Final MBE Review Flashcards
Describe difference between larceny and embezzlement.
Larceny = trespassory taking.
Embezzlement = taking with permission, and then failing to return or exceeding scope of permission.
Explain rule when death is caused by a non-felon during commission of felony.
NO FELONY MURDER, unless the felon uses the victim as a human shield. Then felon can be guilty of felony murder.
What is firefighter rule?
It does not apply unless the firefighter/police officer is suing as a Plaintiff.
When he is suing as plaintiff, it means that he can’t collect damages arising out of performing firefighter duties.
It won’t shield the officer from liability if he is sued.
Explain Rule in Dumper’s Case.
If anti-assignment clause, then the person who you have assigned to is not liable for rent.
Landlord can sue the original tenant and any VALID assignee. Invalid assignee can’t be sued for rent.
Preliminary Matters - exception to rule against leading questions:
Leading questions are permitted if the questions are preliminary and not central to issues
E.g., address of the witness.
“Subject to” the mortgage
Grantee not personally liable
Bank can foreclose property
DEFAULT if contract doesn’t state whether it is subject to/assumed
“Assumed” the mortgage
Grantee is personally liable
Bank can still foreclose
Explain difference between types of property deeds:
- General warranty–most protection (includes six warranties)
- Special warranty–lower protection; only includes three warranties that protect going forward from executing deed. Not before that point.
- Quitclaim–no warranties.
When is consideration required to modify contract?
Contract under UCC - no consideration required to modify; only good faith needed.
Contract for services - consideration required!
What is burden to show law is unconstitutional if it is not discriminatory on its face, but its effect is discriminatory?
If not facially discriminatory, and plaintiff is alleging that the law is invalid as applied, Plaintiff bears burden to show discriminatory purpose.
IF plaintiff MEETS this burden, then gov’t must show compelling interest (so long as the law would merit strict scrutiny review otherwise).
IF plaintiff FAILS the burden, plaintiff is under rational basis.
Test for suppressing pre-trial photo array:
Must be BOTH:
- unduly suggestive;
- substantially likely to produce mis-identification.
Exception to rule that employer is not liable for intentional tort of employee:
If the tort is foreseeable in his job duties, the employer is still liable. E.g., security guard.
Explain legal effect of second voluntary dismissal.
It will operate as adjudication on the merits; cannot bring the suit again.
Time limit for demanding jury.
Must make jury demand, IN WRITING, no later than 14 days after last pleading.
Can landlord bring nuisance action on behalf of a tenant?
No! To sue for nuisance, you must be the occupant of the property that you are alleging is victim of nuisance.
To what is seller entitled if he gives the buyer goods that are different from contracted-for goods as substitute?
Only the contract price; he can’t provide you more expensive goods and then force you to pay the up-charge.
“Inverse condemnation”
Taking, but government is the defendant, not the plaintiff.
What is the test for whether property is being “Taken” for public use?
- must be rationally related to conceivable purpose–this means the public GENERALLY; not the whole public
*** But state can take private property and give to another private owner.
Explain difference between equitable and statutory right of redemption:
Equitable–before foreclosure; once foreclosure occurs, the right is gone. CANNOT BE WAIVED.
Statutory–after foreclosure. But unless a statute provides for it, the right doesn’t exist.
To what does parole evidence rule not apply?
- Collateral/subsequent agreements
- When plaintiff seeks reformation of contract
When can seller cure after performance is already past due under the contract?
If:
- he has reason to believe non-conformance was suitable and
- notifies buyer of cure/intent to cure.
Are fire works considered “inherently dangerous” and thus, appropriate for strict liability?
No!
List some factors for “purposeful availment” analysis of personal jurisdiction.
- nature/quality of contacts
- quantity
- connection/relationship to forum state
** the standard is NOT FORESEEABILITY!
Explain Contract Clause.
Prevents a STATE from passing a law that impairs obligation of existing contract, whether public or private.
Solicitation of attempted crime:
Cannot solicit an attempt; if defendant knows that a crime cannot be completed, then he cannot be guilty of solicitation.
How must defendant prove insanity in federal court?
Clear and convincing evidence.
What does “imperfect self defense” require D to prove?
His mistake was HONEST–can be unreasonable
What does “perfect self defense” require D to prove?
D used a NECESSARY amount of force.
When is evidence testimonial in nature and subject to confrontation clause?
When it is talking about past events for purpose of building a case.
Trying to get emergency help is not testimonial.
Explain standard of care required of professionals.
If you are pro or have extra talent, you are required to act as a reasonable person with your level of skill would act.
What is standard required for tort self-defense?
Mistake must be reasonable; not honest. That is criminal standard.
Can you waive foreclosure?
No, because that cuts off right to redeem.
When is hospital still liable for acts of independent contract despite its policy?
When it does not inform patients of the policy.
