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271 Cards in this Set

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Can intent to touch in batter be transferred to another peron?
Yes.
Does a fake battery in front of a class meet the reasonable person standard?
Probably not. Obviously this is a jury question, but the MBE stated that this is simply not reasonable.
What is the standard for intent for IIED?
Intent can be either the definition of causation:

1) Intentional, or
2) Substantially certain

or

3) Reckless disregard
Can intent to frighten transfer to become intent to touch in battery?
Yes.
Are all mentally ill persons subject to the "kids and retards" rule for intentional torts?
Only if a person is so mentally ill that they cannot form the intent to touch, etc.
Is threatening arson with a person inside a building extreme and outrageous?
Yes, according to the MBE.
What duties are owed to rescuers if you negligently place yourself in peril?
Since danger invites rescue, an ordinary duty of care is owed.

Bonus: they will probably be given wide latitude given the emergency, that is a rescuer owes a duty of care to the rescuee but must take action that is completely irrational to be unreasonable.
Is a tresspasser allowed to sue in strict liability for wild animals?
No, unless he is priveleged in some way, such as neccessity.
What is the "Fireman's rule?"
Police and fireman may not sue in negligence for the hazard that brought the policeman or fireman to your premise in the first place.
What is the minority rule regarding duties owed to tresspassers?
No unreasonable hazards which may pose a risk, even to trespassers.
Creation of peril, even by accident, leads to what duties?
The duty to assist.
What standard will a person with specialized knowledge be measured against?
A reasonably prudent person with such specialized knowledge.
Is high voltage strict liability?
No.
What are the maj / min approaches to NIED?
Maj: Zone of danger
Min: Near scene/closely related
Will negligence per se have effect if the party has no choice (that is, car's highbeams are stuck on)?
No mandatory effect, but can be considered by jury (wouldn't reas person have not driven? etc).
Is a firing range ultra-hazardous?
Not according to the MBE
What is the old traditional standard for doctor negligence?
Knowledge and skill of a praticioner in the same or similar community.
Is the duty of maintenance of a public premises delegable?
No.
What duty are business invitees owed if danger is afoot?
They are owed a duty of intervention by the invitor and his agents.
What is the rule for respondeat superior vis-a-vis independent contractors?
Negligence of contractor is not imputed unless the activity is inherently dangerous or public policy prevents the delegation.
Can the standard for breach be judged without an expert in a professional malpractice case?
Yes, if lay persons are capable of judging it, not neccessary.
What is the rule statement for malpractice?
But For - that is, two things have to be proven, that case would have won, and that lawyer prevented this from happening. Good faith not enough.
What is a guest statute?
A guest statute requires a plaintiff passenger to prove gross or wanton negligence to recover against the driver. To prevent collusion.
When is a person not required to resist?
If a person thinks resistance will lead to further touching or confinement.
What is the OTHER rule for proximate cause?
Abnormal, unforeseeable circumstances could result in a finding of no proximate cause.
Is proximate cause applied in intentional tort situations?
No, not ordinarily applied.
Is contributory negligence a defense against reckless negligence?
No.
What is the modern (and non-outline) approach to unilateral mistake?
If the mistake goes to a basic assumption about the contract, and hardship to the mistaken party from enforcement outweighs detriment to other party.
May a non UCC written contract with a no-oral mod. clause be modified orally?
Yes.
What is the accord and satisfaction view of the full payment check situation?
"Full payment" is an accord, cashing is a satisfaction.

Can retain writes by writing "cashed under protest" and retain rights under the UCC.
What is the rule for builders if a building burns down before completion through fault of no one?
Builder must rebuild.
What is, by far, the weirdest contract rule out there?
If a party has fully performed under a contract, he must wait until the other's performance is due before suing.
Is a price term required by the UCC statute of Frauds?
No - the court can insert a reasonable price term.
Under UCC, can price term be left open to be fixed by the seller?
Only in good faith.
When is SP authorized under UCC?
Unique or other proper circumstances.
What are the rules for moral consideration?
Traditionally, moral consideration is not good consideration. Modernly, a promise "supported" by such consideration is enforced to thee extent necessary to prevent injustice.
What are the rules for forbearance of filing a claim?
Either good faith or objectively reasonable.
What does "compromise" mean in MBE-ese?
Just reaching a bargain or an agreement.
What is the equal dignity rule?
An agency contract to sign a contract within the statute of frauds must also be written.
What is the rule for things attached to land?
Things attached to land that may be severed without damage are subject to the UCC.
What is the minority rule for unforseen circumstances vis-a-vis modification?
Unforseen circumstances are sufficient to overcome a lack of consideration defense.
Is solving an "impasse" or an "obstacle" good consideration?
No.
What is the rule for promissory estoppel vis-a-vis insufficient consideration?
If the promisee acts in justifiable reliance on promisor's promise, despite the lack of consideration, the promisor is estopped from asserting this defense.
Good faith?
All contracts imply a convenant of good faith and fair dealing.
What's the deal with "personal satisfaction" contracts?
Good faith is required.

Bonus: Commerical setting allows for objective commerical standard
Should I have a stroke, can I plead impossibility (not with a personal service contract)?
If I can still hold a pen, I can still delegate.
You belong among the wildflowers.
Sale of flower producing land can be interpreted as a delegation.
When may the law excuse a condition precedent?
Among other times, the law may excuse a condition precedent if the failure of the condition is not the fault of the performing party and there has been no damage or failure of consideration.
What happens when a buyer takes action inconsistent with seller's ownership?
This is an acceptance.
What is the rule for wording of unilateral contracts?
A contract that is worded that it may be accepted by either performance or a promise to perform may be accepted by either.
Can course of dealing insert terms?
Yes.
Requirements and output contracts prohibit...
...disproportionate orders.
Can a party suspend performance if another party interferes with performance?
Yes.
You didn't file the form in time...
A court will, where equitable, construe a condition as a covenant to avoid forfeiture.
Buyer breach...
see remedies. DEEZ!
What is the rule re: long vs. short duties?
Where one parties performance is long, and the other is quick, the long duty is construed as a condition precedent to the shorter duty.
What does nonvolitional mean in the criminal context?
Only reflex or unconscious
What is the difference between 2nd degree implied malice and criminal negligence?
Wanton disregard for a very high risk of death or serious bodily versus Disregard for high risk of death or injury
Are you EXCUSED or JUSTIFIED when you kill someone with a good defense?
JUSTIFIED.
If someone has a heart attack once the burglary is over and you are outside out of sight about to make your escape, can you be tried for felony murder?
Probably not - maybe if you were still in the store.
What are the rules for the "we're all going to die" scenario?"
In a situation where the choice is between killing one person who is certain to die and allowing that person and oneself to die, the analysis is that the neccesity defense holds.

In the situation where one person must die, unilaterally choosing another over yourself is not a "greater evil" under neccessity (choosing one to throw out of plane versus drawing lots).
What is the special "opening" rule for common law burglary?
1) There must be a breaking - either a creation or an augmentation of an opening.
What is "enough" for arson?
Charring and peeling, ok, but not mere blackening?
What is the rule of necessity?
Can disobey literal truth of the law to choose lesser evil over greater evil.
Is selling to finance a drug deal and then repurchasing the boat sufficient for "intent to permanently deprive?"
Yes.
What are the custody versus possession rules?
A person who is a manager has "possession" of an item, where a low level employee merely has custody. Larceny is a crime against possession - hence, a low level employee commits larcent and a manager commits embezzlement.

Also, when an employee receives property for his employer from a third party for use of the employer, he gains possession unless the transaction was to be completed in 3rd party's presence or the item was to be placed in a receptale designated by the employer.
What is "continuing trespass"?
When the original taking of property is wrongful but not with intent to permanently deprive, some jx's consider this to be a larceny.
When is the common law conspiracy complete?
Upon agreement. Some states require overt act, but MBE usually emphasizes common law.
What about "finders keepers?"
Lost property owner has "constructive possession," if someone had already formed intent, picking up is trespassory, if clues to ownership, larceny.
What if I threaten someone that's not you?
Anyone in your presence is good for robbery.
Define "predisposed to commit crime"
Ready and willing to commit crime.
Provocation must be objectively reasonable and subjectively felt.
Yep.
Does provocation mitigate the killing of a third party?
No.
What is the MPC standard for voluntary manslaughter?
Obj provocation plus particular circumstances that might affect how reasonable person would behave, but not voluntary handicaps (for example, the piano-player hand example)
What is a lesser included offense to kidnapping?
False imprisonment.
Can you burgle curtilege?
Yes.
Does fraud in the inducement vitiate consent, versus fraud in the factum?
No.
What is the rule for inferring an intent requirement?
The more serious the sentence, the more likely a court will infer a state of mind requirement.
What are two factors to consider in deciding if an offense is strict liability?
1) Harm to public is serious
2) Penalty is not severe
What is the redline rule?
A felon is not guilty of felony murder where the killing would be justifiable homicide (that is the police or victims shoot one of the cofelons)
Whose law applies for the law of privelege?
Federal common law, not state law.
What is the exception for the third person present during priveleged communication rule?
If the third person was there to further a priveleged relationship the privelege is not destroyed.
What is the "sending document to attorney" rule?
Attorney client privelege protects condifential communication between attorney and client. However, an otherwise discoverable document does not gain protection of the privelege simply because it is given to an attorney.
What must an expert base his opinions on?
The expert must base his opinion on those reasonably relied on by experts in the field.
When may prior inconsistent statements be used for substantive evidence?
Prior inconsistent statements are non-hearsay and may be used as substantive evidence if the declarant testifies at trial and is subject to cross examination concerning the statement and the statement was given under oath subject to perjury at a prior hearing, trial, or deposition.
When may bias be inquired into?
Evidence of bias may be inquired into during cross and so long as the witness is confronted with the facts constituting bias on cross, extrinsic evidence may be introduced to prove facts constituting bias.
Can extrinsic evidence be brought in to prove a witness is lying?
Generally, truthtelling by a witness cannot be proven by extrinsic evidence, it is considered collateral.
May a witness be required to show her arms to show she has no needle marks?
Yes - displaying one's arms is non testimonial and is not protected by the privelege.

Of course, in the particular case it would have to be balanced.
Can a firing be a subsequent remedial measure?
Yes.
What is an excited utterance?
A hearsay declaration will be admitted as an excited utterance where the statement relates to a startling event or condition and was made while the declaranat was under the stress or excitement caused by the event or condition.
What are the handwriting and voice rules for laypersons?
Voice - can hear after and match
HW - Must see before
Is Self ID on an otherwise anonymous form of communication (telephone, radio) enough?
No, only a little more corroboration is neccessary.

Such as, self ID + being on the other end of a line in the phone directory.

Self ID plus proper radio frequency plus time in the air, plus circumstances described that corroborate his identity.
Can a long-time cocaine user be used as an expert on cocaine?
Yes - use the 3 part test under Rule 702
Are acts that lead to impeachment pardonable?
No one is sure, but for the purposes of the MBE, no
Can a felon be impeached by copy of a judgement?
Yes, on either cross or with the judgement
What are statements of pedigree?
Statements concerning the declarants own relationship by blood or other similar fact of personal or family history or a statement concerning the forgoing matters of another person if the declarant was related by blood. Hearsay exception.
Can congress alter the appellate jx of Supreme Court?
Yes. Congress can limit appellate jx of Supreme Court but not its original jx.
What is a better choice for injury, millions in bonds losing their value or losing your job?
Losing your job
Aid to religous colleges and universities, ok?
Yes, because colleges are secular, primary/secondary are not.
Bonus to teachers who only teach secular subjects, ok?
No, too much entanglement.
When do taxpayers have standing?
Only for government spending in Establishment Clause cases.
Does the commerce power allow Congress to directly regulate the drinking age?
No one knows - it is attached to highway spending (drunk drivers?)
Two MBE topics that are almost always poltical question:
1) Republican form of government
2) Presidential Handling of Foreign Affairs
Can I refuse to answer questions before Congress?
Yes, only if it can be demonstrated that they are unrelated to matters upon which Congress may legislate.
Can the president impound funds?
No.
Can Congress create a limited administrative power to implement the statute for the President?
Yes.
Get the Amendments straight:
14th = states
5th = fed
Is right to inherit fundamental?
No.
Priveleges and immunities. Aliens? Corporations?
No.
Can a state encourage citizenship with its statutes?
Not really because congress has plenary power.
Are oaths of gov employees allowed?
Yes, if rationally related and narrowly tailored, swear of conduct that is criminal anyway
Gun club: extensively regulated, licensed, inspected: state action?
Apparently so.
What is an MBE answer that says "bicameral body" referring to?
Probably the legislative veto.
Two requirements for proper conveyance
A deed must be delivered and accepted.
Is a stone corral a fixture
Yes, probably
Is there a duty to possess a TIC?
Not as such. No hostility exists unless there has been an ouster (refusal to share, attempt to see whole thing). After ouster, AP is possible
What is needed to convert TIC to JTROS?
An agreement. SOF requires land agreements to be in writing or part performance (estoppel or evidentiary theories)
Part performance doctrine
1) Payment of all or part of purchase price
2) Taking possession
3) Making substantial improvements (evidentiary theory)
What happens if you fail to appear, therby failing to plead SOF?
Waive right to its protections - SOF is an affirmative defense, and it must be pled to avoid waiver.
How accurately must land be identified?
Varies from jx to jx, but land must be identified though not with precision of a surveyor.
What is the implied covenant of marketable title?
Every contract has an implied covenant of marketable title - that is, that title conveyed to seller will be marketable. An outstanding encumbrance renders title unmarketable.
Will contract or deed control quality of interest?
DEEEED
What happens to covenants in a land sale contract?
They merge with and are superceded by the covenants of title contained in the deed.
Equitable Conversion
Purchaser is owner the moment the contract is signed
Can I be forced to "buy a lawsuit?"
No. Risk of court action, even if it is likely that I will prevail, is enough to make title unmarketable.
Is a 1 foot zoning violation enough for unmarketable title?
No, probably not.
Is a .6-1.6 foot CC&R violation non marketable title?
Maybe, riskier than zoning.
When must marketable title be conveyed?
At the close of escrow. The seller is allowed to rely in the proceeds to settle any mortgages which would otherwise render title unmarketable, so long as 1) enough, and 2) assurances no release until removed.
When does Equitable Conversion take effect?
Time of agreement, not closing. Hence, if purchaser dies before closing, his heirs may compel conveyance.

Modern jx passes risk at closing or possession.
Is restitution avaliable for a breaching buyer who makes valuable improvements?
Yes, if justice demands it - not uniform. Basically look to equitable considerations.

Last 10 years or so, seller made to return payment above any actual damages.
What is the rule for assessing the sufficiency of a description of land?
The court must be able to effectively identify the land so as to enforce the contract or effectuate the conveyance. Order:

1) Natural Monuments
2) Man made monuments
3) Adjacent tracts or boundaries
4) Courses or directions
5) Distances
6) Area or quantity
If there is a common grantor, what happens?
The collateral document rule says that a grantee is charged with knowledge of adjacent properties' deed contents if grantee and adjacent property had a common grantor.
Does the power to convey include the power to make warranties in an agency situation?
Probably not.
What happens with "agency with an interest?"
Irrevocable.
What happens when a donative transfer is comepleted but the deed is given to a 3rd party?
Considered delivery to grantee.
What happens if JTROS die in a jx where each interest is treated as if they had survived the other?
Half and half.
When does a grantee disclaim title?
As soon as they learn. This invalidates the deed.
Is a mortgagee a BFP
Yup
How is an easement abandoned?
Nonuse plus physical action.
What about an inadequately described easement?
Can be fixed by use and acquiesence as it turns out.
Is there such a thing as a negative easement for air, light, and view?
Yes, apparently.
What is a profit a prendre?
It's just a profit - a property right to come in and extract resources.
What is a dedication and how does it work?
Land is dedicated when there is an offer to dedicate and an affirmative act of acceptance by the public at large.
What is the most effective way to keep wacky schemes going?
While analysis is important, covenants seem to be the most effective and zoning seems to be the least effective. Also, consider that people don't like to buy stuff that can be forfeited.
Can an affirmative duty to pay money other than rent run with the land?
There is a judicial reluctance to do so.
What happens when you excavate near someones land?
1) Land owners are entitled to adjacent support of their land if they can prove that the land would not have settled or fallen without the natural structures on the land.

(Note - it can be negigence, even if no proof is possible, if the failure to warn about excavation was negligent and was the proximate cause).
Is the owner of adjacent land liable for settling or subsidence caused by the removal of water from his own land?
No, only removal of sand, silt, or other substance.

Minority - yes, liable.
Can a co-tenant object to a tenants violation of a covenant with LL?
No - so long as LL is ok, you're ok.
Do assignments need a writing
Yes - they are interests in land
What is a fun and exciting way that JTROS can be severed?
By implication of conduct inconsistent with continuation of JT
Are leaseholds inheritable?
Yep.
Words of Condition: ________
Words of Duration: ________
FSCS
FSD
Should an ROR be reserved?
Yes, this can cause a limitation to fail, but try to renenter anyway cause the MBE is hell.
Can a tenancy by the entirety be unilaterally partitioned?
No - key differences betwwen tic and tie: unity of marriage plus no ability to partition.
What are the rules for a pure notice statute?
A BFP who takes without notice is protected (recording is constructive notice)
What are the rules for a race-notice statute?
A BFP who takes without notice and records first is protected.
What are the rules for a race statute?
Whoever records first wins.
What is the "magic words" test for recording acts?
Do you see WN or IGF? If no, go to *.

Do you see RF or FR? If so, Race notice, if not, pure notice.

* Do you see notice or good faith? If No, race statute.
What are the requirements to impose burden on new landowner?
H
V
I
N
T&C
What about for a new landowner to claim a benefit?
V
I
N
T&C
What about an equitable servitude: new claim benefit?
I
T&C
Eq. Serv: impose burden on new guy?
I
N
T&C
In a false friend prison situation where the defendant is facing violence from other prisoners and the false friend says he will "protect" defendant if he confesses, is this involuntary?
Yes, under a totality of the circumstances test.
Can statements obtained in violation of Miranda be used for a valid search warrant?
No.

In a typical fruit of the poisonous tree analysis, evidence discovered after an unwarned confession need not be suppressed. However, statements in violation of Miranda cannot be used to establish probable cause in a search warrant.
Do the rules about not using peremptory challenges based on race apply to civil cases as well?
Yes.
Voluntariness: what about intoxication, mental illness, asking about a probation officer?
The Miranda rules protect against coercion but go no farther than that.
Must you be guilty of underlying felony to be convicted of felony murder?
Yes.

Also, it's DJ to try someone for underlying felony and then FM or vice versa.
Looking for a Sony Stereo, manipulate and look at serial number on a non-Sony. Violates 4th Amendment?
Yes. Also, search is over when you find the evidence in the warrant.
Plain Error - Lie Detector
If objection is not made, there would still be injustice in not striking discussion of the lie detector.
Burden vis-a-vis insanity
The burden of going forward (aka burden of production) is on the defendant to prove his insanity.

The burden of persuasion, on the other hand, after insanity has been raised, is on the prosecution.
Denial of overnight consultation with a lawyer in the middle of witnesses testimony...
...Is a violation of the 6th Amendment right to counsel.
What about a statute that requires a criminal defendant to disprove an element...
...violates the 14th Amendment if it is a state doing the prosecuting (DP requires RD, in 5th Amendment, applies to states, etc)
Is 2 months before too remote for informants?
Yes - a totality test is used, and 2 months factors in.
Does a co-conspirator have standing to challenge a conspirator's evidence?
No. A person must have personal standing.
If court instructs a jury to not read newspaper articles and a juror reads an article implicating defendant in several other similar crimes, what happens?
Due Process and the 6th Amendment guarantees a fair trial. This happened in Shepard v Maxwell and the Supreme Court held that the a new trial was needed.
Does an inventory search have to be at the station house or impound yard?
Yes.
Are state laws requiring disclosure of alibi information, including name, constitutional?
Yes.
Are random stops of vehicles to check license and registration legal?
No.
When is reprosecution allowed?
Following the dismissal by the judge upon defendant's motion which does not constitute an acquittal on the merits is not prohibited by DJ
What are the four ways to attack a statement made to police?
1) Miranda
2) Voluntariness
3) Right to counsel
4) Fruits of illegal search.
On the scene questioning custodial?
Depends. Holding arm? Probably. Just, "what happened here?" not.
Speedy trial rights:
1) Length of delay
2) Good faith justification of delay
3) Assertion of the right
4) Prejudice to defendant
Does California bifurcate insanity trials?
Yes, but defendant is constitutionally allowed to use mental disease to dispute mental state.
Jail imposed - which right?
Right to counsel.
Jury Trial
Six months is authorized.
Cops warrantless enter a house forcibly, Mirandized guy, who confessed. Admissible?
No - fruit of poisonous tree.
Felony muder - can you be tried for the felony?
Yes, you have to and you have to be found guilty. However, DJ prohibits consecutive sentences for felony plus murder - the felony is a lesser included offense.
Is installing a beeper a search?
No: could just follow the car around, hence, not a search (Karo).
Is there an expectation of privacy in a jail cell?
No.
What is the rule for roommate/family consent to a search?
Any person with an equal right of control or who possessed common authority over the premises may consent to a search.

Two competing theories: 1) Person could consent in his own right, and 2) person assumed the risk the person might consent to a search.
Is cross at a preliminary hearing required by the 6th Amendment?
No! Local laws permit this.
Do you need reasonable suspicion of accomplices for a protective sweep?
Yes.
If an arrestee asks to be let inside to get dressed, can a cop come with him a monitor his movements?
Yes.
Child Tresspasser
There is a 6 part test, one of which is that the children do not appreciate the risk because of their immaturity.
Satisfaction of a 3rd party
The test is purely subjective, though it's possible under the UCC that it's subjective.
What does Eleventh Amendment Prevent?
Money damages, not suits for injunctions.
Character cross: have you heard...
Goes to knowledge of reputation - how well did you really know her.
Can you convert from an invitee to a licensee if your purpose changes?
You can convert from an invitee to a licensee if your purpose changes.
Requirements contract: can you shut down to save money?
Probably bad faith - a shut down for lack of orders would be in good faith, a shut down to save money would not.
Can owners of adjacent parcels establish a boundary if they are uncertain or unaware if the true boundary by agreement?
Yes - they may select a line between the two parcels which may or may not be the true boundary. There must be an actual taking and relinquishing of possession following the agreement to evidence that agreement.

Can a co-tenant not in possession by bound by this agreement? Yes, a co-tenant in possession may exercise control over the parcel so long as he does not attempt to transfer any interest in the property which belongs to the other tenant, or otherwise engage in any act tortious with regard to the other cotenant. Settling a boundary by agreement does not involve any transfer of interest in land, and there is no reason to regard such an agreement as tortious.
When can attempted murder be the underlying felony for FM?
Only in a transferred intent situation - D shoots at A, misses, kills B. D is guilty of 1st degree murder as well as FM of B.
What is the crim rule for dying spouses?
Failure to help is murder at common law.
Is Duress a good defense against kidnapping and arson and therefore a defense against felony-murder?
Yes
Is forcible, warrantless entry into a home to make felony arrest violate 4th Amendment absent exigent circumstances allowed?
No
Security guard shoots escaping robber with instructions not to shoot - outside the scope?
Probably still inside the scope, if motivated in part to serve the master.
Golf course example - negligent tresspass?
Not neccessarily.
Must intend a) harmful and offensive contact, or b) must intend contact, which turns out to be harmful and offensive
b
Tresspass must be intentional or negligent (T/F)
T
18 to consent to battery?
No, different invasions at different ages.
Requirement to control a party?
If special relationship.
Is there a difference between unsubstantiated testimony and an unqualified expert?
Yes
Are damages required for negligent tresspass?
Yes
Is physical injury required for negligent manufacturing?
Yes
IIED Family members, bystander cases:
Family members recover if present, non-family members recover if they experience physical injury
Are indecent proposals assault?
No
Is Battery a General Intent crime?
Yes
Miranda - involuntary confession, fruits?
No - voluntary, yes
Can a mortgagors right to redeem be defeated by disguising as an outright transfer?
No!
What is a right to redeem?
A mortgagor has a right to redeem a mortgage (that is, pay it off) prior to forclosure).
If contract says, "for the purpose of erecting hotel" and hotel burns, can this be taken out of DOEC?
Yes
What is estoppel by deed aka after acquired title?
I own 95, convey 100, acquire 5 later, at that moment passes to grantee, unless I sold to BFP.
What is the rule in Dumpor's case?
If Landlord consents to one assignment, waives right to avoid one per lease.
Preexisting Duty Rule - does tacking on a promise not to sue and more money change anything?
No - still a pre-existing duty.
Seller has been spurned before shipment. May he ship anyway?
No.
Hotel room, not as luxurious. Avoid breach?
No.
Can a condition precedent be waived?
When a condition is not a material part of an agreement and does not constitute a material portion of the benefit to be received by a party, that party may excuse that condition by waiving it. Further, waiver can be withdrawn if the other party has not acted in their detriment.
Does good neighbor = peacefulness?
Not for character evidence.
What is part performance?
Oral contract, conveyance of land, which provides evidence of agreement, or, through estoppel, to make it unfair for the seller to rely on the statute.

Possession + (payement or improvements)
Requirements contract, two requirements for changes
Changes in Q must be in good faith and propotionate. In the problem, 250% increase in prunes was disproportionate.
Land occupier liability vis-a-vis contractor?
If condition poses a peculiar risk, then the duty is non-delegable. In this problem, a massive decorative sign was peculiar.
What is one theory about equitable covenants vis-a-vis adverse possessors?
Since possession is not adverse to those who can enforce the covenant, the covenants still apply.
Can an unreasonable belief that spouse is engaged in sex with other support a VM conviction?
No, if belief is obj. unreasonable then Murder is the right crime.

P.S. A mistaken but not unreasonable belief will support a VM conviction.
Under the common law, if a contract invites either unilateral or billateral, how is it to be interpreted?
Common law, bilateral. UCC, either one.
Is other crimes evidence admissible to show motive under FRE, motive part of character?
Yes, though watch out for 403.
5th Amendment = T
4th Amendment = I
Testimonial
Introduction
Is a non-refundable 50% down-payment really just a penalty?
Yes
Can Congress pass appropriate legislation for voting rights under 15th?
Yes, even if 11 is violated (13,14,15 and says so unmistakably).
Redmedial Measures...timing?
To fall under this exception, the measures must be taken after some injury.
Are rights of first refusal between TIC's subject to SOF?
Yes. Knowledge by next purchaser is irrelevant.
Can a person be contributorily negligent in a Comprative Negligence jx?
I guess - this question was stupid.
Does the suretyship part of the SOF have any excpetions?
Apparently, and one of them is the main purpose rule: the main purpose must be the surety, not to preserve a bar.
Is the War Powers Resolution good law for the MBE?
Yes, but I have yet to see it be the right answer.
If "no one knows" about property encroachment, and you are given title to what is known, and you later discover you are encroaching, do you have marketable title?
No.
Is a due-on-sale clause waived after two months of payments?
Yes.
Can a juror provide testimony as to statements or other matters concerning the deliberations of the jury.
No.
Can a lay witness provide testimony about the value of his house?
Yes.
Must you be given notice of foreclosure, even if you sold and someone else assumed the mortgage and now the Bank wants a deficiency judgement?
Yes.
Can "reasonable excercise of power" mean commerce clause?
Yes, according to MBE.
Is right to earn a living a fundamental right?
Actually no. With respect to P&I, though, states can't discriminate against out of staters who are trying to make a living.
How is the competence of a child witness tested?
Did they have the capacity to perceive and relate the accident at the time of its occurence?
Is bad zoning unmarketable title?
Yes.
What is the measure of damages in a misrepresentation theory?
Most go with a benefit of the bargain measure.
Is a seller liable if he shores up rather than repairs a defective condition making it undiscoverable?
Yes. The rule is he is liable if he knows of defects but does not disclose them until a reasonable amount of time has gone by. An exception is the shoring up - he's liable forever and ever.
What is clogging?
A mortgage cannot contain a waiver to right to redeem in it. However, a right to redeem may, after the mortgage is executed, be traded for good and valuable consideration.
Is stopping performance because of an uncertainty/doubt an actual breach?
No, its a suspension pending reasonable grounds for insecurity.
State Action: Significant state involvement - licensed private fire department?
Nope
Is one day late considered a total breach of a land sale contract?
This depends on whether the court can infer from the circumstances there was a total breach. One day late, even in a time is of the essence contract, is probably not a breach if a party hasn't insisted.
If a minor agrees to 4.5k for a car before 18, then after 18 affirms for 4k, is he on the hook for the 4k?
Yes, special rule, a minor may affirm a contract for less, even without agreement from seller. "Bad deal, but I'll pay 4k" No response, minro owes 4k.
Does 14th PI or DP apply to Fed?
No...neither!!!!!!
Does Banning all religous groups from using a civic auditorium violate free excercise or free speech?
More likely free speech, because free excercise faces a balancing test, wheras free speech has strict rules against content-based restrictions.
Is character (including felony) evidence admissible in a civil case?
Only for impeachment or other thing when character is at issue, after defendant has testified.
Can an absent hearsay declarant be impeached by a prior inconsistent statement?
Yes, FRE 806, if unavaliable.
With a burglary, must there be a breaking, and what does that mean?
At common law, there had to be a breaking, which was an opening or enlarging. In the stupid black widow problem, that means if the window is already open, you're screwed - no burglary.
The voice rules are characterized how on the mbe?
Foundational.
Is larceny a crime against title?
No - larceny is a crime against possession.
Does jeopardy attach at a grand jury?
No!
If a state discriminates based on residency related to a P&I, what is the standard?
Must have a substantial reason for requiring the difference.
Mortgage on one dudes part of a JTROS, dies, what happens?
Mortgage extinguished, assuming not severed. There is a split of authority as to whether in a lien state a mortgage severs a JTROS.
What is the rule for government regulation infringement on religous conduct?
The state must show that the government interest advanced outweghs the burden on religous conflict (not just that there is an interest).
Is there such a doctrine as easement by adverse possession?
Yes - this is the same as an easement by prescription. If you want an EBP and you see EAP, go ahead.
The driveway situation: how does the MBE treat it?
Apparently its just plain old adverse possession - none of Kaswan's funky cases.