MBE Questions Wrong Flashcards
When can a third party beneficiary sue for enfocement?
Where the third party’s rights have vested: (i) when the beneficiary manifests assent to the promise in a manner invited or requested by the parties; (ii) brings suit to enforce the promise; or (iii) materially changes position in justifiable reliance on the promise.
Is a mortgagee treated as a BFP for purposes of a recording statute?
Yes- mortgagees who record without notice are granted the benefit of a recoroding statute. Ex: in a notice jx, the mortgagee doesn’t have to record, just has to be the last BFP for value.
What is the best evidence rule?
If a writing’s contents are introduced into evidence, the writing itself should be introduced. Oral testimony of its contents should only be introducted after it’s shown that the original is unavailable for reason other than serious misconduct of the proponent
What qualifies as unreasonable force to protect property?
Leaving electricity on to a power station for the sole reason of knowing someone might come try to take things counts!
How may the government regulate freedom of the press?
Tax exemptions based on content are no good where there is no compelling government interest.
How do we calculate value when a tortfeasor is liable for conversion?
Fair market value of the chattel converted (and the P is not required to take converted property back once its been converted
What is negligence per se?
A clearly stated duty created by a criminal statute may replace the more general duty of care created by a criminal statute may replace the more general duty of care if the proponent of the statutory standard IF Class of Persons, and Class of Risk is satisfied. Where you can establish causation and damages, it’s prima facie negligence.
Is an estate liable for the decedants yet-unpaid contractual obligations?
Yes, even if perforamance wasn not completed before the obligees death
What may a buyer recover if she accepts nonconforming goods?
The difference in value between the goods as contracted and the goods as received (WARRANTY DAMAGES)
Torts recovery based on combining acts
Where actions are independent and injury is divisible, then each tortfeasor is liable only for the portion of injuries that can be identified to her.
How may default judgment be entered?
A clerk may enter default judgment where damages are certain (liquidated damages clause), but a judge must conduct a hearing on unascertained damages (PI). If the D has made an appearance, notice must be given to the D.
What does the contract clause protect?
The Contracts Clause prohibits STATES from retroactively and substantively impairing contract rights unless the gov’t act serves an important and legitimate gov’t interest and is reasonable and narrowly tailored means of promoting that interest.
When does a suretyship agreement fall outside the SoF?
Where the main purpose of the agreement of the promisor is to secure an advantage or pecuniary benefit for himself, even if the effect is still to pay the debt of another.
May a buyer be liable for the amount of a mortgage from a previous owner?
Yes: Both the mortgagor and buyer of a mortgaged home are liable for a deficiency from a foreclosure sale WHEN THE BUYER SIGNS AN ASSUMPTION AGREEMENT. IE: “I take subject to this mortgagte, which obligation I expressly assume.”
What counts as invasion of the right to privacy
(1) Appropriation of the plaintiff’s picture or name
(2) intrusion on the plaintiff’s affairs or seclusion
(3) Publication of facts placing the plaintiff in a false light
(4) public disclosure of private facts about the plaintiff
** VA only recognizes appripriation of the plaintiff’s name or likeness for the defendant’s commercial gain
Modification of SoF UCC contract to lower cost
Where a contract as modified is for less than $500 no writing is required to make the modification enforceable.
What is “knowing” intent under the MPC?
Under the UPC, a person acts “knowingly” with respect to the nature of his conduct when he is aware that his conduct is of the nature or that certain circumstances exist. He acts knowingly as to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result.
If during escrow a home is completely destroyed, what will the buyer be liable to pay at closing?
Under the majority rule where the contract is silent, the buyer bears the risk of loss and therefore the seller is entitled to receive specific performance of the contract so the buyer must pay the full price
Where does supplemental jx exist?
(1) In federal question cases where the supplemental question arises out of the same T/O and doesn’t deal with novel/complex state law, predominate, or other compelling reason, and
(2) In diversity claims where supplemental jx would contaminate diversity of citizenship OR it seeks $75 or less and is make by a plaintiff against parties added through joinder, intervention or impleader, OR seeking to join throguh compulsory joinder or intervention.
May an officer seize contraband during a search incident to arrest?
Yes if the officer upon plain feel immediately recognized it to be contraband.
Can you be convicted of attempted murder if its reckless disregard?
NO because RECKLESS DISREGARD ISN’T INTENT TO COMMIT THE ACT
How many jurors are needed to satisfy the 6th amendment right to a jury trial?
- Therefore a rule allowing 5/6 jurors to convict and non unanimous is impermissible.
A general warranty deed contains the following covenants
Seisin, right to convey, against encumbrances, further assurance, quiet enjoyment, warranty.
Under federal law, what are the requirements for substited service at a D’s home?
That the copy of the summons and complaint be left with someone of suitable age and discretion who RESIDES there
When may plea bargains be excluded?
Withdrawn guilty pleas, pleas of nolo contendere, offers to plea guilty, and evidence of statements made in negotiating such pleas are inadmissible agaisnt the D who made such a plea or who was a participant in the plea discussion.
When may the obligation between a debtor and creditor be modified?
Under an accord for an existing contract , one party may allow different performance. Must generally be supported by consideration, but consideration MAY be of a lesser value than originally valued for AS LONG AS its a different kind of consideration.
