Rule Statements For MBE Questions

Question 1

What is the effect of:

Modification of Mortgage

Answer 1

If a senior mortgage is modified, a junior mortgage prevails over the modification IF the modification materially prejudices the holder of the junior mortgage, such as by:

(1) increasing the amount of principal;
(2) increasing the interest rate

Question 2

Standards of Appeal

Answer 2

(1) De Novo - used for review of legislation rulings

(2) Clearly Erroneous - used for review of findings of fact

(3) Abuse of Discretion - used for review of situations where the judge makes a ruling based on discretion (judicial notice, expert testimony)

Question 3

What are the two types of Immunity?

Answer 3

(1) Transaction and (2) Use Immunity

(1) Transactional Immunity — protects the witness from prosecution for the offense or offenses involved

(2) Use Immunity — only protects the witness against the government’s use of his or her immunized testimony

Question 4

Parol Evidence Rule (PER)

Answer 4

Bars evidence of any agreement made prior to or contemporaneous w/ written, integrated contract is not admissible to contradict or vary expressed terms in a contract.

UNLESS
- evidence of ordinary course of business; OR
- customs of the trade

Question 5

Anticipatory Repudiation

Answer 5

If non-breaching party accepts or relies on repudiation of breaching party, the breaching party may no longer retract their repudiation & fulfill the contract.

Question 6

What are the two scenarios that Will be used to test Political Question on the MBE?

Answer 6

(1) Foreign Affairs (Presidential Powers)

(2) Political Parties Fighting (Republicans vs. Democrats)

Question 7

Strict Liability Exception for One-Time Seller(s)

Answer 7

One-time sellers are not commercial retailers. Thus, they may not be held liable for strict products liability.

Question 8

When is an alleged “taking” not really a taking?

Answer 8

An alleged “taking” for two years or less is not substantial enough to be deemed a taking.

Question 9

What is larceny?

Answer 9

A crime of intentional taking of personal property belonging to another

Question 10

What is embezzlement?

Answer 10

is when you lawfully have custody of the property, but then you decide to keep it.

Question 11

Mutual Mistake

Answer 11

Both parties are mistaken as to a material element that goes to the heart or essence of the bargain.

Remedy: Recission

Question 12

Unilateral Mistake

Answer 12

Contact is enforceable against mistaken party unless the non-mistaken party knew or should have known of the other’s mistake.

Remedy: Contract

Question 13

Evidence - Original Document Requirement

Answer 13

When an issued is raised as to wether a document is, in fact, the original or whether evidence correctly reflects the contents of the document at issue, it is for the jury to determine that fact issue.

Question 14

Ameliorative Waste occurs when…

Answer 14

A tenant permanently alters the land with an improvement.

RULE: This is generally prohibited, unless the remainderman’s market value is not impaired; and either: (a) life tenant has permission; or (b) there is a substantial and permanent change in the neighborhood that permanently deprives the property of a reasonable current value — so improvement was necessary.

Question 15

Exclusion of Potential Witness (Sequestration)

Answer 15

A potential witness may be excluded at the request of either party, or on its own motion, court must exclude witnesses from the courtroom.

Exceptions: (1) the ∆ may not be excluded (Confrontation Clause); and (2) a person who is essential to the presentation of the party’s case may not be excluded.

Question 16

Establishment Clause

Answer 16

The State must be neutral toward religion.

Question 17

Nuisance

Answer 17

A person with special sensitivities will generally not recover for nuisance.

However, a person who is not offended, inconvenienced, or annoyed may still recover if an average, reasonable person would be.

Question 18

Common Scenarios for Depraved Heart Murder

Answer 18

1. Firing a gun without looking
2. Firing a gun with eyes closed
3. Driving car on sidewalk
4. Russian Roulette

Question 19

Common Scenarios for Voluntary Manslaughter

Answer 19

1. Spouse Cheating (Caught in the Act/Love Gone Wrong)
2. Imperfect Self-Defense (Mistaken Identity)

Question 20

Common Scenarios for Involuntary Manslaughter

Answer 20

Usually occurs by battery THEN they die.

Question 21

Procedural Due Process (PDP)

Answer 21

When taking away life, liberty, or property, there must be at minimum some type of hearing.

Question 22

Conspiracy

Answer 22

A conspiracy agreement cannot be established by mere knowledge. It requires an additional act in furtherance.

Question 23

What are the Statute of Frauds (SOF) exceptions?

Answer 23

1. Part performance; AND
2. Substantial improvements

Question 24

“Most” “Least” “Strongest” M/C Questions

Answer 24

If you don’t know all of the law from M/C questions asking about “most” or “least” — Look for the answer choice that is most different from others. It’s usually the correct answer.

Question 25

Strict Liability: Wild Animals

Answer 25

An animal owner is strictly liable for the trespass and resulting property damage caused by his animals IF reasonably foreseeable.

Question 26

Abnormally Dangerous Activity is…

Answer 26

An abnormally dangerous activity is activity that is: (1) not of common usage in the community AND (2) creates a foreseeable and highly significant risk of physical harm even when reasonable care is used by all actors.

Question 27

Negligent Supervision under Respondeat Superior

Answer 27

An employer may be held liable for the acts of its employees outside the scope of their work if they have knowledge of the actions.

Question 28

What are the main defenses to Negligence Claims?

Answer 28

1. Pure Comparative Fault
2. Partial Comparative Fault
3. Contributory Negligence
4. Assumption of Risk

Question 29

Assumption of Risk Applied to Strict Liability

Answer 29

Assumption of Risk may only be associated with scenarios such as dynamite blasts where the π voluntarily assumed a known risk.

NOTE: If this defense applies, it will be guided by a fact heavy analysis to get there.

Question 30

Licensee vs. Invitee

Answer 30

1. Licensee — is invited on the owner’s property as a social guest
2. Invitee — is invited onto the property for the owner’s benefit, such as business. Owner owes (a) a duty to make safe AND (b) make reasonable inspections and make safe non-obvious dangerous conditions

Question 31

Defense to False Imprisonment

(Shopkeeper’s Privilege)

Answer 31

A store may detain a suspected thief if (1) have reasonable causes to believe a theft occurred; (2) detains suspect in a reasonable manner for purposes of investigation; AND
(3) detention is reasonable in length and scope.

If these elements are present no false imprisonment occurred.

Question 32

What is a non-conforming use?

(Real Property)

Answer 32

A non-conforming use exists when a zoning ordinance is enacted or made more stringent than what it once was.

Virtually all ordinances either: (1) grant a non-conforming user a substantial period within which he may continue his use OR (2) kept him continue tat use indefinitely.

Question 34

When at is the procedure to move for sanctions under FRCP 11?

Answer 34

1. A party must serve a separate motion on the other party
2. Moving party for sanctions may file the motion if party withdraws or appropriately corrects their motion within 21 days after service of sanctions “safe harbor rule”
3. The court must not impose a sanction on a represented party

Question 35

May a court strike a defense in a pleading as irrelevant?

Answer 35

Yes. Under FRCP 12, a court may strike from a pleading an insufficient defense or any redundant, immaterial, or scandalous matter in a motion made by a party or responding party within 21 days of being served.

Question 36

What does Federal Question Jurisdiction apply to?

Answer 36

cases and controversies arising under the Constitution, laws, or treaties, of the United States.