Missed MBE Flashcards
Why is an allegedly defamatory statement not considered hearsay in a defamation action?
- not offered for TOMA; but rather to show that the statement was made
When does an offer create a binding contract if it does not specify a method of acceptance?
- A contract is formed when the offer is accepted by
- either performance or a promise to perform
- unless the offer clearly limits the method of acceptance
When a buyer places an order for goods, what is the legal significance of that action?
- Placing an order is usually considered an offer to buy,
- which must be accepted before a contract is formed.
- order can be accepted by seller shipping or promising to ship
How can a seller accept a buyer’s offer in a sales contract?
A seller can accept by shipping the goods or explicitly promising to fulfill the order, unless the offer requires a specific method of acceptance.
What is the test for determining if a government action violates the Establishment Clause?
A state action passes the Establishment Clause test if:
- It is neutral with regard to religion; or
- it aligns with historical practices/Founding Fathers.
When do taxpayers have standing to challenge government expenditures?
- Taxpayers generally lack standing to challenge federal expenditures
- except when:
- challeneged expenditure enacted under Congress taxing and spending power and**
- challenege alleges violation of establishment clause*
Can a criminal defendant introduce evidence of a victim’s specific bad acts to prove the victim’s character?
- Evidence of the victim’s character trait may be introduced, but only through reputation or opinion testimony—not specific acts
- unless the acts are relevant to an issue other than the victim’s character disposition (e.g., motive, intent, or identity).
What level of scrutiny applies to government action that limits a fundamental right v. nonfundamental right under substantive due process?
If a fundamental right is limited, the government must prove the action is necessary to achieve a compelling interest (strict scrutiny).
If no fundamental right is involved, the challenger must prove the law is not rationally related to a legitimate government interest (rational basis review), which is very deferential to the government.
When can a person outside the zone of danger recover for negligent infliction of emotional distress (NIED)?
Most states allow recovery only if:
- closely related
- present at the scene of the injury, and
- personally observed or perceived the event
What kind of evidence is the judge not allowed to consider when deciding a motion for summary judgment
- Hearsay evidence is inadmissible and cannot create a genuine issue of fact.
What are the six covenants of warranty and when do they attach?
under warranty deed
Present Warranties:
* I have title that I say I do (seisin)
- I have the right to convey the property
- there are no encumbrances to my knowlege (Covenant against Encumbrances) (easements, profits, mortgages, etc)
Future Warranties:
- I promise you won’t be bothered by claims in the future (Quiet Enjoyment)
- if you are, I’ll defend you (Warranty)
* I’ll also do whatever it takes to fix the problem (further assurances)
Delegation
Generally, all contractual duties may be delegated except:
* client/contracting party chooses a specific person for personal reasons (trust/relationship)
- job requires expertise in certain skill
- substantial interest in having original promisor perform (e.g., exculpatory clause)
- K prohibition
When performance of a duty is delegated, the delegator remains liable unless novation
Consequential damages for breach of K are limited to those
- that the breaching party had reason to foresee the damages would probably result from their breach
- at the time the K was made
A breach occurs when ….
A material breach occurs when…
A minor breach occurs when
In the event of a minor breach
one party fails to perform its duty under the contract
material: party fails to perform and non-breaching party fails to recieve the substantial benefit of the bargain
minor: breaching party has substantially performed and non breaching party will recieve the substantial benefit of the bargain
the non-breaching party is still obligated to perform but can still sue for damages
A claim is precluded when
- first action had final judgment on merits
- the two claims are brought by same claimant against same defendant (in the same configuration), and
- the second lawsuit involves same cause of action as the first lawsuit
An issue is precluded from a subsequent lawsuit when
- the judgment in first action was final
- actually litigated
- issue was essential to judgment
When a** buyer dies** after land sale contract but before conveyance
When seller dies after land sale contract but before conveyance
Buyer
- deceased** buyer’s interest passes as real propert**y (benes inherit the land)
Seller
- deceased seller’s interest passes as personal property (benes inherit purchase price)
Under RAP, an option to repurchase land is invalid when
- neither the triggering event (e.g., land being used for non-residential purposes)
- nor the right to exercise the option (repurchasing the land)
- will vest or fail within 21 years
General RAP rule
- The RAP invalidates any interest in property
- if there is any chance that the interet may vest more than 21 years
- after some life in being at the creation of the interest
“to Alice and her heirs, and assigns so long as used for residential purposes, if not used for residential purposes, to landowner and heirs and assigns” the triggering event (land being used for non res purposes must occur before the right may be exerised
A contract that violates a statute can be declared unenforceable, but courts look
- at who the statute is meant to protect before making that decision.
- If the court refused to enforce the contract, it would harm the very people the law was meant to protect.
