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Wrong Answers from MBE Practice > ALL > Flashcards

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1
Q

Contracts for exclusive dealing in the type of goods concerned carry with them an ____________ ____________ by the seller to use its best efforts to supply the goods and by the buyer to promote their sale.

A

implied obligation

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2
Q

Does the UCC enforce no oral modification clauses?

A

Yes–even if the modification would not otherwise need to be in a writing that satisfies the statute of frauds.

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3
Q

Can a no oral modification clause be waived through the parties’ words or conduct?

A

Yes

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4
Q

Can the waiver of a no oral modification clause be retracted if a party has materially changed position in reasonable reliance on the waiver?

A

No

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5
Q

A party who assumes a mortgage….

A

expressly agrees to become personally liable for the mortgage debt.

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6
Q

Is title acquired through adverse possession marketable?

A

No–it must be quieted first.

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7
Q

When a contract is silent with regards to quality of title, what implications exist RE: marketable title?

A

Implied that the seller will convey marketable title.

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8
Q

easement by necessity requires common _______________

A

ownership

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9
Q

An advertisement is a general offer, not a mere invitation to negotiate, if it (1) specifies the subject matter, quantity, and price and (2) places a reasonable limit on who may accept the offer. A revocation of a general offer is only effective if it…………….

A

is publicized at least as heavily as the offer

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10
Q

Under the UCC, a party with reasonable grounds for insecurity has a right to

[end a contract]
[change a contract]
[make a written demand for assurances that the other party will perform the contract]

A

make a written demand for assurance that the other party will perform the contract

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11
Q

Who is protected under title insurance policies?

A

named insureds who are affected by an undisclosed title defect

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12
Q

Is consideration required to effectively transfer an interest in real property via a deed? What about when the deed states that consideration has been paid?

A

NOPE

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13
Q

rebutting a (non res ipsa loquiter) inference of negligence: is showing the exercising of reasonable care a defense?

A

yes

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14
Q

In a products liability action based on negligence, a commercial seller owes any foreseeable plaintiff a duty to exercise reasonable care in the _____________ and ____ of its product.

A

inspection and sale

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15
Q

A promise to surrender a claim or defense constitutes consideration for a settlement agreement so long as (1) the claim or defense is valid or subject to a good-faith dispute or (2) the surrendering party ________ _______ that the claim or defense may be valid.

A

honestly believes

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16
Q

if an MBE answer is talking about stuff that is signed and in writing–what is it likely getting at?

A

statute of frauds

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17
Q

A common-interest community association, typically governed by a board, must act ____________ when exercising its discretionary powers.

A

reasonably

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18
Q

A unilateral offer may be revoked at any time before the offeree begins performance, including after the offeree has purchased materials but before performance has commenced. But if the offeree relies on the offeror’s promise and incurs expenses in mere preparation for performance, the offeree may be entitled to ________ damages.

A

reliance

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19
Q

race recording statutes–does the purchaser’s personal knowledge of prior conflicting interests affect the outcome?

A

no

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20
Q

An accord agreement must be supported by new consideration. If the new consideration is worth less than what was originally promised, then it is sufficient only if (1) there is a good-faith dispute as to the ________ owed; OR (2) it is a different ____ than what was originally owed.

A

amount
type

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21
Q

A liquidated damages clause, which allows the seller to retain the buyer’s deposit if the buyer breaches the contract and refuses to purchase the property, is enforceable so long as the deposit bears a __________ relation to anticipated damages. A deposit of no more than __% of the purchase price is typically deemed reasonable.

A

reasonable
10

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22
Q

A liquidated damages deposit that far exceeds the non-breaching party’s actual damages will [not be awarded][be awarded because off the express contractual agreement]

A

will not be awarded

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23
Q

In most jurisdictions, the measure of recovery in intentional misrepresentation cases is determined by calculating the difference between the actual value received by the plaintiff in the transaction and the value that would have been received had the representation been true.

This is called the _________ __ ____ ___________.

A

benefit of the bargain

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24
Q

Trying to rescind a contract based on statements that go to a basic assumption on which a contract is made gets at ______________, whereas justifiable reliance on an opinion gets at _________________.

A

mistake
misrepresentation

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25
Q

Fixtures attached to leased property by tenants must generally be __________ before the lease terminates, but they can be removed within a reasonable time thereafter if (1) the termination was not due to the tenant’s ___________ and (2) the tenant could not have ______________ termination early enough to permit removal before the lease terminates.

A

removed
breach
foreseen

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26
Q

Is the use of satire likely to constitute extreme and outrageous behavior RE: intentional infliction of emotional distress?

A

no

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27
Q

Nonoccurrence of a condition may be excused if the party who would benefit from the condition waives it by words or conduct. That waiver [can][cannot] be retracted if the other party has detrimentally relied on it.

A

cannot

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28
Q

A land seller must disclose unreasonably dangerous conditions if
(1) the condition exists at the time of the sale,
(2) the seller knows or has _________ to know of the condition and its risk,
(3) the buyer does not know or have ___________ to know of the condition or risk, and
(4) the seller has ___________ to believe that the buyer would not discover or realize it.

A

reason

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29
Q

Courts may impose a ______________ if the plaintiff conferred a measurable benefit on the defendant without gratuitous intent and it would be unfair to let the defendant retain that benefit.

A

quasi-contract

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30
Q

Under the UCC, the risk of loss in the absence of a breach generally remains with the ________________ until……

A

seller
the buyer receives the goods

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31
Q

Negligent infliction of emotional distress occurs under the ________________________ theory when the plaintiff suffers serious emotional distress because the defendant negligently (1) delivered an erroneous announcement of death or illness, (2) mishandled a loved one’s corpse or bodily remains, or (3) contaminated food with a repulsive foreign object.

A

special-situations

32
Q

An assignment of contractual duties [is (unless there is an antiassignment clause)][is not] allowed if it materially reduces the nonassigning party’s chances of obtaining performance.

An assignment of a purchase contract [does][does not, because the assignor is still liable] materially reduce the chance of the nonassigning party obtaining performance.

A

is not
does not, because the assignor is still liable

33
Q

Cotenants owe each other a ___________ ________ when they (1) jointly purchase property in reliance on each other or (2) acquire their interests at the same time from a common source. This duty arises when the property is sold at a foreclosure sale and purchased by a cotenant, allowing the other cotenants to __________ their interests by paying their share of the purchase price.

A

fiduciary duty
reacquire

34
Q

what are the two types of assignments?

A

(1) for value
(2) gratuitous

35
Q

an assignment for value is __________

A

irrevocable

36
Q

a gratuitous assignment [is irrevocable][can be revoked]

A

can be revoked

37
Q

When contracting parties can perform at the same time, they must perform simultaneously. But when one party’s performance requires the ___________ __ ____, that party must completely perform before the other party must perform.

A

passage of time

38
Q

what rules of privilege apply to claims arising under federal law?

A

federal rules of privilege

39
Q

is the physician-patient privilege recognized under federal law?

A

NO

40
Q

the risk of loss of destination contracts (FOB) passes to the buyer when [the goods are properly delivered to the carrier][the goods are delivered at the named location].

A

the goods are delivered at the named location

41
Q

the risk of loss for a shipment contract passes to the buyer when [the goods are properly delivered to the carrier][the goods are delivered at the named location].

A

the goods are properly delivered to the carrier

42
Q

A release is a writing that manifests an intent to discharge another party from an existing duty. The UCC requires the release to be signed by the releasing party, and new consideration [is][is not] required for the release to be effective

A

is not

43
Q

If a privileged communication was disclosed in state court and is now being offered in federal court, the federal court will review the federal rules AND the law of the state where the disclosure occurred. Whichever law offers ________ ___________ determines the effect of the disclosure.

A

more protection

44
Q

A lender has the right to take possession of mortgaged property BUT is liable to the borrower for any ________ the lender commits during foreclosure proceedings.

A

waste

45
Q

hearsay must be intended to convey an ___________

A

assertion

46
Q

a hearsay declarant’s inconsistent statement [can still][cannot] be used for impeachment if it (1) occurred after the hearsay statement; OR (2) the declarant had no opportunity to explain/deny it.

A

CAN

47
Q

Unless otherwise provided under a lease, a taking of all or part of a leasehold under the power of eminent domain entitles the tenant to a share of the condemnation award. The tenant’s share is equal to the ____ ____ ____ of the condemned leasehold plus compensation for any continued obligation to pay rent.

A

fair market value

48
Q

A defendant files a motion for compulsory joinder, while a plaintiff simply ________ the complaint.

A

amends

49
Q

In most jurisdictions, does a prematurely recorded deed (recorded by a buyer before the seller owns the property) fall outside a later buyer’s chain of title, thus failing to provide record notice?

A

Yes–WILD DEED

50
Q

confrontation clause applies to which side (plaintiff or defendant?)

A

defendant–cannot admit certain testimony against the defendant

51
Q

Does a proposed settlement of a federal class action need to be approved by the court to be valid?

A

Yes- the proposed settlement may be approved only after the court holds a hearing and issues findings that the settlement is fair, reasonable, and adequate.

52
Q

Is nationwide service of process permitted for impleader?

A

NO

53
Q

The “100-mile bulge” rule establishes personal jurisdiction over a party (1) added to the suit through ________ or required joinder and (2) served with process within ___ miles of the federal court where the suit is pending.

A

impleader
100

54
Q

If a motion for JMOL is denied during trial, the movant can file a renewed motion for JMOL no later than __ days after the entry of judgment to seek to overturn an adverse verdict.

A

28

55
Q

a federal jury must have at least _ but no more than __ members

A

6
12

56
Q

If monetary damages will likely adequately compensate, will a preliminary injunction be granted?

A

No–because there is not risk of irreparable harm

57
Q

can interrogatories be served on non-parties (such as expertwitnesses)?

A

NO

58
Q

A party may secure a jury trial on any triable issue by (1) serving the other parties with a written jury trial demand no later than __ days after the last pleading directed to that issue is served and (2) filing the jury trial demand with the court within a ________ time after service of the demand.

A

14
reasonable

59
Q

A party may conduct an oral deposition without the court’s leave or the parties’ stipulation unless (1) the deposition exceeds the 10-deposition limit, (2) the deposition is sought _______ the initial planning conference, or (3) the deponent was already deposed in the case.

A

before

60
Q

class action certification prerequisites are:
(1) _______________ – joinder of all members is impracticable;
(2) _______________ – class shares common questions of law or fact;
(3) ______________ – named parties’ claims or defenses are typical of the class; AND
(4) ______________ – named parties will protect the class’s interests.

A

(1) numerosity
(2) commonality
(3) typicality
(4) adequacy

61
Q

Under the final-judgment rule, a federal appellate court generally has no jurisdiction to hear an appeal until the district court has issued a _____ _________—i.e., a decision that fully resolves the dispute on the merits.

A

final judgment

**However, the interlocutory appeals statute allows certain orders to be appealed before the entry of a final judgment.

62
Q

How many plaintiffs are required for the Class Action Fairness Act?

A

100

63
Q

Unless the court ______ otherwise, a responding party generally must respond to an amended pleading within (1) the time that remains to respond to the original pleading or (2) 14 days after service of the amended pleading—whichever occurs later.

A

orders

64
Q

Before an appeal is docketed in the appellate court, a district court can correct a mistake in a judgment, order, or other part of the record on its own initiative or pursuant to a party’s motion. But after an appeal has been docketed, the district court can correct the mistake only with the appellate court’s ____.

A

leave

65
Q

A party may obtain extraordinary relief within ____ ____ of the entry of a final judgment based on (1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered evidence, or (3) an opposing party’s fraud, misrepresentation, or misconduct.

A

one year

66
Q

In a federal diversity action, the court must apply federal law to procedural issues and state law to substantive issues. To determine which state’s substantive law applies, a federal court must apply the choice-of-law rules of the state where……

A

it sits

67
Q

Can damages-related allegations be admitted by the defendant’s failure to deny them in an answer?

A

NO

68
Q

One P, One D, separate claims–can P aggregate claims to satisfy amount in controversy for diversity jurisdiction?

A

YES

69
Q

A jury-instruction error is preserved for appeal when a party raises the issue (1) at the ______ of evidence by filing a written request for the proposed instruction and obtaining a definitive court ruling on the record; OR (2) _________ the court instructs the jury by clearly identifying, and stating the grounds for, the objection on the record.

A

close
before

70
Q

A party may demand a jury trial on any triable issue by (1) serving the other parties with a written jury trial demand no later than __ days after the last pleading directed to that issue is served AND (2) filing the jury trial demand with the court within a _____________ time after service of the demand.

A

14 days
reasonable

71
Q

can probably cause come from info supplied by an informant?

A

Yes, certain requirements must be met:
* come from a reliable, known informant; OR
* an unknown informant if the information is independently verified

72
Q

Will a search incident to a lawful arrest allow the arresting officer to search for both potential weapons and potential evidence?

A

yes

73
Q

Will a search of a perosn validly arrested in a car always extend to the entire car?

A

No

74
Q

Does the defendant have a right to present evidence or testify at a grand jury proceeding?

A

No

75
Q

does a grand jury finding of probable cause need to be unaninmous

A

no

76
Q

is administrative necessity a valid exception to the exclusionary rule?

A

NO

77
Q

is inevitable discovery a valid exception to the Exclusionary Rule

A

yes

Wrong Answers from MBE Practice (3 decks)

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