Barbri纽约州律考Contracts and Sales笔记摘要

MASTER2008NY BAR ESSAY TOPICSFEB2008-JULY1995Being an attorney, I must start off with a disclaimer. This is advice and opinion based on my analysis. This information is intended to supplement your studying. The information contained on this site is by no means a replacement for common sense, studying and hard work. No representation is made that any answer is correct or identifies or correctly responds to all of the issues raised by the corresponding question. The analysis is deemed accurate and reliable, but no warranties are being made, including, but not limited to typographical errors. In addition, please keep in mind that past performance is not indicative of future results.The purpose of MASTER is to make it easier to study for the NY Essays so you can focus on the MBE. However, everyone is different. Certain study methods do not work for all people. I do think that everyone that signed up for MASTER agrees with my philosophy – you study the topics most likely to appear and avoid the topics least likely to appear in order to increase your chances of passing the exam.I use the terms "categories" "topics" and "issues” below. Categories are the 16 categories (i.e. Contracts, Torts, etc). Topics are the 299 topics that appear throughout the 26 NY Bar Exams from Feb 2008 to July 1995 (i.e. PROPERTY: Joint Tenants). Issues are the sum of all the topics that appear throughout the 26 NY Bar Exams from Feb 2008 to July 1995. There are 698 issues in the 26 NY Bar Exams from Feb 2008 to July 1995.The MASTER 2008 topics are color-coded. The codes are as follows: BLUE-HIGH, GREEN-MEDIUM, ORANGE-LOW. If you want to get rid the color coding for printing purposes, just Select All (Ctrl+A) and then change the font color to Black or Automatic. MASTER 2008 consists of 64 LOW priority topics, 122 MEDIUM priority topics, and 113 HIGH priority topics.The Table of Contents is Hyper-Linked. Just hold down the CTRL key and click on a topic and you will jump to that topic.GOOD LUCK ON JULY 2008.TABLE OF CONTENTSAGENCY/PARTNERSHIP–8 OF 26EXAMS- OVERALL ISSUE FREQUENCY 1.3% (8)AGENT-PART: Agent - F:2 - T:22.22% - E:0.29% - J:50.00% - Prio: LOW (8)AGENT-PART: Limited Partnership - F:1 - T:11.11% - E:0.14% - J:100.00% - Prio: LOW (8)AGENT-PART: Partnerships - F:6 - T:66.67% - E:0.86% - J:83.33% - Prio: LOW (8)CONFLICT OF LAWS–8 OF 26EXAMS- OVERALL ISSUE FREQUENCY 1.1% (8)CONFLICT: Conflict of Law - F:8 - T:100.00% - E:1.15% - J:50.00% - Prio: MED (8)CONSTITUTIONAL LAW–3 OF 26EXAMS- OVERALL ISSUE FREQUENCY 0.4% (9)CONLAW: Freedom of Speech - F:1 - T:33.33% - E:0.14% - J:0.00% - Prio: LOW (9)CONLAW: Takings - F:2 - T:66.67% - E:0.29% - J:50.00% - Prio: LOW (9)CONTRACTS–26 OF 26EXAMS- OVERALL ISSUE FREQUENCY 11.9% (9)CONTRACT: Accord and Satisfaction - F:1 - T:1.20% - E:0.14% - J:100.00% - Prio: LOW (9)CONTRACT: Anticipatory Repudiation - F:2 - T:2.41% - E:0.29% - J:100.00% - Prio: HIGH (9)CONTRACT: Battle of Forms/Mirror Image Rule - F:3 - T:3.61% - E:0.43% - J:33.33% - Prio: HIGH (10)CONTRACT: Breach by Buyer - F:2 - T:2.41% - E:0.29% - J:100.00% - Prio: HIGH (10)CONTRACT: Breach by Seller - F:3 - T:3.61% - E:0.43% - J:66.67% - Prio: MED (10)CONTRACT: Confirmatory Memo - F:3 - T:3.61% - E:0.43% - J:0.00% - Prio: HIGH (11)CONTRACT: Consideration - F:2 - T:2.41% - E:0.29% - J:50.00% - Prio: HIGH (11)CONTRACT: Creation/Validity - F:7 - T:8.43% - E:1.00% - J:42.86% - Prio: HIGH (11)CONTRACT: Damages/Cover - F:4 - T:4.82% - E:0.57% - J:75.00% - Prio: HIGH (11)CONTRACT: Disclaimer on Negligence - F:1 - T:1.20% - E:0.14% - J:100.00% - Prio: MED (12)CONTRACT: Employment Contract - F:2 - T:2.41% - E:0.29% - J:100.00% - Prio: HIGH (12)CONTRACT: Equitable Remedies - F:2 - T:2.41% - E:0.29% - J:100.00% - Prio: HIGH (12)CONTRACT: Fraudulent Inducement - F:1 - T:1.20% - E:0.14% - J:0.00% - Prio: MED (12)CONTRACT: Illegality Defense - F:1 - T:1.20% - E:0.14% - J:100.00% - Prio: MED (12)CONTRACT: Impossibility - F:1 - T:1.20% - E:0.14% - J:100.00% - Prio: LOW (13)CONTRACT: Installment Contract - F:1 - T:1.20% - E:0.14% - J:0.00% - Prio: MED (13)CONTRACT: Liquidated Damages - F:2 - T:2.41% - E:0.29% - J:50.00% - Prio: HIGH (13)CONTRACT: Modifications - F:3 - T:3.61% - E:0.43% - J:33.33% - Prio: HIGH (13)CONTRACT: Non Conforming Delivery - F:3 - T:3.61% - E:0.43% - J:66.67% - Prio: LOW (13)CONTRACT: Non-Compete Agreements - F:4 - T:4.82% - E:0.57% - J:25.00% - Prio: HIGH (14)CONTRACT: Parol Evidence - F:3 - T:3.61% - E:0.43% - J:33.33% - Prio: LOW (14)CONTRACT: Real Estate Sales Contract - F:3 - T:3.61% - E:0.43% - J:33.33% - Prio: HIGH (14)CONTRACT: Replevin - F:1 - T:1.20% - E:0.14% - J:100.00% - Prio: LOW (14)CONTRACT: Requirements Contract - F:2 - T:2.41% - E:0.29% - J:0.00% - Prio: LOW (14)CONTRACT: Rescission - F:1 - T:1.20% - E:0.14% - J:0.00% - Prio: MED (15)CONTRACT: Reward/Unilateral Contract - F:1 - T:1.20% - E:0.14% - J:100.00% - Prio: MED (15)CONTRACT: Risk of Loss and Bailments - F:2 - T:2.41% - E:0.29% - J:50.00% - Prio: LOW (15)CONTRACT: Services Contract Over One Year - F:2 - T:2.41% - E:0.29% - J:50.00% - Prio: HIGH (15)CONTRACT: Shipment/Destination Contracts - F:2 - T:2.41% - E:0.29% - J:100.00% - Prio: HIGH (15)CONTRACT: Statute of Frauds - F:5 - T:6.02% - E:0.72% - J:60.00% - Prio: HIGH (16)CONTRACT: Substantial Performance - F:1 - T:1.20% - E:0.14% - J:100.00% - Prio: MED (16)CONTRACT: Termination Clause - F:1 - T:1.20% - E:0.14% - J:0.00% - Prio: MED (16)CONTRACT: Third-Party Beneficiary - F:1 - T:1.20% - E:0.14% - J:0.00% - Prio: MED (16)CONTRACT: Time is of the Essence Clause - F:2 - T:2.41% - E:0.29% - J:50.00% - Prio: HIGH (17)CONTRACT: Unconscionability - F:1 - T:1.20% - E:0.14% - J:0.00% - Prio: MED (17)CONTRACT: Unilateral Mistake - F:1 - T:1.20% - E:0.14% - J:0.00% - Prio: MED (17)CONTRACT: Waiver - F:1 - T:1.20% - E:0.14% - J:0.00% - Prio: MED (17)CONTRACT: Warranties - F:5 - T:6.02% - E:0.72% - J:40.00% - Prio: HIGH (17)CORPORATIONS–22 OF 26EXAMS- OVERALL ISSUE FREQUENCY 8.6% (18)CORP: Board Authorization - F:1 - T:1.67% - E:0.14% - J:0.00% - Prio: MED (18)CORP: Closely Held Corporation - F:1 - T:1.67% - E:0.14% - J:100.00% - Prio: MED (18)CORP: Director Duty of Care - F:5 - T:8.33% - E:0.72% - J:40.00% - Prio: HIGH (18)CORP: Director Duty of Loyalty - F:8 - T:13.33% - E:1.15% - J:50.00% - Prio: MED (18)CORP: Dissolution - F:8 - T:13.33% - E:1.15% - J:25.00% - Prio: HIGH (19)CORP: Fundamental Change/Merger - F:1 - T:1.67% - E:0.14% - J:0.00% - Prio: MED (19)CORP: Insider Trading - F:1 - T:1.67% - E:0.14% - J:0.00% - Prio: LOW (20)CORP: Preemptive Rights - F:3 - T:5.00% - E:0.43% - J:33.33% - Prio: MED (20)CORP: Pre-Incorporation Contract - F:3 - T:5.00% - E:0.43% - J:33.33% - Prio: HIGH (21)CORP: Professional Corporations - F:1 - T:1.67% - E:0.14% - J:100.00% - Prio: MED (21)CORP: Promoter Liability - F:1 - T:1.67% - E:0.14% - J:100.00% - Prio: MED (21)CORP: Removal - F:1 - T:1.67% - E:0.14% - J:0.00% - Prio: MED (21)CORP: Repurchase of Shares - F:1 - T:1.67% - E:0.14% - J:0.00% - Prio: LOW (21)CORP: Right of First Refusal - F:2 - T:3.33% - E:0.29% - J:0.00% - Prio: MED (21)CORP: Shareholder Agreements - F:2 - T:3.33% - E:0.29% - J:50.00% - Prio: LOW (22)CORP: Shareholder Appraisal Rights - F:1 - T:1.67% - E:0.14% - J:0.00% - Prio: MED (22)CORP: Shareholder Derivative Action - F:2 - T:3.33% - E:0.29% - J:50.00% - Prio: HIGH (22)CORP: Shareholder Duties - F:1 - T:1.67% - E:0.14% - J:100.00% - Prio: LOW (23)CORP: Shareholder Management - F:1 - T:1.67% - E:0.14% - J:100.00% - Prio: LOW (23)CORP: Shareholder Remedies - F:1 - T:1.67% - E:0.14% - J:100.00% - Prio: MED (23)CORP: Special Meetings - F:2 - T:3.33% - E:0.29% - J:0.00% - Prio: MED (23)CORP: Stock-Consideration - F:1 - T:1.67% - E:0.14% - J:100.00% - Prio: MED (23)CORP: Super-Majority Voting - F:2 - T:3.33% - E:0.29% - J:0.00% - Prio: MED (24)CORP: Termination - F:2 - T:3.33% - E:0.29% - J:0.00% - Prio: MED (24)CRIMINAL LAW AND PROCEDURE–26 OF 26EXAMS- OVERALL ISSUE FREQUENCY 16.5% (24)CRIMLAW: Accomplice - F:5 - T:4.35% - E:0.72% - J:80.00% - Prio: HIGH (24)CRIMLAW: Accomplice-Uncorroborated Testimony - F:1 - T:0.87% - E:0.14% - J:100.00% - Prio: MED (24)CRIMLAW: Alibi - F:1 - T:0.87% - E:0.14% - J:100.00% - Prio: MED (24)CRIMLAW: Arrest/Search and Seizure - F:6 - T:5.22% - E:0.86% - J:33.33% - Prio: HIGH (24)CRIMLAW: Arson - F:3 - T:2.61% - E:0.43% - J:66.67% - Prio: HIGH (25)CRIMLAW: Assault - F:3 - T:2.61% - E:0.43% - J:0.00% - Prio: LOW (25)CRIMLAW: Attempt - F:4 - T:3.48% - E:0.57% - J:25.00% - Prio: LOW (25)CRIMLAW: Burden of Proof - F:3 - T:2.61% - E:0.43% - J:100.00% - Prio: MED (25)CRIMLAW: Burglary - F:3 - T:2.61% - E:0.43% - J:100.00% - Prio: HIGH (26)CRIMLAW: Conspiracy - F:3 - T:2.61% - E:0.43% - J:66.67% - Prio: LOW (26)CRIMLAW: Criminal Facilitation - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: LOW (26)CRIMLAW: Criminal Possession of a Controlled Substance - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: MED (26)CRIMLAW: Criminal Possession of Stolen Property - F:2 - T:1.74% - E:0.29% - J:50.00% - Prio: MED (26)CRIMLAW: Criminal Possession of Weapon - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: MED (26)CRIMLAW: Criminally Negligent Homicide - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: MED (27)CRIMLAW: Defective Warrant - F:1 - T:0.87% - E:0.14% - J:100.00% - Prio: MED (27)CRIMLAW: Discovery/Rosario Disclosure - F:2 - T:1.74% - E:0.29% - J:100.00% - Prio: MED (27)CRIMLAW: Duress - F:1 - T:0.87% - E:0.14% - J:100.00% - Prio: MED (27)CRIMLAW: Entrapment - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: MED (28)CRIMLAW: Forgery - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: MED (28)CRIMLAW: Fruit of the Poisonous Tree - F:7 - T:6.09% - E:1.00% - J:57.14% - Prio: HIGH (28)CRIMLAW: Grand Jury-Indictment - F:2 - T:1.74% - E:0.29% - J:50.00% - Prio: HIGH (28)CRIMLAW: In-Court Identification-Independent Source - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: MED (28)CRIMLAW: Ineffective Assistance of Counsel - F:1 - T:0.87% - E:0.14% - J:100.00% - Prio: MED (29)CRIMLAW: Infancy - F:2 - T:1.74% - E:0.29% - J:50.00% - Prio: LOW (29)CRIMLAW: Insanity Defense - F:2 - T:1.74% - E:0.29% - J:100.00% - Prio: HIGH (29)CRIMLAW: Issuing a Bad Check - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: MED (29)CRIMLAW: Justification - F:5 - T:4.35% - E:0.72% - J:20.00% - Prio: LOW (29)CRIMLAW: Kidnapping - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: MED (30)CRIMLAW: Larceny - F:3 - T:2.61% - E:0.43% - J:33.33% - Prio: HIGH (30)CRIMLAW: Lineups - F:4 - T:3.48% - E:0.57% - J:25.00% - Prio: HIGH (30)CRIMLAW: Manslaughter in the First Degree - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: MED (31)CRIMLAW: Mistrial - F:1 - T:0.87% - E:0.14% - J:100.00% - Prio: MED (31)CRIMLAW: Murder in the First Degree - F:2 - T:1.74% - E:0.29% - J:50.00% - Prio: LOW (31)CRIMLAW: Murder in the Second Degree - F:3 - T:2.61% - E:0.43% - J:66.67% - Prio: HIGH (32)CRIMLAW: Notice of Intent to Offer Statement by Defendant - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: MED (32)CRIMLAW: Peremptory Challenges - F:1 - T:0.87% - E:0.14% - J:100.00% - Prio: MED (32)CRIMLAW: Possession of a Forged Instrument - F:1 - T:0.87% - E:0.14% - J:100.00% - Prio: MED (33)CRIMLAW: Resisting Arrest - F:1 - T:0.87% - E:0.14% - J:0.00% - Prio: LOW (33)CRIMLAW: Right to Counsel/Miranda - F:7 - T:6.09% - E:1.00% - J:28.57% - Prio: HIGH (33)CRIMLAW: Robbery - F:2 - T:1.74% - E:0.29% - J:100.00% - Prio: MED (33)CRIMLAW: Waiver of Right to Counsel - F:2 - T:1.74% - E:0.29% - J:50.00% - Prio: HIGH (35)CRIMLAW: Warrantless Search Exceptions - F:2 - T:1.74% - E:0.29% - J:50.00% - Prio: HIGH (35)CRIMLAW: Wiretap/Video Surveillance - F:2 - T:1.74% - E:0.29% - J:100.00% - Prio: HIGH (36)DOMESTIC RELATIONS–21 OF 26EXAMS- OVERALL ISSUE FREQUENCY 9.7% (36)DOMESTIC: Abandonment - F:2 - T:2.94% - E:0.29% - J:50.00% - Prio: HIGH (36)DOMESTIC: Adoption-Revoke Consent - F:1 - T:1.47% - E:0.14% - J:0.00% - Prio: MED (36)DOMESTIC: Adoption-Vacate Order - F:1 - T:1.47% - E:0.14% - J:0.00% - Prio: MED (36)DOMESTIC: Adultery - F:4 - T:5.88% - E:0.57% - J:75.00% - Prio: HIGH (36)DOMESTIC: Annulment - F:1 - T:1.47% - E:0.14% - J:0.00% - Prio: MED (37)DOMESTIC: Child Custody - F:3 - T:4.41% - E:0.43% - J:66.67% - Prio: HIGH (37)DOMESTIC: Child Support - F:6 - T:8.82% - E:0.86% - J:50.00% - Prio: MED (37)DOMESTIC: Child Support-Nonpayment - F:1 - T:1.47% - E:0.14% - J:0.00% - Prio: LOW (37)DOMESTIC: Condonation - F:2 - T:2.94% - E:0.29% - J:0.00% - Prio: HIGH (37)DOMESTIC: Conversion Divorce - F:3 - T:4.41% - E:0.43% - J:66.67% - Prio: HIGH (38)DOMESTIC: Cruel and Inhuman Treatment - F:3 - T:4.41% - E:0.43% - J:66.67% - Prio: HIGH (38)DOMESTIC: Divorce - F:3 - T:4.41% - E:0.43% - J:66.67% - Prio: HIGH (38)DOMESTIC: Equitable Distribution of a Gift - F:1 - T:1.47% - E:0.14% - J:0.00% - Prio: MED (38)DOMESTIC: Equitable Distribution of Joint Bank Account - F:1 - T:1.47% - E:0.14% - J:0.00% - Prio: MED (38)DOMESTIC: Equitable Distribution of Marital Property - F:6 - T:8.82% - E:0.86% - J:66.67% - Prio: HIGH (39)DOMESTIC: Equitable Distribution of Pension - F:1 - T:1.47% - E:0.14% - J:100.00% - Prio: MED (39)DOMESTIC: Equitable Distribution of Professional License - F:3 - T:4.41% - E:0.43% - J:100.00% - Prio: HIGH (39)DOMESTIC: Equitable Distribution of Separate Property - F:4 - T:5.88% - E:0.57% - J:100.00% - Prio: HIGH (39)DOMESTIC: Full Faith and Credit of Divorce Decrees - F:2 - T:2.94% - E:0.29% - J:100.00% - Prio: HIGH (39)DOMESTIC: Jurisdiction-Divorce - F:4 - T:5.88% - E:0.57% - J:75.00% - Prio: HIGH (40)DOMESTIC: Jurisdiction-Maintenance and Equitable Distribution - F:1 - T:1.47% - E:0.14% - J:0.00% - Prio: MED (40)DOMESTIC: Maintenance - F:2 - T:2.94% - E:0.29% - J:100.00% - Prio: HIGH (40)DOMESTIC: Modifying a Separation Agreement-Child Support - F:4 - T:5.88% - E:0.57% - J:50.00% - Prio: LOW (40)DOMESTIC: Modifying a Separation Agreement - F:2 - T:2.94% - E:0.29% - J:50.00% - Prio: MED (41)DOMESTIC: Paternity - F:2 - T:2.94% - E:0.29% - J:50.00% - Prio: LOW (41)DOMESTIC: Prenuptial Agreement - F:3 - T:4.41% - E:0.43% - J:66.67% - Prio: HIGH (41)DOMESTIC: Separation Agreement/Survival and Merger - F:1 - T:1.47% - E:0.14% - J:0.00% - Prio: LOW (41)DOMESTIC: Unmarried Cohabitant Agreements - F:1 - T:1.47% - E:0.14% - J:100.00% - Prio: LOW (42)EVIDENCE–10 OF 26EXAMS- OVERALL ISSUE FREQUENCY 1.6% (42)EVIDENCE: Character Evidence-Defendant - F:2 - T:18.18% - E:0.29% - J:100.00% - Prio: MED (42)EVIDENCE: Character Evidence-Victim - F:1 - T:9.09% - E:0.14% - J:100.00% - Prio: LOW (42)EVIDENCE: Dying Declaration Hearsay - F:1 - T:9.09% - E:0.14% - J:100.00% - Prio: MED (42)EVIDENCE: Hearsay - F:2 - T:18.18% - E:0.29% - J:100.00% - Prio: MED (43)EVIDENCE: Impeachment - F:1 - T:9.09% - E:0.14% - J:100.00% - Prio: MED (43)EVIDENCE: Prior Bad Act - F:3 - T:27.27% - E:0.43% - J:66.67% - Prio: MED (43)EVIDENCE: Subsequent Remedial Measures - F:1 - T:9.09% - E:0.14% - J:0.00% - Prio: MED (43)FEDERAL JURISDICTION–5 OF 26EXAMS- OVERALL ISSUE FREQUENCY 0.7% (43)FED-JUX: Removal to Federal Court - F:5 - T:100.00% - E:0.72% - J:20.00% - Prio: MED (43)NEW YORK PRACTICE–24 OF 26EXAMS- OVERALL ISSUE FREQUENCY 9.6% (44)NYPRAC: Amend Complaint - F:1 - T:1.49% - E:0.14% - J:100.00% - Prio: LOW (44)NYPRAC: Answer - F:1 - T:1.49% - E:0.14% - J:0.00% - Prio: MED (44)NYPRAC: Appeals - F:1 - T:1.49% - E:0.14% - J:0.00% - Prio: LOW (44)NYPRAC: Arbitration - F:4 - T:5.97% - E:0.57% - J:50.00% - Prio: LOW (44)NYPRAC: Article 78 Action - F:1 - T:1.49% - E:0.14% - J:100.00% - Prio: LOW (45)NYPRAC: Attachment - F:1 - T:1.49% - E:0.14% - J:0.00% - Prio: MED (45)NYPRAC: Collateral Source Rule - F:1 - T:1.49% - E:0.14% - J:100.00% - Prio: MED (45)NYPRAC: Counterclaims - F:1 - T:1.49% - E:0.14% - J:100.00% - Prio: LOW (45)NYPRAC: Discovery - F:1 - T:1.49% - E:0.14% - J:0.00% - Prio: LOW (46)NYPRAC: Failure to State a Cause of Action - F:4 - T:5.97% - E:0.57% - J:50.00% - Prio: HIGH (46)NYPRAC: Forum Non Conveniens - F:1 - T:1.49% - E:0.14% - J:0.00% - Prio: MED (46)NYPRAC: Joinder - F:1 - T:1.49% - E:0.14% - J:100.00% - Prio: LOW (46)NYPRAC: Preliminary Injunction - F:8 - T:11.94% - E:1.15% - J:37.50% - Prio: HIGH (47)NYPRAC: Res Judicata/Collateral Estoppel - F:3 - T:4.48% - E:0.43% - J:33.33% - Prio: HIGH (48)NYPRAC: Service on a Corporation - F:1 - T:1.49% - E:0.14% - J:100.00% - Prio: MED (48)NYPRAC: Service on an Individual - F:2 - T:2.99% - E:0.29% - J:50.00% - Prio: HIGH (48)NYPRAC: Statute of Limitations - F:7 - T:10.45% - E:1.00% - J:42.86% - Prio: HIGH (48)NYPRAC: Subpoena Witnesses - F:1 - T:1.49% - E:0.14% - J:0.00% - Prio: LOW (48)NYPRAC: Summary Judgment Motion - F:13 - T:19.40% - E:1.86% - J:61.54% - Prio: HIGH (49)PROFESSIONAL RESPONSIBILITY–13 OF 16EXAMS- OVERALL ISSUE FREQUENCY 4.4% (49)PRO-RES: Fees - F:5 - T:29.41% - E:0.72% - J:60.00% - Prio: LOW (49)PRO-RES: Fees-Domestic Relations - F:3 - T:17.65% - E:0.43% - J:100.00% - Prio: HIGH (49)PRO-RES: Inform Client - F:1 - T:5.88% - E:0.14% - J:0.00% - Prio: MED (49)PRO-RES: Prior Representation - F:1 - T:5.88% - E:0.14% - J:100.00% - Prio: MED (50)PRO-RES: Refusal to Violate Disciplinary Rules - F:1 - T:5.88% - E:0.14% - J:100.00% - Prio: MED (50)PRO-RES: Simultaneous Representation - F:3 - T:17.65% - E:0.43% - J:33.33% - Prio: HIGH (50)PRO-RES: Simultaneous Representation-Attorney/Executor - F:2 - T:11.76% - E:0.29% - J:50.00% - Prio: HIGH (50)PRO-RES: Solicitation/Referral Fees - F:1 - T:5.88% - E:0.14% - J:0.00% - Prio: MED (50)PROPERTY–20 OF 26EXAMS- OVERALL ISSUE FREQUENCY 6.6% (50)PROPERTY: Acceleration Clause - F:2 - T:4.35% - E:0.29% - J:0.00% - Prio: HIGH (50)PROPERTY: Adverse Possession - F:4 - T:8.70% - E:0.57% - J:25.00% - Prio: HIGH (51)PROPERTY: Adverse Possession-Revocable License - F:1 - T:2.17% - E:0.14% - J:0.00% - Prio: MED (51)PROPERTY: Adverse Possession-Tenancy in Common - F:1 - T:2.17% - E:0.14% - J:0.00% - Prio: MED (51)PROPERTY: Constructive Trust - F:3 - T:6.52% - E:0.43% - J:33.33% - Prio: HIGH (51)PROPERTY: Easement - F:1 - T:2.17% - E:0.14% - J:100.00% - Prio: LOW (51)PROPERTY: Easement-Abandonment - F:1 - T:2.17% - E:0.14% - J:0.00% - Prio: MED (52)PROPERTY: Easement by Necessity - F:1 - T:2.17% - E:0.14% - J:0.00% - Prio: MED (52)PROPERTY: Easement by Prescription - F:2 - T:4.35% - E:0.29% - J:50.00% - Prio: MED (52)PROPERTY: Joint Tenants - F:2 - T:4.35% - E:0.29% - J:50.00% - Prio: HIGH (52)PROPERTY: Landlord Rights upon Surrender - F:1 - T:2.17% - E:0.14% - J:0.00% - Prio: MED (52)PROPERTY: Mortgage Assignment - F:1 - T:2.17% - E:0.14% - J:100.00% - Prio: LOW (52)PROPERTY: Mortgages - F:2 - T:4.35% - E:0.29% - J:50.00% - Prio: HIGH (53)PROPERTY: Mortgage-Unacknowledged - F:1 - T:2.17% - E:0.14% - J:100.00% - Prio: MED (53)PROPERTY: Non-Conforming Uses/Zoning Ordinances - F:1 - T:2.17% - E:0.14% - J:100.00% - Prio: LOW (53)PROPERTY: Notice of Pendency - F:2 - T:4.35% - E:0.29% - J:0.00% - Prio: MED (53)PROPERTY: Partition - F:1 - T:2.17% - E:0.14% - J:100.00% - Prio: MED (53)PROPERTY: Race-Notice - F:3 - T:6.52% - E:0.43% - J:66.67% - Prio: HIGH (53)PROPERTY: Restrictive Covenant - F:3 - T:6.52% - E:0.43% - J:33.33% - Prio: HIGH (54)PROPERTY: Risk of Loss (UVPRA) - F:1 - T:2.17% - E:0.14% - J:0.00% - Prio: MED (54)PROPERTY: Rule Against Perpetuities - F:1 - T:2.17% - E:0.14% - J:100.00% - Prio: MED (54)PROPERTY: Tenant Duty to Repair - F:1 - T:2.17% - E:0.14% - J:100.00% - Prio: MED (54)PROPERTY: Tenant Holdover - F:1 - T:2.17% - E:0.14% - J:100.00% - Prio: MED (55)PROPERTY: Tenants by the Entirety - F:6 - T:13.04% - E:0.86% - J:50.00% - Prio: HIGH (55)PROPERTY: Tenants by the Entirety-Mortgage - F:2 - T:4.35% - E:0.29% - J:50.00% - Prio: HIGH (55)PROPERTY: Tenants in Common - F:1 - T:2.17% - E:0.14% - J:0.00% - Prio: MED (55)SECURED TRANSACTIONS/COMMERCIAL PAPER–4 OF 26EXAMS- OVERALL ISSUE FREQUENCY 0.9% (55)SECTRANS: Forged Indorsement - F:1 - T:16.67% - E:0.14% - J:100.00% - Prio: LOW (55)SECTRANS: Forged Instrument - F:1 - T:16.67% - E:0.14% - J:0.00% - Prio: LOW (56)SECTRANS: Negotiable Instrument - F:1 - T:16.67% - E:0.14% - J:0.00% - Prio: LOW (56)SECTRANS: Perfection of Security Interest - F:1 - T:16.67% - E:0.14% - J:0.00% - Prio: LOW (56)SECTRANS: Risk of Loss - F:1 - T:16.67% - E:0.14% - J:100.00% - Prio: LOW (56)SECTRANS: Self-Help Repossession - F:1 - T:16.67% - E:0.14% - J:100.00% - Prio: LOW (56)TORTS–24 OF 26EXAMS- OVERALL ISSUE FREQUENCY 12.9% (57)TORTS: Assumption of Risk - F:3 - T:3.33% - E:0.43% - J:33.33% - Prio: HIGH (57)TORTS: Battery - F:1 - T:1.11% - E:0.14% - J:100.00% - Prio: MED (57)TORTS: Battery-Transferred Intent - F:1 - T:1.11% - E:0.14% - J:0.00% - Prio: MED (57)TORTS: Comparative Negligence - F:5 - T:5.56% - E:0.72% - J:60.00% - Prio: HIGH (57)TORTS: Defamation-Qualified Privilege Defense - F:1 - T:1.11% - E:0.14% - J:100.00% - Prio: MED (58)TORTS: Dram Shop Law - F:1 - T:1.11% - E:0.14% - J:0.00% - Prio: MED (58)TORTS: Indemnification - F:3 - T:3.33% - E:0.43% - J:66.67% - Prio: HIGH (58)TORTS: Independent Contractor - F:3 - T:3.33% - E:0.43% - J:100.00% - Prio: HIGH (59)TORTS: Joint and Several Liability - F:2 - T:2.22% - E:0.29% - J:0.00% - Prio: HIGH (59)TORTS: Landowner Liability - F:7 - T:7.78% - E:1.00% - J:57.14% - Prio: HIGH (59)TORTS: Malpractice - F:1 - T:1.11% - E:0.14% - J:0.00% - Prio: MED (59)TORTS: Municipality Negligence - F:2 - T:2.22% - E:0.29% - J:50.00% - Prio: HIGH (60)TORTS: Negligence - F:11 - T:12.22% - E:1.58% - J:54.55% - Prio: HIGH Per Se (60)TORTS: Negligence - F:11 - T:12.22% - E:1.58% - J:54.55% - Prio: HIGH (60)TORTS: Negligent Children - F:1 - T:1.11% - E:0.14% - J:0.00% - Prio: MED (60)TORTS: Negligent Entrustment - F:1 - T:1.11% - E:0.14% - J:0.00% - Prio: MED (61)TORTS: Negligent Infliction of Emotional Distress - F:2 - T:2.22% - E:0.29% - J:50.00% - Prio: HIGH (61)TORTS: Negligent Misrepresentation - F:1 - T:1.11% - E:0.14% - J:100.00% - Prio: LOW (61)TORTS: Negligent Supervision - F:3 - T:3.33% - E:0.43% - J:33.33% - Prio: HIGH (61)TORTS: No-Fault Insurance - F:5 - T:5.56% - E:0.72% - J:60.00% - Prio: LOW (61)TORTS: Permissive Use Doctrine - F:2 - T:2.22% - E:0.29% - J:100.00% - Prio: HIGH (62)TORTS: Prima Facie Torts - F:1 - T:1.11% - E:0.14% - J:0.00% - Prio: LOW (62)TORTS: Res Ipsa Loquiter - F:4 - T:4.44% - E:0.57% - J:50.00% - Prio: HIGH (62)TORTS: Strict Products Liability - F:5 - T:5.56% - E:0.72% - J:40.00% - Prio: HIGH (62)TORTS: Superceding Causes - F:3 - T:3.33% - E:0.43% - J:33.33% - Prio: LOW (63)TORTS: Tortious Interference with Contractual Relations - F:2 - T:2.22% - E:0.29% - J:50.00% - Prio: HIGH (63)TORTS: Tortious Interference-Qualified Privilege Defense - F:1 - T:1.11% - E:0.14% - J:100.00% - Prio: MED (63)TORTS: Trespass to Chattels - F:1 - T:1.11% - E:0.14% - J:100.00% - Prio: MED (63)TORTS: Trespass to Land - F:1 - T:1.11% - E:0.14% - J:100.00% - Prio: MED (63)TORTS: Vicarious Liability/Agency - F:4 - T:4.44% - E:0.57% - J:75.00% - Prio: HIGH (64)TORTS: Workers Compensation - F:3 - T:3.33% - E:0.43% - J:100.00% - Prio: HIGH (64)TORTS: Wrongful Death - F:1 - T:1.11% - E:0.14% - J:100.00% - Prio: MED (64)TRUSTS–4 OF 26EXAMS- OVERALL ISSUE FREQUENCY 0.9% (64)TRUSTS: Management - F:2 - T:33.33% - E:0.29% - J:50.00% - Prio: MED (64)TRUSTS: Revocable Trust - F:1 - T:16.67% - E:0.14% - J:100.00% - Prio: MED (65)TRUSTS: Spendthrift Trust - F:1 - T:16.67% - E:0.14% - J:100.00% - Prio: MED (65)TRUSTS: Trust Amendment - F:2 - T:33.33% - E:0.29% - J:50.00% - Prio: MED (65)WILLS–26 OF 26EXAMS- OVERALL ISSUE FREQUENCY 14.9% (65)WILLS: Accounting - F:1 - T:0.96% - E:0.14% - J:0.00% - Prio: MED (65)WILLS: Actions against the Estate - F:1 - T:0.96% - E:0.14% - J:0.00% - Prio: MED (65)WILLS: Ademption - F:4 - T:3.85% - E:0.57% - J:50.00% - Prio: LOW (66)WILLS: Administrator Appointment - F:1 - T:0.96% - E:0.14% - J:100.00% - Prio: MED (66)WILLS: Administrator Running Business - F:1 - T:0.96% - E:0.14% - J:100.00% - Prio: MED (66)WILLS: Advance against an Inheritance - F:1 - T:0.96% - E:0.14% - J:0.00% - Prio: MED (66)WILLS: Anti-Lapse Statute - F:7 - T:6.73% - E:1.00% - J:57.14% - Prio: HIGH (66)WILLS: Attorney as Executor Disclosure - F:2 - T:1.92% - E:0.29% - J:0.00% - Prio: LOW (66)WILLS: Attorney Conflict of Interest - F:2 - T:1.92% - E:0.29% - J:50.00% - Prio: HIGH (67)WILLS: Conditions Against Public Policy - F:1 - T:0.96% - E:0.14% - J:100.00% - Prio: LOW (67)WILLS: Contest of Will/Competence - F:3 - T:2.88% - E:0.43% - J:0.00% - Prio: HIGH (67)WILLS: Creation/Validity - F:6 - T:5.77% - E:0.86% - J:33.33% - Prio: HIGH (67)WILLS: Creditors - F:1 - T:0.96% - E:0.14% - J:100.00% - Prio: MED (68)WILLS: Cy Pres Doctrine - F:2 - T:1.92% - E:0.29% - J:50.00% - Prio: HIGH (68)WILLS: Distribution of Residuary Estate - F:2 - T:1.92% - E:0.29% - J:50.00% - Prio: HIGH (68)WILLS: Distributions - F:5 - T:4.81% - E:0.72% - J:40.00% - Prio: HIGH (68)WILLS: Divorce-Termination of Benefits - F:3 - T:2.88% - E:0.43% - J:100.00% - Prio: HIGH (69)WILLS: Elective Share - F:10 - T:9.62% - E:1.43% - J:70.00% - Prio: HIGH (69)WILLS: Executor - F:1 - T:0.96% - E:0.14% - J:100.00% - Prio: MED (69)WILLS: Interested Witness - F:5 - T:4.81% - E:0.72% - J:20.00% - Prio: LOW (69)WILLS: Intestate Succession - F:3 - T:2.88% - E:0.43% - J:66.67% - Prio: HIGH (70)WILLS: Joint Bank Accounts - F:2 - T:1.92% - E:0.29% - J:100.00% - Prio: MED (70)WILLS: Layperson Opinion - F:2 - T:1.92% - E:0.29% - J:0.00% - Prio: HIGH (70)WILLS: Lost Will - F:2 - T:1.92% - E:0.29% - J:100.00% - Prio: HIGH (70)WILLS: Marital Deduction - F:1 - T:0.96% - E:0.14% - J:0.00% - Prio: LOW (70)WILLS: Non-Probate Assets-Insurance Policy - F:2 - T:1.92% - E:0.29% - J:100.00% - Prio: HIGH (71)WILLS: Pretermitted Children - F:3 - T:2.88% - E:0.43% - J:0.00% - Prio: HIGH (71)WILLS: Putnam Scrutiny - F:2 - T:1.92% - E:0.29% - J:0.00% - Prio: LOW (71)WILLS: Reference by Incorporation-Pourover Trust - F:4 - T:3.85% - E:0.57% - J:50.00% - Prio: HIGH (72)WILLS: Renunciation - F:4 - T:3.85% - E:0.57% - J:25.00% - Prio: HIGH (72)WILLS: Revocation of Will - F:4 - T:3.85% - E:0.57% - J:75.00% - Prio: HIGH (72)WILLS: Revocation through a Separation Agreement - F:1 - T:0.96% - E:0.14% - J:100.00% - Prio: LOW (72)WILLS: Slayer Rule - F:1 - T:0.96% - E:0.14% - J:0.00% - Prio: MED (72)WILLS: Specific Gift-Stock - F:1 - T:0.96% - E:0.14% - J:0.00% - Prio: MED (73)WILLS: Totten Trust - F:5 - T:4.81% - E:0.72% - J:60.00% - Prio: HIGH (73)WILLS: Uniform Simultaneous Death Act - F:2 - T:1.92% - E:0.29% - J:0.00% - Prio: HIGH (73)WILLS: Uniform Simultaneous Death Act/Tenancy in the Entirety - F:1 - T:0.96% - E:0.14% - J:0.00% - Prio: MED (73)AGENCY/PARTNERSHIP – 8 of 26 EXAMS - overall issue frequency 1.3%AGENT-PART: Agent - F:2 - T:22.22% - E:0.29% - J:50.00% - Prio: LOWAn agent is a person who is authorized to act for or represent another person referred to as the principal. A principal-agent relationship can be established when three elements are present. (1) Assent – there is an informal agreement between principal and agent (2) Benefit – the agent’s conduct must be for principal’s benefit and (3) Control – the principal must have the right to control the agent by having the power to supervise the manner of the agent’s performance. A Principal will be vicariously liable for contracts entered into by agent if: (1) a principal-agent relationship exists, and (2) the principal authorized the agent to enter the contract. An agent can have express, implied, apparent or necessary authority to act on behalf of the principal. Express authority is authority that has been explicitly given - it is a clear expression of authority to act in a certain way on behalf of the principal. Implied authority is authority which the agent reasonably believes the principal has given, because of necessity, custom, or prior dealings between the principal and the agent. Apparent Authority occurs when a principal “cloaks” the agent with the appear ance of authority and a third party reasonably relies on the appearance of authority. In New York, the partners, as agents, may bind the partnership and the partnership may be liable for the acts of its agents. In addition, a director or officer of a corporation may bind a corporation where the officer acts with actual or apparent authority.AGENT-PART: Limited Partnership - F:1 - T:11.11% - E:0.14% - J:100.00% - Prio: LOWUnder New York Partnership Law, a limited partnership can be created in order to limit the personal liability that all general partners face by creating a limited partnership with both a general partner and limited partners. Limited partnerships have no common law basis and are entirely statutory. A limited partnership is a partnership formed by two or more persons under the provisions of the Partnership Law. A limited partnership must comply with the Revised Limited Partnership Act. Accordingly, two or more persons desiring to form a limited partnership must execute a partnership agreement, sign and acknowledge a certificate that contains certain information required by the statute and file such certificate with the Department of State. The limited partners are protected in a manner similar to shareholders in a corporation, and are not to be held personally liable for the limited partnership's contracts. The obligations are limited to the extent of her interest in the partnership. Under the RLPA, a general partner of a limited partnership has the same rights and powers and is subject to the same restrictions as a partner in a partnership without limited partners and has the liabilities of a partner in a partnership without limited partners to third parties and to the limited partnership and its partners. A transfer of all a limited partnership's assets without the consent of all the limited partners is illegal since such a transfer makes it impossible for the limited partnership to carry on its ordinary business. However, the necessary consent may be found where the limited partnership agreement specifically contemplates and provides for the transfer made.AGENT-PART: Partnerships - F:6 - T:66.67% - E:0.86% - J:83.33% - Prio: LOWA partnership is defined as an association of two or more persons to carry on as co-owners a business for profit. A partnership may exist either with or without a written partnership agreement. As a general rule, a partner's act binds the partnership, and knowledge of a partner is knowledge of the partnership. The sharing of profits is prima facie evidence of a partnership. A partnership may be dissolved without violation of the partnership agreement by (1) terminating the term or specific undertaking of the partnership; (2) the express will of any partner when no definite term or undertaking is specified in the partnership agreement; (3) the express will of all the partners who have not either assigned their interests or suffered them to be charged for their separate debt; or (4) the expulsion of any partner from the business in accordance with the terms of the partnership agreement. A partnership can also be dissolved by (1) the express will of any partner at any time; (2) any event that makes the business of the partnership unlawful, (3) the death of any partner, (4) the bankruptcy of any partner or of the partnership or (5) court decree under the Partnership Law. A partnership is not terminated upon dissolution, but continues until the winding-up of the affairs of the partnership is completed. Once the partnership is terminated, each partner receives an equal share of profits, if there are any. Any property owned by a partnership is partnership property, regardless of how it is used. The only personal property a partner has in a partnership is his or her share of partnership profits. Outside creditors are paid first out of the partnership’s assets, than inside creditors, and all collateral contributions. Any assets left must then be distributed equally among the partners. Under the Partnership Law, partners are jointly liable for the debts and obligations incurred by the partnership.CONFLICT OF LAWS – 8 of 26 EXAMS - overall issue frequency 1.1%CONFLICT: Conflict of Law - F:8 - T:100.00% - E:1.15% - J:50.00% - Prio: MEDA jurisdiction's laws can be applied to a litigation provided there is a significant enough connection between the litigation and the jurisdiction in order to comply with the Due Process and Full Faith and Credit Clauses of the United States Constitution. When faced with a conflict of law, the New York Court of Appeals has rejected the old vested rights approach, which would mandate the。

Issues identified in practice:✧Judicial notice: 司法认知∆generally known in the jurisdiction or capable of ready and accurate determination;∆in civil case, conclusively established (mandatory) ; and, in criminal, may be taken by jury (discretionary)✧Impeachment by character for untruthfulness (reputation/opinion, bad act, prior conviction) →rehabilitation✧In civil fraud case, prior fraud is permitted either for character evidence (??) or for proving intent✧Business records: judge may exclude business records if (i) source of information lacks truthfulness, (ii) nofirst-hand knowledge, (iii) purposed to prove what happened or not (for potential litigation) (note: this item (iii) is okay in NY)✧Dying declaration: in criminal case, victim must die because dying declaration is admissible only in homicidecase (if victim is not dead, no homicide case). Watch for attempted murderMini Review:1.Character evidence✧Criminal case:(1)Prosecutor can’t introduce bad character for the purpose of proving action in conformity with character;(2) D is allowed to introduce good character to prove he acted in conformity with good character;(3)If D provided good character evidence, Prosecutor is allowed to show bad character evidence (reputationand opinion) and cross-examination of character witness by means of intrinsic evidence of “specific act”(4)Evidence of other crimes are inadmissible for conformity purpose, but likely admissible for MIMICpurpose;(5)If D takes the stand, P may impeach D with character evidence of untruthfulness.✧Civil case:(1)You can’t introduce character evidence to show conformity;(2)Character evidence may be introduced for other purposes, such as negligent hiring/entrustment,defamation, fraud, and MIMIC…;(3)Watch for the difference between character evidence and habit evidence.2.Impeachment✧Prior inconsistent statement∆Extrinsic evidence allowed∆Impeached witness must be given opportunity to comment, before or after the offer of such extrinsic evidence✧Bias∆Extrinsic evidence allowed∆Witness must be cross-examined for the facts showing bias/interest prior to introduction of extrinsic evidence✧Prior crime conviction (10 years limitation for FRE)∆Involving dishonesty/false statement∆Other felony→balance test∆Extrinsic evidence by means of conviction record✧Prior bad act – only intrinsic evidence allowed, no asking about arrest✧Untruthfulness∆Reputation/opinion∆Specific evidence only by cross-examination, if denied, no extrinsic evidence3.Hearsay (note, party admission is nonhearsay under FRE)a)Method: hearsay? →prior inconsistent statement, prior consistent statement, effect upon people, verbalact→exceptionb)Prior identification (nonhearsay under FRE)c)Present sense impressiond)Excited utterancee)Medical treatment statementf)Biz recordsg)Former testimonyh)Dying declarationi)Party admission: vicarious admission (employee, partner, co-conspirator), adoptive admissionI.Relevance相关性A.Logical Relevance (Probativeness)1.Standard of admissibility – does the evidence have any tendency to make a material fact more or lessprobable than it would be without the evidence(relate to time / person / event)是不是和争议的人，事，或者时间有关2.Exceptions where admissible –similar occurrences相似事件通常具有较小的相关性a.Prior accidents or claims(i)P’s prior accident history– inadmissible; EXCEPT(a)Prove common plan & scheme of fraud; or原告以前提出过类似的欺诈性/错误的诉讼请求(b)When cause of P’s damages is in issue确定是否有因果关系(ii)D’s prior conditions– ONLY involving the same instrumentality or condition, and occurring under substantially similar circumstances, to prove:由同样条件引起的相似事故或者伤害(a)Existence of a dangerous condition(b) D had prior notice(c)Causationb.Intent is issue – draw inference of intent from prior conduct e.g. gender discrimination意图或者思想状态c.Similar sales to establish value价值d.Habit Evidence –to infer a person acted on the occasion at issue特定性和经常性(i)Disposition evidence – NOT admissible(ii)Prior Act evidence (propensity) – NOT admissiblee.f.B.Judicial Discretionary Exclusion法官行使自由裁量权排除的相关性证据1.Probative value is substantially outweighed by danger of – (1) danger of unfair prejudice; (2) confusion ofissues; (3) misleading the jury; (4) undue delay; (5) waste of time; (6) unduly cumulative2.NOT – unfair surprise这个不是！！C.Public Policy Based Exclusion因为公共政策原因而被排除的证据1.Liability Insurancea.Not admissible to show negligence // ability to payb.EXCEPTIONS(i)prove ownership or control (when disputed, get limiting instructions); OR证明所有权，控制权(ii)impeachment – bias due to interest证明有无偏见或者利益关系--如保险理赔人员作为证人2.Subsequent Remedial Measureot admissible to show negligence / culpable conduct / product or design defect / need for warningb.EXCEPTIONS(i)prove ownership of control (when disputed); OR(ii)rebut or impeach a claim that precautions were not feasible (when feasibility is disputed)采取预防措施的可行性c.Subsequent remedial measures by 3rd parties – admissible 弹劾证人--声称产品不可能更好*NY Distinctions – Subsequent Remedial Measures (Strict Liability case)1.Manufacturing Defects – Admissible to establish defectiveness of product when made2.BUT, design defect OR failure to warn – NOT admissible (except for feasibility dispute)3.Settlementsa.Civil Cases(i)Not admissible – evidence of a settlement of offer to settle, to prove liability or weaken other party(ii)Not admissible –statements of fact made in course of settlement不能分离事实(iii)Requirements (at the time of settlement discussion)(a)There must be a claim–if someone admits before claim, it’s admissible; AND必须对方当事人有迹象已经提出了权利主张（并不需要很正式），否则就构成承认(b)There must be a dispute as to liability or amount必须对责任或者数额有争议– if D admits tofull liability, it’s admissible(iv)EXCEPT – for impeachmentb.Criminal Cases已经撤回的有罪承认(i)Offer to plead guilty– Not admissible (all criminal & subsequent civil cases based on same facts)(ii)Withdrawn guilty plea– Not admissible (all criminal & subsequent civil cases based on same facts)(iii)Plea of nolo contendere (No contest)不反驳承认(iv)Statements made during the course of negotiationNY Distinctions – Withdrawn guilty pleasAdmissible in subsequent civil litigation based on same facts as party admission.4.Offer to pay Medical Expenses可以分离事实a.Not admissible – to prove culpable conductb.BUT, admissions of fact accompanying an offer to pay medical expenses are Admissible伴随的事实可作为证据5.Prior Sexual Conduct of Victima.In any civil or criminal proceeding involving sexual misconduct, the following is NOT admissible(i)Opinion or reputation about the victim’s sexual propensity, or(ii)b.Exceptions(i)Specific sexual behavior to prove someone other that D was the source of semen or injury;用于证明D.Character Evidence品格证据1.Purpose of character evidencea.Direct evidence –person’s character is a material element in the civil case (character can never be anelement in criminal case)性格本身就是案件争议的事实b.Circumstantial evidence – infer conduct in conformity with character at time of litigated event证明性格与特定行为相一致c.Impeach witness credibility弹劾证人的可信性2. Method of proving charactera. Specific actsb. Opinion testimonyc. Reputation testimony3. Civil Cases 除非性格本身就是案件争议点，一般不允许使用a. Circumstantial evidence – NOT admissible to prove conduct in conformity (even civil case involvingcriminal conduct)b. Direct evidence– admissible where essential element of a claim or defense (e.g. defamation,child custody, negligent hiring or entrustment, deceit , assault/battery (for self defense purpose) ); methods – Specificacts, Opinion, or Reputation 损害名誉权//有过失的委托//错误致死//决定监护权4. Criminal Cases 通常只能以名誉或意见证据的形式出现，不能用特定的行为//注意和质疑证人可信性区别a. D proves character(i) Evidence to prove conduct in conformity is NOT admissible during prosecution’s case -in-chief (D’scharacter trait is never an element)(ii) BUT, D may introduce evidence of a relevant character trait, which opens the door for rebuttalb. Prosecution’s Rebuttal – when D opens door (only through character witness ), prosecution may:(i) Cross-examining character witness (specific acts ) – inquiring D’s relevant specific acts (but can notprove them in trial) that reflect adversely on particular character trait introduced by D – to impeachc. Victim’s Character – SELF-Defense Case(i) D may introduce victim’s BAD character (opinion or reputation 不能就特定行为) – opens door forprosecution(ii) Prosecution may rebut by showing:(a) Victim’s Good character ; and/or(b) D’s Bad character for the same trait (opinion or reputation )(iii) Separate rule of relevance – if D, at the time of alleged self-defense, was aware of the victim’s violentreputation or prior specific acts of violence, such awareness may be proven to show D’s state of mind– fear – to infer that D acted reasonably in responding as he did to victims’ aggression5. Specific Acts of Misconduct – for non-character purposes 特定的不当行为作为证据；不作为品格或性情(i) M otive 动机：吸毒需要赌资是抢银行的动机(ii) I ntent 主观意图(iii) M istake or accident, absence of 错误不存在或者不是意外(iv) I dentity (modus operandi)身份：犯罪后留下的标志(v) C ommon Scheme or Plan 犯罪准备；计划b. Criminal case – on D’s request, prosecution must give pretrial notice of intent to introduce MIMICevidencec. Requirements for admissibility 对其使用的要求 (i) Sufficient evidence to support a jury finding that D committed the prior act; AND(ii) Court must weigh probative value v. prejudice (must give limiting instruction)6. Prior acts of sexual assault or child molestation of D 性骚扰案件或者性骚扰儿童的案件---可以用于证明被告具有某种犯罪倾向- In sexual assault or child molestation case, evidence of D’s prior acts of such conduct is admissible forany relevant purpose, including defendant’s propensity for sex crimesII. Writings & Documentary Evidence 书证A. Authentication 确认：首先确认书证是否是所声称的书面文件1. Writing is not admissible until authenticated – proof must be sufficient to support jury finding of genuineness(jury makes the ultimate determination of fact, i.e., whether the evidence is authentic)2. Method 确认书证的外在方法a. Party Admission 书证对其不利的一方当事人的承认b. Witness personal knowledgec. Proof of handwriting 如果是声音的话，可以是因为诉讼的目的而去熟悉(i) Lay Opinion – based on personal knowledge of handwriting (such knowledge must be acquired beforethe proceedings) (note: knowledge of voice/sound may be acquired after the proceedings commence.)不能仅因为诉讼目的去熟悉笔迹(ii) Expert Opinion – compared with genuine samples (exemplar)(iii) Jury comparison – jury compares with genuine sampled. Ancient Document – presumption of authentication(i) At least 20 years old;e.3. Self-Authenticating Documents – presumption of authentication 自我确认的书证a. Official publications 公共文件b. Certified copies of public records (e.g., car registration form) or business recordsc. Newspaper or periodicald. Trade inscriptions and labels [this can be offered as circumstantial evidence of ownership,manufacturer… no requirement of BER for such purpose]e. Acknowledged document – notarized documentf. Commercial paper 商业文件g.Certified genuine foreign public documents4.Authentication of Photographs对照片的确认a.Witness testifies on the basis of personal knowledge that “fair and accurate representation” of objects orpeople – need not be the photographer. Photograph in this sense is just like an illustrative drawing ormap.b.Unattended camera – show properly installed, proper removal of film, show chain of custody. Videotapeand tape are admissible like photograph, but their authentication should follow the requirements.c.Other mechanical records其他仪器测量结果(similar to videotape) – (i) the process or system isaccurate in its results; (ii) operated by qualified people and properly operated (if operation is necessary);(iii) no tampering 篡改in the chain of custodyB.Best Evidence Rule (Original Document Rule)最佳证据规则1.Definition ⇒ a party seeking to prove the contents of a writing, must either produce the original writing orprovide an acceptable excuse for its absencea.Only applies to writings – including sound recordings, X-ray, films包括录音，照片，X光b.If excuse is acceptable – may introduce secondary evidence (e.g. oral testimony or a copy)一定情况下允许二手资料2.When the Best Evidence Rule appliesa.Writing is Legally Operative Document–writing itself creates rights and obligations (deed, mortgage)b.If not following in item a, where witness is testifying to facts learned solely from reading in a writing3.When NOT applya.Fact to be proved exists independent of non-legally operative writing when a witness with personalknowledge testifies (e.g. birth date – no requirement of birth certificate)b.Writing is collateral to litigated issue涉及争议事实的附属事实c.Certified copies of Public Record公共文件d.Summaries of Voluminous Record– provided that original records would be admissible and available andthe original/duplicates shall be made available for examination or copying.文件摘要4.What qualifies as the “original writing”a.Writing itselfb.Duplicates 文件副本与原本可以作为证据被同等程度的采纳– any counterpart produced by anymechanical means that accurately reproduced the original (e.g., photocopy, carbon copy) – duplicate isadmissible to same extent as original (a print-out of saved data in a computer is treated as original)(i)UNLESS a genuine question is raised as to authenticity of original, OR(ii)it would be unfair to admit the duplicate (e.g., blurry)-5.种例外情形a.Lost or cannot be found with due diligence遗失且找不到b.Original held by adversary who, after due notice, fails to produce the originalc.Destroyed without bad faithd.Cannot be obtained with legal processIII.Witness & Testimonial EvidenceA. Competency of Witness1. Requirementsa. Communicable personal knowledgeb. Take oath or give an affirmation2. Dead Man’s Statute ---a. In civil action, an interested party is incompetent to testify in support of her own interest against the estate of a decedent concerning communications or transactions between the interested party and the decedent - There is no federal dead man’s s tatute, this witness ordinarily not incompetent; BUT, must apply astate’s dead man’s statute where substantive law applies in diversity casesb. Requirements(i) Civil Action ;(ii) Witness must have a direct stake in the litigation;(iii) Witness must be testifying for his interest (not against it);(iv) Witness must be testifying against the decedent, or his representatives;(v) Testimony concerns a personal transaction or communication with the decedent – the interestedsurvivor isn’t barred from testifying against everything tha t’s relevant, but only as to manners which the decedent could contradict if he were alive (in other words, if he couldn’t contradict you when he was alive, you can testify about it when he’s dead )(vi) Unless waiver – which usually occurs when the testimony of the decedent somehow gets before thejury through a deposition of the decedent taken before he diedB. Form of Examination of Witness 质证1. Kind of questions asked – largely matter of judicial discretion (e.g. narrative questions maybe allowed)2. Leading Questions 诱导性问题a. Generally NOT allowed on direct examination ; BUT allowed(i) For preliminary introductory matters 前提事实(ii) Youthful or forgetful witness 年幼或者易遗忘的证人(iii) Hostile witness – witness is adverse party or someone under control of adverse party 有敌意的有利益冲突的证人b. Generally allowed on cross-examination3. Writings in Aid of Oral Testimonya. Refreshing Recollection 唤起记忆(Present recollection revived)(i) Any writing (or any other tangible item) or item may be used to refresh a witness’ memory; thenwitness must testify from present recollection – Best Evidence Rule not applicable for refresher(ii)Witness can NOT read from the writing while testifying(iii)Safeguards against abuse – adversary has right to:(a)Inspect the memory-refresher(b)Use it on cross-examination(c)Introduce into evidence 对方可以把提示物引入证据(as an exhibit)(iv)No hearsay problemb.Past Recollection Recorded 过去回忆的备忘录(Past recollection recorded)(i)Only writing that meets foundational requirements may be used(a)Witness fails to refresh memory even shown the writing(b)Witness had personal knowledge at former time(c)Writing was either made by witness, or adopted by witness(d)Statement must have been made or adopted when event was fresh in witness’s memory(e)Witness can vouch 保证for accuracy of writing when made or adopted(ii)Writing itself is read into evidence (writing itself cannot be introduced as evidence – unless by opposing party)以朗读的方式，书面文件本身不能作为证据（除非是另一方当事人提出）[NY:it can be shown to the jury and introduced into evidence as exhibit by the offering party.] (iii)Hearsay ExceptionC.Opinion Testimony意见证据y Witness非专家证人通常不能给出意见证据Opinion – admissible if (e.g. emotions of others,handwriting, intoxication, speed of car):a.Rationally based on the witness’s perception (personal knowledge);b.Helpful to jury in deciding a fact in issue; ANDc.Not based on scientific / technical / other specialized knowledge2.Expert Witness Opinion (must describe in general terms) – admissible ifa.Qualifications – education or experience (need not be formal – e.g. skill witness);b.Proper Subject Matter –scientific / technical / other specialized knowledge helpful to jury;c.Proper Basis of Opinion –opinion based on “reasonable degree of probability or reasonable certainty”AND 3 permissible data sources(i)Personal Knowledge(ii)Evidence in trial record, made known to expert by hypothetical question(iii)Facts outside record if a type reasonably relied upon by experts in the particular fieldd.Reliability –sufficiently reliable (TRAP factors)(i)Testing of principles or methodology(ii)Rate of error(iii)Acceptance by other experts in same discipline(iv)Peer review and publicatione.Opinion on Ultimate Issues案件争议的最基本问题--基本可以(i)Civil Case – opinion testimony permissible for ultimate issue(ii)Criminal Case – expert can NOT give direct opinion on the mental intent of D in issue如果被告人的精神状况是犯罪构成的要件时，专家证人不得宣布被告有没有精神病。

美国纽约州律师资格考试各科提纲 -- 职业伦理规范 (二)Professional ResponsibilityStart Essay With: *NY Code of Professional Responsibility governs.Summary of Most Commonly Tested Issues:1.Advertisements: Lawyers have a First Amendment right to engage in commercial speech ifit is not fraudulent, deceptive, or misleading.2.Fees: Fee must be reasonable, and contingent Fee is prohibited for criminal and domesticrelations cases.wyer’s Responsibility for the Act of Another: A Lawyer shall be responsible for a violationby another Lawyer or a non-Lawyer employed if the Lawyer orders or ratifies the acts or the Lawyer should have known the conduct and failed to mitigate.如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂律师事务所)联系.如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂律师事务所)联系.如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂律师事务所)联系.如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂律师事务所)联系.如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂律师事务所)联系.I.Regulation of the Legal ProfessionA.Inherent Powers of Courts to Regulate Lawyers: Courts have inherent powers to regulate lawyers.plaints Involving Lawyer Conduct:a)Investigated by the Departmental Disciplinary Committee: Filing a complaint isprivileged and followed by a non-public hearing.b)Malpractice does not necessarily mean that there is a conduct appropriate for discipline.2.Types of Discipline That May be Imposed:a)Disbarment.b)Suspension.c)Public or private censure.d)Letter of admonition.B.Admission to the Profession:1.State Requirements for Admission to Bar Need to be Rationally Related to the Practice of Law:a)Graduation from American Bar Association (ABA) law school, orb)*NY:(1)1 year of law school and study in *NY office under a licensed Lawyer and subject totheir supervision for an aggregate total of 4 years, and(2)Must take oath to uphold State and Federal Constitutions.2.Cannot require US citizenship or *NY resident.3.Examination Requirement:a)Pass bar exam and MPRE, orb)Without Examination:(1)Graduated ABA law school, and(2)Admitted to bar in another state and that state would admit *NY Lawyer withoutexamination, and(3)Practiced law for at least 5 of last 7 years proceeding application.c)To Apply for Bar Exam:(1)Truth and Full Disclosure: Burden on applicant to show good moral character.(2)Duty to cooperate.C.Regulation after Admission:wyers are Regulated by the Highest State Court Through its Agencies:a)Lawyers should not violate laws or disciplines.b)Lawyers cannot unlawfully discriminate in the practice of law on the basis of race, sex,sexual orientation, age, marital status, and etc.2.Multi-Jurisdictional Practice:a)Discipline by one state does not mean there will be discipline in another, but most stateswill give full faith and credit to other states decision.b)Choice of Law in Multi-Jurisdictional Matters:(1)If Licensed in *NY: Only *NY law applies.(2)Admitted in *NY and Another State: Rules of the state where Lawyer principallypractices are used.(a)U nless the conduct’s key effect is in another state, then apply that state’s rules. D.Maintaining Professional Standards Including Peer Responsibility: Admitted lawyers have如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂凯德律师事务所)the duty to report and testify when he knows of a violation.1.Not anonymously.2.Cannot Violate a Rule and Try to Fix it Later:a)Lawyer that threatens to report another Lawyer who violates rule if he does not remedyhis wrong will be disciplined.b)Confidentiality trumps duty to report if the Lawyer is a client. In this case, the Lawyer stillcannot recommend his client-Lawyer for admission in another state.E.Unauthorized Practice of Law: Lawyer cannot practice in a jurisdiction where he is not authorized unless he has a permissible temporary practice.1.Activities Constitute Practicing Law and Thus Require a Lawyer:a)Providing legal advice.b)Taking depositions.c)Appearing in court for a client.d)Negotiating settlement.e)Approving a legal document.2.Tasks That do not Require License:a)Non-Lawyer under the supervision of a senior Lawyer.b)Where professional judgment is not required.3.Permissible Temporary Practice:a)Associate with an active local Lawyer.b)Pro Hac Vice: Special permission for a specific case.c)Mediation/arbitration out of home-state practice.d)Anything reasonably related to Lawyer’s home state practice.4.Multi-State Firms: Lawyer may only practice where admitted and firm letterhead must indicate his state of admission.F.Fee Division With a Non-Lawyer: Lawyer cannot be partner with non-Lawyer if any part of the partnership involves the practice of law.1.Generally, Lawyer should never divide a legal fee with a non-Lawyer unless payments are:a)In the forms of salaries, retirement plans, bonuses, or profit sharing.b)For spouses of deceased partners the fees earned by deceased partner.wyer and non-Lawyer can share office as long as the space is physically separated.a)The separation has to appear to be separated to the public.b)Lawyer must take precautions to insure non-Lawyer clients are not coerced to useLawyer for legal matters.G.Fee Division With a Lawyer:1.This rule does not prohibit payment to a Lawyer formerly associated in a law firm pursuant to a separation or retirement agreement.2.A Lawyer shall not divide a fee for legal services with another Lawyer who is not associated in the same law firm unless:a)The division is in proportion to the services performed by each Lawyer or, by a writinggiven to the client, each Lawyer assumes joint responsibility for the representation,b)The client agrees to employment of the other Lawyer after a full disclosure that adivision of fees will be made, including the share each Lawyer will receive, and the client’s agreement is confirmed in writing, andc)The total fee is not excessive.如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂凯德律师事务所)w Firm and Other Forms of Practice:w Firm: A law firm shall make reasonable efforts to ensure that all lawyers in the firm conform to the disciplinary rules.2.Other Forms of Practice:a)A supervisory Lawyer shall make reasonable efforts to ensure that the other Lawyerconforms to the disciplinary rules.b)Lawyer shall be responsible for a violation by another Lawyer or a non-Lawyeremployed if:(1)The Lawyer orders or ratifies the acts.(2)The Lawyer should have known the conduct and failed to mitigate.c)Lawyer is liable for his misconducts notwithstanding that the Lawyer acted at thedirection of another person.d)A subordinate Lawyer is not liable if that Lawyer acts in accordance with a supervisoryLawyer’s reasonable resolution of an arguable question of professional duty.I.Contractual Restrictions on Practice:1.Non-Compete Agreements are Prohibited with Exceptions: Lawyer should not enter an agreement to restrict the right of another to practice law after the termination of a relationship created by the agreement, except as a condition to payment of retirement benefits.2.Settlement: Lawyer shall not enter into an agreement that restricts the right of a Lawyer to practice law.J.Responsibilities and Contractual Relationships Regarding Non-Legal Services:wyer subject to these disciplinary rules with respect to non-legal services if:a)Client could reasonably believe that the non-legal services are the subject of theLawyer-Client relationship.b)Lawyer treats his non-legal services like legal services.2.It will be presumed that the person receiving non-legal services is the subject of Lawyer-Client relationship unless:a)Lawyer has advised the client in writing that the services are not legal services and thatthe protection of a Lawyer-Client relationship does not exist with respect to the non-legal services, orb)The interest of the Lawyer in providing services is de minimis.II.The Lawyer-Client RelationshipA.Acceptance or Rejection of Clients:1.Consensual: Lawyer can decline to represent someone, but he should not decline a client’s case just because client’s side is unpopular.wyer Must Reject Certain Cases:a)Lawyer is unable to provide adequate legal services.b)Actions are intended to harass or interposing party.c)Client is already represented by another counsel.d)Other lawyers within the firm are prohibited from taking the case.e)Representation would result in violation of disciplinary rule (e.g. conflict of interest).f)Lawyer cannot accept or continue employment if his professional judgment would beaffected by his own financial, business, property, or other personal interest, unless adisinterested Lawyer would believe that the representation of the client would not be如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂凯德律师事务所)adversely affected and the client consent after full disclosure.B.Scope, Objective and Means of the Representation:1.Scope: A Lawyer may serve simultaneously as both advocate and adviser, and a Lawyer has duty to zealously represent a client.a)Lawyers as Advocate: Can apply most favorable construction to the fact that the clientgives you, so long as not frivolous.b)Lawyer as Adviser: Has duty to give professional opinion as to likely decision of thecourt and the result or effect of that decision.2.Objective:a)Client Decision:(1)General Rule: The client makes all decisions that affect the merits of the case or willsubstantially prejudice the client's rights.(2)Examples:(a)Whether to commence a suit.(b)Whether to plead an affirmative defense.(c)Whether to settle.(d)Whether to testify at trial.(e)Whether to plead guilty.(f)Whether to elect for jury trial.(g)Whether to file an appeal.(h)Whether to join a party to the lawsuit(3)Lawyer must abide by clients wishes, unless it would be illegal, unethical, or immoral.b)Lawyer Decision:(1)General Rule: Lawyer makes all decisions that are procedural in nature.(2)Examples:(a)Adjournment.(b)Whether to conduct discovery.(c)What kind of discovery to conduct.(d)Venue.3.Means of the Representation:a)If client is minor or client becomes incapacitated, then Lawyer must get a guardianappointed.b)Lawyer must respect the client and include client in the process of making decisions asmuch as possible.C.Within the Bounds of the Law:wyer’s Conduct Has to be Within the Bounds of the Law:a)Only make good faith argument.b)Cannot assert a frivolous claim, which means claims that he knows is not true.D.Withdrawal: The client has the power to terminate the Lawyer-client relationship in disregard of the circumstances, and a Lawyer may withdraw when there is good reason and material harm to the client.wyer Must Request Withdrawal When:a)Lawyer knows client’s purpose is frivolous and will cause harassment.b)Lawyer leads to a violation of the Code, including his service being used to perpetrate acrime or fraud.如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂凯德律师事务所)c)Client fires the Lawyer.d)Lawyer becomes impaired physically or mentally.wyer May Request Withdrawal When:a)Lawyer’s withdrawal can be accomplished without material adverse effect on interests ofclient.b)Client’s claim or defense is frivolous.c)Client persists in a course of action involving Lawyer’s services that the Lawyerreasonably believes is criminal or fraudulent.d)Client insists that Lawyer pursue a course of conduct that is illegal or prohibited by Code.e)Other conduct makes it unreasonably difficult for Lawyer to carry out employmenteffectively.f)Client insists that the Lawyer engage in conduct that is contrary to the judgment andadvice of the Lawyer, even if the conduct is not prohibited by Code and the matter is not pending before the court.g)Client deliberately disregards agreement of obligation to the Lawyer as to fees orexpenses.h)La wyer’s inability to work with co-counsel indicates that the best interest of the client isserved by withdrawal.i)Client knowingly and freely agrees to termination.j)Other good cause.wyer may continue in the representation of his client even though his client has elected to pursue a course of conduct contrary to the advice of the Lawyer so long as the Lawyer does not knowingly assist the client to engage in illegal conduct or to take a frivolous legal position.4.Methods of Withdrawing:a)Must obtain court's permission to withdraw if matter is in litigation.b)Lawyer must withdraw in a way that does not prejudice the client(1)Must return client's property promptly.(2)Must provide client with reasonable notice.E.Statement of C lient’s Rights, Engagement Letters and Retainer Agreements:1.Statement of C lient’s Rights:a)For domestic relations matter, client must be provided with statement of client rights andresponsibilities at the initial conference and prior to signing of a written retainer agreement.b)Fee agreement must be in writing and signed by Lawyer and client.2.Engagement Letters:a)General Rule: To represent a client for fees over $3,000, a Lawyer shall provide to theclient a written letter of engagement before or within a reasonable time of commencement with the following exceptions.(1)Service is of the same general kind previously provided to client.(2)Services involve domestic relations matter, where a specific letter is required.b)The letter of engagement shall address the following matters:(1)Explanation of the scope of the legal services to be provided,(2)Explanation of Lawyer's fees to be charged, expenses and billing practices.c)Engagement letters can be substituted by retainer agreement.3.Retainer Agreements: Retainer agreement must include the following.如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂凯德律师事务所)a)Scope of legal services to be provided.b)Explanation of fees charged.c)Expenses and billing practice.d)Notice of client rights to arbitrate a fee dispute.F.Fees:1.Duty to Explain Fully the Reasons for Fees:a)Fee Must be Reasonable: There is no minimum or maximum fee.b)Factors of Reasonableness:(1)Time and labor.(2)Novelty and difficulty of questions involved.(3)Requisite skill to perform legal services.(4)Customary fee within locality for similar work.(5)Experience, ability and reputation of Lawyer.(6)Interference with other employment by Lawyer.(7)Time limitations imposed by client or circumstance.(8)Whether fee is fixed or contingent.2.Contingent Fee is Prohibited for:a)Criminal case.b)Quasi-criminal case.c)Domestic relations case.3.Domestic Relations Matter:a)Domestic Relations Matter Include:(1)Divorce, separation, annulment, custody, visitation, maintenance, child support, andalimony.(2)Preliminary hearing, enforcement, judgment, modification, appeals.b)Requirements of Engagement Letter: Fee agreement must be in writing and signed byLawyer and client.c)Client must be provided with statement of client rights and responsibilities at the initialconference and prior to signing of a written retainer agreement.d)Prohibitions:(1)Non-refundable fees.(2)Contingency fee to collect unpaid alimony or child support.e)Periodic Billing:(1)Must send out bill every 60 days and at conclusion of case.(2)Lawyer must send back any unused portion of retainer.G.Mediation of Lawyer-Client Disputes: Mediation is a process in which a moderator does not issue a ruling but helps guide clients and lawyers toward a non-binding resolution. States should offer mediation as an alternative to arbitration but does not require parties to mediate.H.Fee Arbitration:1.Fee disputes must be resolved by arbitration at election of client.2.If both the fee arbitration and the legal malpractice action shared at the core claims of Lawyer malpractice, then the client is barred from later bringing the malpractice claim to court.I.Sale of Law Practice: A Lawyer retiring from a private practice of law or the personal representative of a deceased, disabled or missing Lawyer, may sell a law practice.1.Confidences and Secrets: The seller may provide the prospective buyer with the following如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂凯德律师事务所)information of an individual client.a)Concerning the identity of the client,b)Concerning the status and general nature of the matter,c)Available in public court files, andd)Concerning the financial terms of the Lawyer-client relationship and the payment statusof the client's account.2.Written notice of the sale shall be given jointly by the seller and the buyer to each of the seller's clients and shall include information regarding:a)The client's right to retain other counsel or to take possession of the file,b)The fact that the client's consent will be presumed if the client does not reply within 90days , subject to any court rule or statute requiring express approval by the client ,c)The fact that agreements between the seller and the seller's clients as to fees will behonored by the buyer,d)Proposed fee increases, if any, andIII.The identity and background of the buyer or buyers, including principal office address, bar admissions, number of years in practice in the state, whether the buyer has ever been disciplined for professional misconduct or convicted of a crime, and whether the buyer currently intends to re-sell the practice.IV.Privilege and Confidentialitywyer-Client Privilege and the Work Product Doctrine:wyer-Client Privilege: Confidential communication between Lawyer and client made during professional legal consultation will be privileged unless the privilege is waived by the client or an exception applies.2.Work Product Doctrine:a)The work product of Lawyer is not discoverable unless the court determines that denialof discovery will be unfairly prejudicial.b)Work Product: Any writing that reflects a Lawyer's opinions, legal research or theoriesshall not be discoverable under any circumstances.B.Professional Obligation of Confidentiality:1.Definition:a)Confidential information includes information gained during or relating to therepresentation of a client, whatever its source, that is:(1)Protected by the attorney-client privilege,(2)Likely to be embarrassing or detrimental to the client, or(3)Information that the client has requested be kept confidential.b)Confidential Information does not Ordinarily Include:(1)A Lawyer’s legal knowledge or legal research, or(2)Information that is generally known in the local community or in the trade, field orprofession to which the information relates.2.General Rule: A Lawyer shall not knowingly reveal confidential information, use such information to the disadvantage of a client or for the advantage of the Lawyer or a third person.3.Exceptions to Confidentiality:a)If client gives informed consent, then Lawyer can reveal confidential information: Client’s如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂凯德律师事务所)consent has to be after Lawyer’s full disclosure of material facts.b)If the disclosure is impliedly authorized to advance the best interests of the client and iseither reasonable or customary in the professional community, then the confidentialinformation can be revealed.c)A Lawyer may reveal or use confidential information to the extent that the Lawyerreasonably believes necessary:(1)To prevent reasonably certain death or substantial bodily harm,(2)To prevent the client from committing a crime,(3)To withdraw a written or oral opinion or representation previously given by the Lawyerand reasonably believed by the Lawyer still to be relied upon by a third person, wherethe Lawyer has discovered that the opinion or representation was based on materially inaccurate information or is being used to further a crime or fraud,(4)To secure legal advice about compliance with these rules,(5)To defend the Lawyer or his associates against an accusation of wrongful conduct, orto establish or collect a fee, or(6)To comply with other law or court order.4.Obligations apply even when no client-Lawyer relationship ensues after a Lawyer has discussions with a prospective client about the possibility of forming a client-Lawyer relationship.V.Independent Professional Judgment and Conflicts of InterestA.As Affected by Lawyer's Personal Interest: Lawyer should avoid any conflicts and exercise independent professional judgment.1.In the event his independent professional judgment may be influenced by his personal interest, Lawyer should withdraw or not accept the representation, unless a disinterested Lawyer would believe that the representation of the client will not be adversely affected thereby and the client consents to the representation after full disclosure of the implications of the Lawyer’s interest.2.Look for his obligations to himself, client, and the firm.3.Gifts and Bequests: Lawyer should not prepare an instrument that grants a gift or bequest to him.4.Lending money to Clients is prohibited when related to litigation, but Lawyer may advance the cost of litigation for the client as long as client pays back.wyer as Witness: Lawyer may not be a witness on a significant issue where he is representing one of the parties with the following exception.1.Uncontested matter,2.Formality of a matter, (e.g. whether client signed a will)3.Where the testimony pertains to the nature and value of legal services in a case, or4.There will be a substantial hardship to for the client.C.Acquiring an Interest in Litigation: Lawyer cannot take interest in the subject matter of litigation.1.Interest in publication rights related to case subject matter is prohibited.wyer cannot take a mortgage on a client’s property to secure a feeD.Entering into Business Transactions With Client: Doing business with client is prohibited, unless it is fair to client.如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂凯德律师事务所)1.To Ensure a Fair Transaction:a)Client should be advised to get independent counsel.b)Client must consent in writing.c)All terms must be fully disclosed in writing in a manner reasonably understandable to theclient.2.Standard commercial or other ordinary transactions are allowed.3.Only lawyers can be partners if involves the practice of law.E.Conflicting Interests Including Prospective Clients, Current Clients and Former Clients:1.General Rules Regarding Representation of Multiple Clients:a)Permissible to represent multiple clients provided their interests are not adverse.Represent each client zealously and present only meritorious claims or contentions.b)In the Event of an Actual Conflict: Lawyer cannot represent clients whose interestsactually conflict.c)In the Event of a Potential Conflict: Representation may be appropriate in the followingsituations.(1)Clients consent after full disclosure,(2)A disinterested Lawyer would believe that the Lawyer can competently represent theinterest of each client, and(3)The Lawyer must withdraw if an actual conflict arises.2.Confidential Information: Lawyer cannot use confidences of one client to assist another.wsuits Between Current and Former Clients:a)Lawyer can represent a current client against a former client.b)Exceptions:(1)Current client wants to sue former client involving a matter in which Lawyerrepresented the former client, or(2)When representing former client, Lawyer learned confidential information that isrelevant in action by the current client.(3)If the information is no longer confidential or the client consents, then Lawyer mayrepresent the current client.wsuits Between Current Clients: Lawyer can never represent current client against current client.F.Influence by Persons Other Than Client: A Lawyer can be paid by a third party with the following conditions.wyer takes instructions from Client, not Payor.2.The client consents to the payment arrangement, andwyer keeps the confidences of the client and does not reveal them to a third party.G.Imputed Disqualification:1.General Rule: While lawyers are associated in a law firm, none of them shall knowingly accept or continue employment when any one of them practicing alone would be prohibited from doing so.2.Exception: Imputation rule does not apply if the prohibited Lawyer’s adverse interest is his sexual relationship incident to any professional representation by the Lawyer or the L awyer’s firm.wyer's Service as Arbitrator, Mediator or Judge:1.Judge: Former judge or government employee in private practice may not accept a case如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂凯德律师事务所)which involves the same matter if he worked on it personally and substantially with the government.2.Arbitrator and Mediator:a)Lawyer can serve as an impartial arbitrator or mediator in matters which involve presentor former clients after disclosing such relationship.b)A Lawyer who has worked as an arbitrator or mediator should not thereafter represent inthe dispute any of the parties involved.anization as Client:1.If Lawyer represents a corporation, the corporation is the client, not the officers, directors, shareholders, or employees.a)Lawyer can be a director, but no confidential privilege at Board meetings.b)Lawyer has Duty to Report Security Violations.(1)Report up chain of command to CEO.(2)If the appropriate response is not taken, then Lawyer should report to the Board andmay report outside.(3)May reveal confidential information to the extent necessary to protect the client, inthis case the corporation.c)Any measure taken shall be designed to minimize disruption of the organization and therisk of revealing confidential information to persons outside the organization.2.Representing the Insurance Company:a)Represent the insured and not the insurance company.b)Confidential information is protected from disclosure to insurance company.c)Insurance company cannot direct case decisions.d)Engagement letter must be sent to both the insurance company and the insured.J.Legal Services Organization: Lawyer can be associated with a not-for-profit legal services organization even if its interest is against his clients. However, the participation should not:1.Be incompatible with his duty of loyalty to a client, or2.Have a material adverse effect on the representation of a client of the organization whose interests differ from those of the clients of the Lawyer or law firm.K.Sexual Relations With Clients: Sex is prohibited as a condition of representation. However, pre-existing sexual relations with clients are allowed.petence, Legal Malpractice and Other Civil LiabilityA.Civil Liability Including Malpractice:1.In addition to disciplinary investigation, a Lawyer may have civil liability such as malpractice claims by his clients. However, malpractice does not necessarily mean that the conduct is appropriate for discipline.2.Malpractice:a)Standard:(1)Lawyer's negligence is the proximate cause of client's injuries or damages.(2)Admission of guilt by client does not absolve malpracticeb)Standard of skill(1)General Practitioner: Lawyer is held to the same degree of skill, prudence anddiligence possessed by general practitioner’s ordinary skill.(2)Specialist: A Lawyer who holds himself out as a specialist in that field is held to the如有任何问题或需进一步法规信息，请与王榮菁律师/涉外法律顾问(上海金茂凯德律师事务所)。

Contracts OutlineTested Issues:∙Applicable law∙Contract formation∙Statute of Frauds∙Contract Terms∙Performance∙Excuses for Non-performance∙Remedies∙Third-party ProblemsIssues located:✧In an option K, the offeree may accept the offer after he rejects the option as long as the acceptance isreceived within the option period and the offeror does not detrimentally rely on his initial rejection.✧Offers are usually not assignable. However, an option K supported by consideration may be assigned toa new offeree.✧Acceptance by unauthorized means is effective if it is actually received by offeror while the offer is stillin existence.✧Acceptance under unilateral K: notice required if requested by offeror or context (e.g., if the acceptancewould not come to offeror’s attention); otherwise, no duty to notify.✧Modification of a contract must be supported by consideration, except for contract for sale of goods. ✧ A release must be supported by new consideration or promissory estoppel.✧Accord usually requires consideration, e.g., $500 stock as accord and satisfaction of the former debt of$700.New York Contracts (Including UCC Art 2 sales & Art 2A leases)Key Issue #1: Applicable Law∙MBE tests 2 kinds of K law: the common law & Art 2 of UCC.o UCC Art 2 only applies to a sale of goods (“goods” are moveable, personal property); common law applies to all other Ks.o UCC Art 2: applies to all sale of goods regardless of how small the price and who the people are (can be consumers, merchants…etc).▪Real estate is not goods, CL applies.▪Service is not a sale of goods, CL applies.▪Loans and other credit arrangements not sale of goods, CL applies.▪In mixed Ks (where sale of goods and non sale of goods are involved), if the sale of goods element is more important, then UCC 2 applies; if K is primarily about services, thenapply CL. Exception:∙If K itself expressly divides payment, the apply UCC to sale of goods part andcommon law to the rest.∙NY part of the bar tests 3 bodies of law 1) CL with NY variations 2) Art 2 for sale of goods 3) Art 2A of UCC for leases of goods.o Lease of goods UCC Art 2A:▪leasing an airplane → UCC Art 2A applies▪Applies to lease of business lease or consumer lease (lease a car from Avis)▪BUT doesn’t apply to leasing a building (real prop erty not goods).Key Issue #2: Contract formation∙Terminologies defined:o K: a legally enforceable agreement (not every A is a K) (1) Is a K formed – offer/acceptance; (2) whether the Agreement is legally enforceable (are there defenses?)]▪Express K: cr eated by parties’ words either oral or written▪Implied K: created by parties’ conducto Quasi K: an equitable remedy that applies whenever the application of K law yields an unfair or inequitable result. It’s not limited by K rules b ut governed by equitable concepts. Protectsagainst unjust enrichment. (↑likely to be tested on MBE↑)▪P can recover from quasi K the reasonable value of the benefit conferred (not K price) –will usually not be as much as K price, but not more than the contract price.o Bilateral K: offer can be accepted in any reasonable wayo Unilateral K: offer can only be accepted by performance▪Note: All Ks are bilateral unless the offer says it can ONLY be accepted by performance.o Void, voidable, and unenforceable contracts▪ A void contract is one without any legal effect from the beginning (e.g., an agreement to commit a crime);▪ A voidable contract is one that a party may elect to avoid or ratify (e.g., a contract by a minor);▪An unenforceable contract is one otherwise valid but for which some defense exists extraneous to formation (e.g., the S/F)1ST STAGE OF THE AGREEMENT PROCESS: OFFERA) Offer: manifestation of an intention to be bound, created by words or conduct. The basic test iswhether a reasonable person in the position of the offeree would believe that his or her assentcreates a contract. (valid offer? Look at context & content)▪Context: ads are usually NOT an offer (look for the mention of newspaper, on storefront) ∙Ads are not offers b/c there is no quantity term and an unlimited # of persons canaccept.∙Narrow exception: when the ad says “1 blue dress just like Monica’s, only $1!First come, first served.” An offer b/c it specifies the quantity and who can accept.▪Content:vague or ambiguous terms, like “reasonable” or “fair” or “appropriate” = NOT an offer∙S agrees to sell car for reasonable price = NO Offer.▪Factors to be considered: languages used, surrounding circumstances, prior relationship, industrial custom, degree of definite and certain terms, and method of communication.B) Requirement K: K where quantity be sold is measured by buyer’s requirements or needs▪Look out for words like ALL its requirements, ONLY, SOLELY (commitment toexclusivity = offer to enter into requirements K).∙Ex: Café offers to buy ALL its requirements of beans for 5 yr for $1 per can.▪If S accepts Café’s offer, and for 3 yrs, Café ordered 1000 cans/year. Can the Café (buyer) require S to deliver 2000 cans this year? LOOK OUT FOR BIG INCREASE INQUANTITY REQUIRED]∙NO. Buyer can’t take the seller by surprise. Any increase in buyer’s requirementhas to be in line with the buyer’s prior demands – rule of thumb 10%o An excessive increase will be reduced by the court;o Decrease will not be tested because law is uncertain.C) Open price term (missing price term) (common law differs from Art 2) ↑↑▪Common Law (e.g., in the instance of selling land): there is NO offer unless the writing both describes the property and states the price.▪Art 2: there is offer if parties so intend, it’s still a good offer even though it doesn’t state price∙Remember: vague price term is NO offer under both CL & Art 2 (Something is2ND STAGE OF AGREEMENT PROCESS: TERMINATION OF OFFERo Effect: an offer can’t be accepted i f it has been terminatedFour ways of termination:1) Lapse of Time:▪If offer states the last date of acceptance, can’t accept after that date.▪Even if no deadline is stated, offers don’t last forever. Offers lapse after a reasonable time (fact specific finding, rule of thumb 30 days).2) Offeror’s Revocation:a) Revocation may be direct or indirect:∙Direct revocation:a statement by the offeror to the offeree indicating unambiguously that the offeror has changed her mind (any statement indicating this intention will do) ∙Indirect revocation: conduct by offeror unambiguously indicating unwillingness or inability to contract with offeree and the offeree is aware of the conduct.o If P2 was driving my car that I offered to P1 and P1 sees the car, and P2 tells P1 thatI have sold her the car. P1 can’t accept offer →Offeror’s conduct (selling car) +offeree awareness (saw P2 driving car and knew P2 bought car) → indirectrevocation.o The mere fact that there are similar offers to other people does not revoke a prioroffer.b) Revocation of an offer is only effective if it is received before acceptanceo Revocation is effective on the day of receipt.o If offeree accepts before her receipt of my revocation → then too late to revoke →an A is formed! Mailbox rule only applies to ACCEPTANCE. For Revocation orRejection = Receipt Rule applies]c) Generally, offeror can revoke at anytime before acceptance, unless the followingFOUR situations occur, then the offer can’t be revoked:o Option:a promise to keep the offer open that is PAID for (consideration):consideration → you have bargained away your right to revokeo Detrimental reliance that is reasonable & foreseeable (Promissory Estoppel)∙Ex: Based on Columbia Law School’s offer of a job, I sell my hou se in Austin& move family to New York in reliance on Columbia’s offer. Columbia can’trevoke offer if my reliance is both reasonable and foreseeable.o Part performance of an offer to enter a Unilateral K (By starting performance isacceptance of bilateral K)∙Ex: if offer states acceptance only by performance, and P starts performing:∙part performance rule∙However, preparation can be reasonable, foreseeable reliance that makes theoffer irrevocable.o Firm offer rule under Art 2:↑RULE↑: a signed, written promise by a merchant promising to keep an offer openfor a period of time; merchant is defined as a businessperson –dealing in the kindof goods sold or who otherwise by his profession is held out to have specializedknowledge of the business practice involved.∙No consideration is required → writing takes place of consideration.∙ A firm offer has a 3 months cap → if offer is open for longer than 3 months, it will be scaled back to 3 months. [NOTE: if you have an option, you don’t needa firm offer. Option is better b/c you are not restricted by durationrequirement.]∙If no time is stated, an offer will be open for a reasonable time NOT to exceed3 months.∙Remember: not every signed, written offer by merchant is a firm offer; there must be a promise to keep the offer OPEN.∙If there is a written open offer in a non-sale of goods situationo MBE: S can revoke before acceptanceo↑↑NY Distinction↑↑: if offer is in writing, signed by the offeror andstates that offer is irrevocable, then the offer is not revocable during thetime stated or for a reasonable time, even if the offer is not supported byconsideration (firm offer rule expanded).3) Offeree’s Rejection: THREE scenarios▪Counteroffer: operates as a rejection, but bargaining does not.∙Ex: if S wants to sell for $50k and B says I will only pay $49k → this counteroffer kills the offer, can’t accept original offer.∙But if the offeree asks a question, “will you take $49k?” is considered merebargaining → not a rejection.▪Conditional acceptance:operates as a rejection & termination of an offer∙if words such as “if,” “provided that,” “so long as,” “on the condition that” are used in acceptance = rejection. It operates the same way as a counteroffer: itterminates the offer and becomes a new offer.▪An acceptance containing an ADDITIONAL or DIFFERENT terms operates as a rejection under Common Law, but not UCC 2.∙Common law: acceptance must mirror offer (mirror image rule)o Acceptance must be exactly the same as offer∙Art 2: no mirror image rule; additional terms don’t kill offero But the of feree’s additional terms rarely get into the K, they only becomepart of K if:1) both are merchants2) the offer does not explicitly limits acceptance to the terms of theoffer;3) the additional term is not a material change; AND∙Ex: disclaims all warranties = material change (unless in theindustry is not material)∙Ex: change time of delivery = NOT material change4) offeror does not object within a reasonable time.o Therefore, if either party is a non-merchant, the additional term is merely aproposal that is to be separately accepted or rejected (but the original is notkilled).o If the original offer contains an objection to any additional or inconsistentterms, and the offeree’s response proposes new terms and states that theresponse is a counteroffer subject to express acceptance by the originalofferor, no contract arises until performance begins. The terms will includewhat they agree in writing and those supplemented by UCC.4) Termination by operation of law:▪Death/insanity of either party before acceptance:∙Death terminates offer even if the other party doesn’t know of the death.∙Exception: if the offer has an options K, then the death of one party doesn’tterminate the option, the living party can still accept within the period of theoptions K.∙Exception: part performance of an offer to enter into unilateral contract.▪Supervening illegality▪Destruction of the proposed contract’s subject matter3RD OF THE AGREEMENT PROCESS: ACCEPTANCE1) Who can accept?▪Generally, an offer can be accepted by (i) a person who knows about the offer; and (ii) who is the person to whom it was made. Offers cannot be assigned, options can beassigned unless the option says no.2) Offer can (but usually does not) control the manner of acceptance.▪One can usually accept by offer of bilateral K where nothing is said about how to accept by promising (promising to perform), performing or starting to perform[↑↑NYDistinction↑↑: absent an indication to the contrary, acceptance by the same means ofcommunication that the offer was communicated. But, modern trend is to follow theMBE rule.]▪but if there is language in offer about manner of acceptance: language controls.▪acceptance (but partial performance makes the offer irrevocable, but note the NYdistinction).3)Start of performance as acceptance (in bilateral K)▪Unilateral K – need complete performance as acceptance.▪NOTE: once offeree begins to perform, the offeror can NO longer revoke the offer to enter into unilateral K. [Only ONE party is bound until the other party completes the▪Common law: Improper performance is acceptance plus a breach of K∙Ex: O offers P $5k to paint her house white. P paints the house maroon (conductcreates K –implied K). Has P accepted O’s offer so that O can sue for breach ofK? YES!▪Art 2: same as CL, improper performance is simultaneously an acceptance of offer and a breach of K.∙Accommodation exception: if B asks for Britney CD, but gets Incubus CD instead, but the S explains in a note that S is out of Britney CDs and is sending Incubus CDto hopefully satisfy the needs of B. Has S accepted? NO!∙If S lets B know why it is sending the wrong goods, then there is NO acceptanceand thus NO breach.5) Silence as acceptance:offeree’s inaction or silence = NOT acceptance→but note silence can beacceptance due to course of dealing▪Offeror leaves note saying “I offer to sell my car to you for $5000, if I don’t hear from you by 9pm tonight, you have accepted. YOU say nothing. = NO Acceptance!!▪Offeror can’t single-handedly turn the offeree’s silence into acceptance b/c there is too much chance that the offeree will accept against his will.↑NY Distinction↑: unsolicited merchandise in mail is treated as a gift and the receiver isnot obligated to pay.6)Timing: when is an acceptance effective?▪Mailbox rule1: acceptan ce is effective when MAILED (protects the offeree from offeror’s revocation). Date of mail is acceptance! (revocation is only effective on receipt) ▪It doesn’t matter whether the letter is ever received! Burden of loss is on the offeror.▪Four exceptions to Mailbox Rule∙if offer provides otherwise: offer trumps mailbox rule (default)∙Irrevocable offer: if there is an options K, the acceptance must be received beforethe option expires.∙Acceptance, then rejection: under mailbox rule unless the rejection reaches offeror first, and the offeror relies on the rejection, then the mailbox rule applies, thusacceptance would be effective.∙Rejection, then acceptance (mailbox rule doesn’t apply)o if rejection is sent first, then acceptance is also only effective when it isreceived. It’s a RACE → whichever gets there first is effective. DEFENSES AGAINST FORMATION (SOME FLAW IN THE AGREEMENT PROCESS)▪most frequently tested: 1) lack of consideration; 2) lack of capacity & 3) mutual mistake1) D’s lack of capaci ty to contracto 3 categories:▪Infant – under 18 (minors);↑New York distinction↑: by statute, infants cannot void contracts in the following situations:o14.5-year-old or older who contracts for life insurance;o educational loans for those 16 or older;o all contracts by 18-year-oldso realty contracts related to marital home; ando contracts involving artistic or athletic services.▪intoxication (drug or alcohol) if other party has reason to know; and▪mentally incompetent – lacks ability to understand agreementCAVEAT: the incapacitated party may however enforce the contract against the normalparty.o An incapacitated D has the right to disaffirm (avoid, get out of) the K▪P’s incapacity is irrelevant▪Actual facts controls: If L is 17, but she says she is 18 →doesn’t matter, actual age controlso An incapacitated D can impliedly affirm a K by retaining the benefit of the K WITHOUT complaint after she gains capacity:▪Ex: If L retains the Harley without complaint after she turns 18 → S can enforce the K against her b/c she implied reaffirmed the K.▪ 3 requirements:1) D must have lacked capacity at the time of A1 Key facts: 1) people are at different places 2) there are conflicting communications →You need to figure out which communication controls2) D later gains capacity3) D retains the benefit of K w/o complainto An incapacitated party is liable for necessaries (food, shelter, clothing or medical care) but only o Can’t threaten physical harm or economic harm (economic duress) so as to get the other party enter into K against her free will:▪when someone threatens to breach an existing K unless he gets a better deal▪the other guy only agrees to a new A b/c he desperately wants to get the first deal done and▪no alternative source of supplyo taking advantage of fortuitous circumstance is NOT duress. Ex: selling umbrella for $10 wheno mutual mistake of material existing fact: (MMM)▪There will be no contract if:∙Both parties mistaken,∙The mistake concerns a basic assumption of fact on which the contract was made, and▪: when the parties know that their assumption is doubtful (so-called conscious ignorance), mutual mistake is not a defense.▪K to buy house, both were unaware that the house was destroyed by fire 2 days ago → no K, excused by mutual mistake. If both believe painting is by a certain someone, though itis not stated in the agreement, if that were a mistake, the A would NOT be enforceable.Mistake on the market value of thing is NOT considered material.o unilateral mistake of material existing fact : U R stuck!▪The mere fact that one party is laboring under a mistaken belief is NOT a fatal flaw as long as the other party is unaware of your mistaken belief. Exceptions:∙Palpable mistake: if the non-mistaken party knew or should have known of the mistake, the contract is voidable by the mistaken party.Definition: bargained for legal detriment or benefit; bargain for exchange (bargain for promise, forbearance – not to do something, or performance)▪Consideration: S promise to sell while B promises to pay▪Consideration: P forbears while B promises to pay▪Illusory promise is not sufficient – if only one party is bound to perform, the promise is illusory and will not be enforced.∙Ex: B promises to buy S’s house. S promises to sell unless she changes her mind.There’s no consideration for B’s promise to buy.o Past consideration: is NO consideration at all!▪You can’t bargain for something that ha s already been done.▪If P promises to pay S for his past help in writing?∙MBE: P’s promise would still not be enforceable = no consideration∙↑NY Distinction↑:past consideration is binding if:o the promise is in writing,o the past consideration is expressly stated,o the consideration can be proven, ando the writing is signed by the promisor.o Promise to pay debt barred by S/L (enforceable if in writing)▪Ex: you owe Visa $2500 but Visa’s claim against u is barred by S/L. You write Visa telling them that you will pay $2000. Is your promise to pay enforceable?YES! Not b/c of consideration, but b/c of the writing. In this case and THIS CASEONLY, the writing serves as a substitute for consideration in both NY and MBE.o Adequacy of consideration is irrelevant▪Can be a stupid bargain but as long as there is a bargain, it’s enforceable o Pre-existing duty rule applies to K modification▪You need new consideration to modify K (applies only to parties to the original K);exceptions:∙New or different consideration is promised;∙The promise is to ratify a voidable obligation;∙Unforeseen difficulty so severe as to excuse performance;∙The pre-existing duty is owed to a third party rather than the promisor;∙There is an honest dispute as to the duty.▪If no consideration, but O’s promise to A is in writing?∙MBE: no consideration∙NY: existence of writing eliminates the need for consideration.▪Under Art 2:UCC 2 does not have a pre-existing legal duty rule. Good faith is the test for changes in an existing sale of goods contract.o Partial payment as consideration for promise to forgive a balance of debt**▪Partial payment of debt that is due & undisputed is NOT consideration for the other party’s promise to forgive the debt▪If the promise to forgive debt is in WRITING:∙MBE: No consideration → not enforceable∙↑NY Distinction↑:writing eliminates the need for consideration.▪BUT if debt is in dispute: there is consideration and the release is enforceable! (law favors the settlement of disputed claims)o Promissory estoppel as a substitute for consideration.▪Elements:∙Promise;∙Reliance that is reasonable, detrimental and foreseeable;∙Enforcement necessary to avoid injustice.▪Ex: L promises to renew lease, T repaints house, but L doesn’t renew lease. T must have claim in promissory estoppel if T detrimentally relied and the reliance was foreseeable.▪Note:promissory estoppel is not the first choice because some states limit recovery under promissory estoppel to that which “justice requires”→ALWAYS CHECK IF THERE ISVALID CONTRACT FIRST AND THEN LOOK AT IF PROMISSORY ESTOPPELWORKS.6) Illegality at time of agreement: Illegal subject matter v. illegal purposeo Subject matter of K is illegal then it’s unenforceable! If the subject matter is legal but the purpose is illegal, the agreement is enforceable only by the person who did not know of the illegalpurpose.7) Public Policyo Covenant not to compete: look to (i) the services must be unique; (ii) reasonably necessary to protect the business needs of the employer and reasonable as to both duration and geographicalscope; (iii) no unreasonable burden on the parties; (iv) nor harmful to general welfare▪Scope: must be reasonable in terms of time limitation and geographic limitation as well as business need for the protection; need for covenant: only applies in employment K.▪Ex: covenant not to work at another restaurant in NYC for 90 days after leaving Tavern on the Green might be reasonable to enforce on a chef but not on a busboy o Exculpatory clause (a clause eliminating K liability)▪You can contract away liability for negligence in appropriate circumstances ↑↑▪But can’t K away liability for intentional torts or gross negligence. ↑↑8) unconscionability (look for oppressive terms or unfair surprise at the time of agreement)o look for substantive unconscionability: terms of K are themselves unfairo procedural unconscionability: fine print, legalese, unequal bargaining powerCAVEAT: if you find an issue of unconscionability, you need to spot other bigger issues as theexaminers will not test only on the unconscionability thing.9) Ambiguity in words of agreemento There will be no contract if:▪Parties use a material term that is open to at least two reasonable interpretation,▪Each party attaches different meanings to the term, and▪Nether party knows or has reason to know the term is open to at least two reasonable interpretations. If one party knows that the parties are attaching different meanings to thesame term, the K is construed under the terms understood by the other part.KEY ISSUE #3: STATUTE OF FRAUDS (S/F)1) K “within S/F”: means that S/F applies(generally: K doesn’t have to be in writing) (MY LEGS:m arriage, y ear, l and, e xecutor, g oods, s urety)1) transfer of an interest in real estate of more than1 year’s duration (within S/F)▪lease of apartment for 1 yr (not S/F)▪sale of real estate → transfer of interest forever, thus falls under S/F▪sale of easement for more than 1 yr → under S/F2) Service K incapable of being fully performed within 1 yr from the date of the agreement (look atK itself to see what might have happened under K, ignore what actually happens)▪if you are given a specific task → theoretically any task can be performed within 1 yr, thus no S/F.▪Doesn’t matter what actually happens →it’s oka y if the actual task took longer than a year to finish as long as the K might be completed in a year.▪Oral agreement of employment for life:∙MBE: No S/F. Lifetime Ks don’t have to be in writing → have possibility of dying▪∙Yes, specific time period of more than 1 yr → within S/F∙Employment contract violating S/F will be treated as employment at will and each party may terminate at his will.▪Remember: Clock starts running at the time A is made not when performance is suppose to begin.∙Ex: Oral agreement to employ B for 1 yr starting next Monday → S/F. (1yr + a few days)▪Duration of performance is irrelevant → clock starts running on the day A is made! Thus, you calculate the time of A and when the performance will offer to see if it’s under S/F.Ex: Dell Leasing Co. alleges that Rogers orally agreed to lease a computer for 1 yr for$300/mo. It’s within S/F b/c you add up the total.4)Promise to “answer for” the debt of another (limited to guarantees) – surety▪Guarantee (secondary liability) means: Guarant or orally agreed to pay $1,000 “if debtor did not pay”▪Main purpose exception: if you are told the purpose of the guarantee is to benefit the guarantor (e.g. debtor’s debt to creditor is for paint that debtor bought to paint guarantor’shouse) then not within S/F.5) Promise by an estate executor or administrator to use her own funds to pay estate expenses (rare)6) Promise in consideration of marriage (pre-nuptial or post-nuptial for example)▪any consideration that is associated with marriage, or staying in the marriage▪but a promise to marry doesn’t fall under S/F.↑↑NY distinction↑↑: Miscellaneous provisions of the NY S/F▪promise to pay discharged debt,▪assignment of insurance policy or promise to name beneficiary of such a policy, and▪contracts to pay commission or finder’s fee, unless attorney, auctioneer or licensed real estate broker is involved,▪“equal dignities rule” –in agent/principal relationship, if dealing with “interest in land,”agent must be authorized in writing or principal must ratify.2) Application of S/F to contract modification: whether K as modified falls within the S/Fo Ex: K as modified involves a 3-year lease, then the 3 yr lease would fall w/in S/F.o Ex: K was for longer than 1 yr lease, but modified to 9mo lease – not S/F.o Ex: K as modified involves a sale of goods < $500, no S/Fo▪▪Under Art 2: this clause is enforceable; oral modification would not be effective.3) Satisfying S/F w/ a writing:1) Sale of goods for $500 or more (Art 2): writing must contain quantity term & be signed by theparty asserting the S/F defense (D)▪no need to include price▪doesn’t matter if P signed it.▪One exception allowing P to sign to satisfy S/F: where1) both parties must be merchants;2) writing must confirm a prior agreement & contain a quantity term3) must be no response within 10 days22) Lease of goods (art 2A –only in NY): writing must state that it is a lease, the number of items beingleased, the length of the lease, the rental payments and signed by D.3) All other prongs of the S/F: writing must contain all material terms (WHO & WHAT) & be signedby party asserting S/F defense (D).▪Ex: Crain law firm signs the following letter “We agree to employ Jimmy as a lawyer for3 yr at a salary of $600k a year.” A month later, the firm terminates Jimmy’s employmentw/o cause. Jimmy sues the firm for breach of K. Writing satisfies S/F: has material terms: 2Merchants often enter into A over the phone and then sends a letter to confirm. Failure to respond means no fraud.Doesn’t’ want S/F to get in the way.。

美国纽约州律师资格考试各科提纲–公司法Business CorporationsStart Essay With: *NY Business Corporation Law (BCL) governs.Summary of Most Commonly Tested Issues:1.Formation of Corporations: To form a corporation, each incorporator needs to execute thecertificate of incorporation, deliver it to *NY Department of State, pay the filing fee, and hold an organizational meeting to adopt bylaws and elect the initial Board of Directors.2.Issuance of Stock: Issuance of stock occurs when a corporation sells, or trades its ownstock. Investors buy stock and become holders of equity security and owners of thecorporation.3.Directors and Officers: Shareholders may not remove a director without cause absent aprovision in the certificate or bylaws that allows it. There is cause to remove a director when that director violates any fiduciary duty, including, for example, engaging in self-dealing, usurping a corporate opportunity, or committing waste.4.Shareholders: Generally, a shareholder is not liable for corporation’s debts or acts.However, a court may Pierce the Corporate Veil (PCV) and hold shareholders personally liable if they have abused the privilege of incorporating, and if fairness demands that the shareholders not have limited liability.5.Controlling Shareholders: Shareholder usually has no power to manage unless it is a closecorporation. However, shareholders elect a Board of Directors, and the Board of Directors has such power.6.Dissolution: Voluntary dissolution does not need Board vote but needs 2/3 shareholdersvote if formed before Feb 22, 1998, and majority vote if after. Involuntary dissolution may be petitioned if dissolution is more beneficial for shareholders.希望以上信息对您有所帮助。

美国纽约州律师资格考试各科提纲 --合伙PartnershipsStart Essay With: *NY Partnership Law governs. General partnership is an association of 2 or more persons who are carrying on as co-owners of a business for profit. Agency principles apply.Summary of Most Commonly Tested Issues:1.Formation: General partnership is formed by association of 2 or more persons who arecarrying on as co-owners of a business for profit.2.Liabilities of Partners to Third Parties: Partners are agents of the partnership for carrying onusual partnership business, partnership is bound by torts committed by partners in the scope of the partnership business, and partnership is bound by contracts entered bypartners with authority.3.Rights and Liabilities Among Partners: Partners have right to transfer personal propertiesbut not partnership properties without partnership authorities.4.Dissolution: Any material change in the partnership caused by the death or withdrawal ofany single general partner causes automatic dissolution of the partnership.I.Creation of PartnershipsA.General Partnerships: Association of 2 or more persons who are carrying on as co-owners of a business for profit.1.No formalities to becoming a general partnership.2.Sharing Profits: Contribution of money or services in return for a share of the profits is prima facie evidence of partnerships.B.Limited Partnerships: File a limited partnership certificate that includes names of all general partners with the *NY Department of State.1.Partnerships with at least one general partner and at least one limited partner.2.Liability and Control:a)General Partners:(1)Liable personally for all partnership obligations.(2)Right to manage.b)Limited Partners: Not liable for partnership obligations. No right to manage generally. C.Limited Liability Partnerships: Register with *NY Department of State by filing a Certificate of Registration.1.The Certificate of Registration includes the profession practicing.2.Liabilities:a)No partner will be liable for debts and obligations of the partnership.b)Partners are liable for personal wrongdoing.II.The Authority, Liability and Interests of PartnersA.Authority to Bind Partnership and Other Partners:1.General Partnership Liability by Estoppels: One who represents to a third party that a partnership exists will be liable as if the partnership exists, and the representer is liable like a partner.2.Partners are agents of the partnership for carrying on usual partnership business.a)Partnership is usually not liable for unusual business entered by partners.b)Ratification: When the business is outside of the partnership scope, the partnership isnot liable for it unless other partners later ratify it.B.Liability of Partners and Procedural Requirements:1.General partners are personally liable for the debts of the partnership.a)Incoming Partners:(1)Generally, incoming partners are not liable for prior debts.(2)Exceptions: Any money paid into the partnership by the incoming partner may beused by the partnership to pay prior debts.b)Outgoing Partners:(1)Retain liability on future debts until notice of withdrawal is given to all known andpotential creditors.(2)Death of an outgoing partner terminates all liability.2.General Rules:a)Every general partner is liable for his own actionsb)Every general partner is liable for the actions of the other partners when it is within thescope of partnership business.c)Every general partner is liable for the actions of the employees of the business when it iswithin the scope of partnership business.3.Limited partners, limited liability partners, and LLC members have limited liability.C.Liability of Partnership and Procedural Requirements:1.Partnership is bound by torts committed by partners in the scope of the partnership business.2.Partnership is bound by contracts entered by partners with authority.D.Partner’s Fiduciary Responsibilities: Partners are fiduciaries of each other and the partnership.1.Duty of Loyalty: General partners may never engage in self-dealing, usurp a partnership opportunity, or take secret profit.2.Action for Accounting:a)Only form of action that can be brought by a partnership against one of its own partnersfor a breach.b)Recover losses and disgorge profits.E.Assignment of Partnership Interests:1.Specific Partnership Assets:a)Land, leases, equipment owned by the partnership.b)No individual partner may transfer those assets without partnership authority.2.Share of profits and surplusa)Partners share is Personal Property owned as Personal Property by each partner.b)Individual partners may transfer their share of profit and surplus to third parties.3.Share in Management:a)Asset owned only by partnership itself and not by any individual partners.b)No individual partner may transfer his share of management to third parties.4.To distinguish between specific partnership assets and Personal Property, ask whose money was used to buy the property.a)Partnership Money: Partnership asset.b)Personal Funds: Personal Property.F.Rights of Successors, Assignees and Creditors of Partnership:1.Successors:a)Upon the death or withdrawal of a partner, his successors have the right to join thepartnership if (1) prescribed by the partnership agreement or (2) all the partners consent in writing.b)If a successor does not join the partnership, the successor has the right to receive ashare of the compensation, corresponding to his share of the succession, which thedeceased partner would have received upon departure from the general partnership.2.Assignees:a)An assignee of a partnership interest may become a limited partner if the assignor givesthe assignee that right according to the agreement or all partners consent in writing.b)Assignee is entitled to receive, to the extent assigned, the distributions and allocationsof profits and losses to which the assignor would be entitled, and the partner will lose his right as a partner upon his assignment of all of his partnership interests.3.Creditors: Creditors have priority to be paid first upon dissolution.G.Partnership Profits and Losses:1.Absent an agreement, profits are shared equally.2.Absent an agreement, losses are shared like profits.3.Absent an agreement, partners get no salary. The only time partners receive compensation is for helping wind-up partnership business.H.Management and Control: Absent an agreement, each partner is entitled to equal amount of control or votes.III.DissolutionA.General Partnerships, Limited Partnerships and Limited Liability Partnerships:1.General Partnerships: Any material change in the partnership caused by the death or withdrawal of any single general partner causes automatic dissolution of the partnership.2.Limited Partnerships: The death or bankruptcy of a limited partner is not a ground for dissolution unless his share in the partnership cannot be otherwise realized.3.Limited Liability Partnerships: Agreement can set a specific date or event for dissolution.B.How Dissolution is Accomplished:1.Dissolution by Decree of Court: For general partnerships, a court will decree dissolution upon any material change in the partnership, including a partner’s withdrawal, incompetency, bankruptcy, or violation of the agreement.2.Partners’ Will: Partners can also file Articles of Dissolution or a Notice of Intent to Dissolve.C.Post Dissolution Operations, Including Winding up and Termination: On dissolution, the partnership continues until the winding up of partnership affairs is completed.1.Definitions:a)Termination: Real end of the partnership.b)Winding-Up: Period between dissolution and termination in which the remaining partnersliquidate the partnership assets to satisfy the partnership creditors.pensation and Liability for Winding-Up:a)Partners receive compensation for winding-up.b)Partnership Liability for Winding-Up:(1)Old Business: Partnership and individual general partners retain liability on alltransactions entered into to wind-up old business with existing creditors.(2)New Business: Partnership and individual general partners retain liability on newbusiness until notice of dissolution is given to all known and potential creditors.3.Priority of Distribution:a)Each level of priority must be fully satisfied before beginning the next level under thefollowing scheme.(1)First Priority: Creditors must be paid first.(a)Outside non-partner trade creditors.(b)Inside partners who have made loans to the partnership and have become creditors.(2)Second Priority: Partnership owes full re-payment to its own partners for capitalcontributions.(3)Third Priority: Profits and surplus, if any, should be shared equally among partners inabsence of agreement to do otherwise.b)Summary: Each partner must be repaid his loans and capital contributions, plus thatpa rtner’s share of the profits, minus that partner’s share of losses.(1)Distribution Example: Assume that after winding up, Partnership One Two Threeliquidate the partnership assets and have the following.(a)Partnership Assets: $600,000.(b)Partner 2 Made Capital Contributions: $200,000.(c)Partner 2 Gave Loan: $100,000.(d)Trade Creditors: $500,000.(2)Dissolution Distribution:(a)Trade Creditors: $500,000.(b)Inside Creditor: $100,000.(3)Answer: All capital contributions must be paid, so general partners 1 and 2 are stillliable personally. 1 and 2 must share equally in the loss, which is $200,000, or $100,000 each for the capital contributions.D.Rights of Successors:1.The successor shall be liable for those obligations of the partnership incurred while he wasa partner.2.The successor has the right to receive a share of the compensation, corresponding to his share of the succession, which the deceased partner would have received upon departure from the general partnership.E.Continuing Liability of Partners:1.The dissolution of the partnership does not of itself discharge the existing liability of any partner.2.Dissolution terminates all authority of any partner to act for the partnership.a)Except what is necessary to wind up partnership affairs or unfinished businesses.。

美国纽约州律师资格考试各科提纲–合同法(一)CONTRACTSA PPLICABLE L AWArticle 2 of the UCC:Applies only to a sale of goodso Goods: moveable, personal property▪Not covered:∙Real property∙Services∙Loans▪NOTE: Focus on the subject matter not the purpose Parties do not have to be merchantsPrice does not matterMixed Contract for Goods & Services:o Look to see which element is more important – That item governs.Article 2A of the UCC –LeasesApplies in NY not MBE.Applies to every lease of goods, whether business or commercial.o NOTE: does not cover a lease of space in a buildingC ONTRACT F ORMATIONVocabularyContract: legally enforceable agreemento Express: created by parties words, either written or oralo Implied: created by parties conductQuasi-Contract: equitable remedy that applies whenever contract law yields an unfair result.o Not limited by contract rules, but is governed by equitable principals▪Protect against unjust enrichmento DAMAGES:reasonable value of the benefit conferred, not the contract price Bilateral v. Unilateralo Bilateral: offer can be accepted by any reasonable way, unless contract states otherwiseo Unilateral: offer can be accepted only by performance▪NOTE:Every contract is bilateral, unless offer states it can be accepted only by performingHow to Approach Formation QuestionsSTEP ONE:Is there an agreement?(an offer that’s accepted)o Is there an offer?o Is the offer still open?▪Lapse▪Revocation by Offeror▪Rejection by Offeree▪Death before Acceptanceo Has the offer been accepted?▪Unilateral v. Bilateral▪Mailbox RuleSTEP TWO:Is the agreement legally-enforcable? (defenses against formation) o Incapacity of Defendant▪Implied affirmationo Duress, especially economic duresso Misrepresentation/Non-Disclosure, even if honesto Mistake, usually mutual▪Must be material fact, but not market valueo Lack of consideration▪Modification∙CL: need consideration∙NY: signed writingo Illegality (subject matter)o Public Policy (non-compete; exculpatory clause)o Unconscionability (at time of contract)▪Substantive▪ProceduralFirst Stage of Agreement Process: Is there an Offer?Offer: manifestation of an intention to be bound, created by words or conduct o Context:▪Advertisement is usually not an offer∙No quantity term – unlimited number could accept∙EXCEPTION:o Specify quantity and who can accepto Content:▪Are terms too indefinite to be enforced?∙Requirements Contractso Definite enough, even though there is no specific quantitymentioned▪If see all or only, then probably a requirementscontract▪WARNING: Watch for sudden increase– Buyercannot take the Seller by surprise.∙Any increase cannot be out of line withBuyer’s prior demands∙Open Price Termo COMMON LAW: too indefinite, offer must contain aprice▪Ex. Offer for sale of real property that does notcontain a priceo UCC:no price term necessary, Article 2 will “fill the gap”▪Ex. Offer to sell a paintingSecond Stage of Agreement Process: Is the Offer Still Open?Offer cannot be accepted if it has been terminated.Methods of Terminationo Lapse▪Offer lapses after a stated term OR after a reasonable time has passed o Offeror revokes the Offer▪Directly or Indirectly∙Direct Revocation:o Offeror unambiguously indicates directly to the offereethat he has changed his mind.∙Indirect Revocation:o Offeror engages in conduct that unambiguously indicatesthat he changed his mindANDo Offeree is aware of the conduct▪Revocation of an offer is effective only on receipt∙Mailbox Rule does not apply!∙Once there is an acceptance, it is too late to revoke!o Offeror can revoke any time before acceptance▪EXCEPTIONS:∙Optiono Promise to keep offer open that is paid for (consideration)▪NOTE: mere promise to keep offer open is notenough∙Reasonably foreseeable reliance before acceptance (very rare)o Ex. Subcontractor submits bid to Contractor to do electricalwork on hotel for $250,000. Contractor usesSubcontractors bid in computing his own bid on the project.▪This is the only fact pattern were reliance beforeacceptance makes an offer irrevocable∙Beginning Performance in an offer to enter a unilateral contracto MBE: Once begin performance, cannot revoke▪Mere preparation is not enough to make offerirrevocable. Must start performance for thisexception to apply.o NY: Offer can be revoked until performance is complete ∙Firm Offer under Article 2 of the UCCo Signed, written PROMISE by a merchant to keep an offeropen [merchant: business person]o Applies only when there is no consideration▪Signed writing takes place of considerationo 3 month cap on firm offer▪if writing provides for more time, the time is scaled-back to 3 months∙CONTRAST with Option, which has notime limit.o NOTE:can have an Option underArticle 2 of the UCC▪Offer silent as to time:∙Reasonable time not to exceed 3 monthso Promise: must have promise to keep offer open.∙Special NY Rule:o if offer is writing, signed by Offeror and states that theoffer is irrevocable, then the offer is not revocable duringthe time stated or for a reasonable time, even if the offer isnot supported by considerationo Offer terminates when the Offeree rejects the offer▪Counter-offer∙Operates a rejection, but mere bargaining does noto Ex. Offeree simple asking a question is mere bargaining ▪Conditional Acceptance∙Operates as a rejection.o LANGUAGE:▪“on condition that”▪“provided that”▪“so long as”▪“if”▪Acceptance containing additional or different terms∙COMMON LAW: Operates as a rejectiono Mirror Image Rule▪Acceptance must mirror offer∙Added clause, even it trivial, operates as arejection∙ARTICLE 2: no rejectiono Additional terms do not prevent acceptance▪POLICY: facilitate contract formationo Additional terms do not automatically become part of thecontract▪Additional terms become part of contract if:∙Both parties are merchants∙Term is not a “material” changeAND∙Offeror does not object within a reasonabletimeo NOTE:▪Offeree’s additional/different terms almost neverbecome part of the contract▪Material Change: change that is likely to causehardship or surprise to Offeror∙ex. merely adding “Saturday delivery” is nota material change, unless Offeror objects▪“Usage of Trade”∙If term Offeree adds is customary in tradeor industry, then it is not a materialchange▪Death of either party terminates the offer∙EXCEPTION: irrevocable offers (ex. Option)Third Stage of Agreement Process: Has the Offer been Accepted?Offer can (but usually does not) control the manner of acceptanceo Usually offers can be accepted by promise, performance, starting performance, but in a unilateral contract can only accept by performanceStart of Performanceo Acceptance of an offer to enter into a bilateral contract, but not an offer to enter into a unilateral contract▪Starting performance is promise to finish performance▪Unilateral contract: contract can only be accepted by completingperformanceImproper Performance usually operates as acceptance (implied contract)o Common Law & Article 2: Acts as acceptance and simultaneous breacho Accommodation▪Article 2: if Seller tells Buyer sending wrong goods as anaccommodation, then there is no acceptance and no breach Offeree’s silence is not acceptanceo Offeror cannot single-handedly turn Offeree silence into acceptance (Offeror cannot bind against will of Offeree)When is an Acceptance Effective?o Mailbox Rule:▪Acceptance is effective when mailed∙Acceptance is effective when mailed; Revocation effective onreceipt∙If acceptance lost in mail: Burden of loss on Offeror▪EXCEPTIONS:∙Offer provides otherwiseo Offeror can override the Mailbox rule∙Irrevocable Offero POLICY: Offeree does not need protection of Mailbox rule∙Acceptance, then Rejectiono Mailbox rule applies unless rejection reaches Offerorfirst & the Offeror relies on the “overtaking rejection”∙Rejection, then Acceptance (First to arrive is effective)o Mailbox rule does not apply when rejection mailed first.Acceptance is only good on receipt.Is the Agreement Legally-Enforceable?: Defenses Against FormationDefendant’s lack of Capacityo Incapacitated Defendant has the right to disaffirm (avoid) the contracto Categories▪Infant∙Only question is whether Defendant was 18 or older at the time ofthe agreement∙NY:o Cannot void contracts in following situations:14 ½ - life insurance16 – educational loans18 – all contractsmarital homeartistic or athletic services▪Intoxication▪Mentally Incompetent∙NY:o Adjudicated Incompetent: voido Unadjudicated Incompetent: not voidable unlessincompetent can restore other party to previous position o Implied Affirmation▪Incapacitated party can impliedly affirm a contract retaining the benefitof the contract without complaint after gaining (or regaining) capacity∙Contract can be enforced against incapacitated if:o Defendant lacked capacity at the time of the agreemento Defendant later gained (or regained) capacityANDo Defendant retains the benefit without complaint o Incapacitated Party is liable for necessities(food, shelter, clothing, or medical care), but only on a quasi-contract basis▪Must pay reasonable value, not contract priceDuress (WARNING: Economic Duress)o Agreement is not legally enforceable if created by threat of physical harmo Economic Duress:▪Threat to break existing contract, unless other party gets another/betterdeal▪Other Party agrees only because needs to get First deal doneAND▪No other alternative▪NOTE: taking advantage of a favorable situation is not economic duress Misrepresentation/Non-Disclosure about a Material Facto Honest and innocent mistake or non-disclosure can be fatal flaw as long as it is materialMistake about a Material Facto Mutual Mistake▪Existence of a fact▪Identity of item▪Not market value, unless relied on 3d party▪NY: Contract is void if mutual mistakeo Unilateral Mistake–generally not a fatal flaw▪Mere fact that one party was laboring under a mistaken belief of facts is not a fatal flaw in the agreement process, unless the other party wasaware of the mistakeLack of Considerationo Consideration:bargained-for legal detriment/benefit▪Can be promise, performance, or forebearanceo Past Consideration is not consideration▪Cannot bargain for something already done▪NY: past consideration is binding if expressly stated in a signed writing and can be provedo Adequacy of Consideration is irrelevant▪Agreement is enforceable as long as bargained foro Contract Modifications▪COMMON LAW:∙Pre-existing Duty Ruleo Consideration is required to modify a contractPOLICY: doing what already obligated to doo Does not apply to promise made by 3d PartyBar only with respect to parties of original contracto NY:NO pre-existing duty rule if modificationcontained in a signed writing▪ARTICLE 2:∙No Pre-existing Duty Rule if good faitho Part Payment is Consideration for Promise to forgive the rest of a disputed debt▪Debt must be in dispute∙NY: No consideration necessary, if promise to forgive was in asigned, writing –debt does not need to be in dispute▪If debt is in dispute– then Release is enforceable because the law favors settling disputed claimso Written promise to pay a debt, collection of which is barred by the statute of limitations, is enforceable even without consideration▪Ex. Collection of debt is barred by statute of limitatio ns. You write “Iknow I owe money. I will pay you $5,000.”∙Writing serves as a substitute for considerationo If there is no consideration, promissory estoppel can serve as a substitute▪ELEMENTS OF PROMISSORY ESTOPPEL:∙Promise∙Foreseeable, detrimental reliance on the promise▪NOTE: Look for consideration first, then promissory estoppel o Illegality at the Time of the Agreement [look for illegal subject matter]▪EXCEPTION:∙Plaintiff was unaware of the illegalityo Public Policy [look for a covenant not to compete or an exculpatory clause] ▪Court will invalidate or narrow a covenant not to compete that operates as a restraint of trade∙Consider scope and needo Validity will depend on whether Court finds geographicscope and time are reasonable under the circumstances orthe covenant was reasonable need for protectionBalance freedom of contract with restraint of trade ▪Exculpatory Clause can eliminate liability for negligence, but not gross negligence or intentional tortso Unconscionability [look for oppressive terms or unfair surprise at the time of the agreement; the fact the terms seem harsh later is irrelevant]▪Substantive:terms of the agreement are unfair▪Procedural:process by which the agreement was reached was unfair∙ex. fine print, legalese, unequal bargaining powerS TATUTE OF F RAUDSHOW TO ANSWER STATUTE OF FRAUDSDo you need a writing?Do you have a satisfactory writing?If do not have a writing, is there an exemption?Most oral contracts enforceable!Contracts that fall within the Statute of Frauds (i.e. must be in writing)(MY LEGS – Marriage; Year; Land; Executor; Goods; Surety)Transfer of an interest in Real Estateo Includes sales, easements, leases for more than 1 yearo EXCEPTION:▪Part Performance∙Need 2 of 3:o Payment (in whole or in part)o Possessiono Valuable improvementsService Contract that cannot be fully performed w/in 1 year from the date of agreemento Ignore what actually happens – see what might have happened under the terms of the contract▪Task must be impossible to complete in one year (look to see if could be performed)∙Look to the face of the contract to see if anything prevents thecontract from being completed within one yearo Lifetime Employment Contracts▪MBE: not covered by Statute of Frauds▪NY:within Statute of Fraudso Specific Time in Contract▪Specific time greater than one year is within Statute of Frauds o WARNING:▪Time begins to run on the date of the agreement, even though performance begins at a later date.∙Duration of performance is irrelevant. Look to signing date.o EXCEPTION:▪Full Performance∙Part-performance is not enough, although can recover in quasi-contract for reasonable value of services conferred (unjustenrichment)Sale of Goods for $500 or more (Article 2 of UCC)o EXCEPTION:▪Goods Buyer accepted or paid for (but not the rest of the goods)▪Judicial Admission: deposition; pleading; testimony▪Custom-made Goods: not suitable for sale to others▪Merchant’s Confirmatory Memo: memo in confirmation of prior oral agreement∙NOTE: Buyer/Seller can use own letter to satisfy the Statute ofFrauds against the other partyo REQUIREMENTS:▪Both must be merchants▪Writing must allege prior oral agreement▪Must not be a response from other partyLease of goods where the lease payments total $1,000 or more(Article 2A of UCC) NY ONLYo Convert monthly payments in annual payment if lease is for one year or morePromise to “Answer for” the Debt of anothero Limited to a Guarantee– must agree to pay if Debtor does not pay▪Guarantor is liable only if Debtor does not payo EXCEPTION:▪MBE: I f the Guarantor’s main purpose in making the promise was tobenefit himself, then there is no need for a writing▪NY:No main purpose exception– Debtor needs writing to satisfy statute of fraudsPromise by estate representative to use her own funds to pay estate expensesPromise given in consideration of marriageo Pre-nuptial and post-nuptial agreementso Mere promise to marry is not coveredOther NY Provisionso Assignment of an insurance policy or promise to name beneficiaryo Agreement to pay a commission or finder’s feeo“Equal Dignities Rule”▪in agent/principal relationship, if dealing with “interest in land” agentmust be authorized in writing or principal must ratifyo Promise to pay discharged debtStatute of Frauds & ModificationStatute of Frauds applies to a modification only if the contract as modified (not the original contract) falls within the Statute of FraudsOriginal Contract prohibits oral modificationo COMMON LAW: within Statute of Frauds, clause that requires modification to be in writing is not enforceableo ARTICLE 2: clause enforceableRequirements to Satisfy Statute of FraudsSale of Goodso Writingo contain a quantity termo signed by Defendant (party asserting Statute of Frauds Defense)o NOTE: do not need a price termLease of Goods (Article 2A) NY ONLY!o Writingo States it is a leaseo Number of items leasedo Term of the leaseo Rental paymentso Signed by DefendantAll other types:o Identify the partieso Identify subject mattero State terms and conditionso Recite considerationo Signed by DefendantNOTE: Statute of Frauds can be a one-way streeto Ex. only one party signs the writingC ONTRACT T ERMSWords of the PartiesParol Evidence Ruleo Keeps out evidence of what the parties said or wrote before they reduced the terms of their agreement to writing (must have a writing to have issue)▪Bars evidence either oral or written that contradicts the later writing o EXCEPTIONS:▪Correct a clerical error▪Establish a defense against formation of an agreement▪Explain the written contract (interpretation)▪Supplement a “partially-integrated”writing∙Final statement of terms included, but not complete statementof all terms agreed too∙EXCEPTION:Merger Clauseo Evidence that writing is complete on its face and thereforecannot be supplemented. All earlier terms are included.Cannot contradict or supplemento Nothing to do with what happens after an agreement is reduced to writing (rules on modification apply)Conduct of the Parties can be used to explain terms or fill gaps in the contractSeller Warranties of Quality in Sale of Goods under Article 2HOW TO ANSWER:o STEP ONE: Look for Express & Implied Warrantieso STEP TWO: Look for Disclaimers/LimitationsExpress Warrantieso Seller is liable to Buyer for breach of any express warranty seller makes▪Statement of fact, promises, descriptions of goods∙Mere expression of opinion is not an express warrantyo Look for vague, general, or subjective statements▪Seller’s use of sample or model is an express warranty Implied Warranty of Merchantabilityo Goods are fir for their ordinary purpose▪Seller must be a merchant who deals in goods of the kind(out of regular inventory),not just any merchant, since implied warranty is associatedwith specialized knowledge about the goods.Implied Warranty of Fitness for a Particular Purposeo Goods are fit for the Buyer’s special purpose▪ELEMENTS:∙Buyer has a special purpose in mind∙Buyer is relying on the Seller to select suitable goods∙Seller knows both of these factso NOTE: Seller does not have to be a merchantSeller’s Warranties of Q uality in a Lease of Goods under Article 2A (NY ONLY) Same implied warranties in lease of goods as in sale of goodso EXCEPTION:▪Finance Lease– Leasee leases from Lessor/Financer that buys frommanufacturer∙No implied warranties are made by Bank, only bymanufacturer to Leasee (warranty pass though)Limitations on Warranty Liability in Sale and Lease of GoodsSeller can disclaim implied warranties, but not express warrantieso HOW TO DISCLAIM IMPLIED WARRANTIES▪“As is” or “With all Faults”OR▪Conspicuous language – large, bold, print that reasonable buyer wouldnoticeSeller can limit Buyer’s Remedies for breach of any warranty if the limitation is not unconscionableo TEST FOR UNCONSCIONABILITY:▪Whether at the time of contract it was unconscionable∙NOTE: This is a question of law that is decided by the Court o EXCEPTION:limiting Buyer’s remedies for personal injury is prima facie unconscionable if consumer goods are involved▪NOTE:Look to Buyer’s injury, it must be personal not property damage Selle r’s Delivery Obligation in a Sale or Lease of GoodsUse of Common Carriero Shipment Contract: (assume on Exam)▪Seller must∙get the goods to a Common Carrier∙make reasonable delivery arrangements∙notify Buyer about the arrangementso Destination Contract:▪Seller must∙Get the goods to a specific destination (usually Buyer location) Risk of Loss in Sale of GoodsNeither Party at fault:o Seller bears Risk of Loss:▪Seller must provide new goods to the Buyer at no additional cost or isliable for breach of contracto Buyer bears Risk of Loss:▪Buyer must pay the Contract priceWho Bears Risk?o Agreement controlso Breach▪Breaching party bears any uninsured loss, even if unrelatedo Delivery by Common Carrier▪Risk shifts to Buyer when the Seller has completed its delivery obligations∙Shipment Contract:on time delivery, then Risk of Loss on BuyerFOB [Seller location]∙Destination Contract: Risk of Loss remains with the Seller untilthe goods actually reach their destinationFOB [any other location]o No Common Carrier▪Is Seller a merchant?∙YES:Seller bears risk of loss until the Buyer takes possessionof the goods∙NO:Seller bears the risk of loss until the Seller “tenders” thegoods (i.e. makes them available – lets Buyer knowlocation and method of pick-up)o Contract gives Buyer Right to Return the Goods▪Is Buyer buying for resale or own use?∙RESALE: (“sale or return”)Same rules apply∙OWN USE: (“sale on approval”)Risk of loss remains on the Seller until the Buyer hasaccepted the GoodsRisk of Loss Lease of GoodsLessor bears Risk of Losso EXCEPTION:Finance Lease▪“Hell or High Water” Clause∙Lessee must pay no matter how poorly the goods perform, mustdeal w/ manufacturer to resolveo EXCEPTION: consumer leasesP ERFORMANCEPerformance of Contracts for the Sale of GoodsPerfect Tender Ruleo Seller must deliver perfect goods in the right place at the right time. If Seller fails to make a perfect tender, the Buyer has the Right to Reject the goods Option to Cureo If Seller makes early delivery, then has option of delivering correct goods if done by deadline.o If Seller makes delivery on time, but wrong goods, then only option to cure if Buyer has been flexible in the past and has taken non-conforming goods Installment Sales Contracto Requires or authorizes the Seller to deliver the goods in separate installments ▪Only matters what contract says, not what Seller doeso Right to Reject▪Must be substantial impairment∙Perfect tender Rule does not applyAcceptance of Goodso Implied Acceptance▪Buyer keeps the goods without objection after having the opportunity to inspect∙Mere payment is not acceptance (must have opportunity to inspect)∙Significant lapse in time will be implied acceptanceo Once buyer accepts, can not longer reject▪HOWEVER: Buyer who accepts non-conforming goods can still getdamagesRevocation of Acceptance of the Goodso Once Buyer accepts, the buyer cannot revoke acceptance▪EXCEPTION:∙Buyer can revoke acceptance only if non-conformityo substantially impairs goods valueANDo difficult to discoverBuyer’s Payment Ob ligationo Checks are acceptable, but Seller can insist on cash.▪If Seller insists on cash, the Buyer will have reasonable time to get cash Performance of Common Law ContractsPerformance does not have to be perfect.o Substantial Performance is all that is required. (i.e. no material breach)E XCUSES FOR N ON-PERFORMANCEOther Party’s BreachSale of Goodso If Seller does not make perfect tender, Buyer can reject all the goods and is excused from paying the Contract price▪Buyer can reject, but does not have too.∙Buyer can sue Seller either way for breach of contract.Common Law Contractso Damages are available for any breach of contract, but only a material breach excuses the injured party from having to perform▪No material breach if Substantial performance, but can still get damages∙NOTE: even if material breach, the person in breach can stillrecover in quasi-contract for the reasonable value of the benefitconferredo Divisible Contract▪Payment per unit basis▪Substantial performance measured on per unit basisOther Party’s Anticipatory RepudiationRepudiation by Wordso If Party says not going to perform▪Other party may stop performance and sue for damages (works same asmaterial breach)o Revocation of Repudiation▪If Party says not going to perform, but then changes mind∙Can retract a repudiation as long as other party did not rely upon it Repudiation by Conducto Ex. A agrees to give unique painting to B if B paints house, but A sells painting Later AgreementsRescission (agreement to cancel the contract)o NOTE: cannot rescind after performance by one party complete (no consideration) Modification (agreement substituting a new contract for an existing one)o Modification takes effect immediately not in the futureAccord (agreement to accept a stated performance in the future in satisfaction of an existing duty) and Satisfaction (performance of the accord)o Party can sue either under the accord or the original contract because the accord extinguishes existing obligation only when the accord is satisfied Notion (agreement substituting a new party for an existing party)o All parties (parties to original contract and new party) must agree to thesubstitution, if not then have a delegation of duty▪Substitution discharges original partyLater Unforeseen Event that make Performance impossibleDestruction of something necessary for performance (usually Sellers excuse) o Destruction is a defense if makes performance impossibleo Non-merchant:▪Apply risk of loss rules∙Goods “identified to the contract”o Not tendered: Seller bears the risk of loss, unless goodsare destroyed, then Seller is excused.o Tendered: Buyer bears the risk of loss even if goodsdestroyed∙Fungible Goods [not distinctive & easy to replace]o Not tendered: Seller bears risk of loss, even if goods aredestroyed.Death or Incapacity of a person essential for performanceo Excuse: hired for special skill, or experience (essential to contract)o Not Excuse: when anyone can perform actSupervening Government Regulation or OrderFrustration of Purpose (usually B uyer’s Remedy)o TEST:▪At time of contract Seller knew Buyer’s primary purposeAND▪Later unforeseen event thwarted Buyer’s purposeo Merely being less profitable is not enough for frustration.Failure of an express conditionContract language that does not create an obligation, but limits obligations created by other contract language (STRICT compliance is required)o LANGUAGE:▪“if”▪“so long as”▪“provided”▪“on condition that”▪“unless”▪“when”o Express condition must be complied with or else performance is excused Satisfaction Clauses:o Apply a reasonable person standard (objective standard)▪EXCEPTION:∙contract deals with art or matters of personal taste (subjectivestandard).Conditions (matter of timing)o Precedent: Condition must be fulfilled before obligation (ex. “if”)o Concurrent: Runs with the obligation (ex. “as long as”)o Subsequent: performance comes first, and occurrence of condition cuts off the obligation (ex. “until”)Occurrence of condition may be excused by later action (or inaction) of the person who is protected by the conditiono Failure to Cooperate▪ASK:∙Who is protected?。

Rome I1.Application of law Brussels I2.Jurisdiction and enforcement New York3.Recognition and enforcement of foreign arbitration CISG4.Contract of international sales of goods CMR5.International carriage of goods by road HVR (Hague/Visby Rules ）6.International carriage of goods by shipRome IMember states: EU members Important articles: 2,3,4,5(Details on other pages)Brussels IMember states: EU Members except for Denmark (art. 1.3)Cover civil and commercial matters whatever the nature of the court or tribunal (art 1.1)Choice of court or tribunal:Art. 2 persons domiciled in a Member State, whatever their nationality, be sued in the courts of that Member State.Art. 5 exceptions for art. 2A person In a Member State may be sued in another Member State where, under the contract, the goods were delivered or should have been delivered, in the case of the sales of goods.Art. 23 (for parties not domiciled in a Member State)If the parties one or more is domiciled in a Member State have agreed and had writtendocuments evidencing the agreement that a court of a Member State is to have jurisdiction to settle any disputes…Enforcement of judgments:A judgment given in a Member State can be enforced immediately (not sure here because some formalities are required. Does it count?) in another Member State when it has been declared enforceable there.1.However, such a judgment has to be registered for enforcement first in the UK.2.Art. 38Art. 41 enforceable immediately?On completion of the formalities in art. 53.Regulations above are to solve the IPL issues in international businessWhich law shall be applicable 1.Which court will take the case2.Can a judgment by the court of a country be executed in another country3.IPL issues (international private law)New York ConventionCover the recognition and enforcement of foreign arbitral awards Both are contracting countries.CMR & HVRBecause of the "banana rule", meaning the goods received and delivered should be on exactly the same conditions, the carrier usually takes large risks concerning transportation. The international treaties for contracts of carriage mean to relieve the carriers from heavy liabilities in case of accidents happening during the carriage.The treaties or conventions regarding contracts of carriage are all mandatory laws, unlike CISG. That means they can not be avoided by contracts.Introduction to the reader20 December 201414:52Priority of law:1.Contracts->CISG->national body of lawSales of goods between two parties residing in different countriesa.Contracting countries or the rules of private international law leads to the application of CISGb.Movable goods(?)c.Exceptions referred to art. 2Not B2B a.By auctionb.Ships, vessels, hovercraft, aircraft (big transportation vehicles)c.Financial assetsd.Electricitye.Permissive law-can be avoided by the contract CISG: refer to art. 1National body of law: refer to Rome I Regulations Art. 1 material scope (useless)whenever there is a conflict of application of law for contracts in civil and commercial matters. Means all covered. Art. 2 universal applicationwhether or not a Member State (EU Members)Art. 3 freedom of choicepermissive law; may at any time agree on a law Art. 4 applicable law in the absence of choiceif not such choice in the contract, the governing law shall be the law of the country where the seller habitually resides (sales of goods).*CISG does not cover certain important aspects of international sales, such as Trade terms (for delivery and fixing of price).Jurisdiction and enforcement (Brussels I Regulations)2.As mentioned in the introduction part.CISG: important articles Art. 1 & 2Art. 11 contract can be in any form as long as it can be proven.( oral contract)Art. 18(2) oral offer must be accepted immediatelyA proposal for concluding a contracta.Addressed to one or more specific personsb.Sufficiently definitec.Indicates the intention of the offeror to be bound in case of acceptanced.Art. 14 offer vs. invitationArt. 15 an offer becomes effective when arriving the offeree, before that it can be withdrawn, revocable or irrevocable.Art. 16 define irrevocability -fixed time; reasonably perceived irrevocable &offeree has taken actions If revocable, withdrawal should reached the offeree before acceptance is dispatched.Art. 19 counteroffer(1) a reply containing additions, limitations or other modifications (material) -> rejection & counteroffer(2) if changes are immaterial, and offeror does not, without undue delay, objects to the change -> acceptance (3) material?Art. 30 & 35 seller`s dutyBuyer`s duty & rights Art. 37 claim damagesArt. 38(1) the buyer must examine the goods within as short a period as is practicable in the circumstances Art. 39 give notice to the seller in case of a lack of conformity of the goods.Art. 53 duty: pay the price & take the deliveryRemedies for breach of contract art. 45Rights: art. 46 -52Claim damages: art. 74 -77Contracts of sales20 December 201414:38General conditionsDifferent countries have different approaches regarding the agreement to general conditions, for exampleDutch approach -first shot rule USA approach -last shot ruleGerman approach -rule out, if two sets of general conditions contradict, leave them outDefinition of terms 1.Scope2.Conclusions of contractrmation on offers -Acceptance-Orders confirmation -Executing the contract4.Price can change according to circumstances -Currency-Payment conditions-Major issues:The contract consists of two parts Delivery -Warranty-Ownership, intellectual property -Liability-Litigation or arbitration -A part -specific conditions B part -general conditionsICC model contract20 December 201416:32Cash in advance-Documentary credit, also D/L, L/C, 'letter of credit'-Documentary collection, less safe but much cheaper -Open account, credit insurance should be considered-Payment mechanism -from best to worst (in the respective of exporters)Bill of lading, B/L1.Proof of handing over the goods -Contract of carriage -Document of ownership-Delivery note of reception of goods-( seaway bill has only the first two functions) Principle documents Negotiable form -> order bill of lading Non-negotiable form -> straight B/LThe bill of exchange, B/E (p152)2.Written by exporter, the drawer, to importer for payment of a fixed amount at a specified time Sight draft, payable on sight, or-Usance/time draft, payable at a future time -Categorized asA banker`s acceptance - A trade acceptance -The commercial invoice 3.Insurance documents4.Official certificates and licenses5.Certificate of origin -Certificate of inspection-OrS brings goods to C 1. C issues B/L2.S sends documents to S`s bank (remitting bank), S`s bank checks the documents3.S`s bank sends documents to B`s bank (collecting bank)4.B`s bank checks the documents5.B`s bank sends B/L & documents to B6.Meanwhile, B pays S (D/P)7.If D/A, B accepts B/E from S.The process begins as the Seller fills out a collection instruction.There is a risk that the Buyer forgoes the B/L and does not pay.Documentary collection B asks its bank (issuing bank) for credit1.B`s bank gives information of all necessary documents to S2.If S accepts the credit term, it sends goods to C3. C issues B/L4.S prepares all required documents in the credit terms and sends them to its bank (advising bank)5.S`s bank checks the documents6.If there is no problem, S`s bank sends documents to B`s bank7.B`s bank checks the documents8.B`s bank sends B/L to B9. B takes goods from C with B/L and pays S.10.The order of payment:B -> issuing bank -> advising bankPrinciplesIndependence of the credit from the underlying contract, and-The requirement of strict compliance of the documents with the terms ofcredit-Documentary creditPayments conditions -chapter 620 December 201414:52Who takes care of which part of transportation 1.Where does the delivery take place2.Where does the risk transfer from the seller to the buyer3.Who takes care of which customs clearance4.Is there an insurance obligation5.Five parts of obligationsSet up by ICCObligations of buyers and sellers concerning transport in contracts of salesIncoterms are not law but creatures of contracts. If not explicitly referred to in the contract, Incoterms are not applied to interpretation of terms in legal proceedings when a dispute arises.E -termThe goods are placed at the disposal of the buyer at the seller`s premises F -termsThe buyer is responsible for the cost and risk of the main international carriageC -termThe seller pays for the main international carriage, but does not bear the risks during the carriage D -termThe seller bear transport-related risks and costs up to the delivery point at the agreed destination, which may be in the buyer`s country or even at the buyer`s premises.Implication of IncotermsC andD Terms -the seller must provide the buyer with the transport document or other proof of delivery appropriate to the means of transportation.CIF/CIP -the seller is required to provide the buyer with an insurance document covering risks from the delivery point to the named point*The named place following the term is the place up to which the seller should pay for the carriage. It does not mean delivery point where the risks are transferred.Incoterm -trade terms20 December 201414:5213 in total: 1xE, 3xF, 4xC, 5xDEXW Zhejiang (?)The Buyer does everything.FCA: free carriage (may be multimodal transport)Seller: delivers the goods to the carrier nominated by the buyer at the named place, and clears export customsFCA Marseille: seller loads the goods-FCA Paris: no obligation of unloading the goods for seller -FCA + named placeFAS: free alongside ship (only for sea or inland waterway transport)The delivery and transfer of risks of transport take place when the vehicle reaches the named port Seller clears customsFAS + named port of shipment: FAS Shanghai FOB: free on board FOB Shanghai'Pass the rail' rule for delivery and transfer of risks Seller clears export customsZhejiang -> Shanghai -> Rotterdam -> Munich 1.Marseille -> Paris -> Berlin -> Munich2.Two examples*Usually the seller clears the goods forexport other than EXW, and buyer clears for import except for DDP.**What does it mean by place ofdestination? The final destination, like Munich, or some place close to that and nominated by the buyer, like Berlin?DAF: delivered at frontierDAF + named place (a land place, not a port): DAF BerlinSeller delivers the goods, and pays for this delivery, to the named place, without the obligation of unloading the goods. He clears export customs and import customs before reaching the named place, but does not clear for import at the named place. It is like that the seller takes care of the goods all the way to the frontier of the named place and drops it there without any further responsibility thereafter.DES: delivered ex shipDES + named port of destination: DES RotterdamDelivery takes place when the ship arrives the port of destination. Buyer clears for import and unload the goods.DEQ: delivered ex quay DEQ RotterdamSeller unloads the goods from ship, buyer clears for import.DDU: delivered duty unpaidDDU + named place of destination: DDU MunichSeller has no obligation of clearance for import or unloading the goods. Delivery takes place when the vehicle arrives at named place.DDP: delivered duty paidDDP +named place of destination: DDP MunichSeller does everything except for unloading the goodsCFR: cost and freightCFR + named port of destination: CFR Rotterdam FOB + freightCIF: cost, freight, insurance CIF RotterdamCFR + insurance (obligation of minimum cover)CPT: carriage paid toSeller delivers the goods at the place nominated by him while pays the costs of carriage to another place required by the buyer. Seller clears export customs.CPT + named place of destination: CPT Berlin CIP: carriage and insurance paid to CIP BerlinCPT + insurance*Usually seller has no obligation of unloading the goods at the named place, other than DEQ.FCA <-> FOBCPT <-> CFR CIP <-> CIF*Only under CIF and CIP, the seller need to buy an insurance.Incoterm 200020 December 201418:23Replacement: DAF, DES, DEQ, DDU ->DAT, DAPD terms: DAT, DAP, DDPRules for any mode or modes of transport: -11 terms: 1xE, 3x F, 4xC, 3xDRules for Sea and Inland waterway:-EXW, FCA, CPT, CIP, DAP, DAT, DDPFAS, FOB, CFR, CIFDAT: delivery at terminalSeller unloads the goods at terminal, and the risks are transferred thereafter. Buyer clears import customsDAT BerlinDAP: delivered at placeSeller does not unload the goods from the arriving vehicle. Buyer clears for import.DDPAmendment:FOB, CFR, CIF'pass the rail' rule->'on board'The difference between DAT & DAP is whether seller has to unload the goods.Incoterm 2010 20 December 201418:24Priority of lawInternational treaty/convention -> contract -> national body of law By road -CMR 1.By sea -HVR2.( a new convention -Rotterdam Rules will be applicable in near future)By rail -CIM3.By air -Convention of Montreal4.Inland river -CMNI5.International treaty/convention Applicable conditions 1.Force majeure2.Limitation of liability of the carrier3.Situations where the carrier takes full liabilities4. Major issuesNational body of law: refer to Rome I Art. 5 (1)The place of receipt,a.The place of delivery, orb.The habitual residence of the consignor;c.The law of the country of the habitual residence of the carrier shall apply, if the country is alsoIf not, the law of the country where the place of delivery as agreed is situated shall apply.CMR TermsShipper: either the seller or the buyer who enters into a contract of carriage with the carrier.Carriage of goods by road;a.The place of taking over of the goods and the place designated for delivery are situated in two different countries;b.At least one of the countries above is a contracting country;c.Nationality or residence of the parties are not relevant.d.Art. 1applicationArt. 17"banana rule" & exceptionWhere the claimant/consignor is to blame for the damage of goods or delay, and where the carrier cannot prevent such damage or delay because they are caused by the inherent vice of goods or unavoidable circumstances. -> no liability.Art. 23(3) 8.33 SDR/kg (special drawing rights)Art 29mandatoryif wilful (on purpose) misconduct or equivalent to wilful misconduct -> full liable for lossArt. 31 who should take the case (court or tribunal)31(1) The residence of the defendant; where the goods are taken over or designated for delivery; contracting country31(2) also enforceable in another contracting countryHVRConsignor: just like the shipper Art. X applicationBill of lading; delivery between ports located in two different countries; either country is contracting country: where B/L is issued or where the carriage is from.Due diligence -> seaworthy; proper man, equipment and supply; ...1.Art. III the carrier`s responsibility before and at the beginning of the voyage Full liability (overriding obligation) -> when due diligence required in art. III (1) is not exercised1.Force majeure -> no liability2.(a) limitation of liability ->2 SDR/kg5.Art. IVContracts of carriage20 December 201414:50NeutralityA.The traders do not have to sue in a foreign court. They may agree that the case be heard in a neutral country.ConfidentialityB.Arbitration is private and does not generate publicly available records of decisions.Expense, timing, and finalityC.Generally faster and cheaper. And the arbitral awards are normally final whereas court judgments can usually be appealed to higher nguageD.The arbitral language can be any language.Arbitrator`s expertiseE.The parties could choose experienced arbitrators.EnforcementF.Enforcing arbitral awards may be simpler than enforcing judgment from foreign court.Benefits of international commercial arbitration Cost and delayA.Sometimes the arbitration can be more expensive or dragged on for many years. Procedural safeguardsB.Many procedural devices have potential benefits for both sides, though they are usually considered to slow the process of a case.FinalityC.The arbitral awards are final, that means losing parties cannot make any change after the awards being made.Potential disadvantages Arbitration vs. Litigation21 December 201416:48。