102. Ordinarily, failure to perform a contractual obligation by the time specified in the contract is a nonmaterial breach of the agreement; that is, it permits the aggrieved party to recover damages caused by the breach, but is not so serious (material or total) that the aggrieved party is excued from performing, and that party may not properly regard the contract as terminated. So long as the "late" party tenders performance within a reasonable time, the breach is cured, and if the aggrieved party refused to perform, the "late" party may obtain specific performance. This situation is reversed if "time is of the essence." Where time is of the essence of the contract, late performance is a total breach, and the aggrieved party is excused from performance. Time is of the essence of the contract when the agreement explicity so states. Merely establishing a date for performance is not sufficient to make time of the essence; there must be some additional language (such as "time is of the essence" or "this agreement null and void if performance not tendered upon the date specified," etc.) indicating that timely performance will be critical.
103. Generally, the seller in a land sale transaction need not actually possess marketable title until the time for closing, when he is called upon to convey the property to the buyer. Thus, a defect in title existing at the time of formation but which is discovered afterward and which the seller has a reasonable chance of remedying does not give the buyer any cause for rescission prior to the date set for closing. However, there is a modern trend to grant the purchaser a right of immediate rescission if it appears unlikely that the seller will be able to cure her title problems.
104. Modernly, the bases upon which a defendant may argue with some hope of succeess that his intentional killing was without malice because of factors in mitigation are generally (1) adequate provocation - "heat of passion," and (2) "imperfect" defenses, i.e., where the defendant has acted honestly but unreasonably under circumstances that, had he been acting reasonably, would have provided a complete defense to any criminal homicide charge (e.g., honest but unreasonable belief that deadly force must be used in self-defense). The Model Penal Code test for legal insanity provides that a homicide is exused if, at the time of committing it, as a result of mental disease or defect, the defendant lacked the substantial capacity to either appreciate the criminality (or wrongfulness) of his conduct, or conform his conduct to the requirements of law.
105. Even where there is no actual threat of deadly force against a defendant, if there reasonably appears to be such a threat, and the defendant honestly believes that he must defend himself with deadly force, a resulting homicide is justified, and there is no crime.
106. The best defense to a cause of action in nuisance is to show that it is not a nuisance. If only 1 person in 1,000 is affected by the vapor, the plant is not interfering with a right of the public at large.
107. A minor can affirm his contract for the full amount or a lesser sum.
108. The Fifth Amendment Due Process Clause protects against arbitrary and irrational federal government action. The courts are very deferntial to Congress where there is any possible relation between the law and the national economy.
109. When a fundamental right is infringed, the government has the burden of proof to show that the infringement is necessary to advance a compelling government interest. The Supreme Court has recognized that thereis a fundamental right to live with the members of your own family.
110. Government regulations that discriminate against the content of speech must be necessary to advance a compelling government interest.
111. For impeachment purposes, the FRE permit evidence of the conviction of any felony (or any misdemeanor which discredits honesty or veracity). Thus, only if the prior conviction for vehicular manslaughter was a felony, would it be admissible since this offense does not per se discredity honesty. Also, a witness cannot be impeached before testifying. Finally, past crimes may be used to show anything except disposition to commit a present crime or wrong, thus the evidence could not be used to show propensity for drunkenness.
112. Federal Rule 806 allos the impeachment of a hearsay declarant. Mmmkay.
113. Underthe Federal Rules of Evidence there are no specific privilege provisions. F.R.E. 501 provides that the privilege of a witness shall be governed by the principles of common law as they may be interpreted by the courts. Under the common law, the client has a privilege to refuse to disclose and to prevent other persons from disclosing any confidential communications between herself and her attorney. Communications in the course of preliminary discussion with a view to employing the lawyer are privileged even though the employment is in the long run not accepted by the attorney.
114. The "shelter rule" provides that any successor in interest to a person protected by teh recording act is similarly protected.
115. A donee grantee of property is not protected by the recording act, which operates in favor only of subsequent purchasers. In absence of the recording act, title to the property is determined by the common law, which holds, "first in time, first in right."
116. The recording act does not protect a donee of property. There's an echo in here.
117. Arson is the burning of the dwelling house of another with malice. Any slight burning-type damage to teh structure is sufficient to constitute arson, but mere blackening by smoke or discoloration by heat is not "burning" for arson purposes.
118. At common law, burglary was defined as the trespassor breaking and entering of the dwelling of another, during the nighttime, with the intent to commit a felony therein. Again at common law, "breaking" meant that the defendant created a breach or opening; if the defendant merely took advantage of an opening left by the occupants, such as an unlocked, ajar door or window, there was no "breaking."
119. To recover for defamation, a public figure must demonstrate that a media defendant published a statement with knowledge of its falisty or reckless disregard for its truth or falsity.
120. A unilateral offer is accepted by performance, not a promise to return.
121. A pre-existing duty renders a subsequent promise legal superfluous.
122. No idea.
123. In almost all jurisdictions, a third party beneficiary's rights under the contract do not vest until he either learns of the contract, changes his position in reliance, or brings suit to enforce it.
124. When a government enacts an affirmative action program designed to assist women, racial minorities, aliens, or any other suspect or quasi-suspect class, the best argument to support that program is evidence that the employer involved has engaged in past intentional discrimination against the program beneficiaries.
125. State and local governments may discriminate against aliens when deciding who may exercise rights involving the democratic process and discretionary public policy. As a general rule, state or local government regulations which intentionally discriminate against aliens will be struck down unless necessary to advance a compelling government interest. However, when the government discrimination against aliens involves the right to participate in the processes of government (voting, holding elective office, etc.) or to hold positions where broad public policy was executed or formulated (police officers, elementary and secondary public school teachers, probation officers, etc.) then the discrimination against aliens will be allowed because it is rationally related to a legitimate government interest.
126. A law that applies to named individuals or an easily ascertainable group in a manner that inflicts a punishment without a judicial trial is an unconstitutional bill of attainder.
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