MBE Notes

Question 1

Privileges and Immunities Clause of Art IV

Answer 1

The privileges and immunities clause of Article IV, Section 2, prohibits states from discriminating against non-residents (based upon the fact that they do not reside in the state) with respect to “essential activities” or “fundamental rights.”

Question 2

Common Law Burglary

Answer 2

Common law burglary is the breaking and entering of another’s dwelling at night, with intent to commit a felony therein.

Question 3

Wrongful death v. Survival action

Answer 3

It is not the neighbor’s estate that will sue in wrongful death, but the neighbor’s heirs. Instead, the neighbor’s estate will sue in a survival action.

Question 4

Content based restriction

Answer 4

when the government is the speaker, it may discriminate based on the content of the speech. e.g., gov’t publishes a magazine

Question 5

Parol Evidence

Answer 5

Parol evidence is both oral and documentary evidence of negotiations and other communications between the parties that took place prior to or contemporaneous with the execution of the written contract. Parol evidence is always admissible to explain or interpret the terms of a written contract.

This substantive rule of contract law states that when the parties to a contract have executed a writing meant as the final expression of the terms of their agreement, evidence of any prior or contemporaneous terms, both oral and written, will not be admissible as evidence of contradictory terms or conditions. Since the oral condition regarding the inclusion of a pool house did not appear in the subsequent written contract signed by the homeowner it is both inadmissible and unenforceable, so the pool company is entitled to the full contract price of $20,000.

Question 6

Settlement offers

Answer 6

While evidence of an offer to settle a claim is generally inadmissible in court, admission of such evidence may be permitted for the limited purposes of proving a witness’s bias or prejudice, for negating a contention of an undue delay, and for proving that an effort exists to obstruct a criminal investigation or prosecution.

Question 7

Factual Impossibility v. Legal impossibility

Answer 7

Factual impossibility is not a defense to attempt.

Legal impossibility occurs where the defendant did everything he intended to do, but his actions would not constitute a criminal offense.

Question 8

Fee Simple Determinable

Answer 8

A determinable estate terminates automatically on the happening of a named future event. A determinable estate is described with the following words: “for so long as,” “during,” “while,” or “until.” The language “to my daughter and her heirs for so long as the premises are used for a tea shop” created a fee simple determinable with the possibility of reverter.

Question 9

Intended v Incidental Beneficiary

Answer 9

Under the Second Restatement, intended beneficiaries have a right to sue a breaching promisor and incidental beneficiaries do not. The key factor in determining whether a party is an intended beneficiary is whether the promised performance is intended to benefit the third-party beneficiary.

Question 10

Option Ks v firm offers

Answer 10

This question concerns a sale of goods by a merchant to a non-merchant. If this were a UCC firm offer, it would not need a payment to be effective. Rather, a written offer made by a merchant that expressly states that it will be held open is effective, but becomes revocable after three months. By adding the consideration, as the parties did here, they are making a common law option contract, which can be irrevocable for more than three months.

Question 11

S & T Torts

Negligence Test

Answer 11

Test for negligence: D must fail to exercise such care as a reasonable person in his position would have exercised; his conduct must be a breach of the duty to prevent the foreseeable risk of harm to anyone in plaintiff’s position, and this breach must cause plaintiff’s damages.

Question 12

S & T Torts

Res Ipsa Loquitur

Answer 12

It establishes a prima facie case of negligence only where direct evidence of the circumstances of the injury are unclear. Three elements must exist:

The event causing the injury would normally not have occurred in the absence of negligence;

D was in exclusive control of the instrumentality causing injury;

P must not have voluntarily contributed to the event causing his injury;

Question 13

S & T Torts

Defamation

Answer 13

Special Damages – only need to prove special damages as part of his claim, when his claim is based on slander but not slander per se.

Slander per se where special damages are presumed:

1. statements accusing someone of a crime
2. statements alleging that someone has a foul or loathsome disease
3. statements adversely reflecting on a person’s fitness to conduct her business or trade; and
4. statement imputing serious sexual misconduct to someone

Note: special damages are economic damages, e.g.. lost job, inheritance, gift, customers…etc.

Question 14

S & T Torts
Defamation and qualified privilege
Malice

Answer 14

Knowing falsity or a reckless disregard for the truth.
Qualified privilege protects a public or private interest and the statement will be protected if it’s in furtherance of that interest.
Defamation is never a strict liability offense, P must least prove negligence.

Level of fault:

Public figure, public issue, media D – MALICE

Public figure, private issue, media D – negligence

Private figure, media D – negligence

Non-media D – negligence

Truth is a complete defense to defamation.

Question 15

S & T Torts

Invasion of Privacy

Answer 15

1. Appropriation of P’s personality for D’s own commercial advantage;
2. Intrusion on P’s affairs or seclusion;
3. Publication of facts which place plaintiff in a false light;
4. Public disclosure of private facts about P.

A FLIP: Appropriation, False Light, Intrusion, Private

Remember: TRUTH is the essence of the damage in most invasion of privacy claims, while its FALSITY is the linchpin of a defamation claim.

Question 16

S & T Torts

Strict Liability

Answer 16

1. by keeping a wild animal
2. by conducting an abnormally dangerous activity; or
3. by selling a defective product (strict product liability)

Strict liability involves absolute duty, not a duty of reasonable care.

Question 17

S & T Torts

Product Strict Liability

Answer 17

CCC BoND

1. Control: the condition must have existed when it left the defendant’s control;
2. Changes: the product must not be expected to undergo significant changes before it gets to the user
3. Causation: damage must result from the defect
4. Business: the seller must be in the business of selling the product, not a casual seller.
5. No privity: D’s duty extends to anyone foreseeably endangered by the product, no privity req.
6. Defect: the product must be defective.

Question 18

S & T Torts

Product Liability

Answer 18

1. Strict products liability
2. Breach of warranty
3. Negligence

Note: warranty is a separate theory of recovery for a defective product, it is not an element of strict product liability.

Question 19

S & T Torts

“Best argument”

Answer 19

Look at these Qs this way – only one of the answer choices will provide a successful claim or defense. The other three will ALL be flawed in some way, because they either don’t apply to the facts or don’t correctly apply to the law.

Question 20

A bill of attainder

Answer 20

A bill of attainder is a legislative act that inflicts punishment without a judicial trial upon named individuals or an easily ascertainable group for past conduct. The state statute retroactively imposes criminal penalties on easily ascertainable members of a group (Libertarians). As such, the statute is an unconstitutional bill of attainder.

Question 21

Witness’s crime involving dishonesty

Answer 21

A witness’s character for truthfulness may be attacked by evidence of a crime, regardless of the punishment, if the elements of the crime required proof of a dishonest act or false statement. The crime of larceny by false pretenses requires a dishonest act or false statement to perpetrate the crime. Thus, evidence of the witness’s conviction of larceny by false pretenses is admissible to attack the witness’s character for truthfulness.

Question 22

M’Naughten test

Answer 22

Under the M’Naughten test, a defendant is relieved of responsibility upon proof that, at the time of the commission of the act, he was laboring under such a defect of reason from a disease of the mind as to not know the nature and quality of the act he was doing, or if he did know it, not to know that what he was doing was wrong.

Question 23

Req K v. Output K

Answer 23

A requirement K is based on the language “All breads and pastries we will need…” According to the UCC, the offeree may change the terms if the change is reasonable and made in good faith.

vs.

This is not an output contract. It does not contain a term specifying “all the bread and pastries we can provide for the following year.”

Question 24

14th Amendment

Answer 24

Fourteenth Amendment, which limits state and local government action, not federal. (Federal discrimination would be prohibited by the right to equal protection embedded in the Fifth Amendment’s Due Process Clause, not by the Fourteenth Amendment’s Equal Protection Clause.)

The Fourteenth Amendment prohibits “state action” - it does not apply to purely private activities. Thus, Congress’s criminal statute enforcing rights conferred by the Equal Protection Clause of that amendment would be most clearly applicable if applied to the actions of the state government.

Question 25

Congress’s Spending Power

Answer 25

When Congress mandates that all allocated funds must be spent, the president has no authority to disregard that mandate. If the president were to disregard the express mandate of Congress, the court would likely find that the president had violated the separation of powers inherent in the Constitution.

The president may veto any spending bill presented by Congress. Thus, it is a misstatement of law to suggest that Congress’s spending authority is exclusive.

Question 26

False Pretense v. Larceny by Trick

Answer 26

The crime of false pretenses consists of a knowing false representation of a material fact with intent to defraud, which causes the victim to pass title to his property.

If one obtains possession without title by his lies, his crime is larceny by trick.

Question 27

Declaration against interest

Answer 27

Federal Rule of Evidence 804(b)(3), a declaration against interest requires that the declarant be unavailable at trial, that the declaration was contrary to the declarant’s pecuniary, proprietary or penal interest or tended to subject the declarant to liability when it was made, and that a reasonable person in the declarant’s position would not have made the declaration if it was not true.

Question 28

Marketable Title at time of closing

Answer 28

When two parties enter into a valid agreement for the purchase and sale of real property, the buyer is obligated to convey marketable title to the property at the time of closing. In this case, at the time that the investor and the real estate developer entered into their purchase and sale agreement, the investor did not hold marketable title to the strip mall. However, the investor acquired title to the property prior to the closing date. Therefore, the investor has a valid breach of contract action against the real estate developer and may recover appropriate damages. The damages will most likely be measured by the difference between the agreed-upon purchase price ($925,000) and the current market value of the strip mall ($700,000).

Question 29

Sellers of mass market new homes = Strict Liability

Answer 29

Most jurisdictions hold sellers of mass-marketed new residences strictly liable for defects in those homes. Commercial suppliers at all levels of the distribution chain (i.e., manufacturer, distributor, retailer) as well as commercial lessors, new home developers, and sellers of used goods are potential defendants.

Question 30

Negligent rescuer

Answer 30

Negligent defendant owes a rescuer an independent duty of care. Courts recognize that a rescuer is a foreseeable plaintiff. Because the man was injured attempting to stop the car to prevent it from hitting other guests at the party, the man qualifies as a rescuer. Even when a rescuer is negligent in acting, the negligent defendant will be liable unless it is shown that the rescuer was wantonly reckless.

Question 31

Attractive nuisance doctrine

Answer 31

A landowner has a heightened standard of care to protect children from dangerous artificial conditions conducted on the land. When the doctrine applies, the landowner has a duty to exercise reasonable care.

Here the facts indicate that the brightly colored bus in its current condition could pose an unreasonable risk of danger to children. The facts indicate the pizza shop is near a residential area, thus making it foreseeable that a child would be likely to trespass. Because of the child’s age he is unlikely to appreciate the risk and the risk of the danger of the bus outweighs its social utility. The pizza shop owner would owe the child a duty and would be subject to a heightened standard of care.

Question 32

Deed as a security device

Answer 32

A deed which appears to be absolute on its face can be shown to have been intended as a security device to insure repayment of an obligation. In such a case the arrangement will be treated as a mortgage rather than an absolute deed. Parol evidence is admissible to establish that an absolute deed was intended to serve as security for a debt, even though there is no mention of such an intent in the deed.

Question 33

Easements

Answer 33

This answer choice is wrong because mere non-use alone will not terminate an easement.

Question 34

Jury verdicts

Answer 34

The right to a jury trial is required for “serious offenses.” A serious offense is one where the authorized statutory penalty is for more than six months. While the Constitution does not require a 12 person jury, there must be at least 6 jurors on the panel to satisfy the right to counsel. The objection should be sustained because the Supreme Court ruled that under the Sixth Amendment, 6 member jury verdicts must be unanimous.

Question 35

Larceny for object found by another…

Answer 35

The owner of a lost object continues in “constructive possession” of it until someone finds it. Thus, if the finder forms an intent to permanently deprive the owner at the moment the object is found, there is a sufficient trespassory taking to support a conviction for larceny.

Question 36

Covenants

Answer 36

If the holder seeks damages, the restrictive covenant is a covenant running with the land. If, however, the holder seeks injunctive or other equitable relief, the restrictive covenant is an equitable servitude.

Question 37

S & T tips: Real Property

POE

Answer 37

1. Eliminate the answers that are wrong on the facts
2. Eliminate the answers that are wrong on the law
3. Eliminate the answers that are irrelevant

Question 38

S & T tips: Real Property

Answer 38

“X will prevail, because…” the fact that makes the answer correct must be given to you in the fact pattern of the Q.

“X will prevail, if…” that fact needn’t be stated in the Q.

Q asking for the argument that’s “most likely to succeed” determine which answer choice most closely addresses the greatest obstacle to success in the case. Look for central issue

Question 39

S & T tips: Real Property

Answer 39

“but if” fee simple subject to condition subsequent, violation of RAP gives, FSA

“so long as” fee simple determinable, violation of RAP leaves, possibility of a reverter.

A class gift to grandchildren appear in a will is usually valid, but invalid if it appear in a inter vivos conveyance.

The Rule Against Perpetuities does not apply… even though the time frame exceeds 21 years, because reversionary interests are exempt from the rule.

Question 40

S & T tips: Real Property

Answer 40

A person with a contingent remainder may transfer his interest through a device like quit claim, before it vests.

Remainder is contingent if it is subject to a condition precedent other than the mere expiration of the preceding estate that must be satisfied before the remainder can become a present interest.

Question 41

Discrimination against aliens

Answer 41

The Fourteenth Amendment equal protection clause generally prohibits state or local government discrimination against aliens unless the government’s action passes the strict scrutiny test.
That is, the government must prove that the discrimination is necessary to advance a compelling government interest.

The rational basis test is only employed when the state or local government discrimination against aliens involves the democratic political process (i.e., voting, holding elected office) or hiring for government jobs with authority for implementing public policy (elementary and secondary school teachers, police officers, probation officers). Here, the state law prohibits aliens from holding all state government jobs. The job of park landscaper does not involve the democratic political process or the implementation of public policy, so the discrimination must advance a compelling government interest and the burden is on the state to prove this.

Question 42

Specific instances of a crime

Answer 42

Under the Federal Rules of Evidence, specific instances of conduct of a witness are not generally admissible to attack the credibility of the witness, unless they relate to a crime of which the witness was convicted. Specific instances can be inquired into on cross-examination of the witness concerning the witness’s character for truthfulness.

Question 43

For negative easements

Answer 43

Implied for necessity is ok, if there was common ownership.

Prescriptive NEVER, because hard to show “open and notorious”

An express easement in gross benefits a particular individual, not successive grantees of the dominant estate. The easement does not benefit the estate but rather benefits the owner of the easement personally.

Question 44

Voting -Fundamental right but…

Answer 44

The right to vote is a fundamental constitutional right. Normally, restrictions on the right to vote must satisfy strict scrutiny. However, reasonable restrictions on age, residency, or identification implicate only rational basis review.

Question 45

Sentencing and Hearsay

Answer 45

Rules of Evidence do onto apply to sentencing, a judge can hear hearsay evidence.

Question 46

Miranda violation

Answer 46

However, even though the police recovered the painting as a result of her statements, the painting will be admissible, because any physical evidence recovered as a result of police questioning that violates Miranda will nonetheless be admissible at trial.

Question 47

SOF

Answer 47

although the contract was oral, the Statute of Frauds does not apply to service contracts.

Question 48

Unilateral mistake

Answer 48

A unilateral mistake will not prevent formation of a contract unless the non-mistaken party is aware of the other party’s mistake and makes no effort to correct it.

Question 49

Death of the buyer before closing-land sale K

Answer 49

During the period between formation and performance of a land sale contract the death of either the buyer or the seller will generally not terminate the contract. When the woman died her interest passes by descent to her son. However, the son is not required to pay the purchase price; the purchase price would be paid by the woman’s personal representative out of the assets of the estate.

Question 50

Forged Deed

Answer 50

The general rule is that a forged deed is void and cannot pass title. Even a buyer who would otherwise be considered a bona fide purchaser of the forger’s interest takes nothing because the previous holder of title, against whom the forgery was committed, is entirely blameless, and the law will not disturb the existing title. Since the deed by which title to Lot 18 was supposedly transferred to the investor was forged, the deed is void.

Question 51

Due Process Clause

Answer 51

If a regulation does not burden any fundamental rights or deprive anyone of a protected liberty or property right without due process of law—it only incidentally burdens travel. In addition, there is no protected liberty interest (incarceration, reputation, speech, religion, etc.) or property interest (government job or license, welfare benefit, etc.) to raise a procedural due process argument.

Question 52

Equal Protection Clause

Answer 52

The discrimination here is reasonable. The Equal Protection Clause protects against unreasonable discrimination. When the discrimination is against a suspect class or fundamental interest, the government must show that the regulation is necessary to advance a compelling government interest. This regulation does not involve suspect classes or fundamental rights. This is merely an economic regulation that will be judged under the rational basis test.

Question 53

Self defense-Character

Answer 53

Here, the defendant is accused of the victim’s murder during a bar fight, and the defendant asserts self-defense. Therefore, evidence of the victim’s character for violence when drinking is relevant to the claim of self-defense. However, evidence of the victim’s character must be in the form of opinion or reputation evidence. Because the witness’s testimony is with regard to specific prior bad acts of the victim, the evidence is not admissible because it is not reputation or opinion testimony, and the objection should be sustained.

Question 54

Aliens and P & I section IV

Answer 54

The exclusion of aliens does not violate the privileges and immunities of Article IV. The privileges and immunities clause of Article IV protects the rights of federal citizenship, such as the right to travel interstate. The clause applies to state, not federal, infringements of citizens’ rights and does not apply to aliens.

Question 55

Alienage and States

Answer 55

This answer states the test for determining the constitutionality of state, not federal, alienage classifications. When states classify on the basis of alienage, the classification is strictly scrutinized and the state must show a compelling government interest in excluding aliens. (An exception is in the case of political or governmental functions, including police work, where the state need only show a rational relationship between the classification and a legitimate state interest.) However, the federal government may classify on the basis of alienage provided that the classification has a rational relationship to a legitimate government interest, which national security surely would be found to be.