February 2024

Question 1

Partnership

Answer 1

Under partnership law, a partnership is formed when two or more people
come together as co-owners to carry on a business for profit. The rule of profit
sharing creates a presumption that there is a partnership when there is a
sharing of the profits and losses of a business

Question 2

Profit sharing

Answer 2

Under partnership law, when profit sharing is present between two or more
people, a partnership is presumed. However, this presumption does not apply
if an individual’s contribution to a business is in the form of a loan to which
his receipt of profits is in repayment of such loan

Question 3

Property interest in partnership

Answer 3

Under partnership law, each partner has a property interest in the partnership
to which they can freely transfer upon notice to the other partners, without
the consent of the other partners. Upon such transfer, a transferee does not
become a partner to the partnership, but he does have the right to share in
the profits and losses of the partnership

Question 4

Right to manage or control partnership

Answer 4

Under partnership law, although a transferee has the right to share in the
profits and losses of a partnership, he does not have the right to manage or
control the partnership, demand profits, nor does he have the right to inspect
the books and records of a partnership. Such rights remain in the transferor of the interest.

Question 5

Partnership property

Answer 5

Under partnership law, partnership property may only be used for the benefit
of the partnership and may not be used by the partners of the partnership for
personal use or personal gain. If such use does occur, the partner is required
to compensate the partnership for the benefit conferred on the partner for
the unlawful use of partnership property.
Property is deemed partnership property when the property was bought
with partnership funds, bought in the name of the partnership, or used in
conducting the business of the partnership

Question 6

Express Warranty

Answer 6

The preliminary issue for the essay is whether the contract is governed by
common law or Article 2 of the UCC.
Common law governs contracts for service whereas the UCC governs contracts
for the sale of goods. Goods are objects that are movable.
Here, the sale of the artwork is governed by Article 2 of the UCC as the
painting is a movable item and therefore is considered a good.
UCC Article 2 applies to the contract for the sale of the painting.
The issue is whether the grandson has breached an express warranty.
Under the UCC, an express warranty is affirmation, statement, or promise
of fact that becomes part of the basis of the bargain. Part of the basis of the
bargain means that it is one of the reasons that the individual entered into
the contract. While warranties can be disclaimed under the UCC, express
warranties once made, cannot be disclaimed. Express warranties can be oral or
written.

Question 7

Mutual mistake of fact

Answer 7

The issue is whether Buyer has a right to rescind or avoid the contract on the
basis of mutual mistake of fact.
Under the UCC, parties are still given common law defenses such as mutual
mistake of fact and can avail themselves of the remedies that are provided for
those common law defenses. Mutual mistake of fact is a defense to a contract
that provides that where both parties are mistaken as to a fact of the contract
and that fact is one that strikes at the heart of the bargain. If mutual mistake
does occur, then the parties can rescind the contract which means that the
parties go back to the original positions as they were before the contract, or
they can avoid the contract which means that neither party must perform their
duties provided for under the contract

Question 8

Judicial Notice

Answer 8

The issue is whether the court is required to consider Dana’s opposition to the
weather being judicially noticed in the civil trial.
Judicial notice occurs when a party to a case asks the court to accept a matter
as factually established. When a court takes judicial notice of such a fact, the
judicial notice does not supplant the party’s burden of proving that fact or
the element of the action that the fact relates to. When a court takes judicial
notice of a fact that is disputed by the parties, both parties must be heard
on the fact before the judge takes notice. In a civil case, this is especially
important, because when judicial notice is taken, the jury is instructed that it
must accept the fact as true and established

Question 9

Judicial notice on weather

Answer 9

The issue is whether the court properly took judicial notice of the weather
after evidence was presented to establish the weather.
A court may take judicial notice of a fact that cannot be disputed. To take such
notice, the fact must be established conclusively by the party seeking judicial
notice.

Question 10

Character evidence

Answer 10

The issue is whether Dana’s characterization of Cara as careless was improper
character evidence.
Character evidence is inadmissible in civil cases unless character is an essential
element of the crime charged (fraud, for example). Character evidence is
offered to show a trait or propensity of a person and that on a certain date
and time, the person’s actions conformed to that character trait. Character
evidence may be offered when a party puts their own character at issue.
Evidence of someone’s character may be admissible to show a party’s motive,
plan, intent, or habit

Question 11

Habit

Answer 11

The issue is whether Dana’s testimony about Cara frequently misplacing her
phone is admissible as habit evidence.
Habit evidence can be distinguished from character evidence in that a
person’s day-to-day habits are probative that on a certain day, they acted as
they typically do. Habit evidence is admissible, while character evidence is not.
See above for applicable rules.

Question 12

American Rule

Answer 12

1a. American Rule
Generally, a landlord has a duty to provide the tenant access to the property
on the specified start date. Under the American Rule, the landlord is required
to give the tenant physical possession of the property on the start date, or the
tenant is entitled to terminate the lease

Question 13

English rule

Answer 13

1b. English Rule
Generally, a landlord has a duty to provide the tenant access to the property
on the specified start date. Under the English Rule, the landlord is not
required to give physical possession but merely give access to possession.
Under the English Rule, if there is a holdover tenant the new tenant is
required to remove them from the premises.

Question 14

Interest assignability

Answer 14

2. The issue is whether the landlord had a right to refuse Tom’s assignment to
   his friend.
   Generally, an interest is assignable unless the parties expressly agree otherwise.
   When parties agree that prior consent is required, there is an implied duty of
   good faith that the landlord will not unreasonably withhold consent

Question 15

Periodic tenant

Answer 15

3. The issue is whether the landlord can treat Tom as a periodic tenant for
   failing to move out at the end of his lease.
   When a tenant fails to vacate the premises on the specified date, the landlord
   has a few courses of action. The landlord can hold the tenant as a periodic
   tenant subject to the terms of the original lease or the landlord can evict the
   tenant and sue for any damages. When a residential term of years tenant fails
   to vacate the premises, the landlord may hold them to a month-to-month
   periodic tenancy.

Question 16

State B hate crime

Answer 16

1. The issue is whether the State B hate crime prosecution is barred by the
   Constitution’s double jeopardy clause based on the conviction and sentencing
   from the City’s criminal charge. The double jeopardy clause prohibits the
   trying of a criminal defendant for the same offense. Jeopardy attaches in a
   bench trial when the first witness is sworn in. Jeopardy attaches in a jury trial
   when the jury is empaneled and sworn in. Thus, double jeopardy has attached
   in the City criminal case.
   The double jeopardy clause does not apply to separate sovereigns; separate
   sovereigns can try a criminal defendant for violations of a crime arising from
   the same conduct. Furthermore, a crime is the “same offense” for double
   jeopardy purposes if each crime requires a separate element that is missing
   from the other element

Question 17

Federal hate crime

Answer 17

2. The issue is whether the federal hate-crime prosecution is barred by the
   Constitution’s double jeopardy clause based on the conviction and sentencing
   from the City’s criminal charge. The double jeopardy clause prohibits the
   trying of a criminal defendant for the same offense. Jeopardy attaches in a
   bench trial when the first witness is sworn in. Jeopardy attaches in a jury trial
   when the jury is empaneled and sworn in. Thus, jeopardy has attached in the
   City criminal case.
   The double jeopardy clause does not apply to separate sovereigns; separate
   sovereigns can try a criminal defendant for violations of a crime arising from
   the same conduct. Furthermore, a crime is the “same offense” for double
   jeopardy purposes if each crime requires a separate element that is missing
   from the other element.

Question 18

Separate sovereigns

Answer 18

3. The issue is whether State A and City are separate sovereigns. See above for
   the definition of double jeopardy clause. The double jeopardy clause does not
   apply to separate sovereigns. The double jeopardy clause only applies to the
   same offense. An offense is not the same offense as another if each offense has
   an element that the other does not include.
   A city is not a separate sovereign as the state in which it is located. Thus, City
   and State A are not separate sovereigns for purposes of double jeopardy.
   Furthermore, the crimes are not separate offenses for double jeopardy
   purposes. While the State A hate crime charge includes an additional element-
   -that injury is caused to the victim, a separate element is not found in the City Criminal Charge. Therefore, because State A and City are not separate
   sovereigns and because the offenses are not separate, the double jeopardy
   clause will bar the prosecution of the State A hate-crime

Question 19

Separate offenses

Answer 19

4. The issue is whether the State A assault statute and the city criminal charge
   are separate offenses for purposes of the double jeopardy clause. The double
   jeopardy clause does not apply to separate sovereigns. The double jeopardy
   clause only applies to the same offense. An offense is not the same offense as
   another if each offense has an element that the other does not include. This is
   known as the Blockburger test.
   As discussed above, a city is not a separate sovereign as the state in which it
   is located. Thus, City and State A are not separate sovereigns for purposes of
   double jeopardy. However, the State A assault statute and the City Criminal
   Charge are separate offenses for double jeopardy purposes. The state A assault
   charge requires that the defendant intend to cause injury to another; this is
   not required by the City hate-crime offense. Furthermore, the City hate crime
   offense requires that the assault be motivated by the other person’s religious
   expression. This is not required by the State A assault statute. Thus, the
   offenses are separate for purposes of the double jeopardy clause and the State
   A assault prosecution is not barred by the United State Constitution.

Question 20

Distribution of additional shares

Answer 20

1. At issue is whether the additional shares of ABC stock should be distributed
   to Donna.
   At common law, shares of a stock that are acquired through a dividend
   are treated as separate property than stocks specifically devised in a will.
   However, under the UPC, stocks acquired through a dividend may be treated
   as the same property as stocks specifically devised in a will, so long as the
   testator’s acquisition of those stocks was due to action on behalf of the issuing
   corporation. In those instances, the devisee of a specific bequest of stocks is
   entitled to those additional shares.

Question 21

Doctrine of exoneration

Answer 21

2. At issue is whether Edward should take the house with the mortgage, or
   whether the doctrine of exoneration of liens should apply.
   At common law, the doctrine of exoneration of liens held that a devisee of
   real property was entitled to have the assets of the decedent’s estate pay off
   any encumbrances on the property at the time of the decedent’s death. The
   UPC, however, has abandoned the doctrine of exoneration of liens. Instead, a
   recipient of encumbered real property is not entitled to have the estate’s funds
   pay off any mortgages on a home at the time of death. However, if a testator
   specifically requests that estate funds be used to pay off a mortgage, a court
   in a UPC jurisdiction may give effect to the testator’s intent by paying off a
   mortgage the testator intends to be paid off using estate funds.

Question 22

Advancement

Answer 22

3. At issue is whether the letter to George was sufficient to indicate that his gift
   was an advancement under the UPC.
   At common law, all lifetime gifts to a beneficiary or heir were deemed
   advancements. However, under the UPC, a lifetime gift is only an advancement
   if the testator declares, in contemporaneous writing, that the gift was meant
   to be an advancement, or if the beneficiary acknowledges in a writing that the
   gift is an advancement.

Question 23

Anti lapse statute

Answer 23

4. At issue is whether an anti-lapse statute would prevent George’s gift from
   lapsing since he is related to testator by blood.
   Nearly every jurisdiction has adopted an anti-lapse statute. When a beneficiary
   dies before a testator, their gift lapses, and generally will revert to the residue
   of the estate. However, when an anti-lapse statute is in place, and the deceased
   beneficiary is related to the testator by a certain degree of blood relation and
   leaves issue, the issue can stand in their parent’s place and take under the
   terms of the will. Some jurisdictions also will allow property to pass through
   an anti-lapse statute through a parentelic approach, whereby if a beneficiary
   doesn’t survive the testator and leaves no issue, but they are related through
   parents, a beneficiary who is also a descendant of their parents may stand to
   take their bequest

Question 24

Entitled to proceeds or not

Answer 24

5. At issue is whether Faye is entitled to the proceeds from the insurer of the
   piano.
   When a bequest is not in the testator’s possession at the time of their death,
   the gift is considered adeemed by extinction. Under the common law, a
   beneficiary of a bequest which is adeemed by extinction is not entitled to
   any replacement property or funds obtained from the sale of that property.
   However, the UPC has a mild presumption against ademption, and generally
   a court in a UPC jurisdiction will award a beneficiary of adeemed property the
   proceeds from the sale of that property, or any replacements obtained for it

Question 25

Abatement

Answer 25

6. At issue is in what order the assets of the estate should be abated.
   When the debts of a testator’s estate are greater than the assets, absent an
   alternative indicator of testamentary intent, the gifts will abate and satisfy
   the debts of the estate in the following order: intestate property, residuary
   gifts, general bequests, demonstrative bequests, then specific bequests.
   Intestate property is that which does not pass by will. General bequests are
   money amounts that may satisfied from any source. Demonstrative bequests
   are bequests to be satisfied from a specific source (such as a particular bank
   account). Specific bequests are bequests of identifiable objects to a beneficiary