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

A non-material breach of contract where the breaching party substantially performs their obligations, but a minor deviation or defect exists that does not defeat the essential purpose of the contract.

• Does not excuse the non-breaching party from their performance.
• Non-breaching party can sue for damages caused by the minor defect.
• Damages are typically the cost to repair the defect or diminish in value.

Memory trick: Minor Breach Means Pay Up, But Get a Small Refund.

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

• Duty: Defendant owed a duty of care to plaintiff.
• Breach: Defendant failed to meet that duty.
• Causation: Breach was the cause of plaintiff's injury (actual and proximate).
• Damages: Plaintiff suffered actual harm.

Memory trick: Did Betty Cause Damage?

A response to an offer that changes its terms. A counteroffer acts as both a rejection of the original offer and a new offer from the original offeree to the original offeror. The original offer is terminated by the counteroffer and cannot be accepted unless renewed.

• Rejects the original offer.
• Creates a new offer.
• Terminates the power of acceptance of the original offer.
• Must be accepted by the original offeror to form a contract.

Memory trick: Offer and acceptance are the two hands that clap to make a contract.

An intentional act that causes harmful or offensive contact with another person's body or something closely associated with it.

• Requires intent to cause contact, not necessarily intent to harm.
• Contact can be direct or indirect.
• Plaintiff does not need to be aware of the contact at the time it occurs.

Memory trick: B-A-F-I: Body, Apprehension, Freedom, Intent.

The tort of appropriation of likeness (or right of publicity) protects against the unauthorized commercial use of a person's name or image, but generally includes an exception for newsworthy events or matters of public interest.

• Protects against commercial exploitation of identity.
• Requires unauthorized use of name/likeness for commercial benefit.
• Newsworthy exception: use in connection with news, public affairs, or matters of public interest is usually not actionable.
• Public figures often have a diminished expectation of privacy in public.

Memory trick: I Don't Like Private Facts or False Lights.

A contract where one party makes a promise in exchange for an act from the other party; acceptance occurs upon completion or substantial performance of the act.

• Offeror seeks performance, not a promise.
• Offeree accepts by performing the requested act.
• Offer becomes irrevocable once performance begins.

Memory trick: Promises for Promises, or Promises for Performance?

A contractual provision that specifies a predetermined sum of money that must be paid as damages by a breaching party. It is enforceable if actual damages are difficult to ascertain and the stipulated amount is a reasonable forecast of the damages.

• Purpose is to avoid litigation over damage calculations.
• Must not be a penalty; must be a reasonable estimate.
• Enforceability determined at time of contract formation, not breach.

Memory trick: Forecast or Punish? That's the Damages Question.

A lease provision requiring landlord consent for assignment or subletting, but stipulating that consent 'shall not be unreasonably withheld.' Under the modern view, 'unreasonably withheld' requires the landlord to have commercially reasonable grounds for refusal.

• Shifts from traditional absolute landlord discretion.
• Reasons for refusal must relate to the assignee's financial responsibility or suitability for the premises.
• Personal preferences or desire for higher rent are generally not commercially reasonable grounds.

Memory trick: Landlord's Veto: Absolute or Reasonable?

An equitable remedy compelling a party to perform their contractual obligations. It is typically denied if performance is impossible, even if the subject matter is unique.

• Requires unique subject matter (e.g., land, rare goods).
• Denied if performance is impossible.
• Denied if money damages are an adequate remedy.

Memory trick: Can the court force them to do it, or just pay?

When a party unequivocally indicates they will not perform before performance is due, the non-breaching party can treat it as an immediate breach. Under the UCC, the buyer can then 'cover' by purchasing substitute goods and recover the difference between the contract price and the cover price, plus consequential damages.

• Must be a clear and unequivocal statement of non-performance.
• Allows non-breaching party to sue immediately.
• Buyer's remedy of 'cover' involves buying substitute goods in good faith.
• Consequential damages (like lost profits) are recoverable if foreseeable to the seller.

Memory trick: Future No-Go, Present Lawsuit.

A contract provision where performance must satisfy one party, but the standard for satisfaction is what a reasonable person would deem satisfactory, rather than the party's personal feelings.

• Applied when performance is commercial or mechanical in nature.
• Protects against arbitrary refusal of payment or acceptance.
• Differs from subjective satisfaction, which applies to matters of personal taste.

Memory trick: Satisfy the reasonable judge, or just the picky client?

The sudden incapacitation defense (also known as the 'sudden emergency' or 'unforeseeable illness' defense) is available when a driver experiences a sudden, unforeseeable physical or mental incapacity that causes an accident, provided there was no prior warning or reason to anticipate such an event.

• Applies to unforeseeable medical emergencies.
• Driver must have no prior warning or knowledge of the condition.
• If successful, negates the element of breach of duty (no negligence).
• Does not apply if the condition was known or foreseeable.

Memory trick: Assume No Contributory Sudden Comparative!

Proximate cause, or legal cause, limits a defendant's liability to those harms that are a reasonably foreseeable consequence of their negligent act.

• Focuses on foreseeability of the harm.
• Determines the scope of liability.
• Intervening causes can break the chain of proximate causation if unforeseeable.

Memory trick: Don't Be Careless, Dude!