July 2021 Bar Exam

Question 1

UCC Negotiable Instruments

Real Defenses - these can be used by a HDC

Answer 1

Rights that a holder in due course can use.

Question 2

list of Real Defenses

Answer 2

1. Infancy, contact made by a minor
2. Duress, if one party acts involuntarily in a contract situation under extreme duress, such as a gun pointed at them.
3. incapacity to consent
4. Fraud - without knowledge of the instrument character or essential terms or without reasonable opprotunitity to learn of the instrument character or essential terms.

Question 3

list of Personal Defenses
- can’t be used against a HDC

Answer 3

1. failure of consideration
2. lack of consideration
3. breach of warranty
4. fraud in the inducement
5. own defenses.

Question 4

What does stopping payment on a check do? Does it avoid the obligation.

Answer 4

It merely delays payment. It does not avoid the obligation?

Question 5

How to establish a real defense or a personal defense

Answer 5

by prepondence of evidence.

Question 6

What is a Holder in Due Course

Answer 6

A Holder in due course take an item for value in good faith and without notice of any flaw or claim.

A holder in good faith can endorse a check, not withstanding a stop payment order unless there is a real defense.

(infancy, void contract, bankruptcy, forgery, deception, discharge known to holder)

The status of a holder in due couse is not changed by subsquent notice.

Question 7

The Shelter Doctrine

Answer 7

A party who does not qualify for HDC status can obtain the status of a HDC as long as the party is not personally engaged in wrongdoing affecting the instrument.

Question 8

valid contracts in connection to checks

Answer 8

The payee signed and the holder agreed to accept.

Question 9

What makes a Negotiable Instrument

Answer 9

written and signed
unconditional
promise or order to pay
a fixed amount of money
is payable to order or beare
is payable on demand or at a definite time and
states no unauthorized undertaking or instructions by the person promising or ordering payment.

Question 10

Transfer Warranties

Answer 10

these are implied warranties that arise automatically when an instrument is transfered or presented.

Question 11

Transferor who receives Consideration Makes Warranties

Answer 11

Whenever a person transfers an insrument (any movement of possession of the instrument other than issuance or presentment) or a customer or collecting bank transfers an item

For cosnideration.

The transferor makes transfer warranties.

Presment, Notice of dishonor are irrelevant to warranty liability

Question 12

Warranties Are Made to Transferees

Answer 12

Warranties run to the immediate transferee whehter or not the transfer is by indorsement

all subsequent transferees if the trnasfer is by indorsement

for banks, the liabilty runs to any subsequent collecting bank even without indorsement

Drawees and makers can never sue for breahc of transfer warranty.

they get instruments presented to him.

Question 13

The Transfer Warranties

Answer 13

A Transferor warrants that
- Transferor is entiteld to enforce the instrument which means they warrant that all indorsements necessary to the chain of title are genuine and that the transferor is a proper person to make presentment and obtain payment
- all signatures are authetnic and authorized - no forgery
- the instrument or item has not been altered
- no defense or claim of any party is good against the transferor
- the transfor has no kongder of any insolvency proceeding against the maker.

CONSIDERATION IS IMPORTANT. No consideration, no warrantcy.

Question 14

According to the Six Amendment, a defendant has a right to a jury trial, however

Answer 14

he doesn’t have the constitutional right to demand a trial by a judge.

Instead of a jury trial.

No Consitutional Right is violated by the Government’s ability to veto the right of the defendant to waive a jury trial

Question 15

when the Government waives the right of a defendant to waive a jury trial?

Answer 15

It doesn’t violate any constitutional right.

Question 16

Juvenile’s right to waive a jury trial is the same as a

Answer 16

Adult.

Question 17

How can a jury trial be waived?

Answer 17

A jury trial may only be waived with the consent of the defendant, the Commonwealth and the Court.

CONSENT OF THE DEFENDANT, COMMONWEALTH AND COURT

Question 17

When a juvenile is 16 years old or older and is charged with a felony, the juvenile court shall conduct a preliminary hearing and if the court finds probable cause it will certify the charge to the grand jury.

Answer 17

If the court finds probable cause, the court loses jurisdiction over the charge and any ancillary charges, and the Commonwealth may seek a direct indictment.

An indictment cures any error or defect in the juvenile court proceeding.

Question 18

Miranda Right

Answer 18

The defendant must be properly advised of their Miranda right.

He can waive his rights and consent to question, but must halt questioning the moment the defendant mentions a clear desire to stop talking.

Question 19

Motion in Limine

Answer 19

A “motion in limine” is a pretrial motion that seeks the exclusion of specific evidence or arguments from being presented during a trial. A motion in limine is decided by the judge outside of the presence of the jury.

Question 20

The Confrontation Clause of the Sixth Amendment guarantees what?

Answer 20

The Right of Cross Examination and a Defendant can cross examine a witness as to any evidence that bears credibility on the witness.

EXAMPLE - a plea bargain in exchange for testimony is highly relevant because it means the witness testimony might be based on self interest.

Question 21

Do defendants have a right to cross examine as to any evidence that bears on the credibilty of tht witnesses?

Answer 21

Yes.

Question 22

Principal in second degree for felony murder,

when someone aid in the attempted robbery and acted in concert with someone.

Answer 22

Concert of action

Aided in the felony, and acted in concert with the principal

concert of action, teeny will be demed to have shared Butch’s intnt and will be criminally responsible for Butch’s acts.

Question 23

Principal in the first degree

Answer 23

commit the act.

Question 24

Domestic Relations

Does VA recognize a presumption in favor of the mother in rewarding custody?

Answer 24

NO, all such presumptions were abolished. The court considered the best interest standard in regard to the child.

Question 25

What are the factors in the best interest standard that the VA Court considers when granting custody.

Answer 25

• The age and physical and mental condition of the child, giving due consideration to the child’s developing needs
• the age and physical and mental condition of the parents
• the relationship existing between each parent and child, giving due consideration with the child’s life, the ability to accurately assess and meet the emotional, intellectual, and physical needs of the child.
• the reasonable perferences of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express such a preference.

Question 26

Factors to consider with the Age and Physical and Mental Condition of the Child.

Answer 26

his current friends and family. That it would be better for his age, health and mental condition to stay in the same location as his friends and family members.

He indicates that he misses his mother.

Question 27

Facts to consider with the age and physical condition of each parent.

Answer 27

their ability to physical care for the child.

If the parent is injured, then consider how the injuries impact his abililty to care for the child.

The child’s age and how it would.

A child of 10 years woudl require more physical work then a baby.

Question 28

Adulterous relations can’t be condoned by the court, but there is no rule

Answer 28

that prohibits awarding custody to a parent involved in a adulterous affair.

Question 29

In regard to the reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age, and experience to express a preference.

Answer 29

then the court will consider his preference.
But it will depend.

there is no specific age at which the court afford such deference.

The older the better.

Question 30

Corporation

under the VA Non-stock Corporation Act in regard to the approval of an action of the Board of Directors,

Answer 30

An action of the board of directors must be approved by a majority of directors in a vote taken when a quorum is present.

Question 31

A Conflict of Interest Transaction

Answer 31

A transaction with the corporation in which a director of the corporation has an interest that precludes him from being an disinterested director.

Question 32

When is a conflict of interest transaction
(where the director is interested) permitted?

Answer 32

It is permitted if either it is approved by a majority of disinterested directors after a disclosure of matieral facts and it is fair to the corporation.

Question 33

Conflict of interests transactions

Where there is a transaction between the corporation and a interested Director.

Answer 33

§ 13.1-871. Director conflict of interests.
A. A conflict of interests transaction is a transaction with the corporation in which a director of the corporation has an interest that precludes him from being a disinterested director. A conflict of interests transaction is not voidable by the corporation solely because of the director’s interest in the transaction if any one of the following is true:

**1. The material facts of the transaction and the director’s interest were disclosed or known to the board of directors or a committee of the board of directors and the board of directors or committee authorized, approved or ratified the transaction;

2. The material facts of the transaction and the director’s interest were disclosed to the members entitled to vote and they authorized, approved or ratified the transaction; or
**
3. The transaction was fair to the corporation.
**

The vote must be an affirmative majority of the disinterested directors.

And a quorum.

You can’t count the vote of interested directors.
**

Question 34

How a fundamental Corporate Change is approved?

Answer 34

It must be approved by all members of the nonstock corporation.

Question 35

Examples of Fundamental Corporate Changes.

Answer 35

Mergers, consolidations, dissolutions, amendment of the articles, sale of substantially all of the corporation’s assets

Question 36

Procedural steps to approve fundamental corporation changes

Answer 36

1. the board of directors resolution and notice to all voting shareholders is required
2. the majority approval of all shares entitled to vote and by a majority of any voting group that is adversely affected by the change

Question 37

Appraisal rights for dissenting Shareholders.

Answer 37

1. The dissenting shareholder who does not vote in favor of a fundamental stance can force the corporation to buy their shares at fair market value
2. a court would appoint an appraiser if the dissenting shareholder and the corporation cannot agree on a price
3. This right is given when: the corporation combines with another corporation; or the corporation transfers all or most of the assets or there is a share exchange.
4. Before the shareholders vote: the dissenting shareholder must file a written notice of objection and the intent to demand payment, the dissenting shareholder has to abstain from voting, and the dissenting shareholder has to make a prompt written demand after the vote to be bought out.

Question 38

Wills and Estates

What is a valid Holographic Will.

Answer 38

It must include the necessary Present testamentary intent and testamentary capacity.

It must wholly be in the writing of the testator

It is signed by the testator

and it can be proved by at least two disinterested witnesses.

Question 39

Present Testamentary Intent

Answer 39

That the testator intended for the document to dispose of his property.

Intent for the diposition to happen at his death, and intended for his property be distributed by the will

Question 40

A testator must be

Answer 40

18 years old and sound of mind

Question 41

Testamentary capacity

Answer 41

The testator must be able to understand the extent and nature of his property

the intended recepients of his bounty.

That his act will distribute his property.

The nature of the act that they are preforming.

The way in which all the foregoing concepts interact such that they form a cohesive plan and orderly scheme.

Question 42

All wills in general need to be signed by the testator and their signature although the signature can be a

Answer 42

first name, mark, initials or even a line. As long as that is the usual way for the testator to sign his name.

Question 43

Effective Revocation of a Will.

Answer 43

This happens when the testator, with the intent (to revoke) to revoke, burns, tears, cuts, obliterates, cancels and destroys the will.

Thus the will is void and has no effective.

Question 44

How can you revive a revoked Will?

Answer 44

It must be revived with full testamentary formalities.
Example is a Codicil.

Question 45

What is a codicil

Answer 45

A codicil is a later testamentary instrument that amends, alters or modifies a previously executed will.

IT mut be executed with the same formalities as a Aill.

Question 46

Republication by Codicil

Answer 46

the Valid execution of a codicil that makes references to a revoked will would cause that will to be revived.

Question 47

Witness requirement in a Holographic will

Answer 47

two disinterested witnesses.

Question 48

When does a gift lapse

Answer 48

Usually if a will beneficiary dies before the testator, the gift lapse.

Unless an antilapse statute is applicable in the situation.

Question 49

A gift to a beneficiary can be saved under the anti-lapse statute if

Answer 49

the predeceasing beneficiary was a grandparent or a lineal descendant of the grandparent of the testator.

If the beneficiary was not protected under the anti lapse statute, the gift will pass under the residuary clause.

No residuary clause, then it passes intestacy by per capita with representation.

Question 50

REal Property and Contracts

A deed may validly convey real property to inter vivos (within the Grantor’s lifetime) so long as

Answer 50

1. There is donative intent
2. delivery of the deed by the donor.
3. Acceptance of the deed by the donee

Voluntary Transfer: The donor must willingly transfer the property.
Donative Intent: The donor must clearly intend to make the gift.
Acceptance by the Donee: The donee must accept the gift.
Delivery: The donor must deliver the deed to the donee.
Description of Property: The deed must contain a detailed legal description of the property.

Question 51

Requirements of a Valid Deed.

Answer 51

1. The deed must be in writing
2. signed by the grantor and
3. reasonably identifies the parties and the land

Question 52

A deed may validly convey real property to inter vivos (within the Grantor’s lifetime) so long as

1. There is donative intent
2. delivery of the deed by the donor.
3. Acceptance of the deed by the donee

Answer 52

Delivery of the deed can include symbolic, physical, etc

Question 53

the Surety Provision of the Statute of Frauds

Answer 53

No action concerning an agreement shall be brought against any person upon a promise to answer for the debt, default, or misdoings of another, unless that agreement is in writing and signed by the party to be charged or his agent.

surety is a promise by a surety or guarantor to pay one party (the obligee) a certain amount if a second party (the principal) fails to

Question 54

A collateral undertaking applies

Answer 54

when the promisor is merely a surety or grantor,

receives no direct benefit,

and is liable only if the debtor fails.

Question 55

Is a Grantee who assumes an existing mortgage a surety?

Answer 55

No, a Grantee who assumes an existing mortage is not a surety.

The grantee makes no promise to pay the debts of another, but promises the grantor to pay the mortgagee the debt the grantee owes to the grantor.

Question 56

the Parole Evidence Rule

Answer 56

this applies to written documents including deeds.

The parol evidence rule is a legal rule that says any agreements made outside of a written contract cannot be used in court unless there is evidence of fraud, duress, or a mutual mistake. This means that any information that is not included in the written contract is not allowed as evidence in a contract dispute. The rule is meant to prevent people from lying about what was agreed upon in a contract.

There are two exceptions to the rule: the collateral contract exception and the ambiguity exception. The collateral contract exception applies when there is a side agreement that is related to the original written contract and meets certain conditions. The ambiguity exception applies when the language in the written contract is unclear and can be interpreted in more than one way. In this case, extrinsic evidence can be used to determine the true meaning of the contract.

Question 56

Why is a grantee who assumes an existing mortgage not a surety?

Answer 56

The grantee makes no promise to the mortgagee (lender) to pay the debt of another, but promises the grantor to pay the mortgagee the debt the grantee owes to the grantor.

Gantor - Seller

grantee - buyer .

The mortgagor is the borrower of the loan. If you’re receiving the loan to buy a home, you’re the mortgagor.

The mortgagee is the lender — a bank, credit union or online lender

Question 57

Definition of the Parol Evidence Rule

Answer 57

Any agreements made outside of the legal contract or deed are not admissible in court, unless there is evidence of fraud, duress or mutual mistake.

There are two exceptions to the rule: the collateral contract exception and the ambiguity exception. The collateral contract exception applies when there is a side agreement that is related to the original written contract and meets certain conditions. The ambiguity exception applies when the language in the written contract is unclear and can be interpreted in more than one way. In this case, extrinsic evidence can be used to determine the true meaning of the contract.

Question 58

Mutual Mistake of fact.

Answer 58

There was a material mistake, meaning that it must concern one or more basic assumptions on which the contract was made;

The party was adversely-affected by the mistake;

The mistake was mutual, meaning both parties had the same mistaken belief; and

The adversely-affected party does not bear the risk of the mistake (i.e. there is no assumption of risk) under the rule stated in
Restatement Second of Contracts § 154.

Question 59

Unilateral mistake of fact

Answer 59

There is a material mistake, meaning that it must concern one or more basic assumptions on which the contract was made

the party was adversely affected by the mistake

the mistake was unilateral, meaning only one party had the same mistaken belief.

The effect of the mistake is such that enforcement of the contract would be unconscionable, OR

The other party knew or had reason to know of the mistake OR

The fault of the other party caused the mistake.

Question 60

Unilateral Mistake of Contract

Answer 60

Where one party was mistaken about one or more basic assumptions on which the contract was made.

The party was adversely affected, the mistake was unilateral.

This alone isn’t enough to void a contract unless the other party had reason to know of the mistake and did nothing.

Question 61

Federal Rule of Civil Procedure

The Requirements of Subject Matter Jurisdiction

Answer 61

Diversity of citizenship and 75k in the amount of controversey

Question 62

When can you file a motion to dismiss for lack of SMJ?

Answer 62

Whenever.

Question 63

Amount in controversy Requirement

Answer 63

The amount in controversey requirement follows the Legal Certainty Test. This means that the court must conclude that the requireed amount is met.

When it isn’t certain, the court will not able to determine whether it is met.

Question 64

Requirements to file a Motion to dismiss for lack of Personal Jurisdiction.

Answer 64

In the first respond to a pleading. So within 21 days of the first complaint.

One of the grounds of the VA Long Arm statute must be met.

And the Consitutional Requirement must be met. aka the miminum Contracts test.

Question 65

The VA LONG ARM STATUTE

Answer 65

This includes transacting business in VA, contracting to supply goos or services in VA

Causing tortious injury in VA,. and other grounds.

§ 8.01-328.1. When personal jurisdiction over person may be exercised.
A. A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action arising from the person’s:

1. Transacting any business in this Commonwealth;
2. Contracting to supply services or things in this Commonwealth;
3. Causing tortious injury by an act or omission in this Commonwealth;

**4. Causing tortious injury in this Commonwealth by an act or omission outside this Commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this Commonwealth;
**
5. Causing injury in this Commonwealth to any person by breach of warranty expressly or impliedly made in the sale of goods outside this Commonwealth when he might reasonably have expected such person to use, consume, or be affected by the goods in this Commonwealth, provided that he also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this Commonwealth;

6. Having an interest in, using, or possessing real property in this Commonwealth;
7. Contracting to insure any person, property, or risk located within this Commonwealth at the time of contracting;

Question 66

The Constitutional Test, Due Process Requirement, the Minimum Contracts Test

Answer 66

The Defendant must have sufficient minimum contacts with the forum state that the defendant could reasonably anticipate being sued in the forum.

By purposefully availing himself of the state by taking the benefits of the State’s laws and privilege that he would be put on notice of a possible lawsuit.

The quality and nature of the connection between the defendant and the forum state

It doesn’t matter if he didn’t set foot in th estate.

communications, emails

Question 67

Where is Venue proper in the Federal District Court.

Answer 67

Where the defendant or all the defendants lives or in a federal district where a substantial events or omissions giving rise to the case occurred.

If none of these requirements are met, then it would be based on personal jurisdiction.

Question 68

VCVP

The Defense of Unclean Hands

Answer 68

An equitable defense that bars relief to a party who has engaged in inequitable behavior (including fraud, deceit, unconscionability, or bad faith) related to the subject matter of that party’s claim. The unclean hands doctrine is also known as the “clean hands doctrine” and the “dirty hands doctrine.” The unclean hands doctrine typically applies only to equitable claims such as requests for injunctive relief or specific performance, but some jurisdictions permit it as a defense to legal claims as well.

A equitable defense that bars relief to a party that engaged in inequitable behavior such as fraud, deceit, and unconscionability or bad faith.

This alloes applies to equitable claims such as requests for injunstive relief or specific performance.

Question 69

Defense of Unclean Hands

Answer 69

An equitable defense where the defendant engaged in fraud, deceit, or unconscionability or Bad Faith.

Such as lying or intentionally misleading a party.

Question 70

Doctrine of unclean hands

Answer 70

the party seeking equitable relief must not be guilty of fraud, or wrongful conduct and the wrongful conduct must relate to the claim asserted.

Question 71

Availability of a Legal Remedy Defense

Answer 71

Specific performance is an equitable remedy, which compels performance or such substantial performance as will do justice to the parties under the circumstances.

However, Courts should not grant specific performance unless monetary damages would be insufficient or an incomplete remedy for the breach.

Question 72

When should specific performance be granted?

Answer 72

The contract at issue is enforceable,

all conditions precedent to performance has been satisfied

the contractual terms are sufficiently definite to be enforced by the court

the defendant is able to perform or the performance can be abted,

and it would be fair to specifically enforce the contract.

Question 73

Hardship or Oppression.

Answer 73

A court of equity will not grant specific performance if it will result in great hardship and the hardship was due, in some measure, at least to the conduct of the other party.

Example, a contract to sell goods valued at 300k for only 1 k each

Question 74

Fraud

Answer 74

To resind a contract based on fraud, there must be a false statement of facts, postively made, not meter matters of erroneous opinions.

A concealment to afford ground of rescission for fraud must be a wilful suppression of such facts in regard to the subject matter of the contract as the party making it is bound to disclose.

Question 75

Example of fraud

Answer 75

Where the other party was aware of the true value of the card as well as the fact that the other party wasn’t aware.

Making a false statement of fact, positively made, not meter matter of opinion.

rescission of contract.

Question 76

Motion to Intervene in the Case.

Question 77

Motion for Temporary Injunction

Answer 77

That she has a recognized legal right to the baseball cards and will suffer irreparable harm without injunction prohibiting Paul from disposing them.

that the balance of equities favor her.

She is likely to succeed on the merits of her claim.

Exigent circumstances support her claim.

that she has no adequate remedy at law

the granting of an injunction is an extraodrinary remedy and rests upon the discretion of the court.

Question 78

Action in Detinue

Answer 78

A proceeding in detinue to recover personal property unlawfully withheld from the plaintiff may be brought on a warrant or motion for judgment if pretrial seizure is not sought at the time of filing.

Question 79

Local Government

State and Governmental Agents, while acting in their governmental capacities are immune from liabilty for tortious injures negligently inflicted.

Answer 79

This applies to all localities in VA.

Question 80

County immunity expends to

Answer 80

their employees and officers who negligently cause injury to another.

Question 81

A county’s actions are not assessed under the governmental-propreitary distinction applicable to municipalities, but rather

Answer 81

County immunity extends to acts that would be considered governmental or proprietary.

Question 82

the basis of a school board’s immunity from liability for tortious acts has been generally found in what?

Answer 82

it is a governmental agency and acts in a governmental capacity in its performance of its duties imposed by the law.

The immunity is incident to a governmental agency.

Question 83

When is immunity for school boards waived?

Answer 83

It is waived for damages arising out of an accident to the extent of an insurance policy covering a vehicle in the accident.

Question 84

What is the purpose of sovereign immunity?

Answer 84

It is to protect the public space and provide for smooth operation of government.

In order to eliminate the public inconvenience and danger that might spring from officials being fearful to act or take public jobs based on the threat or use of vexatious litigation, certain government employees are cloaked by sovereign that applies to employers

Question 85

The factors to determine whether an employee is covered by sovereign immunity for tortious injurys

Answer 85

1. the nature of the function that the employee performs
2. the extent of the government entity’s interest and involvement in the function
3. the degree of control and direction exercised by the governmental entity over the employee
4. and whether the wrongful act involved the exercise of judgment and discretion.

Question 86

A teacher’s supervision and control of a physical education class, including the decision of what equipment and attire is to be worn by students, clearly involves, at least in part, the exercise or judgment and discretion by the teacher.

Answer 86

This would weigh in favor of the teacher.

If the injury was the result of discretion rather then neglect.

Question 87

Contributory Negligence

Answer 87

it proven is a complee bar to recovery by the palintiff in VA.

It must be raised in an initial responsive pleading or the defense is waived. unless contributory negligence is shown by the plaintiff’s own evidencce.

Question 88

When is a Plaintiff’s contributory negligent?

Answer 88

if he failes to act as a reasonable person should for his own safety under the circumstances.

Question 89

Assumption of Risk

Answer 89

When the plaintiff fully understodd and appreciated a known danger and voluntarily exposed himself to the danger