Rules & Definitions for MBE

Question 1

When is it possible to assert a Fourth Amendment Right?

Answer 1

To be able to assert a Fourth Amendment Right, a person must have a reasonable expectation of privacy.

Criminal Cases (Search & Seizure) No expectation of privacy held out to the public or that may be viewed from public vantage point (naked eye)

Question 2

What is the Doctrine of Part Performance?

Answer 2

This is an exception to the SOF (“Statute of Fraud”) and may be used to enforce an otherwise unenforceable oral contract of sale, provided the acts of part performance unequivocally prove the existence of the contract

Question 3

What’s a fee simple determinable?

Answer 3

This is an estate that automatically terminates on the happening of a stated event and goes back to the grantor. The interest that is left in a grantor who conveys a fee simple determinable is a possibility of reverter, which arises automatically in the grantor and can be divided by will in almost every jurisdiction

Question 4

When a private action for nuisance will prevail?

Answer 4

For a private nuisance action to lie, the interference with the plaintiff’s use or enjoyment of his land must be substantial.
This means it must be offensive, inconveniente or annoying to an average person of the community.
“Extreme Sensitivity” is not considered to be substantial

Question 5

Does an arrest warrant give the police right to search the home of a third party?

Answer 5

No, an arrest warrant does not give right the police to search the home to a third party and evidence obtained from an unconstitutional search must be suppressed.

Fourth Amendment requires search to be reasonable, home search reasonable if police have search warrant

Search Warrant ≠ Arrest Warrant

Question 6

What does complete diversity mean?

Answer 6

Complete diversity means that each plaintiff must be a citizen of a different state from the defendant

Two defendants may share state without destroying complete diversity

Question 7

Where a Corporation is deemed to be a citizen for the purpose of diversity?

Answer 7

1. Every state in which is incorporated;

2. The state in which is has its PPB (“Principal Place of Business”)

Question 8

Who can testify as to someone’s writing?

Answer 8

Anyone with familiarity with the person handwriting prior with the dispute arise may testify as to that person penmanship (“writing”)

Question 9

What’s the legal duty and general rule imposed to any person affirmatively acting for the benefit of others? (e.g. rescuer)

Answer 9

No legal duty is imposed on any person who affirmatively acts for the benefit of others

However, one who gratuitously engages for the benefit of another is then under a duty to act reasonably

Question 10

What’s the Congress power to spend?

Answer 10

The Art. I, Section 8 of The Constitution gives the Congress power to spend “for the common defense and general welfare”

Congress can Tax & Spend for any legitimate purpose. (e.g. energy conservation, preserving our natural resources, saving money)

Question 11

When a Defendant Motion for Directed Verdict will fail?

Answer 11

Defendant’s Directed Verdict Motion will only be granted if the Plaintiff fails to establish a prima facie case

Question 12

What are the prima facie elements of a negligence case?

Answer 12

(i) Duty of Care
(ii) Breach of duty
(iii) The actual and proximate cause = Causation
(iv) Damages

Question 13

How and when do a third party beneficiary rights vest?

Answer 13

1. They learn of the contract and agree to it
2. Learns of the contract and rely on it
3. Learns of the contract and brings a lawsuit to protect their rights

Before a third party beneficiary vest, the contracting parties can modify or cancel the contract without the third party beneficiary consent.
Vest: to give or earn a right to a present or future payment, asset, or benefit

Question 14

What is the standard remedy for a non-breaching buyer?

Answer 14

(i) It can cancel the contract and recover any incidental damages

(ii) it can purchase replacement goods and sue for replacement “cover”
(i. e. Cover price - contract price)

Question 15

What kind of activities can the Congress regulate under the Commerce Clause?

Answer 15

(i) Channels (i.e. The channels of interstate commerce)
(ii) Instrumentalities (i.e. The instrumentalities of interstate commerce, as well as persons and things in interstate commerce)
(iii) Activities (i.e. The activities that have a substantial effect on interstate commerce.

Mnemonic (“CIA”)

Question 16

Can the President of the U.S. declare war?

Answer 16

The President is the Commander in Chief of the military, which affords the president extensive power to deploy military force against any enemy, foreign or domestic.

However, the President has no power to declare war

Art II, § 2 U.S. Constitution

Question 17

When is character evidence admissible?

Answer 17

Limited to:

(i) Reputation
(ii) Opinion where character trait is an essential element of the charges

Question 18

What are the elements of Battery?

Answer 18

(i) Harmful or Offensive contact

(iIi To plaintiff’s person

(iii) Intent
(iv) Causation

Question 19

What is theft by false pretenses?

Answer 19

At common law, occurs when a defendant:

(i) obtain title
(ii) to the property of another
(iii) by an intentional (or knowingly) false statement of past or existing facts
(iv) with intent to defraud

Question 20

What is forgery?

Answer 20

At common law, consist of:

(i) making or altering
(ii) of a false instrument
(iii) with the intent to defraud

Question 21

What is embezzlement?

Answer 21

At common law, is:

(i) the fraudulent
(ii) conversion
(iii) of the property
(iv) of another
(v) by a person in lawful possession of that property

Question 22

What is larceny by trick?

Answer 22

At common law, larceny by trick occurred when possession of the property was obtained by intentionally making a false statement

Question 23

What is meant by the dormant commerce clause?

Answer 23

The “Dormant Commerce Clause” refers to the prohibition that any states passing legislation that discriminates against or place an undue burdens interstate commerce

There are two exceptions to the dormant commerce clause: (i) The Congress authorize it and (ii) The market participation exception

Question 24

What’s negligent entrustment? (i.e. negligent hiring)

Answer 24

Negligent entrustment provides for the recovery of damages when a person puts a dangerous device in the hands of a person who is not equipped to handle.

(e.g. hiring someone as armed guard who was barred from law from this type of jobs)

Question 25

How to obtain title by adverse possession?

Answer 25

One may obtain title by adverse possession by taking and maintaining possession of it for the statutory period provided by the jurisdiction

The possession must be: (i) actual and exclusive, (ii) open and notorious (sufficient to put the true owner or the community on notice), (iii) hostile (without true owners permission), (iv) continuous (used in a way that actual owner would use it)

Question 26

When objections to Personal Jurisdiction must be asserted?

Answer 26

FRCP 12 provides that objections to PJ may be asserted by pre-answer motion or in the answer

If the objection to personal jurisdiction is not presented in the first response, the objection is waived

Question 27

How to establish liability in a strict liability action based on a defective product?

Answer 27

The plaintiff must prove that the defendant is a commercial supplier of the product (“put it in the stream of commerce” ) and that the product is expected to be supplied to the consumers without substantial change in the condition in which it is supplied

Question 28

What is the relation back doctrine?

Answer 28

The relation-back doctrine, holds that amended pleadings, filed after the expiration of the applicable statute of limitations, are allowed to subsequent pleadings to the original complaint “relate back” to the date of the original complaint’s filing if (i) the claims in the amendment arise from the same T/O; (ii) within the time allotted for serving the original complaint (90 days)

Question 29

Can a court of appeal hear a certification of a class certification?

Answer 29

The court of appeal can hear appeal when a district court grants or denies certification of a class action

This certification can be appealed within 14 days of entry of the order

Question 30

Does an inquiry terminate the original offer in a contract of sale of land?

Answer 30

When there’s mutual assent there’s a contract a counteroffer serves as rejection of the original offer as well as a new offer

Question 31

Can a criminal defendant present relevant character evidence to help establish that he might not have committed the crime charged?

Answer 31

Yes, under FRCP 404(a) a criminal defendant is allowed to present relevant character evidence to help establish he may not have committed a crime

FRCP 404(a) (When presented, reputation evidence, open the door for prosecution to bring witnesses and prove the opposite)

Question 32

What’s the standard of care for professionals?

Answer 32

The common law standard of care for performance of professional services is generally defined as the ordinary and reasonable care usually exercised by one in that profession, on the same type of project, at the same time and in the same place, under similar circumstances and conditions

A professional is required to exercise superior judgement, skills, and knowledge as he actually possesses

Question 33

What’s anticipatory repudiation?

“Theory of anticipatory breach”

Answer 33

It arises when one party makes a clear unequivocal statement of an intent he cannot or will not perform when the time comes, or acts in a manner rendering him unable to perform

Question 34

When is prior identification admissible?

e.g. police lineup

Answer 34

Prior identification is admissible only if the person who made the identification is able to be present at trial and subject to cross-examination

Question 35

What’s the general rule to have an effective assignment of rights to collect debt from a third party?

Answer 35

The general rule is that writing is not required to have an effective assignment

Question 36

What’s arson’s Modern and Common Law definition?

Answer 36

Majority rule: The malicious burning of any structure (i.e. Only Modern rule applicable by default in the MBE)

Minority rule: The malicious burning of the dwelling of another

Question 37

When may the Supreme Court review a decision from a state court?

(“The adequate and independent state ground rule”)

Answer 37

1. It has to be a final decision
2. Must come from the highest state court
3. Must pose a substantial federal question
4. The decision by the high state court does not rest on adequate and independent state grounds

Question 38

Why were anti-lapse statutes created?

Answer 38

At common law, the rule is that if the beneficiary of a will predeceased the will maker, the will to the beneficiary was void

These kinds of statutes have been created to prevent this from happening

Question 39

Does immediate delivery of deed transfers property?

Answer 39

Yes

Question 40

What’s the general rule when a property is bought subject to a mortgage in the property?

(“When debtor default payments”)

Answer 40

The lender may foreclose on the land or it may sue the prior owner on the underlying debt

Buyer is not personally liable unless assume the mortgage

Question 41

What’s the duty owed by an owner or occupier of land to those on the land in a jurisdiction following the traditional liability rules?

Answer 41

This depends on whether the person on the land is characterized as a trespasser, licensee, or invitee

A trespasser, is one who comes onto the land without permission or privilege

A licensee is one who enters the land with the land owner’s permission, express or implied

An invitee is one who enters on the premises in response to an express invitation. However, a person loses his invitee status when exceeds the scope of the invitation

Question 42

What is the duty owed to an invitee?

Answer 42

(i) Duty to inspect
(ii) Duty to make safe

However, a person loses his invitee status when exceeds the scope of the invitation. (e.g. goes beyond the area the invitee is allowed to be, this situation makes the invitee an anticipated trespasser)

Question 43

What are the resources available for a Plaintiff who loses in a state court?

Answer 43

The proper next step is to appeal to the state appellate courts

The Plaintiff having selected initially the state court to file its suit, must pursue its appellate remedies before seeking review in the federal courts

Question 44

What are the elements of standing?

Answer 44

(i) Injury in fact
(ii) Causation
(iii) Redressability

Question 45

What’s the general rule to trigger Double Jeopardy?

Answer 45

The defendant cannot be tried again for the same offense

Double jeopardy attaches for convictions, acquittals and when there’s evidence for prosecutorial misconduct during trial (i.e. judgment on the merits)

Question 46

Does exclusionary rule of evidence apply to Grand Jury Proceedings?

Answer 46

No, all the evidence is admissible in this stage of the process

This evidence might be excluded at trial, but threshold in grand jury proceedings is much lower because not determining guilty or innocence

The only purpose of the grand jury is to determine if there’s probable cause to issue an indictment

Question 47

What’s an adoptive admission?

Answer 47

If the defendant is accused by someone with authority and does not deny the accusation, the silence may be used as an adoptive admission

Question 48

Can a hearsay problem arise when the out-of-court declarant and the in-court witness are the same person?

Answer 48

Yes, just because the defendant is testifying on the stand about what the defendant said out-of-court, it’s still hearsay unless an exception applies

Question 49

What’s likely to be the result of material breach of contract?

Answer 49

The non-breaching party can cancel the contract and sue the breaching party for damages

Question 50

What’s likely to be the result of a minor breach of contract?

Answer 50

Non-breaching parties can only sue for damages, but can cancel the contract

Question 51

When is evidence of subsequent remedial measures admissible?

Answer 51

1. To show ownership or control

2. When the defense is there is no way to improve the product, land, or to have a safer condition than already were

Question 52

Can contracts be assignable and delegable?

Answer 52

Yes, all contracts are assignable and delegable except unique personal service contracts and long term requirement contracts

Question 53

Can assignment and delegation of contracts be revoked?

Answer 53

The general rule is that assignment for value are irrevocable and gratuitous assignment are revocable

Question 54

What are the mistakes considered as valid defenses against a breach of contract claim?

Answer 54

There are two types of mistakes considered as valid defenses in contracts: (i) mutual mistake arises when both parties to a contract are mistaken about the same material fact within their contract; (ii) Unilateral mistakes, only one part is mistaken and the general rule does not prevent contract formation. However, in all unilateral mistake situations if the non-mistaken party or has reason to know of the other party’s mistake won’t be permitted to take advantage of the mistaken party and snap-up the bargain

Question 55

What’s murder?

Answer 55

Murder is the unlawful killing of human being with malice aforethought.

Malice aforethought exist if the defendant has any of the following states:

(i) intent to kill
(ii) intent to inflict great bodily injury
(iii) reckless indifference to an unjustifiable human risk to human life
(iv) intent to commit a felony

Question 56

What’s a peremptory challenge?

Answer 56

Peremptory challenge allows an attorney to disqualify a potential juror because the juror displays an attitude or some characteristics that appear unfavorable to the attorney’s client but that does not rise to the level of bias that would present grounds for challenge for cause

The party cannot use peremptory challenges if the court suspects the challenge is for, race, national origin, religion or gender, which violate the juror’s equal protection rights under the Fourteenth Amendment

Question 57

When a defendant have standing to challenge an illegal search and seizure under the Fourth Amendement?

Answer 57

The defendant must have ownership or must have a reasonable expectation of privacy in the place searched or item seized. (e.g. no piggy-back on someone else standing to challenge the search).

Question 58

What are the problems arising with a hold-over tenant?

Answer 58

1. We need to determine which would be the rent
   (i) If the tenant was notified of a rent increase, they will pay the increased rent
   (ii) if the tenant was not notified of a rent increase, the tenant will pay the rent they’ve been paying up to that point
2. How long will the tenancy last for?
   (i) if it’s a residential tenancy, will be a month to month tenancy
   (ii) if it’s a commercial tenancy, it will be year to year most frequently

Question 59

When can a plaintiff assert third-party standing to challenge a government action?

Answer 59

Any person who challenges a government action must have standing to raise a constitutional issue and would only have standing if can demonstrate a concrete stake in the outcome of a controversy and that the government action impairs her own rights

A plaintiff may assert third party rights if she has suffered injury and that injury adversely affects the relationship with third parties, resulting in an indirect violation of their rights

Question 60

What’s an assignment?

Answer 60

If a tenant makes a complete transfer of the entire remaining term of his leasehold interest, he has made an assignment. The assign and the landlord are in privity of estate, and each is liable to the other on all covenants in the lease that runs with the land

Question 61

What happens when an assignment is reassigned?

Answer 61

When an assignee reassigns the leasehold interest, her poverty of estate with the landlord ends, and is not liable for the subsequent assignee’s failure to pay rent

Question 62

What’s joint liability?

Answer 62

This means both parties can be liable for the whole

Question 63

What’s several liability?

Answer 63

This means each party is only responsible for his share

i.e. can seek contribution for the portion he is not responsible for

Question 64

What’s the standard of care for a child imposed in negligence actions?

Answer 64

The general standard of care imposed by the courts when the tortfeasor is a child in negligence actions is that of a child of same age, education, intelligence, and experience

Question 65

What’s the definition of conspiracy?

Answer 65

This is an agreement between two or more persons to commit an unlawful act or to commit a lawful act in an unlawful manner

The elements are

(i) an agreement between two or more persons
(ii) the intent to enter into an agreement
(iii) the intent to achieve the objective of the agreement

At common law, you can’t withdraw from conspiracy

Whether, you can withdraw from the responsibility of the later crime this is not defense for conspiracy

Question 66

What’s the preexisting duty rule?

Answer 66

Principle under contract law that states that if a party to a contract is under a pre-existing duty to perform, where a modification would operate to the benefit of only one parties, if no consideration is given for any modification of the contract, the modification is therefore voidable

UCC allows modification as long as the modifications are entered in good faith

However, at common law modernly we are now allowing modification if the modification is fair, equitable and due to some enforceability

Question 67

What are experts allowed to testify?

Answer 67

Experts are allowed to base their testimony, reports, opinions or anything that is reasonably relied on by other experts in their field.
Fed. R. Evid. 703

Question 68

What’s a collateral matter doctrine?

Answer 68

Testimony which is minimal relevance is substantially outweighed by consideration of waste of time and confusion of the issues under Rule 403

Therefore, when a witness makes a statement not directly relevant to the issue in the case, the rule against impeachment on a collateral matter bars his opponent from proving the statement untrue either by extrinsic evidence or by prior inconsistent statements

Question 69

When is a fee simple subject to a condition subsequent created?

Answer 69

One fee subject to a condition subsequent is created when the grantor retains the power to terminate the estate of the grantee on the happening of a specific event

On the happening of the specific event, the estate of the grantee continues until the grantor exercise power of termination (right of entry) by bringing suit or making reentry

Question 70

What’s remittitur?

Answer 70

Remittitur arises when a trial judge believes that jury damages award is so excessive as to “shock of conscience”

The court may order a new trial or an alternative of a lower award and it’s available in state and federal court

Question 71

When are contracts regulated by the UCC?

Answer 71

When is for sale of goods of more than $500.00

Question 72

What’s an option?

Answer 72

A promise to keep an offer open for a certain period of time

Question 73

How to maintain an option open in Common Law?

Answer 73

In order to have an offer open in common law, It’s has to be supported for consideration

Question 74

What is the merchant’s firm offer rule under UCC 2-205?

Answer 74

An offer by a merchant in sign writing terms which give insurance that it will be held open, its irrevocable during the time stated

If not time stated, the period of irrevocability may not exceed 90 days

Only apply to merchants, and must be signed by the offeror

Question 75

What’s the automobile exception to the Fourth Amendment to the warrant requirement?

United States v. Ross, 1982

Answer 75

If probable cause justifies the stop of the vehicle, it justify the search of the entire vehicle including closing containers kept therein including the trunk

Question 76

What’s a search incident to a lawful arrest?

Arizona v Gant, 2009

Answer 76

The Supreme Court held that police may search the vehicle of its recent occupant after his arrest only if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or that the vehicle contains evidence of the offense of the arrest

Under Gant the police can only search the interior of a vehicle only to find

(i) instrumentalities associated with arrest
(ii) to officer safety or are chances that evidence would be destroyed

The police can search the area in control but the trunk is excluded

Question 77

Is the seller liable when concealed defective conditions on a property?

Answer 77

Yes

Concealed = kept secret, hidden

Question 78

What’s the Free Exercise Clause?

Answer 78

Prohibits government from acting in a way that interferes with free exercise of religion

The Supreme Court has found the Clause to provide almost absolute protection for religious belief

Question 79

What’s a time-is-of-the-essence clause?

Answer 79

This clause created by its terms, in conjunction with the surrounding circumstances, establishes that time is of the essence, failure to timely perform will be a material breach, therefore, will constitute a breach of contract of the builder

Question 80

When an owner breaches a construction contract after construction has been started but before construction is completed?

Answer 80

The builder is entitled to recover any profit he would have derived from the contract plus any cost he has incurred to the date of the breach

Question 81

What’s right of first refusal?

[subject to RAP analysis (“Rule Against Perpetuities”)]

Answer 81

A right of first refusal gives its holder the preemptive right to meet any third party’s offer to purchase real estate

The right of first refusal is valid only when is held by an ascertainable person (or group of people), while personal to the holders and ends with their life is not subject to RAP

Question 82

What are the elements to establish a prima facie case for trespass to land?

Answer 82

To establish a prima facie case for trespass to land the plaintiff must prove

(i) an act of physical invasion of plaintiff’s real property by defendant
(ii) intent on defendant’s part to bring about the physical invasion
(iii) causation

Question 83

Where is the venue proper in federal civil actions?

Answer 83

Federal venue in civil actions is proper in

(i) the district where any defendant resides, if all defendants are residents of the state in which the district is located; and
(ii) the district in which a substantial part of the events or omission giving rise to the claim occurred

Question 84

Failure to timely object to a procedural mistake waive right to raising issue in appeal?

Answer 84

Yes, for matters other than legal theories are asserted by parties by raising a timely objection at trial, failure to object waives the right to raise that issue on appeal

Question 85

What are the exceptions to actual damages in an action for (“NIED”) negligent infliction of emotional distress?

Answer 85

(i) Mishandling of a corps

(ii) False report of a death

Question 86

What are the Presidential pardoning powers scope?

Answer 86

In the United States, the pardon power for offenses against the United States is granted to the President of the United States under Article II, Section 2 of the United States Constitution which states that the President “shall have power to grant reprieves and pardons for offenses against the United StatesFederal linked offenses

Not possible to pardon official impeached by the Congress

Not possible to pardon a person convicted of a state crime

Question 87

What is the burden for the state in gender discrimination policies?

Answer 87

The courts will apply an intermediate standard of review, and the state bears the burden to overcome the standard of review by showing the policy or program is substantially related to an important government interest

Question 88

What’s the duty of commercial suppliers of components manufactured by others if those are defective?

Answer 88

A commercial supplier who assembles a product from components manufactured by others is subject to the same liability as the manufacturer of the defective component

In product liability actions, always make sure you are applying the appropriate theory of liability (i.e. strict liability or negligence)

Question 89

What must be proven to establish a prima facie negligence product liability case?

Answer 89

To establish a prima facie case of negligence in product liability case, the plaintiff must show

(i) the existence of a legal duty owed by the defendant to a particular plaintiff
(ii) breach of that duty
(iii) actual and proximate cause
(iv) damages

Question 90

What is supplier liability for defective products?

Answer 90

One who sells a product in a defective condition unreasonably dangerous to user, consumer or bystander is held strictly liable for the resulting harm or injury that occurs

Question 91

Is Congress allowed to impose conditions for the granting of money to states?

Answer 91

Yes, as long as it’s not unduly coercive

Question 92

How does the doctrine of equitable conversion govern the rights of parties when the purchaser dies before the sale is completed at closing?

Answer 92

Once the parties entered into a land sale contract this is affixed to the property

A deceased buyer’s interest passes as real property to the taker of the buyer’s real property interest, therefore, estate can compel specific performance and demand the conveyance of the land

Question 93

How does confidential marital privilege operate?

Answer 93

First, in a criminal case, a spouse can testify if she wants to testify, but the spouse cannot be compelled to testify. The privilege applies to all information that the spouse has gained BEFORE and DURING the marriage

This privilege ends when the marriage ends

Second, in any type of case, a spouse can refuse to disclose, or prevent a spouse from disclosing, confidential communications made between the spouses during the marriage. While the defendant can object to his wife’s testimony concerning confidential communications during the marriage, he has no privilege to object to other testimony by her

Question 94

What’s a motion to compel?

Answer 94

A motion to compel asks the court to order either the opposing party or a third party to take some action mostly common in discovery disputes when one of the parties consideres discovery responses are insufficient

Question 95

What are the sources of Subject Matter Jurisdiction?

Answer 95

The two primary sources of the subject-matter jurisdiction of the federal courts are diversity jurisdiction and federal question jurisdiction

Question 96

What is Diversity Jurisdiction?

Answer 96

Diversity jurisdiction generally permits individuals to bring claims in federal court when:

(i) The plaintiffs and defendants are from different states

&

(ii) the claim exceed $75,000.00

Question 97

When the defense of necessity can be raised in a trespass to land claim?

Answer 97

Necessity arises when the defendant enters the land of another when enters the land of another in order to avoid greater harm

Necessity can be public and private

(i) in private defense, the defendant is liable for the damages
(ii) in public defense, the defense is absolute
(e. g. school bus driver entering into land to avoid an accident and causing damage to lawn or property in order to save children or members of the community).

Question 98

When is a defendant entitled to a directed verdict in a negligence action?

Answer 98

When the plaintiff has failed to prove has a prima facie case for negligence

Question 99

What’s the trade fixture doctrine?

Answer 99

We allow a commercial tenant to remove all trade fixtures prior to the lease expiring. The only exception are accession: structure additions to the real property cannot be removed (e.g. a balcony, a deck, a loft)

Question 100

Are Laws designated to protect local business against interstate competition allowed?

Answer 100

No, state legislation that discriminates against out-of-state goods in violation of the Commerce Clause will be invalidated

Question 101

When is a contract Unconscionable?

Answer 101

Unconscionability usually arises where one of the parties has substantially superior bargaining power and can dictate the terms of the contract to the other party, who has an inferior bargaining power

Question 102

What is the written confirmation ten (10) days rule exception to the SOF?

Answer 102

If within a reasonable time after entering into an oral agreement one of the merchants sends a written confirmation of the oral agreement, it binds the sending merchant immediately, and if the recipient merchant doesn’t object to the content of the writing within ten (10) days of receipt, it binds them as well

Question 103

Where’s the venue proper?

Answer 103

To determine where is venue proper, the following test must be applied:

(i) if all the defendants reside in the same state > Venue is proper in any District where a defendants if all the defendants reside in the same state
(ii) if the defendants do not reside in the same state > Venue is proper where the cause of action occurred

Question 104

How are the proceeds of a foreclosure sale distributed?

Answer 104

The proceeds of the foreclosure sale are used first (after expenses and fees) to pay the principal and accrued interest on the loan that was foreclosed (the foreclosing party obtains payment first), and then to pay off any junior interest in the order of priority

Where the proceeds of the sale are insufficient to satisfy the mortgage debt, the mortgagee can bring a personal action against the mortgagor/debtor for the deficiency

Mortgagee = Lender
Mortgagor = Borrower

Question 105

What’s the rule of proximate cause?

Answer 105

The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents and within the increased risk caused by his acts

In indirect cause cases, an independent intervening force may be foreseeable where the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff

Even a criminal act by a third party will not cut off the defendant’s liability if the defendant’s negligence created foreseeable risk that a third person would commit the crime

Question 106

How does pure comparative negligence operate? (“majority rule for MBE”)

Answer 106

The plaintiff recovers regardless of fault and their recovery is reduced by the percentage attributed to them

Question 107

What’s the issue of the preclusion rule?

Answer 107

The issue preclusion rule is whether the issue was actually litigated

For issue preclusion to apply (collateral estoppel), the relevant issue must have been actually litigated and determined in the previous case

Question 108

What’s provided by the Fifth Amendment?

Answer 108

The Fifth Amendment provides that no person “shall be compelled to be a witness against himself”

To protect this right, the Supreme Court requires detainees to be informed of certain right (that’s Miranda warnings) prior to custodial interrogation by someone the detainee knows is a police officer

The rationale is that the warning helps mitigate the inherent coercive nature of custodial police interrogation. Among these right are the right to remain silent and right to counsel.

Question 109

Can habit evidence be admitted?

Answer 109

Evidence of a person’s habit may be admitted to prove that, on a particular occasion, the person acted in accordance with the habit [Fed. R. Evid. 406]

Question 110

When can a motion for a new trial be granted?

Answer 110

A motion for a new trial may be granted

1. because of error during trial (usually going to the admissibility of evidence or the property of the jury instructions),
2. the verdict is against the weight of evidence (limited to the cases where judges finds the verdict seriously erroneous)
3. jury misconduct or
4. the verdict is inadequate

Question 111

What’s the doctrine of forum non conveniens?

Answer 111

Courts has discretion to dismiss for forum non conveniens and have the plaintiff refile the action in another country it it determines a court in the other country is a substantially better forum for the case (considering the location of the parties and evidence, the applicable law, potential administrative problems like language barriers and the need for translations, etc)

Question 112

What are the requirements to have a valid conveyance?

Answer 112

In order to have a valid conveyance, the deed must adequately describe the land being conveyed, and if the deed fails to adequately describe the land, the deed failed for lack of definitness

Question 113

What’s Reformation?

Answer 113

Reformation is an equitable action in which the court rewrites the deed to make it conform to the intention to the parties. It is granted when the deed does not express the agreement of the parties due to mutual mistake or a scrivener’s error, and may also be granted when there’s unilateral mistake if misrepresentation is involved

Question 114

Is mistake of Law a valid defense?

Answer 114

Mistake of law is never a valid defense

Question 115

What’s an admission?

“statement by an party-opponent”

Answer 115

Out of court statements offered against them by a party opponent and by definition admissions are not hearsay

Federal Rule 801(d)(2) provides that a statement offered against a party that is the party’s own statement is not hearsay and therefore cannot be excluded by rules against hearsay

Question 116

What are the prima facie elements to establish a case for intentional infliction of emotional distress?

Answer 116

The plaintiff must show

(i) an act by defendant amounting to extreme and outrageous conduct
(ii) intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendant’s conduct
(iii) causation
(iv) damages

Tips for MBE:
Reckless or intentional > intentional infliction of emotional distress > Mental injury is an element of IIED (e.g. depression, humiliation, embarrassment)

Accidental or by mistake > Negligent infliction of emotional distress > Physical injury is an element of NIED (e.g. illness, hospitalization, etc)

Question 117

What’s informed consent?

Answer 117

One of the duties that doctors, dentists, and other health professionals owe their patients is the duty to provide a patient with enough information about the risks of a proposed treatment or surgical procedure to enable patients to make an “informed consent” to the treatment

If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the health care professional has breached this duty

Question 118

What’s in the scope of discovery?

Answer 118

In general, discovery may be had of any non-private matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issue at stake in the action, the amount in controversy, the parties’ relative access to the information, the resources of the parties, the importance of discovery in resolving the issue, and whether the burden or expense of the proposed discovery outweighs its likely benefits

Question 119

What does the Sixth Amendment provide?

“Massiah v. United States”

Answer 119

The Sixth Amendment provides defendants with the right of counsel at any post indictment interrogation and must be used to evaluate the admissibility of any statement made after the defendants has been charged with the relevant crime

Question 120

What’s a condition precedent?

Answer 120

It’s an act or event that must occur first before a party is under a duty to perform

Question 121

What’s the work product doctrine?

Answer 121

The work product doctrine provides qualified immunity from discovery, the documents prepared in anticipation of litigation by a party or representative are not discoverable unless the opposing party can show a substantial need, and that it cannot obtain the materials in an alternative way without undue hardship

Question 122

What are traditional public forums?

Answer 122

Some public property, such as streets, sidewalks, and parks, is so historically associated with the exercise of the First Amendment rights that it is categorized as a traditional public forum

Question 123

Can speech be regulated in public forums?

Answer 123

Speech in public forums may be regulated by time, place and manner regulations that are

(i) content neutral
(ii) narrowly tailored to serve an important governmental interest, and
(iii) leave open alternative channels of communication

Question 124

What’s Robbery?

Answer 124

Robbery is larceny from the person of presence of the victim by means of violence or intimidation

Larceny + battery and/or assault

Question 125

Parol Evidence Rule is generally admissible to establish ______________ against ___________

Answer 125

Parol Evidence Rule is generally admissible to establish DEFENSE against ENFORCEMENT

Question 126

What are expectation damages?

Answer 126

For a breach of contract, a party may be entitled to expectations damages. These damages are intended to put the injured party in the same position as if the contract had been performed

Question 127

What are consequential damages?

Answer 127

Consequential damages consist of losses beyond those covered by the standard measure that a reasonable person would have foreseen would occur as a result of a breach of contract

Question 128

When is an implied easement formed?

Answer 128

An implied easement, which does not require a signed writing, can be formed when a property is (a) previously undivided with a single owner, (b) the easement in use prior to property division, (c) upon division of the property, the parties intended for easement to continue, and (d) the use following division was continuos, apparent, reasonably necessary

Question 129

How can a contract be formed under UCC?

Answer 129

Under UCC, a contract can be formed in any reasonable manner to show manifestation of contract

Question 130

What are goods under UCC?

Answer 130

Goods are movable objects at the time the contract is entered into

Question 131

What’s the confirmatory memo rule?

Answer 131

The confirmatory memo rule is an exception to the Statute of Frauds which allows a contract to be enforceable without writing signed by the party to be bound, in this case the recipient of the confirmatory memo

Question 132

What’s Fee Simple Absolute?

Answer 132

A Fee Simple Absolute is absolute ownership of potentially infinite duration. It is freely alienable, devisable, and descendible

Question 133

What’re the Defeasible Fees categories?

Answer 133

(i) The Fee Simple Determinable, (ii) The Fee Simple Subject to Condition Subsequent, (iii) The Fee Simple Subject to Executory Limitation

Question 134

What’s a Life Estate?

Answer 134

This is an Estate that must be measured in explicit lifetime terms, and never in terms of years

Question 135

What’s a Life Estate pour autre vie?

Answer 135

A Life Estate measured by a life other than the grantee’s

e.g. To A for the life of B

Question 136

What’s a reminder?

Answer 136

A reminder is a future interest created in a grantee that is capable of becoming possessory upon the expiration of a prior possessory estate created in the same conveyance in which the reminder is created

Question 137

What’s an executory interest?

Answer 137

An executory interest is a future interest created in a transferee (a third party), which is not a reminder because it takes effect by either cutting short some interest in another person (“shifting”) or in the grantor ir his heirs (“springing”)

Question 138

What’s the RAP?

“Rules Against Perpetuities”

Answer 138

Certain kind of future interest are void if there is any possible, however, remote, that the given interest could vest more than 21 years after the death of a measuring life (i.e. only applies to contingent reminders, executory interest, and certain vested reminders subject to open)

Question 139

What are the elements of Adverse Possession?

Answer 139

(i) continuous, (ii) open and notorious, (iii) actual, (iv) hostile

Question 140

What are the forms of Concurrent Estates?

Answer 140

(i) Joint Tenancy: Two or more own with the right of survivorship;
(ii) The Tenancy by the Entirety: A protected marital interest between spouses with the right of survivorship;
(iii) Tenancy in Common: Two or more own without the right of survivorship

Question 141

What are the Four Leasehold or Non Freeholds Estates?

Answer 141

(i) Tenancy for Years, (ii) Periodic Tenancy, (iii) Tenancy at Will, (iv) Tenancy at sufferance

Question 142

What’s an Easement?

Answer 142

An Easement is a grant of non possessory property interest that entitles its holder to some form of use or enjoyment of another’s land

Easement can be affirmative & negative

Question 143

What’s an affirmative easement?

Answer 143

Most easements are affirmative, and affirmative easement is the right to go onto and do something on servient land

There are Method of Creation (PING)

Prescription, Implication, Necessity, Grant

Question 144

What’s a negative easement?

Answer 144

The negative easement entitles its holder to prevent the servient landowner from doing something that would otherwise be permissible

There are Method of Creation (LASS)

Light, Air, Support and Stream Water

Question 145

When is an Easement Appurtenant?

Answer 145

An Easement is Appurtenant when it benefits its holder in his physical use or enjoyment of his property

Question 146

When is an Easement in Gross?

Answer 146

The Easement is in Gross if it confers upon its holder some personal or pecuniary advantage that is not related to his use or enjoyment of his land. However, there is no benefited or dominant tenement

Question 147

Which is the definition of License?

Answer 147

The License is a mere privilege to enter another another’s land for some delineated purpose, is a writing needed to create a license

Question 148

What’s a convenant?

Answer 148

The covenant is a promise to do or not to do something related to land. It is unlike the easement because it’s not the grant of a property interest. Instead, it’s a contractual limitation or promise regarding land

Question 149

What are the must frequent recording statutes?

Answer 149

(i) The Notice Statutes;

(ii) The Race-Notice Statutes

Question 150

In a Notice Statute Jurisdiction…

Answer 150

A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded

Question 151

In a Race-Notice Jurisdiction…

Answer 151

A conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, whose conveyance is first recorded

Question 152

What’s a Mortgage?

Answer 152

A mortgage is the conveyance of a security interest in land, intended by the parties to be collateral for the repayment of a monetary obligation. In other words, the owner of real estate gives the lender a lien in that real estate to secure backup the loan that the lender makes

Question 153

What are the five issues that indicate federal judges to apply state law if the issue to be decided is “substantive”?

(“Erie Doctrine”)

Answer 153

(1) Elements of claim or defense;
(2) SOL;
(3) Rules for tolling SOL;
(4) Conflict of law rules;
(5) Standard for whether to grant a new trial because jury damages determination is excessive or inadequate

Question 154

Motion to dismiss based on Rule 12(b) should be filed on which grounds?

Answer 154

(1) Lack of SMJ;
(2) Lack of PJ;
(3) Improper venue;
(4) Improper process;
(5) Improper service of process;
(6) Failure to state a claim;
(7) Failure to join indispensable party

Question 155

How can a defendant respond to a complaint?

Answer 155

(1) By Motion;
(2) By answer

To avoid default, this must be done no later than 21 days after being served with process (if waived service, the defendant has 60 days from when the plaintiff mailed the waiver form)

Question 156

What are the initial requirements for class actions?

Answer 156

i. Numerosity: Too many class member for practicable joinder;
ii. Commonality: There is some issue in common to all class members, so resolution of that issue will generate answers for everybody in one stroke;
iii. Typicality: Rep’s claims are typical of those of the class
iv. Representative adequate: The class Rep will fairly and adequately represent class

Question 157

What’s ex-parte?

Answer 157

Whenever a court does something without giving notice to the other party, it’s called “ex-parte”

Question 158

What’s the objective of a Preliminary injunction?

Answer 158

Maintain the status quo until the court can adjudicate the underlying claim on the merits

Question 159

What’s the right to Jury Trial in Federal Court?

Answer 159

The Seventh Amendement preserves te right to jury in “civil actions at law” but not in suits at equity

Question 160

What’s the confrontation clause? (“Sixth Amendement”)

Answer 160

The confrontation clause prevents an evidence from being admitted against a criminal defendant when the evidence is 1. a testimonial hearsay, 2. the declarant is not available, 3. the party against whom the evidence is offered did not have an opportunity to cross examine the declarant

Question 161

What’s the definition of Trust?

Answer 161

An arrangement under which the trustee holds legal title to property for the benefit of the beneficiaries. Trustee has burdens and beneficiaries have benefits of property ownership

Question 162

What’s the Trustee fiduciary standard?

Answer 162

He is not privileged to use trust property as his own

Harsh “self-dealing” rules preclude trustee from doing so

Question 163

What’s the requirement of Trust Property? (“The Res Requirement”)

Answer 163

Res is the corpus, the principal, the subject matter of the trust. In order to have a trust, there must be an specific interest in property to which the trustee’s duties relate

Question 164

What are the intestate share of surviving spouse & children?

Answer 164

Survived by spouse with no descendants — surviving spouse inherits entire estate

Some states provide a certain portion to decedent’s parents and parent’s issue (i.e., decedent’s siblings)

Survived by spouse and descendants — surviving spouse inherits one-half or one-third of decedent’s estate, with remainder to surviving descendants (e.g., children)

Uniform Probate Code (“UPC”) — if decedent’s descendants are also surviving spouse’s descendants, entire estate goes to surviving spouse

Not survived by spouse — decedent’s surviving descendants inherit entire estate

Not survived by spouse or descendants — decedent’s surviving parents inherit entire estate

If no surviving parents — descendants of decedent’s parents (e.g., decedent’s siblings) inherit
I.e., decedent’s estate would go to siblings, then nieces and nephews, and continue down family line until there is a taker

Question 165

What’s the Slayer Rule?

Answer 165

One who wrongly brings about the death of a decedent forfeits an interest in decedent’s estate

In such a case, property passes as though the killer predeceased the victim

Question 166

What are the most common method of transfer property?

Answer 166

(i) inter-vivos gift;
(ii) Joint tenant bank account;
(iii) Totten trust;
(iv) Life insurance

Question 167

What are the requirements of inter-vivos gift?

Answer 167

Gift is valid if

1) donor intends to make gift (intent)
2) donor delivers gift (can be actual or constructive delivery/delivery)
3) donee accepts (acceptance)

Question 168

What’s a totten trust?

Answer 168

This is created when funds are deposit in one’s own bank account held in trust for another (e.g., A opens account for herself as trustee for B)

Creates a valid revocable trust, even though depositor has control

Funds pass to designated beneficiary upon trustee’s death

Revocable by trustee-depositor by withdrawing funds before death or revoking the trust by will

Question 169

What’s a Trust?

Answer 169

A trust is a fiduciary relationship in which one party (trustee) holds legal title to property for the benefit of designated beneficiaries

Settlor = person who created the trust, giving trustee legal title to hold, manage, and administer trust property for beneficiaries

Revocability — trusts are generally revocable under modern statutes, unless the terms expressly state the trust is irrevocable

Question 170

What’s the definition of Agency?

Answer 170

Agency is a fiduciary relation which results from the manifestation of CONSENT by one person to another that the other shall act on his BEHALF and subject to his CONTROL and consent by the other so to act

Question 171

What are agent duties to the principal?

Answer 171

The agent owe fiduciary duties to the principal, which includes:

a. Duty of care;
b. Duty of loyalty;
c. Duty of obedience.

Question 172

What’s the definition of partnership?

Answer 172

A partnership is formed as soon as two or more persons associated to carry on as cp-owners a business for profit, regardless of whether the parties subjectively intend to form a partnership

No state filing or other formalities are required

Question 173

Which factors are important in determining whether as association rises to the level of partnership?

Answer 173

The most important factor in deciding whether an association rises to the level of a partnership is sharing the PROFITS

A person who receives a share of the profit is presumed to be a partner unless the profits were received in payment (1) of a debt, (2) as wages or other compensation, (3) as rent, or (4) as interest on a loan

If right to control and sharing of losses, presumption of partnership it’s almost impossible to rebut

Question 174

What are the fiduciary duties that partners owe to each other?

Answer 174

1. Duty of Loyalty: This duty requires to each partner (1) to account to the partnership for any benefit derived by the partner in conducting the partnership business, using the partnership’s property, or appropriating a partnership opportunity (2) to refrain from dealing with the partnership in the conduct of its business as (or on behalf of) a party having interest adverse to the partnership; and (3) to refrain from competing with the partnership in the conduct of business
2. Duty of Care: This duty requires the partner to refrain from engaging in grossly negligent or reckless conduct, intentional misconduct, or a knowing violation of law
3. Duty of disclosure: This is a statutory duty rather than a fiduciary one. The partnership stature states that each partner and the partnership shall furnish to a partner (1) without demand any information concerning the partnership’s business and affairs reasonably required for the proper exercise of the partner’s rights and duties; (2) on demand, any other information concerning the partnership’s business and affairs (except unreasonable or improper under the circumstances)

Question 175

Who owns the property of a partnership?

Answer 175

The partnership itself is an entity, therefore, the partnership not the owners owns the property

Note: A partner is not a co-owner of partnership interest and has no interest in partnership in the partnership property which can be transferred. The partner can only use the partnership property for partnership purpose

Question 176

What are the requirements for premarital agreements?

Answer 176

1. Must be in writing and signed;
2. Entered into voluntarily;
3. Full disclosure of assets OR proof that had independent knowledge

Many states have adopted Uniform Premarital Agreement Act (UPAA);

Question 177

What are the requirements of marriage?

Answer 177

1. License;
2. Ceremony with authorized officiant;
3. No legal impediments to marriage (i.e. too close related, married to someone else (bigamy));
4. Capacity to consent and age (more than 18 generally)

Question 178

What are the requirements of common law marriage?

Answer 178

1. Consent to marriage;
2. Cohabitation (usually for reasonable period of time);
3. Holding yourself our PUBLICLY as spouses

Note: In states that do not permit common law marriage, those states will regard marriage as valid if entered into under the laws of a state that permits common law marriage

Question 179

What are the main approaches to divide property at divorce?

Answer 179

1. Community property: All property acquired during marriage is owned one-half by each spouse and property owned before marriage is separated;
2. Equitable division of all property owned by either spouse;
3. Equitable division of marital property: The spouses takes his separate property and the property acquired during marriage is divided equitable

Question 180

What’s the duration of child support?

Answer 180

1. Generally until age of majority;
2. Death of child;
3. Emancipation of child;
4. Termination of parental rights;
5. Some states may allow child support after 18 if child continue education or disabled

Question 181

What’s child custody?

Answer 181

Custody is an umbrella term that includes legal and physical custody

1. Legal custody includes the rights to make decisions regarding the child
2. Physical custody includes the possession and control of the child

NOTE: In custody and visitation case the hallmark is the BIOC (“Best Interest of the Child”)

Question 182

When a security interest attaches to a collateral?

Answer 182

A security interest attaches to collateral when the parties agree to create a security interest, the creditor gives value, and the debtor has rights in the collateral

Question 183

What’s Fed.R. 608(b)?

Answer 183

Regarding a witness character for truthfulness or untruthfulness “extrinsic evidence is not admissible to prove specific instances of a witness’ conduct in order to attack or support the witness character for truthfulness. But the court may on “cross-examination” allow them to be inquired into if they are probative of the character for the character for truthfulness or untruthfulness of: (i) the witness, (ii) another witness whose character the witness being cross-examined has testified about

Question 184

Are child support orders enforceable in other states than those who dictated the order?

Answer 184

The Uniform Interstate Family Support Act (UIFSA) governs the enforcement and modification of child support orders; the Full Faith and Credit Clause (FFC) of the Constitution requires courts to enforce valid child support orders entered by courts of other states

Question 185

When can a court modify child support obligations?

Answer 185

A court may prospectively modify child’s support obligation if there’s a significant change of circumstances which support the modification, and the modification will not impar the child best interest (BIOC)

Question 186

What are the steps required to determine the admissibility of evidence?

Answer 186

(1) Is the evidence relevant?
(2) Is there a proper foundation (e.g. has the competency of the witness, the authenticity of evidence, or the reliability of scientific test established?
(3) Is the evidence in the proper form (e.g questions are properly phrased, answers are within the requirement for lay and expert opinion)
(4) Is the evidence beyond the application of, or within an exception to one f the following exclusionary rules?

a. Discretionary exclusion (R. 403);
b. Policy based exclusion (e.g. settlement negotiations, etc);
c. Privilege;
d. Hearsay;
e. Parol evidence (i.e. contracts specifically)

Question 187

What’s judicial notice?

Answer 187

Courts may take judicial notice of indisputable facts that are either matters of common knowledge in the community (notorious facts) or capable of verification by resort to easily accesible sources of unquestionable accuracy (manifest acts)

Question 188

How is judicial notice taken depending on the whether the case is civil or criminal?

Answer 188

The Fed.R. provide that a judicially notice may be taken for the first time on appeal, it also provide that a judicially noticed fact is conclusive in a civil case but not in criminal cases

In criminal case, the jury is instructed that it may, but is not required to, accept as conclusive any judicially notices facts

Question 189

What’s the difference between (1) present recollection recorded refreshed and (2) recorded recollection?

Answer 189

(1) Present Recollection Recorded: (a) any witness may be used to refresh a witness’s memory, (b) the witness cannot read from the writing while testifying, (c) there’s no hearsay problem
(2) Recorded recollection: (a) Only a record that meets several foundational requirements (e.g. timely made by witness, witness cannot remember the event after reading the record) may be used, (b) the record itself is read into evidence (but not received as an exhibit unless offered by an adverse party), (c) this is hearsay but it falls within a specific exception to the hearsay rule

Question 190

What are the Federal Common Law privileges?

Answer 190

1. Attorney-Client privilege;
2. Spousal immunity;
3. The privilege for confidential marital communications;
4. The psychotherapist/social worker client privilege;
5. The clergy-penitent privilege;
   f. Governmental privileges

Question 191

What are the suspect classifications? (“Subject to Strict Scrutiny”)

Answer 191

(i) Race
(ii) National Origine
(iii) Sometimes alienage

Question 192

What are the Quasi-suspect classifications? (“Subject to Intermediate Scrutiny”)

Answer 192

(i) Gender

(ii) Legitimacy

Question 193

What’s the test for Strict Scrutiny?

Answer 193

The Law is necessary to achieve a compelling government purpose - The Burden is on Govt.

Question 194

What’s the test for Intermediate Scrutiny?

Answer 194

The Law is substantially related to an important government purpose - The Burden is on Govt.

Question 195

What’s the difference between INSUFFICIENT PROCESS and INSUFICIENTE SERVICE PROCESS?

Answer 195

Insufficient process refers to defects in the documents and their content

WHEREAS

insufficient service of process refers to the manner in which the documents were presented, delivered and/or served to the defendant.

Question 196

What’s required to have a case for intentional misrepresentation or fraud?

Answer 196

To establish a prima facie case of intentional misrepresentation or fraud, plaintiff must prove (i) misrepresentation by defendant, (ii) scienter, (iii) intent to induce plaintiff’s reliance on the misrepresentation, (iv) causation (actual reliance on the misrepresentation), (v) justifiable reliance on the misrepresentation, and (vi) damages.