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Third Party Beneficiaries: Discussions in Contracts

May 25th, 2021 · Comments Off on Third Party Beneficiaries: Discussions in Contracts · Contracts, Lawdibles Audio

This podcast by Professor Scott J. Burnham discusses the topic of Third Party Beneficiaries. When can a person who is not party to a contract sue to enforce the contract? While the rule can be found in Restatement (Second) of Contracts § 302, it can be difficult to apply. This podcast explains how to determine the intent of the parties when considering whether the third party is a third party beneficiary. Concepts covered in this podcast include an incidental beneficiary, creditor beneficiary, and an intended beneficiary. The podcast includes the analysis for several hypotheticals and Lawrence v. Fox, 20 N.Y. 268 (1859).

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Identify when a party is a third party beneficiary of a contract with rights to enforce the contract and when they are merely an incidental beneficiary with no rights to enforce it.
2. Explain the court’s analysis in Lawrence v. Fox.
3. State the rule from Restatement (Second) of Contracts § 302.
4. State an example indicating the “intent of the parties.”

A transcript of this podcast is here.

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Priority Between Secured Parties: Discussions in Secured Transactions

May 18th, 2021 · Comments Off on Priority Between Secured Parties: Discussions in Secured Transactions · Lawdibles Audio, Secured Transactions

The topic of this podcast by Professor Scott J. Burnham is how to apply the rules found in § 9-322 for determining priority between one secured party and another secured party with an interest in the same collateral. The podcast assumes that collateral has been characterized as goods. The podcast reviews the basic rule that a secured creditor has priority over an unsecured creditor. It then considers what happens when each party is a secured party. Several hypos walk through the analysis of applying § 9-322(a)(1). The podcast considers topics including PMSIs, superpriority rules, § 9-201, § 9-203 and § 9-313. This podcast can be studied along with the podcasts on Purchase Money Security Interests I and Purchase Money Security Interests II.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. State the rule in § 9-322(a)(1).
2. Explain an exception to the rule of first to file or perfect.
3. Discuss what happens between two unperfected secured creditors.
4. Discuss what happens between two perfected secured creditors.
5. Explain the difference of categorizing the goods as consumer goods or inventory.

A transcript of this podcast is here.

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Security Agreements: Discussions in Secured Transactions

May 11th, 2021 · Comments Off on Security Agreements: Discussions in Secured Transactions · Lawdibles Audio, Secured Transactions

The topic of this podcast by Professor Jennifer S. Martin is when a security agreement is sufficient to enable it to attach a security interest to collateral under Article 9 of the Uniform Commercial Code, thereby making it enforceable by the creditor in the event that there is a default by the debtor (in most cases non-payment of a debt). This podcast focuses on the elements required for enforceability of a security interest under UCC Section § 9-203(b) and the alternatives that satisfy the security agreement requirement under § 9-203(b)(3).

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Describe the process by which a secured creditor can attach its security interest to collateral, thus making it enforceable against the debtor.
2. Identify the key elements of attachment: (i) value given; (ii) debtor having rights to the collateral; and (iii) proof of a security agreement by satisfaction of one of the alternative conditions.
3. Recognize the alternative conditions that satisfy the third element needed to attach a security interest, most often having a security agreement signed by the debtor.

A transcript of this podcast is here

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Creating a Security Interest – Overview: Discussions in Secured Transactions

May 3rd, 2021 · Comments Off on Creating a Security Interest – Overview: Discussions in Secured Transactions · Lawdibles Audio, Secured Transactions

This podcast by Professor Jennifer S. Martin provides an overview of the process by which a creditor attaches a security interest to collateral under Article 9 of the Uniform Commercial Code, thereby making it enforceable by the creditor in the event there are unmet obligations to the creditor (in most cases by non-payment of a loan by the debtor). The podcast reviews the requirements of security agreements and uses a series of examples to demonstrate when a security interest attaches.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Describe the process by which a secured creditor could attach its security interest to collateral, thus making it enforceable against the debtor.
2. Identify the key elements of attachment: (i) value given; (ii) debtor having rights in the collateral and; (iii) satisfaction of one of the alternative conditions, most often having a security agreement signed by the debtor.

A transcript of this podcast is here

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Purchase Money Security Interests Part II: Discussions in Secured Transactions

April 26th, 2021 · Comments Off on Purchase Money Security Interests Part II: Discussions in Secured Transactions · Lawdibles Audio, Secured Transactions

The topic of this podcast by Professor Scott J. Burnham is to identify when a purchase money security interest (“PMSI” or PIM-zee) has been created and to identify fact patterns that frequently appear on law school and bar examinations where it is significant that a security interest is a PMSI. Remember, a PMSI is simply a specific type of security interest. This podcast is the second of two covering PMSIs. Here is the first podcast.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Define the rule of attachment under the rules of § 9-203.
2. Explain what a seller or lender must do under § 9-103 to create a PMSI.
3. State the importance of § 9-309 on a PMSI in consumer goods.
4. Discuss the exception to automatic perfection.
5. Discuss the superpriority rules of § 9-324.
6. Provide an example of the application of § 9-317.
7. Explain a priority contest with a judicial lien creditor or bankruptcy trustee.
8. Define the “yard sale” rule under § 9-320(b).
9. Describe the effect of priority rules for fixtures in § 9-334 if the security interest is a PMSI.

A transcript of this podcast is here.

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Priority Between a Secured Party and a Party with a Lien: Discussions in Secured Transactions

April 19th, 2021 · Comments Off on Priority Between a Secured Party and a Party with a Lien: Discussions in Secured Transactions · Lawdibles Audio, Secured Transactions

This podcast by Professor Scott J. Burnham discusses the priority between a secured party and a party with a lien, including a judicial lien creditor, a creditor with a lien arising by operation of law, a creditor with an agricultural lien, and the IRS with a tax lien. The podcast discusses the relationship between Bankruptcy Code § 544(a), often referred to as “the strong arm clause,” and a PMSI (Purchase Money Security Interest).

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Identify a judicial lien creditor.
2. Identify a creditor with a lien arising by operation of law.
3. Identify, a creditor with an agricultural lien.
4. Explain when the IRS will levy a tax lien.
5. Determine whether the lien or a security interest has priority in the collateral.

A transcript of this podcast is here.

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Classification of Collateral II: Discussions in Secured Transactions

April 12th, 2021 · Comments Off on Classification of Collateral II: Discussions in Secured Transactions · Lawdibles Audio, Secured Transactions

This is the second of two podcasts by Professor Jennifer S. Martin that describe the process by which a creditor identifies collateral subject to a security interest under Article 9 of the Uniform Commercial Code. This podcast focuses primarily on descriptions of intangible personal property, including the descriptions used in a security agreement. See Classification of Collateral I for classifications of collateral constituting tangible property.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Describe how a secured creditor goes about describing the collateral in the security agreement, particularly when using a type of collateral defined in the Uniform Commercial Code.
2. Describe and identify the intangible and quasi-intangible property definitions: accounts, chattel paper, commercial tort claims, deposit accounts, instruments, documents, investment property, general intangibles, letter of credit rights, and money.

A transcript of this podcast is here

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Classification of Collateral I: Discussions in Secured Transactions

April 6th, 2021 · Comments Off on Classification of Collateral I: Discussions in Secured Transactions · Lawdibles Audio, Secured Transactions

This is the first of two podcasts by Professor Jennifer S. Martin that describe the process by which a creditor identifies collateral subject to a security interest under Article 9 of the Uniform Commercial Code. This podcast focuses primarily on descriptions of tangible personal property, including the descriptions used in a security agreement. See Classification of Collateral II for classifications of collateral constituting intangible property.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Describe how a secured creditor goes about describing the collateral in the security agreement, including by specific listing, category, and type of collateral defined in the Uniform Commercial Code.
2. Describe and identify the tangible property definitions for goods: inventory, farm products, consumer goods, and equipment.

A transcript of this podcast is here

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Implied Conditions: Discussions in Contracts

March 25th, 2021 · Comments Off on Implied Conditions: Discussions in Contracts · Contracts, Lawdibles Audio

The topic of this podcast by Professor Scott J. Burnham is when a court will supply a condition even where the parties have not expressly written one into the contract. It distinguishes between a promise and a condition under Restatement (Second) of Contracts §§ 2 and 224. This podcast references two other podcasts: Express Conditions and the Excuse of Conditions that is used by courts to avoid harsh results of conditions. Additionally, this podcast provides hypotheticals that illustrate the relationship between implied conditions and the rule of constructive conditions of exchange.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Distinguish between a promise and a condition.
2. State an example of implied conditions.
3. Explain the origin of implied conditions.
4. Explain a court’s determination when there is substantial performance.
5. State what the remedy is when a promise is breached and when a condition is not satisfied.

A transcript of this podcast is here.

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Excuse of Conditions: Discussions in Contracts

March 16th, 2021 · Comments Off on Excuse of Conditions: Discussions in Contracts · Contracts, Lawdibles Audio

The topic of this podcast by Professor Scott J. Burnham is when a court will excuse satisfaction of a condition to avoid the harsh effects of forfeiture when a condition fails. It also looks at what happens when a court has determined that there is a condition and the failure of the condition might cause a hardship. This podcast is related to the discussion of conditions in two other podcasts: Express Conditions and Implied Conditions, and contrasts the court’s application of excuse of conditions with express conditions. The podcast includes an explanation of restitution as it relates to excuse of condition as well as a brief explanation of Clark v. West Publishing Company. The podcast concludes with an explanation of Restatement (Second) of Contracts § 229.

Learning Outcomes
On completion of the podcast, the student will be able to:
1. Define a condition.
2. Distinguish between a promise and a condition.
3. Explain the policy reasons courts use to excuse satisfaction of a condition.
4. Provide examples of when a court might look to 1) waiver, 2) divisible contract, 3) restitution, and 4) excuse of condition.

A transcript of this podcast is here.

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