MBE simulated exams 2 Flashcards
A plaintiff sued a defendant for serious personal injuries he incurred when the defendant allegedly drove through a red light and collided with the plaintiff’s car. Calling the defendant as an adverse witness, the plaintiff asked her if she had been drinking before the accident. The defendant refused to answer, asserting her privilege against self-incrimination. The plaintiff then offers in evidence a certified copy of a court record indicating that, eight years previously, the defendant had been convicted of reckless driving while intoxicated that caused serious personal injury, a felony.
How should the trial court rule on the admissibility of the court record?
A Admit the record as relevant character evidence because the plaintiff suffered serious personal injuries.
B Admit the record as impeachment evidence.
C Exclude the record as irrelevant because as yet the defendant has given no testimony to be impeached.
D Exclude the record because the conviction is too remote and does not necessarily reflect on the defendant’s credibility as a witness in the present proceedings.
Short answer: you can’t impeach a witness who has said nothing so far.
C The record of the conviction should be excluded because the defendant has given no testimony to be impeached. Impeachment involves the casting of an adverse reflection on the truthfulness of a witness. Although the defendant has been called as a witness, she has not given any testimony at this point. Consequently, the plaintiff is unable to introduce evidence that would otherwise constitute proper impeachment evidence.
(D) is incorrect for two reasons: First, it is unnecessary to address the issue of whether the conviction constitutes proper impeachment evidence, because impeachment is not even called for on these facts. Second, if properly offered to impeach testimony by the defendant, the conviction would not be considered too remote. Under the Federal Rules, a conviction is not too remote if fewer than 10 years have elapsed since the conviction or release from prison.
A state statute makes it a felony for anyone in the corridors or on the grounds of any building in which a court may be in session to make a speech or carry a sign intended to improperly influence judicial proceedings. During a murder trial, a friend of the defendant was arrested under the statute for carrying a sign on the steps of the courthouse bearing the message: “Free the defendant or the judge will die.”
Can the friend constitutionally be convicted under the statute?
A No, because the statute could apply to others whose speech is constitutionally protected.
B No, unless she personally intended to harm the judge.
C Yes, if there was a clear and present danger that the judge would be influenced by the sign.
D Yes, because the statute does not violate the freedom of expression guaranteed by the First Amendment.
The friend can constitutionally be convicted because the statute does not violate the First Amendment. Certain public property (e.g., public streets or parks) is so historically associated with the exercise of First Amendment rights that to avoid being subject to strict scrutiny, a restriction of speech thereon must be content neutral. Other places controlled by the government, however, are not so historically linked to speech activities, and in such locations free speech might interfere with the intended use of such locations. Thus, the government can regulate access to these limited public forums and nonpublic forums based on the subject matter of the speech, as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point of view. A courthouse and its grounds are not public forums. (The surrounding sidewalks are, but that is not in issue here.) The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place free of improper outside influence or coercion. Thus, the statute is valid and the friend can be convicted for her actions.
B) is wrong because the friend’s intent to harm the judge is irrelevant. The statute makes it a crime to make a speech or carry a sign intended to influence the judicial proceeding. The statute does not require that the violator intend to harm anyone. Because the state is entitled to regulate speech or conduct in the courthouse or on its grounds that might interfere with the judicial proceedings, it is entitled to convict the friend for her actions here regardless of her intent to harm the judge.
The owner of an art gallery entered into a written contract with an avid art collector whereby the art collector agreed to buy and the gallery owner agreed to sell for $7,500 any painting in the gallery by artist Alpha. The contract was to be executed on July 6 according to its written terms. The art collector went to the gallery on July 6 with a certified check in the amount of $7,500. The art collector pointed out a painting by a different artist hanging on the wall, and told the gallery owner that that was the painting he wanted, and that he would also take its old-fashioned $250 gilt frame to go with it. The gallery owner responded that the painting was by the artist Beta, but that the art collector could have it with the frame if he was willing to pay $250 extra for it. This enraged the art collector, and he filed suit against the gallery owner, asserting in his pleading that he remains able and willing to tender $7,500 to the gallery owner. He also asserts that prior to signing the contract, the parties agreed orally that the art collector could have a painting by Beta for the same price in lieu of one by Alpha, and that the gallery owner would throw in the frame for whatever painting he chose. The gallery owner denied that any such conversation took place. There are no other witnesses.
About which agreements should the court allow the art collector to testify?
A The oral agreement for the painting, but not the oral agreement for the frame.
B The oral agreement for the frame, but not the oral agreement for the painting.
C Both the oral agreement for the painting and the oral agreement for the frame.
D Neither the oral agreement for the painting nor the oral agreement for the frame.
Short answer: having another artist: NOT OK
Throwing in the frame: The court should allow the art collector to testify regarding just the oral agreement for the frame. Contractual terms that are set forth in a writing intended as a final expression of the parties’ agreement cannot be contradicted by evidence of any prior agreement or contemporaneous oral agreement. Although this parol evidence rule prohibits contradicting the writing, the terms of the writing may be explained or supplemented by consistent additional terms, unless the court finds from all the circumstances that the writing was intended as a complete and exclusive statement of the parties’ agreement. To determine whether the parties intended the writing to be the complete and exclusive statement of their agreement, it must be determined whether parties situated as were the parties to this contract would naturally and normally include the extrinsic matter in the writing. Here, the writing at issue states clearly that the painting subject to sale is any painting by Alpha. The art collector’s assertion of a prior agreement allowing him to buy a painting by Beta clearly contradicts the terms of the writing. Consequently, the parol evidence rule will render inadmissible testimony as to such an alleged agreement. (A) and (C) are therefore incorrect. The assertion that the parties agreed prior to signing the writing that the art collector could have a $250 frame at no additional cost does not contradict any of the terms of the writing. However, it does supplement those terms. As noted above, such supplementation is permitted unless there is a finding that the writing was intended by the parties as a complete and exclusive statement of the terms of their agreement. Under the UCC, which applies here because a sale of goods is involved, a writing is presumed not to be the complete and exclusive integration of all of the terms of the agreement. While the presumption may be overcome if the parties actually intended a total integration or it is certain that similarly situated parties would have included that term, there is no indication of that in these facts. Given that the subject of the contract was a $7,500 painting, a promise to throw in a frame priced at a fraction of the cost of the painting is likely to be found to be a consistent additional term. Given this finding, evidence of the alleged agreement regarding the frame will be admissible for the purpose of supplementing the terms of the writing. Thus, (D) is incorrect.OK
Late one evening, a cook at a diner coming off his shift was grabbed in the parking lot by a large man wearing a ski mask. The man threatened to kill the cook and demanded his wallet. The man then pulled a knife from his pocket and lunged at the cook. The cook, having taken several self-defense courses, was able to fend off the man’s attack. After being struck by the cook several times, the man dropped the knife and fell to the ground. The cook, angry at the assault, took the knife and stabbed the man, killing him instantly.
Should the cook be convicted of murder?
A No, because he was acting in self-defense.
B No, but he may be convicted of manslaughter.
C Yes, because the killing was committed during the course of a felony.
D Yes, because the killing was not committed while acting in self-defense.
Short answer: it’s B ‘cuase he was provoked and had no time to cool down. Although you are right that it was not self defense.
The cook may be convicted of manslaughter. At common law, murder was the killing of another human being with malice aforethought. Malice is: (i) the intent to kill; (ii) the intent to inflict great bodily injury; (iii) a reckless indifference to an unjustifiably high risk to human life; or (iv) the intent to commit a felony. A killing committed in self-defense, however, is not murder. A person may use deadly force in self-defense if: (i) he is without fault; (ii) he is confronted with unlawful force; and (iii) he reasonably believes that he is threatened with imminent death or great bodily harm if he does not respond with deadly force. Additionally, a killing that ordinarily would be murder is reduced to voluntary manslaughter when the killing is committed under the stress of adequate provocation (e.g., being subjected to a serious battery, being confronted with deadly force, or discovering one’s spouse in bed with another person). In the instant case, although the cook would have been justified in using deadly force to repel the initial attack, the facts indicate that the cook had successfully repelled the attack, and it appears that the cook no longer was facing a threat of imminent death. Thus, the right to use deadly force had passed. This makes (A) an incorrect answer choice. As a result, at first glance, it would appear that the cook committed murder, in that stabbing another in the heart with a knife indicates, at a minimum, that the defendant had the intent to inflict great bodily harm. However, it appears that the cook was still acting under adequate provocation, as he had just been subjected to a serious battery and had been confronted with deadly force. Thus, the killing that ordinarily would be murder is reduced to voluntary manslaughter, making (B) the correct answer choice. (C) is incorrec
A landowner conveyed her parcel of land to a buyer. The buyer placed the deed in her safe deposit box but did not record the instrument before leaving town. Six months later, the landowner conveyed the same parcel of land to a farmer, who promptly recorded his deed. The farmer had heard that the landowner previously sold the land to a different buyer, but he was sure that the landowner would not sell him property she had already sold to someone else. Six months later, the buyer returned to the land and found the farmer there. A statute of the jurisdiction in which the land is located provides: “No conveyance or mortgage of an interest in land is valid against any subsequent purchaser for value without notice thereof whose conveyance is first recorded.” The buyer now sues the farmer in ejectment.
Who owns the land?
A The farmer, because his recording cured any possible defect of his knowing of the earlier sale.
B The farmer, because he recorded first.
C The buyer, because the farmer is not protected by the recording act.
D The buyer, because her deed from the landowner came earlier than the farmer’s.
The buyer owns the land because the farmer is not protected by the recording act. In a race-notice jurisdiction such as described, a subsequent purchaser must have taken without notice of the earlier sale and must have been the first to record. Otherwise the recording act will not apply. The farmer was indeed the first to record, but he took with notice that the property had been sold before. It does not matter how the subsequent purchaser learns of the earlier sale; if that person knows about it, he loses. Because the recording act does not apply to protect the farmer, the common law rule of first-in-time, first-in-right gives title to the buyer.
A public school teacher was hired without a written contract. The school district handbook provides that all newly hired employees are at-will employees for their first year of service and may be dismissed for any reason or without reason. Six months after being hired, the teacher was dismissed without any prior notice or a hearing.
Which of the following, if true, most strongly supports the teacher’s argument that she should have been afforded notice and a hearing before dismissal?
A She was the only newly hired teacher not to have survived the probationary period for the past three years.
B There is no evidence that teachers with permanent status are any more competent than this teacher.
C The teacher moved her household from out of state in reliance on an oral promise by the school board that the job would be permanent and that she could be dismissed only for cause.
D She was the only teacher there over the age of 50.
Short answer: so C is better than A because the employee would not have an expectation to stay but an actual assurance by someone.
The teacher’s argument is most strongly supported if she moved in reliance on an oral promise that she could be dismissed only for cause. Under the Due Process Clause, a person has a right to notice and a hearing if the government deprives the person of life, liberty, or property. The Supreme Court has held that a government employee will have a property interest in continued employment only if the employee has a legitimate claim to (as opposed to a mere expectancy of) continued employment. To have such a claim, there must be a contract, clear practice, mutual understanding, etc., that the employee can be terminated only for cause. If someone in a position of authority promised that the teacher could be dismissed only for cause and the teacher relied on this promise by moving, a case can be made that the teacher had a legitimate claim to continued employment despite the employee handbook. (A) would also support the contention of a legitimate claim to continued employment. If every teacher over the past three years has survived the probation period, an argument can be made that there was a policy of retaining all newly hired teachers. However, this argument is weaker, factually, than the contract argument and so is not as good an answer choice as (C)
A woman purchased a bottle of hair dye at a drugstore. The bottle was labeled “ash blonde,” but due to a packaging mistake at the factory, the bottle actually contained a “rose gold” shade of dye. The two colors appear identical while still in the bottle, but are noticeably different once applied to hair. The woman discovered the mistake later that week when her hair turned to a perfect shade of rose gold after applying the dye.
Can the woman recover damages from the drugstore for breach of the implied warranty of merchantability?
A Yes, because the woman had a particular purpose in mind when selecting that shade of dye and relied on the packaging when she selected it.
B Yes, because the bottle was mislabeled.
C No, because the hair dye worked properly.
D No, because the factory, not the drugstore, was responsible for the mistake.
B The drugstore breached the implied warranty of merchantability because the bottle was mislabeled. Implied in every contract for sale by a merchant who deals in goods of the kind sold, there is a warranty that the goods are merchantable. To be merchantable, goods must be adequately contained, packaged, or labeled according to the contract and must conform to any promises or affirmations of fact made on the label. The bottle the woman purchased was labeled “ash blonde” when it actually contained “rose gold” dye. The product did not conform to its label, thus the drugstore breached the warranty of merchantability with the sale.
(D) is incorrect because it makes no difference that the factory was responsible for the mistake and that the drugstore did not know of the defect or could not have discovered it. Implied warranties are not based on negligence but rather on absolute liability that is imposed on sellers who deal in goods of the kind sold, such as the drugstore here.
A landowner orally agreed to sell 100 acres of land to a buyer for $10,000. As a condition of the sale, the buyer agreed to pay $5,000 of the purchase price to the landowner’s creditor. The buyer’s attorney drafted the contract, which both the landowner and the buyer read before signing. The signed document made no reference to the payment to the landowner’s creditor, and neither party noticed the oversight.
In an action by the creditor against the buyer for $5,000, which of the following facts, if proved, would be most important?
A The buyer was negligent in not having carefully read the written agreement.
B The landowner-buyer agreement was completely integrated.
C The terms of the signed document are unambiguous.
D The omission of any reference to the creditor from the written document was accidental.
D In making a determination as to who would prevail in an action by the creditor against the buyer, the most important fact would be that the omission of any reference to the creditor in the written document was accidental. If there is an agreement between the parties, the agreement is put into writing, and there is a variance between the original agreement and the writing, the writing can be reformed to reflect the intent of the parties.
A plaintiff who wants to obtain reformation of a contract must show that there was an antecedent agreement that is not correctly reflected in the writing (e.g., by mistake). These requirements are met here because the writing fails to include a provision that was included in the earlier oral agreement concerning payment of part of the purchase price to the landowner’s creditor.
(B) is wrong because, even if the landowner-buyer agreement was completely integrated, the contract could still be reformed for mutual mistake if the omission of any reference to the creditor from the written document was accidental. Under the parol evidence rule, completely integrated writings cannot be contradicted or supplemented by either written or oral expressions made prior to the writing or oral expressions made contemporaneously with the writing, but the parol evidence rule does not apply if a party to a written agreement alleges facts that entitle him to reformation of the agreement.
A homeowner looked out his front window one day and saw a neighbor standing on a narrow ledge on the second story of the house across the street. He also saw a ladder lying on the ground beneath where the neighbor was stranded. The homeowner ran out and picked up the ladder and placed it against the side of the house. However, he set it atop a patch of ice. As the neighbor started down the ladder, a rotten rung broke and he fell to the ground and was injured.
If the neighbor sues the homeowner for damages for his injuries, will he recover?
A Yes, because the homeowner’s action caused the injury to the neighbor.
B Yes, because the homeowner assumed the duty of aiding the neighbor.
C Yes, because it was foreseeable that the neighbor would be injured as a result of the homeowner’s negligent conduct.
D No, because the homeowner’s negligence did not cause the injury to the neighbor.
[ran through the facts too quickly]
The neighbor will not recover from the homeowner because even if the homeowner acted negligently in setting the ladder atop a patch of ice, this negligence did not cause the injury to the neighbor. A person generally is under no duty to assist another. Therefore, the homeowner was under no duty to assist the neighbor. However, having gratuitously undertaken to do so, the homeowner came under a duty to act as an ordinary, reasonable person while rendering such assistance. He breached this duty by setting the ladder atop the patch of ice, thus creating an unreasonable risk that the ladder would slip while the neighbor was climbing down, causing him injury. However, the homeowner is not liable for the neighbor’s injuries unless the homeowner’s breach of duty caused those injuries. Before a defendant’s conduct can be considered a proximate cause of the plaintiff’s injury, it must first be a cause in fact (actual cause) of the injury. An act is the cause in fact of an injury when the injury would not have occurred but for the act. Here, the neighbor’s fall and injuries would not have occurred but for the rotten rung. There is no indication that the homeowner’s negligence in placing the ladder on the ice contributed in any manner to the injuries. If the homeowner had carefully placed the ladder on a solid, ice-free surface, the neighbor would have incurred the same injury by stepping on the rotten rung. Therefore, the homeowner’s negligence was not a cause in fact of the neighbor’s injuries. Because the element of causation is missing, the homeowner will not be liable for the injuries to the neighbor.
When does alienage come in Equal Protection?
State classifications based on alienage that do not involve alien participation in the self-government process are suspect under the Equal Protection Clause and are subject to strict judicial scrutiny.
A car owner was having problems with her car’s brakes. The brake shop to which she brought her car told her that the entire hydraulic brake system needed to be replaced at a cost of $1,800. The car owner agreed to have the work performed, and the shop replaced the brake system. When the car owner picked up the car, she insisted on testing the brakes before paying for the work. During a test drive, the brakes squeaked when compressed but otherwise worked perfectly. The mechanic told the car owner that the squeak would disappear on its own in a few days. The car owner stated that she would pay the shop when the squeak disappeared and left with her car. A month later, the brakes still squeaked and the car owner refused to pay for the work. The shop files suit to collect the $1,800 contract price.
What is the likely outcome of the suit?
A The car owner must pay the shop the $1,800, because she got the substantial benefit of her bargain.
B The car owner must pay the shop the $1,800, but is entitled to set off the amount necessary to fix the squeak.
C The car owner does not have to pay the shop anything, because the squeak amounted to a breach of contract that relieved the car owner of her duty to perform.
D The shop must “cure” by providing the car owner with a new set of brakes that do not squeak, after which the car owner must pay the shop the $1,800.
Because the shop’s breach of contract was minor, the car owner must pay the brake shop the $1,800, but she would be entitled to damages to remedy the squeak. A breach of contract is minor if the nonbreaching party gets the substantial benefit of her bargain, despite the other party’s defective performance. A minor breach does not relieve the nonbreaching party of her duty to perform under the contract, although she will be entitled to remedial damages for the breach. Here, the brakes worked perfectly except for the squeak and, most importantly, stopped the car when compressed, as brakes are supposed to do. Thus, the breach was minor and would not relieve the car owner of her own duty to perform (i.e., to pay the bill), although she could get damages, if the court so decided, for the squeak.
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A bulk retailer of accessories for musical instruments placed an advertisement in a trade magazine popular with those in the music business, offering for sale 50-count boxes of a particular type of mouthpiece for use with the French horn, minimum purchase 10 boxes, at $100 per box. In response to the advertisement, the owner of a large store that sold brass and woodwind instruments in its shop and over the Internet sent a written order to the bulk retailer for 12 boxes (50-count) of the mouthpiece. In his letter that accompanied the order, the store owner stated that he would send the bulk retailer his payment of $1,200 upon delivery. The letter also said that the mouthpieces must fit onto three specified models of French horn.
The day after receiving the written order and letter from the store owner, the bulk retailer shipped 12 boxes (50-count) of the mouthpiece to him. Accompanying the invoice on the boxes was a letter from the bulk retailer stating that the mouthpieces are compatible with two of the models of French horn, but that the retailer makes no warranties as to the compatibility of the mouthpieces with any other model of French horn. Shortly after accepting shipment of the boxes, the store owner realized that the mouthpieces did not fit onto the third model of French horn that it had specified and instituted an action against the bulk retailer.
Which of the following statements would offer the strongest support in favor of the store owner’s position?
A The store owner’s letter was an offer, and shipment of the units was an acceptance.
B The store owner’s letter was an offer, and the bulk retailer’s letter accompanying the invoice was an acceptance.
C The bulk retailer’s letter was an offer, and acceptance of the units by the store owner was an acceptance of the offer.
D Shipment of the units was a counteroffer, and acceptance of the units by the store owner was an acceptance of the counteroffer.
The store owner’s best position is that his letter was an offer, and shipment of the mouthpieces was an acceptance; thus, the shipment of nonconforming goods both created a contract and a breach of that contract, affording the store owner an immediate cause of action. The contract at issue involves the sale of goods, and is thus governed by Article 2 of the UCC. Under UCC section 2-206, an offer to buy goods for current or prompt shipment is construed as inviting acceptance either by a promise to ship or by current or prompt shipment of conforming or nonconforming goods. The shipment of goods, even though they are nonconforming, is an acceptance creating a bilateral contract and a breach unless the seller reasonably notifies the buyer that the nonconforming goods are offered only as an accommodation to the buyer. Here, the store owner’s letter was an offer that invited the bulk retailer to accept by either a promise to ship or a prompt shipment. The bulk retailer’s shipment of the mouthpieces is an acceptance of the store owner’s offer, because the bulk retailer’s letter accompanying the shipment was probably not sufficient as an accommodation notice (which would have made the shipment a counteroffer rather than an acceptance). The shipment contains nonconforming goods, because the mouthpieces are not compatible with the third type of French horn specified in the store owner’s offer. The shipment of nonconforming goods as an acceptance both created a bilateral contract between the parties and constituted a breach of that contract by the bulk retailer, thus allowing the store owner to sue for any appropriate damages for breach of contract.
The manager of a monthly antique market was looking to hire a professional appraiser who would tell patrons, for a fee of $10 per item, what their antique is worth. Because the manager had had problems at other antique markets he had run when appraisers built up a popular following and then abruptly quit for a better job, he emphasized during the hiring interview the importance of honoring the contract to its completion. When the manager offered the job to an experienced appraiser and the appraiser accepted, the written contract signed by the appraiser contained, in addition to an agreed-to salary, a liquidated damages clause for early termination of the contract. It also contained another clause providing that the appraiser would receive 5% of all gate receipts to be paid as a bonus at the end of the contract, which ran for one year.
Eight months into the contract, the manager’s worst fears were realized when the appraiser got a more lucrative offer and abruptly quit, leaving the manager scrambling to find a replacement for him. In response to the manager’s suit for breach of contract, the appraiser brings a countersuit to recover 5% of gate receipts for the antique markets at which he worked.
Is the appraiser likely to be successful in his countersuit?
The condition that it you would get the payment after at least a year is implied.
