ADMIN LAW:

- Due process entitles a party to a hearing when: (1) agency action will be based on adjudicative
(as opposed to legislative) facts; (2) the action will adversely affect an individuals property or
liberty interest, and (3) no emergency exists.
- trial-type hearing requires balancing: (1) private interest affected; (2) risk of erroneous
deprivation and (3) govt interest.
- final decisions of admin agencies subject to ALR may NOT be judicially reviewed by writ of cert

at discretion of aggrieved party - when proceedings under ALR are specified in regulatory
statute, they are the exclusive remedy.
- unless otherwise ordered by the court, only admin agency can file an answer
- record upon review must be procured and filed by agency (not Pl)
- court may remand for purposes of taking additional evidence when appears just
- any final decision, order, judgment or decree of the court in an action to review a decision of an
admin agency may be reviewed by the Supreme Court of IL
- agency can determine how/what evidence it will consider but (1) must consider all relevant
matter presented, (2) must include a general statement of basis and purpose in its rulemaking
and (3) in order for rule to be effective, must be published >= 30 days before its effective date
- agency rulemaking requires: (1) impartial fact finder; (2) no ex parte contacts w/r/t case or
issues - APA prohibits fact finder from having contact with any other parties regarding fact in
issue unless there is notice and opportunity for all parties to parties to participate; (3) relevant
material; (4) decision to be based on record only; and (5) record must show each finding,
conclusion or exception.
- APA s.706: scope of review - can set aside if not supported by substantial evidence
- under IL Admin Law Review (ALR), party has 35 days to appeal from notice date (deposited in
US mail or served)
- if municipality is > 500,000 those parties who testify or submit written statements at a zoning
board hearing must be notified of Pls appeal and their right to intervene; if fail to name and
serve necessary parties, 35 day extension to do so before complaint can be dismissed
- if good faith exception, appellant can still be deemed diligent in sending summons even if did
so late
AGENCY AND PARTNERSHIP:
- acts that require unanimous consent to secure partnership approval: submission to arbitration,
assignment for benefit of creditors, confession of judgment, disposition of goodwill of the
business, interference with ordinary partnership business) - otherwise majority vote for acts
within ordinary course
- partners have fiduciary duty of loyalty (common topic)
- agent also owes DOL to principal and damages can include profits earned
- person who received shares of profits presumed a partner, and can bind pship via actual or
apparent auth (apparent presumed unless not in ordinary course and 3P had reason to believe
A lacked auth). Actual auth to enter into ordinary course required maj vote; outside ordinary
course required unanimous consent
- partnership at will: when partner declares dissolution and its effective but this is only for
purposes of winding up; though notwithstanding dissolution partnership may still be bound on
previous obligations. Partnership does not seek to exist at dissolution but rather at wind-up
- a partner who wrongfully disassociates is liable to pship for any damages caused and is not
entitled to wind-up affairs of pship. But if rightfully disassociate, no damages and can participate
in wind-up.
- partners intent to withdraw from an at-will pship causes a dissolution, but partners (except for
wrongfully-disassociating partners) can vote to continue operating. Whether rightfully (give
proper notice) or wrongfully disassociating, disassociated partner still liable for partnership debts

- if undisclosed principal, both undisclosed P + authorized A are liable

- authority: (1) actual (this comes from P + A: auth A reasonably believes to possess based on
communications w/ P) (2 types: express or implied) or (2) apparent (arises from P + 3P) (3)
ratification (as opposed to disaffirmance)
- for agents to exist: (1) parties assent, (2) A acts for Ps benefit, (3) P has right to control A and
A may have auth (actual - express or implied) or apparent (where P holds out A as agent and
3P reasonably relies),
- limiting instructions can accompany auth - they can only limit actual auth (not apparent auth)
- 3P can sue P and A but must elect from whom to collect
- to form agency, need consent and capacity by both parties
- Q of IC/EE depends on whether party has right to control manner and method in which IC/EE
does job but the IC/EE distinction only matters in tort; ordinarily P not liable for torts of IC
- respondeat superior only applies for EE (not IC) - ER vicarious liability if within scope of
employment: (1) of the type auth by ER? (2) occurred within time and space auth by ER? minor
detour = still liable, substantial frolic = not liable. (3) was negligent conduct motivated in part by
desire to serve ER?
- once EE abandons ER task, must have proof of return
- to validly terminate agency auth, P must contact 3P and provide public notice (and collect any
writing to the contrary that can be used by terminated agent)
- generally death + incompetency of P terminates all auth or A; irrelevant that A or 3P unaware
of death
- in corp law, there is an implied warranty than an officer is acting with auth
- P liable to 3P even if no actual auth and apparent auth had limiting instruction unknown to 3P;
A liable to P here as well
- Bd can only confer auth via Bd meeting or unanimous written consent where auth is needed though corp can be estopped from denying Pres had auth
- in LP-ship, LPs not personally liable but GP is (though LPs J&S liable for contracts of co-LPs)
- LP-ship does not dissolve if GP leaves so long as LPs agree to an appointment within 90 days;
but even if dissolved, GP still liable.
- indemnification from 3P does not release a primary party from obligation to pay
- IL p-ship law: assoc of 2+ ppl to carry on as co-owners of a business for profit; partners are
J&S liable but judgment only binding on p-ship if a P is personally served. Need no formal agmt
- can be implied from conduct. Generally acts of Ps bind pship - but can seek indemnification
from co-partners.
- pship tort liability if arose w/in scope of pship business
- under RUPA, pship at will dissolves upon a partners withdrawal notification (RUPA calls this a
dissociation), but dissolution is not the end (wind-up is). Until wind-up, still liable for current
business but cannot take on new business
- derivative claim: where LP/SH claim is derived from loss suffered by pship/corp - so here LPs
can bring action against GP because GP wont sue itself
- GPship is formed by default be/c to form LPship must file cert with SOS
- under IL pship law, receipt of a share of profits (esp if share in losses) creates pship
presumption - but not if receiving debt repayment for loan made to pship
- at wind-up, if no pship liabilities, Ps get back their own contributions and split rest according to

pship agmt
- ULPA no longer makes LPs liable personally if participate in mgmt or control of pship
- pship must indemnify Ps for expenses in ordinary course; absent agmt to contrary, Ps entitled
to remuneration except for wind-up
- act act only binds Pship if within pship business - need unanimous consent to engage in
business other than that contemplated by Pship agmt
- GPs have rights of partners in a regular pship whereas LPs lack mgmt rights unless in LPA
(under ULPA, even of LPs engage in mgmt, have no personal liab for pship obligations)
- LPs must maintain records
- transferee may become LP only if (1) pship grants that auth or (2) all Ps consent
- transferee does not therefore have pship rights to inspect books & records (absent another
agreement)
- Principal remedy when Agent breaches agency K: damages only
- Duty of care breach to partnership: grossly negligent or reckless conduct; intentional
misconduct; knowing violation of the law
- pship duty to furnish items relevant to business and financial condition; LPs can inspect tax
returns at any time. ULPA requires GP to provide relevant info even if not going to financial
condition or business, so long as reasonable
- LPs not liable as GP for removing GP be/c (1) not mgmt or control and (2) under ULPA LPs not
personally liable; under ULPA (which controls today over RULPA), LPs not personally liable for
pship obligations beyond their contribution even if participate in mgmt/control
- specific performance only available when remedy at law ($ damages) is inadequate - like for
real estate K COAs
- a pship becomes an LLP on date filed w/ SOS or date specified in statement of qualification
from SOS, whichever is later
- partner has no interest in pship property so creditor cant attach - creditor should seek
judgment and a charging attachment order against financial/transferable interest
- transferable interest in pship is only to P&L and distributions (economic rights); transferee
cannot force dissolution unless (1) term specified has expired or (2) partnership is at will
- to form limited pship, must file w/ SOS - else general pship by default. In LPship, LPs are not
personally liable whereas GPs are J&S liable for pship
COMMERCIAL PAPER:
- generally a maker/drawer must pay to any holders that present for pmt (generally means must
have possession), and generally a holder has right to enforce note but is subject to any K
defense maker might have (unless holder is HDC, in which case only real defenses)
- receipt by agent is treated as receipt by principal, conferring possession
- when an obligor gives an instrument (e.g., check) for pmt on an obligation, obligation is
suspended to same extent as if cash were given. If instrument is lost or stolen, the original
obligation is permanently suspended, and the obligees rights are limited to enforcement on the
instrument. So where check is stolen, action for conversion lies.
- if person entitled to enforce an instrument cannot produce it be/c stolen, can nevertheless
maintain action on it as if it were in his possession if can prove (1) ownership (2) terms and (3)
facts of theft

- NI: instrument must be (1) signed by maker (note) or drawer (draft) and (2) be unconditional
(3) promise to pay (note) or order to pay (draft) (4) fixed amount (w/w/o interest; written controls
over numerical amt) (5) to bearer or to order (lack of payee=bearer note) (6) on demand or at a
definite time (if undated, payable on demand), and (7) without any undertaking or instruction not
authorized by law
- maker of a note undertakes to pay unless has defense
- drawee has no liability unless/until signs/accepts draft
- indorser liability: liable if note presented for pmt, dishonored and notice of dishonor is given.
Indorser has K and warranty liab.
- no one liable on an instrument unless it contains her signature or that of her agent
- when draft is negotiated w/ special indorsement, need special indorsers signature to further
negotiate
- to be HDC, holder (one to whom instrument was properly negotiated) must take for value
(includes satisfaction of antecedent debt) in good faith (subjective + objective) w/o notice of any
defenses (e.g., w/o notice instrument is overdue, has been dishonored, contains an unauth
signature or has been altered, that there is a claim or that one party has a defense or claim).
- HDC: if negotiable instrument (NI) is negotiated to an HDC, he takes free of personal defenses
(includes all K defenses; e.g., breach of K, failure of consideration, fraud in inducement) and is
only subject to real defenses (e.g., insanity, duress, fraud in execution like forgery); can become
HDC via shelter rule (transferee acquires whatever rights his transferor had)
- forgery is a real defense thats effective even as against HDC unless HDC caused it
- HDC > perfected SI in a NI (can happen automatically on attachment if new value given w/in
20 days. HDC > payee w/ valid ownership claim
- negotiating order paper: requires delivery + payee signature, though indorsement of this w/o
naming new payee turns this into bearer paper
- negotiating bearer paper: requires delivery only
- alteration is a real defense but cant be raised if own negligence contributed to it
- pmt on a NI to one not entitled to enforce does not discharge the maker from pmt; rights of copayee in this instance: (1) free to sue on underlying obligation, (2) conversion [UCC 3-420
applies conversion law to NIs but cannot bring a claim unless payee received delivery directly or
through a co-payee/agent, or (3) breach of transfer warranty (when transfer an instrument for
value, warrant entitled to enforce it)
- certified check discharges obligation like cash
- if a transferor transfers a check w/o indorsing it, still makes transfer warranties but only to
immediate transferee
- finality of pmt rule (generally when maker pays out on a note, pmt is final and maker cannot
recover money paid out on the instrument) but there is an exception for breach of transfer
warranty
- if a NI is dishonored (bad check), underlying obligation is not discharged
- indorser liability only extends to one entitled to enforce the instrument
- discharge on one co-maker by a person entitled to enforce an instrument does not affect the
right of contribution
- holder may hold makers and any indorsers liable, including accommodation parties (like comaker, J&S liable)

- extension of note due date discharges an accommodation party to the extent of loss caused by
the extension
- if a person entitled to enforce on a NI impairs collateral securing the instrument and the
accommodation party had right of recourse on the collateral, accommodation party is
discharged to the extent of the impairment if person entitled to enforce knew of the
accommodation party (deemed to know if signature is anomalous - made by someone other
than holder)
- intended 3P beneficiaries can also sue on NI
- forgery ineffective as the name signed and effective only as the signature of the forger
(exceptions (1) for one who fails to exercise ordinary care and this substantially contributes to
forgery - like leaving blanks on NI; and (2) where ER entrusts EE, who then makes a fraudulent
indorsement, then fraudulent endorsement is effective unless payor transferee failed to exercise
ordinary care). So where signature is not an indorsement of payee, transferee is not a holder
- forgery breaks chain of title and right to possess is still with payee = no subsequent
possessors can qualify as holders
- general rule: pmt on NI is final if made to HDC or someone who changes position in reliance
on the pmt (anyone presenting a check for pmt warrants entitled to enforce); exception: ordinary
care + good faith + for value
- discharge by a former indorser is effective as to all subsequent holders, incl HDCs if have
notice of the discharge
- if maker tenders pmt, discharges him from interest liability thereafter should payee refuse to
accept pmt
- checks are due within 90 days of their date of issue
- if the owner of goods entrusts them to a merchant, merchant has power to transfer all the
rights of the entruster to a BIOC of the merchants business
- Accord & Satisfaction requires: (1) claim/obligation is disputed or unliquidated, (2) person
against whom the claim is asserted in good faith tenders an instrument that (3) conspicuously
states that it is tendered in full pmt of the obligation and (4) claimant obtains pmt
CONFLICTS OF LAWS:
- Vested Rights Approach (R1d): contractual rights of performance governed by law of place of
performance, and formation issues governed by law of place of formation.
- Most Significant Relationship Approach (R2d): contacts + policy.
Where no valid express provision that governs, IL looks to following specific contacts: (1)
place of contracting, (2) place of negotiation, (3) place of performance, (4) location of
subject matter of K, (5) domicile, residence, nationality, place of incorp and place of
business of the parties
- Interest Analysis Approach: if forum determines it has legitimate interest in applying its law, it
will (here there is a policy override) - true vs false conflicts
- Although a forum may apply a foreign substantive law it will apply its own procedural law (incl
SOL) unless borrowing statute according to which elect shorted of forum or foreign SOL
- default judgments are still regarded as on the merits for full faith and credit (FFC) purposes
- well-settled that the underlying COA or relief granted by a rendering state being contrary to
established public policy of recognizing state is not a defense to FFC

- generally a marriage that is valid where celebrated is valid everywhere except if it violates
prohibitory (as opposed to directory) rule of the domicile to which either/both parties return
immediately
- also under R2d a marriage should not be recognized even if valid where celebrated if it
violates strong public policy of the state with the most significant relationship to the spouses, incl
state to which they move
CONSTITUTIONAL LAW:
- N/A to private action unless state action: (1) when private actor is performing a traditional and
exclusive state function (running a school is not a traditional public function) or (2) state is
significantly involved in private action (e.g., involves use of courts or private parties entwined w/
govt entities but not state regulation of an industry, licensing or providing essential svcs like fire
or police)
- 14th Am DPC requires procedural and substantive due process as to any deprivation of a
persons life, liberty or property interest deprivation
- if govt rule affects a fundamental right (travel, privacy, voting, 1st Am), DPC requires that the
rule be necessary to promote a compelling interest - otherwise must be rationally related to a
legitimate govt interest
- 14th Am also provides EPC: if govt action concerns (1) fundamental right or suspect
clarification, upheld only if necessary to compelling govt interest (strict scrutiny) (2) quasisuspect, upheld if substantially related to important govt interest (intermediate scrutiny), and (3)
all else upheld if rationally related to legitimate govt interest (challenger burden to prove not =
rational basis)
- EPC prohibits states from unreasonably discriminating against persons: sex discrim subject to
intermediate scrutiny (exceedingly persuasive explanation is needed, not generalizations about
M vs. F) but if neutral, rational basis; SCOTUS has held that separate but equal is not valid
under EPC as race-based classification.
- a property right in continued employment can exist via K or clear policy that can only be
terminated for cause, in which case cant terminate w/o due process (1.notice, 2.pre-termination
opportunity to respond, and 3.evidentiary hearing to test just cause though #3 can be after
termination). Expectancy in continued employment does not count.
- 1st Am speech: govt cannot regulate or curtail speech content unless prior restraint or
regulation is necessary to serve a compelling govt interest but can restrict conduct aspects: (1)
public forum: govt can impose content-neutral time/place/manner restrictions that are narrowlytailored to serve a significant govt interest; (2) nonpublic forum: govt can do same if viewpointneutral and reasonably-related to a legitimate govt purpose
- exceptions for speech restrictions: speech that incites imminent lawless action/fighting words
is unprotected
- also 1st Am speech regulation will be invalid if overbroad (complete ban on all leafleting is
invalid)
- school property is not traditional public forum (e.g., govt cant restrict speech in a nonpublic
forum like principals office) but if school throws open facilities for public use when the rooms are
no longer used for school purposes, they become designated public forums subject to 3-pt test
(content-neutral? narrowly tailored? leave open alternative avenues of communication?)

- Dormant Commerce Clause (DCC) - even local laws unconstitutional if place excessive burden
on interstate commerce. If discriminates against interstate commerce, clearly violates unless
necessary to achieve compelling govt interest; if does not facially discriminate, violates if
burdens > benefits
- DPC requires laws to be reasonable and not arbitrary; if law involves economic regulation and
does not involve a fundamental right, SCOTUS tests reasonableness via rational basis
(challenger burden to prove not rationally related to a legitimate state interest)
- 1st Am applies to states via 14th DPC
- freedom of speech includes freedom to refrain from speaking (SCOTUS has held that govt
does not have a compelling interest in forcing students to take pledge of allegiance)
- Establishment clause: govt cant pass any law establishing religion or prohibiting free exercise
thereof. A law or govt action preferring one religion over another is invalid unless narrowly
tailored to promote a compelling interest. If no preference, upheld only if (1) secular purpose (2)
primary effect that neither advances nor inhibits religion and (3) does not produce excessive
govt entanglement. However note a neutral law of general applicability will be upheld if rational
- but a law that targets religious services is not a law of general applicability
- SCOTUS has upheld govt display of religious items @ Christmastime as secular
- 5th Am prohibits govt from taking private property for public use w/o just comp unless
emergency; applies locally via 14th. SCOTUS found a taking where an ordinance required apt
owners to allow cable companies to install cables.
- taking only proper if for public purpose and this is broad - taking private property to private
developer qualified
- CL: Pl can sue for defamation if Df made false statement - but if public figure must show
malice too (made w/ knowledge false or reckless disregard as to truth/falsity). Privilege to
private info reasonable person would object to being published if the info concerns legitimate
public interest and made w/o malice.
- trespass: intentional physical invasion of Pls real property
CONTRACTS AND SALES:
- K formation requires [offer + acceptance (mutual assent)] + consid + no defenses
- offer has definite terms and can be accepted or rejected until terminated
- if by its terms offer can only be accepted by performance = offer to enter into unilateral K
- death terminates an offer (even if offeree did not know of offeror death) but offeror death does
not terminate offer if offeror made a legally enforceable promise not to revoke (i.e., performance
began on an option or unilateral K)
- consideration = bargained-for exchange, which under maj rule must constitute a legal
detriment to promisee (in addition to legal benefit); where promise follows detriment there is no
consideration be/c did not induce promisee to act but exceptions (i.e., consideration
substitutes): (1) material benefit theory of consid whereby promise can be enforced where
based on material benefit previously conferred and promisee did not intent to confer the benefit
as a gift and (2) promissory estoppel / detrimental reliance where party relies to its detriment
and necessary to avoid injustice (requires 1. promisor should have expected promisee to
change position in reliance on promise and 2. promisee did change position to its detriment)
- CL pre-existing duty rule: K modification requires new consideration - but UCC2 does not

follow such that K mods made in good faith are binding w/o consid but extortions made in bad
faith are enforceable
- commercial impracticability does not excuse performance
- remedies: expectation damages + incidental [+ possibly consequential, provided Pl reasonably
tried to mitigate]. incidentals + [ K price - resale] - expenses saved (in virtue of breach) loss avoided (by mitigating)
- quasi-K/restitution damages avail when benefits bestowed/party performed but K failed - in
amount of reasonable value conferred
- all damages must have been (1) reasonably foreseeable (which means reasonable person in
position of breaching party would have known at time of K that damages were likely to occur as
a result of the breach) and (2) ascertainable w/ reasonable certainty (and courts are reluctant to
award lost profits to new business be/c too remote, contingent and speculative)
- UCC2 says seller entitled to incidental damages + [K price - mkt val/resale price] but if this is
not sufficient to put seller in as good position as performance, then can recover lost profits and if
goods cannot be resold, action for price is possible
- consequential usually consist of (1) lost profits that (2) could not have been avoided through
reasonable efforts and (3) can be proved w/ reasonable certainty.
- intentional breach can give rise to punitive damages but generally not avail for commercial Ks
(purpose of K damages is to compensate non-breaching pty rather than punish breaching pty)
- under Parol Evidence Rule (PER), if a K is reflected in a fully-integrated writing (merger
clauses evidence this), evidence of earlier agmt not permitted to vary, add or contradict the
terms of the writing; when parties memorialize in writing, other expressions made prior to or
contemporaneous with execution are inadmissible. Written K considered fully-integrated if
intended as such: facial test or actual intent - but even if only partially-integrated (as when there
is a consistent additional term), cts will not admit parol evidence on subjects covered by a
writing
- but note parol evidence is admissible to show subsequent modification
- but PER does not bar extrinsic evidence to show what parties meant if terms are ambiguous;
e.g., in Ks involving mechanical fitness, utility, or merchantability and not involving personal
taste or judgment, satisfaction standard is objective not subjective and evidence bearing on this
is admissible (otherwise promise to perform would be illusory)
- SOF: certain Ks must be in writing (e.g., K that cannot by its terms be performed w/in 1 year;
sale of goods > $500, but exception for specially manufactured goods that are not suitable for
others in ordinary course and seller made substantial beginnings before notice of repudiation
- while SOF requires certain K to be in writing signed by party to be charged, exception where
fully-performed by one side though oral (so performance can take K out of SOF)
- CL governs K for svcs (e.g., employment K): CL mailbox rule: acceptance is effective at
dispatch; though mailbox rule d/n/a if offeree sends rejection then acceptance (whichever
received first is effective) be/c rejection not effective until received whereas acceptance
effective at mailbox (and receipt just means accepting delivery from postal carrier - need not
have opened the mail or know its contents!)
- rejection can be express or via counteroffer but mere inquiry is not a counteroffer
- CL: K enforceable so long as there is substantial performance but parties are free to change
rule and require strict compliance. If breach is substantial, performance is discharged; but if

minor breach (as when obligee gains substantial benefit of bargain despite obligors defective
performance), can get damages
- K to build is governed by CL
- Note although at CL a court will not enforce a condition solely in promisors control be/c
illusory, it will enforce a provision of conditional payment be/c implies duty of good faith (e.g.,
condition of obtaining loan not satisfied on account of borrowers failure to try excuses
counterpartys performance be/c prevented condition from occurring wrongfully/in bad faith).
- even if K unenforceable under UCC2, an unpaid seller who discovers buyer received goods on
credit while insolvent may reclaim them upon demand made within 10 days after receipt of
goods but this reclamation right is cut off by BIOC or other good faith purchasers (GFPs)
- SI > reclamation right of unpaid UCC2 seller
- one w/ perfected SI can repossess - thereby becoming a purchaser since this includes one
who takes by pledge, lien, or other voluntary transaction creating an interest in property
- refusal to purchase = breach of K
- UCC provides that agreement excluding modification clause except in a signed writing is
enforceable although can be waived, which waiver would be binding if other party relied
- UCC perfect tender rule permits K rejection in part or in whole of nonconforming goods (which
can also be a breach of an express warranty). Generally buyer can reject nonconforming goods
within reasonable time after delivery/tender but before acceptance (and seller has cure right);
after acceptance, buyer rejection pwr is terminated and buyer must pay K price less any
damages due to sellers breach unless buyer entitled to K revocation (if defect materially impairs
value to buyer and 1. buyer accepted on reasonable belief that defect would be cured and had
not been or 2. buyer accepted be/c of difficulty discovering defects or be/c of sellers assurance
that goods conformed)
- unlike CL mirror image rule, UCC 2-207 allows an acceptance w/ additional/diff terms to form K
be/w merchants if (1) terms dont materially alter offer, (2) offer was not expressly limited in its
terms and (3) offeror has not objected w/in a reasonable time. 5% change is a material deviation
in quantitative terms unless market practice is otherwise
- 3P beneficiary: non-party and gave no consid but benefits. (a) creditors, (b) donee
beneficiaries, (c) incidental
- generally 3P beneficiary can enforce K directly against a promisor but is subject to same
defenses as promisee, but promisor + original promisee free to modify/terminate K before 3P
beneficiary rights vest. Per R2d (K), rights of intended beneficiaries vest only where 3PB (1)
manifests assent in a manner invited or requested by the parties, (2) sues to enforce or (3)
materially changes position in justifiable reliance
- creditor beneficiary can sue promisee on preexisting/underlying obligation
- UCC2 on express warranties: negation of these is inoperative if unreasonable
- UCC2 on warranty of merchantability (goods sold by merchant to be fit for ordinary purpose):
can be disclaimed but by conspicuous written disclaimer that mentions this warranty
- UCC2 on implied warranty of fitness for a particular purpose: can also be disclaimed by
conspicuous written disclaimer
- UCC2 on implied warranty of title: can be breached unless properly disclaimed
- UCC2 says where owner entrusts property to a merchant who deals in goods of that kind,
merchant has power to transfer all rights in that property to a BIOC (buyer in good faith w/o

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notice of 3P ownership rights), but creditor is not a buyer be/c buying may not include a transfer
in total or partial consideration of a debt - so here creditor would seek recovery of item or its
value via replevin.
- nonoccurrence of a CP entitles obligor to suspend performance but can be waived and if so,
cannot be retracted if consideration was given for waiver or counterparty relied and changed
position
- UCC2: purchaser can only acquire title that his transferor had or had power to transfer - so a
thief is unable to transfer title even if purchaser buying for value in good faith
- UCC9: if debtor defaults on debt secured by nongoods collateral like accounts (right to pmt not
evidenced by an instrument) or chattel paper (writing evidencing monetary obligation and SI in
specific goods), creditor can direct account debtor to make pmt to creditor
- assignee of accounts, chattel paper or general intangibles is also subject to defenses arising
out of K be/w account debtor and assignor
- liquidated damages provisions are invalid if penalties; only enforced if (1) damages were
difficult to ascertain @ time of K and (2) amt agreed was a reasonable forecast of compensatory
damages (cf., penalty)
- mistake defense (mutual or unilateral): (1) must go to a basic assumption, (2) have material
effect on agreed-upon exchange, and (3) party seeking avoidance did not assume risk of
mistake. Must be a mistake rather than uncertainty. Unilateral mistake not a defense unless
other party knew or had reason to know 1st party was mistaken.
- misrep and fraudulent inducement defenses: K voidable by innocent pty that justifiably relied.
Misrep alone need not be fraudulent so long as material. here can avoid K altogether and get
damages
CORPORATIONS AND LLCs:
- Arts trump Bylaws; corp existence begins when Arts are filed w/ SOS/State-designated official
or at whatever later date so specified therein
- DOC to operate corp in a manner reasonably believed to be in best interests w/ at least care
that ordinary prudent person would exercise in like position. E.g., breach DOC if rely only on
interested director, his banker and a brief discussion to approve a merger
- BJR: presumption that director acting in good faith and in best interests of corp/LLC
- no breach of fiduciary DOC just be/c not profitable: need bad faith, lack of reasonable care,
possibly gross negligence, recklessness, intended malfeasance
- an interested director txn will not be set aside for violating DOL if (1) was fair to corp @ time
entered into or (2) approved by maj of disinterested (a) BOD (not less than 2 directors) or (b)
SHs, either way after full disclosure of material facts
- IL permits interested director txn to be approved by only 1 director so long as a maj of
disinterested
- put differently, so long as maj of disinterested directors approve a deal be/c corp & another
director after full disclosure of material facts, wont be set aside if deal was fair
- SHs have statutory right to enter into voting trust agmt, which must be filed w/ corp and may
provide for trustee to vote a certain way - but duration may be a problem (voting trusts only valid
for 10 years)
- only outstanding (i.e., not Treasury shares or repurchased) can be voted

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- only BOD can auth extraordinary expenses

- only BOD has discretion to declare a dividend
- only BOD can terminate officers and if in so doing breaches employment K, may be liable for
damages
- Arts can limit/eliminate director personal liab for money damages to SH/Corp for actions taken
except to extent director received a benefit to which was not entitled, intentionally inflicted harm
on corp or SHs, approved unlawful distributions, or intentionally committed a crime
- Unless Articles of Incorp say otherwise, directors ordinarily have sole discretion to manage the
normal affairs of their corporation; SHs only have a voice w/r/t fundamental corp changes (like
sale of all or substantially all assets (but not sale of )
- generally most amendments to corp articles are fundamental corp changes that require
approval by both directors and SHs, and although generally an amendment can be approved by
affirmative vote of (1) directors and (2) maj of voting shares, an amendment that affects rights of
a particular class must be approved separately by a maj of that class
IL: maj BOD + voting shares reqd for fundamental changes
- sale of all/substantially all can trigger dissenters rights (can vote against and demand pmt for
shares/get bought out)
- no reqt for class voting unless articles so provide
- valid & enforceable SH agmt as to elections among themselves supersedes law that permits
removal of a director w/o cause; generally SHs may remove a director w/ or w/o cause at a
specially-called SH mtg unless Arts provide otherwise
- direct claims: where breach of duty owed directly to that claiming SH (right to a dividend is a
personal rather than a corp right so subject to direct COA; SH has no rht to dividend until
declared by BOD)
- derivative claims: of breach of duty owed to the corp
- to bring deriv suit, most states require Pl to have owned stock when alleged wrong occurred
and must maintain ownership throughout litigation
- most states also require a SH to first demand BOD bring action unless demand would be futile
(futile to make a demand when maj of BOD is accused of wrongdoing)
- when can PCV to hold parent liable for sub: (1) alter ego (sham; same board, shared assets)
or (2) not adequately capitalized. Sloppy administration alone not grounds for PCV
- generally a SH not personally liable for corp/LLC obligations even if itself a corp (hence parent
corp generally not liable for subs) unless PCV
- if tort victims can PCV, can reach SH personal assets
- 10b5 prevents material misstatements or omissions in connection w/ securities and a person
injured can bring private COA for damages. Required to show: (1) Df made untrue statement of
material fact or omitted to state a material fact necessary to make statements made not
misleading, (2) that misstatement/omission was made w/ scienter (intent to deceive), (3)
statements are somehow connected to the purchase or sale of securities by Pl (so continuing
SHs have no 10b5 claim though may have a state law deriv claim against O&D who
disseminated false info and breached fiduciary duty to corp), (4) using some means of interstate
commerce (e.g., stock exchange trading in and of itself, public statements), (5) there was
reliance by Pl, and (6) damages
- corp Pres is agent of corp and has whatever powers granted by corp incl generally entering

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into Ks in ordinary course (governed by agency law - actual [express or implied], apparent or
ratified?); entering into extraordinary requires BOD approval (which is cannot confer if it does
not have the power from SHs). Corp Pres has express actual auth to carry out any act specified
in Arts or Bylaws or approved by BOD
- where Arts are silent, meeting can occur if there is a quorum consisting of maj of directors (i.e.,
so Arts can provide otherwise) - and resos can be passed by maj of quorum, but again BOD
cant grant more auth than it has and selling assets might be a fundamental change requiring
SH approval
IL: fundamental corp change requires (1) Directors to first pass reso and (2) which is
then approved by of shares entitled to vote
- after adopting reso, must send notice to SHs of mtg >= 20 business days before mtg
specifying time, date, place & purpose (but notice defects can be waived)
- generally only SHs of record as of the record date (of notice usually) are allowed to
vote, though there is an irrevocable proxy exception (proxies are irrevocable if say so
and are coupled w/ an interest; i.e. shares were pledged/sold to proxy holder / proxies
are revocable unless say otherwise and coupled w/ interest)
- proxy must be granted by signed writing or authorized electronic writing
- any action taken at an improperly/defectively noticed mtg is voidable by a person who received
improper notice and did not waive defect
- improper proxy can mean quorum was lacking
- unless Arts or bylaws provide otherwise, directors elected by a plurality (relative maj) win
- SH who dissent have appraisal rights and can force corp to purchase shares at fair price: to do
this SHs must (1) file objection before or at SH mtg @ which vote was taken, then (2) make
written demand to corp for fair value of their shares, and if cant agree can sue to have ct
determine value
- when a promoter enters into a K on behalf of a corp to be formed, becomes personally liable
on the Ks unless can show parties had contrary intention
- where promoter signs as agent for nonexistent corp and both parties know corp not yet
formed, cts usually assume that the parties intended to hold the promoter liable - so generally
corp not bound on a pre-existence K by a promoter unless and until adopts it (expressly or by
implication) provided that K expressly says promoter will no longer be liable post-corp formation
and adoption (otherwise promoter liability continues even after adoption)
- at CL corp charitable contributions were viewed w/ suspicion as waste of corp assets but now
allowed if reasonable
- IL: specifically permits them
- a corp may not issue more stock than authorized under its Arts - but BOD can issue options to
purchase shares on whatever terms it chooses as these do not in themselves constitute shares
- corp cant issue preference shares unless Arts so provide
- unless Arts provide otherwise, SHs do not have preemptive rights (rht to buy sufficient new
issues to maintain current voting rights / %), and these d/n/a to employee/officer comp plan
shares
- also (obvious) holders of voting shares w/o preference rights do not have preemptive rights in
shares issued w/ pref yet w/o voting rights
- a corp cannot prevent transfer of shares absent unanimous SH approval; generally a corp can

13

restrict transfer of shares for any reasonable purpose but cant be absolute prohibition
- generally corp must record stock transfers even if prohibition against them invalid
- even if transfer restriction valid, invalid against 3P unless transferee knew about it via legend
or conspicuous notation
- a SH may seek dissolution in some cases (as when directors have been oppressive - includes
barring SH from BD - or corp assets were wasted - incl overpaying officers, including
themselves)
- director elected through cumulative voting [Cumulative voting is a type of voting process that
helps strengthen the ability of minority shareholders to elect a director. This method allows
shareholders to cast all of their votes for a single nominee for the board of directors when
the company has multiple openings on its board. In contrast, in "regular" or "statutory"
voting, shareholders may not give more than one vote per share to any single nominee. For
example, if the election is for four directors and you hold 500 shares (with one vote per
share), under the regular method you could vote a maximum of 500 shares for any one
candidate (giving you 2,000 votes total - 500 votes per each of the four candidates). With
cumulative voting, you could choose to vote all 2,000 votes for one candidate, 1,000 each
to two candidates, or otherwise divide your votes whichever way you wanted.], cannot be

removed if the votes cast against removal would be sufficient to elect him
- although SHs free to act for own benefit, duty to controlling SHs: must refrain from using
control o obtain a special advantage or to cause a corp to take action that unfairly prejudices
minority SHs - includes duty to disclose material info to minority SHs
- SHs generally have rights to inspect corp books & records for a proper purpose (i.e., one
related to their status as SHs). To exercise inspection rights, must give 5 days written notice w/
reason why
CRIM LAW / PROCEDURE:
- All attempt crimes require SI of target crime (so no crime of attempted yet involuntary MS) and
substantial step beyond mere prep
- CL attempt requires (1) intent to commit crime (mens rea) + (2) act in furtherance of that intent
(actus reus)
Attempt mens rea: (i) intent to commit the acts or cause the result constituting the target crime
or (ii) intent necessary for the target crime
Attempt actus reus: (i) MPC: substantial step that strongly corroborates, or
(ii) IL (essentially same as MPC): intent to commit crime and take substantial step
- solicitation = inciting another to commit a crime w/ the SI that the person commit the crime
- if person:
agrees committed conspiracy
attempts committed attempt
commits completed the crime
then solicitation merges with [right hand column], and can only be convicted of the greater crime
- conspiracy: agmt be/w 2+ ppl to pursue an unlawful objective = (1) agmt (2) intent to agree (3)
intent to pursue the unlawful objective (4) overt act in furtherance. Conspirator liable for acts of
a co-conspirator that reasonably result from the conspiracy and are committed in furtherance
thereof
- In most states does not merge but in IL merges
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- IL follows maj view that withdrawal after conspiracy is not a defense, though a
conspirator not going through w/ agmt is absolved of later acts by co-conspirators
- abandonment is a defense to attempt so long as voluntary and complete; generally once Df
took substantial steps in furtherance, abandonment no longer a defense; similarly cannot avoid
liability for completed criminal activity via renunciation
- generally and in IL, factual impossibility not a defense to attempt be/c does not negate SI
- generally and in IL, legal impossibility only arises when Df does or intends to do an act that
would not in fact be criminal (but act of sexual activity w/ a minor is a crime)
- parent has duty to protect child but not vice-versa
- accomplice: one who, with intent that crime be committed, aids, counsels or encourages
another (principal) before, during or after commission of a crime; accessory after the fact is a
person who, knowing another has committed or completed a felony, renders aid to the felon
personally to prevent apprehension, prosecution or conviction
- murder: unlawful killing of another human w/ MAF (which can be satisfied w/ (1) intent to kill (2)
intent to cause great bodily injury (3) reckless indifference of an unjustifiably high risk to human
life (4) intent to commit a felony)
- but if acted w/ adequate provocation that would arouse a sudden & intense passion in the
mind of the ordinary person such as to cause him to lose self-control, reduced to voluntary MS
- IL 1st degree: (1) + (2) + (4) but can be reduced to 2nd degree (voluntary MS) based
on heat of passion killing provided knows conduct is almost certain to cause a particular
harm/result
- Generally & in IL: serious battery considered adequate provocation
- need Df act to be actual (but for) and proximate cause of death - and an intervening act
(unforeseeable) can cut off liability
- robbery: (1) trespassory (2) taking and (3) carrying away (4) of personal property (5) of another
(6) w/ intent to permanently deprive the owner of possession (7) by means of violence or threats
(of serious bodily injury)
- defense of entrapment: requires showing (1) criminal design originated w/ officers and (2) Df
was not predisposed to commit the crime prior to police contact (merely providing opportunity to
commit a crime is not entrapment)
- self-defense as a defense to using deadly force when threat has already subsided generally
ineffective; generally + IL, deadly force can only be used when Df is (1) w/o fault (2) confronted
w/ unlawful force and (3) threatened w/ imminent or great bodily harm
- battery: intentional, unlawful application of force to victims person; can be overcome via
defense of 3P (can use deadly physical force if 3P is in immediate danger of unlawful deadly
attack)
- warrantless search & seizure exceptions: (1) search incident to arrest (SITA): can search
person and if arrested in a car, can search entire passenger compartment incl glove
compartment and any containers found in the car if (a) arrestee is unsecured and may still gain
access to the cat and (b) police reasonably believe that evidence pertaining to the crime may be
found in the car; (2) automobile exception to warrant: allows search/seizure of anything in car if
police have probable cause to believe that the vehicle contains contraband, fruits,
instrumentalities or evidence of crime; auto exception relates to any vehicle moving or
temporarily stopped and can extend to any section of the entire vehicle where the items for

15

which there is PC to search may reasonably be found; (3) warrantless inventory search but
cannot be pretext to investigate for evidence of a crime; (4) plain view (once trunk legitimately
opened; or if officer is lawfully in a place and sees in plain view items that he has immediate
probable cause to believe are contraband, evidence, instrumentalities or fruits of a crime; also
auto exception makes plain view even broader to cover officer having PC that car contains
seizable items)
- 4th Am applies to states via 14th DPC: to be valid, a search or seizure must be reasonable.
Arrest = seizure and for this to be reasonable need reasonable cause to believe that a felony
had been committed and that seized person had committed the felony. Where items are highly
suspicious and warrant further investigation, they will not necessarily provide reasonable cause
for arrest. But 4th only applies to state action - prevents unreasonable searches & seizures;
generally must be pursuant to a warrant or at least based on PC. However police can make
investigatory stop w/o warrant and w/o PC if have reasonable suspicion based on articulable
facts of criminal activity.
- only need warrant to arrest inside home, otherwise can arrest elsewhere if PC committed
felony
- police can stop car on belief committed traffic violation and may arrest for that violation if state
law so provides - does not matter that the police motive for the stop was to investigate
something other than the traffic violation (mere pretext is OK!)
- 4th Am search & seizure reasonableness reqt usually means that evidence will be found in
place searched but exceptions include in plain view
- to claim evidence was seized in an unconstitutional manner, must have standing, which
requires showing had a reasonable expectation of privacy that was violated (only applies in own
home or if one is an overnight guest); if give evidence to someone else, have no expectation of
privacy in it as against the state; also if landlord seizes, no constitutional claim
- 5th Am applicable to states via 14th DPC guarantees freedom against compelled selfincrimination - need to inform detainees of rights via Miranda Warnings before an investigation,
and get a valid waiver otherwise. But Miranda only required before custodial interrogation and
not if questioned on street.
- motion to suppress evidence: if govt conducts warrantless search that is not w/in one of the
recognized exceptions, any evidence found will be suppressed under exclusionary rule.
- per SCOTUS exclusionary rule, evidence obtained in violation of 4th/5th/6th rhts as applied via
14th DPC cannot generally be used by state in criminal trials
- also via fruit of poisonous tree, evidence derived from excluded evidence will also be
suppressed
- SCOTUS has said that if police obtain an unwarned confession from a suspect, warn later to
try to cure Miranda defect, confessions obtained during both interrogations should be
suppressed - unless the 2 questioning sessions do not appear to be part of a cure scheme (in
which case might be able to fix defect)
- 6th right to counsel belongs to detainee not the attny so denying lawyer access to client is not
a violation
- but IL DPC says that if lawyer arrives at police station claiming to represent detainee,
police must treat lawyer as detainees lawyer unless detainee states otherwise and must
inform detainee of lawyers presence, else DPC violation

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- generally under 6th no right to have attny present at pre-charge investigatory lineup
- lineup can violate DPC rights if unnecessarily suggestive and there is a substantial likelihood
of misidentification
- IL (as opposed to Feds) attaches right to counsel at a lineup as soon as adversary
proceedings have begun
- if suspect clearly & unambiguously requests counsel, all questioning must stop until suspect
meets w/ attny; police however have no duty to seek clarification of whether request is
unambiguous
- attempted armed robbery: prosecution must establish beyond reasonable doubt (BRD) that Df
had SI to commit robbery and took substantial step to complete the crime (MPC/IL = beyond
mere prep; cf traditional approach: proximity test = dangerously close to completing the crime)
- larceny by false pretenses: (1) obtaining title (2) to property of another (3) by a knowing (belief
to the contrary, even if unreasonable, is not enough) or in some states, intentional false
statement of past or existing fact (4) w/ intent to defraud another. Title must pass, otherwise
larceny by trick.
- knowing element can be proved by showing Df had notice of a high probability of falsity +
deliberate decision to avoid learning the truth, but commercial puffing does not count
- intent to defraud can be proven by showing Df intended victim to rely on the misrep
- progression of legal standards of proof: (1) reasonable suspicion, (2) reasonable to believe, (3)
probable cause, (4) substantial evidence, (5) preponderance of evidence, (6) CCE, (7) BRD
EQUITY:
- equitable remedies: (1) specific performance - but equitable defense of laches (when pty
knowingly delays in enforcing rights and the delay prejudices other pty), (2) rescission (reverses
K as if it never happened and restores parties to previous positions), (3) constructive trust
(imposed by cts to prevent unjust enrichment when a wrongdoer has gained title to property via
misrep), (4) equitable lien (equitable charge on property imposed to prevent unjust enrichment,
(5) TRO these are discretionary and granted on basis of fairness
- best way to recover from judgment proof Df: equitable lien (on which can foreclose like other
liens) + deficiency judgment; cf. constructive trust whereby property is in trust so no deficiency
judgment avail though not subject to trustee/Dfs creditors. Anyway usually using constructive
trust be/c Df insolvent so a deficiency judgment would not help anyway.
- laches period cannot exceed SOL on the underlying claim at law (damages)
- unclean hands: ct in equity will not act if pty seeking relief has acted unfairly in txn at hand (not
an unrelated txn)
- Pl seeking specific performance (SP - forced to perform obligations under K) must prove: (1) K
exists, (2) all contractual conditions were fulfilled, (3) legal remedy (damages) inadequate (e.g.
Df is insolvent), (4) enforcement is feasible and (5) no defenses available. Most states also
require bond posting to cover enjoined ptys damages in case improvidently granted
but bond posting reqt directory in IL
- usually specific performance not avail in K for sale of goods be/c $ damages should suffice unless goods are unique and in short supply
- SP can only be granted after trial on the merits - not as prelim relief, but can seek preliminary
injunction to prevent injury before a trial can be help and to preserve status quo before trial on

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merits
- For prelim injunction must show (1) likelihood of prevailing on merits (which requires proving
up that 1. legal remedy inadequate 2. protectable rht about to be infringed 3. enforcement is
feasible 4. hardships balance in movants favor and 5. no defenses avail) and (2) will otherwise
suffer irreparable injury. Sometimes granted w/o notice to other party (ex parte = TRO)
- in IL and generally, if prelim injunction improvidently granted, restrained pty has right to
recover damages either by suing on the bond (limited to amt of bond) or by suing for
damages off the bond (full damages can be recovered).
- Although most states permit/award damages to victims in contempt proceedings, IL
does not since contempt is be/c contemptor & court; IL requires injured pty to bring
separate damages action
- in determining whether irreparable injury likely to result, ct will look to whether $ damages can
make Pl whole, which means looking to whether they are speculative, in which case legal
remedy would be considered inadequate be/c damages may not be granted after all (since must
have been foreseeable)
- loss of exclusive use of customer list counts as irrep harm; customer list is arguably a trade
secret and covenant to keep confidential always specifically enforceable be/c legal remedy
considered inadequate due to difficulty in computing damages and irrep harm to Pl
- in land K, damages are inadequate. Where seller conveys land to buyer w/o obtaining
mortgage to secure price, equity implies lien in favor of seller called grantors lien. If buyer
defaults, lien can be foreclosed against property to satisfy purchase price.
- TRO: emergency order; interlocutory injunction imposed to preserve status quo. Requesting
party must make strong showing of why notice to non-moving party should not be granted (incl.
inability to find Df or probability will destroy evidence)
- whereas TRO is ex parte, prelim injunction can only be granted after hearing on notice to Df
- in addition to being challenged for violating 1st Am rhts, TRO may lack ground and even if
proper should not necessarily be granted ex parte
- as a general rule, pty who has been enjoined must obey injunction until dissolved (or modified)
even if erroneously granted or unconstitutional. Proper recourse is to seek expedited appeal
otherwise ct may enforce via contempt pwr whereby can impose civil as well as criminal
penalties on recalcitrant party (punishable by fines and imprisonment), If charges are criminal,
Df entitled to all protections afforded to other criminal Dfs incl right to proof of guilt BRD (rather
than lower CCE or preponderance) and jury trial if appropriate (if face imprisonment >= 6 mos).
If contempt is civil, no such rights exist.
- contempt is an offense against the court so defenses going to merits or validity of the
underlying injunction are irrelevant (only defenses to contempt are that 1. ct acted w/o jx and 2.
person charged lacked proper notice)
- TRO notice need not be formal - requesting pty can call Df to advise of the TRO
- Whether contempt charge is criminal or civil depends on goal of ct (and purpose of proceeding
is what matters - label of civil contempt proceeding is not outcome-determinative): if to punish,
criminal; if to coerce compliance, civil. Where fine could not be lessened by Df via compliance,
punishment is criminal.
- unless LD clause clearly makes it nonbreaching partys only remedy, courts typically treat it
only as an alternative remedy - not necessarily rendering the remedy at law adequate

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- ordinary damages should be adequate provided delay does not cause further damages that
cannot be adequately assessed
- courts wont grant specific performance for a svcs K (be/c tantamount to slavery) - even if all
elements of specific performance (SP) are met
IL will grant SP on non-compete if covenant (1) serves legit interest of ER, (2) does not
impose undue hardship on EE, and (3) is not injurious to public
- constructive trust imposed when (1) Df has title, (2) retention will unjustly enrich him (unjust
enrichment element met if no consid was given) and (3) remedy at law inadequate. No reqt that
Df/trustee be the wrongdoer; trust can be imposed not only on property in hands of wrongdoer
but also on property traceable to ill-gotten property in hands of 3P, but note commingling funds
complicates tracing
- constructive trust not limited to the exact property that was misappropriated (can trace
proceeds)
- constructive trust also effective even if mistaken about true value of property stolen
- seller of goods pursuant to fraud can recover the goods from a donee of defrauder (donee
does not take for value); defrauded seller of goods may not recover them from a bona fide
purchaser (BFP) since purchased w/o notice of fraud and this cut off equitable rights in property.
Similarly, since cant reach ill-gotten property, cant reach proceeds thereof either. But if can
reach ill-gotten property, defrauded seller can impose a lien on property improved w/ proceeds
thereof.
- equitable remedies are cut off by transfer of title to BFP (takes for value and w/o notice);
donees dont count so can get equitable remedies for property wrongfully misapprop and then
gifted to innocent donee
- equitable lien requires (1) misapprop of $ or property, (2) which can be traced to same owne
by Df, (3) retention would result in unjust enrichment and (4) (in some courts) remedy at law
inadequate. When imposed, Pl is treated as having a lien on the property superior to all others
except BFPs (and note that judgment creditors are not BFPs so EL > judgment creditors;
judgment creditor does not cut off equitable rights)
- Equitable lien on a bank acct: unlike CT, EL can be imposed on property improved w/ the
misapprop property; so EL can be imposed even if Df s title was not derived solely from the
misapprop property (e.g. where Df commingled misapprop funds w/ her own or used misapprop
funds to improve property that she already owned).
- PUT DIFF: EL = when title held to prop that can be traced to misapprop funds; can be imposed
on any property; can get deficiency judgment | CT = imposed only on misapprop property; no
deficiency avail
- tracing doctrine: cannot get EL on cash unless misapprop funds can be traced to cash
- rescission usually avail where there was mutual mistake (as to material fact at time of K) but
recall unclean hands a defense
- for service provider when counterparty (CP) repudiates, can have K rescinded and seek
restitution/quasi-K (equitable rescission to restore benefit conferred on breaching party)
- restitution damages = benefits conferred - damages caused by Pl breach (by not performing)
- lis pendens: pending legal action
- K defense of unconscionability measured at time of K not at time of performance = equitable
defense to action for specific performance; too one-sided as w/ K of adhesion or unfair surprise

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- trustee DOL means cannot transact w/ trust in individual capacity, incl borrowing funds. Good
or bad faith are irrelevant. If trustee breaches DOL to trust, liable for (1) losses to the trust, (2)
any profit that would have accrued but for the breach, (3) any profit made by the trustee and (4)
interest
- per Uniform Prudent Investor Act trustee can invest in any type of investment provide she
exercises reasonable care, skill + diligence
- nuisance: when one substantially (offensive, inconvenient or annoying to avg person in
community - not sufficient merely to interfere w/ anothers specialized use, or that offensiveness
arises out of Pls hypersensitivity) and unreasonably (severity of injury must > utility of Df
conduct) interferes with anothers use or enjoyment of property
- estoppel: when (1) person reasonably relies on a statement relating to present facts, (2) it was
intended or foreseeable that statement would be relied upon and (3) person relies to his
detriment
EVIDENCE:
- relevance: has tendency to make any fact of consequence to the action more/less probable
- if relevant, then admissible unless excluded if (1) probative value substantially outweighed by
danger of unfair prejudice, (2) confusion of parties, (3) misleading jury, or (4) considerations of
undue delay or (5) needless presentation of cumulative evidence
- Generally every person is competent to testify as a witness so long as (1) has personal
knowledge and present recollection of matter to which will testify and (2) declares will testify
truthfully. Ct assesses capacity and intelligence - 6 y/o is competent
- Hearsay: out of court statement offered for truth of matter asserted = inadmissible unless
exceptions apply: (1) excited utterance (made shortly after event causing stress of excitement);
(2) former testimony (former testimony of now-unavail witness given under oath at another
hearing is admissible in a subsequent trial if there is sufficient similarity of parties and issues so
that opportunity to develop testimony or cross exam at prior hearing was meaningful); (3) thenexisting (not a past) state of mind (statements of memory or belief not admissible); (4)
declaration against interest (requires 1. stmt made against pecuniary/proprietary/penal interest
when made, 2. declarant had personal knowledge of the facts, 3. declarant must have been
aware that statement against his interest, 4. declarant must be unavail as a witness; (5)
refreshed recollection (when witness uses a doc to refresh recollection; in these cases the
adverse party can then introduce that writing into evidence) (6) business records (writing/record
made in memo of record of any act, txn, occurrence or event is admissible in evidence as proof
thereof if made in regular course and authenticated by testimony of custodian or other qualified
witness or by a written certification)
IL business records exception does not cover police reports although otherwise comes
within exception (although statements to an officer by persons not under a business duty
to report accurately are not admissible unless w/in another exception)
- when hearsay statement admitted into evidence, party against whom it is offered can impeach
(cast adverse reflection on veracity) credibility of declarant by evidence that would be
admissible had declarant testified as a witness (but only to impeach - not as substantive
evidence for TOMA)
- photos must be authenticated

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- NON-hearsay: (1) not offered for TOMA (e.g., bias) (FRE says this is an exception rather than
non-hearsay) (2) prior ID or a witness prior statement identifying a person after perceiving him
is not hearsay it witness testifies at trial and is subject to cross (3) admission by party-opponent
(this need not be against declarants interest when made; conduct on video qualifies) (3B)
vicarious admission (by one in privity w/ declarant or jointly interested)
IL: (4) prior inconsistent statement if made under oath @ prior criminal proceeding (so
depo statement can come in for TOMA in criminal trial - otherwise in civil trial can only
come in for limited purpose of impeaching credibility)
IL: Dead Mans Act applies to civil cases and says that where a pty sues or defends as
the representative of a person who is deceased or under legal disability, an adverse or
interested pty is not allowed to testify on own behalf to (1) a conversation w/ the
decedent or disabled person or (2) an event that occurred in the presence of the
decedent unless waived (which can occur if someone else testifies to same conversation
on behalf of decedent)
- Put diff: generally prior inconsistent statements are hearsay and cant be offered for TOMA, but
if made under oath or at a prior trial, hearing or other proceeding, or in a depo, then become
admissible nonhearsay
- a person may testify as an expert if has special knowledge, skill, experience, training or
education
- lay witness can testify to for example speed of moving object but cannot opine unless (1)
rationally based on witness perspective, (2) helpful to clear understanding of testimony or to
determination of a fact in issue and (3) not based on technical, scientific or other specialized
knowledge.
- Expert opinion can be based on (1) facts expert knows from own observations (2) facts in
evidence at trial and submitted to expert (3) facts not in evidence that were supplied to the
expert out of ct and which are of a type reasonably relied upon by experts in the field in forming
opinions on the subject - need not be of a type admissible in evidence
- privileges: FRE 501 provides that state law privileges will apply to diversity cases incl clergypenitent re: confidential spiritual communications
- marital privilege: other spouse has privilege not to testify as to a confidential communication
made be/w spouses during marriage - privilege survives marriage and must be made in reliance
on the intimacy of marriage, but does not apply to communication revealed to a 3P
- Evidence of other crimes, wrongs or acts is not admissible to prove character in order to show
person acted in conformity therewith unless exception: (1) habit (where there is sufficient
frequency or predictability), (2) to show bias, (3) MIMIC (FRE 404(b) i.e., Motive, Intent,
Mistake, Identity, or Common scheme or plan); (4) witness can also be impeached by
other witness offering opinion or character/reputation evidence as to witness character for
truthfulness or untruthfulness.
- IL witness can be impeached on cross via inquiry into a specific act or conduct that is
probative of truthfulness but not by extrinsic evidence of bad acts (and even if on cross
witness denies, still cannot introduce extrinsic evidence to refute answer) - so can ask
about lying but cannot introduce extrinsic evidence to show lying
- Character evidence to prove conduct of a person in the litigated event generally not admissible
in a civil case - only admissible when persons character is itself in issue (battery does not put

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character in issue, nor do most violent crimes, so prior conviction of battery would not be
admissible character evidence)
- cannot impeach w/ extrinsic evidence of prior bad acts (but extrinsic evidence of prior
inconsistent statement can be used to impeach)
- while prior conviction not admissible in case-in-chief, admissible to impeach if (1) probative
value > prejudicial effect and (2) w/in 10 years of conviction/release (whichever is later)
- FRE: statements made during plea discussions that do not result in a guilty plea are
inadmissible
- hearsay w/in hearsay (e.g., hospital record w/ notes) = inadmissible unless both are excepted
IL: hospital records do not fall w/in business records exception in criminal cases
- declaration of past bodily condition admissible if made to medical personnel to assist in
diagnosing or treating a condition
FAMILY LAW:
- presumption that child of married woman is marital (legal) child of her husband is rebuttable by
CCE
- IL: although recognizes gestational surrogacy (surrogate not genetically related to
child), does not have law recognizing traditional surrogacy (egg is surrogate's)
- IL Parentage Act: if H consents in writing to artificial insemination of his W, he is the
natural father - but can rebut via (1) K breach, (2) estoppel (would not have agreed
otherwise)
- Gestational Surrogacy Act: considers child conceived to be child of intended parents at birth
- generally legal parent is obligated to support child
- most cts incl IL hold that professional degrees are not distributable nor their values easily
determined but they will compensate supporting spouse via unjust enrichment by awarding
larger pmt/term for spousal support (economic support for spouse whose income dependency
has resulted at least in part from marriage; not punitive) or by awarding reimbursement spousal
support (latter is fixed and not modifiable or terminable; avail even if spouse not otherwise
eligible for spousal support; based on amt of spouses contribution, not value of the license) unless live in a state where degree considered property, in which case would be value and
distributed like all marital property (which is anything appreciated/acquired through marital funds
or labor per IL Marriage and Dissolution Act)
- growing # of cts consider licenses and degrees to be subject to equitable distribution (hence
reimbursement alimony)
- CL marriage (abolished in most states but IL recognizes if valid in issuing state): requires (1)
exchange consents, (2) cohabitate, (3) publicly hold out as living together as H & W (e.g., by
taking a common last name and maintaining joint accounts)
- even if unmarried, if had property division or other agreement while cohabiting, this would be
enforced as a K unless sex was only consid
- Cts are split on whether to recognize CL mariage based on short visits to state where it is
recognized, or not to recognize based on own public policy
- community property marital regime (not in IL, mostly western states): property acquired during
the marriage save gifts and inheritances is owned jointly and divided vs. equitable distribution
regimes (where property brought in by one spouse belongs to that spouse)

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- cts have auth to get equitable distrib of all marital property no matter how title is held
- Generally all property acquired during marriage is marital property, unless acquired through
gift, bequest, devise or descent to one spouse only (e.g., business build by H is itself marital
property) - and even then can become marital property if commingled or jointly improved
- marital prop distribution is final and not subject to modification by the court. Most states: all
increases in value of separate property that is the result of spouses efforts during marriage =
marital property
IL allows marital estate to recover only reimbursement for spouses effort
- factors court will consider for equitable distrib (similar factors for alimony): (1) age, education,
background and earning capacity of both parties; (2) duration of the marriage; (3) std of living
during the marriage; (4) present income of both parties and their employability; (5) source of
funds used to purchase the property; (6) health of the parties; (7) assets & debts of the parties;
(8) needs of each party; (9) each partys contribution as a homemaker; and (10) whether the
distrib is in lieu of or in addition to alimony
- to establish jx over a divorce, one of the parties must be a bona fide resident of the jx where
the action is brought. State may set minimum durational residency requirement (DRR) and
residence may be basis for granting divorce regardless of PJ over other spouse. To be
constitutional under DPC, exercise of PJ over DJ must be (1) statutorily auth + (2A) Df must
have min contacts such that exercise would be fair and reasonable so as not to offend
traditional notions of fair play and substantial justice. (contacts cannot be accidental but rather
purposeful so that Df could reasonably expect to be haled into court), or (2B) specific jx where
statutory COA based on contact w/ state + (3) notice (registered mail provides notice)
- no-fault divorce: one spouse wanting to stay cant block other from leaving marriage
- Generally cts will give FFC to divorce decrees (even ex parte) of cts of sister states if (1) had
proper jx and (2) decree valid in that awarding state. Jx satisfied if one of the spouses domiciled
in the decree-granting state, but must be domiciliary according to that states rules and
presumption is rebuttable (e.g., did not intent to reside permanently)
- state ct only has jx to divide up marital property in its jx
- doctrine of divisible divorce: ex parte divorce decree can only grant divorce but has no effect
on marital property, unless located w/in rendering state; need personal jx over both parties to
divide up marital property/res doctrine prevents ct w/ divorce SMJ from also issuing spousal
support decree (unless also has PJ over parties - but note if ct granted ex parte divorce, can
issue spousal support decree to the that was not subject to PJ)
- annulment legally declares a marriage to have never existed; may be sought when marriage is
voidable (fraud and misrep as to essentials, incl ability or willingness to engage in sex or bear
children; paternity of an unborn child STDs or drug addictions; religious beliefs). Cf void
marriage (bigamy - another live-in spouse), which is a nullity and no subsequent act can ratify it,
though may become voidable if impediment late removed.
- Uniform Child Custody Jx and Enforcement Act (UCCJEA): a state may exercise jx re: custody
if it is the home state of the child at the time the proceedings began or w/in 6 months of the
proceedings (most important DPC test for purposes of jx to grant custody) and a parent still
resides in the jx - but a ct can have temporary emergency jx to protect child
- but a custody order from a ct exercising jx in an ex parte proceeding not necessarily entitled to
FFC if facts suggest parent wrongfully took child

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- for FFC, (1) must have been proper jx, (2) on merits, and (3) final judgment but child support
orders do not meet this be/care modifiable any time- but FFC for Child Support Act grants FFC
over child support order is (a) ct had jx over the matter and parties and (b) parties had
reasonable notice and opportunity to be heard; also Uniform Interstate Family Support Act
prevents another ct from modifying order (can only enforce unless parties no longer reside in
issuing state or agree in writing to non-issuing states jx). Under UIFSA once state w/ proper jx
issues a support order, ct of another state w/ PJ over obligor may enforce it by properly
registering it.
- Federal Parental Kidnapping Prevention Act (PKPA): requires states to enforce custody order
only if rendering state had home state jx. Under UCCJEA custody-issuing state has the
exclusive, continuing jx as long as child, childs parent, person acting as childs parent still lives
in that state or as long as the child has significant connection w/ that state and substantial
evidence relating to the matter is avail.
- in custody disputes, best interests of child (BIOC) prevails (wishes of parents; wishes of child;
relationship between child, parents, siblings and others; childs adjustment to school, home and
community; mental and physical health of all), but ct cannot modify based on childs wishes
unless of sufficient age/maturity to make intelligent choice (> 7 y/o). Stability and predictability
are in BIOC.
- joint custody is not appropriate for hostile parents
- if H not awarded custody, child support obligations may be increased to reflect additional time
in Ws care
- courts favor granting custody to primary caregiver
- courts disfavor splitting siblings
- property division decrees which order cash comp for dividing property that is not easily
divisible are not modifiable - may only be opened for reasons for which any judgment may be
reopened (fraud)
- spousal support, alimony, maintenance only modifiable where substantial change in
circumstances (like ability to pay or recipients need) specifically terminates on remarriage
and a few states treat cohabitation the same way. Change in circumstances can include legal
obligation to new spouse and children but in most states a stepparent relationship does not
create legal support obligations.
IL: cohab on continuous conjugal basis terminates duty to make periodic pmts
- 4 types of alimony (can also be permanent or temporary, as applicable): (1) periodic, (2) lump
sum, (3) rehabilitative, (4) reimbursement (for supporting other spouse while got professional
degree). Alimony not based on fault (so adultery nor history of domestic abuse are relevant but
dissipation/waste of marital assets is considered, like gifts to mistress). Trend today toward less
alimony since most couples both work.
- Marital fault n/a in alimony nor property settlement.
- child support obligations are shared equally by parents and are modifiable or terminable only if
there is a substantial change in circumstances w/r/t the child (if theres a change in childs need
or both parents ability to pay). Ct will consider: (1) parents employment situation, (2) growth of
the child, (3) inflation, (4) income of each parent (but obligor's self-induced reduction cant be
basis for child support reduction unless done in good faith), (5) whether either parent is retired
and (6) whether either parent has a disabling illness. Most states require substantial time lapse

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(1-2 yrs) before will modify child support

IL 2 years.
- Child support obligations terminate when (1) minor reaches 18, (2) upon minors emancipation
or (3) if there is a termination of parental rights (but does not terminate w/ parental death estate still liable). Educational support for children > 18 that are employable can be made
contingent on reasonable parental requests.f
- Child support depends on monetary needs of children through ct considers spouse ability to
pay; States dictate formulas based on # of children, their ages, special needs. Not retroactively
modifiable.
- while ct cannot order posthumous support, mothers estate liable for back due child support
- generally consent of both biological parents required for adoption but if unmarried, fathers
consent may not be necessary - depends on how active father was in rearing child
- adoption creates new and permanent legal relationship between child and adoptive parents
that cannot be withdrawn after decree is entered - cant divorce adopted child even if divorced
spouse from that marriage
- if statute only provided for notice to father based on his filing a declaration of
paternity,unconstitutional be/c violates DPC in that a biological fathers involvement in childs
upbringing is more important than genetic link in determining whether entitled to notice - so long
as statute bases an unmarried fathers rights on the level of commitment he has had to the
child, satisfies due process = an unmarried putative father is entitled to notice before adoption
only if has been involved in childs life
- IL: man having reason to believe he is the father of a child can register with Putative
Father Registry w/in 30 days of childs birth, and if fails may not bring action thereafter to
assert interest in child unless shows by CCE that (1) it was not possible to register w/in
30 days, (2) failure to register was not his fault, and (3) he registered w/in 10 days of
being able to do so
- DPC comes from 14th as applied to states and parental rights are fundamental so subject to
strict scrutiny (laws enforced only if promote compelling interest) - SCOTUS has held states
interest in protecting marital family sufficiently strong to override an extramarital fathers
interests in establishing paternity
- family court cannot grant visitation rights to a natural parent whose parental rights have been
terminated or severed by adoption, which cuts off biological parents rights and obligations
- how can ct divide up property be/w unmarried cohabitants who later break up? (1) K be/w
them valid so long as consideration not based solely on sexual relations (but terms need to be
definite); (2) implied K (based on conduct); (3) constructive trust (when Df obtained title via
misapprop and would be unjustly enriched (but need to show inadequacy of legal remedy); (4)
resulting trust (M would be beneficiary of implied trust be/c he supplied consid/svcs for a txn by
which W acquired property constituting the res of the trust; see also purchase money resulting
trust where there is a purchase of property in which one party obtains legal title but another
party supplied consid but exception here for close relatives among whom gift presumed); (5)
quantum meruit allows recovery in quasi-K to prevent unjust enrichment where Pl conferred a
benefit for which had reasonable expectation of being compensated, was not compensated, and
to allow Df to retain benefits would unfairly enrich Df.
- pretermitted heir claims: while parent need not leave anything to child, most states have

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omitted child statutes that protect children from unintentional disinheritance. In few states
applies to after-born children as well. In making up pretermitted childs share, all legacies abate
proportionately.
IL: only protects children born or adopted after the will is executed - entitled to share of
estate = to what would have inherited had testator died intestate unless (1) provision is
made for child in the will and (2) it appears from the will (and not from extrinsic evidence)
that it was the intention of the testator to disinherit the child.
- valid marriage: (1) of age, (2) not too closely related, (3) consented, (4) unmarried to anyone
else vs. sham marriage (e.g., for citizenship)
- generally one spouse not liable for other spouses debts except necessaries (incl expenses
connected w/ final illness)
- generally pre-nups are valid if (1) consid (entry into marriage is sufficient consid), (2)
compliance w/ SOF, (3) voluntariness and (4) full & fair disclosure by both parties. Even if valid
though, ct may still consider each provision vis-a-vis public policy. Cant be product of duress as
w/ any K and be/c parties are not arms-length but in a relationship of trust, must act in good faith
- cannot enforce waiver of spousal support be/c against public policy (to do so would make
spouse dependent on state - though $30K/yr is acceptable); neither are child custody
arrangements enforceable
- Uniform Premarital Agreement Act (UPAA): parties may not contract to any matter in violation
of public policy, incl agreeing not to be liable for each others debts, since cant contract to avoid
the requirements of a legal marriage (like CL reqt for spousal support)
- generally a state will apply its own procedural law (incl SOL) except when statue conditions a
substantive right (as in case of wrongful death act) - and anyway modern trend is to treat SOLs
are substantive anway. W/o knowing which choice of law is followed, local law applies as to
adoption issues and modern trends favors local choice of law on substantive issues anyway.
- there is a void of jx coverage of adoption cases so most states have either added adoption to
list of proceedings covered by UCCJEA or adopted jx provisions of UAA
- traditional view is that state has power to grant adoption if (1) it is the domicile of the parent or
child and (2) adoptive parent and either child or its legal guardian are both subject to its
personal jx.
- generally parental consent reqd before medical treatment can be administered to person <
age of capacity (usually 18), though some states have laws enabling minors to consent to
abortion, birth control, STI treatment
- a ct may not order nonessential medical treatment over objection of childs parents
(constitutional right to privacy gives parents right to decide issues concerning care, custody and
control of their children and parental decisions are given deference unless withholding injury
would cause irremediable injury to child)
- parents also have right to make decisions re: religious upbringing of their children
- non parents have statutory right to bring custody action if child not in biological parents legal
custody but presumption that natural parents right is superior to 3P (though this is rebuttable w/
good cause)
- unwed parents also have right to raise children, esp if were part of family unit then DPC
protects relationship
- so long as parent is fit, that parents determinations are given special weight (as to visitation

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by 3P, etc) (Troxel); parent has right to custody over nonparent unless unfit (abuse, neglect,
abandonment)
- H of W who bears child through assisted conception is childs legal father unless w/in 2 years
of learning of birth commences action in which determined he did not consent to assisted
conception (Uniform Parentage Act or UPA; Uniform Status of Children of Assisted Conception
Act)
IL adopted UPA
- Most states: child born of adulterous affair is husbands but presumption of H paternity can be
rebutted by preponderance of the evidence (PE) in some states and
CCE in IL
- when child voluntarily abandoned/left w/ 3P, biological parent lost custody
- a spouses fraud, duress or coercive behavior/overreaching are grounds to set aside a
settlement agreement that is unconscionable - also mediator misconduct
- once paternity is established duty of support attaches and rights to visitation and custody may
be asserted by the father.
- visitation orders can include phone + compute communication
FEDERAL JX AND PROCEDURE:
- statements may be relevant and protected by ACP if from client, not from any witness though
- alternatively may be protected under trial prep material as WP if made in anticipation of
litigation in which case not discoverable except upon showing of substantial need and undue
hardship (FRCP 26b3). Claims rep is a party representative whose work covered by WP.
- in camera inspection may be reqd
- by signing disclosure or discovery response, attny warrants/certifies that (1) supported by good
law (2) not interposed for any improper purpose and (3) not unreasonably or unduly
burdensome or expensive and ct can sanction attny for violating this rule (26g)
- ct exercising jx over out-of-state Df must meet constitutional reqts of due process and mere
presence of property does not confer in personam jx - asserting jx must not offend traditional
notions of fair play and substantial justice (Intl Shoe). Constitutional limitations on PJ involve (1)
notice + (2) nexus (nexus requires min contacts so that do not offend traditional notions, and
reasonableness so that can expect to be haled into ct). Min contacts must not be accidental but
reflect purposeful availment of the privilege of transacting business in the forum and invoking
protections of its laws.
- PJ need: (1) state longarm + (2) constitutional to do so (consistent w/ USC DPC)
- longarm OK if doesnt require physical presence (business by phone held OK to confer PJ;
also commercial internet activity can be enough so long as more than a passive website and Df
can reasonably expect to be haled into ct)
- where longarm permits exercise of jx consistent w/ USC, the 2 questions for PJ merge into 1:
general (systematic & continuous) or specific jx (purposeful contacts?)
- USC DPC = (a) min contacts + (b) fair & adequate notice
- Min contacts = (i) Df had sufficient, purposeful contacts such that could foresee being sued in
the jx, (ii) relatedness of contact to the action, (iii) exercise would be fair & reasonable (so as not
to offend traditional notions)
- offend traditional notions of fair play & substantial justice? reasonably anticipated being haled

27

into ct?
- General jx where have systematic and continuous contacts (i.e., if citizen of state or do
substantial business there), else specific jx over particular action
- Ancillary jurisdiction extended to compulsory counterclaims, cross-claims, and additional parties to
such claims. (as distinct from pendent and supplemental)

- MSJ (56): no issue of material fact so movant entitled to JMOL; pty may move for JMOL (1)
anytime before case submitted to jury and (2) can only be granted after nonmoving party has
been fully heard and ct concludes (3) no legally sufficient evidentiary basis for reasonable jury to
conclude for nonmovant (with evidence viewed in light most favorable to nonmovant) - and not
taking into account witness credibility
- even if ct/judge may grant JMOL, best to defer ruling until jury verdict or facts (more efficient
be/c if trial court overturned on appeal, can do so based on verdict rather than having to remand
for trial)
- juror misconduct is grounds to order new trial (which may be granted on account of serious
error, like bias or nondisclosure or jury misconduct), not grounds for JMOL
- party can also make post-verdict renewed motion for JMOL but (1) limited to grounds raised in
initial JMOL (which could be raised at any time during trial) and (2) must be made w/in 28 days
of the judgment
- when ct considering a motion to dismiss for failure to state a claim (12b6) that deals w/
matters outside the pleadings that ct chooses not to exclude (like affidavits), it can be treated
as MSJ.
- well-pleaded complaint rule: FQ must appear as part of Pls COA - cannot get it in virtue of Dfs
defense claim
- pleadings can only be amended (1) w/in 20 days after service, (2) once before responsive
pleadings or (3) by leave of ct if reqd by justice
- FRCP15(c): amended complaint correcting Df name permissible w/in 120 days if relates back
(concerns same conduct/txn/occurrence) so long as party to be impleaded received notice such
that would not be prejudiced and knew or should have known that but for ID mistake, would
have been an original Df
- implead: bring in 3P for liability to Df
- interpleader (CPRL 1006): action against 2(+) stakeholders in property to determine
everyones stake therein and avoid duplicative actions
- 56 mandates that affidavits may only set forth such facts as would be admissible at trial;
affidavits must be made on personal knowledge and should state facts w/ particularity
- summary judgment may be partial - can be rendered solely for liab and leave damages for trial
- under FRCP 4(e), service of summons and complaint may be accomplished by (1) personal
service, (2) leaving @ house w/ person of suitable age to accept, (3) delivery to agent of
process, or (4) as permissible under state law. Ct may also auth alternative methods of service,
incl email - so long as not prohibited by any laws (incl foreign) and can be reasonably calculated
to provide Df w/ notice
- FRCP 12 requires certain defenses be raised together or waived: improper service of process,
improper venue, insufficient process, lack of personal jx, failure to state a claim must be
raised at first opportunity else waived! but if first motion treated as a 56 motion, waiver rule
d/n/a!

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- however lack of subject matter jx may be raised at any time - even on appeal, though if fail to
appeal, judgment becomes final, valid and on merits - which means it is afforded FFC (res
judicata)
- Venue: proper in a judicial district in which (1) any Df resides if all Dfs are residents of a state
in which the district is located, (2) a substantial part of the events/omissions/property situated or
(3) any Df is subject to the cts PJ w/r/t the action if there is no US district that satisfied (1) or (2)
- alien corps disregarded when determining whether venue is proper
- even if venue proper, might need to transfer in interest of justice (e.g., FNC for foreign corp
Dfs)
- but if Df removes from state to fed ct, cant then attempt to move again for lack of improper
venue if sought venue would not have initially been proper (stuck w/ properly-removed venue)
and 1441(e) [removal - provided in diversity action no Df is a resident in the state action initially
brought] treated as a venue override over 1391(a) allowing venue to be proper where otherwise
not. But 1404(a) (transfer of venue) allows dist ct to transfer to another district where action
might have been brought (even though venue currently proper), considering convenience of
parties and witnesses and interests of justice. Law of state in which action originally brought
controls.
- to remove: file notice of removal w/ ct w/in 30 days of receipt of complaint (and no more than 1
year after the case was filed) w/ grounds for removal and send copies to all parties
- K forum selection clause (FSC) generally upheld under 1404 but considered alongside
convenience of parties and interests of justice but FSC wont be honored if (1) no reasonable
basis be/c bears no substantial relationship to the parties/txn, (2) there was no true consent to
the choice or (3) would be contrary to a fundamental public policy of a state that has a materially
greater interest
- Final Judgment / Final Order Rule: appeal from fed ct decision can only be taken after final
judgment, which is one that disposes of whole case and all issues and COAs (exceptions:
injunction; receivership appt; admiralty; patent infringement; property possession these are
appealable as of right). Note denying motion to dismiss based on SOL expiration is a final
judgment but denial of a motion to dismiss generally not a final judgment so latter is not
immediately appealable.
- FRCP permits to enter into limited final order as to fewer than all of the claims or parties in
cases w/ multiple parties on express determination that (1) there is no just reason for the delay
and (2) an express direction for the entry of judgment
- order denying venue transfer is not immediately appealable under 1291 be/c interlocutory - but
may seek review by higher court under (1) collateral order doctrine (order denies matters
collateral to action, too important to deny review, and denial of immediate review may preclude
any review whatsoever, (2) extraordinary writ of mandamus (compels judge to act; Pl must show
has no other adequate means to obtain relief + trial cts action(s) constitute(s) serious abuse of
power that must be immediately corrected), or (3) prohibition from ct of appeals (commands
judge to refrain from acting).
- writs of mandamus or prohibition are only avail if (1) an appeal will be insufficient to correct a
problem and (2) trial ct actions constitute serious abuse of pwr that must be immediately
corrected
- Interlocutory Appeal Act review of an issue also avail when requesting ct certifies that (1A) the

29

order involves a controlling question of law and (1B) resolution will materially advance the
litigation and (3) interlocutory ct agrees to hear it
- FRCP 65(b) permits ex parte TRO if show via affidavits and verified complaints that immediate
irreparable harm will result before adverse party may be heard. Attorney must certify why notice
should not be given. Expire at time fixed by court, no longer than 14 days
- to move > 14 days, must move for prelim injunction, which requires notice and preserves
status quo before trial. Must show: (1) irreparable injury + (2) likelihood of prevailing on merits +
(3) post bond
- Fed dist ct in diversity must apply conflicts of law rules of states in which it sits (modern
approach is to treat SOL as substantive anyway)
- in addition to PJ over the parties, fed ct must have SMJ (diversity or FQ) and PJ (which the
court must determine as if it were the state ct and ensure PJ is consistent w/ state longarm +
DPC)
- fed ct has diversity if (1) no Pl is a citizen of a state in which any Df is a citizen when suit was
initiated (diversity not divested after moving - though diversity can be denied where domicile
manufactured for suit) + (2) amount in controversy > $75K
- diversity = all Pls vs all Dfs. Person considered a citizen of all state in which domiciled
(physically present + intent to stay)
- amount in controversy can be aggregated against all claims by single Pl against single Df
- supplemental/pendent jx also avail so long as addition of Pls does not destroy fed SMJ
(diversity usually): When a plaintiff files a federal claim against a defendant, ct may add a state law claim
over which there is no independent basis of federal jurisdiction to the complaint if (1) there is a
substantial federal claim over which federal courts have subject matter jurisdiction, and (2) both the
state and federal claims derive from a common nucleus of operative facts so that a plaintiff would
ordinarily be expected to try them all in one judicial proceeding. BUT federal courts had no authority to
assert subject matter jurisdiction over pendent parties absent an affirmative grant of jurisdiction by
Congress. In the absence of a legislative basis for the assertion of pendent party jurisdiction, the plaintiff
in Finley had to establish an independent basis of subject matter jurisdiction for each defendant sued.
Since most jurisdictional statutes say nothing about pendent jurisdiction, the Finley Court called into
question the statutory bases of both ancillary and pendent jurisdiction.

- Put more succinctly, in FQ case for example, fed ct has discretion to exercise
supplemental/pendent jx over claims based on state law if all derive from common facts and are
such that Pl would be expected to try all of them in same proceeding.
- but supp jx may only be used BY (cf., AGAINST) permissively joined parties (1367b) prohibits
use of supp jx in diversity cases for claims by Pls against impleaded parties, compulsorily joined
parties, permissively joined parties, and intervening parties) (be/c otherwise can override SMJ
rules; e.g., party uses supp jx to implead a 3P that would not otherwise confer diversity SMJ)
- generally a fed ct will not exercise jx over claims involving the issuance of (cf., enforcement,
which they will take) a divorce decree, alimony or a valid custody decree (domestic relations
issues)
- corp citizenship: citizen of (1) every state and foreign country where incorporated + (2) the one
US state or foreign country where PPB (not everywhere does business)
- PPB = where high-level officers direct, control and coordinate corporate activities
- executor domicile = that of decedent before death
- no rule prohibits Pl from filing diversity action in state in which domiciled

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- doctrine of abstention: fed ct should stay a case before it if state law applies, is unclear and
under appeal. Else court must apply the likely state interp!
- under Erie, fed ct must apply substantive law of state in which sitting
- joinder is compulsory when, if person not joined, (1) complete relief cannot be given to existing
parties in her absence (2) disposition of the case in her absence would impair her ability to
protest her interest interest in the controversy and (3) her absence would expose existent
parties to risk of double or inconsistent obligations (FRCP 19)
- However, if compulsory joinder would destroy diversity, ct must determine whether to ignore
joinder and proceed or dismiss action, considering whether: (1) judgment in her absence would
prejudice her or existing parties, (2) prejudice can be reduced by shaping judgment, (3)
judgment in her absence would be adequate and (4) Pl will be deprived of any adequate remedy
if the action is dismissed.
- permissive joinder of Pls (FRCP 20) avail where (1) same claim made by each against each Df
relating to or arising out of the same series of occurrences and (2) common Q of fact or law [ok
to join even if one is fed and one is state]
- as to counterclaims (cf, parties), ALL are permissive (none are compulsory)
- co-parties may assert cross-claims against each other that arise from same txn
- cts prefer to dismiss action if claimant can file in alternative state forum
- pretrial conf controls presentation of issues at trial and supersedes pleadings . Ct has power to
compel parties to attend; can sanction for failure to attend or obey an order pursuant to a
conference. Pretrial order may only be modified to prevent manifest injustice
- generally trial judge probably cant strike pleadings and altera default judgment based on a
partys failure to attend a pretrial conference; sanctions must bear reasonable relation to
violation and are subject to abuse of discretion review
- FRCP26: must disclose all info/docs may offer at trial >= 30 days before trial; automatic
sanction for failure to do so w/o substantial justification
- traditional mutuality rule: be/c earlier judgment cannot be used against person who was not a
party thereto, that person is similarly barred from taking advantage of that judgment against new
Dfs. But exception for collateral estoppel / issue preclusion: nonparty may rely (offensively or
defensively) on prior judgment if (1) identical issue (2) final judgment on merits (3) pty against
whom judgment was to be used had fair opp to be heard on the critical issue and (4) posture of
case is such that would not be unfair or inequitable to apply CE.
- a party may take the deposition of another party on notice to all involved parties regardless of
whether a subpoena has been issued so long as parties to the suit and subject to rules of the ct
but FRCP30 provides for e- or tele- depos, which should be ordered absent a compelling reason
for an in-person depo.
- res judicata / claim preclusion however requires (1) valid, final judgment on the merits, (2) both
parties must be the same (or be in privity w/ a party in the prior suit) and (3) the new action must
involve the same COA, meaning that all claims must arise out of the same txn/occurrence
- relatedly, compulsory counterclaim rule will bar a counterclaim that arises out of same
txn/occurrence as Pls claim if it was not pleaded (flip side of res judicata - what was waived
stays waived; cant re-litigate). Even states that dont follow this rule generally prohibit a party
from asserting a claim when doing so would render a previous valid and final judgment moot
(default judgments are final)

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- FRCP reqts for class certification: (1) class so numerous that joinder impracticable, (2)
common questions of law and fact, (3) named partys interest must be typical of the class [not
met if injuries too broad], (4) named partys representative must be able to ensure fair &
adequate representation of the absent class members, and (5) action must be one of the types
listed in 23(b): [risk of inconsistent results if separate trials permitted; Df acted/refused to act on
grounds applicable to whole class and injunctive or declaratory relief would be appropriate to
the whole class; common Qs of law or fact predominate over all individual claims]
- IL Breach of Promise to Marry Act
IL CIV PRO:
- although another states substantive law will apply, IL procedural law applies (incl here, like
fact pleading reqts)
- pleading to be liberally construed and complaints need not be dismissed for failure to state
claim but rather ct should order filing of a more particular statement. To please breach of K for
instance, must plead facts for each element (K, performance, breach, damages)
- no affidavit reqd for failure to state a claim but defects in pleadings must be stated w/
particularity
- IL is a hybrid-pleading state: unlike fed notice pleading, in IL must give sufficient notice of
claims or defenses. IL requires fact pleading + prayer for relief, though will infer breach of K or
other legal theory from facts pleaded, but need facts (cannot plead legal conclusions Df
breached K)
- pleadings need not be verified
- fact pleading: Pl must plead specific facts upon which claim is based, and may not simply give
Df notice of the incident out of which the claim arose; also facts supporting a charge of fraud on
conspiracy must be specially + clearly alleged in IL
- so in IL, must make out prima facie case; no notice pleading
- if a pleading is controverted by an affidavit, Pl may not rest on pleadings to survive MSJ - must
submit affidavits or point to other competent evidence that would indicate a material fact is in
issue
- pleading in alternative is permitted (pleading factually inconsistent COAs)
- Relying on client reps does not constitute reasonable inquiry for purposes of certifications
made by attorneys on pleadings
- Pl may dismiss her action w/o prejudice before trial or before a hearing on the merits is held if
pays costs (so long as no substantive issue has been presented). If trial has begun or hearing
held, can voluntarily dismiss only on stipulation w/ Df or on motion supported by affidavit - even
then, ct may rule on potentially dispositive motions that have already been filed (like MSJ)
- IL does not recognize compulsory counterclaims; all are permissive (IL 2-608) - so Df not reqd
to raise even if arises from same txn/occurrence (so can bring separate claim in another venue).
So res judicata will not bar counterclaim based on facts of case but a COA can be lost if an
element / issue needed was adversely determined in prior litigation (collateral estoppel)
- while all counterclaims are permissive, res judicata may bar them as separate COAs if
deemed to be same COA as previously afforded final judgment on merits
- interpleader permits parties to join persons whose claims against him may subject him to
multiple liability and require the joint parties to litigate be/w themselves the right to a single fund.

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The purpose is to prevent double or multiple liab based on inconsistent judgments in separate
lawsuits.
- IL interpleader permits interpleader even if Pl denies any liab and even if no judgments have
yet been obtained
- IL 2-208(b) service of process: IL longarm permits service on an out-of-state Df by any
nonparty (need not be appointed by the ct) > 18 y/o
- in addition to sheriff, any person who is > 18, not a party to the action and appointed by the ct
may serve process
- to serve an individual, Pl must have Df (1) served personally or (2) served by leaving a copy of
the complaint at his usual place of abode w/ one > 13 y/o. Certified mail not auth service,
though mail can be used to request waiver of service
- PJ analysis:
(1) Auth? 2 ways, general (substantial contacts reqd; satisfy w/ consent, process,
doing business) or specific (longarm - requires in-hand service and is based on conduct)
(2) Constitutional? fair and reasonable > (min contacts so as not to offend traditional
notions of fair play & substantial justice? 2 metrics, purposeful availment (Asahi) +
reasonably anticipate being haled into ct)
- mere solicitation not enough for min contacts
- Ct has PJ if (1) state law grants it and (2) constitutional. IL cts can exercise jx to max extent of
USC. Constitutional std is minimum contacts + could expect to be haled into ct. Does not matter
where tortious conduct was committed so long as injury experienced in IL.
- 2 kinds of PJ: (1) general (4 bases) and (2) specific (longarm: 14 specific acts incl torts +
catch-all).
- IL has 4 bases for PJ conferring general jx: (1) consent, (2) physical presence at time of
service of process, (3) doing business in IL, and (4) domicile or residence
- whether Pl entitled to jury trial depends on IL Constitution and statutes: entitled to jury trial if
case is legal (damages) but not if equitable. However Df must demand jury not later than the
filing of his answer else the right is waived.
- IL CCP (Code of Civ Pro) 2-616(a) allows a party to amend a complaint by changing the COA
anytime before final judgment - and wont be barred by SOL if (1) time had not expired when
original pleading was filed and (2) COA asserted in amended pleading grew out of same
txn/occurrence set forth in original complaint (relates back) (but vicarious liab for accident and
negligent hiring do not relate back so latter barred by SOL)
- any complaint amendment is barred unless relates back
- 3P Practice / Joinder (IL 2-406): Generally a party is necessary and indispensable to an action
and should be joined if must be joined for complete determination of any COA involved (i.e., due
process requires joinder) [though failure to join is not grounds for dismissal until reasonable
time has been given for joinder]. Unless party N&I, joinder is permissive. But note that a 3P Df in
a 3-car accident is not N&I be/c initial COA can be resolved w/o 3P Df - and later
contribution/indemnification can be sought against that 3P. Failure to join permissive 3P not
grounds for dismissal. Joinder of Dfs is always permissive
- IL will not dismiss a case for failure to join a necessary party until a reasonable opportunity to
add the necessary party has been given
- options for a Df: (1) permissive joinder or (2) 3P complaint (can be filed as matter of rht w/in

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the time for answering the complaint, or by leave of ct if time for answering has passed)
- interests of 3P must be directly affected for joinder to be compulsory
- 2(+) Pls may also join COAs when separate trials would be the same save for damages,
provided (1) rht to relief by each Pl must arise out of same event and (2) separate actions would
raise common issues of law and fact.
- intervention as of right is permitted where (1) statute confers the rht, (2) a person may be
bound by a judgment and his interest is inadequately represented by existing parties, or (3) a
person will be adversely affected by the cts disposition of property. Person must have a legal
right to protect of a pecuniary or proprietary nature.
- in IL for answers every allegation of a complaint must be specifically admitted or denied general denials are not permitted.
- Every factual allegation not specifically denied (which denial must be under oath w/in 28 days,
though ct may extend deadline for good cause) (other than damages) is deemed admitted.
- class action certification reqts same as Fed. IL ct may order such notice as it deems
necessary to protect the interests of the class and parties - but individual notice may be too
costly or impracticable. However if all class Pls easily identifiable + cost of mailing not
prohibitive, notification by 1st class mail should be made (not newspaper publication)
- certification is an appealable order but notification to a class is not
- Intl Shoe min contacts does not apply to class action where Pls outside IL
- Pls in class action must be afforded procedural due process (notice + opp to be heard)
- judgment in class action is binding on all class members except those who have been properly
excluded (opted out) - however this does not mean that one who opted out cannot then
offensively collaterally estop class action Df (who is collaterally estopped from relitigating its
liability)
- Venue: if no Df resides in IL, venue would be proper in any county. Venue similar to Fed in that
proper where (1) Df resides or (2) occurrence subject of suit occurred.
- Although IL cts generally favor Pl choice of forum (grant of FNC is discretionary if not doing so
is a gross inconvenience to parties or witnesses), cts will grant motion for FNC if balance of
factors favors trying case in another forum - and cts will usually grant it if parties have no
relationship or property in IL. Conditions to FNC grant: (1) If Pl files in another forum w/in 6 mos,
Df must accept process, (2) if Pl files w/in 6 mos and SOL in that forum bars claim, Df agrees to
waive SOL defense. Ct considers (1) Pl interest (2) inconvenience to Df (3) public interest
- IL corps deemed to reside in city where has office or does business
- p-ship deemed to reside in any county in which (1) any partner resides, (2) pship has an office
or (3) in which pship was doing business
- service on an agent of an unregistered foreign (non-IL) corp that is not doing business in IL in
insufficient for establishing general jx but can confer specific jx via longarm (contacting Pl in IL =
txn in IL)
- driving through IL also confers PJ - but transitory presence (layover) that affords proper service
(via notice) confers general jx
- collateral estoppel as in Fed bars party and his privies from litigating same issues which had
been litigated in prior suit and which were essential to that suit. CE can be used if (1) identical
issue, (2) final judgment on merits, (3) Df had full + fair opp to be heard on critical issues in first
case and (4) it is not unfair to Df to follow judgment from first case.

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- while CE can be used for liability, d/n/a to damages

- res judicata (claims): once final judgment on the merits rendered on a COA, barred from
raising it in later suit. To apply, must show (1) final judgement on merits and (2) same COA (IL
uses transactional test: do the claims arise from same nucleus of operative fact?)
- put differently: claim preclusion bars a party from raising new claims on a case decided be/w
those 2 parties | issue preclusion cuts out an issue decided in one case and inserts it in another
- motion for summ judg should be accompanied by affidavits, which must be made on personal
knowledge and should state facts w/ particularity
- default judgment may be set aside on motion filed w/in 30 days of the order but if miss window
party may seek equitable relief from judgment on showing that judgment was unfair in that
would not have been rendered had ct known facts supported by affidavits. However this remedy
is not avail to relieve a party from mere negligence or delinquency of the party or his counsel
(petition, to be filed no later than 2 years after order, must show grounds for the excusable
neglect and due diligence of the party)
- like FRCP15(c) a party can create a misnomer (e.g, typo, or intending to sue a corp that is in
fact an individual doing business as a sole proprietor and then serving the individual) at any time
(excludes situations where Pl intends to sue a party against whom has no COA but somehow
serves correct Df). Failure to name all potentially liable Dfs does not defeat a COA (can be
joined by order of ct or 3P complaint).
- 2 yr negligence SOL
- 5 yr personal injury SOL
- statute of repose (outer limit for filing a lawsuit) but subject to fraudulent concealment rule
(though mere silence insufficient for fraudulent concealment) and may be tolled for disabilities
- a party must obtain full disclosure of the ID and location of persons having knowledge of facts
relevant to a case
- as opposed to FRCP, WP freely discoverable except for mental impressions or litigation plans,
which are privileged (= narrow IL WP protection)
- ACP only protects communications be/c attny and client, not any witness
- party cant privilege communications w/ agent by furnishing them to own attorney
- nor is info created prior to formation of ACP protected
- when party alleges medical injury, deemed to waive any medical privilege - so medical records
that are relevant, in her possession and not privileged must be produced
- but some discovery requests may be overbroad or irrelevant
- a party may obtain any documents relevant to subject matter or calculated to lead to discovery
of relevant documents - and discovery is not limited to info that would be admissible into
evidence at trial
- whether or not will be called as a witness is irrelevant to discovery be/c IL requires broad
disclosure of relevant matters (relevance broader than as applied to admissibility of evidence)
but a consulting expert (specially employed to assist w/ litigation but who will not be a witness)
is discoverable only on showing of exceptional circumstances under which impracticable for a
party seeking discovery to obtain facts or opinions of the same matter by any other means)
- also IL Supreme Ct Rule 222 provides that when damages < $500K, limited and simplified
discovery may apply, which requires making initial disclosures of factual bases for claims and
defenses, names and addresses of trial witnesses

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- like FRCP 12, PJ objection waived if not raised before responsive pleading/matter
- motion for JNOV/directed verdict should be granted where all evidence, viewed in light most
favorable to nonmoving party so overwhelmingly favors the moving party that no contrary verdict
could ever stand.
- a party is not reqd to move for directed verdict @ close of case/evidence (but can do so @
close of evidence and before case goes to jury) to preserve motion for JNOV
- interrogatories may only be served on parties to COA - witnesses not compelled to answer;
instead, (1) subpoena + ask Qs or (2) notice + depose
- a party may request to admit ultimate facts w/ specificity but a request to admit a legal
conclusion or irrelevant facts will be stricken on motion (admit your actions constituted fraud)
- IL unlike Feds, does not permit ct to sever issues to liability & damages
- IL Supreme Ct Rule 234: Ct has broad discretion to manage voire dire but not limitless - any
refusal to allow parties to interrogate potential jurors would be reviewed by appellate ct under
abuse of discretion std, taking into acct whether the party was afforded an opportunity to probe
for potential juror bias. Though ct may require parties to submit Qs to it first and may refuse to
allow any Qs it deems improper, but a per se prohibition on questioning would be abuse.
- Also, ct cant deny attorneys opportunity to exercise peremptory challenges (rejecting juror
sans reason)
- (1) IL Constitution guarantees opportunity to have impartial jury of peers (hence ct must permit
challenges for cause) and (2) IL Civil Code provides each side a certain # of peremtory
challenges
- By Supreme Ct rule, a party may reject an arb award by serving written notice of rejection on
all other parties + filing it with ct. Case then proceeds to trial, but the party may not use the arb
proceedings as evidence
- pretrial role of ct in controlling litigation permits recommending settlement amt (ct allowed to
explore possibility of alternatives
- every party has a right to move for substitution of judge once as a matter of right provided
judge has not ruled on a substantive issue (ruling on a motion to dismiss for pleading defects is
arguable)
- generally must bear own litigation expenses incl attny fees unless K or statute provides
otherwise
- generally if fail to object at trial to introduction of evidence, objections waived
PERSONAL PROPERTY:
- In determining who has title to found property, must first characterize as: (1) lost (accidentally
& involuntarily parted w/), (2) mislaid (judging from place found, likely intentionally placed there
and forgotten), or (3) abandoned (voluntarily relinquished all ownership w/ intent to give up title
+ possession)
- if mislaid, original owner may reclaim and finder would be under duty to use reasonable means
to find the owner, but finder can acquire title after sufficient time passes or SOL runs
- if abandoned, title goes to one w/ (1) actual or constructive control or dominion over the item
and intent to assert ownership over it
- valid inter vivos gift requires (1) donative intent (2) delivery & (3) acceptance
- gift causa mortis requires 1 more element (bequeathed in contemplation of death); donor must

36

be realistically confronting imminent death; revoked by operation of law upon donors recovery
- depending on who is agent, delivery happens @ different transfers (e.g., whose agent is used
might determine when delivery becomes effective)
- bailment - no transfer of title; only transfer of custody over personal property but must exercise
due care to protect and preserve property (degree of care varies on type of bailment
- but where benefit is for sole benefit of bailor, only slight care is reqd abd liability only attaches
on gross negligence); if for mutual benefit, ordinary due care reqd, though trend against
classifying and instead require ordinary due care for all property and burden is on bailee to
prove loss/damage was caused despite its due care
- but DOC does not apply to misdelivery situations where bailee redelivers to wrong person here, bailee held absolutely liable no matter how reasonable the mistake with exception for
bailee who misdelivers to someone holding an indispensable instrument such as a claim check
- if bailed property damaged, destroyed or stolen by a 3P, bailee liable if negligent
- bailee may by K limit its liab but signage ineffective unless bailee can prove that bailor read it
or, be/c of its size and location, should have read it
REAL PROPERTY:
- lease contains covenants (promises) of parties which bind them and their assignees if (1)
privity of estate (assignee takes entire remaining estate of assignor and (2) covenant runs w/
land (if parties so intent and if both benefits and burdens touch & concern the land - i.e., directly
affects the partys use or enjoyment of the land)
- covenants to pay rent and get fire insurance run w/ land (if lease requires LL to use proceeds
to rehabilitate fire damage)
- if a covenant for title can be enforced by transferee of covenantee (one who made covenant),
runs w/ land but maj rule is that present covenants do not run w/ land thus cannot enforce
- absent express lease restriction, may assign leasehold interests in whole or in part but lease
covenants remain binding on original parties be/c of privity of K
- complete transfer = assignment (assignee + LL are in privity of estate and all covenants that
run w/ land incl rent create liability). After assignment, original tenant no longer in privity of
estate w/ LL but can still be held liable for original K obligations
- real covenants are eligible for $ damages whereas equitable servitudes are enforceable in
equity (injunction, specific performance)
- covenants must be in writing but most states will imply equitable servitude (i.e., reciprocal
negative servitude) from a developers common scheme for a residential subdivision if (1)
developer has common scheme, (2) owners of the lots and their successors have notice
[actual/record/inquiry] of the covenants. Exception for changed conditions but this must be
extreme
- constructive eviction only a defense when LL interferes w/ use and enjoyment of premises and
does not act or fails to provide some service that has legal duty to so provide
- race-notice jx protects a BFP for value without notice who records first
- cf., notice jx (IL): subsequent BFP/GFP prevails regardless of whether transferee
records (did buyer take for value w/o notice of prior instrument?). Here, subsequent
good faith purchaser for value takes free of prior unrecorded interests if lacks notice. So
prior grant, recorded or not, loses to subsequent grant (recorded or not) so long as

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subsequent was BFP.

- BFP takes for valuable consideration and without notice [actual, inquiry or record - AIR] of a
prior claim at time of conveyance
- and even if prior grantee recorded, may not give record notice if was a wild deed - subsequent
purchaser is only charged w/ notice if a deed was recorded in his chain of title whereas wild
deeds are recorded such that a searcher would not feasibly find them and are thus outside the
chain of title - tract vs grantor/grantee index
- as to inquiry notice, quitclaim deed grantees are not charged w/ inquiry notice from mere fact
that quitclaim deed was used
- title search is incomplete w/o an examination of premises so grantee is on inquiry notice of
what an inspection would have revealed and physical appearance of land can give notice of an
interest. Inquiry notice also imputes what would have been disclosed by inquiry of one in
possession
- shelter rule can convey good title to undeserving transferee however be/c one who takes from
a BFP will prevail against any interest that the transferor-BFP would have prevailed against
(even where transferee had actual knowledge of the prior unrecorded interest)
- but recording acts do not protect a subsequent purchaser against interests that arise by
operation of law (like AP; takes subject to these interests)
- divorce severs tenancy by entirety (TBE) and converts into TIC (making tenant free to convey
his property/interest and to mortgage the property (mortgage is considered a conveyance in
land)
- judgment lien against one tenant in TBE does not attach to that tenants interest in the property
until TBE severed upon divorce into TIC
- joint tenancy: concurrent ownership in which each co-tenant has equal undivided interest and
rht of survivorship; requires 4 unities (interests vest at same time, by same instrument, be of
same type and duration, and confer identical rights in possession)
disfavored in IL unless clear language to contrary; TIC presumed
- inter vivos conveyance by one JT destroys JTenancy so that taker takes as TIC w/o ROS
- however note that conveyance of a lesser interest does not sever JT(e.g., mortgage)
- in lien theory states like IL, mortgage is a lien that does not itself cause a severance;
rather severance only effected if mortgage foreclosed and property sold (in these states
mortgagee risks losing its interest if mortgagor dies prior to foreclosure)
- cf., title theory states where mortgage is a transfer of title that destroys unity of title and thus
JT
- but anyway contract to convey is enforceable in equity and effectively transfer equitable
interest under doctrine of equitable conversion (bare legal title is held in trust for buyer in a land
K before closing)
- pay liens and get a release in order to get 1st lien
- at CL could not be both grantor + grantee so needed strawman but not necessary per modern
IL law
- where a suit is not (yet) reduced to a judgment it is not an encumbrance, and judgment liens
only take priority when they are recorded before a mortgage
- express easement in land can be terminated by abandonment (easement owner demonstrates
by physical action the intent to permanently abandon but mere nonuse is insufficient and must

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be combined w/ other evidence of intent)

- generally K for sale of land is enforceable after date specified in K if performance tendered
within reasonable time - unless K states time is of the essence. Party who wants to make
time of essence can notify CP w/in reasonable time prior to closing (but 11 days before when K
executed 3 months before closing is not a reasonable time)
- implied in every K for sale of land is a covenant that at closing seller will furnish marketable
title (i.e., reasonably free from doubt such that a reasonably prudent buyer would be willing to
accept be/c would not subject him to a lawsuit)
- covenant against encumbrances assures against visible (easements, servitudes) as well as
invisible (mortgages) encumbrances against title or interest this is a present covenant and if
breached at all, its breached at the time of conveyance
- title may be rendered defective by defects in chain of title, mortgage, liens or easements but
maybe not an encumbrance if seller pays it off w/ proceeds of sale
- zoning laws do not affect marketability but zoning violations do
- valid deed must (1) be in writing, (2) contain sufficient description of property, (3) ID
grantor/grantee, (4) evidence intent to convey and (5) signed by grantor.
- deed not effective to transfer interest in realty unless has been delivered, which refers to
grantors intent that it have some present operative effect (i.e., that title pass immediately and
irrevocably to grantee). Delivery presumed if (1) delivered to grantee or (2) acknowledged
before notary and recorded. Continued possession by grantor raises possession of nondelivery.
- note deed is valid as between grantees even w/o consideration and recordation
- re (2): description of property: extrinsic evidence is admissible to clear up inconsistencies +
ambiguities, w/ methods of description prevailing in this order: natural monuments > artificial
monuments > courses > distances > name > quantity
- re (3): ID grantor/grantee: can be by name or description (e.g., to my eldest daughter)
- life estate: present possessory measured by measuring life. When ends, passes to grantor or
remaindermen
- Remainder: future interest capable of becoming possessory on the natural termination of
preceding estate. Usually followed LE. Can be vested (created in an ascertained person and not
subject to any CP) or contingent (either created in an unascertained person or subject to CP)
- a future interest that does not qualify as a remainder is an executory interest - 2 types: (1)
springing (springs out of and divests grantor) and (2) shifting (springs out of and divests
grantee)
- Vested remainder can be: (1) indefeasibly vested (certain to become possessory on
termination of prior estate and not subject to being defeated, divested or diminished in size) (2)
subject to open (interest in a class at least one of whom is qualified to take possession but more
can be members) or (3) vested subject to divestment (condition subsequent could divest)
- IL does not statutorily provide that all future interests are devisable but all future
interests can pass @ death by will or inheritance unless an interests taking is subject to
an express or implied contingency of survival
- generally courts avoid forfeiture so if terms of conveyance are ambiguous, presumption favors
FSSCS be/c forfeiture is not automatic since the right of entry need to be expressly reserved so ct can construe a deed as conveying FSSCS w/o a power of termination, thus granting FSA
(cf, FSDPOR)

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- RAP (no interest is good unless must vest within 21 years of life in being at creation of the
interest) only applies to (1) contingent remainders and (2) executory interests.
- only possible persons who can be measuring lives are those who can affect the interests
- if a grantor retain an interest it may be a reversion, rht of entry (definite, FSSCS but need to
expressly reserve the power of termination) or possibility of reverter (possible, FSDPOR)
- to establish title by AP: (1) actual and exclusive (usually means not sharing w/ true owner or
general public), (2) open & notorious (such as usual owner would make of land and sufficient to
put true owner on notice of the fact of possession), (3) adverse and under claim of right (i.e.,
hostile, meaning w/o owner consent - does not matter if possessor believes to be on own land
or knows is trespassing) and (4) continuous (possession avg owner would effect under the
circumstances) throughout the statutory period.
IL: 20 yrs w/o color of title or 7 yrs w/ good faith claim and pays taxes
- Pmt of property taxes is not reqd to establish title by AP but its good evidence of a claim of
right (entering into possession under color of title)
- where deed is void, grantor cannot grant permission so adverse possessor has no claim of
right
- most states incl IL require leases > 1 year to be in writing for SOF
- tenancy at will: when tenant goes into possession under oral lease, terminable at will of LL or T
- but rent pmt converts tenancy at will into periodic tenancy (w/ period of tenancy coinciding w/
period for which rent is paid). Periodic tenancy automatically renewed until proper termination
notice (generally a full periods notice in advance though statutory) in writing and delivered
- IL: whether or not decedents will contains any provision for spouses benefit, surviving
spouse may renounce the will and take of estate if decedent is survived by a
descendant or if no descendants. Notice must be filed w/ probate ct within 7 mos after
will admission to probate
- unlike most states which apply elective share fraction to augmented estate, IL elective
share applies only to the net probate estate
SECURED TRANSACTIONS:
- perfected SI: (1) attachment + (2) perfection
- attachment: (a) SP and debtor agree to create SI as evidenced by authenticated record / SA or
by SPs taking possession or control of collateral); (b) SP gives value for SI and (c) Debtor has
rights in the collateral
- SA may limit scope to a particular loan so beware limitations of scope. SA for nonconsumer
deposit acct is evidenced by control: (1) putting acct in SP name, (2) agree in auth record that
bank wil comply w/ SP orders w/o debtor consent.
- perfection: (i) filing (avail for all kinds of collateral except deposit/demand accts); (ii) PMSI in
consumer goods auto-perfects on attachment (which occurs at time of purchase when right to
obtain possession inured not later actual delivery), (iii) superpriority in equipment / noninventory (equipment = not inventory, farm products, or purchased for personal, family or
household purposes) over even previously perfected SI if file w/in 20 days after debtor receives
possession of the collateral; (iv) SI in proceeds where they are identifiable cash proceeds or SI
can be perfected by filing in same office as underlying collateral (relate back); (v) PMSI in
inventory where (1) SI is perfected @ time debtor gets possession of the inventory and (2) other

40

creditors w/ perfected SIs in the inventory receive authenticated notice of the PMSI before the
debtor received possession of the inventory; (vi) auto-perfection for small-scale assignment of
acct or pmt intangibles; (vii) perfected SI in goods that later become accessions
- PMSI in consumer goods also food against judicial lien creditor who acquired lien after PMSI
attached if SP files w/in 20 days after debtor actually receives the collateral
- goods that are not consumer goods, inventory or farm products are equipment but note under
original use test, intended use of collateral governs its classification but ct may follow final use
test (in which case SI perfected @ time of repossession)
- SI continues in proceeds: UCC 9-315: if a SI is perfected, SI in proceeds of that collateral autoperfects for 20 days after debtor takes possession and then unperfects unless exceptions, one
of which is where (1) filed FS covers collateral, (2) proceeds can be perfected by filing in same
office as original collateral and (3) proceeds are not purchased w/ cash proceeds of the
collateral (derivative proceeds)
- but UCC 9-330 special rule: a purchaser of chattel paper who gives new value and takes
possession in ordinary course of his business has priority over a SI in the chattel paper which is
claimed merely as proceeds of inventory
- erroneous filing still effective so long as not seriously misleading (cannot use trade name)
- as between 2 perfected SIs in same collateral, 1st to file or perfect wins (UCC 9-324) but recall
exceptions for PMSI in inventory
- as between 2 unperfected, 1st to attach wins
- as a highest-priority SP, should intervene in any judicial foreclosure
- generally sale of a SI is not defeated by a sale of the collateral to a 3P; the 3P takes the
collateral subject to the 3P SI and the SP will have the rht to recover from the 3P purchaser on
the debtors default - true even if the 3P purchased the collateral in good faith and w/o actual
knowledge of the perfected SI be/c perfection deemed to provide sufficient constructive notice
- future advances clauses are effective except as to BIOC who always prevails (unless knows
the sale violates SA)
- a consumer buying from another consumer, before FS has been filed and w/o knowledge of
the interest, takes goods free even of a perfected SI
- as against lien creditors, if perfected before lien attaches, perfected SP wins, except for future
advances if perfected SP makes advance >= 45 days after lien arises unless made w/o
knowledge of the lien or pursuant to a commitment made w/o knowledge of the lien
- who can enforce a stolen NI/note when payee signature has been forged? (1) holder, (2)
nonholder w/ rights of holder, or (3) person not in possession but who is entitled to enforce (e.g.,
from whom instrument was stolen)
- one becomes a holder by proper negotiation (if to bearer, mere transfer of possession; if to
order, delivery of possession + genuine indorsement by/on behalf of payee
- forgery breaks chain of title and no person taking possession after the break can become a
holder (even if for value in good faith w/o notice)
- UCC3 imposes transfer warranties incl warranties that transferor is entitled to enforce the
instrument, that all signatures are genuine and that the defenses of any party are good against
transferor
- supergeneric description in FS OK if SA authorizes description to be that expensive, but SA
supergeneric description does not reasonably describe collateral

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- a construction mortgage has priority over any SI in a fixture to be installed during construction
if the mortgage was recorded before the goods became fixtures (personal property thats
attached to real property such that it becomes real property)
- as be/w holder of SI in fixture and holder of interest in real property to which fixture is attached,
1st to file fixture filing or record its real property interest prevails
- upon a debtors default under a SA, a SP has rht to take possession of the collateral by selfhelp w/o judicial process if can do so w/o breach of the peace (undefined std) (also need not
give debtor notice of default). Disfavored: trickery; unauth entry; hot-wiring vehicle; breaking &
entering a residence; use of deputy sheriff (threat of force). If SP violates, liable to debtor for
damages and cannot collect deficiency (be/c when SP fails to comply w/ UCC9 foreclosure
reqts, rebuttable presumption arises that value of collateral = value of loan so no definiciency
would exist)
- UCC9 SP has right to redeem after a default but cannot waive this rht until actual default
- repossession: to be valid, method, manner, time, place, and manner of sale thereafter must be
commercially reasonable, but just because creditor could have gotten a better price does not
render it unreasonable. Should properly advertise, contact a reasonable # of dealers, send
authenticated notice to debtor and any surety w/in reasonable time (notice must describe
debtor, SP, collateral, method of sale, and explain debtors right to an accounting and state time
& place of any public sale. SP post-default can also lease or license as well as well.
- but reqts to give notice to debtor and any sureties is (1) waivable by them and (2) not
necessary if collateral is perishable or threatens to decline in value rapidly
- also SP can purchase the collateral itself if of a type customarily sold in a recognized market or
is of a type for which there are widely-distributed price quotes
- in nonconsumer cases, notice is reasonable if >= 10 days before sale
- if commercially unreasonable sale of consumer goods collateral, debtor (1) entitled to min 10%
cash price of the goods (that it paid) plus all interest charges to be paid over the life of the loan;
(2) SP may lose right to deficiency [either via rebuttable presumption, absolute bar, or setoff],
and (3) SP may be subject to a right to redeem by debtor
- UCC9 does not provide right to get deficiency on a consumer txn, and cts generally disfavor:
(1) burden of proof on creditor to prove otherwise, (2) or prove collateral was worth less than
debt, or (3) allow creditor to recover deficiency - actual damages creditor can prove
- holder of a SI in A/R may notify account debtor to pay SP directly and once notified acct debtor
has obligation to pay SP but can still deduct damages for nonconforming goods or exercise any
remedies it had against the defaulting debtor; account debtor can offset its obligations to SP w/
damages so long as proper notice (assignee SP takes subject to any valid defenses)
- consignment as PMSI: when (1) consigned goods are worth > $1K, (2) consignor uses them
for personal, family or household purposes, (3) consignee is a person who deals in goods of
that kind under a name other than consignors; (4) consignee is not an auctioneer and (5)
consignee is generally not known by its creditors to be substantially engaged in selling the
goods of others, the consignors interest is treated like a PMSI in inventory (which affords
superpriority) vis-a-vis the other creditors of the consignee (and consignee is treated like the
owner of the goods). However where consignee is apparent owner, its creditors can repossess
even though goods belong to consignor (so Q is, did the goods seem to belong to the consignee
or was there reason to believe they did not?)

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- when statute calls for certificate of title notation for motor vehicles, reqd for perfection
- when goods become physically united w/ other goods such that identity is not lost they
become accessions - perfected SI in goods before they come accessions continues after and
the creditor that wins is that whose collateral covers the whole (incl the accession) and which
was properly perfected
- COT (w/ accessions) > SI (in accessions)
- PMSI in equip > earlier perfected SI in same
- if a txn is characterized like a lease but is intended to have the effect of a security (i.e., if 1. not
terminable by lessee and 2. lessee has option at end to purchase for negligible value), UCC9
governs be/c amounts to an installment sales K w/ lessor retaining SI. Any agmt that seller will
retain title to delivered goods until buyer has paid = Art 9 SI
- if SP sells collateral after debtor default, its SI and all subordinate SI in the collateral are
discharged absent bad faith on part of purchaser.
TORTS:
- can be 5 y/o to form intent for an intentional tort; child <4 lacks capacity to be negligent
- intent can be specific (to bring about the consequences of the conduct) or general (Df knows
w/ substantial certainty that the consequences will result)
- Df not liable for an otherwise tortious act if Pl consented (expressly or inferred by matter of
usage and custom, or implied by law), though Df can be liable if exceeds scope of implied
consent by using unreasonable force.. Other defenses: self-defense and defense of others
- res ipsa loquitor (the things speaks for itself) allows Pl to establish breach just from fact that
injury occurred that would not ordinarily occur but Pl must establish evidence connecting a
particular Df. So when >1 person in control of instrumentality that cause injury, res ipsa cannot
be used (though has been applied to multiple parties in a JV) nor can Pl use alternative cause
approach in Summers v Tice to shift burden on Df to prove did not cause the injury (when 2+
people cause injury but unclear who was negligent)
- guest in home is a reasonably foreseeable Pl
- children held to std of care of like age, education, intelligence and experience
- in indirect cause cases, if Dfs negligence created foreseeable risk that an intervening force
would contribute to Pls harm, Df liable. but intervening cause that comes into effect subsequent
to Df conduct may cut off liability if independent superseding (e.g., suicide). This is a proximate
cause limitation (as opposed to ordinary foreseeable negligence, which does not cut off liab).
For intervening cause to cut off liab, must have been both (1) superceding and (2)
unforeseeable
- assault: affirmative act (need volitional movement - not mere words) by Df w/ intention to place
Pl in apprehension of an imminent harmful or offensive contact to his person and that actually
causes apprehension. Fear not necessary; apprehension of contact that is offensive (i.e.,
unconsented to) is enough. Also, apparent ability to inflict the contact is all that is needed; fact
that it could not be carried out is irrelevant
- IIED: Df acts w/ extreme and outrageous manner w/ intent to cause extreme emotional
distress (or recklessness as to the effect of the act) and the victim actually suffers extreme
emotional distress
- transferred intent: intent to inflict a batter satisfies intent reqt for assault

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- battery: Df commits an affirmative act against Pl w/ intent to bring about a harmful or offensive
contact and that actually causes such contact. Df need not intend the injury - just the harmful or
offensive contact. Df also liable when indirectly causing such contact (setting into motion a
force). Offensive contact is that which offends reasonable persons sense of personal dignity but not offensive if Pl expressly or impliedly consents. Damages can also include subsequent
hospital negligence damages (foreseeability - Df takes tort victim as finds him and so liab also
includes aggravation of a pre-existing condition)
- negligence: (1) Df owed Pl DOC, (2) breach, (3) actual + proximate cause (limits liability), (4)
damages can be for negligent hiring, supervision, retention too. Prima facie case where
existence of a duty to conform to a specific std of conduct in order to protect Pl against an
unreasonable risk of injury; duty is owed to anyone to whom a reasonable person would have
foreseen a risk of harm under circumstances. Damages include med expenses, loss of
earnings, pain & suffering, impaired earning capacity & property damages.
- as to DOC, a statute providing for criminal penalties may establish a specific DOC if (1) it was
designed to prevent the type of harm suffered, (2) Pl is within the protected class, (3) the
statutory stds are clearly defined
IL: violation of statute is only prima facie evidence of negligence, not negligence per se
(as in most states)
- survival statutes preserve right to recover these damages and wrongful death avail if
negligence deemed proximate cause of suicide
- intentional torts by EEs will be outside scope of employment unless (1) force is auth in the
employment, (2) friction is generated by the employment or (3) EE is furthering business of ER
- intentional misrep (fraud): (1) misrep made (2) w/ scienter (must show made statement
knowing it to be false or w/ reckless disregard as to its truth/falsity) (3) intent to induce reliance,
(4) causation, (5) damages. Although failure to disclose material fact generally does not rise to
misrep, there is exception for real property, but on the other hand (caveat emptor, buyer
beware) Pl has duty to investigate before buying. Most courts use K measure of damages for
intentional misrep - Pl may (1) recover benefit of bargain (value of the property as represented
less actual value) or (2) seek to rescind and recover in restitution. Also entitled to reliance
damages.
- defamation: publication to 3P of statement understood as defamatory of Pl that causes
damages to Pls reputation. Type of damages Pl must prove depends on whether defamation
constitutes libel or (spoken) slander:
- libel is written or printed publication of defamatory language wherein Pl need not prove special
damages and general damages are presumed
- slander: spoken defamation for which Pl must prove special (i.e., pecuniary) damages unless
slander falls in slander per se. If slander involves public figure + matter of public concern, Pl
must prove falsity + malice but if private person, only negligence + injury
IL: negligence std applies even if matter is public
- liability extends to re-publication if reasonably foreseeable, and repetition deemed libel even
though original statement was oral
- CL conditional privilege (which is a qualified privilege) defense against defamation where
speaker needs be to be encouraged/protected to speak (i.e., in response to a request) though
this can be lost if in bad faith, malice, excessive republication)

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- false light / invasion of privacy: publication putting Pl in false light thats highly offensive to
reasonable person, causation and damages for injury to reputation, emotional distress or
pecuniary harm. Need dissemination to a reasonable # of persons (i.e., publicity)
IL requires showing malice in all false light cases
- most states wont permit false light if defamation case lies
- one who repeats a defamatory stmt will be liable on the same general basis as primary
defamation even if republisher states the source or makes it clear that does not believe the
statement
- strict liab for defective products: requires proof of (1) absolute duty owed by commercial
supplier, (2) production/sale of a defective product, (3) actual & proximate cause and (4)
damages
- in case of defective design, failure to implement feasible alternative (if could have removed the
danger w/o serious impact on utility or price) imposes liab but subsequent remedial measures /
improvements wont hurt Df
- test for whether food product is dangerously defective is same as for manufacturing:
dangerous beyond expectation of reasonable consumer
- modern comparative negligence apportions fault among parties
IL uses partial comparative where recovery barred if Pl > 50% at fault. Recovery barred
where Pls fault > combined fault of all Dfs
- prima facie conversion: (1) act by Df interfering w/ Pls right to possession in chattel that is
serious enough in nature or consequences to warrant Df pay full value of chattel, (2) intent to
perform the act bringing about the interference w/ Pls right of possession and (3) causation. Cf.,
larceny by trick (where get title). Damages = FMV @ time of conversion. Does not matter if
conduct is innocent - even a BFP can be a converter of chattel if had been stolen from true
owner (sports memorabilia co that bought baseball knowing it was worth more but still gave
consideration, w/o notice of other claim)
TRUSTS AND FUTURE INTERESTS:
- support (income) vs. discretionary (principal) trusts
- in support, trustee does not have discretion - must pay support up to total value of income
- in discretionary, beneficiary cannot interfere w/ trustee unless abuse of power, but invasion of
principal may be an abuse of power in that breaches duty to remaindermen. Here trustee has
discretion and beneficiarys interest is not assignable and cannot be reached by creditors of the
beneficiary (since beneficiary has no right to the pmt)
- most jx + IL permit termination or modification (Claflin doctrine) of trust by beneficiaries only if
(1) all beneficiaries consent and (2) modification will not interfere w/ material purpose of the trust
(but guardian cant consent on behalf of unborn beneficiaries). Though a ct can terminate a trust
if its purpose has been accomplished early, become illegal or impossible to carry out
- Also under doctrine of changed circumstances ct can strain to find implied power to invade
corpus of trust if finds material purpose was to support income beneficiary / protect beneficiary
from own improvidence. Under this doctrine cant generally change beneficial rights but many
states grant pwr to invade principal for income beneficiary if it finds that support of the income
beneficiary was the primary purpose. Also doctrine of equitable deviation will allow trust
reformation by interpreting the meaning of the trust and its purpose in light of changed

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circumstances.
- settlors trust may require beneficiary to make special / specific reference to power of
appointment and is not triggered if too broad - but Uniform Probate Code says intent to exercise
a testamentary power should control if can be proven
- special testamentary power is not presently exercisable pwr but rather only exercisable by
donees will whereas general testamentary pwr of appt is presently exercisable by donee
- period for an interest created by the exercise of a special testamentary power begins to run
from the creation of the power - and interest of beneficiarys issue violates RAP be/c contingent
and so might not vest w/in 21 yrs
- spendthrift trust where beneficiary prohibited from transferring interest voluntarily and his
creditors cannot reach. Usually created to provide a fund for maintenance free from creditor
claims except for claims by dependents (alimony recipient), govt, providers of necessities
- Although creditors cant reach, neither spendthrift clause nor any other provision applies once
the interest has been distributed
- where in contravention of a valid spendthrift provision beneficiary attempts to assign interest,
this is revocable but not void and the assignee cannot enforce it, though if revoked by
beneficiary, the assignee can pursue claim against default taker for restitution
- Notwithstanding RAP violations interests might be valid under perpetuities reform doctrines:
wait and see, cy pres (as near as possible), statutory RAP (usually wait and see + 90 year
perpetuities period)
- under UPC, general charitable purpose presumed so cy pres auto-applies but not in IL
- for revocable trusts, RAP begins to run on settlors death
- if donee fails to exercise pwr of appointment, takers in default enjoy
- charitable trust: beneficiary class must be sufficiently broad so as not to benefit a family but
select group OK (church)
- pour-over will devises property to a pre-existing trust, but devise lapses if trust fails.
- Uniform Testamentary Additions to Trust Act and IL: pour-over gift from a will to an inter
vivos trust is valid if trust was executed prior to or contemporaneously with the will. Gift
is valid even though inter vivos trust is revocable.
- although gift to decedents issue includes all lineal descendants, that to children includes
only immediate offspring.
IL anti-lapse applies to descendants (UPC applies to predeceasing beneficiary who is
Ts stepchild, grandparent, or a descendant of Ts grandparent)
- most anti-lapse do not save a gift to a predeceasing spouse
- Under Uniform Probate Code the anti-lapse also applies to revocable inter vivos trusts and is
not affected by words of survivorship in these states if a trust creates a class gift and a class
member dies before the event upon which his interest becomes possessory occurs, her
descendants succeed to the interest
- Totten trust (payable on death acct): designating yourself as trustee for another = creditors can
reach assets in life and as part of your estate
- settlor can also name himself as trustee for himself = merger of title (only when he is the only
beneficiary; if there are others, trust is valid)
- generally joint acct w/ ROS goes to survivor and decedent's creditors cannot reach unless

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under UPC decedent's estate insufficient to pay creditors

- but most states incl IL will allow 3P to bring extrinsic evidence that intent was not to gift
funds but just set acct to pay survivors bills
- will or codicil must be witnessed by 2 witnesses
- valid inter vivos gift: (1) donative intent (can vest title in donee but still retain possession), (2)
delivery (can be actual, constructive or symbolic) + (3) acceptance (when beneficial to donee,
presumed). Gift causa mortis requires 1 more element: (4) given in contemplation of death
- many states have exempt property set-asides that protect items of tangible personal property
against creditor claims
- DOL of trustee to treat all beneficiaries alike.
- duty to prudently invest as RPP to generate overall return rather than just income. Also,
diversify, consider: liquidity, regularity of income, preservation of capital
- Remedies for trustee breach: (1) set-aside txn w/ trustee (here can seek to have a constructive
trust imposed over assets to prevent unjust enrichment), (2) recover profit, (3) affirm, (4) remove
trustee
- cash dividends treated as income but stock dividends as principal
- generally a gift to a persons children includes children from all marriages and adopted
children.
- to determine when a class closes, cts adopt rule of convenience (1st to meet condition to take
can demand distribution)
- when a settlor promises to create a trust in the future and the promise is supported by valid
consideration (waiver of future alimony in prenup is consid), the trust can arise in the future,
when the property is acquired, without any other manifestation of assent. but consid not reqd if
at future time renews intention to create the trust and in fact so funds it
- valid trust: (1) grantor, (2) trust property, (3) >=1 beneficiaries; (4) trustee. Settlor intending to
create a trust for a valid trust purpose, delivers trust property to trustee to hold for benefit of one
or more beneficiaries (who are definite - be/c a trust cannot exist w/o someone to enforce it they must be susceptible to identification)
- trustee holds legal title for beneficiaries who hold equitable title
- ct will appoint a trustee if one has not been specified
- but where a trust fails, for lack of beneficiary for example, ct can impose resulting trust in favor
of settlor or successors in interest / residue beneficiary
- a valid disclaimer of trust can result in acceleration of interest to remainder but if trust did not
provide for distribution in case of disclaimer, ct can imply gift to issue or revert principal to estate
for distribution via intestacy
- by operation of law any bequests under a will are revoked upon divorce but no such rule
revoking beneficiary designation in a trust
- interests in a trust are freely devisable and descendible
- in absence of a spendthrift provision (which says creditors cant reach and cant be assigned),
creditors can reach trust interest (but not principal)
- generally future interests can pass @ death by will or intestacy unless the interest is subject to
a condition of survival. At CL a remainder interest to children is not impliedly conditioned on
survival except that UPC implies condition of survival
- pwr of appt = auth created in donee enabling donee to designate w/in limits prescribed by

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donor, the persons/objects who shall take certain property. General exercisable in favor of
donee, her estate, her creditors or her estates creditors. Special exercisable in favor of a
specified class not including donee, her estate, her creditors or creditors of her estate
- Uniform Trust Code states: inter vivos trust is by default revocable but IL and maj of states
presume them to be irrevocable unless specified otherwise
- anti-lapse statutes save testamentary gifts in wills (not trusts)
- upon trust termination, if named beneficiary no longer exists and settlor did not provide what
should be done w/ the property in such event, resulting trust arises in which settlor is beneficiary
and so only duty is to convey the property back to settlor unless had a general charitable
purpose
- if trust is revocable, trustee may be absolved from liability when it acted in accordance with
settlors directives
WILLS:
- testamentary capacity: (1) understood nature of act, (2) knew nature of property (3) knew
objects of bounty, (4) disposed of property according to her own desires
- IL wills: must be in writing (if not signed by T must be in his presence and at his direction),
signed by testator and attested by 2 witnesses. But if an interested witness, this does not impact
validity of the will but witness-beneficiary may lose his legacy under the purging statute.
Exception to interested witness losing legacy: (1) supernumerary witness or (2) would have
taken part of estate if will probated (whichever is least rule)
- however some states recognize holographic (in handwriting, unattested) but not IL
- after divorce (but nothing less of a divorce decree), all gifts to former spouse revoked by
operation of law so entire estate passes by intestacy and surviving spouse takes or if
there are descendants
- under UPC a complete property settlement entered into after or in anticipation of a separation
or divorce operates as a disclaimer of spouses elective share, intestate share, and provisions
under a previous will
- grounds for seeking to invalidate a will: lack of capacity; undue influence (overpowers mind
and will of testator); fraud
- for undue influence, factors: (1) will gives substantially to party that stood in confidential
relationship, (2) T was dependent on beneficiary, (3) T reposed trust & confidence in the party,
(4) party was instrumental in preparing the will. If facts raised, create presumption of UI, which
shifts burden of proof to beneficiary, which can only be rebutted by CCE
- no-contest clauses are enforceable in IL
- when specifically bequeathed property (specific, demonstrative, general) is not owned by
testator at death, bequest is adeemed (fails) in this order: (1) property passing by intestacy, (2)
residuary estate, (2) general legacies pro rata, (4) specific bequests aka gifts abate in this
order (so gifts are satisfied in the reverse order)
but IL courts have tempered the doctrine by requiring some act from testator from which
can infer that she wanted gift revoked - otherwise proceeds traceable
- IL follows strict per stirpes intestacy meaning strirpital shares are always determined at the first
generational level regardless of whether there are living takers and pass proportionately (by
representation) down the line (meaning that child passes share to its heirs)

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- under facts of independent significance doctrine Testator deemed to have lifetime motive and
purpose consistent w/ that at will execution (my car = whatever car owned at death even if diff
from that owned at execution) and will speaks at time of death
- in IL extrinsic evidence is admissible to cure all ambiguities
- general legacy: money payable out of any accts
- when a beneficiary dies in testators lifetime, gift fails
- IL anti-lapse applies to descendants of T and does not save it but rather substitutes
beneficiarys descendants as takers
- precatory language in a will usually means no trust was intended but this inference can be
overcome if (1) not vague (2) addressed to trustee/executor (3) extrinsic evidence of previous
support of that intended beneficiary or (4) who would otherwise not have means without trust
proceeds
- only way to disinherit heirs is to dispose of all property by will
- reciprocal contractual wills valid and revocable but only during life - become irrevocable once
one spouse dies. breach gives rise to action for constructive trust
IL have recognized 5 common characteristics of contractual wills: (1) labeled joint and
mutual; (2) make reciprocal provisions; (3) dispose of all of Ts property; (4) make a
uniform disposition upon death of survivor; (5) plural, possessive pronouns used
- if 2nd testamentary instrument does not revoke a prior will, instruments read together to the
extent possible but inconsistent terms are revoked
- can incorporate another document into a will by reference so long as (1) already existed at
execution, (2) refer to it and (3) refer to it as already then-existing
- life insurance proceeds go to named beneficiary as a valid nonprobate transfer. this is because
a will can only dispose of property owned by decedent at death. Nonprobate assets, which are
interests that pass at death other than by will or intestacy, cannot be disposed of by will.
Nonprobate asset like life insurance proceeds cannot be redirected by will.
- bank accts lacking survivorship provisions or disposition instructions become part of general
estate and subject to will and any statutory rights
- IL has no pretermitted spouse statute and moreover applies elective share only to net probate
as opposed to the augmented estate, which includes some nonprobate transfers
- spouse can take elective share is files notice w/in 7 mos of decedent spouses will probating
- unlike marriage, birth or adoption have effect on will: pretermitted child statute provides child
takes amt would have taken unless (1) otherwise provided for in the will or (2) it appears from
the will that T intended to disinherit
- IL has not adopted 120 hr rule whereby beneficiary must survive by 120 hrs to take. USDA as
adopted says that when title to property depends on priority of death, the property of each
person is disposed of as of he had survived the other (assume Testator survived beneficiary)
- but can be barred from inheriting under slayer statute (intentionally + unjustifiably causing
death)
- unlike CL, IL abolished exoneration of liens doctrine so that liens on specifically bequeathed
property are not exonerated unless will specifically directed and under statute, a general stmt
calling for pmt of debts is not an expression of intent to exonerate liens (so real estate is
bequeathed subject to mortgages)
- IL does not follow CL no residue of residue rule which provides that a lapsed residuary gift

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falls out of will and passes by intestacy; instead, residuary beneficiaries who survive T take
deceased beneficiarys share in proportion to their interests in the residue
- generally stepchildren have no inheritance rights be/c no legal relationship but doctrine of
equitable adoption or adoption by estoppel (not in IL) allows child to be treated as an adopted
child
- devolution of real property governed by law of state where located whereas devolution of
personal property in intestacy governed by decedents domicile @ time of death
- while most states permit partial revocation by physical act, IL does not (can only partially
revoke via codicil); in IL it is disregarded.
- however otherwise outside IL physical act (burning, tearing, obliterating w/ intent to revoke)
valid and can even be done by someone other than T so long as at Ts direction and in Ts
presence
- courts usually construe 100 shares of X stock as general bequest but if identifies specific
property, likely specific bequest
- no gift is deemed an advancement unless made to donors descendant and declared an
advancement in a writing by donor or acknowledged as an advancement by donee
- a K to make a will if supported by valid consid is enforceable in equity but svcs to family
members w/o CCE to contrary are presumed gratuitous and do not constitute consid
- cy pres not limited to charitable trusts but also applied to outright bequests to charities in will
- IL has no time limit for filing disclaimer of will interests
- IL does not have a statute for gifts in satisfaction but likely to follow CL rule where inter vivos
gift made subsequent to will execution is generally deemed to be in satisfaction of the gift in will
if T so intended - but gift to someone unrelated presumed not to be in satisfaction (ex p29 wills:
nothing indicated that Ts intent that the check to charity was to be in satisfaction of the gift in
the will)
-dependent relative revocation: allows a ct to disregard the revocation of a will when it appears
T revoked it be/c of a mistake of law and belief that another disposition was valid (i.e., T thought
by revoking it, can bring earlier will back to life, which is not true since all will formalities must be
satisfied) - but ct will not apply DRR if intestate distribution would come closer to effectuating Ts
intent in revoking the will; so for DRR to apply, disregarding revocation must come closer to T
intent than intestacy
- revocation possible (1) expressly or (2) impliedly (i.e., to extent later instrument disposes of the
estate)
- but note codicil + reference to invalid will = valid will!
- durable healthcare POA becomes effective when principal becomes incapacitated (must act in
best interests and in good faith in making end care decisions)
- IL: only an interested party has standing to contest a will = anyone adversely affected by the
wills admission to probate (i.e., intestate heirs and legatees under earlier will)
- siblings of half-blood and adopted are treated as whole siblings
- a will once revoked not revived unless republished by codicil
- MAJ: partial/total revocation by physical act = OK; IL: no partial/total revocation by physical act
- IL follows CL rule that specific bequest of stock (e.g., my 100 shares) includes any additional
shares produced by a stock split but not shares produced by a stock dividend
- IL: lifetime gift to a child is presumptively in satisfaction of a prior legacy, but to anyone other

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than a child not, not in satisfaction

- IL: when portion of estate bequeathed to 2(+) and ones share lapses, the lapsed share passes
to the other residuary beneficiaries in proportion to their interests in residue (cf., CL where
passes out of will and through intestacy)
- IL: overturns application of equitable conversion to real estate by providing that the specific
devisee takes the testators rights under the K (ie., the right to the sale proceeds)
- fraud in execution: misrep as to contents of instrument
- fraud in inducement: T fraudulently induced to sign a will by misrep as to the facts that
influenced his motivation
- a codicil is a supplement to a will that alters, amends, or modified the will - may appear on the
will but requires same testamentary formalities as well
- a nonmarital child has full inheritance rights from mom and her kin but can only inherit from
dad if (1) F married M after Cs birth and acknowledged C as his; (2) F acknowledged paternity
during his lifetime thus there is CCE paternity; (3) C was adjudged to be Fs in paternity action
during Fs lifetime; or (4) CCE showing in probate proceedings that F was father

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