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CA essays 4-6
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Date: July 26th, 2012 3:49 PM
1 - i said no re terms violating sof, but estoppel
2 - i said valid revival, but undue influence and unnatual gift to person that procured so intestacy
3 - i said no 4th vio but miranda vio because custodial. if all gets in evident embezzlement ofs. |
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Date: July 26th, 2012 8:33 PM |
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Date: July 26th, 2012 8:42 PM
i said u/i
i argued both ways if it was custody
fuck i talked about larceny shit |
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Date: July 26th, 2012 9:07 PM |
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Date: July 26th, 2012 9:11 PM |
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Date: July 26th, 2012 9:19 PM
Formation - P made a counteroffer by adding terms and then D agreed. So D's obligations under the K are $40k/year + land (in exchange for P's commitment to work 3 years) + additional three year commitment to keep P.
Writing only says $40k/year, though, so P has to try and get the other terms added.
Parol Evidence - Adding non-contradictory terms to the writing is OK since the writing appears incomplete, no merger clause, etc.
SoF - Can argue part performance for the land term, but will fail since only payment (no improvements, no possession). And part performance can't be argued for the additional three year commitment, which is also subject to SoF because it can't be completed within a year.
But if the jurisdiction recognizes promissory estoppel as a defense to a SoF bar, then it cures both terms and P overcomes the SoF problem.
Remedies
Specific Performance - For the land part, unless D has already conveyed title to a BFP.
Damages - If P can't get land by SP, then give him $50k damages. As for the breach of the three year promise, give him $40k * 3 years = $120k less whatever alternative salary he can expect to get over three years. If he can get a higher-paying job, then he gets nothing for D's breach of the promise to keep him on for 3 years. |
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Date: July 26th, 2012 9:33 PM
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Date: August 3rd, 2012 12:25 PM
I remember concluding the only enforceable K was $40k per year contract (the written letter), which would be a year to year thing.
Considering this essay was 2-3x longer than all my others, I'm hoping dem headings and dat organization will get me a 62. |
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Date: August 3rd, 2012 12:53 PM
The problem is that the writing only mentions the $40k/year term. If that's the only term, then D did not breach -- she continued to pay P $40k/year up until she terminated him, and the writing does not limit her power to terminate. No breach obviously means no remedies for breach.
So if P wants to recover anything, he's got to show the existence of the two other terms (or at least one of them). Two potential problems. First, D's oral agreement to the terms was made before the writing and is therefore parol evidence. Second, even if evidence of the oral agreement is allowed in, the SoF normally requires these terms be in writing (or part performance for the land term).
Parol evidence is not a problem because the writing's partially integrated. SoF is a major problem and it will kill P's attempt to add the other terms. P's only hope is promissory estoppel, which a minority of courts recognize as a defense to an SoF bar.
IF P manages to add and enforce the other terms, then D has breached those terms, and this opens the door to specific performance and damages.
Edit: I agree that this essay was longer and more complicated than the others. I actually borrowed 15 min from the wills question to flesh this one out (I don't know if it's because I know contracts much better than wills, but I just didn't have much to talk about on the wills essay). |
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Date: August 3rd, 2012 6:30 PM
I don't know how the plaintiff could go in and say "I had an agreement with D that she was going to 'convey me a parcel of land'" and expect the court to consider that argument. |
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Date: August 3rd, 2012 6:39 PM
The facts also said that D changed her mind about transferring the land to P because she wanted to sell it to someone else. Again, this suggests a specific, non-fungible parcel of land. |
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Date: August 3rd, 2012 6:54 PM
Anyway, I still argued the shit fails due to PER/SOF in the alternative. |
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Date: August 3rd, 2012 7:07 PM |
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Date: August 3rd, 2012 7:43 PM
i. SOF: land contract must be… 1. (1) In writing, 2. (2) Signed by the party to be bound 3. (3) Must describe the land, and a. “Must adequately describe the land to be conveyed”
So many MBEs tested this rule and I don't remember any kind of distinction between Ks and deeds. I distinctly remember one that was about a conveyance where the dude described it as "my land from my house to Mrs. Jones's house" and the correct answer was that this was too ambiguous on its face to be enforceable. |
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Date: August 3rd, 2012 7:51 PM
Think about the part performance exception to the SoF. Parties usually try to argue part performance if it's a land contract and there's no writing. If there's no writing, there cannot be a written description of the land -- let alone an unambiguous one.
For oral transfers of land that survive the SoF because of part performance, it MUST be enough that both parties understood what parcel of land they intended to transfer.
I don't see why it'd be different for oral transfers of land that survive the SoF because of promissory estoppel. |
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Date: August 3rd, 2012 8:12 PM
Here, D offered a parcel worth about $50k. How would P know what land D was talking about? How could there be mutual assent as to conveying it? I agree that an oral transfer in land is enforceable because the parties understood what land it concerned, but here P had 0 idea what land it was aside that D owned it and it was worth about $50k. |
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Date: August 3rd, 2012 8:43 PM
But even if D owns multiple parcels of land fitting her description, there is still mutual assent: P knew what he was getting (land worth $50k) and D knew what she was promising (land worth $50k).
Let me summarize. At this point, I would say that whether D's promise is ambiguous or not does not affect the ENFORCEABILITY of the contract but rather the REMEDY.
Scenario 1: D has only one parcel meeting her description; the description is therefore unambiguous. The contract is enforceable and P can demand specific performance.
Scenario 2: D has multiple parcels meeting her description; the description is ambiguous. The contract is still enforceable but P cannot demand specific performance since it's unclear which parcel we should give him (in other words, the contract's terms are too indefinite for specific performance). But the contract is still enforceable, so P can recover $50k damages.
To say that the contract is flat out unenforceable in Scenario 2 would be unfair to P, and the whole point of promissory estoppel is to prevent that kind of gross injustice -- especially where other options like restitution cannot. |
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Date: July 26th, 2012 9:21 PM
No 4th since routine traffic stop =/= seizure and sighting items in plain view =/= search. No Miranda - Objective test, so his subjective belief irrelevant. And SCOTUS has said that a routine traffic stop is not custodial.
Not guilty of larceny (intent to return). Guilty of embezzlement. |
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Date: July 26th, 2012 9:34 PM |
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Date: July 26th, 2012 9:35 PM |
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Date: July 27th, 2012 2:44 AM |
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Date: August 3rd, 2012 12:36 PM |
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Date: July 26th, 2012 9:38 PM
i also said guilty of embezzlement if he had rightful possession and not custody when the woman gave him the shit to give to the church. |
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Date: July 26th, 2012 9:47 PM |
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Date: July 26th, 2012 11:10 PM
But also argued could have had intent to steal when he moved - then would be guilty of larceny/embezzlement. |
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Date: July 26th, 2012 11:17 PM |
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Date: July 26th, 2012 11:17 PM |
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Date: August 3rd, 2012 12:28 PM
There are always MBEs with this exact type fact pattern--person takes something lawfully (e.g., borrows from a friend), then later intends to keep it, so the correct answer is he/she is guilty of larceny. |
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Date: August 3rd, 2012 4:17 PM |
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Date: August 3rd, 2012 6:58 PM |
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Date: July 26th, 2012 11:37 PM |
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Date: August 3rd, 2012 8:54 PM
I put theft was a modern crime that consolidated many common law crimes, and then just put elements of larceny and said guilty because of continuing trespass (which works for theft).
Never even though to separate it into larceny/embezzlement etc. |
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Date: July 26th, 2012 11:20 PM |
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Date: July 26th, 2012 11:22 PM |
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Date: July 26th, 2012 11:29 PM |
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Date: July 26th, 2012 11:28 PM
I think it's NBD considering the meat of the question was undue influence. And you get the right result (intestate succession) whether you say the gift lapses or just fails because the beneficiary ceased to exist. |
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Date: August 3rd, 2012 12:18 PM
I had no idea what to do with the fact it went out of business. |
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Date: July 26th, 2012 11:34 PM |
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Date: July 26th, 2012 11:37 PM
"I have a duty of loyalty to my client and I have to remain faithful to her intent!"
*Refuses to discern her intent for 10 months* *Tries to record deed after 8 months without ever affirming her intent* |
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Date: August 3rd, 2012 12:32 PM
So my argument went: 1. lol yes there is a duty and it was obviously breached; 2. whether there even was a duty is an issue of fact, not law; 3. conflicting evidence about the dispositive issue makes a demurrer inappropriate. |
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Date: July 27th, 2012 12:03 AM |
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Date: July 27th, 2012 3:04 AM |
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Date: July 27th, 2012 12:53 PM |
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Date: August 3rd, 2012 9:40 AM
It got repetitive as fuck since the loyalty analysis involved the same two or three steps each time: (1) was the transaction a conflict (invariably yes); (2) if it was a conflict, did the Board's approval cleanse the transaction (full disclosure or awareness of the conflict + majority of disinterested members approve); (3) if the Board didn't/couldn't cleanse, was the transaction fair and reasonable.
The duty of care analysis was even more repetitive. I just stated the rule each time and, for most transactions, threw in a short argument for why the duty of care wasn't breached. For one transaction, I think I said the duty might have been breached since an ordinarily prudent person might have inquired into alternatives or the nature of the conflict before voting to approve. Never mentioned the BJR, which I think adds nothing to the rule statement (as I understand it, the BJR essentially says the duty of care isn't breached except when it is).
The constant repetition could turn the grader off. On the other hand, it's organized: each transaction is analyzed in a systematic, albeit repetitive, manner. Since the readers are going to get a ton of disorganized answers for this PT, I think, on balance, the organized repetition will cut in my favor. |
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Date: August 3rd, 2012 11:24 AM
i think i royally fucked up. the Smith court didn't do either a duty of care/loyalty analysis, but instead, focused on whether the nonprofit was truly acting as a nonprofit (i.e., not unduly benefiting private individuals). i pretty much mirrored smith and said BJR didn't apply and analyzed the conflicted transactions under Smith and discussed whether they were unduly benefiting private entities. |
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Date: August 3rd, 2012 3:38 PM
I think Smith just combined the duty of loyalty/care analysis with the undue private benefit analysis. In other words, they first ask whether there was a breach of the duty of loyalty/care. They then ask whether the breaches were so egregious that they warrant the (extreme) remedy of dissolution.
I never reached the second step because I OK'd most of the transactions. And the one or two questionable transactions were much tamer than the transactions in Smith, so I never even raised the possibility of dissolution. Probably should have made my reasoning explicit, though. |