor’s own conduct.
Something to Note
If the court determines that negligence per se does not apply, the standard of care “defaults” back to the reasonable person standard.
Mussivand v. David
This Case Does Not Fall Under Negligence Per Se but Rather Falls Back to Reasonable Person Standard. Accordingly, a person who knows or has reason to know that he or she has a sexually transmitted disease (STD) must use reasonable care to prevent the transmission thereof. The applicable standard of care consists of abstaining from sexual relations or, in the very least, informing potential partners about the STD. Whether a duty of care runs to a third party is a legal question determined by public-policy considerations: history, concepts of morality and justice, convenience, and social judgment as to who should bear a loss. Here, the court concludes that a person who knows or has reason to know that he or she has an STD has a duty toward his or her lover’s foreseeable sexual partner (until the other person or partner becomes aware of the STD, in which case then duty shifts if sex has not occurred yet). This conclusion is supported by the public policy of promoting health and by a state statute that prohibits one with a dangerous, contagious disease from knowingly failing to prevent its exposure to others.
Key Point
Need specific statute to constitute negligence per se.
Exceptions to Negligence Per Se
- violation is reasonable in light of the actor’s childhood, physical disability, or physical incapacitation;
- actor exercises reasonable care in attempting to comply with the statute;
- actor neither knows nor should know of the factual circumstances that render the statute applicable;
- actor’s violation of the statute is due to the confusing way in which the requirements of the statute are presented to the public; or
- the actor’s compliance with the statute would involve a greater risk of physical harm to the actor or to others than noncompliance.
Breach of Duty
So, we covered what the duty was – most often, the duty of reasonable care under the circumstances. Now we move onto breach of that duty.
Foreseeability of risk
- Foreseeable: harm not only foreseeable, but also too likely to occur to justify risking it without added precautions.
- Unforeseeable: harm was actually foreseeable on facts of case, but a reasonable person would not have taken action to prevent it b/c risk of harm was low and harm so improbable.
Learned Hand Equation
EXTREMELY IMPORTANT
Burden Cost (B) < Probability (P) x Injury Cost (L)
- If the burden cost of what would prevent/reduce injury is less than the probability of injury cost, you have breached your duty if you failed to install burden.
- However, if your burden to prevent/reduce injury cost more than the probability of injury cost, you are off the hook (unforeseeable).
Pipher v. Parsell
This is the case of the friend who grabbed the steering wheel. A driver owes a duty of care to passengers because it is foreseeable that passengers may be injured if the driver involves the car in a collision. Therefore, defendant should have found a way to stop friend from grabbing steering wheel a second time, as that was the duty they owed to the plaintiff. Negligent only if conduct created a foreseeable risk and actor recognized, or a reasonable person would have recognized.
Limones v. School District
This is the soccer game defibrillator case. Main point is that whether a duty was breached is a factual question for the jury. Meanwhile, whether the defendant owed a duty of care is a question of law for the judge to answer. Duty is always ordinary care, breach is what is more specific.
Indiana Consolidated Insurance Co. v. Mathew
Case with the lawn mower and garage fire. The sudden emergency doctrine doesn’t require someone to risk human life to protect property. In a negligence action, a person is held to the ‘reasonable person in like circumstances’ standard, which values human life over property and applies even in the face of a sudden emergency not of the person’s own making.
Stinnet v. Buchele
An employer is not negligent for failing to provide an employee with a safe place to work when the employee’s knowledge of the risks involved with the specified activity is equal to or greater than that of the employer.
Bernier v. Boston Edison Co.
To avoid negligence, a manufacturer must consider the reasonably foreseeable risks of injury created by a product’s use in its normal environment and design the product to prevent an unreasonable risk of such injuries. In this case, alternative designs were available. Therefore, B < PL.
United States v. Carroll Towing Co.
This is our Learned Hand case. Liability for negligence due to failure to take safety precautions exists if the burden of taking such precautions is less than the probability of injury multiplied by the gravity of any resulting injury, symbolized by B < PL = negligence liability.
Joint Liability = Contribution so as to make its payment proportional to fault. Basically, I sue A. A is responsible for 80% of my damages. A then pays me 100% of my damages, but collects the extra 20% from B, who caused the other 20%.
Several / Proportionate Liability = Comparative Fault rule. You collect from each party only what they are responsible for. This is the more common standard nowadays.
Santiago v. First Student, Inc.
A plaintiff in a negligence case has the burden of presenting evidence sufficient to demonstrate that the defendant breached their duty of care. No evidence of conduct = no breach.
Upchurch v. Rotenberry
Jury evaluates facts to determine if there is a breach. If facts are supported or opposed by experts on both sides, their credibility is for the jury to decide.
Forsyth v. Joseph
Circumstantial evidence is evidence of one fact that permits inference of another fact. Although circumstantial evidence must be weighed case by case, in general it is entitled to as much weight as direct evidence.
Renner. v. Retzer Resources, Inc. (McDonalds Slip Case)
To recover in a trip-and-fall case, a plaintiff must prove that the defendant either directly created a dangerous condition or had actual or constructive notice of a dangerous condition created by another.
Breach and Slip-and-Fall
- Theories of Libaility in a Slip-and-Fall Case:
- Defendant created and failed to take reasonable actions to abate the hazard
- Defendant did not directly create the condition but discovered or should have discovered a condition created by others (constructive notice) and failed to take reasonable steps to prevent injury from that condition.
- Defendant’s mode or method of business operations made it foreseeable that others would create a dangerous condition, and the defendant failed to take reasonable measures to discover and remove it.
Wal-Mart v. Wright
A Store’s / Actor’s own guidelines may be relevant to foreseeability of risk, feasibility of precautions, or the plaintiff’s reliance on a particular type of care. However, even when the evidence is admissible it does not set a higher standard of care for the actor. In a negligence action, the appropriate standard to be applied to a defendant’s conduct is whether he objectively exhibited ordinary care that a reasonably prudent person would have exercised under like circumstances, rather than a subjective standard held by the particular defendant.
Duncan v. Corbetta
Proof of a general custom and usage is admissible because it tends to establish a standard by which ordinary care may be judged where an ordinance prescribes certain minimum safety requirements which the custom exceeds. The Restatement (third) says that a person’s departure from the custom of the community, or of others in like circumstances, in a way that increases the risk is evidence of that person's negligence but does not require a finding of negligence.
Key Point
Custom can be used to establish breach, but up to jury to determine if this shows negligence.
The T.J. Hooper
This is another great example of Learned Hand. In this case, The T.J. Hooper” and the “Montrose,” was contracted to tow two barges and their cargo of coal. The operator was sued when these two barges and their cargo were lost in a severe storm off the coast of New Jersey. Neither barge was equipped with a reliable radio that would have provided them storm warnings in both the morning and evening. Four other tugboats sailing in a similar area had radios, received storm warnings, and safely anchored to the Delaware harbor.Key Point: Entire industry was behind on safety. B < PL –> Custom ≠ Ordinary Care.
- Custom may be evidence of negligence, but does not preclude negligence.
Breach and Compliance with Statutes
If the defendant knew or should have known of some risk that would be prevented by reasonable measures not required by the regulation, they were negligent if they did not take such measures.
Miller v. Warren
Compliance with statute is some evidence of reasonable care, but it is not conclusive. The law is just the floor for care.
RES IPSA LOQUITOR
“The thing speaks for itself”
- Res ipsa loquitor relieves plaintiff of need for affirmative evidence.
- Basically a way for the plaintiff to show evidence of negligence when they have no proof of the act, allowing them to survive a motion for summary judgement.
RES IPSA LOQUITOR – Must show three foundational facts:
- Event is kind which does not ordinarily occur in the absence of negligence (breach). Expert testimony comes in here.
- Exclusive control of defendant.
- Event not caused or contributed to by act of victim.
Preliminary factual evidence upon which it rests must be proven by a preponderance of the evidence.
Byrne v. Boadie (flour barrel case)
If injury of a type that does not typically occur without negligence occurring, negligence is presumed from the mere fact of the occurrence. Defendant was responsible to control the contents of warehouse, therefore the accident occurring is in itself negligence.
Res Ipsa Loquitor – Control Rule
If there is exclusive control and management by defendant of the instrumentality which causes injury, and the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used, an inference of the defendant’s negligence is permitted.
Boyer v. Iowa High School Athletic Association (The One with the Bleachers)
Act is not one that usually occurs absent of negligence.
Koch v. Norris Public Power District
The plaintiff may rely on res ipsa as power lines do not normally fall without fault on behalf of the company involved. Res Ipsa is applied in the absence of a substantial, significant, or probable explanation.
Cosgrove v. Commonwealth Edison Co.
In the ordinary course of events, gas explosions and fires do not occur; when one does occur, an inference of fault is justifiable. This inference may be rebutted. However, even if the gas company is blameless, its superior knowledge of the facts at hand and its responsibility to the community create a duty to come forward and make an explanation.
Shutt v. Kaufman’s Inc.
Storekeeper owes duty to customers to protect against known dangers and those he may discover by reasonable care. Key Point: Plaintiff should have used common law breach analysis (B<PL) to prove breach, not Res Ipsa. Res Ipsa doesn’t care about foreseeability.
Rule
Res ipsa loquitor is merely a rule of evidence that permits, but does not compel, an inference of negligence under certain circumstances.
Giles v. City of New Haven (elevator operator case)
The extent of a defendant’s control over an injury-causing instrumentality is merely a factor that may influence a finding that the defendant’s negligence was more likely than not the cause of the plaintiff’s injury. While Giles may have reduced the extent of Otis’s control by exhibiting some control over the elevator chain, a jury could still find that Otis had sufficient control over the chain to support the application of res ipsa loquitur.
Collins v. Superior Air-Ground Ambulance Service, Inc.
Where there are only two defendants who had consecutive control over plaintiff, and either one could have caused plaintiff’s injuries, and both are named in the complaint, the complaint is sufficient for pleading purposes to raise the inference of negligence under the doctrine of res ipsa loquitur.
Actual Harm and Cause-In-Fact
Actual Harm = Must prove harm was in fact caused by defendant
- Factual harm is not established if the plaintiff’s harm would have occurred even if the defendant acted non-negligently.
“But-For” Test
Can plaintiff show that the injury would not have occurred but for the defendant’s breach?
- Compare events that took place to a hypothetical alternative (Counterfactual).
Substantial Factor Test
for two defendants with one injury. Can you show defendant(s) were either or both a substantial factor to the plaintiff’s injuries.
Ziniti v. New England Central Railroad, Inc. (wanting a sign on the right side of road)
Actual causation exists if but for a defendant’s conduct, the plaintiff’s harm would not have occurred. Whether actual causation exists is usually a question of fact for a jury to decide, but it may be decided by a judge as a matter of law if the evidence is such that no reasonable minds could disagree. Negligence liability applies only if a defendant’s conduct is an actual cause of a plaintiff’s harm.
Rule
Liability for negligence depends on a showing that injury suffered by plaintiff was caused by the alleged wrongful act or omission to act by defendant. Merely to show a connection between the negligence and the injury is NOT sufficient to establish liability.
Indivisible Injury
Injury caused by actions of 2 or more defendants in a way that it’s impossible to tell which defendant caused what damage.
Landers v. East Texas Salt Water Disposal Company
Multiple defendants may be held jointly and severally liable for an indivisible injury allegedly caused by their independent tortious acts.
Cause-In-Fact with Multiple Actors
Two independent actors who cause consecutive acts that lead to single, indivisible injury: causal apportionment; concurrent. But-for tests don’t work –> each alone enough to cause injury. Negligent actor pays 100% if other actor is innocent.
Substantial Factor Test
two sufficient causes, each breach on its own was more than a minimal contributor to injury.
Two actors who breached, consecutive acts producing separate or divisible injuries must show all four elements against both defendants:
- Acts not sufficient on their own
- Both are “but for”
- Joint and several liability
- Comparative fault liability
When an actor’s negligent conduct constitutes only a trivial contribution to a causal set that is a factual cause of harm, the harm is not considered within the scope of liability.
- May find negligent behavior caused harm, if both:
- Act increased chances that a particular type of accident would occur
- Mishap of that very sort did happen
Aggravation of preexisting injury
liable for aggravation only – causal apportionment.
Respondeat Superior liability
legal doctrine that holds employers liable for the wrongful acts of their employees when those acts occur within the scope of employment.
Lalsey v. Combined Transport, Inc.
This is glass truck and negligent intoxicated driver hitting guy in a pickup truck. Evidence of one defendant’s diminished capacity is admissible to show the other defendant didn’t cause the injury but can be used to show each defendant’s relative fault. In deciding whether a defendant's act is a factual cause of a plaintiff's harm, the effect of the defendant's conduct, and not whether that conduct fell below the expected standard of care, is the relevant consideration. Assessing factual cause involves determining if each defendant’s act was a substantial factor in the chain of events resulting in the plaintiff’s injury.
Rule
Effect of conduct is what is important in determining factual cause.
Summers v. Tice (Quail Hunting Case)
Under the doctrine of alternative liability, two independent tortfeasors may be held jointly liable if it is impossible to tell which one caused the plaintiff’s injuries, and the burden of proof will shift to the defendants to either absolve themselves of liability or apportion the damages between them.
Mohr v. Grantham
In Washington, a plaintiff asserting a claim for medical negligence may show, in place of the “but for” causation requirement, that the defendant’s action was a substantial factor in causing the plaintiff’s injury. This was the ridiculous case of the mother of two doctors who suffered permanent damage due to the doctors not taking the sons’ advice and for not paying attention to key tests. Lost chance doctrine is a cognizable harm in medical malpractice, even if survival was less than 50% before.
This case highlights the Loss Chance Doctrine
allows claimants to seek compensation for the loss of a chance to obtain a benefit or avoid a loss due to another party's negligence. This doctrine is particularly significant in cases involving medical malpractice, where a patient's chance of survival or recovery may be diminished due to negligent actions by healthcare providers.
Loss Chance Doctrine Damages Calculation = total value of the patient's life x percentage of survival chance lost due to negligence.
Dillon v. Evanston Hospital
Required to show evidence of increased risk of future harm and damages proportioned to the probability that the risks of future harm would materialize.
Scope of Liability (Proximate Cause)
The final element that a plaintiff must prove in a negligence case is that plaintiff’s harm fell within the scope of defendant’s liability. In the case where a reasonable person could disagree, Scope of Liability is an issue of fact for the jury.
Was harm within the bundle of risks that made the act a breach in the first place?
- Liability for negligence is liability for the unreasonable risks that the defendant created.
Rescue Doctrine
Rescuer can recover from the defendant whose negligence prompts the rescue if the rescuer had a reasonable belief that the victim is in peril.
Thompson v. Kaczinski (trampoline case)
Under the Restatement (Third) of Torts, an actor's liability is limited to the harms that are the result of the type of risks that made the actor's conduct tortious. Basically, the foreseeability is a question of proximate cause. Foreseeability of harm is a question of fact, decided by a jury in determining proximate cause.
Abrams v. City of Chicago
Concluded that city could not have reasonably anticipated that a refusal to send an ambulance when labor pains were 10 minutes apart would result in the plaintiff’s driver running a redlight at the same time that a substance-impaired driver was speeding through the intersection on a suspended license. Millions of women in labor make it safely to the hospital each year by private transportation. While all traffic accdients are to some extent remotely foreseeable, this is not the kind of harm that was sufficiently foreseeable. Key Point: Must be sufficiently foreseeable by a reasonable person.
Palsgraf v. Long Island Railroad Co.
A defendant does not owe a duty of care to a plaintiff if the plaintiff is not in the zone of reasonably foreseeable harm resulting from the defendant’s actions. The foreseeable risk of dropping a package is that the contents will break, not that the contents will explode. Therefore, the railroad co. isn’t liable for unforeseeable risks in relation to the nature of the action.
Wagner v. International Railway
Danger invites rescue. The wrongdoer may not have foreseen the coming of a deliverer – but he is accountable as if he had.
Ruiz v. Victor Properties LLC
Proximate cause exists if the harm incurred is of the same general nature as the foreseeable risk created by a party’s conduct. Basically, the landlord should have foreseen that by leaving pieces of concrete lying around an apartment complex with kids, someone could have incurred similar injuries to the fractured skull in the case, even if the way it happened wasn’t foreseeable.
Hammerstein v. Jean Development West
A defendant need not foresee the extent or specific manner of a victim’s injury to proximately cause that injury.
The Thin-Skull Rule
If the defendant was negligent or guilty of intentional harm–then the fact the harm was much worse than anyone would have expected does not limit his liability.
Proximate Cause
The last negligent act contributing to an injury and without which the injury wouldn’t have happened.
Great way to think about this since both Cause-In-Fact and Proximate Cause are required to show causation. Cause-in-fact establishes the direct link between the defendant's actions and the plaintiff's injury, while proximate cause determines whether the defendant's actions were foreseeable consequences of their conduct.
Marcus v. Staubs (minors who were given alcohol, stole a car, then died)
In West Virginia, a defendant whose negligence is a substantial factor in an injury is not relieved from liability by the intervening acts of third persons, if those acts were reasonably foreseeable by the defendant at the time of the negligent conduct.
Superseding and Intervening Causes
A superseding cause breaks the causal chain, therefore, being the direct proximate cause. An intervening act/cause of second tortfeasor relieves first tortfeasor only when the resulting harm is outside the scope of the risk negligently create by the first tortfeasor Use B < PL to decide what risks are in the bundle aka foreseeable.
Collins v. Scenic Homes, Inc.
Guy set fire to an apartment complex. However, the apartment complex had inadequate fire safety features; therefore, the fire was a foreseeable risk since forever and apartment complex is liable even if they didn’t cause the fire. Criminal acts may be foreseeable, and so within the scope of risk created.
Delaney v. Reynolds (police officer’s roommate suicide case)
When an independent event supersedes a defendant’s negligence and causes the plaintiff injury, the defendant’s original negligence is a proximate cause of the plaintiff’s harm if the superseding cause was foreseeable by the defendant. Basically, most of the time suicide / suicide attempt is a superseding cause to injury, however, when such attempt is caused by easy and open access to a gun (when someone knows the other person has extreme mental health issues), the proximate cause is the police officer’s negligence.
Rule
Where the intervening occurrence was foreseeable by a defendant, the causal chain of events remains intact and the original negligence remains a proximate cause of the plaintiff’s injury.
Derdiarian v. Felix Contracting Corp (Cataracts and 400 degree burns case)
An intervening act between the defendant’s negligence and the plaintiff’s injuries will not break the causal connection and cut off liability if the intervening act was reasonably foreseeable. This intervening cause is the very risk created by Felix’s negligence in not placing a barrier at the worksite. It is reasonably foreseeable that a car may veer off the road into a nearby worksite and injure a worker. It is not necessary that the exact manner of the accident be foreseeable. The fact that Dickens may have been negligent or even reckless does not cut off Felix’s liability.
Torres v. JAI Dining Services (Phoenix) Inc. (guy wakes up still drunk and drives case)
Torres act of driving while intoxicated, even after he reached home, although an intervening cause, was nevertheless foreseeable by someone in the club’s position and not extraordinarily in hindsight. Therefore, even after a club-goer arrives home, the club is still liable for overserving him which caused his drunk driving–including if he is still drunk and drives after taking a nap.
Marshall v. Nugent (truck driver negligence case)
A defendant’s negligent conduct may be the proximate cause of injuries occurring to a plaintiff after the actual negligent conduct if the risk of those injuries is a foreseeable consequence of the negligent conduct.
As we have seen, Proximate Cause does not mean the cause right before the injury, rather the main reason the injury occurred–which if you take out of the equation the injury does not occur.
Butterfield v. Forrester
If a plaintiff fails to use ordinary care in avoiding an obstruction caused by a defendant, the plaintiff may not recover damages from the defendant as they were contributorily negligent. NOTE: THIS IS AN OLD CASE THAT ONLY SETS INITIAL RULE. NOW (AS YOU’LL SEE BELOW) WE HAVE COMPARATIVE FAULT.
Comparative Fault
The culpable conduct attributable to the plaintiff, including contributory negligence or assumption of risk, shall not bar recovery, but the amount of damages otherwise recoverable will be diminished based on the proportion of culpability the plaintiff had on their injuries.
As of the early 21st century, only Alabama, North Carolina, Maryland, Virginia, and the District of Colombia have failed to adopt comparative fault rules.
Pure Comparative Fault
The plaintiff’s recovery is reduced in proportion to their own percentage fault of negligence.
Modified Comparative Fault
Under modified comparative fault, a plaintiff who is assigned more than a 50% fault share recover nothing. For some states it’s 50 percent or more and for others it’s over 50% or more.
POHL v. County of Furnas (night sharp turn speeding case)
A plaintiff is barred from recovering negligence damages in a modified comparative fault state, if his own negligence contributes to his injuries and is equal or greater than defendant’s negligence (not the case here). The apportionment of negligence is solely within the discretion of the trial court and will not be disturbed by an appellate court unless there is credible evidence to support it. Here, the apportionment of 40 percent negligence to Pohl was reasonable considering the evidence presented.
Typically, apportionment of fault is a matter for the fact finder (the jury).
RS § 8
Factors for Assigning Shares of Responsibility
- Nature of the person's risk-creating conduct, including any awareness or indifference with respect to the risks created by the conduct and any intent with respect to the harm created by the conduct
- The strength of the causal connection between the person's risk-creating conduct and the harm.
Contributory negligence occurs when the plaintiff breaches a duty of care and his breach concurs and cooperates with the defendant’s negligence to form a proximate cause of the injury.
Comparison of plaintiff and defendant fault is only an issue when both parties are negligent. If the plaintiff is not negligent, or if their negligence is not the factual or proximate cause of the harm, no comparison is necessary.
Bexiga v. Havir Manufacturing Corp. (power punch press case)
Although Bexiga found that the defendant’s duty encompassed the plaintiff’s negligence, it could be said in the alternative that the plaintiff was not negligent in light of his working conditions. The case presented a situation where the interests of justice dictate that contributory negligence be unavailable as a defense to either negligence or strict liability claims. Essentially, public policy override. Accident that occurred to plaintiff was “the very eventuality the safety devices were designed to guard against,” which weren’t included in plaintiffs machine.
Christensen v. Royal School District No. 160
The teacher student case. Basically, it was on the school to protect the student and them “asking” student if anything was happening between her and the teacher doesn’t constitute proper duty to protect. You can’t impose a duty on children to protect themselves from abuse from their teacher because public policy dictates that it falls to the school. Minor’s can’t consent so clearly the student was not contributorily negligent. In this case, the school was also contributory negligent and therefore could be sued for damages.
Last Clear Chance Doctrine
holds that if the defendant discovered or should have discovered the plaintiff’s peril, and could reasonably have avoided it, the plaintiff’s earlier negligence would neither bar nor reduce the plaintiff’s recovery.
Defendants Reckless or Intentional Misconduct
courts also hold that contributory negligence was no defense to willful, wanton, or reckless torts, defined as involving utter indifference to or conscious disregard for the safety of others. Under this rule, the plaintiff charged with contributory negligence was allowed a full recovery against a reckless or wanton defendant.
Plaintiff’s Illegal Activities:
Dugger v. Arredondo (overdose + bad friend case): A plaintiff’s unlawful conduct that contributes to the plaintiff’s injury proportionately reduces, but does not completely bar, the plaintiff’s recovery. In this case, the friend could have potentially saved decedents life had he told the truth to paramedics (but he didn’t due to fear of getting in trouble). Therefore, he was contributory negligent to the death of the decedent, even if the decedent died from unlawful conduct.
Stelluti v. Casapenn Enterprises, LLC
In New Jersey, a valid health club contract of adhesion with a waiver and release of liability for injuries will be enforced so long as the club’s actions do not rise to the heightened standard of recklessness or intent to harm. For example, knowing equipment was broken but not doing anything about it.
Tunkl v. Regents of University of California
When a waiver of liability is signed in a necessary situation for the signee, he may have faced a compulsory assumption of risk that would render the waiver invalid on public policy grounds.
Tunkl Factors in which exculpatory provisions will be held invalid:
- Business type suitable for public regulation
- Service of great importance to public
- Practical necessity
- Willing to perform this service
- Bargaining strength against member of public
- Standardized adhesion contract with no way to purchase protection against negligence
- Under control of seller, subject to risk of carelessness
Implied Assumption of risk:
- Primary: means “no duty” or “no breach.” Usually sports teams or occupational because more inherent–goes to prima facie.
- Secondary: affirmative defense: Knew of risk; appreciated quality of risk; willfully encountered it free and voluntary.
Moore v. Hartley Motors
In Alaska, a signed waiver and release will not preclude liability for negligence if the danger was unrelated to the inherent risks of the activity and could be eliminated or mitigated through the exercise of reasonable care.
Primary Implied Assumption of Risk – Baseball rule, sports playing, work duties, etc.
Rule
Assumption of risk is not applicable in inherently dangerous injuries from sport activities.Comparative negligence can resolve questions of an inherently dangerous activities and the risks that come with it, making the assumption of risk defense useless.
Rountree v. Boise Baseball, LLC
A court can adopt the Baseball Rule, which limits the duty of stadium owners to provide safety netting for spectators, only if it has sufficient evidence to determine the appropriate scope and extent of the rule; In this case it didn’t. Rarity does not support a bright-line rule limiting the duty of stadium owners as a matter of law. Moreover, absent additional evidence on the frequency of such injuries and how safety netting is used at other stadiums, the court is unable to appropriately define the scope of a rule.
Baseball Rule
Limits the duty of stadium operators in the event of foul balls, as its inherent risk you assume when coming to watch a baseball game.
Coomer v. Kansas City Royal Baseball Corps (hotdog injury case)
If an injury results from a risk attendant to, but not inherent in, a particular activity, the defendant can be liable for causing the injury.
Secondary Implied Assumption of Risk:
Simmons v. Porter (mechanic leaky fuel tank case): If a jurisdiction adopts a comparative-fault approach to negligence liability, then assumption of risk is no longer an absolute defense to liability, but instead a factor for determining proportional fault.
Steps to Figure Out Duty
- Figure out relationship between parties
- Find out which foreseeability test applies
Entrants onto Property
Invitee
on premises for benefit of owner or held open to general public
Trespasser
no legal right to be there, enters without consent
Licensee
on land with permission, but with limited license to be there
Exceptions to the No-Duty-To-Act Rule
- If person knows or has reason to know that his conduct, whether tortious or innocent, has caused harm to another person, there is a duty to assist to prevent further harm
- If person created a continuing risk of harm, even innocently, a duty arises to employ reasonable care to prevent or minimize that risk from coming to fruition
- If a statute or ordinance requires a person to act affirmatively for the protection of another.
Rule
Owe duty of ordinary care to invitee, but once invitee goes outside area of invitation he becomes a licensee or trespasser.
- A landowner owes no duty to a licensee or trespasser except to refrain from willful, wanton, or reckless conduct which is likely to injure him.
- No duty to anticipate or prevent presence of licensees or trespassers.
- Once you become aware or should have been aware of trespasser’s dangerous situation, duty to act in ordinary care.
Doser v. Interstate Power Co.
Buses or Carriers of Passengers owe very high duty of care to their passengers, just short of ensuring their safety. The high degree of care must be exercised in foreseeing as well as in guarding against danger. PS. Passengers are generally treated as invitees.
ALA. Code § 32–1–2
Owner, operator, or person responsible for operation of motor vehicle shall not be liable for loss or damage arising from injuries to or death of a guest while being transported without payment, unless such injuries or death are caused by willful or wanton misconduct by the operator.
Catholic Diocese of El Paso v. Porter
It is possible for a person on another’s land to be an invitee as to certain parts of the premises and a licensee as to other parts. For example, a person might be an invitee when on parts of the premises open to the public for the landowner’s economic benefit, but then a licensee when on parts not open to the public. As volunteers on the church property to perform work benefiting 4-H, not the church, the volunteers were licensees, not invitees. It is immaterial that the festival was open to the public and that the volunteers may have economically benefited the church while frequenting other parts of the festival. As to those other parts, they may have been invitees, but while working in the 4-H tent, they were licensees.
Lesser duty owed to trespassers and licensees
Under the traditional view, landowners owe a lesser duty to licensees and trespassers, namely only the duty to avoid intentional, wanton, or willful injury.
Willful Wanton Harm
While a plaintiff alleging negligence must prove merely that some harm is possible, a plaintiff alleging willful or wanton misconduct must prove a substantial probability of serious physical harm.
Bennet v. Stanley
A possessor of land is liable for harm to a child trespasser caused by an artificial condition if the possessor knows or has reason to know that children are likely to trespass near the condition, the possessor knows or has reason to know that the condition causes an unreasonable risk of serious injury to child trespassers, the children because of their youth do not discover the condition or recognize the risk involved, the utility of the condition to the possessor and the cost of eliminating the danger are slight compared to the risk to child trespassers, and the possessor fails to exercise reasonable care in eliminating the danger or in protecting the child trespassers.
Attractive Nuisance Doctrine Elements:
- The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass; and
- The condition is one of which the possessor knows or has reason to know will involve an unreasonable risk of death or serious bodily harm to such children; and
- The children do not discover or realize the risk involved in intermeddling or coming within the dangerous area; and
- The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to the children involved; and
- The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Rule
Landowners have a duty to invitees to discover unreasonably dangerous conditions on land and correct or warn of the danger.
Exception: Open and Obvious Doctrine: cannot be held liable to invitees who are injured by open and obvious dangers.
Rowland v. Christian (broken sink cut case)
The proper test to be applied for determining the liability of a landowner is whether in the management of his property he has acted as a reasonable man given the probability of injury to others, and, although the plaintiff’s status as a trespasser, licensee, or invitee may have some bearing on the question of the landowner’s liability, this status alone is not determinative.
Kentucky River Medical Center v. McIntosh
Open and obvious doctrine revoked if possessor of land should anticipate harm despite such knowledge or obviousness.
Minnich v. Med-Waste, Inc.
Justification for firefighter rule varies from assumption of risk, to undue tax burden on citizens, to saying it should be a worker’s compensation payment, etc. Many states have limited the firefighter’s rule by imposing a duty owed to firefighters to warn of reasonably knowable dangerous conditions. Some states have abolished the rule entirely. The justifications and applications of the firefighter’s rule are inconsistent and South Carolina common law does not support the rule. Therefore, the firefighter’s rule does not bar Minnich’s claim. South Carolina tort law will adequately address firefighter’s negligence claims without unfairly singling out a specific group of public employees.
The firefighter's rule
is a legal doctrine that limits the ability of firefighters and other first responders to recover damages for injuries sustained while responding to emergencies, based on the assumption of risk inherent in their duties.
Nonfeasance
refers to the failure to perform a required duty or act when a duty to act existed, leading to potential harm or injury to another person. (for example, failure to stop).
Misfeasance
refers to the improper performance of a lawful act, which can result in harm or injury to another party. It is characterized by the failure to perform a duty of care properly, leading to negative consequences for the injured party. For example, if a doctor prescribes the wrong medication. An Affirmative Act creates the Duty.
General Rule
One person owes another no duty to take active or affirmative steps for the other protection
Exception: Special Relationships: common carrier and passenger, employer and employee, parent and child, innkeeper and guest, business and invitee, school and students, landlord and tenants, custodian with those in custody
Estate of Cilley v. Lane
Absent a special relationship or conduct that has endangered another, a person owes no duty to call aid for an injured person.
Wakulich v. Mraz
One who voluntarily undertakes to render services to another is liable for harm caused by his or her failure to perform such services with reasonable care.
Podias v. Mairs (friends hit and run case)
To impose a duty of action, a court must examine the parties’ relationships and weigh factors of fairness, policy, common sense, and morality. In the case at hand, a reasonable jury could find that Swanson and Newell breached a duty of care to Podias. The risk of harm to Podias, lying unconscious in the middle of the road, was easily foreseeable. Newell and Swanson both knew that the primary wrongdoer, Mairs, would not call for help because of the risk of police discovering his underage drinking and driving. Therefore, Swanson and Newell were both uniquely positioned to help Podias. Imposing a duty to act in this case does not offend notions of fairness and policy, as Newell and Swanson were not mere innocent bystanders to an accident. Although Mairs created the risk, Swanson and Newell benefitted from the car ride and amplified the original risk by consenting to Mairs’ failure to provide assistance.
Rule
Ordinarily, mere presence at the commission of the wrong, or failure to object to it, is not enough to charge one with responsibility in as much as there is no duty to take affirmative steps to interfere.
Exception
even though the defendant may be under no obligation to render assistance himself, he is at least required to take reasonable care that he does not prevent others from giving it. There may be liability for interfering with plaintiff’s opportunity of obtaining assistance.
Ryan Taboada v. Daly Seven, Inc. (hotel armed assault case) & rehearing of the case
The defendant’s knowledge of a specific danger of impending peril determines whether they owed a duty of care to the plaintiff. In this case, their duty as a hotel/innkeeper to the plaintiff’s safety is similar to that of a bus driver/common carrier (due to little ability to control environment). And given that they were aware of several and constant armed robberies occurring in the past at the hotel, they owed a duty of care to the plaintiff’s. Key Point: General danger v. Imminent specific danger standard.
Exception Rule – Special Relationship
The innkeeper has the same potential elevated duty of “utmost care and diligence” to protect a guest from the danger of injury caused by the criminal conduct of a third person on the innkeeper’s property.
COMMONWEALTH of Virginia v. Peterson (VA Tech shooting case)
If it wasn’t foreseeable (as in this case) the special relationship doesn’t even matter. In this case duty wasn’t owed to the students as the police were following another lead as the suspect for the school shooting. They couldn’t have foreseen that the shooter was someone else and that they would carry out the subsequent attack when the police were following their best judgement.
Vicarious Liability
is a legal principle in tort law that holds one party responsible for the tortious acts of another, typically arising in relationships such as employer-employee or principal-agent.
Respondeat Superior
Employer bear the loss incurred as a result of negligent act committed by their employees within the scope of employment.
Riviello v. Waldron (pub employee stab accident case)
An employer is liable for torts an employee commits while acting within the scope of employment.
Enterprise Liability
Holding an enterprise strictly liable for harms it causes facilitates this “internalization of costs,” which in turn reduces the costs of accidents. Consumers are influenced by prices. If the price of a particular product or service actually reflects its total cost, including accident costs, the market will tend to favor the cheaper (safer) product or service.
Serving Two Masters
The Restatement (third) of Agency suggests that liability depends upon which employer is in the better position to take measures to prevent the injury suffered. Looking at which employer “has a right to control” the employee’s conduct. The traditional approach is that the first employer is vicariously liable, while the “borrowing” employer is not, unless evidence leads to a different conclusion based on who has the right to control the servant. Some authority holds both employers liable if the employee is acting within the scope of his employment for both masters simultaneously.
Hinman v. Westinghouse Electric Co. (guy coming home from work accident)
An employee going to or from work is considered outside the scope of employment, unless the trip involves an incidental benefit to the employer.
Edgewater Motels, Inc. v. Gatzke (cigarette fire case)
Factors determining whether an employee’s negligent act occurs within the scope of employment include whether the employee’s conduct is in furtherance of the employer’s interests, whether the conduct is of the type the employee is authorized to perform, and whether the conduct occurs substantially within authorized time and space restrictions.
Jesse v. Ebbets (real estate broker working for two firms)
The court found no vicarious liability because Long & Foster lacked the right to control how Ebbets performed his real-estate work. Without that control, the relationship was independent-contractor, and respondeat superior simply did not apply.
Independent Contractors
Key to contractor v. employee is who maintains right of control; Extent of control; Details over work; Distinct occupation or business; Skill required; Who supplies tools; Length of time employed; Method of payment.
Rylands v. Fletcher (reservoir built on top of abandoned coal mines)
A person who disrupts the natural state of real property by lawfully bringing something onto his land that, if it escapes, is capable of doing harm is strictly liable for any harm occurring as a natural consequence of the escape.
Rule
A person who disrupts the natural state of real property by lawfully bringing something onto his land that, if it escapes, is capable of doing harm, is strictly liable for any harm occurring as a natural consequence of the escape.
Abnormally dangerous
work cannot be done without risk of harm to others – even with the upmost care. One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm (RS 519).
- Ex. Blasting.
Factors for Determining Abnormally Dangerous Activity (restatement 2nd):
- High degree of risk of harm to others or property;
- Risk of serious harm is great;
- Cannot be eliminated even by due care;
- Not a commonly used activity;
- Inappropriate to the place it is carried out on; and
- Extent to which its value to the community is outweighed to its dangerous attributes.
Factors for Determining Abnormally Dangerous activity (restatement 3rd):
- The activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all.
- The activity is not one of common usage.
Dryer v. Maine Drilling & Blasting, Inc.
In Maine, a defendant is strictly liable for inherently dangerous activities that cause injury to persons or damage to property. Under a strict liability analysis, proof of a causal relationship between the blasting and the property damage is still required. Under Strict Liability, the defendant is not strictly liable for all harms caused by his abnormally dangerous activity, but only those “the possibility of which makes the activity abnormally dangerous.
Strict Liability may be imposed on the following
Use and storage of explosives, crop dusting, airplane accidents (only for ground damage-damage done by aircraft on any ground property or surface), Toxic Chemicals and flammable liquids (most of the time, depends), Nuclear reactor, and use of firearm (iffy).
In general, use restatement factors to determine if strict liability for abnormally dangerous activity occurs.
Defenses
only that there was a primary assumption of risk by plaintiff, and that somehow the activity didn’t actually fall under the abnormally dangerous activity standard.
Product Liability
doctrine that gives plaintiffs a cause of action if they encounter a defective consumer item. Generally associated with strict liability, meaning that defendants can be held liable regardless of their intent or knowledge.
- Manufacturing Defect: one out of the line is defective
- Design Defect: whole product line is defective
- Informational Defect/Marketing Defect: all defective with label, instructions, failure to warn, etc.
The restatement states that one who sells any defective product that is unreasonably dangerous to the user is subject to liability for physical harm to consumer and their property, if: The seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without substantial change to its condition which it is sold. This rule applies even if the seller exercised all possible care and if the user is not the one who bought the product from or entered contract with the seller. However, if the condition the user receives it is not the one it was in when originally sold to first seller, then privity returns.
- Not that relevant now a days, but the Citadel of Privity refers to the legal doctrine that limits the liability of a plaintiff to sue for products liability due to being outside the scope of the original contract that occurred between seller and first buyer (assuming plaintiff isn’t first buyer). It isn’t really relevant now with modern products liability law.
Lee v. Crookston Coca-Cola Bottling Co.
A plaintiff may recover, without proof of negligence or privity of contract, against a manufacturer or seller for injuries caused by a dangerously defective product, by submitting direct or circumstantial evidence that allows a jury to find that the product was unreasonably dangerous for its intended use, the defect existed when the product left the defendant’s control, and the defect was the proximate cause of the injuries.
Mexicali Rose v. Superior Court (the One with the Chicken Bone in the Enchilada)
Harm-causing ingredient in a food product is defect if a reasonable consumer would not expect food to contain that ingredient.
Consumer Expectations Test
dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics
Elements of Products Liability under 402A:
- Defect: Consumer Expectations Test or Risk-Utility Test
- Proximate Cause + Cause-In-Fact
- Injury
Leichtamer v. American Motors Co. (jeep manufacturer issue)
A consumer injured by a product featuring an unreasonably dangerous design may bring a claim of strict liability against the manufacturer.
Knitz. v. Minster Machine Co. (die press accident)
A product design is defective, and strict liability applies, if the design is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or if the benefits of the design do not outweigh the inherent risks of the design.
Rule
A product may be found defective in design, even if it satisfied the CE test, if through hindsight the jury determines that the products design embodies ‘excessively preventable danger, or that the risk of inherent danger outweighs the benefits of such design.
Risks > Benefits (RU Test) – Learned Hand type analysis. Factors
likelihood will cause injury, gravity of danger, feasibility of improved design, ordinary CE, if danger of misuse if obvious and readily available
Barker v. Lull Engineering Co.
A product is defective in design if it fails to perform as safely as an ordinary consumer would expect if used in an intended or reasonably foreseeable manner, or if, in light of all relevant factors, the benefits of the challenged design do not outweigh the risk of danger inherent in such design.
Comparative Fault and Assumption of Risk
Bowling v. Heil Co. (bed of truck crushes dude while inspecting)
Contributory negligence and comparative fault do not apply in products liability cases; the only affirmative defenses based on a plaintiff’s misconduct are if the plaintiff voluntarily and knowingly assumed the risk created by the product defect or if the plaintiff misused the product in an unforeseeable manner.
A plaintiff will not be reduced when his negligence consisted solely of failure to discover or guard against the product’s defect.
Misuse
Hughes v. Magic Chef, Inc. (stove light explosion case)
Misuse of product is different from assumption of risk. Assumption of risk applies if an injured party knows of a danger and voluntarily and unreasonably proceeds to encounter that danger. Here, to succeed in their strict-products-liability action, the plaintiffs have the burden to prove that the stove was unreasonably dangerous in a reasonably foreseeable use. If misuse of product applies because the Hugheses used the stove in a manner not reasonably foreseeable to Magic Chef, then the Hugheses will be unable to satisfy their burden of proof, negating Magic Chef’s liability. However, the trial court’s jury instruction on misuse erroneously focused specifically on what Vincent knew or should have known. Instead, the correct focus is what an ordinary consumer would know or should know.
Misuse of a Product
applies if an injured party used a product in a manner that a manufacturer could not reasonably foresee, thus precluding recovery.
In many states, the manufacturer must ordinarily design a product reasonably in the light of known or foreseeable misuses, not merely for “intended” use.
Unforeseeable misuse means the plaintiff is guilty of contributory negligence.
Contributory Negligence – affirmative action – basically assumption of risk – no defense – misuse.
But if Contributory Negligence – failure to discover defect = no defense.
Genie Industries, Inc. v. Matak
A product is unreasonably dangerous if the risks of the design outweigh the design’s utility, considering factors including (1) the utility of the product as weighed against the likelihood of injury from using it, (2) the availability of substitute products that are not unsafe or unreasonably expensive, (3) whether the manufacturer could eliminate the product’s danger without impairing the product’s usefulness or significantly increasing the price, (4) the user’s awareness of the product’s danger or the existence of warnings and instructions, and (5) ordinary consumer expectations.
Freeman v. Hoffman
Food and Drug Administration approval of a prescription drug does not give the manufacturer blanket immunity from liability for design defects. Two different tests may be used to evaluate design defects: the consumer-expectations test and the risk-utility analysis. Under the consumer-expectations test, a product is defective if it is more dangerous than an ordinary consumer would expect. Under the risk-utility analysis, a product is defective if the risks inherent in its design outweigh its benefits.
However, as noted in the Second Restatement of Torts § 402A, comment k, prescription drugs may be more dangerous than a consumer might expect even when used properly. Still, the benefit of these unique products may justify their risks, which means they are not necessarily defective and should be allowed in the market. Previously, Nebraska courts interpreted this section to provide what is called blanket immunity. Under the blanket-immunity interpretation, if a drug manufacturer provided honest information to the FDA about a prescription drug, the FDA’s approval of that drug was proof that the drug’s benefits outweighed its risks.
Thus, the manufacturer was exempt from design-defect liability for all approved drugs. However, blanket immunity is the minority interpretation of comment k and too strict. Most jurisdictions interpret comment k as applying a case-by-case risk-utility analysis to prescription-drug design-defect claims. Recently, the Restatement (Third) of Torts § 6(c) provided another option, stating that a prescription drug is defectively designed only if it provides no net benefit to any class of patients. If the drug helps anyone, it is not defective regardless of how risky it is for others. However, this new test is not supported by caselaw and would essentially eliminate all prescription-drug design-defect claims.
Nebraska now rejects the blanket-immunity test and adopts a hybrid standard for prescription-drug design-defect claims. Under this standard, a plaintiff uses the ordinary design-defect test to establish a prima facie claim. This test gives consumers a chance to raise valid claims, which helps keep drugs designed safely. Accordingly, in Nebraska, plaintiffs must plead the consumer-expectations test. At that point, the drug manufacturer may rely on comment k to raise a risk-utility analysis as an affirmative defense. This defense protects manufacturers who create high-risk drugs that also have significant benefits, while still allowing liability for high-risk designs that have less significant benefits.
2
2
Restatement (Second) of Contracts
Applies conceptually to non-good transactions in contracts. Although each state will have its own contract common laws, the restatement generally conceptualizes contract law as it applies to most states.
Uniform Commercial Code (UCC)
if a contractual transaction is not a sale and does not involve goods, it is not covered by Article 2 of the UCC. So a sale of land or an employment services contract is still regulated by the common law of each state, not by the UCC.
§1.Contract Defined
promise or a set of promises which if breach the law gives remedy, or the performance of which the law in some way recognizes as a duty.
§2.Promise; Promisor; Promisee; Beneficiary
A promise is a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made. The person manifesting the intention is the promisor. The person to whom the manifestation is addressed is the promisee. Where performance will benefit a person other than the promisee, that person is a beneficiary.
§3.Agreement Defined; Bargain Defined
An agreement is a manifestation of mutual assent on the part of two or more persons. A bargain is an agreement to exchange promises or to exchange a promise for a performance or to exchange performances.
§4. How a Promise May Be Made
A promise may be stated in words either oral or written, or may be inferred wholly or partly from conduct.
Expectation Damages
also known as benefit of the bargain. The court attempts to put the promisee in the position they would have been had the contract been fulfilled.
Reliance Damages
if the promisee incurred expenses in performing or preparing to perform in a case of an unfulfilled contract, they can seek reliance damages to recover the cost spent for relying on the expectation of the contract being fulfilled.
Restitution Damages
Seeks to award the promisee damages for the unjust enrichment of the promiser obtained through breach of contract.
Specific Relief
ordering of the promiser to perform the actual promise agreed upon in the contract, or to perform a specific action accounted for in the contract that monetary action cannot equivalently cover.
Hawkings v. McGee
A nonbreaching party may not recover damages for unforeseen losses. If one party Breaches a contract, the non-breaching party may recover damages equaling the difference between the value of the fully performed contract minus the value of the nonbreaching party’s current condition, plus any incidental damages reasonably foreseeable to all parties at the time the contract was agreed.
§347.Measure of Damages in General
the injured party has a right to damages based on his expectation interest as measured by: (a) the loss in the value to him of the other party’s performance caused by its failure or deficiency; plus (b) any other loss, including incidental or consequential loss, caused by the breach; minus (c) any cost or other loss that he has avoided by not having to perform.
Expectation Damages Formula = (Loss in value + Other Loss) – Avoided Loss or Cost
Nurse v. Barnes
A jury may award damages that exceed the plaintiff’s expectation of damages.
Sullivan v. O’Connor
One is allowed to receive expectation damages for pain and suffering that occurred due to breach. When pain and suffering are a result of an expected action due to a breach of an agreed contract, then damages can be awarded.
§346.Availability of Damages
(1) The injured party has a right to damages for any breach by a party against whom the contract is enforceable unless the claim for damages has been suspended or discharged; (2) If the breach caused no loss or if the amount of the loss is not proved under the rules stated in this Chapter, a small sum fixed without regard to the amount of loss will be awarded as nominal damages.
§349.Damages Based on Reliance Interest
As an alternative to the measure of damages stated in §347, the injured party has a right to damages based on his reliance interest, including expenditures made in preparation for performance or in performance, minus any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed.
§352.Uncertainty as a Limitation on Damages
Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.
J.O. Hooker & Sons v. Roberts Cabinet Co.
In mixed contracts involving both goods and services, the applicable law (either UCC Article 2 or general contract law) depends on whether the dispute primarily concerns the goods supplied or the services performed. Under general contract law, extrinsic evidence may not be used to interpret or add to an unambiguous contract. Salaried time spent by a general manager or employee on a failed project may be recoverable as damages if that time must have been diverted from productive work. Even if that salary would have been paid anyway, if it produced no economic value because of the breach, it can be compensated. Lost profits can be based on reasonable estimates—such as a bidding margin and expected project duration—even if precise days of lost production aren’t proven. If conflicting evidence exists, courts will defer to the jury’s reasonable estimation.
KGM Harvesting v. Fresh Network
Under the UCC (sale of goods), a seller who breaches a contract is liable to the buyer for the difference between the contract price and the buyer’s cost to cover, even if that amount exceeds the buyer’s actual damages.
Efficient Breach
Breaching party intentionally doesn’t uphold their end of the contract as it is cheaper to pay damages than perform.
Damages and Market Valuation
Both common law courts and the UCC like to use “fair market value” / “market prices” to measure damages. Can be problematic when there isn’t a replacement market, too many markets, or can’t be priced in a market.
Groves v. John Wunder Co.
Damages for willful breach of a construction contract, even if there has been substantial performance, are awarded as the cost of completing the failed performance. Note: not all courts recognize willful breach as sufficient to justify allowing a party to disproportionately recover.
Peevyhouse v. Garland Coal Mining Co.
The owner is entitled to the money which will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the good to be attained. When that is true, the measure is the difference in value. This is called the value rule.
Cost of Performance Rule
defines which party is responsible for the expenses incurred in carrying out the obligations under a contract.
Relative Economic Benefit Rule
Cost of performance cannot be grossly disproportionate to the economic benefit received.
§348 “ECONOMIC WASTE DOCTRINE:” If a breach results in defective or unfinished construction, [the non-breacher] may recover damages based on (a) the diminution in the market price of the property caused by the breach, or (b) the reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to the probable loss in value to him.
Key Takeaways:
- Expectation damages can be measured by either cost of completion (CoC) or the diminution of market value (DMV).
- Usually, DMV > CoC. In that case, court awards CoC.
- If CoC > DMV, consider factors like: Is CoC grossly disproportionate? Subjective vs. Objective breach (purpose of K)? Major breach (purpose of K)? Willful breach? Breach benefitted breacher?
Foreseeability
Hadley v. Baxendale
Foreseeable damages can only be awarded if circumstances were known to both parties at the formation of contract. If one party breaches a contract, the other party may recover all damages that are reasonably foreseeable to both parties at the time of making the contract, as well as damages stemming from any special circumstances, provided those circumstances were communicated to and known by all parties at contract formation.
§351. UNFORESEEABILITY AND RELATED LIMITATIONS ON DAMAGES
Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made. Loss may be foreseeable as a probable result of a breach because it follows from the breach: (a) in the ordinary course of events; or (b) as a result of special circumstances that the party in breach had reason to know. A court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that justice so requires.
Martiniz v. Southern Pacific Transport co
Damages from the loss of a machine's use are a reasonably foreseeable result of delayed transport. The general rule does not require the plaintiff to show that the actual harm suffered was the most foreseeable of possible harms. He need only demonstrate that his harm as not so remote as to make it unforeseeable to a reasonable man at the time of contracting. Expectation damages test of value between time of dispatch and time of actual delivery is merely a method, and it is not applied in cases where another rule will better compute actual damages. Lost rental value is frequently an appropriate measure of damages from a delay in shipment machinery.
Morrow v. First National Bank of Hot Springs
The tacit-agreement test says that one agrees to all terms of a contract that can reasonably be assumed to be part of the agreement, but one cannot be liable for special circumstances of which one did not have actual notice. ONLY APPLIES IN ARKANSAS.
FORESEEABILITY TAKEAWAYS
1. Foreseeability is a major limitation on damages. 2. Damages are foreseeable if they follow from the breach (a) in the ordinary course of events or (b) as a result of special circumstances that the breacher had reasons to know. 3. However, foreseeability is a default rule. Default rules can be typically contracted around.
Certainty
Chicago Coliseum Club v. Dempsey
Damages must be directly caused by the breach and proven with reasonable certainty. Speculative profits and expenses incurred before the contract or in litigation efforts are not recoverable. Only expenses incurred in reliance on the contract after its formation may be considered.
§352. UNCERTAINTY AS A LIMITATION ON DAMAGES
Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.
Winston Cigarette Mach. Co. V. Wells-Whitehead Tobacco Co.
Damages for breach of contract must be certain in nature and causation, and they must be such as could have been reasonably contemplated by the parties at the time of contracting. Profits may be included in damages if they are proximate, certain, and capable of being determined with sufficient certainty. Speculative, remote, or contingent profits are not recoverable as damages.
What evidence might help prove lost profits with reasonable certainty?
- Testimony / survey of industry “experts”
- Analysis of comparables (e.g. prior prize fights)
- Discounted cash flow analysis
- Market price as a basis for valuation
Anglia Television LTD. v. Reed – English Television
Damages can include all reliance expenditures reasonably contemplated by the parties, including pre-contractual reliance that would otherwise have been “wasted.”
Security Stove & MFG. v. American Railway Express
A carrier's duty is to transport shipments safely and deliver them within a reasonable time, not to guarantee delivery by a specific date. Where a carrier has notice of special circumstances that may result in unusual loss due to delay, it may be held liable for damages resulting from such delay. The measure of damages is typically the difference in market value of the goods at the time of delivery versus when they should have been delivered, but expenses incurred in reliance on the contract may also be recoverable.
§349
DAMAGES BASED ON RELIANCE INTEREST: As an alternative to the measure of damages stated in §347, the injured party has a right to damages based on their reliance interest, including expenditures made in preparation for performance or in performance – minus any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed.
Avoidability/Mitigation
§ 350
AVOIDABILITY AS A LIMITATION ON DAMAGES: Except as stated in Subsection 2, damages are not recoverable for loss that the injured party could have avoided without undue risk, burden, or humiliation; (2) The injured party is not precluded from recovery by the rule stated in Subsection (1) to the extent that he has made reasonable but unsuccessful efforts to avoid loss.
Rockingham County v. Luten Bridge Co.
After a party repudiates (rejects/denies) a contract, the non-breaching party must mitigate damages and cannot recover for work performed after notice of repudiation.
Shirley Maclaine Parker v. Twentieth Century Fox Film Corp.
The measure of recovery for a wrongfully discharged employee is the agreed salary, minus any amount the employer proves the employee earned or could have earned with reasonable effort from comparable or substantially similar employment. An employee is not required to accept employment that is different or inferior to mitigate damages.
Neri v. Marine Retail Corp.
UCC allows a buyer to recover restitution of payments made, subject to offsets for the seller's damages. UCC also provides that if the standard measure of damages is inadequate, the seller may recover lost profits and incidental damages to be placed in as good a position as performance would have done. UCC defines incidental damages as commercially reasonable expenses incurred due to the buyer's breach.
UCC Article 2 – Seller’s Remedies (Sales Contracts) §2-706 – Seller’s Resale and Recovery of Damages
When it applies
Buyer breaches (fails to pay, repudiates, or refuses delivery).
- Right to Resell: Seller may resell the goods (or the undelivered balance) after buyer’s breach.
- Recovery: If the resale is done in good faith and commercially reasonably, the seller may recover = (Contract price – Resale price).
Incidental damages (§2-710): Expenses saved because of the breach.
- Manner of Resale: Can be public or private sale; can sell goods as a whole or in parts; all aspects of resale (method, time, place, terms) must be commercially reasonable; the resale must be clearly tied to the breached contract.
- Notice Requirements: Private sale: Seller must give buyer reasonable notice of intent to resell. Public sale: a. Only identified goods can be sold (unless futures market exists); b. Must occur at a usual market/place and buyer must get reasonable notice of time/place (unless goods are perishable or will decline in value fast); c. If goods not viewable at sale, notice must say where they are and allow inspection; d. Seller may buy at the public sale.
- Effect of Resale on Buyer’s Rights: A buyer who purchases in good faith at the resale takes the goods free of the original buyer’s rights, even if the seller made technical mistakes in the resale process.
- Profits and Accounting: Seller keeps any profit made on resale. But a “person in the position of a seller” (§2-707) or a buyer who rightfully rejected goods must account for any excess over their security interest.
§2-708 – Seller’s Damages for Buyer’s Non-Acceptance or Repudiation
- Market Differential Formula (Default Rule): Damages = (Market price at time/place for tender – Contract price).
- Lost Volume Seller Rule (Alternative Measure): If the market formula doesn’t make the seller whole (e.g., lost volume seller who could have made multiple sales), then damages = Expected profit (including reasonable overhead).
- Incidental damages = Costs saved / resale proceeds.
Purpose
Put seller in as good a position as if buyer had performed.
§2-710 – Seller’s Incidental Damages
Seller’s incidental damages = reasonable costs incurred due to buyer’s breach, such as: Stopping delivery of goods; Transporting, caring for, or storing goods after breach; Costs related to returning or reselling goods; Other expenses directly resulting from the breach.
§2-718 – Liquidated Damages and Buyer’s Deposits
- Liquidated Damages Clause: Allowed only if reasonable considering: a. Anticipated or actual harm; b. Difficulty of proving loss, and; c. Inconvenience of getting another remedy. Unreasonably large liquidated damages = penalty → void.
- Buyer’s Restitution Right: If seller justifiably withholds goods after buyer’s breach, buyer can get back payments exceeding the larger of: The valid liquidated damages amount, or 20% of the total contract price or $500, whichever is smaller.
- Offset Against Restitution: Seller can offset the buyer’s restitution by showing: a. Other damages recoverable under the UCC; and/or b. Any benefit/value the buyer got from the contract.
- Goods as Payment: If buyer paid with goods, their reasonable value or resale proceeds count as payments. If resale happens after seller learns of breach, it must meet the §2-706 resale rules.
§346. AVAILABILITY OF DAMAGES (RIGHT TO NOMINAL DAMAGES)
(1) The injured party has a right to damages for any breach by a party against whom the contract is enforceable unless the claim for damages has been suspended or discharged; (2) If the breach caused no loss or if the amount of the loss is not proved under the rules stated in this Chapter, a small sum fixed without regard to amt. of loss will be awarded as nominal damages.
Kemble v. Farren
A valid liquidated damages clause must be a reasonable forecast of anticipated damages and apply only to uncertain or difficult-to-measure losses.
Wassenaar v. Towne Hotel
A liquidated damages clause is enforceable if it is reasonable considering the anticipated or actual harm from breach and the difficulty of proving damages. If reasonable, it is not a penalty, and the duty to mitigate does not apply. Courts assess reasonableness at the time of contracting (and may also consider actual harm). Once a clause is valid, it fixes damages—no reduction for post-breach earnings or mitigation.
LDCS
BIG PICTURE: Big Question: Is the Provision a Reasonable Estimate of Actual Compensatory Damages? How Hard Is It to Estimate, Prove Damages? How Does Provision Compare to Actual Damages?
Damages Harder to Estimate = More Deference to Parties, Greater Range Permissible.
RESTATEMENT § 356
Damages for breach may be liquidated in the agreement but only at an amount that is reasonable in light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.
Disguised penalties
Neither the parties’ actual intention as to its validity nor their characterization of the term as one for liquidated damages or a penalty is significant in determining whether the term is valid.
Related types of provisions
A term that fixes [an unreasonably small amount] as damages does not come within the rule stated in this Section, but a court may refuse to enforce it as unconscionable.
Contracts for Land
Loveless v. Diehl
When a contract for the sale of land is definite, fair, and equitable, specific performance is ordinarily granted because legal damages are inadequate and land is unique.
§2-716. Buyer’s Right to Specific Performance or Replevin
Specific performance may be ordered where the goods are unique or in other proper circumstances. The judgment (decree) for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just. The buyer has a right of replevin (return) for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.
Contracts for Goods and Personal Services
Cumbest v. Harris
Specific performance may be granted for personal property when the goods are unique, scarce, or of peculiar sentimental value, such that monetary damages are inadequate
Scholl v. Hartzell
Specific performance (or replevin) is not available for ordinary goods when the buyer has an adequate remedy at law—such as money damages or the ability to “cover.”
Sedmak v. Charlie’s Chevrolet
Under U.C.C. §2-716, specific performance is proper not only for unique goods, but also in “other proper circumstances”—such as limited availability or inability to cover without great expense or delay.
Specific Performance – U.C.C. §2-716
Courts may grant specific performance for goods that are scarce or specially configured, even if not traditionally “unique,” when cover is impractical or impossible.
(1) Specific performance may be ordered where the goods are unique or in other proper circumstances.
(2) The judgment (decree) for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.
(3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.
Default for Sale of Goods = Monetary Damages
IN SUMMARY
Money damages are the presumptive form of relief for breach of contract. However, they can be rebutted by showing damages would be inadequate, for example when the subject of the contract is unique. Land is presumed unique, and goods may be shown to be unique (special or unable to find elsewhere).
PROBLEMS W/ SPECIFIC PERFORMANCE OF PERSONAL SERVICE CONTRACTS
Moral, Practical, Consent Theory of Contract. How often would people agree to be jailed for breach? If they did, isn’t that a penalty clause?
The Case of Mary Clark, A Woman of Colour
Courts will not enforce specific performance of personal service contracts, even if voluntarily entered, because doing so would create involuntary servitude contrary to public policy and constitutional guarantees of freedom.
No Specific Performance of Personal Service Contracts
Enforcing such contracts would amount to involuntary servitude; the proper remedy, if any, is damages, not compulsion.
Lumley v. Wagner
While a court cannot compel specific performance of a personal services contract, it may issue an injunction to enforce a negative covenant—preventing the performer from working elsewhere—when that covenant is express or implied in the agreement.
Dallas Cowbows Football Club v. Harris
Injunctive relief may be granted to restrain violation of a negative covenant in a personal services contract if the employee’s services are special, exceptional, or unique such that damages are inadequate. A contractual claim of “unique ability” is not conclusive but may serve as evidence of uniqueness.
Courts may enforce negative covenants in personal service contracts through injunctions if the performer’s services are distinctive enough that damages cannot adequately compensate the breach. Harris extends Lumley v. Wagner to modern professional sports contracts, affirming that equitable relief can prevent athletes with unique skills from playing for rival teams. Basically, no specific performance if K for personal services. However, may be possible to get a negative injunction if unique or exceptional.
Restitution for Breach of Contract
INTRO TO RESTITUTION
Restitution can be a remedy (compensation for damages) or a cause of action (type of legal claim). It may be available when either: (1) There is a contract that has been “totally” breached or repudiated; or (2) There is no actual contract, but plaintiff deserves some type of recovery (e.g. quasi-contracts) E.g., no attempt to ever form a contract, contract is unenforceable because of duress, etc. Plaintiffs often rely on restitution in quasi-contracts because courts will almost never award expectation damages.
RESTATEMENT § 373(1)
If there is either: “a breach by nonperformance that gives rise to a claim for damages for total breach” or “a repudiation,” then: “ the injured party is entitled to restitution for any benefit that he has conferred on the other party by way of part performance or reliance.
RESTATEMENT § 373(2)
“The injured party has no right to restitution if he has performed all of his duties under the contract and no performance by the other side remains due other than payment of a definite sum of money for that performance.”
Bush v. Canfield
Illustrates that when a contract for goods fails completely before delivery and the buyer has prepaid, damages are limited to restitution of the amount paid plus interest—not expectation damages—because the seller cannot keep payment for undelivered goods.
GROUNDS FOR RECISSION
There was once a valid K
Material breach, non-breacher prefers calling off K to enforcing it.
The K was never valid
Misrepresentation, duress, infancy, etc. K never should have been enforced. Payments are unjust.
Attorney General v. Blake
allows disgorgement for breach of contract only in extraordinary circumstances where justice demands denying the breacher any profit—an exception to the normal rule limiting recovery to compensatory damages.
Britton v. Turner
A breaching party can obtain quantum meruit (restitution for part performance) when the non-breaching party has accepted a benefit, ensuring fairness and preventing unjust enrichment, though recovery is limited by any loss caused by the breach.
RESTATEMENT § 374(1)
Breacher can recover in restitution for the benefits conferred on the non-breacher, to the extent those benefits exceed the loss caused by their breach. When we measure benefits, the contract price is an upper bound.
RESTATEMENT § 374(2) (RESTATED)
If the K provides that a party’s performance is to be retained upon breach, this is treated like an LDC. The breaching party cannot get restitution for the value of that performance if the LDC is enforceable.
Vines v. Orchard
A breaching purchaser of real property may recover restitution of payments made if (1) the breach was not willful, and (2) the seller has been unjustly enriched—meaning the seller’s actual damages are less than the retained payment, despite any valid liquidated damages clause.
Quasi Contracts
Cotnam v. Wisdom
When a person is rendered unconscious or incapable of assent, one who provides necessary services in good faith (such as medical care) may recover reasonable compensation under a quasi-contract, even though no actual agreement existed.
Pelletier v. Johnson
Even when a contract is unenforceable for technical statutory reasons, restitution is available if the performance was lawful, made in good faith, and retention of the benefit would unjustly enrich the recipient.
RESTATEMENT § 371 (RESTATED)
Restitution damages may be measured by either: a) what it would reasonably have cost the other party to obtain what it received; or b) the actual benefits that the performance confers on the other party.
QUASI-CONTRACTS
Restitution may be available to plaintiff if: (1) plaintiff conferred a measurable benefit to the defendant (Rest. § 371); (2) plaintiff conferred the benefit with reasonable expectation of being compensated for the value (e.g. not a gift); and (3) defendant would be unjustly enriched if allowed to retain the benefit without compensating the plaintiff because defendant knew / had reason to know of plaintiff’s expectation of being compensated; or plaintiff had a reasonable excuse for conferring the benefit without defendant’s knowledge (e.g. emergency situations like Cotnam).
Remember
Plaintiff usually cannot recover expectation damages in quasi-contracts!
Lumley v. Gye
A third party who knowingly and maliciously causes another to breach a contract is liable in tort for the damages resulting from that interference.
Embry v. Hargadine
A contract is formed based on the objective manifestations of assent—not on the secret or unexpressed intentions of the parties. If a reasonable person would interpret words or conduct as an agreement, and the other party so understands them, a binding contract exists.
OFFER / ACCEPTANCE REQUIREMENT
A reasonable person, looking at McKittrick’s conduct, would think that he intended to make a K – Objective test AND Embry actually thought so – Subjective test.
Lucy v. Zehmer
A party’s outward manifestations of intent, not secret intentions, determine whether a contract exists. If a reasonable person would interpret a party’s words or actions as showing serious intent to contract, a binding agreement is formed—even if one party claims to have been joking.
Nyugen v. Barnes & Noble Inc.
A website user is not bound by online terms of use unless they have actual or constructive notice of those terms. Simply placing a hyperlink to terms of use on a webpage is insufficient to show assent when the user is not required to take affirmative action acknowledging them. A browsewrap agreement is only enforceable if a reasonably prudent user would be on notice of its terms. Websites must give clear and conspicuous notice—mere hyperlinks without prompts for user assent do not create binding contracts.
Offers vs. Preliminary Negotiations
§24 OFFER DEFINED
An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.
§26 PRELIMINARY NEGOTIATIONS
But it’s not an offer “if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.”
“‛Reason to know’ depends not only on the words or other conduct, but also on the circumstances, including previous communications of the parties and the usages of their community or line of business.”
“In determining whether an offer is made relevant factors include the terms of any previous inquiry, the completeness of the terms of the suggested bargain, and the number of persons to whom a communication is addressed.” [Comment c]
REST. §33 CERTAINTY
(1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain; (2) The terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy; (3) THE FACT THAT ONE OR MORE TERMS OF A PROPOSED BARGAIN ARE LEFT OPEN OR UNCERTAIN MAY SHOW THAT A MANIFESTATION OF INTENTION IS NOT INTENDED TO BE UNDERSTOOD AS AN OFFER OR AS AN ACCEPTANCE.
REST. § 29 TO WHOM AN OFFER IS ADDRESSED
(1) The manifested intention of the offeror determines the person or persons in whom is created a power of acceptance; (2) An offer may create a power of acceptance in a specified person or in one or more of a specified group or class of persons, acting separately or together, or in anyone or everyone who makes a specified promise or renders a specified performance.
UCC § 2-204 FORMATION IN GENERAL
Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.
Nebraska Seed Co. v. Harsh
A mere statement of willingness to sell or price quotation is not an offer but an invitation to negotiate; only a definite proposal showing intent to be bound upon acceptance constitutes an offer.
Lefkowitz v. Great Minneapolis Surplus Store, Inc.
Advertisements are usually invitations to deal, but when specific and unconditional, they can be binding offers once accepted by performance.
Leonard v. Pepsico, inc.
An advertisement or commercial is not an offer when a reasonable person would understand it as humorous, exaggerated, or not seriously intended to create legal relations.
RESTATEMENT § 26 PRELIMINARY NEGOTIATIONS
Comment b: Advertisements... are not ordinarily intended or understood as offers to sell, [nor are] catalogues, price lists and circulars, even though the terms of suggested bargains may be stated in some detail. It is of course possible to make an offer by an advertisement directed to the general public...but there must ordinarily be some language of commitment or some invitation to take action without further communication.
Agreements in Principle
Empro Manufacturing Co. v. Ball-Co. Manufacturing, inc.
Preliminary agreements and letters of intent primarily set the stage for further negotiations. Unless the language clearly manifests immediate intent to create legal obligations, parties remain free to walk away, and courts will not enforce pre-contractual expectations or reliance expenditures.
Arnold Palmer v. Fuqua
A memorandum or letter of intent may be enforceable if it objectively demonstrates the parties intended to be bound. The court evaluates the parties’ intent based on the language of the document and the surrounding circumstances, rather than relying solely on subjective beliefs. Whether a binding contract exists is generally a factual question for the trier of fact (jury), particularly in complex commercial transactions where preliminary agreements may leave some terms open for later negotiation.
Revoking an Offer
Dickinson v. Dodds
An offer, even if stated to remain open for a specified time, may be revoked at any point prior to acceptance unless supported by consideration; revocation is effective when the offeree receives notice—direct or indirect—that the offeror is no longer willing to contract. An option is not binding without consideration, and an offeree cannot accept an offer once he knows the offeror has taken action inconsistent with continuing the offer. Notice of revocation—express or indirect—terminates the power of acceptance.
RESTATEMENT §24
OFFER DEFINED: An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.
RESTATEMENT §35
THE OFFEREE’S POWER OF ACCEPTANCE: (1) An offer gives to the offeree a continuing power to complete the manifestation of mutual assent by acceptance of the offer; (2) A contract cannot be created by acceptance of an offer after the power of acceptance has been terminated in one of the ways listed in § 36: Revocation by the offeror; Rejection by the offeree; Counteroffer by the offeree; Passage of Time; Death or Incapacitation of Offeror + Non-occurrence of any condition of acceptance under terms of offer.
RESTATEMENT §25
OPTION CONTRACTS: An option contract is a promise which meets the requirements for the formation of a contract and limits the promisor's power to revoke an offer.
Bjorkman v. Arctic Cat, Inc.
An offer may be revoked before acceptance through words or conduct inconsistent with the original offer, so long as the revocation is communicated to the offeree; once the offeree knows the terms have changed, the power of acceptance ends.
FIRM OFFERS UNDER THE UCC
Offer; By a merchant; To buy or sell goods; In a signed writing; That, by its terms, cannot be revoked for a period of time.
UCC MERCHANT
A person who deals in goods of that kind; Someone who holds themself out as having knowledge or skill peculiar to the practices or goods involved; Someone who has an agent who fits that description.
Mode of Acceptance; Varied Terms
Ragland v. IEC US Holdings, Inc.
Under Florida contract law, an arbitration agreement is enforceable only if the party seeking enforcement proves a valid contract—offer, acceptance, and consideration—measured by objective manifestations. When the terms require acceptance by signature, neither prior references to arbitration nor continued employment constitute assent.
Mirror Image Rule
An offer of a bargain by one person to another imposes no obligation upon the former, unless it is accepted by the latter according to the terms on which the offer was made. Any qualification of or departure from those terms invalidates the offer, unless the same is agreed to by the party who made it. Where the negotiations are by letters, they will constitute no agreement unless the answer to the offer is a simple acceptance, without the introduction of any new term.
Ardente v. Horan
An acceptance must be definite and unequivocal. If the offeree’s response adds conditions or limitations, it becomes a counteroffer, which rejects the original offer unless the added terms are clearly independent requests. A request is permissible only if it is unmistakably collateral and the offeree would proceed with the contract even if the request were denied.
Rios v. State of Maryland
Under standard contract principles (which apply to plea bargaining absent reliance or misconduct), a counteroffer rejects an offer. But a mere inquiry about whether different terms are possible does not constitute a counteroffer and does not terminate the power of acceptance. Acceptance following a mere inquiry is valid as long as the offer has not been withdrawn.
TIMING AND THE “MAILBOX RULE
Offers, Revocations, and Rejections [and acceptance of options, per some courts] are Effective Upon Receipt. Acceptances are Effective Upon Dispatch
SOME C AVEATS TO THE MAILBOX RULE
Not applicable every type of communication; Substantially instantaneous (e.g., face-to-face, phone) = upon RECEIPT (Rest. § 64); Electronic communication isn’t always substantially instantaneous; Not applicable every type of contract; Offeror can limit mode of acceptance or alter mailbox rule with express wording; Option Contracts = effective upon RECEIPT; Rejections by the offeree of an offer are effective on RECEIPT (Rest. § 40); Even under a rule of “receipt,” courts often make a (rebuttable) presumption that a properly mailed notification was properly delivered; Various ad hoc equitable exceptions to mailbox rule; E.g.: offeree knows that acceptance was lost; offeror reasonably relies on rejection received prior to acceptance
Acceptance by Performance
Unilateral Contract
Where only one party has made a promise as consideration, and the other has supplied consideration by rendering the required exchange performance at the very point of contract formation. Put simply: Party A says, “I offer to sell you farm, but to accept this offer you must show up at my office at 2pm and pay me 2 million in cash”. Once this is complete all that is left is for A to transfer the title and possession of the farm. However, A is only legally bound to give you the farm once you actually perform the specific act for acceptance.
Bilateral Contract
where, at point of contact, both parties have outstanding promises to be performed in the future, the contract is said to be bilateral. Example: I, the offeror, offer to sell a farm and offeree promises to pay the price.
Carlill v. Carbolic Smoke Ball Co.
A public advertisement promising a reward in return for performance of specific conditions can constitute a valid unilateral offer. Performance of the stated conditions is both the acceptance and the consideration, and no separate notice of acceptance is required when the offer, by its nature or its wording, implies that notice is unnecessary.
Petterson v. Pattberg
A unilateral offer may be revoked any time before complete performance, even if the offeror knows the offeree is attempting to perform. For unilateral contracts, acceptance is the requested act itself, and if the act is not fully completed before revocation, no contract forms. Additionally, an offer is effectively revoked if the offeree gains actual knowledge that the offeror has done something inconsistent with the offer’s continuation (e.g., selling the subject matter).
SUMMARY – ACCEPTANCE BY PERFORMANCE
Difficulties with acceptance by performance; Revocability; Part performance; Significant risk for offeree; But offeree discretion to cease performance without liability
Restatement 2d §45
Where offer invites acceptance by rendering performance (not promissory acceptance) - option K upon tender or beginning of performance or tender of beginning of performance
Acceptance by Silence
Hobbs v. Massasoit Whip Co.
Silence is not usually acceptance. But prior dealings or a context where the offeree knows the sender reasonably expects acceptance can impose a duty to speak. Silence plus retention of goods for an unreasonable time can constitute acceptance, regardless of the offeree’s actual intent.
REST. § 69 ACCEPTANCE BY SILENCE OR EXERCISE OF DOMINION
An offeree’s silence is an acceptance only if: (a) “offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation;” (b) “offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer”; and (c) “because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept.”
Legal Benefit / Detriment; The Bargain Theory
WHY REQUIRE CONSIDERATION
Consent, Justice, Cautionary, Evidentiary; Communicative.
REST. § 71 REQUIREMENT OF EXCHANGE
(1) To constitute consideration, a performance or a return promise must be bargained for; (2) A performance or return promise is bargained for if it is sought by the promisor in exchange for his promise and is given by the promisee in exchange for that promise; (3) The performance may consist of – (a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification, or destruction of a legal relation; (4) The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person.
Hamer v. Sidway
Forbearance (restraining from exercising) of a legal right at the request of another is valid consideration. Courts do not evaluate whether the forbearance actually benefited the promisee or promisor; it is enough that the promisee restricted his lawful freedom in exchange for the promise.
There are some promises which, although the promisor makes them without bargaining for anything in return, nonetheless induce the promisee to rely to her detriment. While the promisee would be unsuccessful on a breach of contract claim if the promisor failed to perform because of a lack of consideration, the doctrine of promissory estoppel offers some relief.
Restatement Second § 90
provides for recovery on the basis of reliance in a wide range of situations. There are four requirements which must be met to invoke the doctrine: first, there must have been a promise. Second, the promisee must actually rely on the promise. Third, the promisee’s reliance must have been reasonably foreseeable to the promisor, even though the promisor may not have bargained for it. And fourth, the circumstances must be such that injustice can be avoided only by enforcement of the promise.
Promissory Estoppel
The essence of promissory estoppel is the idea that the maker of a promise may be bound by that promise, even though it is not supported by consideration if the promisee relies upon the promise to her detriment and the promisor should have foreseen this reliance. In such cases, the promise is enforceable but “may be limited as justice requires.”32 Recovery is generally limited to damages based on the reliance interest which affords a lesser recovery than would a full measure of expectation damages.
Kirksey v. Kirksey (outdated but relevant for context)
A promise motivated by gratitude, generosity, or familial kindness, without a bargained-for exchange, is a mere gratuity and not enforceable as a contract. Reliance alone does not create consideration under 19th-century doctrine. (Courts today might treat this as a promissory estoppel case, but that doctrine did not yet exist.)
Please remember that mere gratuity is not sufficient for promissory estoppel. There must also be reliance and some sort of inferred benefit to the promisor.
Pre-Existing Duty Rule and Modification
Harris v. Watson
A promise to pay sailors additional wages for doing extra work during an emergency at sea is unenforceable as a matter of public policy. Allowing such promises would encourage sailors to exploit dangerous situations and would endanger maritime safety. Early foundation for the “pre-existing duty” rule.
Stilk v. Myrick
A promise to modify a contract is unenforceable without new consideration. The case is the classic articulation of the pre-existing duty rule: performing what you are already bound to do cannot serve as consideration for a new promise of payment.
Alaska Packers’ Ass’n v. Domenico
A contract modification is unenforceable when one party refuses to perform their pre-existing duties and demands additional compensation. A promise made under economic duress and without new consideration is void.
Brian Construction and Development Co. v. Brighenti
“[W]here a contract must be performed under burdensome conditions not anticipated, and not within the contemplation of the parties at the time when the contract was made and the promisee measures up to the right standard of honesty and fair dealing and agrees, in view of the changed conditions, to pay what is then reasonable, just, and fair, such new contract is not without consideration.”
MODIFICATION AND THE PRE-EXISTING DUTY RULE:
- Traditionally: Pre-Existing Duty Rule
- Modern Rules More Flexible...
- Restatement (“fair and equitable” given “unanticipated circumstances”)
- UCC (“good faith”)
Adequacy of Consideration
REST. §79. ADEQUACY OF CONSIDERATION; MUTUALITY OF OBLIGATION
If the requirement of consideration is met, there is no additional requirement of equivalence in the values exchanged.
Comment d. Pretended Exchange
Disparity in value sometimes indicates that the purported consideration was not in fact bargained for but was a mere formality or pretense. Such a sham or “nominal” consideration does not satisfy the requirement of §71.
Newman & Snell’s State Bank v. Hunter
Surrendering a worthless obligation or collateral cannot serve as consideration. Consideration requires a legal detriment or benefit with actual value; giving up a right that has no value is not consideration. This case illustrates the principle that courts look to the substance, not the form, of the exchange in determining whether consideration exists.
Dyer V. American By-Products
Forbearance to litigate (giving up the right to sue) is valid consideration when the party who doesn’t sue honestly believes their forgone claim has merit. Courts look to the good-faith belief of the forbearing party, not the objective validity of the underlying claim.
As we said before – Promissory Estoppel
The essence of promissory estoppel is the idea that the maker of a promise may be bound by that promise, even though it is not supported by consideration if the promisee relies upon the promise to her detriment and the promisor should have foreseen this reliance. In such cases, the promise is enforceable but “may be limited as justice requires.”32 Recovery is generally limited to damages based on the reliance interest which affords a lesser recovery than would a full measure of expectation damages.
Ricketts v. Scothorn
Intentional influence on the promisee to act or do something specific by the promisor can constitute consideration if promisee acted in reliance of promise made based on promisor’s wishes.
Goodman v. Dicker
Promissory estoppel allows recovery of reliance damages when a promise induces reasonable reliance, even if a formal contract never existed. A party who makes assurances that induce reasonable reliance can be liable for the other party’s out-of-pocket losses. Promissory estoppel protects reliance interests but does not guarantee the benefit of the bargain.
REST. §90(1) PROMISE REASONABLY INDUCING ACTION OR FORBEARANCE
A promise which the promisor should reasonably expect to induce action or forbearance on the part of a promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise. The remedy granted for breach may be limited as justice requires.
PROMISSORY ESTOPPEL COMMON ELEMENTS
1) There was a promise that was clear/unambiguous; 2) Reasonable and/or foreseeable reliance on the promise; 3) Other party acted (or refrained from acting) in reasonable reliance; 4) Enforcement necessary to prevent injustice and/or party was injured or suffered a detriment (sometimes courts also require intent to induce reliance)
Form Contracts
FORM CONTRACTS
ADVANTAGES: Reduce transaction costs in creating K. Because reused, make individual terms more efficient. Makes record-keeping easier. Can be tailored to reduce costs of employee training / agency costs.
FORM CONTRACTS
DISADVANTAGES Can increase transaction costs or enshrine inefficient terms b/c can be hard to make changes to form Ks. People don’t read them + may not understand them – allowing drafters to put in unfair terms and make form Ks one-sided.
RESTATEMENT § 211
(1) Except as stated in Subsection (3), where [A] manifests assent to a writing and has reason to believe that like writings are regularly used to embody terms of agreements of the same type, he [assents to] the [terms in the] writing. (3) Where [B] has reason to believe that [A] would not [give his assent] if [A] knew that the writing contained a particular term, the term is not part of the agreement.
FORM CONTRACTS
Generally enforceable (Rest. § 211(1)). Exception: If drafter has reason to believe counterparty would not have assented if they knew about a provision, not part of the K (Rest. § 211(3)
Other Constraints
Good Faith and Fair Dealing (Rest. § 205); Construed Against Drafter (Rest. § 206); Doctrine of Unconscionability (Rest. § 208); Public Policy Constraints (Rest. § 207, Rest. § 178-96)
Carnival Cruise Lines v. Shute
Standard-form forum-selection clauses are enforceable so long as they are reasonable and not imposed for bad-faith purposes. Courts emphasize efficiency and fairness over bargaining-power inequality.
Caspi v. MSN
A clickwrap or clickthrough agreement is a prompt that offers individuals the opportunity to accept or decline a digitally-mediated policy. Click-wrap forum-selection clauses are binding when users have a fair chance to read them and assent by clicking “I agree.” Reasonable notice—not actual reading—is the standard. Courts will enforce such clauses absent fraud or concealment.
Writing Requirement – “Statute of Frauds”
SOF
SUBJECT MATTER
- Transfer of an interest in real property
- An agreement that by its terms is not to be performed within a year from execution
- A promise to answer for the debt, default or miscarriage of another person
- A promise made in consideration of marriage (e.g. prenup)
- A contract for sale of goods for the price $500
Boone v. Coe
Under the Statute of Frauds, an oral lease of land for more than one year—or a one-year lease set to begin in the future—is unenforceable. When a contract is unenforceable under the Statute of Frauds, a plaintiff cannot recover reliance damages unless the defendant actually received a benefit from the plaintiff's performance. Where the defendant receives no benefit, no implied promise to pay arises, and reliance losses are not recoverable.
Schwedes v. Romain
A contract for the sale of land is unenforceable under the Statute of Frauds unless there is a writing signed by the party to be charged. An oral promise to buy land, unsupported by consideration and not memorialized in writing, cannot create an enforceable contract. Acts taken only in anticipation of a future closing (like arranging financing, offering payment, or seller preparations)—rather than acts unequivocally referable to the contract—do not constitute part performance. Promissory estoppel cannot be used to avoid the Statute of Frauds when the case clearly falls within it.
Misrepresentation
Procedural Defenses
Not about the terms of the contract itself. There was a problem with the process through which the contract was formed. In this case you get to rescind the contract and get restitution.
Lack of Capacity
This entails – Infancy, Mental Impairment, Intoxication, Undue Influence.
Infancy
Minors can void a contract at any time up to 18th birthday (Rest. § 14). Logic behind this defense = Contract law is about voluntarily assumed obligations; people below a certain stage of development are not considered to have the capacity to fully understand the obligations they’re assuming.
Mental Impairment
Applies to people (Rest. § 15) – (a) unable to understand in a reasonable manner the nature and consequences of the transaction, or (b) unable to act in a reasonable manner in relation to the transaction and the other party has reason to know of this condition. Logic behind this defense = Contract law is about voluntarily assumed obligations; we don’t enforce contracts against a person whose mental impairment prevented them from understanding the obligations they assumed.
Intoxication
A person is unable to understand the nature and consequences of a transaction due to intoxication; and Counterparty has reason to know this is the case due to intoxication
Undue Influence
Position of influence (relationship of trust). Influence induced other party to agree to K terms when there is a Motive to influence, Opportunity to influence, or Actual exercise of influence. The other party would not, by their own free will, have agreed to K terms absent such influence.“Coercive [persuasion] which overcomes the will without convincing the judgment”
Undue Influence – Common Indicators: Discussing transaction at an unusual or inappropriate time; Consummating transaction in an unusual place; Insistent demand that business be finished now; Extreme emphasis on dire consequences of delay; Multiple persuaders vs. a single vulnerable party; Absence of third-party advisers to the vulnerable party; Saying there is no time to consult financial advisers or attorneys.
ELEMENTS OF MISREPRESENTATION
False representation; Of a material “or” fraudulent fact; Justifiably induces assent.
Halpert v. Rosenthal (termites case)
Unqualified factual assurances in a real estate transaction create liability even when made innocently. If a buyer relies on an innocent but material misrepresentation, the contract is voidable, the buyer may rescind, and the seller cannot retain the benefit of the bargain. A merger clause will not bar rescission, and the misrepresenter bears the risk of the statement’s falsity regardless of intent.
Fraud Defined
“Fraud” means, with respect to a party, an actual and intentional misrepresentation of a material existing fact with respect to any representation or warranty in Article III or Article IV, made by such party with actual knowledge of its falsity and made for the purpose of inducing the other party to act, and upon which the other party justifiably relies with resulting Losses.
Byers v. Federal Land Co.
A misrepresentation is actionable only if it is material, relied upon, and concerns a fact rather than an opinion. Statements of value for land without a definite market price are generally treated as opinions unless the speaker has superior knowledge or the buyer places special reliance on them. A seller’s ability to convey title may make misstatements about current ownership immaterial. However, misrepresentations—whether by words or conduct—about present possession are actionable when possession is valuable to the buyer. Here, the only material misrepresentation concerned possession, entitling the buyer to rescission.
DIFFERENCE BETWEEN FACTS AND OPINIONS
The knowability of the underlying fact at the time it was uttered “This is the best pizza in Lexington” vs. “This house is 1500 sq ft.”
Vokes v. Arthur Murray, Inc.
Statements framed as “opinions” become actionable when the speaker’s superior knowledge, unequal bargaining power, or manipulative conduct converts them into representations of fact. Persistent flattery and suppression of truth designed to exploit a vulnerable customer can justify rescission. Courts will not leave the parties “where they are” when inequitable practices undermine genuine consent.
REST. § 169 WHEN RELIANCE ON AN ASSERTION OF OPINION IS NOT JUSTIFIED
[A] recipient is not justified in relying on [an opinion] unless the recipient – (a) stands in such a relationship of trust and confidence to the person whose opinion is asserted that the recipient is reasonable in relying on it; (b) reasonably believes that, as compared with himself, the person whose opinion is asserted has special skill, judgment or objectivity with respect to subject matter; (c) is for some other special reason particularly susceptible to a misrepresentation of the type involved.
Duress
ELEMENTS OF NONDISCLOSURE
Fact not disclosed; Known by one party and not the other; Violates a basic assumption of the other party (i.e., is material); Violation of good faith and fair dealing.
Contract law is about voluntarily assumed obligations. If you agreed to assume an obligation because of a material, bad faith nondisclosure, not fair to hold you to that.
Duress
Improper (or “wrongful”) threat that leaves the party no reasonable alternative but to agree.
Two “flavors” of Duress
(1) Threats of physical harm inducing contractual assent (renders K void); (2) Threats of economic harm inducing contractual assent (renders K voidable).
Austin Instrument v. Local Corp.
A contract modification is voidable for economic duress when – A party makes a wrongful threat, such as threatening to breach by withholding goods; The threatened party has no reasonable alternative (cannot obtain goods elsewhere, and damages would be inadequate); The threat deprives the victim of free will.
Economic duress exists when a supplier exploits a buyer’s urgent need by threatening breach, leaving the buyer without reasonable alternatives. Hard bargaining is allowed; holding essential goods hostage is not.
Restatement § 175(1) – When Duress by Threat Makes a K Voidable
If a party’s manifestation of assent is induced by an improper threat by the other party that leaves the victim no reasonable alternative, the K is voidable by the victim.
Martinez-Gonzalez v. Elkhorn Packing Co. LLC
Under California law, economic duress requires – 1. A wrongful act (not merely hard bargaining); 2. The act must coerce a reasonably prudent person with no reasonable alternative; and 3. Causation: the agreement must not have been signed absent the duress. Economic duress is a narrow doctrine and does not apply simply because a worker faces difficult circumstances. Without a wrongful act or coercive threat, an agreement signed under rushed or imperfect conditions remains enforceable.
Unconscionability
Williams v. Walker-Thomas Furniture Co.
Unconscionability bars enforcement where a party with grossly inferior bargaining power enters a contract containing oppressively one-sided terms they could not reasonably understand or negotiate. Courts look to both the procedural unfairness (lack of meaningful choice) and the substantive unfairness (harsh, commercially unreasonable terms).
UNCONSCIONABILITY
Procedural Unconscionability
deficiencies in the contract process Examples: missing information, unequal bargaining power, take-it-or- leave-it Ks, buried print, lack of competition
Substantive Unconscionability
objections to the actual terms of the agreement Examples: departure from common/standard practice, inequitable distribution, grossly disproportionate cost/benefits
What remedies are available when a court finds a contract unconscionable
Void the whole contract; Strike the offending term; Reform the offending term. Courts have flexibility.
Public Policy
PUBLIC POLICY DEFENSE
A contract or term is unenforceable if either – Legislation says so; Interest in its enforcement is clearly outweighed by a countervailing public policy.
Hanford v. Connecticut Fair Ass’n
A contract will not be enforced if its performance would be contrary to public policy, including when performance would pose a serious danger to public health. Even when the contract’s promises are absolute on their face, courts may imply a condition excusing performance when circumstances create a significant risk to public welfare. Parties are not required to perform—and cannot recover for nonperformance—when the contract’s purpose has become incompatible with public welfare.
Interpreting Ambiguous & Vague Terms
CONTRACT INTERPRETATION
Rules for interpretation apply when there is a dispute over the meaning of an express term in the contract.
RESTATEMENT § 201(1)
Where the parties have attached the same meaning to a promise or agreement or a term thereof it is interpreted in accordance with that meaning.
AMBIGUITY
If the K is clear and unambiguous, court enforces terms as written. An ambiguity exists if – (1) the meaning of term is uncertain or; (2) the term is reasonably susceptible to more than one interpretation If K is ambiguous or unclear, court will determine the intent of the parties as to the meaning of the term using tools of interpretation.
SIMPLIFIED RESTATEMENT § 201(2)
If A and B attached different meanings to a contract term, A’s meaning prevails if, when the contract was made – a) A did not know that B had a different meaning in mind and B knew the meaning A had in mind; OR b) A had no reason to know that B had a different meaning in mind and B had reason to know the meaning A had in mind.
RESTATEMENT § 201(3)
Except as stated in this Section [201], neither party is bound by the meaning attached by the other, even though the result may be a failure of mutual assent.
Raffles v. Wichelhaus
When a material term is latently ambiguous — meaning it appears clear on the face of the contract but is actually capable of multiple reasonable meanings — and each party attaches a different reasonable meaning to that term, and neither party has reason to know of the other’s meaning, there is no contract because there is no mutual assent.
Oswald v. Allen
When each party attaches a different reasonable meaning to an ambiguous term, and there is no objective way to select between them, the agreement fails for lack of mutual assent. This is a modern reaffirmation of Raffles.
Frigaliment v. B.N.S.
When a contract term is ambiguous, courts apply an objective, multifactor analysis. The party claiming a narrow meaning must prove that meaning was shared. If the evidence is inconclusive or supports multiple reasonable interpretations, the broader or more objective meaning prevails.
Robinson v. Liberty Mutual Insurance Co.
Under Alabama law, courts interpret insurance policy terms using ordinary, nontechnical meanings. A creature may fall within an exclusion even if scientifically classified differently. Because an ordinary person would consider brown recluse spiders both “insects” and “vermin,” the exclusion applied and the claim was properly denied.
TOOLS OF INTERPRETATION (REST. §202; UCC §1-303):
- Terms of the Contract (plain meaning, technical meaning, context)
- Course of Negotiations (leading up to formation of the K)
- Course of Performance (conduct of parties under this K)
- Course of Dealing (parties’ interactions with each other in other Ks)
- Trade Usage / Custom (standard practices for that area, trade, etc.)
SPECIALIZED RULES (“MAXIMS”) OF INTERPRETATION:
Ejusdem generis (“of the same kind”)
when specific terms are followed by general terms, then the general terms should be interpreted as applying only to things of the same kind as those expressly mentioned Ex: “Seller will sell all cars, trucks, and other motor-powered vehicles.” This likely includes vans but not boats.
Interpretation against the drafter
if a party introduced an ambiguity, courts may interpret the terms against the party that caused that uncertainty Contract language often addresses this, e.g., “This Agreement shall be construed without regard to any presumption or rule requiring interpretation or construction against the drafter.”
Ambiguous terms = terms with more than one reasonable meaning
Vague terms = terms with multiple possible scopes
Gap Filling & Illusory Promises
Sun Printing & Publishing Ass’n v. Remington Paper & Power Co.
A contract is unenforceable when essential terms are left for future agreement without an objective method to supply them. Even a clear price ceiling cannot cure indefiniteness where the parties fail to agree on the duration of that price. Courts will not reconstruct commercial agreements by inserting reasonable terms when the contract shows the parties intended to negotiate them later.
CONTRACTS WITH MISSING TERMS
Rest. § 204: When the parties to a bargain sufficiently defined to be a contract have not agreed with respect to a term which is essential to a determination of their rights and duties, a term which is reasonable in the circumstances is supplied by the court.
UCC § 2-204 (3)
Even though one or more terms are left open a contract for sale does not fail for indefiniteness if the parties have intended to make a contract and there is a reasonably certain basis for giving an appropriate remedy.
Under the UCC, a court is more likely to imply a price if one is missing compared to the Restatement.
ILLUSORY PROMISES
A promise that is unenforceable due to indefiniteness or lack of mutuality because only one side is bound to perform. Occurs where one party technically binds itself to do nothing. Examples: “Seller will sell all the apples Seller wants to sell;” “Buyer may pay $5 for each apple she buys;” Common types of K at issue: output K, requirements K, and exclusive dealing K; Output K: buyer has to buy all the output of the seller (seller can produce a lot or zero; Requirement K: buyer buys all its required quantity from seller (buyer can buy a lot or zero;
UCC and Restatement take different approaches
SIMPLIFIED REST. § 77
ELEMENTS OF AN ILLUSORY PROMISE: A promise is illusory if: (1) a party purports to make a promise and (2) that party reserves the choice of alternative performances. Exception: all alternatives satisfy the element of consideration.
Eastern Air Lines, Inc. v. Gulf Oil Corp.: A requirements contract is valid under UCC § 2-306(1) when the buyer orders only the amount it actually needs in good faith, and the seller must supply those needs as long as the buyer’s demand is honest and not wildly different from past or estimated levels. These contracts are not invalid for uncertainty or lack of mutuality because the UCC requires both sides to act in good faith and follow fair commercial standards, which provides the needed certainty.
UCC § 2-306 (1). OUTPUT, REQUIREMENTS AND EXCLUSIVE DEALINGS
A term which measures the quantity by the output of the seller or the requirements of the buyer means such actual output or requirements as may occur in good faith, except that no quantity unreasonably disproportionate to any stated estimate or in the absence of a stated estimate to any normal or otherwise comparable prior output or requirements may be tendered or demanded.
UCC § 2-306 (2). OUTPUT, REQUIREMENTS AND EXCLUSIVE DEALINGS
A lawful agreement by either the seller or the buyer for exclusive dealing in the kind of goods concerned imposes unless otherwise agreed an obligation by the seller to use best efforts to supply the goods and by the buyer to use best efforts to promote their sale.
Wood v. Lucy, Lady Duff-Gordon: Courts may imply a promise to use reasonable efforts when necessary to give a contract meaning and prevent one-sided obligations. Mutuality and consideration can arise from duties implied by the nature of an exclusive agency agreement, even if not expressly stated.
Battle of the Forms
BATTLE OF THE FORMS
A party makes an offer subject to its standard terms and conditions and the other party accepts the offer, but according to its own terms and
conditions
Last Shot Rule
the party who fired the “last shot”—or who made the last offer—would have their terms and conditions applied to the contract. UCC 2-207: rejects Last Shot Rule.
UCC 2-207(1)
A definite and seasonable expression of acceptance or a written confirmation sent within a reasonable time operates as an acceptance, even though it states terms additional to or different from those offered or agreed upon – Unless acceptance is expressly made conditional on assent to the additional or different terms.
UCC 2-207(2)
The additional terms are construed as proposals for addition to the contract
Special Rule for K between Merchants
Terms automatically become part of K, Unless: Offer expressly limits acceptance to terms of the offer; Such terms materially alter K; Counterparty objects within reasonable time.
UCC 2-207(3)
If the parties’ conduct recognizes the existence of a K, there’s a K – Even if the parties’ writings don’t create a K. What are the terms of the K in such cases: Those on which the writings agree, and filler provisions in the UCC.
Step-Saver Data Systems, Inc. v. Wyse Technology
Under U.C.C. § 2-207, additional or different terms in later forms (like box-top licenses) do not become part of a contract unless: (1) the acceptance is expressly conditional on those terms, and (2) the other party expressly assents to them. Performance alone does not show assent. Only the terms agreed upon in prior communications + U.C.C. gap-fillers form the contract.
Union Carbide v. Oscar Mayer
Under UCC §2-207, additional terms in an acceptance (such as a clause in an invoice) are incorporated into a contract only if they do not materially alter the offer. A material alteration is one where consent cannot reasonably be presumed. Silence or prior course of dealing may indicate consent only for non-material terms. An indemnity provision that imposes unforeseeable or open-ended liability is a material alteration if not expressly agreed to.
Parol Evidence Rule
PAROL EVIDENCE RULE (“PER”)
A rule used during trial for breach of contract cases to determine whether something other than the written agreement (so-called “parol evidence” or “extrinsic evidence”) can be introduced at trial as evidence of the terms of the contract.
Thompson v. Libbey
Parol evidence is inadmissible to contradict, vary, or add terms to a written contract that the parties intended as a complete expression of their agreement (Integration Clause). If a written contract imports a complete legal obligation, it is conclusively presumed to contain all material terms, and oral testimony cannot modify it. Exceptions exist only if the writing is incomplete or does not purport to encompass the full agreement.
INTEGRATED AGREEMENTS
Rest. § 209(1) “An integrated agreement is a writing or writings constituting a final expression of one or more terms of an agreement.”
Rest. § 210
Completely and Partially Integrated Agreements – (1) A completely integrated agreement is an integrated agreement adopted by the parties as a complete and exclusive statement of the terms of the agreement; (2) A partially integrated agreement is an integrated agreement other than a completely integrated agreement; (3) Whether an agreement is completely or partially integrated is to be determined by the court as a question preliminary to determination of a question of interpretation or to application of the parol evidence rule.
Masterson v. Sine
Parol evidence may be admitted to explain or supplement a written agreement when the writing does not purport to be a complete integration or is silent on an issue, particularly for collateral agreements that “might naturally be made as a separate agreement.” A written option is presumed assignable unless the parties agree otherwise, but this presumption can be rebutted by extrinsic evidence showing the parties intended the option to be personal.
Integration Clause (“Merger Clause”) Example
“This document is the final and complete expression of the parties’ agreement and supersedes and previous oral or written agreements.”
Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co.
Extrinsic evidence is admissible to interpret a written contract whenever the language is reasonably susceptible to more than one meaning, even if it appears unambiguous. Contractual obligations flow from the intention of the parties, not merely the words used.
Trident Center v. Connecticut General Life Insurance Co.
Following Pacific Gas, no contract in California is completely immune from parol or extrinsic evidence; even unambiguous, fully negotiated agreements may be challenged to reveal the parties’ actual intent. THIS IS THE FEDERAL COURTS INTERPRETATION OF CALIFORNIA LAW, CALIFORNIA SUPREME COURT WOULD LIKELY SEE THIS DIFFERENTLY.
THREE-STEP ANALYSIS FOR PER
(1) Determine the level of integration of the writing; (2) Determine the admissibility of that evidence, which depends on the level of integration and type of evidence; (3) If evidence would be excluded based on the steps above, then determine whether any exception applies.
UCC §2-202. FINAL WRITTEN EXPRESSION
PAROL OR EXTRINSIC EVIDENCE: Terms with respect to which the confirmatory memoranda of the parties agree or which are otherwise set forth in a writing intended by the parties as a final expression of their agreement with respect to such terms as are included therein may not be contradicted by evidence of any prior agreement or of a contemporaneous oral agreement but may be explained or supplemented – (a) by course of dealing or usage of trade (§1-205) or by course of performance (§2-208); and (b) by evidence of consistent additional terms unless the court finds the writing to have been intended also as a complete and exclusive statement of the terms of the agreement.
Indemnification Clause
is a contractual provision that shifts financial responsibility for specific losses or damages from one party to another.
Good Faith and Fair Dealing
IMPLIED DUTY OF GOOD FAITH & FAIR DEALING
Rest. § 205
Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.
UCC §1-304
Every contract or duty within the UCC imposes an obligation of good faith in its performance and enforcement.
Goldberg 168-05 Corp v. Levy (lease cancellation if under sales case)
A contract that bases payment on performance metrics (such as gross receipts) carries an implied obligation to use reasonable efforts to generate those receipts. A party cannot intentionally undermine performance to trigger a contractual escape clause. The covenant of good faith and fair dealing prohibits conduct designed to deprive the other party of the benefit of the bargain.
Mutual Life Insurance v. Tailored Woman
Under a percentage-rent lease, a landlord is entitled to percentage rent only for sales made “on, in, or from” the premises covered by that lease. The implied covenant of good faith and fair dealing prevents a tenant from fraudulently diverting sales away from percentage-rent premises, but it does not restrict a tenant from reorganizing its business in ways that are permitted by the lease terms. If a landlord wants to prevent revenue-shifting or department relocation, the lease must expressly say so.
Stop & Shop, Inc. v. Ganem (guy closed shop and opened elsewhere but paid rent)
A landlord cannot rely on percentage-rent expectations to force a tenant to continue operating or to restrict competition unless the lease explicitly contains such obligations or the circumstances make the implication unavoidable. Substantial minimum rent and absence of express operational duties mean the tenant may close, relocate, or open competing stores as long as it acts in good faith and within the lease’s terms.
Monitoring costs
costs to oversee and monitor the activities of another to ensure they act appropriately.
Food Fair Stores Inc. v. Blumberg
In percentage leases, an implied covenant of good faith and fair dealing always exists. But whether a tenant has an implied obligation to operate the business in a particular way (e.g., to avoid competition, maintain sales levels, or refrain from opening new stores) depends entirely on the parties’ intent, determined by:
- The wording of the lease, and
- The circumstances surrounding its formation.
Courts will not impose broad or vague operational restrictions unless clearly intended.
KEY TAKEAWAY
GOOD FAITH: It’s not just about what a party does, but why they do it, and how that fits with the parties’ intentions and understandings in making the contract.
Warranties & Disclaimers
Vlases v. Montgomery Ward & Co. (diseased chickens)
Implied warranty liability under the UCC is not fault-based. Sellers are responsible for delivering merchantable, fit goods—even when defects are latent, undetectable, or unavoidable. The risk of unknown defects falls on the seller, not the buyer, unless the warranty is clearly and validly disclaimed.
EXPRESS & IMPLIED WARRANTIES
Warranties are promises or assurances about the facts, condition, quality, or other features of their subject matter. They help define the scope of the parties’ obligations under a K. Warranties can be express (e.g. written in the K) or implied.
Measure of recovery (UCC § 2-714)
Difference, at time & place of acceptance, between (i) value of accepted goods and (ii) value goods would’ve had as warranted.
UCC § 2-314
IMPLIED WARRANTY OF MERCHANTABILITY: If seller is merchant who deals in goods of this kind, there is an implied warranty of merchantability unless that warranty is expressly disclaimed (2-316). Described goods must at least be:
- Passable in the trade without objection
- Fit for the ordinary uses of such goods
- Of even kind and quality (within permitted variations)
- Adequately contained, packaged, and labeled
- In conformance with the promises or statements on the packaging
- If fungible goods, of fair and average quality within the description
UCC § 2-315
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE: When, at time of contract formation, seller has reason to know– any particular purpose for which goods are required. Buyer is relying on the seller’s skill or judgment to select or furnish suitable goods. There is an implied warranty that the goods are fit for such purpose, unless that warranty is excluded or modified.
CBS, Inc. v. Ziff-Davis Publishing Co. (closing doesn’t waive right to sue case)
A buyer may sue for breach of an express warranty even if it knows the warranty is false before closing, so long as the warranty was part of the bargain. Express warranties allocate risk as promises, not predictions, and their breach depends only on whether the warranted fact was true, not on buyer belief or reliance at closing.
Sandbagging
in contract law refers to a situation where a buyer asserts a claim for breach of a representation or warranty even though it knew, or had reason to know, before the deal closed that a representation was untrue.
Expression of opinion (and not a warranty) if
seller merely states an opinion or judgment; seller has no special knowledge, buyer may be expected to exercise their own judgment; it’s a general statement; goods are “the best”; “lots of demand”; etc.; General, vague and exaggerated statements about worth ( “you’ll be golfing like Tiger Woods with these clubs in hand!”)
UCC § 2-316(1)
If the seller makes statements or takes actions that create an express warranty, and also uses words or conduct that try to limit or cancel a warranty, the two should be interpreted in a way that makes them work together if reasonably possible. However, if interpreting them as consistent would be unreasonable, then the attempted limitation or cancellation does not take effect. This is subject to the UCC’s rules on parol or extrinsic evidence.
UCC § 2-316(2)
Except as allowed in subsection (3):
- To exclude or change the implied warranty of merchantability, the contract must specifically use the word “merchantability.” If the exclusion is in writing, it must also be conspicuous.
- To exclude or change the implied warranty of fitness for a particular purpose, the exclusion must be in writing and conspicuous.
- A statement like “There are no warranties which extend beyond the description on the face hereof” is enough to exclude all implied warranties of fitness.
UCC § 2-316(3)(A)
Unless the circumstances suggest otherwise, implied warranties are excluded when the contract uses terms such as “as is” or “with all faults”, or other commonly understood language that clearly alerts the buyer that no implied warranties apply.
UCC § 2-316(3)(C)
An implied warranty may also be excluded or modified based on the parties’ past dealings, their conduct during performance, or common practices in the relevant trade.
UCC § 2-316(3)(B)
If, before the contract is made, the buyer examines the goods (or a sample or model) as much as they want, or refuses to examine them, then there is no implied warranty for defects that a reasonable examination should have revealed.
Mistake of Fact
MISTAKE
Mistake is an erroneous belief as to facts existing at the time of contracting (Rest. §151). In certain circumstances, allows a party to void a contract
Two kinds of mistake
Bilateral / Mutual (Rest. §152); Unilateral (Rest. §153).
ELEMENTS OF A BILATERAL (“MUTUAL”) MISTAKE (REST. §152)
To rescind contract due to bilateral mistake, a party must establish that:
- Both parties were mistaken when contract was made
- Mistake goes to basic assumption underlying the contract
- The mistake materially affects the exchange
- Said party does not bear the risk of a mistake
WHEN A PARTY BEARS THE RISK (REST. §154)
When the contract allocates the risk to that party; Conscious ignorance; Court determines it is reasonable to allocate the risk to that party.
Sherwood v. Walker (Rose 2d of Aberlone)
stands for the principle that mutual mistake allows rescission when the mistaken fact changes the essential nature of the contract’s subject matter, not merely its value. Here, a cow thought to be barren—but actually a breeder—was considered so different in kind that there was no true meeting of the minds.
Wood v. Boynton (Topaz to Diamond case)
stands for the rule that a sale will not be undone merely because both parties were wrong about the item’s value. If the seller knowingly sells a specific item and the buyer commits no fraud, the seller bears the risk of having made a bad deal—even if the item turns out to be far more valuable.
Lenawee County Board of Health v. Messerly (septic system bad + multiple owners’ case)
Even when both parties are wrong about a fundamental fact, rescission is barred if the contract assigns the risk of the mistake. In this case, the “as is” clause meant the buyers bore the risk of hidden defects, so no rescission was allowed. The court adopts a modern Restatement approach: mutual mistake is not automatically fatal—risk allocation controls.
Drennan v. Star Paving (accidental subcontract miscalculation)
A subcontractor’s bid becomes irrevocable under promissory estoppel (Restatement § 90) when the general contractor reasonably and foreseeably relies on it in preparing the prime bid. A subcontractor cannot revoke—even if the bid was mistaken—unless the general contractor knew or should have known of the mistake.
MISTAKES IN WRITING (SCRIVENER’S ERRORS)
Court may reform the K to reflect parties’ intent (Rest. §155). Depending on jurisdiction, court’s ability to reform a K may not
be affected by: Parol evidence rule; Statute of frauds.
Changed Circumstances
IMPOSSIBILITY
A party can successfully assert impossibility when: 1. After K formation; 2. A supervening event occurs without fault of the party seeking relief; 3. The event causes a party’s performance to become impossible/impracticable; 4. Non-occurrence of the supervening event was a basic assumption on which the K was made; 5. The party seeking relief does not bear the risk of the changed circumstance.
CAN & American Casualty v. Arlyn Phoenix (actor who passes)
Death—whether accidental, negligent, or self-caused—always discharges a personal services contract under the doctrine of impossibility. Courts will not analyze whether the decedent was “at fault” for their own death. If parties want obligations to survive or liability to attach in cases of self-induced death or risky behavior, they must contract for it expressly.
Transatlantic Financing Corp. v. United States (Canal ship case)
Commercial impracticability requires more than increased expense or inconvenience—performance must be so excessively burdensome that enforcing the contract would be commercially senseless. Where alternative routes or methods remain viable (even if costlier), the doctrine does not apply. Increased cost alone, without more, is not enough to excuse performance.
UCC IMPRACTICABILITY (UCC §2-615)
A seller’s delayed delivery or partial or complete non-delivery of goods is excused when, after K formation: Performance has become impracticable due to:
- Occurrence of event or circumstance, the non-occurrence of which was a basic assumption of the parties in making the K, or
- Good faith compliance with applicable regulation or order.
If seller’s performance is only partially affected, seller allocates other production and deliveries among customers and seller in a fair and reasonable manner. Seller “seasonably” notifies buyer of delay or non-delivery and buyer’s estimated share (if production/delivery allocated). Seller has not agreed otherwise.
Frustration of Purpose
A party can successfully assert frustration of purpose when: 1. After K formation; 2. A supervening event occurs without fault of the party seeking relief; 3. The event causes a party’s principal purpose in entering the K to become substantially frustrated; 4. Non-occurrence of the supervening event was a basic assumption on which the K was made; and 5. The party seeking relief does not bear the risk of the changed circumstances.
Krell v. Henry (watch king’s coronation case)
Even when contractual performance is still physically possible, a contract may be discharged if an unforeseeable event wipes out the entire shared purpose of the transaction. Frustration of purpose focuses not on impossibility but on whether the very reason both parties entered the contract has vanished.
Material / Total Breach and Repudiation
Breach
is any performance not performed under its contractual duties. Not all breaches should be treated the same.
Under common law
If substantial performance (non-material breach) occurs, counter party may get damages but is obliged to stick to the K and perform its side of the bargain.
If a breach is material / total, counter party may
a) refuse to tender any part of its own performance still outstanding and terminate the K and sue for damages (expectation or reliance); or b) have court rescind the K and recover restitution for unjust enrichment.
B&B Equipment Co. v. Bowen
A party may rescind a contract for breach only if the breach is material—i.e., it goes to the “very substance or root” of the agreement. Materiality depends on whether: 1) the nonbreaching party received the essential benefit of the bargain; 2) whether damages can adequately compensate injured party; 3) the extent of partial performance of breaching party; 4) extent of hardships on party failing to perform; 5) the negligent, willful, or innocent behavior of breaching party; and 6) the likelihood of future performance by breaching party.
Was the Breach Material
Extent to which no breacher benefited as expected; whether damages would adequately compensate the non-breacher; hardship to breacher for rescinding the K (or reverse) includes extent of performance); chance of breacher to fix the issue; the good or bad faith of the breacher.
Lane Enterprises, Inc. v. L.B. Foster Co. (contaminated paint coat case)
A small withholding of payment is not automatically a material breach. But when genuine performance concerns exist, a party may demand adequate assurances, and failure to provide them can amount to repudiation. Lane’s refusal to reassure Foster—after documented performance problems—made Lane the breaching party.
Anticipatory Repudiation
Essentially indicating that you aren’t going to perform. This is treated as a breach and gives the other party the right to sue before performance is due. Termination allowed only if material (main purpose of K) repudiation.
- Anticipatory Repudiation must be clear and definite. Not enough to request cancel or express uncertainty as to ability to perform.
If you become insecure about the other’s party willingness/ability to perform, and that insecurity is reasonable: you make ask for adequate assurances of performance, and if these adequate assurances can’t be given you can withhold performance until assurance is given. (Rest § 251; UCC § 2-609)
Jacobs & Young v. Kent (not the pipes I asked for issue)
establishes the modern substantial performance doctrine: if a contractor's deviation is innocent and minor, the contractor still recovers the contract price, and damages are limited to diminution in value when repair would cause economic waste. This case is a cornerstone for balancing strict contract rights with equitable, practical outcomes.
Good place to remember the expectation damages calculation method.
Material Breach Under UCC – Perfect Tender Rule
Perfect Tender Rule
A buyer may cancel a contract for the sale of goods if the goods didn’t conform precisely to the parties’ contract, following a reasonable period in which the seller had the opportunity to cure the defects. You can reject in whole, accept in whole, or accept in part and reject the rest, and await for potential conformity of the goods.
Timing of rejection matters
Before the date required in K –> the right to cure is unconditional. After date required in K: Seller has right to cure within a further reasonable time if the seller reasonably believed goods would be acceptable with or without money allowance. In either case, seller must “seasonably” notify buyer of intent to cure.
Reason for Perfect Tender Rule Becoming More Lenient Over Time
We don’t always expect perfection of products in a world of mass-produced goods, so long as we get the intended use out of it and/or there is an ability for the product to be perfected. Obviously depends on type of good and reason for purchase. There is opportunity to cure until deadline date to perform (for example, you get goods early but they aren’t up to standard).
Ramirez v. Autosport (RV and waiting forever fiasco)
confirms that the U.C.C. preserves perfect tender: buyers may reject goods for any defect. But sellers get a meaningful second chance to cure. When the seller fails to cure within a reasonable time—even for small defects—the buyer can cancel the contract and obtain restitution.
2
Information Theory
Who owns what, and how do we know? There is a database of who owns what based on accounts of others or records. You can’t just infer possession means ownership.
5 Theories of Property:
- Protect First Possession: Firat person to take possession of something.
- Encourage Labor: Acquiring something through your labor.
- Maximize Societal Happiness: Recognize property to maximize happiness of society.
- Ensure Democracy: Owning property promotes democracy as person would have economic security necessary to make political decisions that serve the common good.
- Facilitate Personal Development (personhood): Property is necessary for a person’s personal development as they see it as part of themselves.
THESE 5 THEORIES BECOME THREE
Welfare Theory of Economics
purpose of property law is moving assets with purpose of selling at highest price for lowest labor cost possible (profit max point on graph). Included in this is first possession
- First Possession incentives people to invest and take care of their property. By possessing it first they are creating something of value.
- Personhood: As stated before, property is necessary for a person’s personal development as they see it as part of themselves.
Pierson v. Post (fox
Capture only occurs when the resource is actually in your possession OR (in the case of live resources) you’ve mortally wounded/maimed the resource.
Law of Capture. Applies to property that moves.
White v. Samsung (Robot Dana White)
West coast centered law regarding question of likeness. However, main takeaway is use of main rights. In this case right to exclude. Artificial scarcity created to protect White’s personhood financial interest.
Main Rights
Right to Exclude, Right to Transfer, Right to Use, Right to Destroy. Basically all but right to transfer are technically part of right to exclude.
Johnson v. M’Intosh (Native American Case)
Law & Land always connected. If you can’t transfer land (like native americans in the case) then your only option is to sell cheap as you have one buyer.
Law of Conquest
If it doesn’t move.
Moore v. Regents of California (cell development case)
As soon as a portion of your body is removed from yourself, it is no longer yours (transfer). The plaintiff argued personhood theory; however, defendant argued back using welfare theory by stating that use of Moore’s cells for new technology advances health of community.
- Government trying to discourage the option of monetizing the sale of body parts. Therefore, although there was a lack of consent it’s not like he could have sold his cells to others. Plaintiff won on consent but not on the question of property loss.
Rule
Property ends at the human skin.
The Four Core Property Rights
- Right to Exclude: Often described as the most essential stick; allows owners to control access.
- Right to Use: Broad but limited by nuisance, regulation, and public policy.
- Right to Transfer: Includes sale, gift, and devise; subject to restraints on alienation.
- Right to Destroy: Recognized but heavily constrained when destruction harms others or society.
Core case to the right to exclude - Jacque v. Steenberg homes, Inc. (trespass of trailer home)
Previously it was ruled tha punitive damages can’t be awarded if no nominal damages. However, that would destroy property law as the core tenant to property law is the right to exclude. No right to exclude = no property, so punitive damages allowed in addition to nominal damages to teach a lesson (even if no damage to property).
Important Legal Saying – Wind Under Wings
Look for a way for the court to give me what I want.
State v. Shack (government agents try speaking to migrants)
This is a 1st amendment case, it’s just never explicitly said. Private law is trampled on by public law if it can fall within state/federal scope or deny a constitutional right. Here, the right denied was the right of association. Contracts on property involving the housing humans cannot contract around certain constitutional rights. It would be unconstitutional and against public policy to restrict certain rights of tenants / workers. Basically, some private law situations have gradation against what is within public law scope. Back to property law application, there was no invasion of possessory right from the lawyers to the landowner; therefore, there was no trespass.
Private Nuisance
is a civil wrong (tort) involving substantial and unreasonable non-trespassory interference with an individual's use or enjoyment of their property.
Tranfield v. Acuni-English (2019)(Tree Fencing Case)
The issue is whether the defendant’s installation of trees on the boundary line between her neighbor constitute a spite fence — therefore, interfering with Tranfield’s enjoyment of their property (not being able to see nice view). Court said yes. When a defendant installs trees with a malicious motive and would not have installed the trees without that motive, a spite fence is created. The tree fence is therefore kept to annoy the owners/occupants of adjoining land, creating a private nuisance. The Acuni-English’s privacy interest did not outweigh their motives.
Prah v. Maretti (1982)(solar panel neighbor case)
A landowner with solar heating sued a neighbor when the neighbor’s proposed construction threatened to block the sunlight across his property. The black letter law here is that the private nuisance doctrine applies to determine whether a landowner has a right to protect their access to sunlight. Keep in mind that this doctrine is case-specific.
Prescriptive Easement
is a property right acquired through open, notorious, adverse, and continuous use of another person's land for a legally defined period (often 10–20 years). It is essentially a "trespasser" gaining legal access rights, but not ownership, by consistently using land without the owner's permission.
Eyerman v. Mercantile Trust Co. (1975)(Historic House – Don’t Destroy Case)
Neighbors of a deceased woman sought the court’s help in preventing the demolition of the decedent’s home, despite a provision in the decedent’s will asking that the home be razed and the empty lot sold. By razing the home, the empty land would be worth way less and therefore hurt other people’s property value as well. The taking of property by inheritance or a will is not an absolute right, but is one created by the laws of the state, and the state may foreclose that right or make it conditional, within constitutional limits. One has more control over the use of her property while they are alive. Ex: a man may not have to cultivate his land, even if the public would benefit from it, but if he attempts to compel his successor to act in the same way against the public good, the law will step in. PUBLIC POLICY VIOLATION.
Note
if there is a rational/subjective reason for an action against the public welfare in a will, the court is more likely not to follow the Eyerman precedent as tightly.
Modern Regulatory Limits
- Zoning: Government can regulate land use to promote orderly development.
- Environmental regulations: Limit harmful uses (pollution, habitat destruction).
- Other statutes: Historic preservation, anti-discrimination rules, etc.
In order to have title by adverse possession, the plaintiffs must show that their possession was hostile, actual, open and notorious, exclusive, and continuous over the statutory period.
Running of Statutory Period
The statute of limitations begins to run when the claimant goes adversely into possession of the true owner’s land property (the point in which the true owner can bring suit). Suit must be pursued to judgement to stop the period from running. Judgement can be after statutory period runs out so long as suit was commenced before it did.
Actual Possession Gives Notice
Essentially, the true owner must have or should have known, based on circumstances, that a trespass is occurring (open and notorious). If they are unaware, that’s typically a them problem for not keeping up with what they own, because it was obvious that someone else was claiming and using the land.
Exclusive Possesion
The adverse possessor can not have shared property with true owner or the public at large at any time (but two people can work together to adversely possess).
Open and Notorious
Possession is open and notorious when it is the kind of use the usual owner would make of the land.
Hostility
The adverse possessor has to claim that they are the undisputed true owner of the property. Cannot concede ownership or any rights to the true owner of the property. Can be done with exclusionary acts that keep true owner off the property as well. Does not have to be malicious or nasty behavior, just hostile in claiming “this is mine, not yours.”
Continuous
The adverse possessor cannot claim to or be shown to have lost possession of the property during the time of the statutory period. They need to have continuously occupied the property and claimed ownership.
Color or Title (see Kunto case)
This is an exception to the rule of actual possession. An adverse possessor who possesses only part of the property may obtain title to the whole if: 1. They enter under color of title; and 2. If the possessed portion has a reasonable relation to the whole property. Color of title itself is a written document that purports to give title but that for some reason is legally ineffective to so. The adverse possessor must still in good faith believe that they have lawful title to the property. However, in color of title cases, the adverse possessor need not have good faith throughout the period of possession, so long as there was initial good faith,
Gurwit v. Kannatzer (1990)(Wooden Vacant Land Assumed to be theirs)
Gurwit’s were a couple who mistakenly believed a wooded, unfenced tract was part of their own land and proceeded for more than ten years to use it openly—cutting firewood, clearing brush, posting “no trespassing” signs, and excluding others. When the record owners’ successors later attempted to sell the parcel, the Gurwits claimed title by adverse possession. The court held that the Gurwits satisfied all elements of adverse possession and therefore acquired title, emphasizing that “hostility” requires only a claim of right, not ill will or intentional trespass.
Van Valkenburgh v. Lutz (1952)(Shack in the middle of others' land case)
Lutz had long used and partially improved a triangular parcel adjacent to his home—building a small shack, cultivating a garden, and traveling across it—despite never holding record title. When Van Valkenburgh purchased the lot and sought to eject him, Lutz claimed title by adverse possession. The New York Court of Appeals rejected the claim, holding that Lutz failed to prove the statutory requirement of “actual occupation” because his use was limited, the improvements were insubstantial, and he had previously acknowledged Van Valkenburgh’s ownership in earlier litigation (in the easement lawsuit). The court concluded that these facts defeated both the continuity and hostility elements necessary for adverse possession.
Fulkerson v. Van Buren (1998)(Kick out Church from property case)
involved a church congregation that had occupied and used a parcel of land for many years—holding services, making improvements, and treating the property as its own—despite the fact that Fulkerson held record title. When Fulkerson sought to remove them, the congregation claimed title by adverse possession. The Arkansas Court of Appeals rejected the claim, holding that although the congregation’s use was open, continuous, and exclusive, it failed to prove the required element of hostility because its pastor had expressly acknowledged Fulkerson’s ownership and sought permission to remain, demonstrating that the congregation did not possess the land under a claim of right.
Tioga Coal Co. v. Supermarkets General Corp (1988)(Coal Co. locks gate case)
involved a private alley that Tioga had openly controlled for more than twenty years—installing a gate, locking it, maintaining the area, and excluding others—despite lacking record title. Tioga Coal believed it belonged to the city, when in reality it belonged to Supermarkets General. When Supermarkets General later purchased the surrounding land and challenged Tioga’s use, Tioga claimed title by adverse possession. The Pennsylvania Supreme Court held that Tioga satisfied the elements of adverse possession, emphasizing that the objective conduct of the possessor—not the possessor’s subjective belief about who owned the land—determines hostility.
Howard v. Kunto (1970)(Beach house swapping case):involved a group of summer homeowners who discovered that, due to a decades‑old surveying error, each family’s deed described the wrong waterfront lot. The Kuntos occupied and improved the cottage they believed they owned, but their deed actually described an adjacent parcel. When the record owner sought to eject them, the Kuntos claimed adverse possession. The Washington Court of Appeals held that the Kuntos satisfied the statutory period through tacking, because their predecessors had continuously occupied the same property under color of title, and that summer‑only use was sufficiently continuous given the nature of the property as a seasonal residence. As a result, the court recognized the Kuntos’ title by adverse possession.
I. Conceptual Distinctions of Property Status
The classification of found property dictates the legal rights of the finder versus the owner of the premises (locus in quo). An owner’s title persists for lost or mislaid property, but is relinquished upon abandonment.
Lost Property
- Definition: Property the owner has accidentally and involuntarily parted with and does not know where to find.
- Key Factor: The location where the item is found. If a reasonable person would conclude the item was placed there unintentionally (e.g., a wristwatch on the floor), it is lost.
Mislaid Property
- Definition: Property intentionally placed somewhere by the owner, who subsequently forgets where it is.
- Key Factor: If the location suggests intentional placement (e.g., a briefcase on a desk or counter), it is mislaid.
Abandoned Property
- Definition: Property for which the owner has voluntarily relinquished all ownership, intending to give up both title and possession, without reference to a specific person or purpose.
- Distinction: Mere loss of possession does not equate to abandonment.
- Acquisition of Title: Unowned upon abandonment. A new party acquires title by:
- Actual or constructive dominion and control.
- Intent to assert ownership.
- Escheat: State assumption of title over abandoned property held by an intermediary (e.g., unclaimed bank funds). For intangible property, the location is the domicile of the property owner.
General Rules of Possession and Finders' Rights
Once property is classified, specific rules determine possessory rights against the whole world, excepting the true owner.
Finder of Lost Property
General Rule
The finder acquires right of possession. Requires physical control coupled with the intent to assume dominion.
Exceptions (Rights shift to the owner of the locus in quo):
- Trespassers: Denied possessory rights to deter trespassing.
- Highly Private Locus: E.g., a private home. The locus owner acquires rights based on the assumption of constructive possession of everything in the private space and the likelihood of the true owner returning there. (Does not apply to spaces open to the public).
- Employer-Employee: An employee who finds an article in the course of directed employment generally surrenders possessory rights to the employer.
- Buried Articles: The owner of the real property constructively possesses everything beneath the surface.
Finder of Mislaid Property
- General Rule: The finder acquires no possessory rights.
- Locus in Quo Right: The owner of the premises where the property was mislaid gains the right of possession against all but the true owner.
- Rationale: To safeguard the property for the true owner, who is likely to retrace their steps to the location of intentional placement.
Rights and Duties of the Possessor
- Status: Acts as a quasi-bailee/gratuitous bailee.
- Rights: Title is superior to everyone except the true owner; can sue for return if wrongfully taken.
- Duties:
- Duty to Find Owner: Must attempt to return if the owner is known or reasonably discoverable (failure risks larceny/conversion).
- Duty of Due Care: Must safeguard the goods; liable for negligence.
- Acquiring Title: The possessor acquires permanent title only after a sufficient time renders the goods legally abandoned or the statute of limitations expires.
Treasure Trove
Definition
Concealed gold or silver (coin, plate, bullion, or paper representations) with an unknown owner.
Common Law
Belonged strictly to the finder (even if a trespasser).
Modern View
Most jurisdictions abandon the specific treasure trove doctrine and apply standard lost property rules.
Uniform Unclaimed Property Act
- Application: Dictates disposition of intangible property and safe deposit boxes.
- Mechanism: Presumed abandoned after a statutory period (typically 5 years). Property is turned over to a state administrator for sale, relieving the holder of liability.
Gifts Causa Mortis
Concept and Essential Elements
A gift causa mortis is one given in contemplation of death. For the gift to be valid, the following elements must exist:
Present Mental Capacity
The donor must have the same present mental capacity to make the gift as is required for a gift inter vivos.
Gift Must Be Personal Property
Real property cannot be conveyed as a gift causa mortis in most jurisdictions.
Delivery and Acceptance
The delivery and acceptance requirements that are essential to the validity of a gift inter vivos are also required for gifts causa mortis.
Identical Test
To accomplish a gift causa mortis, the requisite donative intent, in addition to delivery and acceptance of the subject matter of the gift, is required. The rules relating to delivery and acceptance are identical for both gifts inter vivos and gifts causa mortis, with one exception.
Exception—Delivery by Deed of Gift (Symbolic Delivery)
There are a significant number of states that hold that the donor may not accomplish a gift causa mortis by virtue of symbolic delivery. The rationale given is that execution of a written document that acts as a testamentary device should be sufficient to vest title in a donee only if drawn in compliance with the Statute of Wills. All other forms of delivery previously indicated as being acceptable for the valid accomplishment of a gift inter vivos will be sufficient and acceptable for the valid accomplishment of a gift causa mortis.
Anticipation of Death
The definition of a gift causa mortis includes the requisite that the donor be in contemplation of imminent death. As originally envisioned, the donor must have been suffering from an illness that realistically confronted her with a fear of death.
Imminence
There is recognition of a valid gift causa mortis as long as the donor was suffering from an actual illness that threatened her life. The mere abstract fear of death from a future cause (e.g., fear of flying, fear of death in war, etc.) is not sufficient.
Death as Anticipated
To validate a gift causa mortis, older cases held that the donor had to die as anticipated. If she died from some other cause, some early decisions indicated that the gift was revoked. There has been, however, considerable liberality given to this concept in more recent decisions.
- EXAMPLE: A victim of an automobile accident is placed in an ambulance. In fear of death from the injuries sustained in the accident, she attempts to make a gift causa mortis. En route to the hospital the ambulance is struck by a train and the donor is killed. Can it be said that the donor died “as anticipated”? The more modern authorities would say yes.
Recovery
Gift Is Revoked by Operation of Law
An important ingredient in determining the validity of the gift causa mortis is the failure of the donor to recover from the illness that placed her in contemplation of death. Once it can be said that the donor “recovered,” the gift is revoked by operation of law. As long as the donor has failed to recover, the gift is not revoked. The concept of “recovery” predominates in most modern cases. As in the example given above, the donor did not recover from the illness that prompted the attempted gift causa mortis. Therefore, one who attempts a gift causa mortis in contemplation of death will have made a valid gift as long as she fails to recover, though the precise cause of death is different.
Compare—Deed to Real Property Not Revoked
Because the property given must be personal property, a deed to real property executed and delivered in contemplation of death is not revoked as a gift causa mortis when the donor recovers.
Absence of Revocation
In addition to the failure of the donor to recover, a requirement of a valid gift causa mortis is that it not be revoked.
Affirmatively by Donor
The definition of the gift causa mortis contemplates that the donor has passed title to the donee. However, it is a revocable transaction. The donor reserves the right, as a condition subsequent, to revest ownership in herself by any affirmative act manifesting such intention.
Failure of Donee to Survive
The gift causa mortis is given on the essential condition that the donee survive the donor. Should the donee fail to survive the donor, the gift is revoked by operation of law.
Creditor Claims
A gift causa mortis is always subject to the claims of creditors of the donor’s estate.
Relevant Cases:
Armory v. Delamirie (1722)
- Context: A finder of a jewel sued a jeweler who attempted to keep the stones. The finder prevailed over the subsequent possessor. Promotes peaceable possession and entrustment of goods.
- Rule (Prior Possessor Rule): The finder of lost property has a title superior to all but the true owner.
Hannah v. Peel (1945)
- Context: A soldier found a brooch in a requisitioned house the owner had never lived in. The court favored the finder, distinguishing from cases where property is buried (Elwes), found in a public shop (Bridges), or found by an employee of the locus owner (Sharman).
- Rule: If the owner of a property has never physically occupied the land, a finder of unattached lost property on that land has a superior title to the landowner.
McAvoy v. Medina (1866)
- Context: A wallet was left on a barbershop counter. The court classified it as mislaid, giving the shop owner the duty to safeguard it for the true owner's expected return.
- Rule: A finder has no title to property that is mislaid; it must remain with the premises owner.
Benjamin v. Lindner Aviation, Inc. (1995)
- Context: An employee found $18,000 hidden inside an airplane wing. Because it was carefully concealed, it was deemed mislaid rather than abandoned or lost. Title went to the bank that owned the repossessed plane, not the employee.
- Rule: Mislaid property is entrusted to the owner of the premises where it is found (the aircraft), not the finder.
Gruen v. Gruen (1986)
- Context: A father gifted a painting to his son via letter but kept it for his lifetime. The court held that title to the future interest (remainder) vested immediately upon the gift, satisfying the delivery requirement given the nature of a future interest.
- Rule: A valid inter vivos gift of a chattel may be made even if the donor reserves a life estate and the donee never takes physical possession.
In re Estate of Oaks (2020)
- Context: A veteran suffering from PTSD committed suicide and left a handwritten note giving all possessions to his long-term partner. The court awarded the estate to the partner over the decedent's estranged daughter, ruling that the suicide was a consequence of his documented mental illness rather than a disqualifying act.
- Rule: Mental illness (e.g., depression or PTSD) may be considered a "present illness" under the doctrine of gift causa mortis. A gift made in anticipation of suicide is valid if the suicide is the direct result of such a present mental illness.
OVERVIEW OF INTELLECTUAL PROPERTY
Intellectual property (IP) law protects the creations of the human mind and today accounts for an estimated 80% of the value of many publicly traded corporations, contributing over $8 trillion annually to the U.S. economy. Unlike tangible property, most intellectual property is a public good — it can be consumed by many people simultaneously without diminishing its value. This creates a fundamental tension: without legal protection, creators have little incentive to invest in producing works that others could freely copy. IP law responds by granting limited monopolies — exclusive rights — to incentivize creation. But monopolies also carry risks: excessive prices, suppressed competition, and stunted cultural progress.
The four main types of IP are
Copyrights (original works of authorship); Patents (new inventions); Trademarks (source-identifying marks); and Trade Secrets (valuable confidential information). All arise under a first-in-time system, grant the right to exclude, and are governed by federal statutes increasingly shaped by international law.
The Common Law Baseline - No General IP Protection
At common law, intellectual property rights were generally not recognized. As Justice Brandeis stated in International News Service v. Associated Press, 48 U.S. 215 (1918): the noblest human productions — knowledge, truths, ideas — become free as the air upon voluntary communication. The common law recognized no general right to prevent copying absent a specific statutory or equitable exception.
This baseline was illustrated in Cheney Brothers v. Doris Silk Corp., 35 F.2d 279 (2d Cir. 1929), where silk fabric designs — too ephemeral for design patents and uncopyrightable — were freely copied by a competitor. Judge Learned Hand refused to create a common-law intellectual property right, reasoning that doing so would conflict with the comprehensive statutory schemes Congress established for copyrights and patents. The court acknowledged the plaintiff suffered a real grievance, but concluded that broader social interests — including free competition and the public domain — outweigh the individual creator's claim to protection outside the established statutory frameworks.
COPYRIGHT LAW
Constitutional Basis and Purpose
Copyright law flows from the Constitution's grant of power to Congress to promote the Progress of Science and the useful Arts by securing for limited Times to Authors exclusive rights in their Writings. U.S. Const. art. I, § 8. The utilitarian goal is to incentivize authors to create works that benefit the public. Copyright protection arises automatically upon satisfying three requirements under 17 U.S.C. § 102(a): (1) Originality — the work must be independently created and possess at least a minimal degree of creativity; (2) Work of Authorship — one of eight statutory categories (literary, musical, dramatic, pantomimes/choreographic, pictorial/graphic/sculptural, motion pictures, sound recordings, architectural); and (3) Fixation — the work must be embodied in a tangible medium of expression for more than transitory duration. Registration and notice are not required for a copyright to be valid.
Duration - Eldred v. Ashcroft
The basic copyright term for new works is the author's life plus 70 years, following Congress's enactment of the Sonny Bono Copyright Term Extension Act (CTEA) in 1998, which extended all existing and future copyrights by 20 years. The Supreme Court upheld the CTEA in Eldred v. Ashcroft, 537 U.S. 186 (2003). The majority (Ginsburg, J.) held that the word 'limited' in the Copyright Clause does not mean 'fixed' or 'inalterable,' and that Congress has broad, deferential authority over copyright duration as long as each term remains bounded.
Justice Breyer dissented forcefully, arguing that the CTEA
(a) effectively creates a perpetual copyright for existing works by extending terms that have already been granted; (b) confers its benefits primarily on heirs, estates, and corporate successors — not authors — and thus provides no meaningful creative incentive; (c) imposes real expression-related harms by restricting dissemination of works and inhibiting new forms of technological access; and (d) is constitutionally suspect because, for existing works, 'the statute creates no economic incentive at all.' Works like those of Gershwin and Frost are prevented from entering the public domain — the reservoir of freely usable creative works — for an additional 20 years, benefiting corporations and heirs while harming educators, historians, and the general public.
Originality - Feist Publications, Inc. v. Rural Telephone Service Co., Inc.
In Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991), the Supreme Court (O'Connor, J.) held that a white pages telephone directory — listing names, towns, and telephone numbers alphabetically — lacked the originality required for copyright protection. The Court established that originality is the sine qua non of copyright: a work must be independently created and possess at least a minimal spark of creativity. Originality does not require novelty, but it does require more than de minimis creativity.
The idea/expression dichotomy is a bedrock principle
copyright protects the expression of ideas, not the ideas, facts, systems, or methods themselves. Facts are not copyrightable because they are discovered, not created. However, a factual compilation may be copyrightable if the selection, coordination, and arrangement of the facts reflects sufficient originality — even if the individual facts are not protectable. Rural's alphabetical arrangement of subscriber data was entirely mechanical, reflecting no creative selection or arrangement; accordingly, Feist's copying of the raw data did not infringe Rural's copyright. Copyright in a compilation extends only to the original elements, leaving the underlying facts freely available to all.
Infringement and Fair Use
To establish copyright infringement, the plaintiff must prove
(1) ownership of a valid copyright, and (2) copying of constituent elements that are original to the plaintiff. The most important defense is fair use under 17 U.S.C. § 107, which permits minor use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research, where the use does not materially affect the rights of the copyright owner. The four fair use factors are: (1) the purpose and character of the use (commercial vs. educational; transformative vs. reproductive); (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use on the potential market for the original work. Additionally, secondary liability may attach to a distributor who promotes a device with the object of encouraging infringement by third parties.
PATENT LAW
Patent Basics and Requirements
Patent law exists to promote the Progress of Science and the useful Arts by offering inventors exclusive rights for a limited period in exchange for public disclosure of their inventions. The patentee holds the right to exclude others from making, using, or selling the patented invention for 20 years from the filing date. Federal law authorizes patents for anyone who 'invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.' 35 U.S.C. § 101. Importantly, only human beings — not AI systems — may be listed as inventors.
An applicant must satisfy five requirements
(a) Patentable Subject Matter — one of four categories (process, machine, manufacture, composition of matter); abstract concepts, mathematical algorithms, and laws of nature cannot be patented; (b) Utility — the invention must offer actual benefit to humans; (c) Novelty — the invention must not have been previously known, used, published, or patented before the application date; (d) Nonobviousness — the differences between the invention and prior art must not have been obvious to a person of ordinary skill in the field (assessed per Graham v. John Deere Co., considering scope of prior art, differences, skill level, and secondary considerations like commercial success); and (e) Enablement — the application must describe the invention in sufficient detail for a skilled person to make and use it.
Patentable Subject Matter - Diamond v. Chakrabarty
In Diamond v. Chakrabarty, 447 U.S. 303 (1980), the Supreme Court (Burger, C.J.) held that a genetically engineered bacterium capable of breaking down crude oil was patentable subject matter. The Court construed 35 U.S.C. § 101 broadly — Congress intended statutory subject matter to 'include anything under the sun that is made by man' — and distinguished between naturally occurring phenomena (not patentable) and human-made, nonnaturally occurring products with distinctive characteristics (patentable). Chakrabarty's bacterium was not nature's handiwork but his own, with markedly different properties from any naturally occurring organism.
Justice Brennan dissented, arguing that where Congress had not expressly authorized patents on living organisms, courts should leave this policy-laden question to the legislature. The aftermath of Diamond established that genetically engineered animals are also patentable (over 700 patents issued), but the PTO declined to patent a 'humanzee' (human-chimpanzee hybrid), reasoning in part that if a human cannot be owned, a human-like organism cannot be patented. In Association for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013), the Court unanimously held that naturally occurring human genes — even when isolated — are not patentable subject matter, because their location and order existed in nature before Myriad found them.
Patent Infringement - Larami Corp. v. Amron
The scope of a patent is defined by its claims — the precise, numbered descriptions of the invention for which protection is sought. In Larami Corp. v. Amron, 1993 WL 69581 (E.D. Pa.), the court held that Larami's SUPER SOAKER water guns did not infringe the '129 patent (the 'Totally Rad Soaker') because: (1) for literal infringement, every element of at least one patent claim must be present in the accused product — SUPER SOAKER 20 lacked a 'chamber therein for a liquid' as required by Claim 1, since its water reservoir was external and detachable; and (2) for infringement under the doctrine of equivalents, the accused product must perform substantially the same function in substantially the same way to yield substantially the same result — SUPER SOAKERs' external, detachable tanks functioned in materially different ways from the internal tank in Claim 10.
The doctrine of equivalents prevents 'unscrupulous copyists' from making minor modifications to circumvent the literal language of patent claims, but it is reserved for exceptional cases. Unlike copyright, patent law has no fair use defense: even innocent and minor infringements violate the patentee's rights.
TRADEMARK LAW
Trademark Basics and Goals
A trademark is any word, name, symbol, or device used to identify and distinguish the goods of one person from those of others. 15 U.S.C. § 1127. Unlike copyright and patent law, which promote creative effort, trademark law serves two distinct goals: (1) protecting consumers from being deceived into purchasing goods of inferior quality; and (2) incentivizing producers to maintain quality by ensuring the goodwill behind their marks is protected. The 1947 federal Lanham Act established a national registration system, though an unregistered trademark is still valid.
Three elements are required for a valid trademark
(a) Distinctiveness — the mark must distinguish one seller's goods from others'; (b) Non-functionality — trademark law does not protect functional product features (governed by patent law); and (c) First Use in Trade — rights grow from use, not mere adoption. Marks are classified on a spectrum from strongest to weakest: arbitrary/fanciful marks (e.g., 'Exxon') receive the strongest protection; suggestive marks (e.g., 'Roach Motel') require some imagination to connect to the product; and descriptive marks (e.g., 'Coca-Cola') are protectable only upon acquiring secondary meaning — when the public primarily associates the mark with a particular source rather than the descriptive term itself. A generic term can never receive trademark protection.
Color as a Trademark - Qualitex Co. v. Jacobson Products Co., Inc.
In Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159 (1995), the Supreme Court (Breyer, J.) held that color alone can sometimes serve as a trademark. Qualitex had used a distinctive green-gold color on its dry cleaning press pads since the 1950s; after the color acquired secondary meaning in the industry (customers identified it as Qualitex's), a competitor began using a similar color. The Court held that the Lanham Act's broad language — 'any word, name, symbol, or device' — encompasses color, since color can act as a source-identifying symbol once it has acquired secondary meaning and serves no functional purpose.
The Court rejected Jacobson's objections that
(1) 'shade confusion' makes color marks unworkable (courts already handle comparable similarity disputes over words); (2) color is in limited supply and trademarking it will 'deplete' available colors for competitors (alternative colors are normally available; this is an occasional problem that does not justify a blanket prohibition); and (3) 'trade dress' protection suffices without extending trademark law to color alone (trademark law offers additional protections trade dress does not). The functionality doctrine remains the key limit: a color that is essential to a product's use or that affects its cost or quality cannot be trademarked, because this would improperly extend trademark law into patent law's domain. Trademark law also extends to trade dress — the total image and overall appearance of a product — if it is distinctive and identifies a particular source.
Types of Present Interest:
- Fee Simple Absolute,
- Fee Simple Determinable
- Fee Simply Subject to Condition Subsequent
- Fee Simple Subject to executory limitation
- Life Estate
- Some for of defeasible life estate
- Fee Tail (not really relevant in the US anymore)
The central challenge that estates present is classification. Three main classification variables: I. Is it freehold or nonfree-hold? II. Is it absolute or defeasible? III. Is it legal or equitable?
Freehold Estates
Fee Simple, Fee Tail, Life Estate
Nonfreehold estates
Term of years tenancy, periodic tenancy, and tenancy at will. These are of greater relevance in the landlord and tenant section of the outline.
When it comes to absolute or defeasible, it’s what it sounds like
Is it safe in the hands of that person when they possess it, or is duration or condition of their control limited by some factor? If the latter then it is defeasible.
Fee Simple Absolute
It’s yours and your heirs, period. No one else owns it, and you have full control of the property in this life and, via your heirs, the next until it is conveyed or devised to another.
Fee Tail
Basically what they were doing in downton abby, aka old English blood rule.
Defeasible Fees
Fee Simple Determinable (and Possibility of Reverter)
A fee simple determinable, also called a determinable fee, is an estate that automatically terminates on the happening of a stated event and goes back to the grantor. It is created by the use of durational, adverbial language, such as “for so long as,” “while,” “during,” or “until.”
Fee Simple Subject to Condition Subsequent (and Right of Entry)
A fee simple subject to a condition subsequent is created when the grantor uses words like “upon condition that,” “provided that,” “but if,” and “if it happens that.” In contrast to a fee simple determinable, if this described event occurs, the estate of the grantee continues until the grantor exercises her power of termination (right of entry) by bringing suit or making reentry. A right of entry must be expressly reserved.
- EXAMPLE: O, owning Blackacre in fee simple, conveys it “to A and his heirs, on the express condition that the premises are never to be used by A for business purposes, and in the event that they are so used, then O or her heirs may enter and terminate the estate hereby conveyed.” A has a fee simple subject to a condition subsequent. O has a right of entry. If the condition is broken, O has a power to terminate the estate of A by asserting her right of entry.
Fee Simple Subject to an Executory Interest
If the same language used to create a fee simple determinable or a fee simple subject to a condition subsequent is used, but the grant creates the future interest in favor of a third party rather than the grantor, the estate is a fee simple subject to an executory interest. The third party has an executory interest. These are almost never valid because executory interests, unlike interests in the grantor, are subject to the Rule Against Perpetuities. Executory interest in general
Life Estate
CAN BE ABSOLUTE OR DEFEASIBLE, depending on the conditions under which the life estate was granted.
Life estates are just what they sound like, ownership interests for the life of either the person conveyed, or in pur autre vie, the life of another.
Conventional Life Estate - For Life of Grantee
The usual life estate is measured by the life of the grantee and is called simply a life estate.
Examples
1) O conveys “to A for life.” In this case, A has an estate in the land for as long as he lives. On his death, the land reverts to O, the grantor.
2) “To A for life, then to B.” A has an estate for as long as he lives. At his death the land belongs to B, who holds the remainder interest.
Life Estate Pur Autre Vie (Life of Another)
A life estate pur autre vie is a life estate measured by the life of someone other than the life tenant. Such an estate can be created directly by the grantor, e.g., “to A for the life of B.” A’s estate ends when B dies. It can also be created indirectly, as where the grantor conveys “to B for life,” and B later conveys his interest to A. A owns an estate measured by B’s life; it ends when B dies.
Remember
When a life estate ends, it either goes to someone with a remainder in the property or it reverts back to the grantor and their heirs.
Rule Against Restraints on Alienation
Generally, any restriction on the transferability of a legal (as distinguished from an equitable) interest in property violates the common law Rule Against Restraints on Alienation and is void.
Types of Restraints on Alienation
There are three types of restraints on alienation: (i) disabling restraints, under which any attempted transfer is ineffective; (ii) forfeiture restraints, under which an attempted transfer results in a forfeiture of the interest; and (iii) promissory restraints, under which an attempted transfer breaches a covenant. A disabling restraint on any legal interest is void.
EXAMPLES:
1) Property is transferred to A in fee simple, with the added proviso that “neither A nor any of her children shall have the right to transfer the land or any interest therein.” Under this restriction, if given effect, any attempted transfer would simply be ineffective. This is a disabling restraint and won’t be given effect.
2) Property is transferred to A in fee simple, with the added proviso that “if A shall attempt to transfer the land or any interest therein during her lifetime, her estate shall cease, and title therein shall vest in B.” This is a forfeiture restraint.
3) Property is transferred to A in fee simple, with the added proviso that “A hereby covenants that she will not transfer the land or any interest therein without [the transferor’s] prior written consent.” Under this promissory restraint, if given effect, the remedy is injunction or damages for breach of contract.
Restraints on a Fee Simple
Any total restraint on a fee simple—either forfeiture, disabling, or promissory—is void. The grantee may ignore the restraint and freely transfer the property. Partial restraints may be valid. Although absolute restraints on fee simple estates are void, a forfeiture or promissory restraint for a limited time and for a reasonable purpose may be upheld.
- EXAMPLE: A owns and resides in a house. He conveys a one-half interest in the house to his brother, B, including in the deed a covenant that “during their joint lifetimes, each party promises not to convey his interest to any other person without the consent of the other party.” This promissory restraint is limited to the joint lifetimes of the parties and is a reasonable way to ensure that neither party will be faced with the prospect of residing with a stranger. The restraint would probably be upheld.
Restraints on a Life Estate
Forfeiture and promissory restraints on life estates are valid. However, disabling restraints on legal life estates are void.
Options and Rights of First Refusal
The right to have the first opportunity to purchase real estate when it becomes available, or the right to meet any offer, is valid if reasonable (e.g., by specifying fair market value or other reasonable price). [Restatement (Third) of Property: Servitudes §3.4]
Doctrine of Waste
one who holds property is entitled to all the ordinary uses and profits of the land but cannot do anything that would injure the interests of the person who owns the remainder or the reversion. If they do, the future interest holder may sue for damages and/or to enjoin such acts.
Affirmative (Voluntary) Waste—Natural Resources
As a general rule, a possessor may not consume or exploit natural resources on the property (e.g., timber, minerals, oil).
Permissive Waste
Absent a contrary provision in the instrument of the conveyance of property, a possessor has a duty to make repairs to the property to keep it from being damaged by the weather, and to pay certain carrying charges (e.g., mortgage interest, property taxes, and special assessments for public improvements). Failure to make required repairs or pay required carrying charges constitutes permissive waste. A future interest holder who expends funds in satisfaction of the current possessors' obligations (e.g., pays the property taxes to avoid a tax foreclosure sale) is entitled to reimbursement.
Ameliorative Waste
Ameliorative waste occurs when the use of the property is substantially changed, but the change increases the value of the property. Under modern authorities, a possessor can substantially alter or even demolish existing buildings if:
(i)The market value of the future (or other nonpossessory) interests is not diminished; and either
(ii)The remaindermen do not object; or
(iii)A substantial and permanent change in the neighborhood conditions has deprived the property in its current form of reasonable productivity or usefulness.
Relevant Cases
Cole v. Steinlauf (1957)(“And Their Heirs” Case)
In Cole v. Steinlauf, the plaintiffs agreed to purchase property in Connecticut but rejected the seller's deed and demanded their deposit back after a title search revealed a 1945 deed in the chain of title that conveyed the land to the grantee "and assigns forever" rather than utilizing the traditional language of "and his heirs." Because common law jurisdictions traditionally interpret the omission of "and his heirs" as conveying only a life estate rather than a fee simple absolute, the purchasers argued the title was legally unmarketable. The Connecticut Supreme Court held that the purchasers were justified in rejecting the title, ruling that the ambiguous language created a reasonable doubt regarding the title's marketability and that the purchasers should not be forced to assume the risk of future litigation over the deed's interpretation.
White v. Brown (1977)(Alienation and Fee Simple Absolute vs Life Estate)
Evelyn White sued to establish that a holographic will leaving her a home "to live in and not to be sold" granted her a fee simple absolute, while the testator’s heirs argued the limiting language merely conveyed a life estate. The trial court initially ruled that the will unambiguously created a life estate based on its face without considering extrinsic evidence. However, the Tennessee Supreme Court reversed, holding that statutory law presumes a will conveys a testator's entire estate unless a clear contrary intention is demonstrated by the document's context; because the testator clearly intended to pass her property to White but attached an absolute restraint on alienation (which is void against public policy), the restrictive language was struck down, leaving White with a full fee simple interest.
Woodrick v. Wood (1994)(Waste Barn Case)
a life tenant and her son sought to tear down an unused, rotting barn on their property, prompting the daughter—who held a remainder interest in the land—to seek an injunction arguing that destroying the structure constituted actionable common law waste. Evidence presented at trial indicated that removing the dilapidated barn would actually increase the overall value of the parcel, leading the trial court to deny the injunction while equitably awarding the daughter the $3,200 value of the barn itself. The Ohio Court of Appeals affirmed the decision, holding that Ohio rejects the strict common law rule of waste; instead, destructive acts by a life tenant will not be enjoined if they improve rather than diminish the overall value of the property, meaning the beneficial destruction of the barn was legally permissible.
Paul Smith’s Coll. of Arts & Sciences v. Roman Catholic Diocese of Ogdensburg (2020)(catholic church building post use dispute): an 1896 deed transferred land to a Catholic Church with a provision stating the property must be used for "[c]hurch purposes only," and that if it were devoted to other uses, the conveyance would be "void" and the grantor could re-enter. More than a century later, the Church ceased holding services there and removed sacred objects, prompting the grantor’s successor (the College) to claim ownership, though the trial court initially ruled the deed created a fee simple subject to a condition subsequent with an extinguished right of reentry. The appellate court reversed, holding that the explicit use of the word "void" in the deed created a fee simple determinable; consequently, the grantor retained a possibility of reverter, and ownership automatically reverted back to the College the moment the Church violated the limitation provision by ceasing its church operations.
Metropolitan Park District v. Unknown Heirs of Rigney (1965)(Water to Park Re-Entry Case)
In Metropolitan Park District v. Unknown Heirs of Rigney, property was deeded to a city in 1884 to conduct fresh water, with a provision allowing the grantor or his heirs to re-enter and reclaim possession if the specified use ever ceased. The city stopped using the land for water prior to 1905, but the original grantor's heirs took no affirmative action to reclaim the property for decades until the city's successor, the Park District, filed a lawsuit to quiet title. The Washington Supreme Court ruled in favor of the Park District, holding that the deed created a fee simple subject to a condition subsequent—which requires a grantor to affirmatively elect to declare a forfeiture to regain title—rather than a fee simple determinable where reversion is automatic. Because the heirs failed to exercise their right of entry within a reasonable time following the breach, their right to reclaim the property expired.
Future interest
A few kinds of future interest
- Remainder
- Reversion
- Possibility of Reverter
- Right of Re-entry
- Executory Interest
Reversion is just as we discussed earlier in life estates, fee simple determinable, and fee simple absolute. It is expanded in future interest when remainders fail to vest in a remainder and/or 3rd party executory interest; therefore, reverting back to the grantor.
Right of Re-entry
Only applies to a grantee with a condition subsequent, where then the grantor has a future interest right of re-entry.
Remainder
is a future interest in someone other than the grantor or grantee of a possessory interest, if the interest can become possessory only upon the expiration of the prior possessory interest, created by the same instrument. Different from executory interest, as the remainder must be capable of becoming possessory only on “natural expiration” as opposed to cutting someone else’s interest short.
4 Types of Remainders:
Indefeasibly Vested Remainder
a remainder that will occur with absolute certainty that is not subject to any conditions that would strip future possession. Essentially, guaranteed to have the property after whoever has it now (typically, a person with a life estate) with no strings attached.
Vested Remainder Subject to Divestment
Future/Subsequent Condition language is key here. Essentially, it’s a future interest via remainder that becomes the person's once the current possessor dies or loses title, but the remainder is subject to a condition subsequent that could strip possession away from them. Example: Life estate to B, then to C and their heirs, but if C ever smokes on the property, then to D. Here, C has a Vested Remainder Subject to Divestment. “BUT IF” Language is key.
Contingent Remainder
Past language key here. A contingent remainder, on the other hand, is a remainder that is contingent on something occurring first before the person can attain possession. “IF” language is key here and distinguishes a contingent remainder from a vested remainder subject to divestment. It essentially won’t allow possession until the thing has occurred, rather than stripping possession if the thing occurs.
Vested Remainder Subject to Open
This is a vested remainder in one or multiple individuals whose interest % in the property may be diminished as others qualify for a remainder (enlarged by the addition of presently unascertainable people). For example, when giving a remainder to a class of people such as children or grandchildren. As more children can be born after the grant was conveyed (unless, of course, there would be a rule against perpetuities issue in doing so), ultimately those who have a current remainder will have to make born for new borns/members.
Executory Interest
is a future interest created in a transferee that must “cut short” or “divest” another estate or interest in order to become a possessory estate. An executory interest is any future interest created in a transferee other than a remainder.
Springing Executory Interest
cuts off the grantor from having a reversion of their property.
Shifting Executory Interest
Cuts off everyone else who isn’t a grantor.
Common Law Rule Against Perpetuities
No interest is good unless a remainder must vest, if at all, not later than 21 years after some life in being at the creation of the interest. Basically, an interest must vest (go from remainder to possessory) in someone with a remainder after 21 years when the life in being dies, or fail to vest within that period. Uncertainty of it will vest in 21 years after the life in being also violates the rule, and therefore the remainder becomes invalid.
Rationale for the rule
We want to know how this land is used over a specific time period to protect the land’s marketability. No one wants to buy land they may lose if x, y & z occur in some undeterminable time.
The Five-Step Application of the Common Law Rule:
- Determined if the Rule applies to the future interest at issue;
- Decide when the perpetuities period begins;
- Determine what must happen for the interest to vest or forever fail to vest;
- Identify the persons who can affect vesting; and
- Test each relevant life to determine if any one validates the interest
This Rule applies to only 3 types of transferees
Contingent Remainders, Vested Remainders Subject to Open, and “Contingent” Executory Interest.
It never applies to
present estates, future interest in a transferor (a reversion, possibility of reverter, right of re-entry), or future interests in a transferee that are deemed to be vested—unless it’s subject to open.
Relevant Lives in Being
Almost always, the relevant lives are the people who can affect whatever has to happen for the vesting to occur. These include:
- Holder of the interest
- Person creating the interest
- Any person who can affect a condition precedent attached to the interest; and
- Any person who can affect the identity of the holder.
Remember the following common examples that bring the rule into effect
The Fertile Octogenarian; The Unborn Spouse; and The Slothful Executor.
Issue = All Lineal Descendants of any degree, including children, grandchildren, great-grandchildren, and beyond.
Modern Reforms to The Rule Against Perpetuities:
- Wait and See: the validity of an interest is not determined at the onset. Rather the parties wait for future events to play out and see if an interest has vested during the regular common law 21 years after a life in being period. Basically, if a future interest vesting is contingent on, let’s say, the person even being born and then them turning 10, we would wait and see if they were in fact born before we determine if it’s invalid or not.
- Cy Pres: basically, if a remainder violates the rule of perpetuities, the court in this scenario attempts to rewrite the language of the conveyance or devise as close as possible to what the grantor originally wanted or likely wanted to occur.
- Uniform Statutory Rule Against Perpetuities (USRAP): Under USRAP a covered interest is valid if (1) it meets the requirements of the common law rule, or (2) using the wait-and-see approach, it actually vests or terminates within 90 years after the conveyance or devise’s creation. Additionally, if a covered interest is invalid, a court is empowered to reform the creating instrument in the manner that’s closest to the transferor’s original plan, and that is able to be within 90 years of vesting.
Remember that on the exam you will have to explain these briefly at the top before answering all future interest problems, but for the actual problems, you only need to use the common law approach.
Jee v. Audley, (1787)
a testator left 1000 pounds in a trust, directing that the interest be paid to his wife for life, then the principal to his niece and her children, but if the niece died without issue, the money would be divided among the daughters of his kinsman Jee then living. At the time of the testator’s death, his wife had already died, his niece was alive but childless, and Jees had four daughters, who filed suit to have their funds secured for their benefit. The court held the limitation to the Jee daughters void under the rule against perpetuities, which requires that any future interest must necessarily vest, if at all, within the life or lives in being plus 21 years. The fatal flaw was that the gift was not confined to the Jee daughters living at the testator’s death. It could theoretically extend to after-born daughters. Because Mr. and Mrs. Jee could conceivably have additional daughters after the testator’s death, and the niece could then die without issue more than 21 years after all the lives in being had ended, the interest might vest too remotely. The court applied the common law approach that if there is any possibility, however unlikely, that an interest could vest beyond perp. Period, it is void.
Basic Idea
A present estate in real or personal property can be simultaneously owned by two or more people, each holding the right to concurrent ownership.
Types of Concurrent Estates:
- Tenancy in Common: Each owner owns an undivided, fractional share in the entire parcel of land, and each is entitled to simultaneous possession and enjoyment of the whole parcel.
- Any conveyance or devise to two or more unmarried people is presumed to create a tenancy in common, absent clear language expressing an intent to create another estate. It may also arise involuntarily through interstate succession. A tenant in common has the right to sell, mortgage, lease, or otherwise transfer all or part of his interest without the consent of other cotenants, and such a transfer does not end the tenancy in common.
- Unlike the other concurrent estates, it does not include a right to survivorship. Accordingly, a cotenant may devise his interest or allow it to pass to their descendants through interstate succession.
- Joint Tenancy: differs from tenancy in common as each joint tenant has a right of survivorship (the surviving tenant gets dead tenant’s ownership rights). If, for some reason, both tenants die simultaneously, we treat it the same way as a tenancy in common and pass their interest evenly to their descendants.
- To create a joint tenancy, it has to be conveyed/devised to the tenants at the exact same time, otherwise it becomes a tenancy in common. However, this issue can be simply resolved by giving your property to a strawman and having them reconvey it back to you and the other desired tenant simultaneously.
- If not obvious, a joint tenancy has to have proportional shares of ownership. Severing a joint tenancy by giving your interest to someone else creates a tenancy in common. Authorities are split as to whether a lease mortgage or other interest is allowed under a joint tenancy without causing it to collapse.
- MOST IMPORTANT: conveyance/devise requires time, title, interest, and possession details.
- Tenancy by the Entirety: This is the common law rule for a husband and wife’s property (remember, common law for marriage is not all that common anymore). Basically, the couple owns the tenancy as one unit, one person. A valid tenancy by the entirety requires the four unities of a joint tenancy, plus the fifth unity of a valid marriage.
- Remember, it may be a shield against creditors since, thanks to the Married Women’s Property Act, the lender can’t sell the property for debt repayment, as it’s not fair to have the wife liable for the debt (See Sawada Case).
Ouster
occurs when a cotenant in possession refuses the request of another cotenant to share possession of the land (locks the tenant out, for example). This may allow the locked-out tenant to withhold rent or their responsibilities to the property.
The cases below explain details on how concurrent estates may be passed on or terminated.
James v. Taylor (1998)
A mother conveyed property to her three children “jointly and severally, and unto their heirs, assigns and successors forever,” retaining a life estate for herself. After two of the three children died, the surviving grantee, Taylor, sought a declaration that the conveyance created a joint tenancy, making him the sole owner by right of survivorship, relying on the extrinsic evidence of the mother’s intent. The Arkansas court of appeals reversed the trial court’s ruling in Taylor’s favor, holding that the state’s code creates a statutory presumption in favor of tenancy in common unless the instrument expressly says otherwise. Because the deed’s language was ambiguous and did not expressly declare a joint tenancy, the statutory presumption controlled, and extrinsic evidence of the grantor’s intent could not override it. The case illustrates how Arkansas, departing from the common-law preference for joint tenancy, requires clear and explicit language before a joint tenancy with right of survivorship will be found. and extrinsic evidence of the grantor’s intent could not override it. The case illustrates how Arkansas, departing from the common law preference for joint tenancy, requires clear and explicit language before a joint tenancy with right of survivorship will be found.
Tenhet v. Boswell (1976)
Two joint tenants co-owned a parcel of land, and one joint tenant, Johnson, unilaterally leased his interest to Boswell for ten years, with no knowledge or consent of the other tenant, Tenhet. Johnson died three months into the lease term, and Tenhet sought to establish her sole right to possession as the surviving joint tenant, arguing that the lease either severed the joint tenancy or was extinguished upon Johnson’s death. The California Supreme Court held that a lease by one joint tenant does not sever the joint tenancy, but the lease expires upon the lessor-joint tenant’s death. Rejecting both the traditional English rule (that a lease severs the joint tenancy) and an intermediate rule (that it creates a temporary severance), the court reasoned that because California law requires a joint tenancy to be expressly created, a severance should only be found where the intent to terminate is equally clear and unambiguous, which the mere act of leasing does not demonstrate. The practical effect is that Tenhet took the whole property by survivorship, and Boswell’s lease was extinguished.
Ark Land Co. v. Harper (2004)
a coal mining company acquired a 67.5% undivided interest in a 75-acre family farm and sought to force a partition by sale so it could engage in surface coal mining. The remaining Caudill family members opposed the sale and presented evidence that their portion of the land could be portioned in kind without affecting the coal-bearing areas. The West Virginia Supreme Court of Appeals reversed the lower court’s order for a partition of sale, holding that partition in kind is the strongly preferred method because it preserves co-owners’ estates without forcing an unwanted sale, and that economic value alone is not the exclusive or controlling test. A party in West Virginia must show not only that partition in kind is inconvenient, but also that the interests of those opposed will not be prejudiced. Here, the family's longstanding ownership of and sentimental attachment to the land weighed heavily against forcing a sale. The decision is notable for recognizing that non-monetary considerations, including emotional connection to ancestral land, are legitimate and potentially determinative factors in partition proceedings.
Esteves v. Esteves (2001)
parents owned a one-half interest in their family home as tenants in common with their son, who held the other half; the parents occupied the home alone for eighteen years, paying all operating and maintenance expenses, and upon the home’s sale sought full reimbursement from the son for one-half of all expenses without any offset for the value of their exclusive occupancy. The New Jersey Appellate Division reversed, holding that while a co-owner who pays more than his pro-rata share of expenses is generally entitled to contribution from co-owners, a co-owner who was in sole possession of the property must — upon a final accounting after sale — credit the non-occupying cotenant for the fair value of that exclusive occupancy. The court reasoned that all co-tenants have an equal right to occupy co-owner property, and requiring a non-occupying cotenant to share expenses while receiving no benefit from the property’s use would be patently unfair. The ruling strikes an equitable balance: the occupying cotenant may recover maintenance contributions, but only net of the value of the occupancy benefit the non-occupying party was effectively denied.
Common law approach version is virtually extinct. Most jurisdictions use the separate property system. Only 9 states use the community property system.
Common Law Approach – reflected profound gender bias – upon marriage, women lost ability to own, manage and dispose of her property, except for her clothing and jewelry The law gave the husband an estate jure uxoris (“by the right of the wife”) in all of his wife’s lands – he could use, sell, or mortgage his wife’s property; it could also be reached by his creditors. If husband died first, common law gave the woman/widow a dower – a life estate in 1/3 of all the freehold land that was (a) owned by her husband and (b) inheritable by his issue
- Wife’s dower rights could not be cancelled during the marriage – they remained “attached” to property even if was conveyed to a third party unless she voluntarily released them.
- The Married Women’s Property Act eventually provided a wife with the same rights as a single woman to own, manage, and dispose of her property.
Separate Property System (most states today use this)
During the marriage (always separate during) Property is separately owned by the spouse who acquired it. Creditors of a particular spouse can only attach the separate property of that spouse.
- Divorce: There is an equitable distribution of the property owned by each spouse – factors such as income, standard of living, contribution, age/health, special needs and length of marriage impact the distribution of the property.
- Property that is subject to equitable distribution is all the property that was acquired w/ the earnings of either spouse.
- Death: At death, most states offer the surviving spouse a forced share (or elective share) of the decedent’s estate. This means that the survivor has a choice to (a) take under the decedent’s will, or (b) receive a defined portion of the decedent’s estate, usually a 1/3 or ½ share.
Community Property System (originated in Spain/France)
used today in 9 states (Arizona, Cali, Idaho, Nevada, New Mexico, Texas, Washington, and Wisconsin). During the marriage, all earnings and all assets acquired from those earnings are owned by both spouses equally (equal undivided share). Marriage is seen as a partnership.
- Divorce: At divorce, all community property was divided between the spouses.
- Death: the decedent may devise half their property and all of their separate property as they desire. The other half of the community property belongs to the spouse.
CASES
Sawada v. Endo (1997)
A husband who had struck two people with his car had no liability insurance. He conveyed his and his wife's jointly held tenancy by the entirety property to their sons for no consideration shortly after the injured plaintiffs filed suit and before judgment was entered against him. The Hawaii Supreme Court held that because of the Women’s Property Act, the interest of either spouse in a tenancy by the entirety is not subject to the claims of that spouse’s individual creditors, because neither spouse holds a separate, divisible interest that can be conveyed or reached by a judgment. The court reasoned that a tenancy by the entirety is indivisible by design. This means it can only be created and destroyed by the joint action of both spouses, and that allowing a creditor to reach one spouse’s interest would undermine the estate’s fundamental character and jeopardize the family home as a critical asset.
Guy v. Guy (1999)
a husband and wife divorced after a three-year marriage during which the wife earned a nursing degree, largely supported by the husband's $35,000 contribution to her expenses; the husband sought reimbursement, and the trial court credited that amount toward the wife's share of marital property. The Mississippi Supreme Court reversed in part, holding that a professional degree is not marital property because it lacks the defining attributes of property: it has no exchangeable market value, cannot be assigned, sold, or transferred, and terminates at death. While rejecting the treatment of the degree as a divisible asset, the court recognized that the supporting spouse is entitled to compensation through lump-sum alimony for financial contributions made toward the other's professional education, and remanded for a proper determination of that amount. The decision follows the majority rule, which avoids the difficult problem of monetizing future earning potential and instead focuses on what the supporting spouse actually contributed, in contrast to the minority New York approach of treating the degree itself as marital property subject to equitable distribution.
Gazvoda v. Wright (2007)
a couple cohabitated for sixteen years without marrying, during which the woman dropped out of high school at her partner's request to help him build an electrical business and later managed rental properties, all without compensation, while her partner repeatedly assured her that the businesses and assets belonged to both of them. When the relationship ended, the woman counterclaimed for a share of the accumulated assets under theories of implied contract and unjust enrichment, and the trial court found in her favor. The Indiana Court of Appeals affirmed, holding that unjust enrichment requires showing that a measurable benefit was conferred on the other party under circumstances where retaining that benefit without payment would be inequitable, a standard clearly met given the woman's years of uncompensated labor and the man's repeated representations of joint ownership. The court noted that while the presumption of equal division applicable in divorce does not extend to cohabiting couples, courts will consider the nature of both parties' contributions, the representations made, and the resulting expectations in determining the non-titled partner's share of jointly accumulated assets.
Obergefell v. Hodges (2015)
an Ohio man who had been in a committed same-sex relationship for twenty-two years married his terminally ill partner in Maryland, but Ohio refused to recognize the marriage, and upon the partner's death, the state recorded him as unmarried on his death certificate. The U.S. Supreme Court reversed the Sixth Circuit and held that the Fourteenth Amendment requires states both to license same-sex marriages and to recognize those lawfully performed in other states, grounding its decision in the fundamental right to marry as protected by the Due Process and Equal Protection Clauses. Justice Kennedy's majority opinion reasoned that marriage is central to individual autonomy, personal dignity, and family stability, and that excluding same-sex couples from the institution denied them a wide constellation of legal rights and benefits that states have long linked to marriage. The four dissenting justices, led by Chief Justice Roberts, argued that the question of redefining marriage should be resolved through democratic processes rather than judicial mandate, contending that the majority's ruling lacked grounding in constitutional text, history, or tradition.
We have discussed Freehold estates, which is ownership of property. However, nonfreehold estates, or “leasehold” estates, is a tenancy or temporary right or property. Basically, it’s a legal interest that entitles the tenant to immediate possession of designated land either for fixed period of time or as long as tenant and landlord desires. Landlord has the future interest of reversion.
There are four categories of Leasehold Estates
Term of Years Tenancy, Periodic Tenancy, Tenancy at will, and Tenancy of Sufferance.
Term of Years Tenancy
an advance agreement that will continue for a designated period of time that is either fixed in advance or computed using a formula that is agreed to in advance (for term of blank years after building is finished construction). Term of years automatically expires when the agreed period ends, without any notice of termination. May also contain provision that allows the landlord to terminate the tenancy upon the tenant’s breach of specific lease terms. This tenancy is most common for commercial leases.
Periodic Tenancy
lasts for an initial fixed period and then automatically continues for additional equal periods until either the landlord or tenant terminates the tenancy by giving advance notice. Classic month-to-month residential lease. Can continue indefinitely if neither party gives notice of termination. At common law, termination of a year-to-year tenancy must be given at least six months in advance, while shorter tenancies may only need 30 days in advance. States now have their own rule for termination of a lease, but many use the 30 day rule.
Tenancy at Will
It’s what it sounds like. Essentially, there is no fixed period and it endures so long as both the landlord and the tenant desire. Today most tenancies at will arise by implication and not by an express agreement. At common law, a tenancy at will ends whenever the landlord or tenant choose. Any form of notice terminates the tenancy immediately. Even absent of notice, any conduct by the landlord or tenant that demonstrates an intent to terminate will suffice.
Tenancy at Sufferance
not a true estate of land that creates a land-lord tenant condition, but rather a useful label to describe a form of occupancy akin to a leasehold estate. Essentially, it arises when a person in rightful possession of the land (a tenant) wrongfully continues possession after that right ends. A tenancy in sufferance also arises, for example, where a mortgagor retains possession after the mortgage is foreclosed, or a seller remains in possession after conveying title to a buyer. Landlord may evict the wrongful occupant at any time and can recover damages for the period of wrongful occupancy, measured by either fair rental value or prior rent. A tenant who remains in possession of leased premises after the leasehold estate ends is considered a holdover tenant.
- Here, the landlord has two options: a) evict the trespasser, or b) renew the tenancy for another term.
Landlord’s Duty to Deliver Possession
at the start of the lease, a dispute may arise whether the landlord must deliver actual physical possession or merely legal possession (right to posses). There are two competing rules developed:
- American Rule: Not common anymore. Basically, the landlord only duty is that no one will interfere with title (legal possession). The tenant bears the burden of evicting any holdover tenant.
- English Rule: The landlord must deliver actual possession aside from just legal possession. This means if a holdover tenant remains, the landlord must remove them before the lease starts or they have breached the lease. English rule applies to federal government leases, which require a uniform national standard.
A landlord may limit liability by
1) expressly disclaiming the duty to deliver possession in the lease; 2) require a prior tenant to post security guaranteeing timely vacatur; or 3) seeking damages against holdover tenant.
Quiet Enjoyment
Every lease includes, at common law, an implied (and often express) covenant that the tenant’s possession will not be wrongfully interfered with by the landlord or person claiming superior title. The tenant will have peace, privacy, safety, and free from substantial interference from the landlord.
Constructive Eviction
occurs when a landlord’s conduct (or omission) so substantially interferes with the tenant’s beneficial use of the premises that it amounts to the functional equivalent of actual eviction. The tenant is then entitled to abandon the lease and be relieved of further rent obligations. The elements are:
- a) The landlord intended that the tenant no longer enjoy the premises;
- b) The landlord’s act or omission substantially interfered with the use;
- c) That act or omission permanently deprived the tenant of use;
- and d) the tenant abandoned with a reasonable time. Both action and inaction by the landlord can qualify as conduct.
A tenant generally cannot assert constructive eviction based on acts of third parties, unless the landlord had a legal right or contractual duty to control that conduct. Where the landlord expressly promised security and failed to provide it, the landlord’s omission itself constitutes constructive eviction.
Waiver by Unreasonable Delay
A tenant who remains on the premises for an unreasonable length of time after the untenable condition arises waives the constructive eviction claim. The tenant bears the burden of proving timely abandonment.
Implied Warranty of Habitability
there is an implied warranty that the premises are habitable at the outset of the lease and will remain so throughout the tenancy. The landlord must maintain bare living requirements and keep premises fit for human occupancy. Substantial compliance with building and housing codes is evidence of fulfillment. Conditions such as crumbling walls, mice infestation, collapsed ceiling, sunken floors, and total lack of heat or hot water may establish a breach.
- Policy tension: courts must be cautious not to set habitability standards so high that landlords are driven out of the market. Imposing substantial renovation costs ultimately harms low income tenants the warranty is designed to protect.
Assignments and Subleases
courts look at intent of parties to determine whether a transfer is an assignment or sublease.
Assignment
original lessee transfers the entire remaining interest, retaining no reversionary interest. The assignee is in privity of estate with the original lessor and is directly liable for rent. The mere use of the word “sublet: in the contract is not controlling.
Sublease
The lessee transfers less than the full remaining term, retaining a revisionary interest. The sub-lessee is not in privity with the original landlord, so the landlord cannot recover rent directly from the sub-lessee.
Landlord’s Consent to Assignment
where a lease requires the landlord’s written consent to an assignment, the landlord may not unreasonably or arbitrarily withhold that consent.
- Good Faith Requirement: the landlord may withhold consent only for a commercially reasonable objection (e.g., poor financial risk). The landlord may not demand increased rent in exchange for consent, as the original lease already reflects the bargained-for agreement.
- Rationale: property law favors alienability, the landlord-tenant relationship has become increasingly impersonal, the original lessee remains contractually liable, protecting the landlord’s economic interest; and leases are increasing viewed as contracts subject to good faith obligation.
Landlord’s duties upon tenant breach or abandonment
Duty to mitigate
A landlord has a duty to make reasonable efforts to re-let the premises wrongfully vacated by a tenant. The modern rule imports contract-law mitigation principles, since leases are now largely viewed as contracts.
Burden of Proof
Landlord bears the burden of demonstrating that reasonable efforts to re-let were made. A landlord who passively watches damages accumulate while capable of re-letting cannot recover the full amount of rent owed through the lease term.
Traditional Rule (rejected)
at common law, a landlord has no duty to mitigate because abandonment by a tenant did not give the landlord control over the property. This property-law view has been widely displaced by contract principles.
Prohibition of Self-Help Eviction
a landlord may not use self-help (changing the locks, removing possessions, etc.) to regain possession of the premises occupied by the tenant. The landlord must pursue judicial eviction proceeding. Self-help carries potential for violence, which legislatures have created summary eviction proceedings to give landlords a quick legal remedy, removing justification for self-help.
- Exception: a landlord may re-enter without judicial process only where the tenant has clearly abandoned or surrendered the premises.
Retaliatory Eviction
A landlord may not terminate a tenancy in retaliation for a tenant’s good faith complaint related to the tenancy.
- Elements: to prove retaliation, the tenant must show the landlord served the termination notice because of the tenant’s protected complaint. The tenant need not show that the complaint was the sole reason, only that it was a factor that made a difference in the landlord’s decision.
Landlord’s Defense
a landlord can rebut a retaliation claim by demonstrating a legitimate, no-retaliatory reason for termination that is entirely unrelated to the tenant’s complaint.
Teller v. McCoy
In this case, the court officially adopted the implied warranty of habitability for residential leases. While the full majority opinion was omitted, the analysis provided through a concurring and dissenting opinion highlights the economic tensions of this rule. The justice noted that imposing high habitability standards could lead to unintended consequences, such as landlords passing renovation costs onto tenants who cannot afford them or driving low income housing providers out of business.
Ernst v. Conditt
A lessee transferred his interest in a race track to a third party who subsequently stopped paying rent, leading the landlord to sue for the balance. The court held that the transfer was an assignment because the original lessee conveyed his entire interest and retained no reversionary interest in the property. The legal analysis emphasizes that modern courts look to the actual intentions of the parties rather than just technical language to distinguish between an assignment and a sublease.
Kendall v. Ernest Pestana, Inc.
A lessor refused to consent to the assignment of a commercial lease unless the proposed assignee agreed to pay increased rent. The court held that a lessor may not arbitrarily or unreasonably withhold consent to an assignment, especially for the purpose of seeking a better bargain than originally negotiated. The legal analysis rests on the principles of free alienability of property and the implied contractual duty of good faith and fair dealing.
Sommer v. Kridel
After a tenant notified his landlord that he could no longer afford the lease and would not take possession, the landlord refused to rent the unit to a third party and instead sued the original tenant for the full rent. The court held that a landlord has a duty to mitigate damages by making reasonable efforts to re-let an apartment wrongfully vacated by a tenant. This analysis reflects a shift in viewing a lease as a contract rather than a mere property interest, requiring landlords to act with fairness to prevent avoidable losses.
Elk Creek Management Co. v. Gilbert
A landlord attempted to terminate a month-to-month tenancy shortly after the tenant made a good faith complaint about hazardous electrical problems. The court held that a landlord may not retaliate against a tenant for such complaints by serving a termination notice. The legal analysis focuses on the motivation behind the eviction, requiring the tenant to prove that the protected activity was a factor that made a difference in the landlord's decision to terminate.
Berg v. Wiley
Following a dispute over lease violations and remodeling, a landlord changed the locks on a restaurant while the tenant was away. The court held that a landlord may not use self-help to regain possession of property, even if they have a legal right to possession, and must instead use judicial processes. The legal analysis prioritizes public peace and the prevention of violence, concluding that any non-judicial entry is potentially forcible and therefore unlawful.
Keydata Corp. v. United States
A new tenant was prevented from moving into a leased space because the previous tenant failed to vacate the premises on time. The court adopted the English rule, holding that a landlord is under an implied obligation to deliver actual physical possession of the property at the start of the lease term. The legal analysis suggests that the landlord is in the best position to manage holdover tenants and should be responsible for ensuring the property is available for the incoming lessee.
In re Clark
This case involved tenants in a 24-unit apartment building facing severe substandard conditions, including crumbling walls, lack of heat, and sewage flooding. Although the specific decision is not detailed, the excerpt illustrates the rationale that some urban landlords may maximize profits by ignoring housing codes and neglecting essential maintenance. The analysis frames these appalling conditions as a direct result of a landlord's failure to provide habitable housing.
Fidelity Mutual Life Insurance Co. v. Kaminsky
A physician abandoned his leased medical office after the landlord failed to address anti-abortion protesters who were blocking patient access and interfering with his practice. The court held that the landlord’s failure to act constituted a constructive eviction because it breached the express covenant of quiet enjoyment. The legal analysis concludes that a landlord’s omission can be considered conduct that materially interferes with a tenant’s beneficial use of the premises.
JMB Properties Urban Co. v. Paolucci
A jewelry store owner remained in his mall space for five years despite recurring loud noise from a neighboring store that allegedly made his business untenable. The court held that the tenant waived his claim of constructive eviction because he failed to surrender the property within a reasonable time after the condition arose. The legal analysis establishes that a tenant cannot continue to occupy the premises and simultaneously claim that those premises are uninhabitable.
Wade v. Jobe
A tenant vacated her home after sewage repeatedly flooded the basement, leading to the property being condemned for health and safety violations. The court held that residential leases contain an implied warranty of habitability requiring landlords to maintain bare living requirements fit for human occupation throughout the tenancy. The legal analysis argues that modern tenants are in an inferior bargaining position and must rely on landlords to provide safe and sanitary housing.
A typical home sale proceeds through three major stages
1) Purchase Contract; 2) Closing; and 3) title protection.
Purchase Contract—Statute of Frauds
To be enforceable there needs to be the following essential terms: identity of the parties, price, and description of the property in writing; and a signature by the party to be bound.
Part Performance
However, an oral contract may be enforced if the buyer 1) takes possession; 2) pays at least part of the purchase price; and 3) makes improvements. Courts require some combination of these acts as a substitute for the writing.
Estoppel
Enforcement is permitted if a party detrimentally relied on the oral promise and serious injustice would result from non-enforcement.
Under Uniform Electronic Transactions Act, e-signatures can satisfy statute of frauds.
Property descriptions are described via Government Survey, Metes and Geographical Bounds, or a. subdivision map.
Seller must deliver a marketable title at closing, unless otherwise specified. Marketable title is title reasonably free from doubt as to its validity, which a cautious purchaser would accept without fear of litigation.
- If the title is subject to an encumbrance (easement, liens, mortgages, etc), the interest is less than what the seller purported, or there is reasonable doubt as to either, the title is unmarketable.
Merger Doctrine
Once the buyer accepts the deed at closing, the purchase contract’s title promise merges into the deed; only the deed’s title covenants govern thereafter.
Equitable Conversion
During executory period (contract signing to closing), courts use this doctrine to treat buyer as owner and allow property to pass down to heirs.
Duty to disclose
under common law traditionally caveat emptor applied, where seller had no duty to disclose defects. Now the modern majority rule is that there is affirmative duty on sellers of residential property to disclose material defects that materially affect the value of the property and which are not known or readily available.
- Way to get around this is to use an as-is clause.
Closing
Closing is typically supervised by escrow agent (neutral third party). Buyer pays purchase price and executes mortgage and promissory note, the lender advances the funds, and the seller delivers a deed. The deed and mortgage are then recorded in the public land records.
Deed is only effective when delivered. Delivery requires the grantor’s manifest intent to immediately and unconditionally transfer title to the grantee. Physical transfer alone is not conclusive; the grantor’s intent at the time of delivery controls.
- Grantor cannot retain control and the right to retrieve a deed.
- Must be delivered and accepted, and be in compliance with statute of frauds and contain words of conveyance with signature of grantor.
Remedies for breach of purchase contract include specific performance, damages, and recission of contract.
Title Assurance
A deed may contain an express promise (covenants, not to be confused with real coventants) by the grantor about the state of title, the three types of deeds commonly used are:
- General Warranty Deed: Grantor warrants title against all defects, whether they arose before or after the grantor obtained title. Broadest protection.
- Special Warranty Deed: Grantor warrants only against defects that arose during the grantor’s ownership
- Quitclaim Deed: No warranties; grantee receives only whatever interest the grantor has, if any.
There are six standard title covenants, you need to know them all.
Those breached at delivery, if at all:
- Covenant of Seisin: promise that the grantor owns the estate they purport to convey.
- Covenant of Right to Convey: a promise that the grantor has the right to convey title.
- Covenant against Encumbrances: a promise that there are no encumbrances on the title, other than those expressly listed in the deed.
And those that are breached in the future, upon actual or constructive eviction:
- Covenant of Warranty: a promise that the grantor will defend the grantee against any claim of superior title.
- Covenant of Quiet Enjoyment: a promise that the grantee’s possession of the property will not be disturbed by anyone holding superior title.
- Covenant of Further Assurance: a promise that the grantor will take all future steps reasonably necessary to cure title defects that existed at closing.
Doctrine of Estoppel by Deed
If a grantor conveys with a warranty deed title she does not yet own, and later acquires title, it automatically passes to the grantee.
- Chain of title: searcher traces ownership backward from current owner to a sovereign, then searches forward under each grantor’s name to discover any conveyances out.
- Constructive Notice: Recording a document provides constructive (record) notice to all subsequent purchasers. However, a recorded document that is outside the chain of title or lacks a sufficient property description may not provide constructive notice.
Recording Acts
recording acts modify the common law first-in-time rule to protect the bona fide (good faith) purchaser. Three types exist:
- Race Statute: priority goes to the party who records first, regardless of notice. Used in few states only.
- Notice Statute: A subsequent Bona Fide Purchaser prevails over a prior unrecorded interest, even without recording. About half states use this approach.
- Race-Notice Statute: A subsequent bona fide purchase prevails only if they both take without notice and record first. About half states use this approach.
Three types of notice can defeat bona fide purchaser status:
- Actual Notice: Direct knowledge of the prior interest
- Record Notice: Constructive notice of any interest that would be discovered by a standard title search.
- Inquiry Notice: Constructive notice of any interest that would have been discovered by investigating suspicious circumstances.
Wild Deed
Grantor never in the chain of title.
Title Insurance
primary method of title protection. If buyer suffers a loss from a covered title defect existing during effective period of policy, the title company pays compensation. The owner of property/title imposes two duties on the insurer: to defend the insured’s title, and to indemnify for losses.
- Exclusions: standard exclusions include governmental regulations affecting use, matters known to the insured but not disclosed, and rights in possession discernible only by survey.
- Exceptions: Property-specific problems discovered in the title search are listed in schedule B and excepted from coverage.
- Scope of coverage: title insurances covers certain off-record defects (ex: forged deeds) that a title opinion would not reveal. However, it does not insure quality of access or physical condition of the property.
CASES
Hickey v. Green (1982)
The Hickeys orally agreed to purchase Lot S from Mrs. Green for $15,000, and in reliance on that agreement they sold their own home, accepting a deposit check from their buyer. Green subsequently refused to honor the oral agreement and sold the lot to a third party for $16,000. The Massachusetts Appeals Court held that while the Statute of Frauds generally bars enforcement of oral real estate contracts, the doctrine of equitable estoppel under Restatement (Second) of Contracts section 129 permitted enforcement because the Hickeys had so changed their position in reasonable reliance on Green's promise that injustice could only be avoided through specific performance. The court remanded for the trial court to require Green to convey the lot upon payment of the agreed price, noting that Green's conduct in inducing such rapid reliance and then reneging for a better offer could not be condoned in equity.
Lohmeyer v. Bower (1951)
Lohmeyer contracted to purchase a home in Emporia, Kansas, and the contract called for the sellers to deliver good merchantable title free and clear of all encumbrances, subject to restrictions and easements of record. After signing, Lohmeyer discovered that the house violated a city ordinance requiring a three-foot setback from the lot line and also violated a subdivision dedication restriction requiring a two-story structure, as the house was only one story. The Kansas Supreme Court held that title was unmarketable and reversed the trial court's grant of specific performance to the sellers, reasoning that while public ordinances alone do not make title unmarketable, it is the actual violation of those ordinances and the violation of private restrictive covenants that exposed the buyer to the hazard of litigation and rendered title doubtful. The court distinguished between the mere existence of restrictions, which Lohmeyer had agreed to accept, and the active violation of those restrictions, which he had not.
Brush Grocery Kart, Inc. v. Sure Fine Market, Inc. (2002)
Brush and Sure Fine entered a five-year commercial lease with an option to purchase at the end of the term, but the parties could not agree on a final purchase price before the lease expired. While litigation over the price term was pending, a hailstorm caused $60,000 in damage to the property, and neither party carried casualty insurance at that point. The Colorado Supreme Court held that the majority rule placing the risk of loss on the buyer as equitable owner upon signing a contract does not apply where the buyer has no right of possession, reasoning that the obligation to maintain property in physical condition follows the right to actual possession and control rather than a mere legal right to force conveyance in the future. Because Brush was not in possession and Sure Fine retained possession and control, Sure Fine bore the risk of loss from the hailstorm.
Stambovsky v. Ackley (1991):Stambovsky contracted to purchase a home in Nyack, New York, only to discover after signing that the seller had publicly and repeatedly represented the house to be haunted by poltergeists, a reputation she herself had cultivated through a Reader's Digest article and local press coverage, and which had become part of the house's recognized identity in the community. The New York Appellate Division held that while New York generally adheres to the doctrine of caveat emptor and imposes no general duty on sellers to disclose, the seller in this case was equitably estopped from relying on that doctrine because she had herself created the condition impairing the property's value, and a New York City buyer could not reasonably be expected to discover through due diligence a ghostly reputation known only to local folklore. The court permitted rescission on equitable grounds, carving out a narrow exception to caveat emptor where the seller has deliberately created and publicized a condition materially impairing the value of the property that a prudent buyer would be unlikely to discover.
Rosengrant v. Rosengrant (1981)
Harold and Mildred Rosengrant, an elderly farming couple, signed a deed conveying their farm to their nephew Jay and then handed it to their banker, instructing him to hold it in a vault for Jay to retrieve after both of them died. Harold continued to farm the land, pay taxes on it, and treat it as his homestead until his death. The Oklahoma Court of Appeals affirmed the trial court's finding that the deed was void for lack of legal delivery, holding that delivery requires the grantor to manifest an intent to immediately and unconditionally transfer title, and that the notation on the envelope addressing it to either Jay or Harold made clear Harold retained the right to retrieve the deed at any time. Because the grant was intended to take effect only upon the deaths of both grantors, it operated as an attempted testamentary transfer rather than a present conveyance, which could not be accomplished through a deed without complying with the Statute of Wills.
Giannini v. First National Bank of Des Plaines (1985)
Giannini contracted to purchase a specific condominium unit in a complex in Glenview, Illinois for $79,515, paid $62,330 in earnest money, but the building was never formally declared a condominium, and the developer and title holder refused to perform. The Illinois Appellate Court reversed the trial court's dismissal of the specific performance claim, holding that condominium units are a form of real property entitled to the same traditional rule that monetary damages are an inadequate remedy for breach of a contract to sell real estate, and that the unit's physical existence was not dependent on the legal declaration of the building as a condominium. The court also rejected the argument that the availability of similar units elsewhere in the complex defeated the claim for specific performance, noting there was no evidence establishing that those units were comparable in price and terms to the one Giannini had contracted to buy.
Brown v. Lober (1979)
The Browns purchased 80 acres of Illinois farmland in 1957 under a general warranty deed and later discovered, when they tried to sell coal rights, that a prior grantor had reserved a two-thirds interest in the mineral rights, leaving them with only a one-third subsurface interest. The Illinois Supreme Court held that the breach of the covenant of seisin had occurred at the time of deed delivery in 1957 and was therefore barred by the 10-year statute of limitations. The court further held that the covenant of quiet enjoyment, a future covenant, had not been breached because a breach of that covenant requires an actual or constructive eviction by someone holding paramount title, and the mere existence of a superior mineral title, without any actual interference with the Browns' possession or their attempt to exploit the mineral estate, did not rise to the level of a constructive eviction.
Luthi v. Evans (1978)
Grace Owens assigned all of her oil and gas lease interests in Coffey County, Kansas to International Tours using a "Mother Hubbard" clause that conveyed all interests in the county generally, but did not specifically describe the Kufahl lease. That assignment was recorded, but four years later Owens assigned her interest in the Kufahl lease specifically to Burris, who checked the public records before purchasing and found no reference to the Kufahl lease in the index. The Kansas Supreme Court held that a Mother Hubbard clause, though valid as between the original parties, does not provide constructive notice to a subsequent bona fide purchaser because the recording statutes require a description of the property with sufficient specificity to allow the register of deeds to index the instrument and identify the specific tract conveyed, and a general "all interests in the county" description fails that standard. Because Burris had no actual notice of the prior assignment to Tours, Burris prevailed.
Allen v. Allen (2014)
Harold Allen claimed ownership of the family home through a July 2001 deed from his mother Ethel that was recorded but contained a defective acknowledgment, because Ethel had signed the deed in front of Harold rather than before the notary as the certificate falsely stated. His sister Deborah claimed ownership through a subsequent November 2001 deed from Ethel to a trust of which Deborah was a cotrustee. The Massachusetts Appeals Court affirmed judgment for Deborah, holding that a deed with a defective acknowledgment, even if facially valid, is not properly recorded and therefore cannot provide constructive record notice to a subsequent grantee. Because Harold's deed was improvidently recorded and could not give Deborah constructive notice, and because Deborah's deed for the trust was made for nominal consideration and therefore did not qualify her as a bona fide purchaser for value, the court treated this as a dispute about which conveyance was actually valid, ultimately finding for Deborah.
Board of Education of Minneapolis v. Hughes (1912)
Carrie Hoerger conveyed a vacant lot to Hughes by a deed with the grantee's name left blank; Hughes later filled in his own name and recorded the deed. Before Hughes recorded, Hoerger also sold the same lot to Duryea and Wilson, who then conveyed it to the Board of Education, which recorded its deed before Hughes inserted his name and recorded. The Minnesota Supreme Court held that the deed to Hughes did not become operative as a conveyance until he inserted his name as grantee, at which point he was a subsequent purchaser whose deed was recorded before the Board's chain of title was complete in the records. Because the deed from Hoerger to Duryea and Wilson had not been recorded at the time Hughes filled in his name and recorded, Hughes took without record notice of the prior conveyance and qualified as a protected bona fide purchaser under Minnesota's race-notice statute, prevailing over the Board of Education.
Raub v. General Income Sponsors of Iowa, Inc. (1970)
Jessie Raub was defrauded into conveying her homestead by warranty deed to a corporation whose officers systematically bilked her of her savings over several years; she remained on the property paying rent to the fraudsters while two banks took mortgages from the corporation, recorded them, and paid valuable consideration without any knowledge that the underlying deed had been procured by fraud. The Iowa Supreme Court held that while the fraudulent deed was properly voided against the corporation, the banks qualified as bona fide mortgagees for value without notice and their mortgages were enforceable, because a mortgagee is treated like a purchaser for recording act purposes. The court further held that Raub's continued possession of the property as a tenant after the deed was recorded did not give the banks inquiry notice of her fraud claim, because possession by a grantor following a recorded conveyance is not inconsistent with the rights of the new title holder and therefore does not trigger a duty to investigate.
Riordan v. Lawyers Title Insurance Corp. (2005)
The Riordans purchased 160 acres of wilderness land in the Sandia Mountain Wilderness of New Mexico for $225,000 and held a title insurance policy that, among other things, insured against a "lack of right of access to and from the land." When the United States refused to grant vehicular access across the surrounding federal wilderness land, the Riordans sued their title insurer for the loss in value caused by the absence of vehicular access. The federal district court granted summary judgment for the insurer, holding that the policy's plain language insured only against the absence of a legal right of access, not against the practical or physical quality of that access, and the Riordans had at all times possessed a federally mandated right of pedestrian and equestrian access via the Piedra Lisa Trail. The court further held that any claim based on the denial of vehicular access arose from the government action exclusion in the policy, which excluded losses caused by laws or regulations restricting the use or occupancy of land.
The Promissory Note
a promissory note is the written contract by which the borrower promises to repay the loan, it has intrinsic value as a negotiable instrument.
A mortgage or deed of trust has no intrinsic value, it merely provides as a remedy if the borrower defaults. Once the debt is satisfied, the mortgage is extinguished.
Acceleration Clause
allows a lender to demand the entire loan balance upon a single missed payment. Valid in all states, acceleration is a preliminary step to foreclosure.
Due-on-Sale Clause
Allows the lender to demand full repayment if the borrower transfers the property. Its purpose if to force refinancing at current aka higher rates. Fully enforceable under federal law unless state law says otherwise.
Non-monetary obligations
borrower must also: maintain the property in good condition, avoid waste, carry adequate insurance, and defend title against third party claims.
Liability of Successor Owners
Buyer is personally liable alongside original borrower, may sue buyer directly on default.
Taking Subject To
Buyer not personally liable; only the property is at risk, but the buyer has economic incentive to keep payments current.
You know what Subprime Lending loans were, so we won’t talk about it further.
Providing Security for Purchased Property (4 methods):
Mortgage
Traditional instrument: the mortgagor (borrower) conveys a security interest in real property to the mortgagee (lender) as security for the promissory note.
- Three theories of mortgage: (1) Title Theory -- lender receives title; (2) Intermediate Theory -- lender holds title but no right to possession until default; (3) Lien Theory (majority) -- mortgage creates only a lien; lender has no right to possession until foreclosure.
- Important provisions: recording (standard practice to protect against bona fide purchasers); purchase money mortgage (priority over most other liens); rents-and-profits clause; future advance clause; anti-clogging rule (borrower cannot waive equity of redemption contemporaneously with the mortgage).
Deed of Trust
Three-party arrangement: trustor (borrower) conveys property to trustee for benefit of beneficiary (lender). Creates an express power of sale. Modern law treats the deed of trust like a mortgage with power of sale; the trustor and beneficiary have the same rights and duties as mortgagor and mortgagee.
Installment Land Contract
Buyer (vendee) pays purchase price in installments to seller (vendee); seller retains legal title until paid in full. Equitable title passes to buyer upon signing. Traditional forfeiture clauses allowed sellers to keep all payments on default; modern courts increasingly treat installment contracts as mortgage substitutes and require judicial foreclosure (see Slone v. Calhoun, Ky. 2012). Historical concern: used exploitatively against Black and low-income buyers through redlining (FHA refused to insure mortgages in minority neighborhoods).
Equitable Mortgage
Where a deed is given as security for a debt (disguised mortgage), courts apply the equitable mortgage doctrine and treat the transaction as a mortgage, giving the seller borrower protections.
- Eight-factor O'Brien test (adopted in Zaman v. Felton, N.J. 2014): (1) homeowner's intent to retain ownership; (2) disparity between value received and property value; (3) option to repurchase; (4) continued possession; (5) continued ownership duties; (6) disparity in bargaining power; (7) irregular purchase process; (8) financial distress/imminent foreclosure.
Foreclosing on the Security - Borrower's Rights Before the Foreclosure Sale
Reinstatement
pay missed payments before the lender accelerates (some states allow reinstatement even after acceleration within a limited period).
Equitable Redemption
pay the full loan balance at any time after default and before the foreclosure sale.
Judicial Foreclosure
Traditional method (dominant in ~1/3 of states). lender files suit against borrower, junior lienors, and other junior interest holders. Court issues judgment; property sold at public auction. Sale confirmed by court; borrower's equity of redemption terminates on confirmation. Junior interest holders not named as defendants are unaffected by the foreclosure.
Nonjudicial (Power of Sale) Foreclosure
Dominant method in most states; faster and cheaper than judicial foreclosure but less protective of borrowers. Lender/trustee gives notice and sells at public auction -- no court involvement.
- Remedy if lender improperly initiates nonjudicial foreclosure: borrower seeks injunction.
Results of the Foreclosure Sale -- Two Core Principles
Principle 1
Foreclosure eliminates ("wipes out") the foreclosed mortgage and all junior interests, but does not affect senior interests. Buyers take title free of junior claims.
Principle 2
Sale proceeds distributed: (1) to foreclosing lender; (2) to junior lienors in priority order; (3) surplus to borrower.
Special Priority Rules
Purchase money mortgage
priority over all other interests attaching through the buyer.
Future advance mortgage
if lender is obligated to make future loans, new advances take priority from the original mortgage date; if merely optional and lender has notice of an intervening interest, new advances have priority only from the date made.
Deed in lieu of foreclosure
does not eliminate junior interests; lender takes title subject to them.
Exercising Rights After Foreclosure - Protecting the Borrower
Statutory right of redemption (about half of states)
borrower may repurchase from the successful bidder within a set period (often one year) by paying the sale price plus interest and costs.
Setting aside the sale
available in most jurisdictions if (a) price is so grossly inadequate as to "shock the conscience" of the court, or (b) price is substantially below market and a procedural irregularity occurred (see Wansley v. First Nat'l Bank of Vicksburg, Miss. 1990).
Protecting the Lender - Deficiency Judgments
If foreclosure proceeds do not fully repay the loan, lender may sue for a deficiency judgment (breach of the promissory note) against the borrower.
Anti-deficiency protections (many states)
(1) Fair Value rule -- deficiency limited to unpaid balance minus fair market value on sale date; (2) Prohibition -- no deficiency after nonjudicial foreclosure or purchase money mortgage foreclosure; (3) Commercial Reasonableness standard (Wansley) -- every aspect of the sale (method, advertising, time, place, terms) must be commercially reasonable before a deficiency judgment is allowed.
CASES:
Slone v. Calhoun
the plaintiff appealed a judgment dismissing her complaint after the trial court ruled she had forfeited her interest in a mobile home and lot under an installment land contract. The court held that the forfeiture provision was invalid and that an installment land contract must be treated as a purchase money mortgage. In its legal analysis, the court relied on Kentucky precedent establishing that there is no practical distinction between these two types of financing, meaning the seller’s only judicial remedy for a breach is a judicial sale rather than forfeiture.
Zaman v. Felton
a homeowner facing foreclosure entered into a complex agreement involving a sale, a leaseback, and an option to repurchase her property. The court held that trial courts must use an eight-factor framework, known as the O’Brien factors, to determine if such a transaction is actually an equitable mortgage. The legal analysis emphasized that equity looks to the substance of a transaction over its form, considering details like the disparity between the sale price and the property’s actual value and whether the homeowner remains in possession.
Wansley v. First Nat’l Bank of Vicksburg
two brothers challenged the validity of a foreclosure sale of their farmland because the trustee who conducted the sale was also the bank’s general counsel. The court held that the foreclosure sale was valid and that the independence of a trustee is less important than whether the sale was conducted in a commercially reasonable manner. The legal analysis concluded that as long as the sale price is not so inadequate as to shock the conscience or involve fraud, every aspect of the sale process should be judged by an objective standard of commercial reasonableness to protect the interests of the debtor
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Easement
Land cannot be used unless the owner has adequate access to it. For example, an easement across land owned by another. Easement authorizes A to do something to the land of B.
- Easements are most commonly created to allow an owner such as A to travel to her land. But they are also used to run cables, television lines, gas pipes, etc. on other persons land to benefit A.
Types of Easements:
- Express Easement: most common easement. Occurs when servient owner grants easement to dominant owner. It’s voluntary created in a deed, will or other written instrument granting or reserving a land right. The conveyance must be in line with the statute of frauds per being written, identifying parties, containing words of intent, describing affected land, and being signed by the grantor.
- Implied Easement by prior existing use: Basically, even though A and B never expressly agreet to create an easement, the court may infer such intent from the presence of an existing use (the power lines across B’s land) and impose an easement by operation of law. Statute of frauds is inapplicable here. Three elements required: a) severance of title to land held in common ownership (at least one parcel must be held by the owner at time of splitting propery); b) an existing, apparent, and continuous use when the severance occurs; and 3) reasonable necessity for the use at the time of the severance.
- Easement by necessity: self explanatory. A property owner can’t make use of their land without crossing or using some portion of the other parties land. Two elements required: 1) severance of title to land held in common ownership; and 2) necessity for the easement at the time of the severance.
- Prescriptive easement: closely related to the doctrine of adverse possession. Essentially, A has been continuously using part of B’s land to access or appreciate some benefit of A’s property. They have been doing it for a long time without interruption and now wish to assert the natural right to use the land even if they acknowledge it’s B’s property. Elements are as follows: a) open and notorious; b) adverse and under a claim of right, meaning using without permission and as a reasonable owner would use it; and c) continuous and uninterrupted for the statutory period. Basically it’s adverse possession but without the exclusive possession and actual entry/possession elements.
- Easement by estoppel (or irrevocable license): Basically you can use this portion of land because you have a license to do so or were gifted the right to do so. A license can be revoked by owner at any time (conditions to this), but a license given through estoppel cannot. The irrevocable license is the function equivalent of an easement for most purposes, which are called easement by estoppel. The required elements of an irrevocable license are: a) a license, typically for access purposes; b) a licensee’s expenditure of substantial property money or labor in good faith reliance; and c) the licensor’s knowledge or reasonable expectation that reliance will occur. Please not that regular license’s can be express or implied. There is also reliance by licensee, which is access to servient land directly benefiting the licensor, such as improving land or fixing the road.
Real Covenant
A real covenant is a promise concerning the use of the land that benefits and burdens the original parties to the promise and also their successors and is enforceable in an action for damages. It essentially runs with the land, or better stated, the estate. It’s a tool to allow a promise to be enforced against successor owners under limited circumstances.
- The damages awarded for a dispute of real covenant violation is money damages.
Reason Real Covenants are allowed
the acknowledgement that the real covenant and the equitable servitude can help to ensure that the land is used efficiently; therefore, enhancing productivity.
- Also, for individual liberty rights of owner
Six elements for Real Covenant to “Run” with the land:
1) the covenant must be in writing (statute of frauds);
- best if in the deed or lease itself.
2) the original parties must intend to bind their successors;
- use words like “assign,” “heirs,” or “successors.”
3) the covenant must “touch and concern” land;
- basically the burden must “relate” to the land’s use or enjoyment.
4) horizontal privity must exist;
- basically, this refers to the relationship between original parties to the promise, ignoring the successors. This can be between two people who own mutual interest in the land (landlord-tenant) (reversion and nonfreehold estate) (easement and fee simple absolute), etc. If the covenant includes language binding to “B’s successors/heirs/etc., ” A can recover damages from B’s successors.
5) Vertical privity must exist; and
- Vertical privity concerns the relationship between the original covenant party and their successors. If the successor succeeds to the entire estate in land held by original covenanting party, vertical privity exists. However, if the successor acquires less than the the entire estate, no vertical privity exists. Many states, however, have relaxed this standard, allowing vertical privity for a lesser interest than entire estate. No vertical privity exists in a life estate or term of years.
6) the successor must have notice of the covenant.
- What it sounds like. Successors must have been aware in writing, should have been aware, or knew ahead of time that covenant exists.
Equitable Servitude
an equitable servitude is the primary modern tool for enforcing private land use restrictions. It’s a promise concerning the use of land that (1) benefits and burdens the original parties to the promise and their successors and (2) is enforceable in equity.
Elements of Equitable Servitude:
a) promise must be in writing or implied from a “common plan;”
b) the original parties must intend to bind successors;
c) the promise must “touch and concern” the land; and
d) the successors must have notice of the promise.
Neither Horizontal privity or vertical privity is required.
CASES:
Emanuel v. Hernandez
the plaintiffs sought a declaratory judgment for an easement by implication over a driveway located primarily on their neighbors' property to access their garage. The court reversed a summary judgment for the plaintiffs, holding that they failed to establish the necessary elements for an easement by prior existing use. In its legal analysis, the court explained that such an easement requires common ownership of the parcels followed by a severance of title, at which time there must be an existing, apparent, and continuous use for the benefit of the other part of the parcel. Because the plaintiffs provided no evidence that the driveway existed when the common owner severed the property in 1890, they could not prove that an easement was intended at the time of the conveyance. In Berge v. State of Vermont, a property owner appealed the denial of his claim for an easement by necessity after the state placed a gate across the only road leading to his land. The court held that access to property via navigable water does not necessarily defeat a claim for an easement by necessity. The legal analysis emphasized that the requirement for an easement by necessity is a lack of reasonably practical access to the land. The court concluded that in the modern era, water access alone is generally insufficient to provide for the reasonable enjoyment of property, as it is subject to the vicissitudes of weather and lacks the consistency of land based transport.
O’Dell v. Stegall
a homeowner claimed a prescriptive easement to use a private gravel lane to access his driveway, citing years of use by himself and predecessors. The court held that the plaintiff failed to prove his use was adverse and therefore did not acquire a prescriptive easement. In its legal analysis, the court clarified that a claimant must show by clear and convincing evidence that their use was open, notorious, continuous, and adverse to the owner for at least ten years. The court shifted the burden of proof to the claimant to show adversity, concluding that the mere use of another's land is not presumed to be adverse and may instead be a neighborly accommodation.
Kienzle v. Myers
a dispute arose when a property owner attempted to terminate a neighbor's use of a sewer line that had been installed across the property decades earlier by a previous owner. The court held that an easement by estoppel was created because the neighbor had reasonably relied on the permission granted. The legal analysis established that an easement by estoppel arises when a landowner's permission leads another to change their position in reliance on that permission, making it unjust to revoke the access. The court found that the substantial cost and the permanent nature of burying a sewer line constituted a significant change in position that prevented the current owner from denying the existence of the easement.
Deep Water Brewing, LLC v. Fairway Resources Ltd.
In this case, a restaurant owner's predecessor granted a right of way to a developer who promised to limit house heights to 16 feet to preserve the lake view, but the developer later increased the height limit to 26 feet. The court held that the height restriction ran with the land as a real covenant, granting the successor owner the right to enforce it and recover damages. The legal analysis focused on five elements required for a running covenant, determining that the agreement touched and concerned the land by enhancing the restaurant's value while restricting the development parcel. Furthermore, the court found that vertical and horizontal privity existed because the restriction was tied to the original transfer of the right of way interest between the parties.
Gambrell v. Nivens After selling a lot with an attached but unsigned list of residential use restrictions, the original owners sought to stop a subsequent purchaser from building a commercial wedding chapel on the property. The court held that the restrictions were enforceable as an equitable servitude even though they failed the formal legal requirements for a real covenant. In its legal analysis, the court explained that equity will bind a remote grantee if the covenant touches and concerns the land, the parties intended it to run, and the grantee had notice. Because the purchaser had actual notice of the restrictions before buying the land, the court concluded it would be unfair not to enforce the residential limitation.
Shelley v. Kraemer
A Black family purchased a home unaware that a private restrictive covenant signed by neighbors decades earlier barred non-white people from owning or occupying property in that area. The Supreme Court held that while the private agreements themselves were not prohibited, judicial enforcement of such racially restrictive covenants by state courts violates the Equal Protection Clause of the Fourteenth Amendment. The legal analysis clarified that when a state court uses the coercive power of the government to divest a person of property rights based on race, it constitutes state action. This ruling established that the Fourteenth Amendment prevents states from enforcing private discriminatory agreements that deny citizens the equal enjoyment of property rights.
COMMON INTEREST COMMUNITIES (CIC) AND CC&Rs
Overview of Common Interest Communities
A common interest community (CIC) is a planned residential development in which (a) all properties are subject to comprehensive private land use restrictions and (b) a homeowners association governs the community. CICs are created through a written instrument called a declaration, which typically establishes: (1) the homeowners association and its governing board; (2) CC&Rs (covenants, conditions, and restrictions) enforceable as real covenants or equitable servitudes; (3) mandatory monetary assessments on all unit owners; and (4) ownership rights, including fee simple absolute in each unit and an undivided interest in common areas (pools, tennis courts, meeting rooms). The CIC functions somewhat like a private government, raising questions about whether CC&Rs resemble a constitution or a contract, and whether the homeowners association resembles a public entity or a private corporation.
Termination of Covenants
Prior to the CIC material, the text identifies six ways a restrictive covenant may be terminated: (1) Acquiescence — failure to enforce against other violators bars enforcement against a later defendant; (2) Condemnation — condemnation of the servient land terminates the covenant; (3) Estoppel — inequitable enforcement where the defendant has substantially changed position in reliance on the plaintiff's conduct; (4) Merger — if one person owns all benefited and burdened land, the covenant ends; (5) Prescription — using the prescriptive easement standard; and (6) Public Policy — covenants violating important public policy are unenforceable (e.g., racial restrictions per Shelley v. Kraemer; monuments to Confederate figures per Taylor v. Northam, 862 S.E.2d 458 (Va. 2021)).
Enforcing CC&Rs — The Nahrstedt Standard
In Nahrstedt v. Lakeside Village Condominium Association, Inc., 878 P.2d 1275 (Cal. 1994), the California Supreme Court addressed whether a pet restriction in the recorded declaration of a 530-unit condominium complex could be enforced against a homeowner who kept three indoor cats that were noiseless and created no nuisance.
The Court of Appeal had held that enforcement required proof the cats would interfere with others' peaceful enjoyment. The California Supreme Court reversed, holding that under California Civil Code § 1354, use restrictions in a recorded declaration are presumptively valid and must be enforced uniformly unless the challenger proves the restriction is arbitrary, imposes burdens that substantially outweigh benefits to the development as a whole, or violates fundamental public policy. Reasonableness is assessed by reference to the development as a whole, not by the individual owner's circumstances.
The dissent (Arabian, J.) argued that pet ownership is integral to quality of life for many, particularly the elderly and ill, and that the majority's approach gives virtually unreviewable validity to any recorded restriction. After Nahrstedt, the California legislature partially overturned the decision by enacting Civil Code § 4715, entitling each unit owner to keep at least one pet.
Validity of Specific CC&R Provisions
Courts routinely uphold CC&Rs restricting commercial uses. Short-term rentals (e.g., Airbnb) are generally treated as residential uses, not commercial ones. Restrictions on leasing and sale — such as requiring association approval or granting the association a preemptive purchase right — are enforced if reasonable. CC&Rs restricting sex offenders from residing in a community have been upheld on procedural grounds, though courts have expressed concern about blanket exclusions.
Interpreting CC&Rs
At common law, restrictive covenants were narrowly construed because they limited the free use of land. Modern courts, per Restatement § 4.1, interpret CC&Rs to give effect to the intent of the parties as ascertained from the language, circumstances of creation, and the purpose for which the restriction was created.
NUISANCE LAW
Overview and Elements of Private Nuisance
Private nuisance, as defined by Restatement (Second) of Torts § 821D, is a nontrespassory invasion of another's interest in the private use and enjoyment of land. A plaintiff must prove (1) intentional conduct — the defendant acts for the purpose of causing harm or knows harm is substantially certain to result; (2) nontrespassory — no physical entry on land (noise, vibration, odors qualify); (3) unreasonable — either the gravity of harm outweighs utility of conduct (Restatement standard) or the conduct causes substantial harm regardless of utility (gravity-of-harm test); (4) substantial interference — more than slight inconvenience or petty annoyance; and (5) interference with use and enjoyment of land.
Boomer v. Atlantic Cement Co., Inc. — Industrial Nuisance and Remedies
In Boomer v. Atlantic Cement Co., Inc., 257 N.E.2d 870 (N.Y. 1970), neighbors of a large cement plant sued for injunction and damages caused by dust, smoke, and vibrations. The court found a nuisance but declined to issue an injunction — departing from the traditional New York rule that a nuisance resulting in substantial damage must be enjoined.
The court instead awarded permanent damages, treating the harm as a servitude imposed on plaintiffs' land ($185,000 total), which would terminate the private litigation. The court reasoned that: (a) the economic disparity between the injunction's consequences (plant closure) and the damage to plaintiffs was enormous; (b) air pollution remediation requires massive public expenditure and interstate regulation beyond a single lawsuit's scope; and (c) requiring permanent damages would provide an incentive for industry to develop pollution-abating technology.
The dissent (Jasen, J.) argued that allowing the cement company to continue polluting upon payment effectively licenses a continuing wrong, eliminates incentives to abate, and endorses particulate pollution — a serious public health hazard causing asthma, lung cancer, and premature death.
Thomsen v. Greve — Residential Nuisance and the Restatement Standard
In Thomsen v. Greve, 550 N.W.2d 49 (Neb. Ct. App. 1996), adjacent homeowners sued to enjoin use of a wood-burning stove whose smoke entered their home approximately 140 times over four years, causing physical illness. The court applied the Restatement (Second) of Torts §§ 826-828 balancing test, weighing the gravity of harm (extent and character of harm, social value of invaded use, locality, burden of avoidance) against the utility of conduct (social value of conduct, suitability to locality, impracticability of prevention).
The court found the harm (creosote smell making the home uninhabitable on 140 occasions, physical illness) to be substantial, and the utility of the wood-burning stove (mere cost savings on fuel) comparatively low. A nuisance was found, and the Greves were ordered to raise the chimney three feet, burn only clean dry firewood, and pay $4,000 in damages.
Choice of Remedy and Other Nuisance Principles
Contrast Boomer and Thomsen: the former refused an injunction for serious public harm (particulate pollution) in favor of permanent damages; the latter granted an injunction for a comparatively minor neighborhood dispute. Aesthetic nuisance — mere unsightliness — is generally not a private nuisance because it does not affect one's ability to use and enjoy land. Anticipatory nuisance injunctions are available but require showing the proposed conduct will necessarily or certainly create inevitable and undoubted harm.
BASICS OF ZONING
Historical Background: By the early twentieth century, industrial development and urbanization had created severe slum conditions in American cities, with density levels up to 1,700 persons per acre and rampant disease. Existing tools — nuisance law, covenants, servitudes — could not effectively manage these problems. The Supreme Court upheld the constitutionality of comprehensive zoning in Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926), which became the model for zoning ordinances nationwide.
Structure of Land Use Regulation
identifies four aspects of land use regulation: (1) Nuisance law — the traditional tool for resolving land use conflicts; (2) Basics of zoning — the constitutional foundation established in Euclid; (3) Zoning flexibility — tools including zoning amendments, variances, and conditional uses; and (4) Outer limits — controversies including aesthetic regulation, 'family' zoning, and exclusionary zoning.
EMINENT DOMAIN — SCOPE OF PUBLIC USE
Constitutional Framework
The Fifth Amendment imposes two restrictions on the government's power to take private property: (a) property may be taken only for a public use, and (b) just compensation must be paid. Just compensation is generally defined as fair market value — the price a willing buyer would pay a willing seller — though this may not fully reflect the unwilling seller's subjective or emotional attachment, moving expenses, loss of goodwill, or the indignity of displacement.
Economic Development as Public Use
In Kelo v. City of New London, 545 U.S. 469 (2005), the Supreme Court (5-4) held that a city's comprehensive economic development plan — designed to create jobs, increase tax revenues, and revitalize a distressed municipality by transferring condemned land to private developers — satisfied the Fifth Amendment's public use requirement.
The majority (Stevens, J.) reasoned that
(a) a literal requirement that condemned property be physically open to the public was long ago rejected; (b) Berman v. Parker, 348 U.S. 26 (1954) (urban renewal of blighted Washington D.C.) and Hawaii Housing Authority v. Midkiff, 467 U.S. 229 (1984) (redistribution of land oligopoly) established that economic development qualifies as public purpose; and (c) courts should defer to legislative judgments in this field as long as takings are rationally related to a conceivable public purpose. Because the NLDC's plan was comprehensive, carefully deliberated, and not adopted to benefit identifiable individuals, it satisfied the public use requirement.
Justice Kennedy concurred, emphasizing that a taking to confer benefits on particular, favored private entities with only incidental public benefit would be forbidden. Justice O'Connor dissented, arguing the majority effectively deletes the words 'for public use' from the Takings Clause, allowing any Motel 6 to be replaced by a Ritz-Carlton and predicting that large corporations and development firms will be beneficiaries while ordinary homeowners — disproportionately poor and minority — will be victims. Justice Thomas dissented, arguing the original meaning of 'public use' requires the public to have a legal right to use the property, and noting that urban renewal historically devastated minority communities.
Aftermath and State Legislative Responses
The public reaction to Kelo was swift and widespread. Within one year, 26 states adopted legislation limiting the use of eminent domain for private economic development. The redevelopment project in New London ultimately failed: Pfizer closed its research center, the anticipated jobs never materialized, and Kelo's lot became a 'barren wasteland.' States have adopted various approaches to limit Kelo: (1) defining 'public use' as physical possession or enjoyment by the public; (2) restricting eminent domain to blighted properties; (3) requiring compensation above fair market value for primary residences; or (4) placing a moratorium on economic development takings. The Kelo majority itself acknowledged that states may impose stricter 'public use' requirements than the federal constitutional floor.
The Means v. Ends Debate
Professor Thomas Merrill argues that the public use question should focus on means, not ends — asking not what the government plans to do with acquired property, but whether eminent domain was a necessary method of achieving the legislative end. Under a means-based test, courts would take a more active role in reviewing whether condemnation was truly necessary or merely a convenient shortcut around voluntary market transactions, providing a more judicially manageable and narrower inquiry than the broad ends-based deference of Kelo.
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Subject-matter jurisdiction (SMJ)
the court's power to hear the type of case in front of it. Federal courts are courts of limited jurisdiction, so a federal court needs both a constitutional and a statutory basis to hear a case.
Cannot be waived
unlike personal jurisdiction, the parties cannot waive subject-matter jurisdiction or agree to create it. A court can raise the issue on its own at any point, even for the first time on appeal.
Burden
the party trying to get into federal court has to show that jurisdiction exists. The two main doors are federal-question jurisdiction and diversity jurisdiction.
Statute
28 U.S.C. Section 1331 gives federal courts jurisdiction over civil actions arising under the Constitution, laws, or treaties of the United States.
Well-pleaded complaint rule
the federal question has to appear on the face of the plaintiff's own complaint. A federal defense, or a federal counterclaim, does not create federal-question jurisdiction.
Louisville and Nashville Railroad Co. v. Mottley
A plaintiff cannot create federal-question jurisdiction by predicting a federal defense in the complaint. The federal issue has to be part of the plaintiff's own claim.
Statute
28 U.S.C. Section 1332 gives federal courts jurisdiction when there is complete diversity of citizenship between the parties and the amount in controversy is more than 75,000 dollars.
Complete diversity
no plaintiff may share state citizenship with any defendant. If even one plaintiff and one defendant are from the same state, diversity is destroyed.
Citizenship of a person
an individual is a citizen of the one state where they are domiciled, meaning the state where they live and intend to stay.
Citizenship of a corporation
a corporation is a citizen of every state where it is incorporated and the one state of its principal place of business, which courts treat as its nerve center.
Amount in controversy
the plaintiff's good-faith demand controls unless it is clear to a legal certainty that the claim is worth less than the threshold. A single plaintiff may add up all of its claims against a single defendant to reach the amount.
Strawbridge v. Curtiss
Diversity jurisdiction requires complete diversity, so every plaintiff must be diverse from every defendant.
Hertz Corp. v. Friend
A corporation's principal place of business is its nerve center, which is usually the headquarters where its officers actually direct and control the company.
Statute
28 U.S.C. Section 1367 lets a federal court hear extra claims that are so related to the anchor claim that they form part of the same case or controversy.
Common nucleus of operative fact
the supplemental claims have to share a common nucleus of operative fact with the claim that got the case into federal court.
The diversity limit
in a case that is in federal court only because of diversity, a plaintiff cannot use supplemental jurisdiction to add claims against certain joined parties if doing so would break complete diversity.
Discretion
a court may decline to hear supplemental claims, for example after it has dismissed every claim that gave it original jurisdiction.
Statute
28 U.S.C. Section 1441 lets a defendant move a case from state court to the federal court for that district, but only if the case could have been filed in federal court in the first place.
Procedure
the defendant has to remove within 30 days, and all defendants have to agree to the removal.
The in-state defendant rule
a diversity case cannot be removed if any defendant is a citizen of the state where the plaintiff filed it.
Remand
if the removal was improper, the federal court sends the case back to state court.
Personal jurisdiction
the court's power over the parties, which usually means power over the defendant. A court needs personal jurisdiction to enter a judgment that actually binds the defendant.
Two requirements
there has to be a statutory basis, normally a long-arm statute, and the exercise of jurisdiction has to satisfy the Due Process Clause.
Waiver
unlike subject-matter jurisdiction, a defendant can waive personal jurisdiction or consent to it.
Pennoyer v. Neff
A state has power over the people and the property inside its borders. Traditionally, a court had jurisdiction if the defendant was served while present in the state, was domiciled there, or consented.
Presence
serving a defendant with process while they are physically in the state is still a valid basis for jurisdiction today.
Domicile and consent
a court also has jurisdiction over a defendant who is domiciled in the state, or one who agrees to be sued there.
International Shoe Co. v. Washington
A court may exercise jurisdiction over an out-of-state defendant if the defendant has minimum contacts with the state such that the suit does not offend traditional notions of fair play and substantial justice.
General jurisdiction
when a defendant's contacts with the state are so continuous and systematic that the defendant is essentially at home there, the court can hear any claim against it, even one unrelated to those contacts. For a person that home is the domicile, and for a corporation it is usually the place of incorporation and the principal place of business.
Specific jurisdiction
when the claim itself arises out of or relates to the defendant's contacts with the state, the court may hear that particular claim.
Purposeful availment
the defendant has to have aimed activity at the state on purpose, so that getting sued there is foreseeable. A plaintiff bringing a product into the state on their own is not enough.
World-Wide Volkswagen Corp. v. Woodson
A defendant must purposefully avail itself of the forum state. It is not enough that a product sold somewhere else happened to end up in the state because of the plaintiff's own actions.
Fairness factors
even when minimum contacts exist, courts weigh the burden on the defendant, the forum state's interest, the plaintiff's interest in relief, and the shared interest of the states in resolving disputes efficiently.
In rem
jurisdiction over a piece of property itself, used to decide rights in that property against the world.
Quasi in rem
jurisdiction based on the defendant's property in the state, used to resolve a claim against the owner up to the value of that property.
Shaffer v. Heitner
The minimum-contacts test applies to in rem and quasi in rem jurisdiction too. The presence of property in the state, standing alone, is not enough.
Due process notice
before a court can bind a defendant, the defendant has to get notice that is reasonably calculated to inform them of the case and give them a chance to be heard.
Mullane v. Central Hanover Bank and Trust Co.
Notice must be reasonably calculated, under all the circumstances, to inform interested parties of the action. When a party's name and address are known, mailed notice is required, and publication alone will not do.
FRCP 4
governs how the summons and complaint get served. Service is what gives the court power over the defendant and starts the clock on the defendant's response.
Serving an individual
a plaintiff may serve an individual by handing them the papers, by leaving the papers at their home with a suitable person who lives there, by delivering to an authorized agent, or by any method the state allows.
Waiver of service
under Rule 4(d), the plaintiff may ask the defendant to waive formal service. A defendant who waives gets more time to answer, and a defendant who refuses without good cause may have to pay the cost of being served.
Time limit
under Rule 4(m), the plaintiff generally has to serve the defendant within 90 days of filing the complaint.
Venue
the rules that decide which district is the proper place for the case. Venue is about convenience, and it is a separate question from jurisdiction.
Statute
under 28 U.S.C. Section 1391, venue is generally proper in a district where any defendant resides, if all defendants reside in the same state, or in a district where a substantial part of the events giving rise to the claim happened.
Transfer when venue is proper (Section 1404)
a court may move a case to another district where it could have been brought, for the convenience of the parties and witnesses and in the interest of justice.
Transfer when venue is improper (Section 1406)
when venue was wrong, a court may either dismiss the case or transfer it to a district where venue is proper.
Forum non conveniens
a court may dismiss a case, even when venue and jurisdiction are proper, if a far more convenient forum exists somewhere the transfer statutes cannot reach, usually a court in another country.
Factors
courts weigh private interests, like access to evidence and witnesses, against public interests, like court congestion and the local interest in deciding the dispute.
The question
when a federal court hears a state-law claim in diversity, does it apply state law or federal law on a given issue?
Erie Railroad Co. v. Tompkins
A federal court sitting in diversity has to apply state substantive law, and there is no general federal common law. The point is to keep the outcome of a case from changing just because it is in federal rather than state court.
The line
federal courts apply state substantive law and federal procedural law. The hard cases are the ones where it is unclear which side of that line a rule falls on.
Outcome-determinative test
Guaranty Trust Co. v. York asked whether using the federal rule instead of the state rule would significantly change the outcome of the case. If it would, the court leaned toward the state rule.
Twin aims of Erie
the modern test focuses on the twin aims of Erie, which are discouraging forum shopping and avoiding the inequitable administration of the laws.
Hanna analysis
if a valid Federal Rule of Civil Procedure directly answers the question, the federal court applies that Rule, as long as it is procedural and within the scope of the Rules Enabling Act.
Hanna v. Plumer
When a Federal Rule of Civil Procedure is on point and valid, it controls over conflicting state law. When no federal rule is on point, the court falls back on the twin-aims analysis.
FRCP 8
a complaint has to contain a short and plain statement of the grounds for jurisdiction, a short and plain statement of the claim showing the plaintiff is entitled to relief, and a demand for relief.
Plausibility standard
a complaint has to state a claim that is plausible on its face, not merely possible. The court accepts the well-pleaded facts as true but sets aside legal conclusions.
Bell Atlantic Corp. v. Twombly
A complaint needs enough facts to make the claim plausible, not just conceivable.
Ashcroft v. Iqbal
The plausibility standard applies to every civil case. Courts ignore conclusory allegations and ask whether the remaining facts plausibly state a claim.
Heightened pleading
under Rule 9(b), claims of fraud or mistake have to be pleaded with particularity.
The response
the defendant answers by admitting or denying each allegation and raising any affirmative defenses, or it responds with a pre-answer motion under Rule 12.
Affirmative defenses
defenses like the statute of limitations, res judicata, and waiver have to be raised in the answer, or the defendant may lose them.
Failure to deny
an allegation other than the amount of damages is treated as admitted if the answer does not deny it.
FRCP 15
a party may amend once as a matter of course within a set window, and after that with the other side's consent or the court's leave, which courts give freely when justice requires.
Relation back
an amendment that adds a claim arising out of the same conduct described in the original pleading relates back to the original filing date, which can rescue a claim from the statute of limitations.
FRCP 11
by signing a filing, an attorney certifies that it is not for an improper purpose, that the legal arguments are warranted, and that the factual claims have evidentiary support. A court may impose sanctions for a violation, but the rule gives a 21-day safe harbor to withdraw the challenged filing first.
FRCP 18
a party who is asserting a claim may join as many additional claims as it has against the opposing party.
Counterclaims (FRCP 13)
a compulsory counterclaim arises out of the same transaction as the opposing party's claim, and it has to be raised in that case or it is lost. A permissive counterclaim is any other claim, and a party may raise it but does not have to.
Crossclaims
a party may bring a crossclaim against a co-party when it arises out of the same transaction or occurrence.
Permissive joinder (FRCP 20)
plaintiffs or defendants may be joined when the claims arise out of the same transaction or occurrence and share a common question of law or fact.
Required parties (FRCP 19)
a party has to be joined when the court cannot grant complete relief without them, or when their absence would harm their own interest or expose someone to inconsistent obligations. If that party cannot be joined, the court decides whether the case can fairly go forward or has to be dismissed.
Impleader (FRCP 14)
a defendant may bring in a third party who may be liable to the defendant for all or part of the plaintiff's claim, such as an insurer or an indemnitor.
Intervention (FRCP 24)
a non-party may join a case, either by right when it has a strong interest that could be impaired, or by permission when it shares a common question with the case.
Interpleader
a party holding property that several people claim may force those claimants to litigate their competing claims in a single action.
FRCP 23
one or more representatives may sue on behalf of a class. The case has to satisfy numerosity, commonality, typicality, and adequacy of representation, and it has to fit one of the categories listed in Rule 23(b).
Notice and opt-out
in a class action for money damages, the class members have to get the best notice practicable and a chance to opt out.
FRCP 26
parties may discover any nonprivileged matter that is relevant to a claim or defense and proportional to the needs of the case. Information does not have to be admissible at trial to be discoverable.
Proportionality
courts weigh the importance of the issues, the amount in controversy, the parties' access to the information, and whether the burden of the discovery outweighs its likely benefit.
Attorney-client privilege
confidential communications between a client and a lawyer made to get or give legal advice are protected from discovery.
Work product
materials prepared in anticipation of litigation are protected, although an opposing party may reach some fact work product by showing a substantial need for it.
Hickman v. Taylor
A lawyer's work product, including notes and mental impressions prepared for litigation, is protected from ordinary discovery.
Mandatory disclosures (FRCP 26(a))
parties have to hand over certain information early, without waiting for a request, including the witnesses and documents they may use to support their case.
Tools
the main discovery devices are depositions, written interrogatories, requests for production of documents, physical or mental examinations, and requests for admission.
Sanctions (FRCP 37)
a party that will not cooperate in discovery can face a motion to compel, and if it disobeys an order, sanctions that range from paying fees to having the case dismissed or a default entered.
Temporary restraining order (FRCP 65)
a short-term order that holds the status quo, which a court can grant briefly and sometimes without notice, until it can hold a real hearing.
Preliminary injunction (FRCP 65)
an order that lasts through the litigation. To get one, the moving party has to show a likelihood of success on the merits, that it will suffer irreparable harm, that the balance of hardships tips in its favor, and that an injunction is in the public interest.
FRCP 41
a plaintiff may voluntarily dismiss the case early, and a court may dismiss a case for failure to prosecute it or to follow the rules. A second voluntary dismissal of the same claim usually counts as a decision on the merits.
FRCP 56
a court grants summary judgment when there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. The court views the evidence in the light most favorable to the party opposing the motion.
Shifting burden
the moving party first has to show that there is no genuine dispute. The other party then has to point to specific evidence, not just its allegations, that a real factual dispute exists.
Celotex Corp. v. Catrett
A party may win summary judgment by showing that the other side has no evidence to support an essential element of its claim, even without offering its own evidence on that point.
Seventh Amendment
in federal court there is a right to a jury trial in suits at common law, which generally means claims for money damages but not purely equitable claims.
Demand
a party has to demand a jury in writing within the time Rule 38 sets, or the right is waived.
FRCP 50(a)
during trial, once a party has been fully heard on an issue, the court may grant judgment as a matter of law if no reasonable jury could find for that party.
Renewed motion (FRCP 50(b))
a party may renew the motion after the verdict, but only if it first made the motion during the trial.
New trial (FRCP 59)
a court may order a new trial for a serious error, for a verdict that goes against the clear weight of the evidence, or for misconduct.
Relief from judgment (FRCP 60)
a court may relieve a party from a final judgment for reasons like mistake, newly discovered evidence, fraud, or other circumstances that justify relief.
Final judgment rule (Section 1291)
a party generally may appeal only from a final decision, meaning one that ends the case on the merits and leaves nothing for the court to do but enter judgment.
Rule 54(b)
when a case involves multiple claims or parties, the court may enter final judgment on some of them and allow an immediate appeal of those.
Interlocutory appeals (Section 1292)
some non-final orders, like those granting or denying an injunction, can be appealed right away, and a court may certify a controlling question of law for an immediate appeal.
Collateral order doctrine
a small set of orders that conclusively decide an important issue separate from the merits, and that could not be reviewed later, may be appealed before final judgment.
Mandamus
in rare cases a party may seek a writ ordering a lower court to act within its authority.
Questions of law
reviewed de novo, with no deference to the trial court.
Findings of fact
reviewed for clear error when a judge made them.
Discretionary rulings
reviewed for abuse of discretion.
Claim preclusion (res judicata)
a final judgment on the merits bars the same parties from relitigating the same claim. It forces a plaintiff to bring all parts of a single claim in one action instead of splitting them.
Elements
there has to be a final judgment on the merits, the same parties, and the same claim, meaning one that arises from the same transaction.
Issue preclusion (collateral estoppel)
once a court actually decides an issue of fact or law that was necessary to its judgment, the same parties cannot relitigate that issue in a later case.
Elements
the issue has to be the same, actually litigated, actually decided, and necessary to the earlier judgment.
Utilitarianism
punishment is justified by its benefit to society, mainly through deterrence. The idea is to punish only as much as is useful, so that the punishment teaches a lesson and prevents future harm.
Retributivism
punishment is justified because the offender deserves it, an eye for an eye. It looks backward at the wrong the person did rather than forward at any social benefit.
Negative retributivism
a middle view. The offender has to deserve the punishment before the state may impose it, but desert only sets a ceiling, and the actual punishment is chosen for the good it does society.
Legality
a person can be punished only for conduct that the law clearly defined as criminal before they acted. Vague statutes and after-the-fact crimes violate this principle.
Queen v. Dudley and Stephens
Two shipwrecked sailors who killed and ate a cabin boy to survive were still guilty of murder. Necessity did not excuse taking an innocent life, and the case is a classic look at the limits of justification.
People v. Du
A shopkeeper who killed a teenager received a lenient sentence, which shows how a judge balances deterrence, retribution, and the particular circumstances when deciding punishment.
Actus reus
the physical part of a crime, meaning a voluntary act or a qualifying failure to act. The criminal law punishes conduct, not thoughts alone.
Voluntary act
the act has to be a willed movement. Reflexes, convulsions, movements while unconscious, and acts performed while asleep are not voluntary.
Common law
a defendant is liable only for a voluntary act, or for an omission where a legal duty to act existed.
Model Penal Code (Section 2.01)
liability requires a voluntary act, and possession counts as an act if the person was aware of the thing and could have ended the possession.
People v. Decina
A driver who knew he was prone to seizures and drove anyway was liable, because the voluntary act was the choice to drive while knowing the risk, not the seizure itself.
Omission
a failure to act is criminal only when the person had a legal duty to act and was able to do so. A moral duty alone is not enough.
Sources of a duty
a duty can come from a statute, a special relationship, a contract, the voluntary assumption of care that keeps others from helping, or the defendant's own creation of the risk.
Mens rea
the guilty mind, meaning the mental state the prosecution has to prove for the elements of the offense.
Common law
courts traditionally used a smaller set of mental states, including intent, where purpose and knowledge are treated alike, along with recklessness and negligence. Crimes were also sorted into specific intent and general intent.
Model Penal Code (Section 2.02)
the MPC uses four mental states, which are purpose, knowledge, recklessness, and negligence, and it requires the prosecution to prove a mental state for each material element.
Purpose and knowledge
a person acts purposely when it is their conscious object to cause the result, and knowingly when they are aware the result is practically certain. Deliberate ignorance counts as knowledge.
Recklessness and negligence
a person is reckless when they consciously disregard a substantial and unjustifiable risk, and negligent when they should be aware of such a risk but are not.
Strict liability
some offenses require no mental state as to one or more elements, so the act alone is enough. These are disfavored and usually limited to regulatory or public-welfare offenses.
Model Penal Code (Section 2.02(1))
the MPC generally requires at least recklessness unless a statute plainly imposes strict liability, which it keeps to minor violations.
Causation
for result crimes, the prosecution has to show that the defendant both caused the result in fact and was its proximate cause.
But-for cause
the result would not have happened but for the defendant's conduct. This is the basic cause-in-fact test.
Concurrent causes
when two forces each cause the result and either one alone would have been enough, courts treat each as a cause. Here the substantial-factor test asks whether the defendant's conduct was a substantial factor in bringing about the result.
Proximate cause
the result has to be a foreseeable consequence of the defendant's act. This keeps liability tied to harms that are fairly connected to the conduct.
Intervening and superseding causes
a later event that is unforeseeable and independent can break the chain of causation and relieve the defendant of liability. A foreseeable intervening cause does not.
Model Penal Code (Section 2.03)
the MPC keeps but-for cause and then asks whether the actual result is too remote or accidental to fairly hold the defendant responsible, which is a looser version of proximate cause.
Mistake of fact
a mistaken belief about a fact is a defense when it cancels out the mental state the crime requires.
Common law
for a general-intent crime, the mistake has to be reasonable. For a specific-intent crime, even an unreasonable mistake can negate the intent.
Model Penal Code (Section 2.04)
a mistake is a defense whenever it negates the required mental state, whether the mistake was reasonable or not, as long as the person actually held the belief.
Mistake of law
not knowing that conduct is illegal is generally not a defense. Ignorance of the law is no excuse.
Exception
a person may have a defense if they reasonably relied on an official statement of the law, later shown to be wrong, from someone authorized to interpret it.
Murder
at common law, murder is the unlawful killing of another person with malice aforethought.
Malice aforethought
malice is shown by any of four states, which are intent to kill, intent to cause grievous bodily harm, a depraved heart meaning extreme reckless disregard for human life, or the felony-murder rule.
Degrees
many states split murder into degrees. First-degree murder usually requires premeditation and deliberation, which turn on the timing and formation of the intent, while other murders are second degree.
Model Penal Code (Section 210.2)
the MPC defines murder as a killing committed purposely or knowingly, or recklessly under circumstances that show extreme indifference to human life. The MPC does not require premeditation.
Manslaughter
an unlawful killing committed without malice aforethought.
Voluntary manslaughter
a killing in the heat of passion after adequate provocation, with no cooling-off period. The provocation has to be something that would inflame a reasonable person.
Involuntary manslaughter
a killing through criminal negligence, or during an unlawful act that is not a felony.
Model Penal Code (Section 210.3)
the MPC treats a reckless killing as manslaughter, and it treats a killing committed under extreme mental or emotional disturbance, judged from the actor's own situation, as manslaughter rather than murder. A separate offense of negligent homicide covers killings caused by negligence.
Felony murder
a death that occurs during the commission of a felony is treated as murder, often in the first degree. At common law this works as a kind of strict liability for the death.
Limits
many states limit the rule to inherently dangerous felonies, and many follow the agency approach, under which the defendant is liable only for killings carried out by the defendant or a co-felon, not for a killing by a third party such as a police officer.
Model Penal Code
the MPC has no separate felony-murder doctrine, but it lets a jury infer the extreme indifference that murder requires from the fact that the killing happened during a dangerous felony.
Rape
at common law, rape was unlawful sexual intercourse by force or threat of force and without consent. Modern statutes have broadened the definition, removed the marital exemption, and focus on the absence of consent.
Statutory rape
intercourse with a person under the age of consent. It is often a strict-liability offense, so a reasonable mistake about age may not be a defense.
Rape-shield laws
these rules limit when a complainant's prior sexual history can be used as evidence.
Larceny
the trespassory taking and carrying away of the personal property of another, with the intent to permanently deprive them of it.
Embezzlement
the fraudulent conversion of property by someone who was already in lawful possession of it, which is what separates it from larceny.
False pretenses
obtaining title to property through a knowing false statement of fact, made with the intent to defraud.
Robbery
a larceny from the person or presence of another by force or threat of force. The force is what raises a theft to a robbery.
Burglary
at common law, the breaking and entering of the dwelling of another at night with the intent to commit a felony inside. Modern statutes have relaxed most of these elements.
Attempt
an intent to commit a crime, plus an act that goes beyond mere preparation toward completing it.
Common law (proximity test)
the defendant's conduct has to come dangerously close to completing the crime. The focus is on how much is left to be done.
Model Penal Code (Section 5.01)
the MPC asks whether the defendant took a substantial step that strongly corroborates their criminal purpose. This looks at what the actor has already done and reaches conduct earlier than the common-law test.
Factual impossibility
it is no defense that the crime could not be completed because of a fact the defendant did not know, such as picking an empty pocket.
Legal impossibility
it is a defense that the act, even if completed exactly as the defendant intended, would not have been a crime.
Solicitation
asking, commanding, or encouraging another person to commit a crime, with the intent that they actually do it. The offense is complete the moment the request is made.
Conspiracy
an agreement between two or more people to commit a crime. At common law the agreement itself is enough, while many modern statutes also require an overt act in furtherance of the plan.
Pinkerton v. United States
A member of a conspiracy can be liable for crimes that co-conspirators commit in furtherance of the conspiracy, as long as those crimes were a foreseeable part of the plan.
Accomplice liability
a person who helps another commit a crime can be liable for that crime as if they had committed it themselves.
Two intents (common law)
the accomplice has to intend to assist the principal, which is the act of aiding, and has to intend that the principal commit the offense.
Actus reus
the help can take the form of soliciting, encouraging through psychological support, actively assisting, or failing to act where there was a duty to prevent the crime. The aid does not have to cause the crime, and mere presence is not enough.
Model Penal Code (Section 2.06)
a person is an accomplice if, with the purpose of promoting the offense, they solicit it, aid it, agree to aid, attempt to aid, or fail to make an effort they have a legal duty to make. For result crimes, the accomplice must have the same mental state as to the result that the offense itself requires.
Innocent instrumentality
a person who uses an innocent or unwitting agent to carry out a crime is treated as the principal, not as an accomplice.
Self-defense
a non-aggressor may use force when they reasonably believe it is necessary to protect themselves against an imminent unlawful threat, and the force has to be proportional to that threat.
Deadly force and retreat
deadly force is allowed only against a threat of death or serious bodily harm. Some states require retreat before using deadly force when it is safe to do so, while the castle doctrine removes that duty in the home and stand-your-ground laws remove it more broadly.
Model Penal Code (Section 3.04)
the MPC turns on the actor's subjective belief that force is immediately necessary, which is more lenient than the common law's strict imminence requirement.
Defense of others
a person may use force to defend someone else on the same terms that would let that other person defend themselves.
Defense of habitation
a person may use force, and in some situations deadly force, to prevent an unlawful entry into their home, within the limits the jurisdiction sets.
Necessity
a person may break a law to avoid a greater, imminent harm, usually one caused by a natural force rather than a human threat. It is a justification, not an excuse.
Common law limits
the defendant must have had no lawful alternative, must not have created the situation, and generally cannot use necessity to justify killing an innocent person.
Model Penal Code (Section 3.02)
the MPC frames this as a choice of evils. Conduct is justified if the actor believes it is necessary to avoid a greater harm, the harm avoided outweighs the harm caused, and there is no clear legislative intent to rule the defense out. The MPC drops the strict imminence requirement and does not automatically bar a defendant who helped create the situation.
Duress
a person may be excused for committing a crime when they were coerced by a threat of imminent death or serious bodily harm, with no reasonable way to escape.
Common law
the threat has to come from another person, and duress generally is not a defense to murder.
Model Penal Code (Section 2.09)
the MPC excuses conduct when a person of reasonable firmness in the actor's situation could not have resisted the coercion. It does not require strict imminence, it can apply to murder, and it is unavailable to someone who recklessly put themselves in the situation.
Insanity
a defendant is excused when a mental disease or defect kept them from understanding or controlling their conduct in the way the chosen test requires.
M'Naghten rule
the common-law test. A defendant is not guilty if, because of a mental disease or defect, they did not know the nature and quality of the act, or did not know that the act was wrong.
Model Penal Code (Section 4.01)
a defendant is not responsible if, because of a mental disease or defect, they lack substantial capacity either to appreciate the wrongfulness of their conduct or to conform their conduct to the law. Substantial capacity is an easier standard for the defendant to meet than M'Naghten's strict knowledge test.
Voluntary intoxication
at common law, voluntary intoxication is not a defense to a general-intent crime, but it may negate the specific intent that a specific-intent crime requires.
Model Penal Code (Section 2.08)
intoxication is voluntary when a person knowingly takes a substance they know or should know is intoxicating. It is a defense only when it negates an element such as purpose or knowledge, or when the intoxication was completely unexpected or forced on the person.
Involuntary intoxication
intoxication that was forced, tricked, or genuinely unexpected is treated more leniently and can be a broader defense.
Two questions
constitutional law really comes down to two questions. Can the government do this at all, and even if it can, has it intruded on another constitutional interest, like a right we hold as citizens?
Defining a constitution
a few features show up again and again. It is a written document, so the people can always know the rules and guard against oppression. It is meant to last, so it has to be hard to change and broad enough to interpret over time. It creates institutions, like the three branches of government. It is superior law that the rest of the law has to answer to. It includes a branch that enforces it, it protects the fundamental rights of the people, and it captures who we are as a people.
A short history
the idea traces back to the Magna Carta in the 1200s, grew through the popular sovereignty of the American and French Revolutions, shifted as power moved back toward government after World War I and the Great Depression, and now stretches into questions about international law and the rights developed in the 1960s and 1970s.
Normative constitution
one that actually governs, because both the governed and those in power have internalized the value of constitutionalism.
Nominal constitution
one whose norms are limited by the real political and economic power structure, so it cannot be applied faithfully, as in some former colonies or feudal societies.
Semantic constitution
one that matches the political reality but only reflects it, without putting any real limits on power, as in a dictatorship.
Democratic versus liberal
democratic constitutions tend to be more participatory and inclusive, while liberal constitutions tend to have government play a more active role in the economy and society to promote equality and welfare. Where there is no constitution at all, the state cannot really be called democratic.
Judicial review
the power of the federal courts to examine acts of the other branches and to strike down those that conflict with the Constitution. The Constitution does not say this in so many words, but Chief Justice Marshall drew it from the logic of a written, supreme constitution.
Marbury v. Madison (1803)
This case established judicial review. The Court refused to issue the writ Marbury asked for, because the statute that would have given the Court power to do so expanded its original jurisdiction beyond what Article III allowed, and so the Court struck that statute down and claimed the power of review in the process.
Supremacy
the Constitution is the supreme law of the land, so any act of Congress that conflicts with it is void.
The judicial role
it is the job of the courts to say what the law is. When the Constitution and an ordinary statute conflict, the courts have to follow the Constitution.
Why it has to be this way
a written constitution that ordinary legislation could override would mean nothing. The whole point of writing it down is that it outranks regular law.
Reach
judicial review applies to both federal statutes and executive actions.
The ongoing debate
every branch swears to uphold the Constitution, so scholars still argue about whether the Court's reading is uniquely authoritative. Marbury itself is settled.
Why it matters
judicial review sits underneath every doctrine that follows, because the Court ends up as the final word on the limits of federal power, state power, and individual rights.
The grant
Article I, Section 8, Clause 3 gives Congress the power to regulate commerce with foreign nations, among the several states, and with the Indian tribes. The reach of this clause has been the main battleground over federal power for two centuries.
Gibbons v. Ogden (1824)
Chief Justice Marshall read commerce broadly to cover all commercial intercourse, not just buying and selling, and read "among the states" to mean intermingled with them. Congress's power within that sphere is plenary, and the case also hinted at the dormant Commerce Clause, under which conflicting state laws give way.
N.L.R.B. v. Jones and Laughlin Steel Corp. (1937)
Congress can reach intrastate activity that has a close and substantial relation to interstate commerce. A strike at a nationally integrated steel company would hit interstate commerce hard, and this case ended the Court's resistance to New Deal legislation.
United States v. Darby (1941)
The power to regulate commerce includes the power to keep goods made under substandard labor conditions out of it, and Congress's motive does not matter as long as it does not break some other constitutional rule. The Court treated the Tenth Amendment as a truism and overruled Hammer v. Dagenhart.
Wickard v. Filburn (1942)
Congress can reach even a trivial intrastate activity if that activity, added up across everyone doing it, has a substantial effect on interstate commerce. A farmer's wheat grown for his own use still competes with the national market in the aggregate, so it fell within the commerce power. This is about the outer edge of the substantial-effects test.
Heart of Atlanta Motel, Inc. v. United States (1964)
Racial discrimination in public accommodations burdens interstate travel and commerce, which gave Congress a basis for the Civil Rights Act of 1964 under the Commerce Clause. A local motel could be reached because it served largely out-of-state guests.
Katzenbach v. McClung (1964)
The commerce power reached a local restaurant whose food had moved in interstate commerce, because discriminatory restaurants in the aggregate reduce interstate sales and discourage travel. Together with Heart of Atlanta, this let Congress use the Commerce Clause as an anti-discrimination tool whenever there is a rational basis to connect the conduct to commerce.
United States v. Lopez (1995)
Congress may regulate only the channels of interstate commerce, the instrumentalities and things in it, and activities that substantially affect it. The Gun-Free School Zones Act fit none of these, because possessing a gun in a school zone is not economic and the law had no connection to commerce. Accepting the government's chain of effects would have handed Congress a general police power.
United States v. Morrison (2000)
The aggregation idea from Wickard works only when the regulated activity is economic. Gender-motivated violence is not economic, so the civil remedy in the Violence Against Women Act could not stand on the Commerce Clause, even with extensive findings.
Gonzales v. Raich (2005)
When Congress comprehensively regulates an economic market, it can reach even a noncommercial intrastate instance of that activity if leaving it out would undermine the larger scheme. Home-grown marijuana was part of a broader market, so it fell within the Controlled Substances Act. This does not retreat from Lopez and Morrison, which involved laws that were not part of a comprehensive economic scheme.
NFIB v. Sebelius (2012)
The Commerce Clause lets Congress regulate existing commercial activity, but not compel people to enter commerce in the first place. The individual mandate to buy insurance was therefore beyond the commerce power, though the Court upheld it as a tax.
The grant
Article I, Section 8, Clause 1 gives Congress the power to tax and spend to pay the debts and provide for the common defense and the general welfare. Courts read this as an independent source of power, separate from Congress's other enumerated powers.
United States v. Butler (1936)
The power to tax and spend for the general welfare is broader than the other enumerated powers, so Congress does not have to point to a separate power to justify a spending program. Even so, Congress cannot use spending as a pretext to regulate something it has no power to regulate directly.
South Dakota v. Dole (1987)
Congress can attach conditions to federal grants if the spending is for the general welfare, the conditions are stated clearly, the conditions relate to the federal interest in the program, and the conditions do not violate some other constitutional rule. The pressure also cannot be so great that it turns into compulsion. Withholding five percent of highway funds was not coercive.
NFIB v. Sebelius (2012)
Congress can put conditions on new funds, but it cannot threaten to cut off an existing funding stream that states rely on in order to force them into a new program. Threatening states with the loss of all their Medicaid money if they refused the expansion crossed the line into coercion.
State action
the individual-rights guarantees of the Constitution, like the Fourteenth Amendment, generally apply only to the government, not to private parties. Before a constitutional claim can get off the ground, the challenged conduct has to count as state action.
The Civil Rights Cases (1883)
The Court held that the Fourteenth Amendment reaches only state action, not private discrimination, so Congress could not use it to ban discrimination by private inns, theaters, and railroads. Justice Harlan dissented, arguing the majority read the spirit of the Amendment far too narrowly.
Public function
a private party is treated as the state when it performs a function that has traditionally and exclusively belonged to the government.
Marsh v. Alabama (1946)
A company that owned an entire town could not use trespass law to stop someone from handing out religious literature on its sidewalks, because running a town is a public function. This case set up the public-function test.
Terry v. Adams (1953)
A private political association whose all-white primary effectively decided the county's elections was engaged in state action, because running elections is a public function that the Fifteenth Amendment reaches.
Evans v. Newton (1966)
Operating a park is a public function, so a park left in a will for whites only could not be racially segregated, even after the city tried to hand it off to private trustees.
Jackson v. Metropolitan Edison Co. (1974)
A privately owned but heavily regulated utility was not a state actor when it shut off a customer's power, because supplying electricity is not a function that has traditionally and exclusively belonged to the state. What matters is whether there is a close enough nexus between the state and the challenged action.
Hudgens v. National Labor Relations Board (1976)
A privately owned shopping center is not the same as a town, so people picketing there have no First Amendment claim against the owner. This pulled back from earlier hints that malls were public spaces.
Manhattan Community Access Corp. v. Halleck (2019)
A private operator of public-access cable channels was not a state actor, because running those channels has not been a function traditionally and exclusively performed by government.
Entanglement
a private party can also become a state actor when the government is so entangled with the conduct, or so encourages it, that the action can fairly be treated as the state's own.
Shelley v. Kraemer (1948)
A court's enforcement of a racially restrictive covenant is state action, because the discrimination only works with the help of the courts. Private parties may hold such views, but they cannot use the courts to enforce them.
Burton v. Wilmington Parking Authority (1961)
A private restaurant that leased space inside a state-owned parking garage was a state actor, because the state and the restaurant had a symbiotic relationship and the state benefited from the discrimination.
Moose Lodge No. 107 v. Irvis (1972)
A private club did not become a state actor just because the state granted it a liquor license. A bare license or benefit is not enough to create state action.
Norwood v. Harrison (1973)
A state could not lend free textbooks to racially discriminatory private schools, because that gives significant aid to private discrimination.
Rendell-Baker v. Kohn (1982)
A private school was not a state actor merely because it was almost entirely publicly funded and heavily regulated, since the state did not coerce or control the specific decision being challenged.
Lugar v. Edmondson Oil Co. (1982)
A private creditor that used the state's courts and a sheriff to seize a debtor's property was a state actor, because it acted together with state officials under a state procedure.
Edmonson v. Leesville Concrete Co. (1991)
A private litigant who used race-based peremptory challenges in a civil trial was engaged in state action, because jury selection runs on the machinery of the courts.
Brentwood Academy v. Tennessee Secondary School Athletic Association (2001)
A nominally private athletic association was a state actor because it was so entwined with public schools and public officials. Pervasive entwinement can be enough, even without a single formal link.
Economic substantive due process
during this era the Court read the Due Process Clause to protect a liberty of contract, and it used that idea to strike down many economic regulations.
Allgeyer v. Louisiana (1897)
The Court struck down a law that kept residents from buying insurance from out-of-state companies, holding that the liberty in the Fourteenth Amendment includes the freedom to make contracts to earn a living. This was an early use of substantive due process to protect economic liberty.
Lochner v. New York (1905)
The Court struck down a law limiting the hours bakers could work, holding that it interfered with the freedom of contract between employer and employee without a close enough tie to health or safety. The case gave the era its name, and it is now a warning about judges second-guessing economic policy. Justice Holmes dissented, arguing the majority was writing its own economic theory into the Constitution.
Muller v. Oregon (1908)
The Court upheld a maximum-hours law for women, accepting the famous Brandeis brief and reasoning, in the paternalistic terms of the time, that women needed special protection. It showed the liberty of contract was never absolute.
Adkins v. Children's Hospital (1923)
The Court struck down a minimum-wage law for women, treating freedom of contract as the rule and regulation as the narrow exception, and finding the old differences between men and women no longer enough to justify the law.
Weaver v. Palmer Bros. Co. (1926)
The Court struck down a law banning a certain filling material in bedding, finding no real health danger and treating the ban as an arbitrary interference with business. It shows how aggressively the Court used substantive due process in this period.
West Coast Hotel Co. v. Parrish (1937)
The Lochner era ended here, around the time President Roosevelt threatened to pack the Court. A hotel employee sued for the difference between her pay and the state minimum wage for women, and the Court upheld the law, holding that the Constitution protects people from laws that harm their health, safety, morals, or welfare, and that states get discretion to decide what protects their citizens. So long as a law is reasonable for its purpose, it is constitutional. This completely overruled Adkins.
United States v. Carolene Products Co. (1938)
This case officially set the rational basis standard for economic regulation. If Congress had a rational basis to pass a law, the law is presumed constitutional, and it has to be upheld if any set of facts, known to the legislature or not, supports it. The court presumes those facts exist unless it is clear there is no rational basis at all. Strict scrutiny for economic rights was gone.
Williamson v. Lee Optical of Oklahoma, Inc. (1955)
A law barred opticians from fitting or replacing lenses without a prescription. The Court thought the law was foolish, but found a rational basis for it anyway, explaining that it is for the legislature, not the courts, to weigh the advantages and disadvantages of economic regulation. If people do not like it, the Court said, they can take it to the polls.
BMW of North America, Inc. v. Gore (1996)
There is still a limit to what counts as rational economic decision-making. A two-million-dollar punitive damages award against BMW for selling a repainted car as new was grossly excessive and therefore unconstitutional. The Court set out three factors for reviewing punitive awards: the reprehensibility of the conduct, the ratio of the punitive award to the actual harm, and the sanctions for comparable conduct elsewhere.
State Farm Mutual Automobile Insurance Co. v. Campbell (2003)
The Court reaffirmed Gore and clarified the three-part test. A state cannot punish a defendant for conduct that was lawful where it happened, awards should rarely exceed a single-digit ratio to actual harm without strong justification, and punitive damages should not be used as a substitute for the criminal process.
City of Cleburne v. Cleburne Living Center, Inc. (1985)
A city denied a special-use permit for a group home for people with intellectual disabilities. The Court held that this group is not a quasi-suspect class, so only rational basis applied, but the city still lost, because there was no rational reason to deny the permit.
U.S. Department of Agriculture v. Moreno (1973)
A law denied food stamps to households of unrelated people, supposedly to prevent fraud. The Court found that even under rational basis there was no rational reason for the rule, which looked instead like an effort to harm an unpopular group.
Railway Express Agency, Inc. v. New York (1949)
The Court upheld a ban on advertising on the sides of trucks unless the ad was for the truck owner's own business. Even if the line seemed arbitrary, the government could have seen a difference, and it does not have to address every version of a problem at once.
New York City Transit Authority v. Beazer (1979)
The Court upheld a rule barring people in methadone treatment from working for the transit authority, finding a rational basis for the government's caution even if the rule swept broadly.
Fundamental rights
the Court has said some liberties are so important that the government generally cannot infringe them unless it meets strict scrutiny. Almost none of them are named in the Constitution, and most are protected through the Due Process Clauses of the Fifth and Fourteenth Amendments and the Equal Protection Clause of the Fourteenth.
Due process versus equal protection
the two differ in how the argument is framed. If a right is protected by due process, the question is whether the government's interference is justified by a sufficient purpose. If it is protected by equal protection, the question is whether the government's choice of who may exercise the right is justified. A law that denies a right to everyone is usually a due process problem, while a law that denies it to some but not others can be challenged under equal protection.
The analysis
ask whether there is a fundamental right, looking to history and tradition, then whether the right is infringed, then whether there is a sufficient justification, and finally whether the government's means are closely enough related to its purpose.
Loving v. Virginia (1967)
The Court struck down Virginia's ban on interracial marriage, holding that restricting the freedom to marry based on race violates equal protection and deprives people of liberty without due process. Marriage is an essential right, and racism is not a legitimate purpose.
Obergefell v. Hodges (2015)
The Court held that bans on same-sex marriage are unconstitutional. It gave four reasons the right to marry is fundamental: individual autonomy, the support of a committed two-person union, the safeguarding of children and families, and the role of marriage as a keystone of the social order. The dissent argued the issue should have been left to the political process.
Michael H. v. Gerald D. (1989)
The Court significantly limited the rights of unmarried fathers, holding that a state may presume that a married woman's husband is the father of her child, even when that negates a biological father's rights. Marital fathers have fundamental rights here, while an unmarried biological father may not, a tradition the dissent argued no longer makes sense now that paternity can be proven.
Moore v. City of East Cleveland (1977)
A city ordinance limited which relatives could live together, and a grandmother was told she could not live with her two grandsons. The Court struck the law down, holding that the Constitution protects extended family, not just the immediate family, and that the government cannot regulate family living arrangements without strict scrutiny.
Meyer v. Nebraska (1923)
The Court struck down a law that barred teaching young children in a language other than English, holding that parents have the liberty to direct their children's upbringing. The Court said the state needed only a reasonable reason to infringe this liberty, which suggests it sits somewhere between rational basis with bite and intermediate scrutiny rather than being fully fundamental.
Troxel v. Granville (2000)
A mother limited how often her children saw their grandparents. The Court held that a fit parent has a due process right to decide how to raise her children, so the government could not override her judgment simply because a court thought more visitation was better.
Skinner v. Oklahoma (1942)
The Court struck down a law requiring the sterilization of people convicted two or more times of crimes of moral turpitude, holding that procreation is a fundamental right and that the law violated equal protection. The government cannot permanently take this right away without a compelling and narrow reason.
Griswold v. Connecticut (1965)
The Court struck down a ban on giving married couples advice about contraception, recognizing a fundamental right to privacy drawn from several amendments. Enforcing the law would let the police search the marital bedroom, which the Court found intolerable. The dissent objected that no such specific right appears in the Constitution.
Eisenstadt v. Baird (1972)
The Court extended the contraception right to unmarried people, striking down a law that let only doctors and pharmacists distribute contraceptives and only to married couples. The autonomy of married and unmarried people cannot be treated differently here.
Roe v. Wade (1973)
The Court recognized a right to abortion as part of the rights to autonomy and privacy, and held that the state could not police abortion before viability, drawing the line near the end of the first trimester.
Planned Parenthood v. Casey (1992)
The Court reaffirmed the core right to abortion but held that the government may restrict it where necessary to protect life or health, giving the state more room after viability.
Dobbs v. Jackson Women's Health Organization (2022)
The Court overruled Roe and Casey, holding that the right to abortion was not deeply rooted in the nation's history and tradition, and returned the question to the states. The Court listed factors for overruling precedent, including whether the prior rule short-circuited democracy, was untethered from the Constitution, proved unworkable, distorted other areas of law, and could be overruled without upending real reliance interests.
Romer v. Evans (1996)
The Court struck down a Colorado measure that barred any law protecting people from discrimination based on sexual orientation. The Court did not give sexual orientation heightened scrutiny, but found that the measure rested on bare hostility rather than any rational basis.
Race is a suspect class
laws that classify by race get strict scrutiny, so the government has to show the law is narrowly tailored to a compelling interest.
Plessy v. Ferguson (1896)
The Court allowed racial segregation so long as the facilities were separate but equal, a regrettable precedent that stood for decades.
Brown v. Board of Education (1954)
The Court overruled Plessy, holding that separate is inherently unequal in public education. It applied strict scrutiny to racial classifications, requiring a compelling interest pursued by the narrowest available means.
Brown v. Board of Education II (1955)
The Court left desegregation to the district courts, telling them to proceed with all deliberate speed, which let school districts move slowly while showing some progress.
Palmore v. Sidoti (1984)
A court could not strip a mother of custody because she had remarried a Black man and the child might face social prejudice, because courts may not give effect to private racial bias.
Dred Scott v. Sandford (1857)
For historical context, the Court held that the word citizen in the Constitution was never meant to include enslaved people, a decision that helped push the country toward civil war.
Korematsu v. United States (1944)
The Court upheld the wartime internment of Japanese Americans, supposedly applying strict scrutiny to a compelling interest in security, but in truth failing to apply it honestly. It is now remembered with shame.
Parents Involved in Community Schools v. Seattle School District No. 1 (2007)
The Court struck down plans that used race to assign students in districts that were not under a desegregation order, holding that racial balancing cannot be a goal in itself. A school may consider race as one factor for diversity, but it cannot use quotas or a direct system to force it.
Milliken v. Bradley (1974)
A desegregation remedy goes beyond a federal court's power if it forces desegregation on surrounding districts that never segregated. The remedy has to be narrowly tailored to the actual violation.
Board of Education of Oklahoma City v. Dowell (1991)
Once a district has actually desegregated, a federal court's order should end, even if the schools might drift back toward segregation afterward.
Regents of the University of California v. Bakke (1978)
The Court struck down fixed racial quotas in admissions as not narrowly tailored, but held that universities have a compelling interest in a diverse student body and may use race as a plus factor.
Grutter v. Bollinger (2003)
The Court upheld a law school's use of race as one factor among many, because student-body diversity is a compelling interest, while suggesting that such programs should not last forever.
Students for Fair Admissions v. Harvard (2023)
The Court ended race-conscious admissions, holding that the programs at issue could not satisfy strict scrutiny.
Richmond v. J.A. Croson Co. (1989)
The Court applied strict scrutiny to a state and local affirmative action program and struck down a set-aside of public-works money for minority-owned businesses, because the plan was not necessary, did not serve a properly defined compelling purpose, and was not narrowly tailored.
Intermediate scrutiny
sex is a quasi-suspect class, so a gender classification has to serve an important government objective and be substantially related to that objective. Many of the reasons for strict scrutiny apply to sex too, including a long history of discrimination, reliance on stereotypes, and the immutability of the trait, but the Court settled on intermediate review.
Bradwell v. Illinois (1873)
The Court allowed a state to keep women from practicing law, with a concurrence famously insisting that a woman's place was in the home. It is the earliest case in which the Court faced and dismissed a sex-discrimination claim.
Minor v. Happersett (1875)
The Court held that states could limit voting to men, a holding later undone by the Nineteenth Amendment.
Goesaert v. Cleary (1948)
The Court used rational basis to uphold a law barring women from bartending unless they were the wife or daughter of a male bar owner, accepting a paternalistic rationale about protecting women.
Hoyt v. Florida (1961)
The Court upheld a law that automatically excused women from jury duty unless they opted in, reasoning that a woman was the center of home and family life. It was among the last decisions to apply such stereotypes openly.
Reed v. Reed (1971)
The Court struck down a law that automatically preferred men over women as estate administrators. It claimed to use rational basis but went further, and it was the first time the Court ever invalidated a law for sex discrimination.
Frontiero v. Richardson (1973)
The Court struck down a rule that let male servicemembers claim their wives as dependents automatically while making women prove their husbands' dependency. Four Justices would have applied strict scrutiny, but the Court could not agree on a standard.
Craig v. Boren (1976)
The Court settled on intermediate scrutiny, striking down a law that let women buy low-alcohol beer at eighteen but made men wait until twenty-one. A weak statistical link between sex and drunk driving could not justify the classification.
United States v. Virginia (1996)
The Court held that Virginia could not exclude women from the Virginia Military Institute without an exceedingly persuasive justification, and that a separate, inferior women's program did not cure the violation. Generalizations about women cannot deny opportunities to the women able and willing to meet the standard.
Two ways
a gender classification can be shown on the face of the law, or through a facially neutral law that has both a discriminatory impact and a discriminatory purpose.
Personnel Administrator of Massachusetts v. Feeney (1979)
The Court upheld a veterans' hiring preference even though almost all veterans were men, because discriminatory impact alone is not enough. The challenger has to prove the law was enacted because of, not merely in spite of, its effect on women.
Geduldig v. Aiello (1974)
The Court held that excluding pregnancy from a state disability program was not sex discrimination, reasoning that the line was between pregnant and non-pregnant people rather than between men and women. Congress later changed the practical result by statute, but the constitutional holding survives and was reaffirmed in Dobbs.
The two principles
a law that benefits women based on stereotypes about gender roles generally fails intermediate scrutiny, while a law that genuinely remedies past discrimination or real differences in opportunity generally survives.
Orr v. Orr (1979)
The Court struck down a law requiring husbands but not wives to pay alimony, because individualized hearings already existed and a gender-neutral rule would serve the state's purpose just as well.
Weinberger v. Wiesenfeld (1975)
The Court struck down a Social Security rule that gave survivor benefits to widowed mothers automatically but made widowed fathers prove dependency, because it rested on the stereotype that a man's earnings matter more to a family.
Califano v. Goldfarb (1977)
The Court struck down a similar survivor-benefits rule that presumed widows were dependent but required widowers to prove it.
Wengler v. Druggists Mutual Insurance Co. (1980)
The Court applied the same reasoning to a workers' compensation law that gave automatic benefits to widows but conditioned them for widowers.
Mississippi University for Women v. Hogan (1982)
The Court struck down a policy excluding men from a state nursing school, because women already dominated nursing and the exclusion only reinforced a stereotype rather than remedying anything.
Michael M. v. Superior Court of Sonoma County (1981)
The Court upheld a statutory rape law that punished only men, reasoning that only women bear the consequences of teen pregnancy and that the law added a deterrent for men. The dissent argued a gender-neutral law would work just as well.
Rostker v. Goldberg (1981)
The Court upheld a male-only draft registration, deferring to Congress on national defense and reasoning that men and women were not similarly situated because women were then barred from combat.
Califano v. Webster (1977)
The Court upheld a Social Security formula that calculated benefits more favorably for women, because it remedied the real economic disadvantage women had suffered rather than relying on a stereotype.
Nguyen v. Immigration and Naturalization Service (2001)
The Court upheld different citizenship requirements for the children of unmarried citizen fathers and mothers, reasoning that maternity is proven by birth itself while paternity is not, which the majority called a biological reality rather than a stereotype.
Sessions v. Morales-Santana (2017)
The Court struck down a different part of the same citizenship statute that favored unmarried citizen mothers, holding that the rule rested on overbroad generalizations about caregiving, and applied the longer residency requirement uniformly until Congress acted.
The test
these classifications are presumed unconstitutional unless the government proves the law is narrowly tailored to a compelling state interest.
The classes
race, as in Brown v. Board of Education; national origin, as in Korematsu; religion; and state-level alienage, meaning state laws against lawful permanent residents. Federal alienage classifications usually get only rational basis because of federal power over immigration.
The test
these classifications are unconstitutional unless the government proves the law is substantially related to an important government purpose.
The classes
sex, as in United States v. Virginia, and illegitimacy, meaning discrimination against children born outside of marriage.
The test
these classifications are presumed constitutional unless the challenger proves the law is not rationally related to any legitimate government interest.
The classes
age, disability or mental capacity (as in Cleburne), wealth or poverty (as in San Antonio Independent School District v. Rodriguez), sexual orientation (often analyzed as rational basis with bite, though never formally declared suspect), and general economic and social welfare legislation.
Rights deemed deeply rooted in history and tradition
privacy, including the use of contraceptives; marriage, including the right to marry someone of the same sex or a different race; the right of parents to direct the upbringing and education of their children; and bodily integrity, including the right to refuse unwanted medical treatment.
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