Contracts and Sales/Criminal Law

Question 1

What are the only two requirements for a disclaimer of implied warranty of fitness for a particular purpose?

Answer 1

It must be in writing and conspicuous.

Question 2

What are the only two requirements for a disclaimer of the warranty of merchantability in writing?

Answer 2

The language must mention merchantability and must be conspicuous.

Question 3

How can the warranty of merchantability be disclaimed?

Answer 3

Orally, or in writing using the word “merchantability.” If in writing, it must be conspicuous.

Question 4

When does the one year measuring time frame start for the Statute of Frauds?

Answer 4

Within one year from the time of the contract’s making.

Question 5

Do two separate documents, one stating part of the contract and the other stating the other part satisfy SOF?

Answer 5

At least one document must refer to the other document, or it fails SOF.

Question 6

Distinguish failure of condition from failure of promise:

Answer 6

Failure of condition relieves a party of the obligation to perform.

Failure of a promise is a breach, and gives rise to damages.

Question 7

Explain how a buyer who does not obtain good title transfer good title to a subsequent purchaser?

Answer 7

Only when the purchaser buys the goods in faith and for value.

Question 8

What is a payment by check conditional upon?

Answer 8

Being honored.

Question 9

Absent a breach, who retains the risk of loss in the absence of a contract term to the contrary until the buyer receives the goods?

Answer 9

A merchant seller retains the risk of loss, absent a breach by the buyer.

Question 10

When a specific time for pick-up or delivery is in a contract term, what is the effect of a later attempt to pick-up or deliver?

Answer 10

Breach of contract and risk of loss is transferred from seller to buyer.

Question 11

How does mens rea apply to multiple elements when only one mens rea is named?

Answer 11

The mens rea applicable to one material element is applicable to all material elements unless a contrary purpose plainly appears.

Question 12

What is it called when a killing results because the defendant acts with reckless indifference to a known and unjustifiable risk?

Answer 12

Depraved heart murder.

Question 13

For conspiracies, does the overt act need to be performed by the defendant?

Answer 13

No, it can be performed by anyone in the conspirator.

Question 14

What is the effect of the exclusionary rule to evidence when a police officer executing a valid search warrant fails to adhere to a “knock and announce statute?”

Answer 14

The evidence seized is not subject to the exclusionary rule.

Question 15

Derivative-use immunity protects a witness from what?

Answer 15

the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution - not civil trial.

Question 16

Can a witness with derivative use immunity have his testimony used in a subsequent civil trial?

Answer 16

Yes.

Question 17

Absent some statutorily enumerated felony, what are the only felonies that trigger felony-murder?

Answer 17

Burglary, arson, rape, robbery, and kidnapping.

Question 18

Is a felony in general sufficient to trigger the felony murder rule?

Answer 18

No, it must be BARRK or statutorily enumerated as an inherently dangerous felony.

Question 19

Involuntary manslaughter is the proper charge under what circumstances?

Answer 19

When he acts with criminal negligence – reckless action that puts another person at a significant risk of injury or death.

Question 20

How is robbery defined?

Answer 20

(i) larceny,
(ii) from the person or the presence of the victim,
(iii) by force or intimidation.

Question 21

The force used by a defendant in robbery must be how great?

Answer 21

Greater than the amount necessary to effectuate taking and carrying away of the property.

Question 22

What are some ways greater-than-necessary force is applied in a robbery?

Answer 22

Giving a victim drugs in order to induce unconsciousness and thereby permit the larceny to occur.

Question 23

What elements must be met to qualify a lawful search incident to an arrest?

Answer 23

A search of a car in which the defendant was an occupant must be made at the time that the defendant has access to the car; OR
to uncover evidence of the crime for which the defendant was arrested.

Question 24

What are the elements of false pretenses?

Answer 24

An individual (i) obtains title to property

(ii) of another person
(iii) through the reliance of that person
(iv) ) on a known or false representation of a material past or present fact (v) and the representation is made with the intent to defraud.

Question 25

What does role does entrustment play in a larceny?

Answer 25

No role because the initial taking in a larceny must be trespassory.

Question 26

Which stealing crime is entrustment an element of?

Answer 26

Embezzlement

Question 27

When can a policeman search a car incident to an arrest?

Answer 27

Only when the defendant has access to the car or to uncover evidence for the crime which the defendant was arrested.

Question 28

A defendant has the right to assistance of counsel when?

Answer 28

At any trial that results in a sentence of incarceration, even when that sentence is suspended.

Question 29

What is required for a merchant's firm offer to apply?

Answer 29

Signed writing from the merchant.

Question 30

Can a merchant's offer be made orally?

Answer 30

No.

Question 31

What is the "and" trick in contract questions to watch for?

Answer 31

When a contract question contains two separate terms conjoined by "and" one of those terms is likely to be determinative.

Question 32

A promise to make a gift is or is not enforceable?

Answer 32

A promise to make a gift is not enforceable.

Question 33

What is promissory estoppel limited to, damages-wise, regarding failed gift promises?

Answer 33

Reliance damages; like a plane ticket to pick up a promised heirloom.

Question 34

Does the SOF apply to a promise?

Answer 34

No.

Question 35

When does duress exist as a defense to contract?

Answer 35

When a person enters into a contract in response to an improper threat that deprives the person of a meaningful choice.

Question 36

Is the threat of criminal prosecution an improper threat?

Answer 36

Yes, even if the threatened person is guilty of the crime.

Question 37

Can a statement by a seller containing "in my opinion" be construed as an express warranty?

Answer 37

No.

Question 38

What is required for an express warranty?

Answer 38

Promise or affirmation of fact.

Question 39

What consideration is required for an assignment?

Answer 39

No consideration is required to make a valid assignment.

Question 40

If consideration is provided for an assignment, what does it do?

Answer 40

It affects only the revocability of the assignment.

Question 41

What is the exception to the parole evidence rule for conditions precedent?

Answer 41

The parole evidence rule does not apply to extrinsic evidence of a condition precedent to the existence of a contract.

Question 42

Can a party who materially breaches be entitled to damages? | What kind?

Answer 42

Yes. | Restitution damages.

Question 43

What sort of damages are available to a party that breaches - but not materially?

Answer 43

Party can recover expectancy or reliance damages only where a breach is not material.

Question 44

When a buyer receives goods on credit and the seller learns that the buyer is insolvent, how many days does the seller have to reclaim the goods?

Answer 44

10 days after the buyer's receipt of the goods, unless the seller receives assurances, in writing, of the buyer's solvency within three months before the delivery of the goods.

Question 45

The United States can criminalize conduct engaged in by a United States citizen ____. A state can punish its citizens for criminal conduct _____.

Answer 45

anywhere in the world; | that has some connection with the state

Question 46

Does conspiracy merge?

Answer 46

No.

Question 47

At common law, what is the presumption of whether a child under the age of seven can commit a crime?

Answer 47

Irrebutably presumed to be incapable of committing a crime.

Question 48

At common law, a child at least 14 years old can be tried and convicted

Answer 48

as an adult. (only common law)

Question 49

Children _ to _ were rebuttably presumed to be incapable of committing crimes?

Answer 49

7 to 14

Question 50

Which insanity test requires that a defendant did not know either the nature of his act or that it was wrong?

Answer 50

M'Naghten;

Question 51

Which insanity test requires that a defendant not have substantial capacity to appreciate the wrongfulness of his act or to conform his conduct to the law?

Answer 51

Model Penal Code.

Question 52

Is the negligent taking of a substance known to be intoxicating voluntary intoxication?

Answer 52

No.

Question 53

Is voluntary intoxication a defense to strict liability crimes?

Answer 53

Yes.

Question 54

Is involuntary intoxication a valid defense to general intent crimes?

Answer 54

Yes

Question 55

What type of intoxication occurs when a person is coerced in to ingesting a substance?

Answer 55

Involuntary intoxication

Question 56

Do all conspirators need to know of and agree with each other for a conspiracy?

Answer 56

No. Think about the wagon wheel conspiracy.

Question 57

Under the MPC, can a person who agrees to commit an unlawful act with a government agent be criminally liable for conspiracy?

Answer 57

Yes, even though the agent lacked intent to form the conspiracy, the person who agreed with the agent can be criminally liable for conspiracy.

Question 58

Is a person who kills himself guilty of homicide?

Answer 58

No.

Question 59

To prove a homicide, what cause must the prosecution show?

Answer 59

That the defendant was the actual cause of the victim's death and the proximate cause of the victim's death.

Question 60

For purposes of common law murder, what is NOT considered malice aforethought?

Answer 60

Intent to inflict bodily injury.

Question 61

Is common law murder malice aforethought present during the commission of a BARRK felony?

Answer 61

Yes.

Question 62

Is a lack of consent required for robbery?

Answer 62

Yes.

Question 63

robbery=__+__

Answer 63

larceny+assault

Question 64

When must a burglary be performed for the elements to be met?

Answer 64

At nighttime

Question 65

Under the majority rule, is there a duty to retreat?

Answer 65

No.

Question 66

Retreat is not required when the person employing deadly force is in

Answer 66

his own home.

Question 67

Duress is a defense to all crimes except

Answer 67

intentional murder.

Question 68

Regulatory offenses are what kind of offenses?

Answer 68

Strict liability offenses that do not require a specific mens rea.

Question 69

Under the majority and MPC rule, who is an accomplice?

Answer 69

A person who, with the purpose of promoting or facilitating the commission of an offense, aids or abets a principal prior to or during the commission of the crime.

Question 70

An accomplice is liable for the other crimes if they are the _____ and _____ consequences of the accomplice's conduct.

Answer 70

natural and probable

Question 71

Does accomplice liability extend to felony murders?

Answer 71

Yes, an unintentional felony murder will also be charged on the accomplice.

Question 72

What happens to an attempted felony when there is a felony-murder?

Answer 72

The attempted felony merges with the felony murder.

Question 73

Murder requires that the defendant at with what?

Answer 73

malice in causing the death of another human being.

Question 74

Other than specific intent, what is another way malice can be established?

Answer 74

Through proof of a reckless indifference to an unjustifiably high risk to human life.

Question 75

What is the liability if one of two co-felons kills the other during the commission or attempted commission of a dangerous felony?

Answer 75

This will constitute a felony murder.

Question 76

What is the liability when a co-felon is killed by a victim or a police officer during the commission of an inherently dangerous felony?

Answer 76

The defendant is generally not guilty of felony murder.

Question 77

Distinguish larceny by trick from embezzlement:

Answer 77

Embezzlement requires that a defendant have lawful possession of the property of another when forming the intent to defraud, while larceny by trick requires intent to defruad to be formed prior to possession.

Question 78

What is the defnition of burglary?

Answer 78

The breaking and entering of the dwelling of another at nighttime with the specific intent to commit a felony therein.

Question 79

The attempt to commit an underlying felony does or does not merge into the completed crime of burglary?

Answer 79

The attempt to commit the intended felony does not merge into the completed crime of burglary; so there will be two charges: attempted X and a burglary charge.

Question 80

Is factual impossibility a defense to solicitation?

Answer 80

No.

Question 81

At common law, a conspiracy agreement with a federal agent is valid or invalid?

Answer 81

Invalid, there cannot be a conspiracy with an undercover agent.

Question 82

An attempt requires a specific intent to commit a criminal act coupled with what?

Answer 82

A substantial step taken toward the commission of the intended crime.

Question 83

At common law, once a defendant has taken a substantial step toward the commission of the offense, the defendant may not do what?

Answer 83

Legally abandon the attempt to commit the crime.

Question 84

Factual ____ is ____ a defense to the crime of attempted murder.

Answer 84

impossibility, not

Question 85

What defense can the defendant assert if he was under duress during the commision of a dangerous felony and another is killed in furtherance of that felony?

Answer 85

The defendant can claim duress as a defense to the underlying felony, and it will also apply to the to the felony murder.

Question 86

What is the first thing a call of the question can tell you?

Answer 86

Which party is being charged.

Question 87

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

Answer 87

No, it will only sometimes extend to the entire car.

Question 88

Is evidence obtained as a result of a search not pursuant to a valid arrest admissible at trial?

Answer 88

Generally, evidence obatined as a result of a search not pursuant to a valid arrest must be excluded at trial.

Question 89

In a warrant, is it sufficient to refer in general to fruits, instrumentalities, and evidence of a particular crime?

Answer 89

No

Question 90

When do exigent circumstances end, triggering the need for a warrant to other parts of a house on a drug deal located in the living room only?

Answer 90

At the arrest and removal of the defendant.

Question 91

If police have reasonable cause to believe a trunk contains contraband what is the effect?

Answer 91

They may search the trunk incident to a stop.

Question 92

What is the holding of Blockburger?

Answer 92

Two different crimes committed in one criminal transaction are deemed to be the same offense for 6th Amendment purposes unless each offense requires proof of an element that the other does not.

Question 93

What Constitutional provision is triggered when a person is indicted by a grand jury from which members of a racial group have been deliberately excluded?

Answer 93

The Equal Protection claims of the excluded racial group - even if the defendant is not a member of the excluded racial group.

Question 94

Can felony murder be based on a battery?

Answer 94

No, battery is not generally one of the crimes on which felony murder can be based.

Question 95

Can battery be a lesser included offense of felony murder?

Answer 95

No, battery is not generally a lesser included offense of felony murder.