Wrong Answers

Question 1

Subject to the Mortgage

Answer 1

Grantee is not personally liable for the debt that the mortgage secures.

Can be foreclosed against, but cannot be held liable for a deficiency judgment.

Question 2

Assumes the Mortgage

Answer 2

Purchaser or grantee is personally liable for the mortgage debt.

Grantee potentially has both in rem and in personam actions against the party who defaulted on the mortgage (resulting in the bank foreclosing on the land)

Question 3

When the deed is silent, the default is _____ the mortgage.

Answer 3

Subject to the Mortgage = Grantee is not personally liable for the mortgage.

Question 4

Covenant of Warranty

Answer 4

covenant wherein the grantor agrees to defend the grantee against claims of title by a third party, and to compensate the grantee for any loss sustained by the claim of superior title.

Question 5

Covenant Against Encumbrances

Answer 5

Present covenant assuring that there are no encumbrances (such as easements, liens, or mortgages) against the title.

Question 6

Liquidated Damages Provision

Answer 6

Penalty

To valid, it must appear at the time of formation that:

(1) damages will be difficult to ascertain; and
(2) the parties who agree on a provision for liquidated damages must make a reasonable estimate of the losses to be expected from breach.

Question 7

When must a jury demand be made

Answer 7

Within 14 days of the service of the last pleading about the issues to be tried by the jury

Question 8

Statutory Right of Redemption vs. Equitable Right of Redemption

Answer 8

Statutory rights of redemption provide for the right for a period of time after the sale.

Redemption by the mortgagor “nullifies” the foreclosure sale, in the sense that it ends the purchaser’s title and restores title to the mortgagor.

–
The equitable right of redemption applies only in the time period between the mortgagor’s default and the foreclosure sale.

Question 9

Reformation

Answer 9

Allows the court to exercise equitable powers to “reform” (rewrite to correct the mistake) a contract due to a drafting error resulting in a failure to capture the true intent of the parties.

Ex. When the parties orally agree, and the person who wrote their oral agreement made a mistake

To obtain reformation, a party must show that:

(1) there was an antecedent valid agreement;
(2) that is incorrectly reflected in the writing; and
(3) proof of these elements is established by clear and convincing evidence.

Result –> Evidence of the antecedent valid agreement (even oral) will be admitted

Question 10

Ex Post Facto Clauses

Answer 10

Prohibit Congress from passing retroactive criminal laws.

They do not apply to non-criminal laws, such as those relating to contractual obligations.

Question 11

Contracts Clause (Constitution)

Answer 11

Prohibits states from enacting retroactive laws that impair an existing contractual obligation.

To determine if there’s been an improper impairment: (1) whether the state law has “operated as a substantial impairment of a contractual relationship”; and, if so,

(2) whether the state law is designed to promote a significant and legitimate public purpose; and, if it does, then
(3) whether the law adjusting the contract obligations was a reasonable and narrowly tailored means of promoting the significant public purpose

Question 12

Solicitation

Answer 12

The solicitor must intend that an offense be committed. It is necessary that the solicitor intend to achieve the prohibited result through the participation of another.

If solicitor knows the offense cannot be committed, but encourages it anyway, –> no intent has been met

Question 13

Insanity Defense

Answer 13

Defense must prove by clear and convincing evidence

Question 14

Crime for Imperfect Self-Defense and homicide?

Answer 14

Voluntary Manslaughter

Question 15

Can illegally obtained evidence be used for impeachment?

Answer 15

Yes

Question 16

Defense of Others as a defense to battery

Answer 16

Ex. whether a third party can recover for injuries sustained from the acts of a mistaken Good Samaritan.

If it reasonably looked like the the person being defended would have the right to defend himself –> Good Samaritan has that right –> Samaritan’s mistake is then excused, even if an innocent bystander is injured.

Question 17

Hospitals & Independent Contractors

Answer 17

Generally, if the hospital does not make it clear to a patient that a doctor is not an employee, the patient can sue the hospital for the doctor’s malpractice.

UNLESS: Hospital informs patient in the admission form that the doctor is not a hospital employee.

But if there’s no opportunity to inform (usually emergency room), then emergency patients can often sue the hospital for a doctor’s medical malpractice.

Question 18

Damages if the owner or developer of a building breaches a construction contract

Answer 18

Amount of the expected profit plus all of the costs expended at the time of the breach.

NOTE: The builder is required to cease work at the time he learns of the breach.

Question 19

Amending a Pleading - Before/During/After trial?

Answer 19

Fed. R. Civ. Pro. Rule 15 - party can make amendments before trial or even during and after trial.

If, AT TRIAL, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended [Fed. R. Civ. P. 15(b)].

Also, court should allow amendment of pleading if will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party’s action or defense on the merits. In fairness, the court may grant a continuance to enable the objecting party to meet the evidence.

Question 20

One Year and One Day Rule - Majority Rule or Minority Rule?

Answer 20

Minority Rule / Common Law Jx

NOTE: for majority rule, statute of limitations would not start running until when the victim is dead

Question 21

Double Jeopardy - Subsequent prosecution of a greater offense?

Answer 21

Does not bar a subsequent prosecution for a crime when the defendant has been prosecuted for a lesser offense and the elements giving rise to the greater offense did not exist at the time of the earlier conviction.

Question 22

Is marriage a fundamental right?

Answer 22

YES

Question 23

Non-smoking law even when it applies to employees outside of work?

Answer 23

Rational basis test

Question 24

Withdrawal from a Conspiracy

Answer 24

Majority rule: one cannot withdraw from the crime of conspiracy itself,

BUT they can withdraw from the other crimes committed in furtherance of the conspiracy IF

(1) he notifies all other members of his intent; and
(2) does so in time for the other members of the conspiracy to abort the conspiracy

Minority rule (MPC) - must also thwart the conspiracy

Question 25

Anticipatory Repudiation

Answer 25

Repudiation must be positive and unequivocal

“he didn’t think he could perform the remodeling work” –> INSUFFICIENT
Instead - this might be reasonable grounds to believe the contractor has manifested a prospective inability to perform, so the party should demand adequate assurances of performance.

If assurances are not forthcoming within a reasonable time, he may treat the situation as a repudiation.

Question 26

Robbery and Larceny

Burglary and Larceny

Answer 26

Larceny is a lesser-included crime of robbery and merges into robbery.

Larceny does NOT merge into burglary.

Question 27

Prior Consistent Statement

Answer 27

Admissible as substantive evidence under limited circumstances:

(1) the witness must testify under oath;
(2) be subject to cross-examination;
(3) the cross-examination must suggest that the witness’s testimony was a recent fabrication or based on improper influence or motive; and
(4) the witness’s prior statements must be made before the charged fabrication or improper motive arose.

Question 28

Decision whether to admit scientific testimony –> Standard of review?

Answer 28

Discretionary decisions –> Abuse of discretion standard

Question 29

Congress giving federal courts jx via statute and their decision is subject to review by the head of an agency

Answer 29

NOT ALLOWED because the courts are simply providing advisory opinions then and that is not allowed. Review of federal court decisions can only be done by the appellate court.

Question 30

Witness being questioned during C-X about acts of misconduct?

Answer 30

Permissible when the acts relate to the witness’s credibility

Question 31

Doctrine of Avoidable Consequences / Duty to Mitigate Damages

Answer 31

A party who has been wronged by a breach of contract may not unreasonably sit idly by and allow damages to accumulate.

If the damages are foreseen and could have been avoided by reasonable effort without undue risk, expense, or humiliation, then there’s a duty to mitigate.

Question 32

Failure to perform contractual obligation by the time specified in the contract?

Answer 32

Non-material breach of the agreement –> permits the aggrieved party to recover damages caused by the breach, but is not so serious (material or total) that the aggrieved party is excused from performing, and that party may not properly regard the contract as terminated

Becomes a material breach if “time is of the essence,” which must be explicitly stated

Question 33

Boundary Agreements

Answer 33

(1) either that the parties were uncertain or unaware of the correct location, OR
(2) that a dispute as to the true location existed between them.

In establishing a boundary by agreement, most courts also require the taking (and relinquishing) of possession by the parties as to the agreed line (i.e., building a fence)

Such determinations are generally upheld.

Question 34

Parent Duty for the Child

Answer 34

A parent has a duty to exercise reasonable care to control a child to prevent the child from intentionally harming another person or from creating an unreasonable risk of harm to another person

(1) when the parent knows or has reason to know she has the ability to control the child and knows OR
(2) should know of the necessity and opportunity to exercise control over the child.

Question 35

Is a parent vicariously liable for the negligence of a child?

Answer 35

Generally, a parent is not vicariously liable for the negligence of a child.

A few jurisdictions allow a parent to be held vicariously liable when the child is also acting as an agent for the parent.

Question 36

Exception to When Employers are Liable for Independent Contractors

Answer 36

When a contractor undertakes a duty the law does not permit to be delegated to another (a nondelegable duty).

Many of these involve aspects of public safety, such as keeping streets in good repair, maintaining a fence around an excavation, repairing a dangerous condition in a store, etc.

Question 37

Is an act someone performs while intoxicated voluntary? (intentional tort)

Answer 37

NO

Question 38

Is negligence a lower or higher standard than malice?

Answer 38

Lower standard

Question 39

Malicious Prosecution

Answer 39

(1) the institution of criminal proceedings by the defendant;
(2) for an improper purpose, without probable cause;
(3) which terminate in favor of the plaintiff; and
(4) which cause the plaintiff damages.

Question 40

Intentional Tort - Consent Defense + Mistake

Answer 40

In cases of intentional torts, express consent remains valid even when granted by mistake, unless the defendant knows of or takes advantage of that mistake.

Question 41

Intentional Tort - Privilege - Public Interest

Answer 41

The defense of privilege may be used to shield a defendant from liability if some important personal or public interest will be protected by the defendant’s otherwise prohibited conduct and this interest justifies the harm caused or threatened.

Question 42

Good Samaritan Rescuers + Rescue of Parties that didn’t negligently cause the need for rescue

Answer 42

Because the parties did not negligently create the conditions for rescue, there was no foreseeable rescuer to whom she would be owed a duty.

And if there was a duty, it’s met by not injuring the rescuer.

Question 43

Wrongful Death Action

Answer 43

An action to recover the damages the decedent might have recovered if he had lived.

So, if the decedent was contributorily negligent, then the estate may be barred from recovery.

Question 44

When does a taxpayer have standing?

Answer 44

When plaintiff alleges that (1) spending by Congress (2) violated the Establishment Clause.

Applies to both state and municipal taxpayers

Question 45

Requirements to be Domiciled in a State

Answer 45

Domicile requires the person to have both physical presence in the state and the intent to remain in the state indefinitely.

It doesn’t mean that the person intends to remain in that state forever - for an indefinite period of time is enough.

Question 46

Can lay witnesses testify about whether a person is intoxicated or not?

Answer 46

Yes

Question 47

Can a suspect’s attorney, spouse, or parent invoke the suspect’s Miranda rights/right to an attorney?

Answer 47

NO - only the suspect can invoke their right to an attorney/Miranda rights.

Question 48

Per Fed. R. Civ. Pro. 9 - what special matters must be pleaded with particularity?

Answer 48

(1) capacity or authority to sue, but only when required to show the court has jurisdiction;
(2) fraud, mistake, or condition of the mind;
(3) conditions precedent, but only when denying that the condition has occurred;
(4) time and place, when testing the sufficiency of a pleading; and
(5) special damages.

Question 49

What can an officer search incident to an arrest?

Answer 49

Search of the driver’s clothing, including pockets.

In order to search the car’s interior passenger compartment, there must either be a concern for officer safety OR the opportunity for fruits of the arrest to be found within the passenger compartment

Question 50

Does the Erie doctrine require federal procedure rules to always be applied?

Answer 50

NOT ALWAYS

If the procedure is not dictated by a federal rule, statute, or constitutional provision, the federal court sitting in diversity will engage in a balancing test that sometimes will lead the court to apply state procedures in federal court.

Question 51

Is a failure to “knock and announce” when executing a warrant an automatic exclusion of the evidence?

Answer 51

a failure to “knock and announce” by the police did not, in and of itself, require exclusion of seized items from the home

Question 52

When can an anonymous tip be used to justify the search of a suspect?

Answer 52

an uncorroborated anonymous tip cannot be used to justify the search of a suspect for weapons.

the anonymous tip must be corroborated!

Question 53

Statute of Frauds

Answer 53

if the K falls under the SOF ® It must be in writing + signed by party against whom enforcement is sought

Email to a random third party about the transaction, but signed by the party against whom enforcement is sought is sufficient

Question 54

Does transferred intent apply to mistaken identity?

Answer 54

NO unless the person still missed and hit someone else other than intended.

Look out if there is only one person or if there are two people physically present within D’s zone of harm.

Question 55

Timing for when a party can file a notice of removal to remove a case from state to federal court?

Answer 55

Within 30 days when the grounds become apparent (usually within 30 days of service of the complaint)

BUT if removal is based on diversity, D must remove within one year of filing unless P attempted to thwart removal

Question 56

Constitutional Bases for Classifications

Answer 56

State classification? –> Equal Protection Clause of the 14th Amendment

Federal classification? –> Due Process Clause of the 5th Amendment

Question 57

Mailbox Rule

Answer 57

Common law Rule

If the mail is properly posted, then acceptance by mails is effective upon the dispatch date.

(a) Applies only to acceptances and not to any other communication (i.e., not to revocations
or rejections) AND
(b) applies as long as the offer doesn’t say otherwise.

Otherwise, for revocations/rejections via mail –> only effective when received.

MAJORITY RULE: NOT applicable to option contracts and acceptance is only effective upon receipt

Remember option K = offer + separate offer to keep the offer open + valid mechanism for enforcement

If Offeree mails rejection and then changes mind and mails acceptance –> Mailbox rule does not apply; whichever reaches offeror first controls

Question 58

Tests for Evaluating Design Defects

Answer 58

(1) the consumer-contemplation test; and

a product is defectively dangerous if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it with the ordinary knowledge common to the community as to the product’s characteristics

(2) the risk-utility test.
a product is defective as designed if, but only if, the magnitude of the danger outweighs the utility of the product.

a product under this test may also be deemed “defective” even though the harmful consequences do not outweigh the benefits, if there was a feasible way to design the product with less harmful consequences.

Question 59

If there’s a feasible alternative design with less harmful consequences, will a warning be a sufficient defense?

Answer 59

Because a feasible alternative design existed with less harmful consequences, a warning on the box cover will not prohibit the plaintiff from recovering in strict products liability.

Question 60

With strict liability activities, does the P still need to be foreseeable?

Answer 60

YES

Question 61

What happens to the tenant when an entire building is destroyed?

Answer 61

If tenant was renting entire building:

Common Law: Tenant still obligated because tenant is in possession of the land.

Modern Law: Tenant is NOT obligated to pay rent anymore.

Question 62

Past Consderation

Answer 62

A promise in exchange for something already given or already performed is NOT supported by consideration.

Exceptions (when promises supported by past consideration will be enforceable):

i) A written promise to pay a debt that has expired past the statute of limitation;
ii) Written promise to pay a debt discharged by bankruptcy;

iii) Material benefit test (minority rule): promise made based on past benefits enforceable if:
(1) Promisee conferred the benefit on the promisor (not a third party); +
(2) The benefit is material
iv) Exception: Not enforceable if benefits were previously contracted for by the promisor

Question 63

Duty to Retreat

Answer 63

In minority states

D has a duty to retreat before deadly force may be used.

BUT, D has no duty to retreat when:

(a) there’s no opportunity to retreat;
(b) he could not retreat safely; or
(c) if attacked in his own home

Being confronted in close range? –> unclear if there’s an opportunity to retreat

Question 64

Adverse Possession - Statute of Limitations

Answer 64

n order to toll the statute of limitations via a disability, the disability must exist when the adverse possessor enters. Once the disability ends, then the statute of limitations may begin tolling.

Possible disabilities:
Infancy
Incompetency
Imprisonment

Question 65

Unilateral Mistake in Ks

Answer 65

Not excused unless:
i) Other party knew/had reason to know, or
ii) Serious clerical error and reliance (exceptions: error caused by extreme negligence or other party
relied on clerical error)

Question 66

Doctrine of Completeness - Exception

Answer 66

whenever the police report contains a statement of an eyewitness given to the police officer and it’s admitted as a public record, the eyewitness’s statement cannot be admitted unless it falls within some other hearsay exception

Because: when the record contains additional hearsay statements, those statements must themselves qualify for a hearsay exception in order to be admissible.

Question 67

Property Interest - Welfare Benefits

Answer 67

A property interest is created by a statutory entitlement to continued welfare benefits.

So, the payment recipient must be allowed to be heard before the cancellation of welfare benefits

Question 68

Regulating Commercial Speech

Answer 68

The First Amendment invalidates any law regulating such speech unless

the law is narrowly tailored to serve a substantial government interest.

Ex. law barring the solicitation of war veterans within a limited time period following return from active duty IS narrowly tailored to serve the state’s substantial interest in protecting their privacy.

Question 69

Who can sue under a strict products liability claim?

Answer 69

any plaintiff injured while using a defective product may recover damages from an appropriate defendant, including purchasers, their families, friends, guests, and employees.

Question 70

Illusory Promises

Answer 70

Promise of performance that leaves performance to the discretion of the promising party does NOT constitute consideration –> unenforceable K

Modern View: as long as the right to cancel is limited in some manner (usually with a requirement of notice), this will not render an agreement invalid.

Question 71

Offensive Non-Mutual Collateral Estoppel

Answer 71

when a plaintiff seeks to prevent a defendant from relitigating an issue that the defendant has unsuccessfully litigated before against a different party.

that allows non-parties, like the class members in the question, sometimes to use the result of prior litigation in which the defendant lost an issue. However, if it would be unfair to the defendant to allow collateral estoppel, then the doctrine does not apply.

Question 72

Medical Malpractice - Negligence - Expert witnesses

Answer 72

a jury may find a breach of professional duty in a medical malpractice case only on the basis of expert testimony. However, expert testimony is not required where the negligence is so grossly apparent that a layman would have no difficulty in recognizing it.

Question 73

Medical Malpractice - Negligence - Expert witnesses

Answer 73

A jury may find a breach of professional duty in a medical malpractice case only on the basis of expert testimony.

However, expert testimony is not required where the negligence is so grossly apparent that a layman would have no difficulty in recognizing it.

Question 74

Under a negligence claim, can a plaintiff recover on a purely economic loss?

Answer 74

NO