Questions 1 to 50 practice MBE

Question 1

Private nuisance is conduct that substantially and unreasonably interferes with another person’s use and enjoyment of his land. To bring a private nuisance action, does the plaintiff need to have property rights or privileges in the land so that a renter’s possessory interest would suffice?

Answer 1

Yes, renter’s possessory interest would suffice to bring a nuisance claim

Question 2

Private nuisance is conduct that substantially and unreasonably interferes with another person’s use and enjoyment of his land. For the interference to be categorized as substantial, it must be ? give an example

Answer 2

it must be it must be offensive to a person of normal sensibilities in the community. It is not sufficient for the interference to be offensive to an abnormally sensitive person.

Example: A woman’s abnormal sensitivity to dry-cleaning fluid and dry-cleaned clothes does not allow her to recover from the dry cleaner.

Question 3

T or F, a court would likely find it foreseeable that a patron is suffering a minor illness for purposes of proximate cause

Answer 3

True

Question 4

At common law, the res ipsa loquitur required a showing that the instrumentality causing plaintiff’s harm was in the exclusive control of the defendant. what is the modern majority view?

Answer 4

“exclusive control” of the instrumentality is no longer required as an element.

Question 5

Modernly, a promise is enforceable, despite the preexisting duty rule, where circumstances arise

Answer 5

arise not reasonably anticipated by the parties at the time of contracting.

Question 6

This is a contract for services. Generally, new consideration is needed for a modification in a contract for services. Explain the “unforeseen difficulties” doctrine exception

Answer 6

unforeseen difficulties” doctrine permits an existing contract to be modified to account for unforeseen difficulties that arise during the course of performance

Question 7

Statements constituting verbal acts or legally operative acts are not hearsay, because they are not offered for their truth. Rather, certain words have independent legal significance, such as words of a contract offer or acceptance, libel, slander, threats, etc. Other examples include?

Answer 7

Other examples include words that have the effect of making a gift. The law attaches rights and obligations to certain words simply because they are said.
I hearby give my car to Bob

Question 8

Explain the dead man’s statute and when it is applicable

Answer 8

A dead man’s statute is designed to prevent perjury in a civil case by prohibiting a witness who is an interested party from testifying about communications or transactions with a deceased person (a “decedent”) unless there is a waiver.

application: This prohibition applies only against a witness who has an interest in the outcome of the case and applies only where that witness is testifying for his own interests and against the interests of the decedent.

Question 9

Multiple plaintiffs CANNOT __________ their claims against a single Defendant.

Answer 9

CANNOT aggregate

Question 10

At common law, criminal assault was defined as an attempted battery. However, at modern law and in almost every jurisdiction, criminal assault is defined as either:

Answer 10

(1) attempting to commit battery; or (2) intentionally causing the victim to fear an immediate battery.

Question 11

T or F In a majority of states, the fact that the victim was unaware of the danger does not defeat the criminal charge of assault, because the focus is on the intent of the perpetrator.

Answer 11

True

Question 12

Under what circumstances are oral agreements to settle boundary disputes enforceable?

Answer 12

Oral agreements to settle a boundary dispute are enforceable if the parties subsequently accept the line for a sufficient time.

Question 13

Is the holder of a fee simple or other kind of fee interest bound by the laws prohibiting waste? Explain

Answer 13

No, the holder of a fee interest can use the property anyway he wishes.

Question 14

Explain collateral estoppel (criminal trial) and give an example

Answer 14

defendant may not be tried for a different crime arising out of the same criminal conduct if a previous prosecution necessarily determined factual issues required for conviction in the defendant’s favor.

Example For instance, for a defendant to be guilty of felony murder, the defendant must be found guilty of the underlying felony. Thus, in this case, for the suspect to be convicted of felony murder relating to a burglary, the prosecution would need to re-litigate facts pertaining to the underlying burglary charge. Given that these facts that had already been determined in the suspect’s favor during his trial for burglary and battery, the felony murder charge violates the prohibition against double jeopardy and should be dismissed.

Question 15

T or F parties can serve process (summons and complaint)

Answer 15

False they cannot!

Question 16

Federal courts are not required to give as much deference to the plaintiff’s choice of forum if the plaintiff is a _________ __________

Answer 16

foreign citizen.

Question 17

Consent as a defense to a charge of illegal search has three elements:

Answer 17

(1) the consent must be unforced and the result of an informed decision;
(2) the search must not exceed the scope of the consent; and
(3) the consenting party must have authority to consent

Question 18

T or F, an intervening force for purposes of D’s liability is foreseeable if the original injury caused by D is a substantial factor in causing the intervening force that caused further injuries to the P

Answer 18

True
Example, Granny has a severe head injury due to D’s negligence. As a result of the head injury, Granny has a spell of vertigo causing her to fall and break her hip, the D is still on the hook because the head injury was a a substantial factor in causing the fall and the subsequent hip injury.

Question 19

Congress may use any means not prohibited by the Constitution to achieve the ends delegated to any branch of the federal government in the enumerated powers, including delegating some of Congress’s legislative power to the executive branch. There is no violation of the constitutional separation of powers if the if the legislative power delegated by Congress to the vice president is?

Answer 19

is limited and does not usurp another branch’s enumerated power.

example: vice president’s authority to hear appeals from commission decisions does not infringe upon the federal judiciary’s power when any vice presidential decision is “subject to judicial review by the federal courts.”

Question 20

Yes, accomplices are liable for the criminal acts of those they ________ and __________. Accomplices are those who?

Answer 20

aided and abetted

give assistance or encouragement or
fail to fulfill their legal duty to oppose another’s crime and who intend to have the crime take place.

Question 21

At common law can one conspire with an undercover police officer regardless of belief?

Under the MPC, can one conspire with an undercover police officer? Explain

Answer 21

No

Yes, The Model Penal Code applies the unilateral theory of conspiracy, which holds that a defendant can be found guilty of conspiracy regardless of whether other persons were true to their words of intent.

Question 22

Where a specific time is set for performance of a contract, this provision will be enforced. Where no specific time limit is included in a contract, courts will apply a ______ _______ ________.

Answer 22

reasonable time standard

Question 23

Contracts may include a clause for payment such as the one providing that the daughter will not receive any of the policy proceeds until she reaches the age of 18. However, courts do not always see fit to interpret such clauses literally, but often view them simply as?

Answer 23

guidelines as to when payment is to occur.

Question 24

what is an upset price?

Answer 24

the minimum price set for property offered at auction or public sale. An upset price is a marker.

Question 25

T or F, a right of first refusal must be in writing

Answer 25

True

Question 26

What circumstances establish the Parties’ previous performance and dealings for purposes of a contract under the UCC ?

Answer 26

If both parties have previously performed on a contract for the sale of goods, and

if both parties are aware of the terms required for performance and

do not object to them, this establishes their previous performance and dealings.

Question 27

To determine whether a temporary regulation is a taking, the courts will will examine both the _______and_______ dimensions of a property interest

Answer 27

time and space dimensions

Question 28

Rescission is a remedy when title is ____________.

Answer 28

unmarketable

Question 29

When title is unmarketable, the buyer can? options

Answer 29

rescind the contract and recover any down payment (such as an option fee),

sue for breach of contract damages, or

sue for specific performance with an abatement of the purchase price.

Question 30

Sometimes, an amended complaint filed after the Statute of limitations period has expired will “relate back” for limitations purposes to the date of the original filing. What effect does this have?

What are the requirements for the “relation back” doctrine to apply

Answer 30

the lawsuit will relate back to the original filing date of the original complaint.

Such an amended complaint will not relate back unless,
within the time provided for service under Rule 4(m), the party that has been added knew or should have known that the action would have been brought against it but for a mistake.

The time period for service under Rule 4(m) is 90 days

Question 31

Explain the Safe Harbor provision

Answer 31

A party may not file a motion for sanctions without first serving the motion upon the opposing party and providing the opposing party with 21 days to withdraw or correct the offending pleading, written motion, or other paper.

note: not all jurisdictions apply the safe harbor provision