practice exam 3

Question 1

what happens if offeree 1) accepts 2) later rejects OR 1) rejects 2) accepts

Answer 1

O’ee 1) accepts and 2) later rejects—acceptance controls unless O’or has relied
O’ee 1) rejects and 2) later accepts—first received controls even if O’or hasn’t read it

Question 2

just bc a statement is not hearsay, doesn’t mean it’s admissible. it must foremost be

Answer 2

relevant

Question 3

susbtantive for erie. name 4

Answer 3

claim/defense, choice-of-law & burdens of proof & conflict of law

Question 4

procedural for erie. name 5

Answer 4

FRE, FRCP, judge/jury allocations, whether attorney’s fees are assessed, or whether an issue is equitable or legal.

Question 5

when leading questions are allowed on direct

Answer 5

federal rules allow leading questions on direct examination in certain situations when it is necessary to develop testimony, such as when the witness is a child, has difficulty communicating due to age or a physical or mental problem, is hostile, is an adverse party, or is associated with an adverse party

Question 6

benefits that require notice and hearing before terminations

Answer 6

welfare benefits

Question 7

benefits that require prior notice but post-termination hearing is ok

Answer 7

public employment + for cause, and disability benefits

Question 8

2-207. rule for addtl term, rule for diff term

Answer 8

By promise: even if there are additional different terms in the response, so long as the acceptance is about the same object and is timely, it’s accepted, unless the acceptance is expressly made conditional upon assent to new/different terms

The additional term: new term is included if following 4 things are true
1) both parties are merchants
2) term doesn’t materially alter the deal
3) the initial offer didn’t expressly limit acceptance to its terms
4) offeror doesn’t object w/in reasonable time to new terms

The different term: knockout rule applies → knock out both different terms, so neither term governs and UCC gap filler applies

Question 9

implied reciprocal servitude - 3 req

Answer 9

implied from common plan

-Intent to create a servitude on all plots (common scheme)
-The servitude must be negative (i.e., a promise to refrain from doing something)
-Notice (actual, constructive, or inquiry) by the party against whom enforcement is sought

Question 10

dead’s man’s statute

Answer 10

Dead man’s statute: limits the ability of witnesses to testify about transactions w ppl who are deceased

Question 11

derivative use immunity

Answer 11

Derivative-use immunity protects a witness from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution, but does not protect him from its use in a civil suit

Question 12

transactional immunity

Answer 12

Often called “blanket” or “total” immunity, “transactional immunity” fully protects a witness from future prosecution for crimes related to her testimony. (much stronger)

Question 13

3 exceptions to ignorance of the law is no excuse

Answer 13

Only valid if d relied on court decision/administrative order or official interpretation OR lack of notice OR mistake of law that goes to an element of specific-intent crimes

Question 14

mortgagor + waste

Answer 14

A mortgagor has a duty not to commit waste with respect to the mortgaged property when such waste impairs the mortgagee’s security interest in that property. indep of any contractual duty.

Question 15

grounds for a new trial

Answer 15

-Trial error resulting in an unfair judgment
-Newly discovered evidence
-Prejudicial misconduct by counsel, parties, judge, or jury
-Verdict is excessive or inadequate

Question 16

how to authenticate a reproduction (photograph)

Answer 16

When reproductions (e.g., photographs, diagrams, maps, movies) are introduced into evidence, they may be authenticated by the testimony of a witness with personal knowledge that the object accurately depicts what its proponent claims it does.

Question 17

after-acquired title

Answer 17

When a person who attempts to transfer real property that he does not own subsequently becomes owner of that property, the after-acquired title doctrine provides that title to the property automatically vests in the transferee.

Question 18

which witnesses cannot be excused from the court room

Answer 18

1) a witness who is essential to presentation of case 2) party in case 3) person, such as crime victim, who is permitted by state rule to remain in court room 4) An officer or employee of a party that is not a natural person, after the individual has been designated as the party’s representative by its attorney, including a police officer in charge of the investigation in a criminal case

Question 19

wild animal

Answer 19

Owner is S/L for harm done by wild animal despite owner’s precautions to prevent harm, as long as harm arises from dangerous propensity characteristic of animal or about which owner has reason to know

Question 20

abnormally dangerous animal

Answer 20

Owner/possessor S/L for injuries if knows or has reason to know of dangerous propensities abnormal for the animal’s category or species and harm results

Question 21

trespassing animal

Answer 21

owner/possessor S/L for reasonably foreseeable damage caused by trespassing animal

Question 22

elements for claim preclusion

Answer 22

valid
judgement
on the merits
same action
same parties or privies

Question 23

elements of issue preclusion

Answer 23

same issue
actually litigated
essential to judgement

Question 24

what happens when a party fails to meet the condition precedent?

Answer 24

not a breach. the other side just doesn’t have to perform.

The failure of a promise is a breach, and gives rise to damages, while the failure of a condition merely relieves a party of the obligation to perform.

Question 25

when can you not impose residency restrictions on benefits

Answer 25

While reasonable residency restrictions may be imposed on the receipt of some governmental benefits, durational residency requirements burden the right to interstate travel when they deny basic necessities of life to newcomers of the state, like healthcare for lowincome

Question 26

requriements for equitable servitude and defintion

Answer 26

when injunctive relief is sought to enforce a covenant; requirements:
-Writing
-Intent for the restriction to be enforceable
-Touch and concern
-Notice (actual, constructive, or inquiry) needed if the servitude is to be enforced against a purchaser.

Question 27

liability for an employer of an EE

Answer 27

employer has a right to control the means and methods of employee completing a task. ER is vicariously liable for the EE’s tort within scope of employment

an employer is negligently liable for its own negligence in the hiring, training, supervising, or entrustment of an employee

Question 28

vicarious liability of an ER for an IC

Answer 28

i) Abnormally dangerous activities—an activity is abnormally dangerous if (i) the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors, and (ii) the activity is not one of common usage;
ii) Inherently dangerous activities—an activity is inherently dangerous when, if reasonable care is not exercised, the resulting risk differs from the types of risk usual in the community;
iii) Non-delegable duties arising out of a relationship with a specific plaintiff or the public (i.e., activities that are inherently risky or that affect the public at large, such as construction work adjacent to a public highway);
iv) The duty of a storekeeper or other operator of premises open to the public to keep such premises in a reasonably safe condition; and
v) Negligent selection of independent contractor (primary negligence, not vicarious)

Question 29

how to see if there’s in personam jurisdiction

Answer 29

1) Q1: Is the exercise of PJ authorized by a long arm statute? Some other basis?

2) Q2: Is the exercise constitutional, meeting the standards of the DPC? AKA, due process requires suff minimum contacts btw a party and the forum state so as not to offend traditional notions of fair play and substantial justice

minimum contacts
-1) Purposeful availment (purposeful and substantial contact)
-2) Foreseeability (reasonably anticipate being sued in the forum state)
-3) Relatedness? (specific JX vs. general JX; if general, domicile or continuous and systematic contacts?)

Question 30

how to get around state sovereign immunity. 2 ways

Answer 30

a state (plus its agencies) is immune from suit for money damages by its own citizens in state and federal court, absent consent or if Congress expressly abrogates under the remedial provisions of the 13A, 14A, and 15A

Question 31

learned treatise HS exception

Answer 31

A statement contained in published treatises or periodicals on a subject of history, medicine, or other science or art is admissible if (i) the treatise is established as a reliable authority by the testimony of a witness, expert, or by judicial notice, and (ii) an expert relied on it during direct examination or it was brought to the expert’s attention on cross-examination.

If admitted, the statement is read into evidence, but the publication itself may not be received as an exhibit

Can be used to impeach EW and as substantive evidence

Question 32

is a sale by a seller who doesn’t have title to an item to a GF buyer valiD?

Answer 32

A buyer who does not obtain good title can nevertheless transfer good title to a subsequent purchaser who buys the goods in good faith and for value.

Question 33

subject to vs assumes (mortgage)

Answer 33

subject to (not personally liable) - (assumed if deed is silent)
assumes (personally liable)

Question 34

negligent infliction of emotional distress. 3 cases

Answer 34

Zone of danger
P was within “zone of danger” (feared for safety); threat of physical impact caused emotional distress/ Requires physical symptoms

Bystander recovery (close relation)
A P outside the zone of danger can recover if: (i) closely related to person injured by D; (ii) present at the scene; and (iii) personally observed or perceived the injury
requires physical symptoms (see above)

Special relationship
Most common examples are a mortician mishandling a corpse or a common carrier mistakenly reporting the death of a relative
no threat of physical symptoms required

Question 35

3 things that make a party necessary

Answer 35

i) Complete relief cannot be provided to existing parties in the absence of that person; or

ii) Disposition in the absence of that person may impair the person’s ability to protect his interest; or

iii) The absence of that person would leave existing parties subject to a substantial risk of multiple or inconsistent obligations.

Question 36

who does a recording act not protect

Answer 36

Applies to nearly all interests in land; protects subsequent purchasers, not ppl who acquire title by gift, devise, or intestacy

Question 37

shelter rule

Answer 37

(Grantors (BFP) who are protected by the recording act protect (or “shelter”) their grantees who would otherwise be unprotected. Grantees have same rights as their BFP grantor once they get title from them)

Question 38

what does the comity clause say

Answer 38

forbids serious discrim against out of state individuals wrt fundamental rights or essential activities absent substantial justification. → practically, no legal requirement of residency allowed for private employment. Public employment can require residency requirements.

Question 39

4 things for attractive nuisance doctrine

Answer 39

liable for injuries to trespassing children if artificial condition poses unreasonable risk of serious bodily injury, children cannot appreciate the danger (warning is not enough), burden of eliminating danger slight compared to risk of harm, and owner fails to exercise reasonable care to protect children

Question 40

methods of tender/delivery and placement of loss

Answer 40

1) seller’s place of biz = seller just needs to give goods to buyer
2) shipment contract (FOB/seller’s POB) = if no specific place of delivery, seller must 1) get the goods to a common carrier 2) make arrangements for delivery 3) notify the buyer. RISK OF LOSS ON BUYER.
3) destination contract (FOB buyer’s POB) = seller must get goods to buyer’s POB and notify them. RISK OF LOSS ON SELLER.

Question 41

what EW can speak to (1 thing) what it cant (2 things)

Answer 41

YES May express an opinion on the ultimate issue in most cases
NO Their opinion shouldn’t go to credibility of a witness
NO Their opinion shouldn’t go to whether the d had requisite mental state of element of crime

Question 42

easement by necessity

Answer 42

An easement by necessity will arise when property is landlocked without the benefit of an easement across neighboring property. The two estates must have been under common ownership, and the necessity must have arisen at the time the property was severe

Question 43

what does voluntary intoxication negate in mens rea? involuntary?

Answer 43

Voluntary—applies to negate specific intent only; MPC: negates purposely/knowingly

Involuntary (unknowing or forcible injection)—applies to negate an element, including general or specific intent, malice, and voluntary acts (i.e., the required actus reus for a strict liability crime)

Question 44

liability giving someone else your car

Answer 44

Negligent entrustment of car or other object with potential for harm (if D knows/should know of driver’s or user’s negligent propensities) (not VL)

Family-purpose doctrine (D liable for family members driving with permission) (VL)

owner liability statutes (liable for anyone driving with permission) (VL)

Question 45

effect of foreclosure on parties

Answer 45

Mortgagor—interest eliminated

Purchaser of RP—takes property free of junior interest, subject to senior

Senior interests—unaffected

Junior interests—destroyed

Question 46

which parties have a duty to avoid waste

Answer 46

Life tenant/mortgagor/tenant in possession must avoid waste when delivering property to future interest/simultaneous interest holder/mortgagee

Question 47

search incident to arrest rule wrt vehicles

Answer 47

Vehicle search is okay if D unsecured and within reach of the passenger compartment (weapons/evidence) during search, OR if reasonable belief the vehicle has evidence of this offense

Question 48

3 irrevocable contracts

Answer 48

detrimental reliance, option contract (requires consideration), or UCC merchant’s firm offer

Merchant’s firm offer: must be written, signed by merchant, and have explicit promise not to revoke

Question 49

effect of incapacitation by owner and adverse possession

Answer 49

The statute of limitations will not run against a true owner who has a disability at the time the AP begins (infancy, insanity, imprisonment)

Disability must exist when the trespasser enters the prop

Question 50

assumption of risk in SL vs negligence

Answer 50

negligence - reduces recovery (not a defense)
strict liability - complete bar to recovery (defense)

Question 51

misappropriation

Answer 51

The misappropriation of the right to publicity is the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity for the defendant’s advantage without the plaintiff’s consent, resulting in injury to the plaintiff

Question 52

intrusion into seclusion

Answer 52

the defendant’s act of intruding, physically or otherwise, into the plaintiff’s private affairs, solitude, or seclusion if the intrusion is highly offensive to a reasonable person establishes liability under this cause of action (no publication required)

Question 53

false light

Answer 53

plaintiff must show that the defendant (i) made public facts about the plaintiff that (ii) placed the plaintiff in a false light, (iii) which false light would be highly offensive to a reasonable person. Most jurisdictions also require that the plaintiff prove actual malice by the defendant

Question 54

public disclosure of private facts

Answer 54

plaintiff must show that (i) the defendant gave publicity to a matter concerning the private life of another and (ii) the matter publicized is of a kind that would be highly offensive to a reasonable person and is not of legitimate concern to the public

Question 55

defamation

Answer 55

defamatory lang
of or concerning p
publication
falsity
fault

Falsity (public concern)
-If statement relates to matter of public concern or P is a public figure, P must prove defamatory statement is false
-Private P suing on a statement that does not involve matter of public concern not required to prove falsity; D may prove truth as an affirmative defense

Fault
-Public figure—actual malice (D knows of falsity/reckless disregard of truth)
-Private figure/matter of public concern—D acted with fault; either negligence or actual malice
Private figure/not matter of public concern—at least neg.

Question 56

effect of shipment of nonconforming goods after an offer by the buyer

Answer 56

shipment of non-conforming goods is both an acceptance and a breach unless buyer is notified the goods were sent as an accommodation (then not acceptance)

Question 57

political question doctrine

Answer 57

not subject to judicial review when: (i) the Constitution has assigned decision making on this subj to a diff branch of gov’t; or (ii) the matter is inherently not one that the judiciary can decide

Question 58

sentencing enhancement

Answer 58

enhancement of sentence by judge for reasons other than D’s prior conviction absent jury determination of existence of additional facts violates D’s right to a jury trial

Question 59

res ipsa

Answer 59

To obtain a res ipsa loquitur jury instruction, a plaintiff must prove that (i) his injury was caused by an instrumentality or agent within the exclusive control of the defendant, (ii) the accident was of a kind that ordinarily does not occur in the absence of negligence, and (iii) the harm was not due to any action on the part of the plaintiff. The third requirement is not satisfied if a plaintiff’s own negligence increases the likelihood of the defendant’s negligence

Question 60

bona fide purchaser

Answer 60

subsequent purchaser for value who takes without notice (actual, constructive, or inquiry)