MBE Strategy & Approach

Question 1

Larceny

Answer 1

the “taking is trespassory/wrongful

Question 2

Larceny by Trick

Answer 2

Title does NOT pass

Question 3

Embezzlement

Answer 3

The initial taking cannot be trespassory.

Requires a false representation of a past or present material fact.

Question 4

False Pretenses

Answer 4

Title Passes

Requires a false representation of a past or present material fact.

Question 5

Agency Theory of Felony Murder

Answer 5

A co-felon is guilty of felony murder only where the killing is caused by one of the participants or co-felons.

Watch out for the “Human Shield Exception”

Question 6

Firefighter’s Rule

Answer 6

Public safety officers are prohibited from tort recovery for personal injuries suffered by the PSO while in the line of duty (e.g., cops, firefighter’s, etc. are <> while in the line of duty).

The Rule does <> apply as a shield to prevent a police officer from being sued.

Question 7

Test Tip

Answer 7

Reading Comprehension: Highlight words such as &laquo_space;“carelessly,” “embarrassed”&raquo_space;. These words will show that somebody departed from the reasonable person standard.

Question 8

Test Tip

Answer 8

When a questions concerns negligence, make sure that liability is apportioned to the actor that is the <> cause of the ∏’s injury.

Question 9

Rule in Dumpor’s Case

Answer 9

A condition against assignment is “entire and indivisible” and having once been waived, cannot be enforced again.

Question 10

Leading Qestions

Answer 10

Leading questions are appropriate:

• on cross;
• hostile or adverse witness;
• questioning children;
• refreshing a witness;
• preliminary background matters.

Question 11

Character Evidence > Civil Case

Answer 11

Character evidence in a civil case is admissible where “character is in issue,” in cases of:

• Defamation [Plaintiff]
• Child Custody [Parents]
• Negligent Entrustment [Entrustee]
• Negligent Hiring [Employee]

Question 12

Marshalling

Answer 12

An equitable principle used to rank and prioritize the rights of competing parties to determine the order in which the mortgaged property will be sold.

Question 13

Rights of a Grantee

Answer 13

A grantee who “ASSUMES” a mortgage is personally liable (e.g., you made an ass out of me).

A grantee who takes “SUBJECT TO” the mortgage is not personally liable.

Question 14

Deeds > Quitclaim Deed

Answer 14

Guaranteeing the right to what the grantor has.

Question 15

Deeds > Special Warranty Deed

Answer 15

Guaranteeing title free of defects from grantor.

Question 16

Deeds > General Warranty Deed

Answer 16

Guaranteeing title free of defects created by grantor and all prior titleholders.

Question 17

Covenants of Title > Present

Answer 17

Present covenants of title DO NOT run with the land.

• Covenant of seisin
• Covenant of right to convey
• Covenant against encumberances

Question 18

Covenants of Title > Future

Answer 18

Future covenants of title RUN with the land.

• Quiet enjoyment
• General Warranty
• further assurances

Question 19

Liquidated Damages Clause

Answer 19

A contract provision that stipulates damages in advance of a breach where:

(1) Damages are difficult to determine at the time of contract formation; AND
(2) The stipulated amount must be reasonable, otherwise it will be VOID as a penalty.

Question 20

Approach to Contracts Questions

Answer 20

(1) UCC/Common Law
(2) Question Stem
(3) Scan answer choices. Don’t look for the right answer. Rather, look to eliminate wrong answers.

Question 21

Modification > UCC

Answer 21

No consideration required, just “good faith”

Question 22

Modification > Common Law

Answer 22

Consideration IS REQUIRED based on the “pre-existing duty” rule.

Question 23

Substantive Due Process

Answer 23

Law applies equally to all persons, yet precludes, restricts or regulates a protected fundamental right.

Fundamental Right, include:

• right to vote;
• right to travel;
• right of privacy.

Question 24

Statute “Neutral On It’s Face”

Answer 24

A statute may have a discriminatory effect, but the discriminatory effect was not the legislature’s purpose/intent.

The ∏ must show:

(1) discriminatory effect; AND
(2) discriminatory purpose

to raise the burden of persuasion above rational basis.

Question 25

Equal Protection

Answer 25

Law applies differently to similarly situated people, classified.

The law affects the rights of only some people with respect to a specific activity.

Question 26

Privileges > Physicial-Patient

Answer 26

Federal Rules only have:

• attorney-client;
• spousal privilege;
• clergy.

NOTE: On the MBE, the physician-patient privilege will only apply <> the question stem indicates that the state common law recognizes this privilege.

Question 27

False Imprisonment

Answer 27

• The ∆ unlawfully acts to intentionally cause confinement or restraint of the victim within a bounded area.
• The confinement may be accomplished by: (1) physical barriers; (2) force or threat of immediate force against the victim; the victim’s family or the victim’s property.
• A shopkeeper may detain a shoplifter for a reasonable period of time in a reasonable manner, so long as the shopkeeper has cause to believe that the person detained committed or attempted to commit theft or store property.

Question 28

Identification Proceedings

Answer 28

Photo Arrays
- No Right to Counsel for Pre- &laquo_space;OR&raquo_space; Post- charge photo arrays

Lineups/Show-Up

• Pre-Charge; no right to counsel
• Post-Charge; right to counsel

Due Process Standard

• (e.g., employed by ∆ to attack identification)
• Identification must be unnecessarily suggestive;
• create a substantial likelihood of misidentification.

Remedy
- Exclusion of in court identification unless an independent source exists.

Question 29

Intervening Forces

Answer 29

1. Negligent Act;
2. Intervening Force
   - If foreseeable, Defendant remains liable.
   - If unforeseeable, the force is superseding and Defendant is NOT liable.

NOTE: Look for a fact indicating that the ∆ would be on notice of the debatebly foreseeable/unforeseeable harm.

Question 30

Title Obtained by Adverse Possession

Answer 30

Title obtained by adverse possession is NOT marketable until a judicial decree is obtained.

Question 31

Best Evidence Rule [FRE 1002]

Answer 31

Applies whenever “contents are in issue”

• Where the testimony is reliant on the writing, not on personal knowledge; OR
• Where the writing has independent significance.

Question 32

New York v. United States

Answer 32

Congress may NOT commandeer the states to enact or enforce a federal regulatory program.

Question 33

Nuisance > Private Nuisance

Answer 33

and interference with ∏’s use and enjoyment of his property.

Question 34

Shipment of Non-Conforming Goods

Answer 34

UCC §2-206(1)(b)

• Shipment of non-conforming goods is both an acceptance and a breach.
• Applies to single delivery, as well as installment contracts.

Question 35

Shipment of Non-Conforming Goods > Buyer’s Remedies

Answer 35

UCC §2-607(1)

• When a buyer accepts goods delivered by a seller, even if non-conforming, he must pay the price contracted for.

Question 36

Real Property > Trade Fixtures

Answer 36

• Chattel annexed to the land by a &laquo_space;“tenant”&raquo_space; for a pecuniary gain.
• Removable BEFORE the lease expires; otherwise, the tenant &laquo_space;may&raquo_space; remove the fixture from the estate within a reasonable time.

Question 37

Contracts for a Sale of Land

Answer 37

The Statute of Frauds requires land sale contracts to be in <>. There is room for considerable flexibility in the construction of what constitutes a sufficient memorandum. The memo contain the following:

• an identification of the parties;
• a sufficient description of the land to be conveyed;
• the purchase price; AND
• the promises on both sides.

TIP: Keep an eye out for a contract that does NOT designate the number of acres to be conveyed; the absence of such will likely be deemed insufficiently identified in the memorandum.

Question 38

Eminent Domain > “Taking”

Answer 38

A regulation that denies the owner all reasonable economically viable use of his land.

Question 39

Eminent Domain > Public Use Requirement

Answer 39

• Burden on the government to show the measure is rationally related to any conceivable purpose.
• To qualify as a “public purpose” the property does not have to be held out for use by the general public. If it revitalizes the economy, the taking will be deemed to have satisfied the “public use” requirement.

Question 40

Statutory Redemption

Answer 40

The mortgagor’s right to pay off the debt during a statutory period following the foreclosure sale.

Question 41

Parol Evidence Rule

Answer 41

Once the parties have reduced their agreement to a writing, evidence of any: (i) prior oral; (ii) written; or (iii) contemporaneous oral agreements are &laquo_space;inadmissible» to alter, vary, or contradict the terms of the writing.

PER does NOT apply in a reformation proceeding.

Question 42

Reformation

Answer 42

Requires an antecedent valid agreement that is incorrectly reflected in the writing, and is established by clear and convincing evidence.

Question 43

Seller’s Right to Cure

Answer 43

UCC §2-508(2).

• Where the time for performance has passed, if the seller has &laquo_space;REASONABLE GROUNDS&raquo_space; to believe the tender would be acceptable, the seller may, if he seasonably notifies the buyer, have a further reasonable time to substitute a conforming tender.