Mixed MBE Missed Questions Flashcards
Does a quitclaim deed negate the implied covenant to provide marketable title?
No, EVERY land sale contract has an implied covenant of marketable title.
What two things must be true in order for a promise to be supported by consideration?
(1) The promisee is giving up something of value or circumscribes his liberty in some way to suffer a legal detriment; AND
(2) The promisor makes his promise as part of a bargained-for exchange for the promisee’s legal detriment.
May former testimony of a now unavailable witness (that was given under oath with the opportunity to cross-examine) be admissable? What may be the part against whom such a statement is admitted do?
Yes, however, the party against whom such a statement is admitted may still impeach the credibility of the witness with evidence that would be admissible if the witness had testified.
What are crimes of dishonesty (therefore automatically admissible to impeach)? What are some crimes that do not fall in this category?
Crimes that do involve dishonesty: Involve an element of deceit, untruthfulness, or falsification.
Crimes that do not fall into the category: Theft offenses, like burglary.
Does federal or state law govern claim-preclusion (res judicata) coming from a federal court sitting in diversity?
Federal common law.
When is a statement of an opposing party admissable?
When is a statement against interest admissable?
A statement of an opposing party is not hearsay and admissable.
A statement against interest is an exception to hearsay only available when the declarant is unavailable.
When there is an affirmative defense in a criminal case (like self-defense), may a state require the defendant to prove the defense?
Yes, by a preponderance of the evidence.
Is a wrongful threat the same thing as undue influence?
No, undue influence is a defense based on lack of capacity.
What is the standard applied to a JMOL or RJMOL?
Whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in the other party’s favor.
What is the standard for a motion for a new trial?
Whether the verdict is against the weight of the evidence.
What is the only unity requirement to create a tenancy in common?
Unity of possession.
Do tenants in common owe eachother fiduciary duties?
No.
Can two adverse possessors claim title simultaneously? Why?
Yes, the exclusive requirement requires exclusivity from the owner of the land or the public at large, not two adverse posessors taking adverse posession.
May an officer use deceit to gain entry?
Yes.
Does solicitation merge with the pricipal crime? What does not merge?
Yes, a defendant may not be convicted of both solicitation and the principal offense.
Conspiracy does not merge.
What types of suits does the Eleventh Amendment bar?
Suits brought by a private party or foreign government against a state, it does NOT bar a suit by the United States against a state.
What is the doctrine of lapse?
Lapse occurs when the beneficiary or divisee under the will predeceases the testator, invalidating the gift. NOT when the gift is sold, and the gift no longer exists in the estate, it is called an “ademption”.
What are the elements of res ipsa loquitur?
(1) The event that happened is one that usually does not occur absent the negligence of a party;
(2) The harm was caused by something in the defendant’s exclusive control;
(3) The plaintiff is not the one who caused the event to occur.
When can a mortgagor who has defaulted request that the mortgagee accept a deed in lieu of forclosure?
As long as both sides agree, and the transaction is reasonable and fair under the circumstances, it will be allowed.
May a buyer in a real estate contract seek specific performance for breach of the sales contract by the seller?
Yes, damages are inadequate because the buyer is getting land, which is unique.
What is the test for determining if restriction of commercial speech is constitutional?
(1) Serves a substantial government interest;
(2) Directly advances the asserted interest; and
(3) Is narrowly tailored to serve the substantial interest.
On mortgages, are two year prepayment prohibitions valid and enforcable? Are prepayment fee provisions valid and enforceable?
In general, yes, both are valid and enforceable.
In exceptional circumstances, when the jury has suffered depletions past its alternates, can the parties agree to be bound by a verdict rendered by fewer than six jurors?
Yes.
When can a claim be added in a federal case (even if there is no diversity jurisdiction) by a defendant using supplemental jurisdiciton?
When the claim arises from the same common nucleus of operative fact.
What amendment does the fundemental right to travel arise under, what does it encompass?
Not explicitly granted, but is protected by the Fourteenth Amendment.
It encompasses the right: (1) to leave and enter another state; and (2) to be treated equally and enjoy the same privileges and immunities as other citizens of that state if they become permanent residents.
Is a contract for the sale of land required to be in writing?
Is a modification to that contract required to be in writing?
Is a recession or abandonment required to be in writing?
Yes.
Yes.
No, if mutually executed or promisorry estoppel is present, oral recission is allowed.
If a court has general personal jurisdiction established over a parent company, does the court also have personal jurisdiction over the subsidiary if both companies are parties in the action?
No, the court must have a basis for personal jurisdiction over each party seperately.
When can a party file a motion to strike an insufficient and irrelevant defense?
Within 21 days of service of the pleading.
What is the deadline for properly requesting a jury trial? What should you look for in starting the timer?
The demand must be made within 14 days after the last pleading related to the issue is served or else the demand is waived. Motions to dismiss are not a pleading on the issue, so look for an answer to start the timer.
What are the limitations of subject matter on cross examination of a witness?
(1) Subject matters covered on direct examination; and
(2) The credibility of the witness.
Can you bring up falsifying tax returns on cross examination in order to impeach the credibility of a witness? Why?
Yes, it would speak to the witness’s character for untruthfulness.
What is the exception to the Fair Housing Act? What does not fall under the exception?
If a landlord has no more than four units in one building and one is occupied by the owner.
You still cannot advertise or rental preference or discriminate even if you fall in the exception…
Does a report or recorded recollection need to be made or adopted by a witness if it is used strictly to refresh the memory of the witness on the stand?
No, nearly anything may be used to refresh a witness’s recollection, irrespective of admissibility.
Is horizontal privity required to bind a sucessor in a covenant?
No.
When is a state acting as a market participant (and therefore not violating the Commerce Clause)?
When it is buying and selling products, hiring labor, in general acting like a company.
Is a sidewalk next to a capitol building a public forum for purposes of a time, place, and manner restriction?
Yes, and therefore it must comply with the requirements of being narrowly tailored to an important/significant government interest and leave open other channels of communication.
What are the TWO requirements in order for a state tax against the federal government to be valid?
The tax must be (1) non-discriminitory and (2) indirectly imposed on the federal government.
Is a prior identification by a witness admissable in court if the witness is unable to currently identify a person?
Yes, prior identification is not hearsay.
What intent does attempted murder require?
The specific intent to commit a murder, there is no attempted murder in depraved heart murder (reckless disregard for human life).
In a UCC contract, is quantity an essential term needed to satisfy the Statute of Frauds?
Yes.
Who holds the marital privilege to prevent marital communication testimony?
Under the federal marital communiations privilege, both spouses, the husband and the wife, jointly hold the privilege. Therefore, either spouse can invoke the privilege to bar the other from testifying as to marital communications.
What is one of the defenses to a nuisance claim?
Plaintiffs can assume the risk by “coming to the nuisance”.
What is the standard for an appelate court to overturn a trial court’s finding of fact?
The finding of fact must be clearly erroneous, this is a very high standard to meet.
On cross-examination, may a witness be asked about prior bad acts of specific instances of conduct?
Yes, if it is probative of his character for truthfulness and bears on his credibility.
What are owners and operators of commercial properties in highly regulated industries expectation of privacy under the Fourth Amendment?
They have lower expectations of privacy because the state’s interest in the regulations are heightened, warrantless inspections of those commercial properties will be found reasonable under the Fourth Amendment.
How can a partially negligent plaintiff still recover in a contributory negligence jurisdiction?
By showing the defendant had the last clear chance to avoid an accident and failed to do so, and therefore under the last clear chance doctrine, the defendant is liable for negligence.
Does a grantee need to sign a deed containing a restrictive covenant for the covenant to be enforceable?
No, if the grantee records it, it creates constructive notice, and if all other elements are met a equitable servitude is created.
When there is a neutral law of general applicability that impacts a religious practice, what level of scrutiny is that law required to meet?
Rational basis review. Reasonably related to a legitimate state interest.
What is an illusory promise?
A statement that appears to be promising something but does not actually commit the promisor to anything at all.
“I’ll buy it if I feel like it.” = Illusory
“I will pay as soon as I am able” = Non-Illusory
Is assumption of risk a defense to intentional torts?
No, including battery. (Horse jockey example).
What are the two elements of negligent infliction of emotional distress?
(1) The plaintiff was within the “zone of danger”; and
(2) The plaintiff suffered physical symptoms from the distress.
What is the “good faith” exception to the warrant requirement? What are the effects?
Normally, if a search warrant is invalid for any reason any search done pursuant to it will be unconstitutional (exclusionary rule applies). However, if the police reasonably believe that the warrant they have been issued is valid, the exclusionary rule will not apply.
Does private violation of a statute alone require evidence to be suppressed?
No, the private gathering of evidence must be done acting on behalf of the authorities.
Do motions for Rule 11 sanctions need to be made seperately? What is the safe harbor period?
Yes, and cannot file within the 21 day safe harbor period.
