Question:
How would you logically organize the many defenses in a contracts course?
Response:
This is an important questions, with a fairly simple answer. You're going to want to separate the defenses to formation of the contract from the defenses to enforcement of the contract.
Let's assume for a moment that after reading a fact pattern, you've determined that there has been a valid offer, a valid acceptance, and valid consideration on both sides of the contract. It would seem that the required elements (ie, mutual assent) have been satisfied and the contract has been formed. You'll immediately, however, at this point, want to consider whether there are any defenses to prevent formation of the contract. The defenses you will want to consider (ie, the defenses to formation of the contract) are as follows: mutual mistake; unilateral mistake; ambiguity; misrepresentation; illegality; duress; and lack of capacity.
If you've determined that none of the above defenses apply, then the contract has been formed. At that point, if the contract is to be avoided, then a defense within the second group of defenses (ie, defenses to enforcement) will have to apply. These defenses are as follows: Statute of Frauds; unconscionability; impossibility; impracticability; and frustration of purpose.
You should absolutely keep these two groups separate in your mind as you analyze the contract, first analyzing the defenses in group 1, then analyzing the defenses in group 2. I'd be glad to address any of these defenses in detail should there be any questions, and future notes on this blog will be focusing on contractual defenses, in detail.
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Friday, October 28, 2011
Sunday, October 9, 2011
Real Property: Adverse Possession
The idea of adverse possession strikes some law students as a bit odd when first encountering it. The fact that someone should be able to gain title to property without having purchased that property is generally one that seems at odds with how many view the law. Adverse possession, though, simply results from the operation of the statute of limitations for trespass. In other words, the elements, as outlined below, ensure that an owner of property, within the statutory period, takes action to eject a possessor who claims adversely to the owner, because if the owner fails to do so the title vests in the adverse possessor.
The requirements are very strict for title to vest in an adverse possessor. In an essay, you'll want to analyze each one, and on the MBE, pay careful attention to each element, as the answer will often depend upon any one element in particular. Because adverse possession is based on the running of the statute of limitations for trespass, an initial consideration is when the statute begins to run. The statute of limitations begins to run when the true owner of the property can first bring suit. In other words, after the adverse possessor has trespassed upon the property.
The trespass, however, has to meet certain requirements if the statute of limitations is to begin to run, forcing the owner to risk losing title to the property if he fails to bring suit. Those elements are outlined below:
Actual and Exclusive Possession: An adverse possessor will only gain title to land that is actually possessed. Further that possession must be exclusive in the sense that the adverse possessor is not sharing the land with the owner, or with the public. However, note that more than one person can adversely possess property. So, if x and y adversely possess the land owned by z, then, assuming all requirements have been satisfied, x and y can take title (as tenants in common), by adverse possession.
Open and Notorious: Possession is open and notorious when it is the kind of use the owner would make of the land. The idea here is that the adverse possessor's use must put the true owner on notice that a trespass has taken place, so that it's fair to require the owner to bring a suit or risk losing title to the land.
Hostile: This requirement is satisfied if the possessor enters without the owner's permission. Be careful not to concern yourself with whether the adverse possessor believed he owned the property; that consideration is irrelevant. What's important is whether the adverse possessor lacked permission by the true owner to enter the land.
Continuous: The adverse possession must be continuous throughout the statutory period. The requirement here is that the adverse possession is of the type that the true owner of the property would make. Though it has to be continuous, it need not be constant. Also note, and this is heavily tested, that there need not be continuous possession by the same person; an adverse possessor can tack his own possession onto the periods of adverse possession of his predecessors, but privity is required.
A few final points: As discussed above, an initial consideration is the exact moment that the statute of limitations begins to run on a cause of action for trespass. Generally, that moment occurs when the trespass occurs. The analysis changes, however, if the true owner of the property is under some disability to sue when the cause of action first accrued (for example, if the true owner is a minor, or is imprisoned, or has been adjudicated insane). In such a situation, the statute begins to run once that disability is no longer in effect. In addition, the statute of limitations does not begin to run against the holder of a future interest, until that interest becomes possessory. Finally, note that title to government-owned land cannot be acquired by adverse possession.
The requirements are very strict for title to vest in an adverse possessor. In an essay, you'll want to analyze each one, and on the MBE, pay careful attention to each element, as the answer will often depend upon any one element in particular. Because adverse possession is based on the running of the statute of limitations for trespass, an initial consideration is when the statute begins to run. The statute of limitations begins to run when the true owner of the property can first bring suit. In other words, after the adverse possessor has trespassed upon the property.
The trespass, however, has to meet certain requirements if the statute of limitations is to begin to run, forcing the owner to risk losing title to the property if he fails to bring suit. Those elements are outlined below:
Actual and Exclusive Possession: An adverse possessor will only gain title to land that is actually possessed. Further that possession must be exclusive in the sense that the adverse possessor is not sharing the land with the owner, or with the public. However, note that more than one person can adversely possess property. So, if x and y adversely possess the land owned by z, then, assuming all requirements have been satisfied, x and y can take title (as tenants in common), by adverse possession.
Open and Notorious: Possession is open and notorious when it is the kind of use the owner would make of the land. The idea here is that the adverse possessor's use must put the true owner on notice that a trespass has taken place, so that it's fair to require the owner to bring a suit or risk losing title to the land.
Hostile: This requirement is satisfied if the possessor enters without the owner's permission. Be careful not to concern yourself with whether the adverse possessor believed he owned the property; that consideration is irrelevant. What's important is whether the adverse possessor lacked permission by the true owner to enter the land.
Continuous: The adverse possession must be continuous throughout the statutory period. The requirement here is that the adverse possession is of the type that the true owner of the property would make. Though it has to be continuous, it need not be constant. Also note, and this is heavily tested, that there need not be continuous possession by the same person; an adverse possessor can tack his own possession onto the periods of adverse possession of his predecessors, but privity is required.
A few final points: As discussed above, an initial consideration is the exact moment that the statute of limitations begins to run on a cause of action for trespass. Generally, that moment occurs when the trespass occurs. The analysis changes, however, if the true owner of the property is under some disability to sue when the cause of action first accrued (for example, if the true owner is a minor, or is imprisoned, or has been adjudicated insane). In such a situation, the statute begins to run once that disability is no longer in effect. In addition, the statute of limitations does not begin to run against the holder of a future interest, until that interest becomes possessory. Finally, note that title to government-owned land cannot be acquired by adverse possession.
Saturday, October 8, 2011
MBE Subject-Matter Outine
For those intending to soon begin studying for the February MBE exam, a great place to start would be to download, and print out, this outline. Click the link, and then click the "MBE Subject Matter Outline" on the right-hand side of the page. Let it guide you as you study for the exam; as you learn an area in each subject, check it off.
http://www.ncbex.org/multistate-tests/mbe/
http://www.ncbex.org/multistate-tests/mbe/
Monday, October 3, 2011
Criminal Procedure: Miranda Rights
An essential issue when analyzing a question implicating 5th Amendment Miranda rights is a determination as to whether the rights are required. If not required, then the analysis ends there, and defendant will not be able to claim a violation of Miranda in order to keep his admissions and confessions out of court.
Miranda warnings are required once a person is in custody of a government official. Once in custody, Miranda warnings must be given prior to interrogation by the police. The warnings that must be provided include the right to remain silent, that anything said can be used against the speaker in court, the right to the presence of an attorney (this should be distinguished from the 6th Amendment right to counsel); and that if an attorney cannot be afforded, one will be appointed, if desired.
Because custody is required (see above) it's important to determine what exactly constitutes custody. Whether a person is in custody depends on whether the person's freedom of action is denied in a significant way based on an objective standard. Once you've made the determination that an accused is in custody of a government official, you should then move on to determine whether in fact there is an interrogation, requiring Miranda warnings. An interrogation includes any words or conduct by the police that they should know is likely to elicit a response. A common fact pattern on the MBE presents a situation in which an accused spontaneously makes a statement without being actively questioned by the police. Because the statement was not elicited by the police, the statement was not the result of an interrogation, and that statement will not be kept out of court on a basis of lack of Miranda warnings.
Some final points to keep in mind: Miranda rights can be waived, but the burden will be on the prosecution to prove that the waiver was knowing, voluntary, and intelligent. If, on the other hand, an accused indicates that he would, in fact, like to remain silent, the police must honor this request, although the police can later question the accused on an unrelated crime. If the accused indicates that he wishes to speak with counsel, all questions must cease until counsel has been provided. Note this important distinction: If the accused indicates that he wishes to remain silent, the police can re-question him later about an unrelated crime, but if the accused requests counsel, there can be no re-questioning until counsel is provided.
Finally, note that statements obtained in violation of Miranda, though not admissible for the purpose of proving defendant's guilt at trial, may be used to impeach defendant's testimony if he chooses to testify at trial.
Miranda warnings are required once a person is in custody of a government official. Once in custody, Miranda warnings must be given prior to interrogation by the police. The warnings that must be provided include the right to remain silent, that anything said can be used against the speaker in court, the right to the presence of an attorney (this should be distinguished from the 6th Amendment right to counsel); and that if an attorney cannot be afforded, one will be appointed, if desired.
Because custody is required (see above) it's important to determine what exactly constitutes custody. Whether a person is in custody depends on whether the person's freedom of action is denied in a significant way based on an objective standard. Once you've made the determination that an accused is in custody of a government official, you should then move on to determine whether in fact there is an interrogation, requiring Miranda warnings. An interrogation includes any words or conduct by the police that they should know is likely to elicit a response. A common fact pattern on the MBE presents a situation in which an accused spontaneously makes a statement without being actively questioned by the police. Because the statement was not elicited by the police, the statement was not the result of an interrogation, and that statement will not be kept out of court on a basis of lack of Miranda warnings.
Some final points to keep in mind: Miranda rights can be waived, but the burden will be on the prosecution to prove that the waiver was knowing, voluntary, and intelligent. If, on the other hand, an accused indicates that he would, in fact, like to remain silent, the police must honor this request, although the police can later question the accused on an unrelated crime. If the accused indicates that he wishes to speak with counsel, all questions must cease until counsel has been provided. Note this important distinction: If the accused indicates that he wishes to remain silent, the police can re-question him later about an unrelated crime, but if the accused requests counsel, there can be no re-questioning until counsel is provided.
Finally, note that statements obtained in violation of Miranda, though not admissible for the purpose of proving defendant's guilt at trial, may be used to impeach defendant's testimony if he chooses to testify at trial.
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