California First-Year Law Students' Exam (Baby Bar) — MC flashcards

An intentional tort where a third party improperly induces a party to a contract to breach that contract, resulting in damages to the other contracting party.

• Requires a valid contract between plaintiff and a third party.
• Defendant must know of the contract.
• Defendant must intentionally induce the third party to breach or make performance impossible.
• Defendant's conduct must be improper (e.g., fraud, malice).

Memory trick: Don't Interfere with Contracts or Prospectives.

Generally, a landowner owes no duty to an undiscovered trespasser. However, for known or frequent trespassers, there is a duty to warn of or make safe artificial conditions that pose a risk of serious bodily harm.

• Duty is higher for attractive nuisances (children).
• No duty for natural conditions to trespassers.
• Duty usually limited to dangers the landowner knows about.

Memory trick: I-L-T: Invitee, Licensee, Trespasser - status matters.

A defense to intentional torts allowing an individual to use reasonable force to protect themselves from an imminent threat of harmful or offensive contact.

• Force used must be proportional to the threat.
• Belief of imminent harm must be reasonable.
• Deadly force is generally only permissible when facing deadly force or serious bodily harm.

Memory trick: C-S-D-D-N: Consent, Self, Others, Property, Necessity.

Specific, quantifiable pecuniary losses suffered by the plaintiff as a direct result of the defamatory statement.

• Must be proven with specificity (e.g., lost contracts, lost employment).
• Required for slander that is not slander per se.
• Can be recovered in addition to general damages.
• Aims to compensate for economic harm.

Memory trick: General feelings, Special facts, Punish for bad acts, Nominal for principle.

A principle in contract law that limits damages for breach if the cost of repair or completion is disproportionately high compared to the resulting increase in value of the property.

• Applies typically to construction contracts.
• Prevents awarding damages that would be economically irrational.
• Damages are usually limited to diminution in value rather than cost of completion.

Memory trick: Building a house, but the 'wrong' color paint; don't tear it down, just pay the difference.

An intentional tort consisting of a serious interference with the possessory rights of another in their personal property, such that the defendant is justly required to pay the full value of the property.

• Intentional exercise of dominion and control.
• Over the chattel of another.
• Interference must be so serious as to justify full value payment.

Memory trick: Conversion converts your property to my problem (and my bill).

A defense or a factor negating breach of duty in negligence, where a defendant experiences a sudden, unforeseeable physical incapacitation that causes an accident.

• Incapacitation must be sudden and unforeseeable.
• No prior warning signs or medical history of such conditions.
• Applies to conditions like heart attacks, strokes, seizures.
• If foreseeable (e.g., known medical condition), the defense typically fails.

Memory trick: Compare Risks, Contribute Less, Assume Nothing Suddenly.

Liability without fault for harm resulting from activities that are abnormally dangerous, even if all reasonable care was exercised.

• Activity creates a foreseeable and highly significant risk of harm.
• Risk cannot be eliminated by reasonable care.
• Activity is not a matter of common usage in the community.

Memory trick: Strict liability is for 'A(bnormally) D(angerous) P(roducts) W(ild) A(nimals)' where fault doesn't matter.

A doctrine that excuses a party from performance when an unforeseen event makes performance extremely and unreasonably difficult or expensive, even if not literally impossible.

• Event must be unforeseeable at contract formation.
• Performance must be rendered commercially unreasonable or excessively burdensome.
• Distinguished from impossibility (literal inability) and frustration of purpose (destruction of contract's goal).

Memory trick: Impracticability Makes Performance Too Costly, Not Impossible.

An intentional act by the defendant that interferes with the plaintiff's right of possession of personal property.

• Requires intent to intermeddle, not necessarily to harm.
• Interference can be minor (e.g., unauthorized use, viewing digital data).
• Plaintiff must show actual harm or deprivation of use, unless the intermeddling itself is harmful (e.g., computer system access).
• Digital data can be considered a chattel for this tort.

Memory trick: Owners Protect Property, Chattels, and Conversion's Call.

A category of spoken defamation (slander) where the statements are so inherently damaging that the plaintiff does not need to prove special damages (actual economic loss) to recover.

• Applies to accusations of serious crime (e.g., theft, murder).
• Applies to statements implying loathsome disease (e.g., leprosy, venereal disease).
• Applies to statements negatively affecting one's business, trade, or profession.
• Applies to statements imputing serious sexual misconduct (e.g., unchastity to a woman).

Memory trick: Libel is written, Slander is spoken, Per Se is broken (no special damages needed).

A small monetary award granted to a plaintiff when a legal right has been violated but no actual financial loss or injury can be proven.

• Awarded for technical violations of rights.
• No proof of actual injury or loss required.
• Acknowledges a legal wrong occurred.
• Typically a very small sum (e.g., $1).

Memory trick: Actual harm, punish bad, or just a token sad.

An intentional tort where the defendant's act causes a harmful or offensive contact with the plaintiff's person.

• Intentional act (to cause contact).
• Harmful or offensive contact.
• Contact with the plaintiff's person.
• Plaintiff does not need to be aware of the contact.

Memory trick: Battery is 'Body Bumping' with Bad Intent.

The transfer of a party's contractual rights to a third party (the assignee). Generally, rights are assignable unless prohibited by contract, statute, or if the assignment materially changes the obligor's duty or risk (e.g., personal service duties cannot be assigned).

• Transfer of contractual benefits/rights.
• Assignor transfers rights to Assignee.
• Obligor must be notified to pay assignee.
• Generally permitted unless prohibited by contract, law, or material alteration.

Memory trick: Contracts can reach beyond two, bringing in beneficiaries, assignees, or delegates.

A response to an offer that changes its terms and conditions. It acts as both a rejection of the original offer and a new offer.

• Terminates the original offer.
• Creates a new offer.
• Shifts the roles of offeror and offeree.

Memory trick: Rejecting an offer is like hitting a reset button, you can't go back.

An intentional interference with the right of possession of personal property, requiring actual harm to the chattel, deprivation of its use for a substantial time, or dispossession.

• Requires intentional act.
• Must interfere with right of possession.
• Actual harm, deprivation of use, or dispossession is necessary.

Memory trick: Chattels need a 'touch' of harm or a 'take' to count.

An intentional exercise of dominion or control over a chattel (which can include digital data) which so seriously interferes with the right of another to control it that the actor may justly be required to pay the full value of the chattel.

• Intentional act.
• Serious interference with possession or ownership.
• Chattel (personal property, including digital data).
• Interference amounts to complete or near-complete deprivation of value/use.

Memory trick: Chattel's brief touch, Conversion's full snatch.

A privacy tort involving an intentional intrusion, physical or otherwise, upon the solitude or seclusion of another or their private affairs or concerns, that would be highly offensive to a reasonable person.

• Requires an intentional act of intrusion.
• Must involve a physically or technologically private area.
• Intrusion must be highly offensive to a reasonable person.
• Publication is not required for this tort.

Memory trick: Privacy torts are like 'F(alse) A(ppropriation) I(ntrusion) R(evelation)' of your personal space.

An integration clause (or merger clause) explicitly states that a written contract is the complete and final agreement between the parties. When a contract is fully integrated, the Parol Evidence Rule generally prohibits the introduction of prior or contemporaneous oral or written agreements to contradict, vary, or add to the terms of the written contract.

• Integration clause declares written contract complete.
• Parol Evidence Rule bars outside evidence for fully integrated contracts.
• Applies to prior or contemporaneous agreements.
• Exceptions exist (e.g., to explain ambiguity, prove fraud).

Memory trick: Interpretation unlocks the contract's secrets, looking at words and context.

A privacy tort that occurs when a person's name or likeness is used by another for commercial advantage without consent.

• Unauthorized use of name or likeness.
• For commercial advantage.
• Lack of consent from the individual.

Memory trick: Don't use my face for your place without my grace.

An intentional interference with the plaintiff's right of possession of personal property (chattel) that causes actual harm to the chattel, deprives the possessor of its use for a substantial time, or impairs its condition, quality, or value. This can extend to unauthorized use or access of digital data.

• Intentional act by defendant.
• Interference with plaintiff's right of possession.
• Chattel is personal property (including digital data).
• Actual harm, impairment of condition/value, or deprivation of use required.

Memory trick: Chattel's brief touch, Conversion's full snatch.

Minors (individuals under the age of majority, usually 18) generally lack the capacity to enter into binding contracts and may disaffirm most contracts at their election.

• Contracts are voidable by the minor.
• Minor must return any consideration received (if possible).
• Exceptions for 'necessities' (food, shelter, medical care), where minor must pay reasonable value.

Memory trick: Capacity is like a mental 'permit to contract' – if you don't have it, the contract's shaky.

A contractual provision in construction subcontracts stating that the general contractor will pay the subcontractor when the general contractor receives payment from the owner. Courts often interpret these as timing mechanisms rather than absolute conditions of payment.

• Usually interpreted as a timing mechanism, not an absolute condition.
• Payment is due to subcontractor within a reasonable time, regardless of owner payment.
• To be an absolute 'pay-if-paid' condition, language must be clear and unambiguous in shifting risk.

Memory trick: Read between the lines; is it a 'must' or just a 'when'?

A contractual provision stating that any changes to the agreement must be in writing and signed. Under common law, these clauses are generally not strictly enforced, meaning parties can still orally modify the contract if they mutually intend to, unless the modification itself falls under the Statute of Frauds.

• Common law view: parties are free to modify by mutual agreement.
• NOM clauses can be waived orally.
• UCC has a different rule (NOM clauses are enforceable).
• Modification must be supported by new consideration (or satisfy promissory estoppel).

Memory trick: Modifications change the contract's path, but you need a new map (agreement) to do it.

A contract defense where unforeseen circumstances make performance objectively impossible, thereby excusing the party from their contractual obligations.

• Event must be unforeseeable.
• Makes performance objectively impossible (not just difficult).
• Typically applies to destruction of subject matter, death/incapacity of essential person, or new law.

Memory trick: Impossibility: When fate says 'Nope,' the law says 'Okay, you're off the hook.'

A rule of contract law that prohibits the introduction of extrinsic evidence (oral or written) of prior or contemporaneous agreements to contradict, vary, or add to the terms of a fully integrated written contract.

• Applies to fully integrated contracts (intended as final and complete).
• Prevents introduction of evidence that would change the written terms.
• Exceptions exist for clarifying ambiguity, proving fraud, or showing a condition precedent.

Memory trick: Written words rule the day, no outside talk will sway.

The doctrine that a physician has a duty to disclose material risks of a proposed treatment to a patient, and failure to do so, leading to harm, is typically treated as medical malpractice (negligence).

• Physician's duty to disclose material risks.
• Patient must be able to make an informed decision.
• Failure to disclose is a breach of duty.
• Usually a negligence claim, not battery, if consent to general procedure was given.

Memory trick: If you touch without permission, it's battery; if you fail to tell, it's negligence.

Publicity that places the plaintiff in a false light in the public eye, which would be highly offensive to a reasonable person, and the defendant acted with knowledge of falsity or reckless disregard for the truth.

• Publicity about the plaintiff.
• Places plaintiff in a false light.
• False light is highly offensive to a reasonable person.
• Defendant acted with actual malice (knowledge or reckless disregard).

Memory trick: Misleading light, public plight, reputation's blight.

A contract condition requiring performance to be satisfactory to one party. For matters of personal taste (e.g., art), a subjective standard applies. For matters of mechanical utility or quality of work (e.g., construction), an objective 'reasonable person' standard generally applies, meaning satisfaction cannot be unreasonably withheld.

• Condition precedent to performance.
• Objective standard for mechanical utility/quality.
• Subjective standard for personal taste/aesthetics.
• Satisfaction cannot be withheld in bad faith.

Memory trick: Conditions are the contract's traffic lights, controlling when obligations start or stop.

The mental state of the defendant in fraudulent misrepresentation, requiring knowledge of the falsity of the statement or reckless disregard for its truth.

• Defendant must know the statement is false.
• Or, defendant must make the statement with reckless disregard for its truth or falsity.
• Distinguishes fraudulent misrepresentation from negligent misrepresentation.
• Often proven by circumstantial evidence of defendant's state of mind.

Memory trick: Many False Statements Caused Justifiable Damage.

In medical procedures, consent to the overall procedure generally covers minor, non-harmful deviations within the standard of care, especially if medically necessary.

• Consent can be express or implied.
• Must be informed consent (risks/benefits explained).
• Scope of consent is critical; minor deviations usually covered.
• Substantial deviations or those causing harm may invalidate consent for battery.

Memory trick: Intentional tort defenses are 'C(onsent) S(elf-defense) D(efense of others) D(efense of property) N(ecessity)'.

A form of strict product liability where a product deviates from its intended design, making it more dangerous than consumers would expect, regardless of the manufacturer's care.

• Focuses on the individual product, not the entire product line.
• No need to prove fault/negligence by the manufacturer.
• Product must be defective when it leaves the manufacturer's control.

Memory trick: N-S-W: Negligence, Strict, Warranty – choose your weapon.

A false statement of material fact, made with knowledge of its falsity and intent to induce reliance, on which the plaintiff justifiably relies to their detriment.

• False statement of material fact.
• Scienter (knowledge of falsity or reckless disregard).
• Intent to induce reliance.
• Justifiable reliance by plaintiff.

Memory trick: False words, lost deals, ruined wealth.

Under the UCC, if a seller breaches, the buyer may 'cover' by purchasing substitute goods in good faith and without unreasonable delay, and then recover the difference between the cost of cover and the contract price.

• Applies to contracts for the sale of goods.
• Buyer must act in good faith and be reasonable.
• Damages = cost of cover - contract price + incidental/consequential damages - expenses saved.

Memory trick: Cover Your Loss with the Difference in Price.

Liability without fault for harm caused by activities that are inherently dangerous, even when reasonable care is exercised.

• High risk of serious harm.
• Cannot be eliminated by reasonable care.
• Not a matter of common usage.
• Proximate cause required.

Memory trick: Risking serious harm, even with care, means you bear the blame.

In construction contracts, damages for defective performance are typically cost of repair. However, if the cost of repair is grossly disproportionate to the diminution in value of the property (resulting in economic waste), damages are limited to the diminution in value (the difference in value between the performance promised and the performance received).

• Default measure: Cost of repair.
• Exception: Economic waste doctrine.
• Economic waste if repair cost is disproportionate to value loss.
• If economic waste, damages = diminution in value.

Memory trick: Remedies heal the contract wound, putting the injured party back where they would have been.

A defense to defamation that protects those who accurately and fairly report on public proceedings or statements made by others on matters of public concern, even if the underlying statements are false.

• Applies to reports of official proceedings (e.g., legislative, judicial, administrative).
• Can also apply to public meetings or statements on matters of public concern.
• The report must be accurate and fair.
• The reporter is not adopting the truth of the original statement, only reporting that it was made.

Memory trick: Truth and Privilege shield the speaker from libel's sting.

A contractual provision requiring disputes to be resolved through arbitration rather than litigation. Such clauses are generally enforceable by courts.

• Strongly favored by law (e.g., Federal Arbitration Act).
• Courts will compel arbitration if the clause is valid and covers the dispute.
• Defenses include unconscionability, fraud, or lack of mutual assent.

Memory trick: Arbitration Clauses Are Court's Favorite Way to Resolve Disputes.

When a private figure is defamed on a matter of public concern, the plaintiff generally must prove falsity, publication, and that the defendant acted with at least negligence as to the falsity.

• Private figure plaintiffs have a lower burden of proof than public figures.
• Negligence is the typical fault standard for private figures.
• Actual malice is not required unless punitive damages are sought or the matter is purely private.

Memory trick: Defamation needs a 'Foul, Published, False, Faulty, Damaging' statement.

An agreement by two parties to a contract to accept a different performance in satisfaction of the original performance obligation, followed by the actual performance of that new agreement.

• Accord is the new agreement.
• Satisfaction is the performance of the new agreement.
• Discharges the original contractual duty.

Memory trick: Accord and Satisfaction: It's like saying 'Okay, instead of that, let's do this,' and then actually doing 'this.'

The actual injury or loss suffered by the plaintiff as a result of the defendant's negligent conduct.

• Must be actual harm.
• Can include physical injury, emotional distress, property damage, economic loss.
• Nominal damages generally not awarded in negligence.
• Causally linked to the breach.

Memory trick: Did Betty Cause Damage?

Recoverable damages in strict products liability typically include physical injury to the person, property damage, and economic loss, but generally not pure emotional distress without accompanying physical harm.

• Physical injury to person is recoverable.
• Property damage (other than to the product itself) is recoverable.
• Economic losses may be recoverable in some jurisdictions (e.g., California).
• Pure emotional distress without physical impact or injury is often not recoverable.

Memory trick: Defect's bite, not just fright, earns your right.

A defense where the plaintiff knowingly and voluntarily encountered a known risk created by the defendant's abnormally dangerous activity or wild animal, thereby barring or reducing recovery.

• Plaintiff knew of the risk.
• Plaintiff voluntarily encountered the risk.
• Applies to strict liability cases (abnormally dangerous activities, wild animals).
• Can be express or implied.

Memory trick: Known danger, willing choice, liability's voice.

A contract provision that emphasizes the critical importance of a specific date or time for performance, making timely performance a material condition of the contract.

• Makes untimely performance a material breach.
• Must be clearly and expressly stated in the contract.
• Generally not implied, especially in construction contracts.

Memory trick: If the clock isn't ticking loud, a delay won't breach the crowd.

Contract clauses in construction. 'Pay-when-paid' typically dictates timing; 'pay-if-paid' shifts the risk of non-payment to the subcontractor, making owner payment a condition precedent.

• Courts disfavor 'pay-if-paid' (risk-shifting) clauses.
• Language must be unequivocal to be 'pay-if-paid'.
• If ambiguous, interpreted as 'pay-when-paid' (timing mechanism).

Memory trick: Is it 'when' the money arrives, or 'if' it arrives at all? That's the key to construction payment clauses.

To establish a prima facie case of negligence, a plaintiff must prove four elements in sequence: Duty, Breach, Causation (Actual and Proximate), and Damages.

• Each element must be proven for a successful claim.
• The order is crucial for logical progression of proof.
• Duty establishes the legal obligation.
• Breach shows failure to meet that obligation.

Memory trick: D.B.C.D. – Don't Be Careless, Dude!

In medical contexts, consent to the procedure itself generally negates battery. Claims for failure to disclose risks (lack of informed consent) sound in negligence, not battery, as long as the patient consented to the touching performed.

• Battery requires touching without consent, or touching substantially different from what was consented to.
• Lack of informed consent (failure to disclose risks) is typically a negligence claim.
• If the patient consents to the operation, but not all risks are disclosed, it's negligence.
• If the doctor performs a different operation entirely, or on a different body part, it may be battery.

Memory trick: Battery: NO consent. Negligence: BAD consent (not informed).

A defense to intentional torts allowing reasonable force to prevent or terminate an intrusion upon one's land or chattels.

• Force must be reasonable and not cause serious injury or death (unless there's also a threat to personal safety).
• Cannot use force to regain property after it has been taken, only to prevent its taking or to stop ongoing trespass.
• A request to desist is generally required before using force, unless futile or dangerous.

Memory trick: Prop-Need: Property needs defending, but reasonably.

A defense to strict liability for harm caused by wild animals, where the plaintiff knowingly and voluntarily encountered a known risk associated with the animal.

• Requires subjective knowledge and appreciation of the specific danger.
• Plaintiff's choice to encounter the risk must be voluntary.
• Often arises when plaintiff ignores warnings or provokes the animal.
• This is a complete bar to recovery for strict liability.

Memory trick: Wild Animal Risk: Knew it, did it, lost the suit.

Impossibility discharges a contract when performance becomes objectively impossible due to an unforeseeable event (e.g., destruction of unique subject matter). Impracticability discharges a contract when performance becomes extremely and unreasonably difficult or expensive, but still technically possible, due to an unforeseeable event.

• Impossibility: Performance cannot be done by anyone.
• Impracticability: Performance can be done, but at extreme and unreasonable cost/difficulty.
• Both require unforeseeable events.
• Neither party at fault.

Memory trick: Defenses are shields, protecting a party from breach claims.

The most common form of damages for breach of contract, awarded to put the non-breaching party in the position they would have been in had the contract been fully performed.

• Calculated to cover the benefit of the bargain.
• Often measured as the difference between the contract price and the cost of cover/market price.
• Must be foreseeable, ascertainable with reasonable certainty, and unavoidable.

Memory trick: To make them whole, the money goal, is to give them back their soul.

A defense to negligence where the plaintiff knowingly and voluntarily encounters a known risk of harm.

• Express assumption of risk: via contract or explicit agreement.
• Implied assumption of risk: inferred from plaintiff's conduct and knowledge of the risk.
• Requires actual knowledge of the risk and voluntary choice to encounter it.

Memory trick: C-C-A: Contributory, Comparative, Assumption.

An intentional tort where a medical professional performs a procedure on a patient without their valid consent, constituting an unauthorized touching of the patient's body.

• Intentional touching.
• Touching is unauthorized (lack of consent).
• Can occur even if the procedure is beneficial.
• Focus is on bodily autonomy, not necessarily harm.

Memory trick: Consent's clear, or battery's near.

A contract provision where one party's performance is conditioned upon the personal satisfaction of the other party, typically for matters of taste or aesthetics.

• Requires genuine, good-faith dissatisfaction to be valid.
• Performance is judged by the individual's personal judgment.
• Distinguished from objective satisfaction clauses (e.g., structural soundness).

Memory trick: Satisfaction is Subjective When Taste is the Judge.

A breach of contract that is not substantial enough to defeat the essential purpose of the contract, meaning the non-breaching party must still perform their obligations but can sue for damages.

• Does not go to the 'heart' of the agreement.
• Injured party cannot terminate the contract.
• Remedy is typically damages for the reduction in value due to the partial performance.

Memory trick: Big or small, the contract's fall, determines if you owe it all.

A court-ordered remedy compelling the seller of real estate to convey the property to the buyer, because land is considered unique and monetary damages are often inadequate.

• Land is almost always considered unique.
• Monetary damages are usually insufficient to compensate for breach.
• Specific performance is a common and often preferred remedy for real estate contracts.

Memory trick: Specific Performance: Land is Special, Get the Deed!

In strict products liability, assumption of risk is a defense where the plaintiff knowingly and voluntarily encountered a known risk posed by the defective product.

• Requires subjective knowledge of the specific risk.
• Requires voluntary encounter of that risk.
• Often difficult to prove when the defect is latent or unknown to the user.
• Distinguished from comparative negligence, which focuses on unreasonable conduct.

Memory trick: Strict Liability: Defenses are hard, unless they KNEW and DID it.

When a contract is substantially performed but there's a minor deviation, remedies aim to compensate for the loss in value. If the cost of repair/replacement is disproportionately high (economic waste), diminution in value is awarded.

• Substantial performance allows recovery for the breaching party, less damages.
• Damages for minor breach often measured by diminution in value.
• Cost of repair/replacement awarded if reasonable and not economic waste.

Memory trick: When a promise breaks, the law fixes it with money or action.

A contractual provision making one party's performance conditional on their satisfaction with the other party's performance. Can be objective (reasonable person) or subjective (personal taste).

• Subjective standard applies to matters of personal taste, aesthetics, or fancy.
• Objective (reasonable person) standard applies to matters of commercial utility or mechanical fitness.
• Even under a subjective standard, dissatisfaction must be genuine and in good faith.

Memory trick: Conditions are the gates that must open for the contract to proceed.

A substantial and unreasonable interference with another's private use and enjoyment of their land.

• Interference must be intentional, negligent, or abnormally dangerous.
• Substantial interference: offensive, inconvenient, or annoying to an average person.
• Unreasonable interference: gravity of harm outweighs utility of conduct.

Memory trick: T-N: Trespass is 'on' land, Nuisance is 'affecting' land use.