Pmbr

Front 1

An owner of an ice skating rink provided in his will that the ice skating rink was to pass "to my son for life, then to my daughter." Upon the owner's death, his executor used precisely this same language in the deed conveying the property. The son properly recorded the deed and began conducting sessions at the rink during which the general public was admitted to skate for a fee. The son also rented ice time to school youth groups and private organizations for hockey practice. One year, the son, a heavy gambler, incurred significant gambling losses and was forced to apply to his bank for a loan. He conveyed to the mortgagee/bank an interest in the skating rink as security for repayment of the loan. After satisfying his gambling debts, the son continued to gamble with the revenues from the skating rink. He soon became unable to make timely repayments to the bank. The bank found him in default of the mortgage agreement and began foreclosure proceedings.

Back 1

The son had a life tenancy in the skating rink. While a life tenant may derive all ordinary uses and profits from the property, but the tenant cannot harm the future interest holder. Where the life tenant commits waste, as in the case of son using the equity in the property for a personal loan, the remainderman will not lose title and may also sue the life tenant for damages or request an injunction. The bank would have had constructive notice of the son's life tenancy, because the life estate was expressed in the validly recorded deed from the rink owner's estate. Thus, the son's mortgage agreement with the bank was invalid from the start, as the son had no right to attach the rink as collateral for his mortgage from the bank. Therefore, the bank's attachment of the rink was invalid, and the bank would have simply an unsecured security interest against the son. The daughter's remainder interest in the property would remain unharmed.

Front 2

A man purchased a barbecue grill from a local store. The store only sold barbecue grills and were not the manufacturer. One week later, the man noticed that the hose which ran from the propane tank had worn thin and the grill did not heat up as quickly as it should. The man was annoyed at this development, but he had a backyard full of hungry guests and continued to cook. One hour after he first noticed the worn hose, the man began to smell propane. He continued to cook, since he had only one hamburger left on the grill. Just as the man was finishing, the hose burst and propane began rushing out of the tank. The propane ignited, causing serious burns to the man. Will the man prevail in a strict liability action against the store?

Back 2

Strict products liability is invoked when a defective product for which defendant is responsible injures an appropriate plaintiff. Factors that govern whether strict liability applies include the defective nature of the product, the nature of injuries suffered, whether the parties to the suit are proper, and whether any defenses are available. Strict products liability is generally imposed upon defendants who are in the business of manufacturing, distributing, or supplying the defective product. However, if the plaintiff discovers or is warned of the dangerous defect and voluntarily and unreasonably continues to use the product, such continued use is usually regarded as assumption of the risk and bars plaintiff's recovery in strict liability. Thus, if the man voluntarily continued to use the grill with knowledge of the danger, he will be barred from recovery in a strict liability claim.

Front 3

correct answer is: An eminent domain proceeding in this case would be the equivalent of zoning.

Back 3

If an eminent domain proceeding would only constitute zoning in this case, there would be no "taking" as defined by constitutional precedents, and no compensation would be required. Given that the residential restriction would likely be considered a property right, the denial of which would be a compensable taking under the Eminent Domain Clause, this argument is hardly guaranteed to succeed. Nevertheless, it is the best answer of the choices given.

Front 4

Trivet was the owner in fee simple of Angloacre, a parcel of undeveloped forestland in the mountains. In 2003, in order to divest himself of his known assets so that a judgment creditor could not seize them, he conveyed his interest in Angloacre to Nicholas via a general warranty deed. Nicholas did not record this deed. In 2004, the judgment against Trivet was satisfied in full. A month later, in settlement of an unliquidated tort claim asserted against him by Gower, Trivet executed and delivered to Gower a quitclaim deed purporting to convey all of his right, title and interest in Angloacre to Gower. Gower promptly and properly recorded her deed. In 2005, Nicholas began construction of a vacation cabin on Angloacre, after first causing his deed from Trivet to be recorded. During construction, Gower visited the property in order to assess its suitability for development, and learned for the first time of Nicholas' claim to the land. Gower immediately commenced an appropriate action to quiet title to Angloacre and to eject Nicholas from the property. The applicable recording act provides that a deed is void against a subsequent purchaser for value who first records. Which of the following is the most accurate statement regarding this litigation?

Back 4

Since the recording statute requires that a subsequent purchaser must be bona fide and have paid value in order to benefit from the statute, those two elements must be examined as to Gower. Since Angloacre was undeveloped land, Gower would not have been put on inquiry notice of any prior interest. The failure of Nicholas to record promptly means that Gower had no constructive notice. The facts state that Gower learned of Nicholas' interest for the first time when she saw the cabin under construction. Gower can thus be said to have acted in good faith. The only remaining issue, addressed by this choice, is whether settlement of the tort claim was "value" within the meaning of the statute. (For instance, what if the market value of Angloacre at the time was $50,000, and the tort claim was valued at $5,000?)

Front 5

A state has decided to get tough on illegal drug use in the state. It implements a new test that can determine the amount of cocaine in the blood. The state legislature passed a statute establishing that any person who tests positive for cocaine with a blood level of more than 0.02 percent by weight is under the influence of cocaine. Other existing state statutes provide that any person driving under the influence of illegal drugs, including cocaine, who injures another person, is guilty of a felony. A builder was arrested for driving under the influence of cocaine and injuring a woman. The state enters evidence of a blood test that was properly conducted following the builder's arrest. The results show that the cocaine level in his blood was 0.07 percent. It is established at trial that the builder did cause the injury while driving. How should the jury find?

Back 5

The builder is not required to produce evidence for the "under the influence" issue. The issue is one of presumption. A presumption is a conclusive proposition that a jury must accept or an inference that a jury must draw, unless there is evidence introduced that rebuts the presumption. There are some presumptions that are so powerful or so conclusive that a jury must accept them if the facts are established by the laying of a good foundation. A conclusive presumption exists when there are matters of public policy being considered. Here, the state legislature has established a blood level that specifies a person is "under the influence" of a drug such as cocaine at an established level. The introduction of the builder's blood test results establishes a foundational fact so that the jury may find that he was under the influence while driving and subsequently injured the woman. However, there is general agreement among commentators that a jury cannot be required to find a defendant guilty of driving under the influence even if the state establishes this as a foundational fact in a criminal proceeding. Thus, the jury is not required to find the builder guilty even if he produces no evidence on the "influence" issue.

Front 6

Police suspected a defendant of robbing a liquor store but could not find the defendant. The investigating detective learned from a reliable informant that the defendant would be at a party at the home of a friend of the defendant on a certain Friday night. Based on this and other information, police obtained an arrest warrant for the defendant to be executed at the house of the defendant's friend. On the Friday night in question, two police officers went to the door of the house of the defendant's friend, knocked on the door and announced that they were police and had an arrest warrant for the defendant. The defendant's friend opened the door. The officers recognized the defendant in the room and placed him under arrest. The arrest went without incident. The defendant's attorney filed a motion to dismiss the charges. How should the judge rule on the motion to dismiss the charges?

Back 6

Police generally may not execute a warrant for a named individual in the home of another person without first obtaining a search warrant for that home. Steagald v. United States, 451, U.S. 204 (1981). As the police executed a warrant for the defendant's arrest in the home of another person, namely the defendant's friend, this answer is correct.

Front 7

Voluntary intoxication as a defense

Back 7

Voluntary intoxication can only be a defense to a specific intent crime, and only if the intoxication was so severe that the defendant was incapable of forming the requisite specific intent. Murder is a general intent crime because the mental state required is acting with malice. As such, the second roommate's intoxication would be irrelevant in assessing his guilt for murder.

Front 8

A man is on trial for shoplifting a watch. The prosecution offers the testimony of the man's cousin. On the day after the jewelry store reported the theft, the cousin noticed the man's watch and asked him, "Where did you get that watch? You must have stolen it." The man did not respond

Back 8

The correct answer is: inadmissible, because the man had no reason to respond to his cousin's inquiry.

Discussion of correct answer: The fact that a party failed to respond (by statement or act) in the face of a provocative accusation or event may under certain circumstances be classified as an admission. The party's failure to respond will be considered an admission if: 1) the party against whom the evidence is offered heard, understood and was capable of responding to the statement; and 2) a reasonable person in the party's position would have responded (e.g., denied the accusation). Here, a reasonable person in the man's position would have been likely to interpret the comment as a joke. Therefore, even if he heard and understood the comment, the man had no reason to respond. Thus, a denial was not required, and his silence cannot be taken as an admission. On the MBE, look for questions in which someone is accused of a malum in se crime like rape or murder, for which a normal person would automatically deny culpability.

Discussion

Front 9

Rockenfeller Quarry is the largest granite producer in the State of Hampshire and has a worldwide reputation for the quality of its stone. Tab Rockenfeller has run the company for forty years, but he has no offspring to take over when he dies. However, Tab's niece, Julie, expresses an interest in learning the business, and over the course of time she takes on the daily operations at the quarry. Tab rewrites his will devising Rockenfeller Quarry to Julie, but she dies shortly thereafter, leaving no heirs. Tab wishes to ensure the continuation of the quarry as a family business, and he seeks out his brother's son, Michael, to inquire whether he is willing to take over Rockenfeller Quarry. Michael agrees. Tab agrees to sell the quarry to Michael for a nominal amount provided that Michael agrees to language in the deed stating: "To Michael and his heirs and assigns, but if Michael dies without issue, then to Jane and her heirs and assigns." Jane is a cousin of Julie and Michael. At the time that Tab conveys Rockenfeller Quarry to Michael, Michael is single and has no children. Soon after Michael takes over the quarry, a spring is discovered that produces high quality water. Michael orders the immediate cessation of all quarrying of granite in the area of the source of the spring. The portion of the quarry he closes down is the richest area of production. Michael incorporates Rockenfeller Springs and begins to bottle water to sell in local and regional markets. By the time Jane learns of the spring water operation on the property, granite production at the quarry has decreased by 30%. If Jane seeks to enjoin Michael from continuing the water extraction and to obtain a judicial accounting, which of the following is the most likely reason that a court might find in favor of Michael?

Back 9

Michael holds a fee simple subject to an executory interest (one of the three kinds of defeasible fees) and may use the estate in the same manner as a person who holds a fee simple (that is, subject only to government power to impose land use restrictions or to bring a condemnation action). The language "but if Michael dies without issue, then to Jane and her heirs and assigns" is conditional language that limits the duration of Michael's present fee simple estate such that it will automatically terminate if he dies without issue and title to Rockenfeller Quarry will pass to Jane. As owner of the present fee simple estate, Michael can remove spring water from Rockenfeller Quarry without consulting Jane, the holder of a future interest in the property.

Front 10

The homicide statute in State O provides, in relevant part: Murder is the unlawful killing of a human being with malice aforethought. Such malice may be express or implied. It is express when there is manifested a deliberate intention unlawfully to take away the life of a human being. It is implied, when no considerable provocation appears, when the circumstances of the killing show a willful and wanton misconduct, or when the killing occurs during the perpetration or attempted perpetration of arson, rape, robbery, kidnapping or burglary. Every person guilty of murder shall suffer death or confinement in the state prison for life. State O defines manslaughter as the unlawful killing of a human being without malice. It is of two kinds: 1. Voluntary—upon a sudden quarrel or heat of passion. 2. Involuntary—in the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection. Manslaughter is punishable by imprisonment in the state prison for five, seven or nine years. A man operated a convenience store in a mini-mall. After suffering three break-ins in less than a month, the man purchased a trained attack dog. During the day, while the store was open, the man kept the dog in a fenced area in the rear of the store. At night, while the store was closed, the man allowed the dog to sleep in the store. The man knew the dog would attack any intruder who entered the store at night. One week after purchasing the dog, the man arrived at the convenience store in the morning to open for business. When he entered the store, he discovered that the dog had attacked and killed a homeless person who had broken into the store to try to find a place to sleep. If the store operator is charged with murder in a jurisdiction that retains the common law definitions of crimes, on which of the following theories may the trial judge properly charge the jury?

Back 10

The facts would potentially support a conviction for murder because the store operator may have acted with malice (willful and wanton misconduct). There is no provocation or other factor to reduce an intended killing to voluntary manslaughter, but there is an argument that his conduct was only criminal negligence, rather than the more serious misconduct recognized as wanton. Therefore, it would be most appropriate to instruct on murder and involuntary manslaughter (via criminal negligence). The jury can decide where to draw the line between malice and criminal negligence.

Front 11

A cafe owner entered into a written agreement with a general contractor where the contractor agreed to build a cafe on the cafe owner’s land within 11 months in exchange for $200,000. During construction, a spike in oil prices significantly increased the cost of building materials. In response to this increased cost, the two parties orally agreed to reduce the size of the cafe to 1,000 square feet, and that the cafe owner would pay $180,000 for the completed work. The contractor completed the 1,000 square-foot cafe and demanded $180,000. However, the cafe owner refused to pay that amount, claiming that the reduction in the size of the cafe was a breach of the original contract entitling her to damages, significantly reducing the amount owed on the contract by more than $20,000. In an appropriate action to determine the rights of the parties, judgment should be for

Back 11

The oral modification of the original contract between the two parties is enforceable, because it is supported by consideration on both sides (each party agreed to accept a lesser performance from the other) and because a written contract may be modified by an oral agreement

Front 12

Travis constructed a house entirely underground in partial fulfillment of the requirements for an advanced environmental science degree he was working on at the time. Travis was so taken with the house, which he called Solar Dome, that he decided to take up residence in it. From ground level, the house appeared only as a gentle ridge in the landscape following the natural contours of the land. All the energy in the house was produced from solar power. The house was situated in a rural area, where Travis lived happily without neighbors for a decade, until a developer acquired a large parcel of land contiguous to Solar Dome. The developer subdivided the land and sold lots for single-family dwellings; most of the homes to be constructed in the subdivision were to be five-bedroom colonials. The two houses to the east and the house to the north of Solar Dome, all of which have been approved by the local planning board, will cast shadows sufficient to reduce Travis's solar power generation by forty percent. Travis is personally opposed to the use of unnatural energy sources. Assume that the relevant statutory period for adverse possession is ten years. If Travis sues for injunctive relief, what is the most likely outcome?

Back 12

Travis cannot claim the right to use the light and air by adverse possession. Even if the statutory period for adverse possession has run, Travis cannot satisfy the physical, mental, and time elements required to establish an easement by prescription. Specifically, Travis cannot establish the physical element, because he cannot show "actual, open, notorious, and exclusive" use of the light and air for the statutory period. "Exclusive" use must preclude possession by the true owner or the general public; as such, proving exclusive use of light and air would be difficult, if not impossible. Generally, courts have refused to recognize prescriptive easements for light and air, and the developer will most likely be permitted to construct the houses that will block the source of Travis's energy.

Front 13

A salesman had an extensive gun collection that he had built over the years. In doing so he had accumulated a great deal of knowledge about guns. The salesman decided to put his knowledge to use and obtained work as a salesman at a gun Store. One day the store owner brought a beautifully inlaid and carved vintage shotgun into the store, saying that he had purchased it at the ridiculously low price of $11,000 because the firing pin had become misaligned. As soon as the salesman saw the shotgun, he knew he had to have it for his collection, and vowed to himself to steal it at his first opportunity. The owner then provided the opportunity; he asked the salesman to take the shotgun to Thornburgh's Gun Repair Shoppe and leave it there for repair of the firing pin, then to pick it up and return it to the owner when it had been repaired. The salesman took the shotgun, but did not deliver it to the gun repair shop, deciding instead to add it to his collection. If the salesman is prosecuted for larceny of the shotgun, he should be found




A. not guilty, because he did not induce or in any way cause the owner to give the shotgun to him.
B. not guilty, because the owner was his employer when the owner gave the shotgun to him.
C. guilty, because he never delivered the shotgun to the gun repair shop as he had been instructed.
D. guilty, because he intended to steal the shotgun at the moment when the owner gave it to him to take it for repair.

Back 13

The correct answer is:guilty, because he intended to steal the shotgun at the moment when the owner gave it to him to take it for repair.

Discussion of correct answer:Because larceny requires a trespassory taking, the common law had to account for the situation where a defendant stole something which he had been voluntarily given by another. (This was before the development of crimes like embezzlement or false pretenses.) The concepts of "custody" and "possession" were created for these purposes. Where an employer gave property to an employee, the employee gained custody, not possession. If the employee decided to steal the property, this decision violated the possession of the employer and constituted the necessary trespassory taking to convict the employee of larceny. ( It was for such circumstances that the crime of embezzlement was formulated.) Thus, in the present question, when the owner gave the shotgun to the salesman, only custody of the gun passed. The salesman's then-existing intention to steal the shotgun constituted the trespassory taking which rendered his immediately following carrying away a larceny.

Front 14

On the last day of its legislative session for 2020, a state legislature enacted a statute, effective January 1, 2021. It provided that, because all-natural ingredients were more healthful than artificial ingredients, all movie theaters had to use real butter, rather than any hydrogenated oils or powdered butter substitutes, on popcorn sold in movie theaters in the state. The governor signed the bill into law. On November 1, 2020, an association of movie theaters in the state filed a complaint in state court challenging the constitutionality of the newly enacted statute.

What is the state's best argument for dismissal of the complaint?




A. The statute is constitutional, because it is within the police power of a state to enact legislation for the health, welfare, and safety of its citizens.
B. The association did not have proper third-party standing.
C. The matter was not ripe for adjudication.
D. The complaint, in essence, asked for an advisory opinion, which state courts are not allowed to render.

Back 14

The correct answer is: The matter was not ripe for adjudication.

Discussion of correct answer: A "case" or "controversy" is a real and substantial dispute that touches the legal relations of parties having adverse interests and that can be resolved by a judicial decree of a conclusive character. A controversy must be ripe for decision; otherwise, courts would waste time deciding constitutional issues that might never need deciding. Thus, a person asking a court to hold a statute unconstitutional must be able to show not only that the statute in question is invalid, but also that he has sustained or is in immediate danger of sustaining some direct injury as a result of its enforcement. Here, as the statute in question was to go into effect on January 1, 2021, and the complaint was filed on November 1, 2020, the controversy was not yet ripe for decision.

Front 15

A waitress was walking home one night when she saw a woman's purse sitting on a table just a few feet inside from a partially open window. Since the waitress was in desperate need of money to pay mounting bills, she decided to steal the purse, hoping that she would find a large amount of cash or other valuables inside. Since she lived a short distance away she ran home and retrieved a cane used by her elderly grandmother who lived with the waitress. She returned to the place from which she had seen the purse and inserted the cane through the partially open window, intending to insert the cane through the handles of the purse and pull it out of the house. In so doing the waitress bumped the cane against a lit decorative candle, causing the candle to fall to the floor where it set fire to a pile of newspapers waiting to be recycled. As the newspapers started to burn the waitress withdrew the cane and fled the scene. At the moment the owner of the house, who had been watching television in another room, smelled the smoke from the burning newspapers, rushed in and extinguished the fire before it did any further damage.

If the waitress is charged with the common law burglary of the house, she should be found




A. not guilty, because there was no breaking.
B. not guilty, because no part of her body entered the house.
C. guilty, because she intended to steal the purse when she inserted the cane in through the partially open window.
D. guilty, because she committed a felony in the dwelling house of another at night.

Back 15

The correct answer is: not guilty, because there was no breaking.

Discussion of correct answer:

At common law, the "breaking" element of burglary required that the defendant have actually created an opening into the dwelling house; if the occupants left a window or door open, and the defendant entered thereby, there was no breaking. Since the waitress "entered" the home by inserting the cane through the partially open window, she did not engage in any breaking which would have supported a common law burglary charge.

Front 16

Mike Zimmerman was a collector of old musical instruments. He had acquired a 250 year-old violin which he offered for $45,000 to an old friend of his, Rebecca Spencer. He made the offer on February 15th. Spencer, who had retired as an active performer, wanted some time to think about the purchase. Meanwhile, Kent Clark, an aggressive investments specialist from New York, had heard of Zimmerman's acquisition of the violin and he wanted to acquire it as an investment. He called Zimmerman daily trying to get Zimmerman to set a price. Zimmerman decided that he would keep his offer to Spencer open until February 25th in exchange for a payment of $100, which Spencer made. At the same time, Clark insisted on paying $50,000 for the violin and insisted on tendering the purchase price to Zimmerman. On the morning of the 25th, Spencer decided she would buy the violin. She called Zimmerman first thing in the morning, but there was no answer at Zimmerman's. Spencer went to her bank and got a cashier's check for $45,000 and sent it to Zimmerman as she was leaving town to conduct a violin symposium in Europe. Who owns the violin?




A.
Clark owns it, since $100 would not be adequate consideration on an option contract for such an expensive purchase.

B.
Clark owns it if Zimmerman sold it to him on February 26th before receiving Spencer's check.

C.
Zimmerman owns it, since a writing is necessary to enforce any contract worth $500 or more.

D.
Spencer owns it, since she had effectively accepted Zimmerman's offer and had a valid option contract with him.

Back 16

The correct answer is:<p>Clark owns it if Zimmerman sold it to him on February 26th before receiving Spencer's check.</p>

Discussion of correct answer:Any offer which contains the offeror's promise to hold an offer open for a stated period of time cannot be revoked if it is supported by consideration. Spencer did have a valid option contract with Zimmerman. But the “mailbox” rule would not apply to her in this case under the majority view, which states that the exercise of an option requires the offeree to give notice of acceptance to the offeror within the time optioned. Zimmerman had not received Spencer's check by the 26th when he sold the violin to Clark. Zimmerman's sale of the violin on the 26th thus indirectly revoked the offer to Spencer. As the offer period expired at midnight on the 25th, Zimmerman was free to sell the violin to Clark on the 26th. Disappointed though Spencer may be, the violin belongs to Clark.

Front 17

When an elderly actress completed her memoirs, she assigned in writing a portion of the potential royalties to her faithful housekeeper. Specifically, the writing provided that the housekeeper would be entitled to 30 percent of any future royalties when, or if, the memoirs were published. For three years, the actress's agent attempted without success to sell the book to several publishers. The actress later suffered a stroke and died. After her death, there was great interest in her story, and the executors of her estate succeeded in selling her memoirs to a major publisher. To everyone's surprise, the book spent five weeks on the best-seller list. The actress's creditors attached the royalties from the book that were paid to her estate. The housekeeper also asserted her right to the royalties.

If the actress's creditors and the housekeeper both file actions, a court will most likely rule for




A. the creditors, because the assignment to the housekeeper was defective.
B. the creditors, because the rights of creditors or lien holders have priority over the rights of a donee beneficiary.
C. the housekeeper, because an assignee’s rights have priority over a lien against the assignor’s property obtained after the assignment.
D. the housekeeper, because any proceeds of the assigned right received by an assignor’s estate must be held in constructive trust for the assignee.

Back 17

The correct answer is: the creditors, because the assignment to the housekeeper was defective.

Discussion of correct answer: A court will most likely rule in favor of the creditors because the assignment to the housekeeper was defective. The assignment fails because there can be no assignment of a contract that is not then in existence unless the promise to make an assignment in the future is supported by consideration. Here, the actress had no contract to publish the book at the time she assigned royalties to the housekeeper, and there was no consideration for her promise.

Front 18

A farmer was tired of living in the country. He placed the following announcement in the local paper. "I am interested in selling my farm for a reasonable price. First come, first served. Come on down."

When a local real estate investor saw the ad, he could not believe his luck. He got into his car and raced to the property. As he stepped out of his car, the investor was greeted by the farmer, who informed him that he was the first to come in response to the ad. The investor declared his desire to purchase the property, but the farmer told him that he had decided not to sell the land. The investor filed an action seeking specific performance, in order to compel the farmer to sell him the property.

Will the investor be successful?




A. Yes, because he was the first to respond to the announcement.
B. Yes, because the real estate investor communicated his desire to purchase the property.
C. No, because the announcement did not contain identifiable terms.
D. No, because the farmer no longer wishes to sell the property.

Back 18

The correct answer is: No, because the farmer no longer wishes to sell the property.

Discussion of correct answer:

Every valid contract requires an offer followed by an acceptance. An offer is a manifestation of intent by the offeror to be bound by the contract that is communicated to the offeree, and must contain definite and certain terms. Generally, an advertisement is considered an invitation for an offer, not an offer itself. An advertisement will constitute an offer only if it invites respondents to take action without further communication (as in the case of reward offers). Here, the farmer's announcement stated only that he was interested in selling the property for "a reasonable price" and invited interested parties to "come on down." Although the farmer's language indicated an intent to sell the land, the announcement was too vague to demonstrate an intent to be bound by a contract with definite and certain terms. "Reasonable price" is a subjective term open to various interpretations and, as such, was not sufficiently specific to make the ad a definitive offer. Nor did the announcement invite action by respondents without further communication; in fact, it did just the opposite, in that it called for interested parties to "come on down" to visit the farmer and the property. The farmer's announcement was not an offer but an invitation for offers. Given that there was no explicit offer and no acceptance of specific terms, there was no enforceable contract, the farmer could validly decide not to sell the property, and so the investor would not be successful in his lawsuit.

Front 19

An actress was enraged when she learned that her best friend had been carrying on an affair with the actress’s husband. The actress went to her father's house and took his shotgun from the gun safe in which it was stored. She then drove to her best friend's house, where she knew her best friend was participating in a regular Wednesday afternoon bridge game. The actress intended to shoot and kill her best friend, but as she drove onto the street where the best friend's house was located she was stopped and arrested by the police, who had been alerted by her father (to whom she had confided her intentions). The actress was prosecuted for attempting to violate a statute which made it a felony to "enter onto the property of another person for the purpose of committing murder, attempted murder, assault with a deadly weapon, mayhem, rape or kidnapping."

What should be the outcome of this prosecution?




A. The actress should be found guilty, because the statute is a public safety measure which she violated by arming herself with the shotgun.
B. The actress should be found guilty, because she was stopped by the police just short of completing the charged offense.
C. The actress should be found not guilty, because she cannot be convicted simply of having a "guilty mind."
D. The actress should be found not guilty, because the statute describes an "attempt" offense, and one cannot be convicted of "attempting" an attempt offense.

Back 19

The correct answer is: The actress should be found guilty, because she was stopped by the police just short of completing the charged offense.

Discussion of correct answer: To be guilty of attempt, the defendant must specifically intend the target offense, plus commit an act that constitutes a substantial step. The facts state that the actress was stopped while driving onto the street where her best friend's home was located, that the actress was armed with a shotgun and that she intended to kill her best friend. This is sufficient to meet the requirement that she be in the "zone of perpetration" (beyond mere preparation). Since the actress intended to enter the property in order to shoot her best friend, the mens rea element of specific intent is satisfied.

Front 20

A college dean entered into nine weeks of contract negotiations with a lacrosse coach. They entered into a contract whereby the coach agreed to coach the college's lacrosse team, and the college agreed to pay the coach a salary of $3,000 during the season. However, several months later, lacrosse season was nearly half over and the coach still had not been paid. Furious, the coach informed the dean that he refused to report to work until he was paid. Is the coach obligated to continue to coach the remainder of the season?




A. Yes, because the promise to coach and the promise to pay are independent of one another.
B. Yes, because the contract did not expressly condition payment for a particular point in the season.
C. Yes, because parol evidence cannot be used to contradict a writing.
D. No, if the promise to coach and the promise to pay are dependent on one another.

Back 20

The correct answer is: No, if the promise to coach and the promise to pay are dependent on one another.

Discussion of correct answer:

Conditions implied-in-law, also known as constructive conditions, function to fix the order of performance when the express terms of the bargain have not settled this vital question. Here, the facts state that the coach agreed to coach the team and the college agreed to pay him a salary of $3,000 during the season. However, the contract neglected to specify precisely when the coach was to be paid, and it did not expressly condition his salary payment on his continuing to coach for the rest of the season. Given the lack of contractual specificity, it will be necessary for the court to resolve this problem through the use of a constructive condition. A court will determine that the promises are independent of one another only where such an intention is clearly expressed or otherwise consistent with the overall purpose of the contract; otherwise, the promises are considered dependent on one another. As noted, here, such an intent is not clearly expressed in the contract. Therefore, without more information, the court is unlikely to find a construction that the promises are independent of one another is consistent with the overall purpose of the contract. It is more likely that the court will find that the coach's obligation to coach is dependent on the university's obligation to pay, and hence, if the coach is not paid he is not obligated to continue to coach. As such, this is the best answer.

Front 21

A librarian was prosecuted for battery. At trial it was established that the librarian poked a teacher in the eye.

In which of the following situations is the librarian most likely to be acquitted of the battery charge?




A. The librarian was demonstrating a "Three Stooges" routine to the teacher, and intending to simulate an eye poke which character had done to another. The librarian inadvertently failed to stop his hand in time and actually poked the teacher in the eye.
B. The librarian was trying to swat away a pesky mosquito, not realizing that the teacher was nearby, and swung his hand so that his finger struck the teacher's eye.
C. The librarian was undergoing electrostimulation tests for a nerve disorder and the electric shock caused his arm muscles to contract, sending his finger into the teacher's eye.
D. The librarian came around the corner of a building while walking in the city and saw the teacher seizing a woman from behind. Since the woman was clearly in distress, the librarian used a self-defense technique of poking the teacher in the eye to disable him so that he could no longer molest the woman. In fact, the teacher had been giving the Heimlich maneuver to the woman, who was choking on a piece of hard candy.

Back 21

The correct answer is: The librarian was undergoing electrostimulation tests for a nerve disorder and the electric shock caused his arm muscles to contract, sending his finger into the teacher's eye.

Discussion of correct answer: Battery is committed when the defendant, with requisite intent, unlawfully applies force to the person of the victim. In all of these fact patterns, there could be an argument that defendant lacked the general criminal intent required for assault and battery. The fact situation in this choice is the most likely to absolve defendant from criminal liability because his act while having electrostimulation would be characterized as involuntary. The first requirement for general criminal intent is that the defendant be acting volitionally. A person who is acting from reflex or while unconscious has no control over his movements and will not be held liable for an act which might otherwise have criminal consequences. In all the other situations, the librarian was making a volitional movement, and therefore must rely upon a finding that the accompanying intent was not criminal.

Front 22

In the wake of hurricane Floyd, the mayor of a town is very concerned about the people in the "flats" section of town. Many of the flats are located on the local flood plain and took a beating during the hurricane. The flats section is the poorest section of town, with many of its residents underprivileged and undereducated. Even during the best of times, the flats residents find it difficult to stand up to the slumlords who own their apartment buildings. Following the hurricane, the mayor receives multiple reports from police and relief workers that many of the residences in the flats area are now clearly in violation of building and health codes. The mayor has also been privy to information revealed by numerous lawsuits filed by the ACLU on behalf of flats residents. The affidavits in the lawsuits clearly spell out an unfit and unhealthy situation in the flats. The mayor has the city solicitor obtain search warrants for all the buildings in the flats, and the subsequent search reveals countless violations. The building owners that were receiving notices of violations who were not specifically mentioned in the lawsuits or other complaints now move to suppress the evidence of the violations on the grounds that it was seized without a proper warrant. The most likely outcome is that the owners' motion to suppress the evidence will be




A. denied, because there was probable cause to believe that there would be violations in the flats.
B. denied, because a warrant is not needed to inspect for health and safety violations.
C. granted, because the affidavits in the lawsuits were prepared for a civil proceeding and not a regulatory one.
D. granted, because the warrant was issued in an effort to discriminate against a particular group of landlords.

Back 22

The correct answer is:denied, because there was probable cause to believe that there would be violations in the flats.

Discussion of correct answer:When it comes to searches for safety and health regulations, there is a relaxed probable cause standard. Thus, in this instance, all that was required to obtain a valid search warrant is a showing of probable cause that buildings in the area are sub-code. Given the reports of the police and relief workers, that standard is clearly met here. As such, the owners' motion to suppress the evidence will be denied.

Front 23

A farmer owned and operated a vegetable farm. His special interest was in heirloom tomatoes. Unfortunately, he had experienced a wide variety of problems with them, and that portion of his business rarely made a profit. He consulted with a specialist in heirlooms. The specialist advised the farmer that the heirlooms could be a profitable venture if the farmer was willing to make certain changes. The specialist stated that she would undertake a program, which required the construction of certain raised beds and use of minerals that she could provide. They signed an agreement that provided in its entirety: "Farmer will pay the Specialist $10,000 in two equal installments within one month of completion if Specialist succeeds in increasing the Farmer's heirloom tomato production by 50 percent; Specialist to complete work by May 1. This agreement may be amended only by a writing signed by both parties." On April 9, the specialist advised the farmer that the work was one-half complete and demanded payment of $5,000. The farmer refused to pay initially. However, the parties later agreed to place the $5,000 in an escrow account, which would be disbursed upon completion of the agreement to the satisfaction of the farmer's accountant. The specialist completed the work on May 8. The farmer's accountant advised both parties that the farmer's heirloom tomato had increased by only 35 percent because the specialist was not able to obtain the minerals, although the farmer's profits did increase by $10,000. The farmer's accountant refused in good faith to declare satisfaction with completion of the project. The farmer demanded return of the money from the escrow account and asserts that nothing is owed to the specialist. The farmer continues to use the beds and systems implemented by the specialist.

If the specialist in fact had half-completed the job on April 9, was she entitled to receive $5,000?




A. No, because of a constructive condition precedent requiring at least substantial completion of the work before the farmer would have a duty to pay.
B. No, because "within one month of completion" would, in these circumstances, be interpreted to mean "within one month after completion."
C. Yes, because April 9 was within one month of completion.
D. Yes, because the specialist had completed one-half of the job.

Back 23

The correct answer is: No, because "within one month of completion" would, in these circumstances, be interpreted to mean "within one month after completion."

Discussion of correct answer:

Where one party's performance will take a considerable time, while the other's may be accomplished in a short period, the courts will imply that the longer performance is a condition precedent to the shorter. Because the specialist's performance took some time to accomplish, while the farmer's obligation to pay could be discharged in a single act, the specialist's performance will be considered a condition precedent and, as such, she will not be paid until after, not before, the completion of the project.

Front 24

An employer refused to hire a disabled applicant. The applicant sued the employer for violating the state's Disabled Employees' Act and the Americans with Disabilities Act. The state law was analogous to the federal law but had different filing and timing requirements. The state trial court found in favor of the employer, but the state appellate court reversed, finding that the employer had violated both the state and federal law. The state supreme court affirmed the reversal. The employer filed a petition for a writ of certiorari.

Should the United States Supreme Court grant the petition?




A. Yes, because under Art. III, sec. 2 of the Constitution, federal courts have jurisdiction over federal questions.
B. Yes, because the state decision was unclear as to whether there were adequate and independent state grounds upon which to base the decision.
C. No, because under the abstention doctrine, the United States Supreme Court should allow the state court to resolve issues of state law.
D. No, because adequate and independent state grounds supported the state court judgment.

Back 24

The correct answer is: Yes, because the state decision was unclear as to whether there were adequate and independent state grounds upon which to base the decision.

Discussion of correct answer: Although a state court decision involves a federal question, if the state court judgment can be supported on an adequate and independent state ground, the United States Supreme Court will not take jurisdiction. Here, however, it is unclear whether the state court grounded its decision upon state or federal law. The 1983 case of Michigan v. Long instructs that where "the adequacy and independence of any possible state law ground is not clear from the face of the opinion," the United States Supreme Court will assume that the state court "decided the case the way it did because it believed that federal law required it to do so." Thus, in an unclear circumstance, the U.S. Supreme Court will not apply the adequate and independent state ground doctrine and will hear the case.

Front 25

A roofer entered into a contract with a technology company to reseal its roof. The contract contained no provision regarding assignments of the contract. Within a few days of signing the contract, the roofer found himself deluged by calls to reseal other roofs that had been leaking with the onset of the summer rains, and he found himself short of repair crews. The roofer informed the company that it would not be possible for him to finish the resealing within the period called for in the contract. Rather than be found in breach of contract, he assigned the contract to a general contractor, who was a friend and competitor of his. The competitor began resealing the company's roof and was halfway through the project before the company even realized that he was substituting for the roofer. Nonetheless, it allowed him to finish the job. After the contractor finished, the company discovered that he failed to perform the resealing according to the terms of the original contract between the company and the roofer.

Which of the following statements is most accurate?




A. The company has no cause of action against the contractor because there is no privity of contract.
B. The company has no cause of action against the contractor because it accepted his performance.
C. The company has a cause of action against the contractor for damages.
D. The company has a cause of action against either the roofer or the contractor for damages.

Back 25

The correct answer is: The company has a cause of action against either the roofer or the contractor for damages.

Discussion of correct answer: Where there exists a valid contract for performance of services, the original obligor, whose duty it is to render a performance to the other party, may attempt to transfer this duty to a third person after the contract was formed. This act is known as delegation of duties. In such cases, the obligee is required to accept any satisfactory performance from the delegatee. Here, the roofer (i.e., the original obligor) validly transferred his duties under the contract to the contractor. The company (the obligee) was required to accept satisfactory performance from the contractor (the delagatee). Only if the delegatee failed to perform would the obligee have cause for a breach of contract action against him; the company would also retain its rights against the original obligor.

Front 26

Michael lived next door to Peter. Peter was a well known gang member with a long criminal record including theft and violent crimes. Peter had robbed Michael's house on two occasions, but the authorities were not able to convict Peter in those two instances. Recently, Michael was robbed again. Michael actually has no idea who the thief was, but suspected Peter. Michael called the police and told them that he saw Peter running from Michael's house with the stolen goods in his hands. The police arrested Peter. At trial, the judge was forced to declare a mistrial when he becomes aware that one of the jurors was doing independent research regarding the case. Peter was set free. Peter sues Michael for malicious prosecution. Which of the following is the most accurate?




A.
Peter should not prevail, because he did in fact rob Michael's house on at least the two prior occasions.

B.
Peter should not prevail, because his case was dismissed on a technicality.

C.
Peter should prevail, because Michael lied to the police.

D.
Peter should prevail whether or not Michael lied to the police.

Back 26

The correct answer is:<p>Peter should not prevail, because his case was dismissed on a technicality.</p>

Discussion of correct answer:In order to prevail on malicious prosecution, the case against plaintiff must have terminated in manner indicating the plaintiff's innocence. Malicious prosecution is the institution of criminal proceedings by defendant, done for an improper purpose, and without probable cause, which terminate favorably to plaintiff, and which cause plaintiff damages. The criminal prosecution must have terminated in a fashion indicating that plaintiff was innocent of the charges. Termination on the merits (acquittal after trial, court dismissal for lack of sufficient evidence) is sufficient in this regard; termination based on procedural or technical defects, prosecutorial discretion, or similar grounds is not. A mistrial resulting from juror misconduct is a technical defect that does not indicate Peter's innocence. Therefore, Peter should not prevail in his action.

Front 27

IIED

Back 27

Discussion of correct answer: A person is liable for intentional infliction of emotional distress when his extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another. Recovery for infliction of emotional distress is allowed where the defendant acts "recklessly," meaning that the defendant acted with deliberate disregard of a high degree of probability that the emotional distress would follow. The disc jockey went through with the extreme and outrageous prank despite the wife's known former alcoholism and sensitivity to her marriage. The wife then did suffer severe mental distress and thus, all the elements of the tort are present.

Front 28

Larceny

Back 28

A defendant who takes property under a claim of right does not possess the intent to permanently deprive which is needed to support a larceny conviction. On these facts, the defendant arguably lacked the specific intent for larceny, because he believed that he was entitled to the victim's camera in compensation for the destruction of his own camera. He is therefore not guilty of larceny.

Front 29

A plaintiff sued a fair company for injuries suffered when he was riding a roller coaster at the fair. The complaint alleged that while the car was hurtling down the track a bird flew right in front of it, hitting the plaintiff in the eye. It also alleged that because of the lack of a protective shield and the failure of the ride operator to issue protective goggles to the riders, the plaintiff has suffered permanent damage to his eye. At trial, the fair company's attorney offered evidence that the ride had been in operation for 10 years and half a million riders had been on the ride and there has never been an accident of any kind. Upon objection from the plaintiff's attorney, this evidence should be ruled




A. inadmissible, since it is self-serving.
B. inadmissible on the issue of the ride operator's negligence.
C. admissible, as tending to prove contributory negligence on the plaintiff's part.
D. admissible, to show reasonable care on the part of the ride operator in maintaining the ride.

Back 29

The correct answer is: inadmissible on the issue of the ride operator's negligence.

Discussion of correct answer:

Evidence of the lack of similar accidents or injuries is usually not admissible to prove the lack of negligence or defects. This does not have enough probative value when used for such a purpose.

Front 30

federal common law

Back 30

Federal Rule of Evidence 501 states that "...the privilege of a witness...shall be governed by the principles of the common law as interpreted by the courts of the United States in the light of reason and experience." In other words, on matters governed by federal substantive law—and this will generally be true in criminal cases brought by the United States and private federal question cases—federal courts are to apply and develop a privilege. Since this question deals with a federal question (namely whether there is a violation of the Civil Rights Act), the issues should be resolved under federal privilege law

Front 31

The Food and Drug Administration (FDA) is a federal agency authorized to promulgate rules governing the allocation of federal funds for clinical trials of experimental drugs. State medical facilities apply to the FDA for matching funds for cancer treatment programs serving local communities. The FDA's enabling statute provides that it is run by an executive appointed by the President. The executive, in concert with a 15-member panel of appointed officials, promulgates all rules relating to grants distributed to the experimental cancer drug program. Pursuant to the enabling statute, the executive decision on rules governing the allocation of funds may be blocked by the congressional Joint Committee on Health Care.

In a constitutional challenge to the statutory provision allowing the Committee to block the FDA rules on allocation of funds, the court will find the provision




A. invalid, because it violates the constitutional standards by which legislative action is observed.
B. invalid, because it violates the equal protection rights of the vast majority of members of both houses of Congress.
C. valid, because Congress may condition the receipt of federal funds under a regulatory scheme.
D. valid, because Congress has authority under the Necessary and Proper Clause to choose the means by which the purposes of the FDA are accomplished.

Back 31

The correct answer is: invalid, because it violates the constitutional standards by which legislative action is observed.

Discussion of correct answer:

The statutory provision permitting the congressional joint committee to block FDA decisions constitutes an unconstitutional legislative veto. Under the separation of powers doctrine, the balance of power is preserved by interbranch checks and balances. The constitutional procedure for legislative action is: (1) approval of the legislation in both the House and the Senate; (2) presentation of the legislation to the President for approval or veto; (3) if vetoed by the President, congressional override of the veto by a two-thirds vote of each house. The statutory provision in the present case effectively eliminates (2), the presidential opportunity to exercise the veto power, and gives Congress, through the joint committee, final veto authority over the FDA allocation rules. Such legislative veto provisions are unconstitutional.

Front 32

A local magazine published a story in its May issue on the previous occupations of some local residents. The story mentioned that a teacher had formerly worked as a "woman of the night" in several surrounding communities. This information was not true, and the teacher filed a defamation suit against the magazine. State law requires that before a defamation suit is filed, the plaintiff must request, in writing, a retraction from the publisher. The teacher testified that she had written and mailed such a letter the same day that the May issue of the magazine was published. The teacher then called as a witness a woman who formerly worked at the magazine. The witness will testify that a week after the story ran, she recalls receiving a letter from the teacher to the publisher. The attorney for the magazine objects. The court should




A. not admit the witness's testimony, because the letter to the publisher is the best evidence.
B. not admit the witness's testimony, because the witness is not a current employee of the magazine.
C. admit the witness's testimony, because the witness's testimony is the admission of a party opponent.
D. admit the witness's testimony, because the testimony relates to a matter at issue.

Back 32

The correct answer is: admit the witness's testimony, because the testimony relates to a matter at issue.

Discussion of correct answer:

Under Federal Rule of Evidence 601, a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that he has personal knowledge of the matter. Here, the witness was to testify that she saw a letter from the teacher arrive at the magazine offices. Given that she has personal knowledge of the matter, the witness is a competent witness and may testify regarding the newspaper's receipt of the letter.

Front 33

An express assumption of risk disclaimer

Back 33

An express assumption of risk in a disclaimer clause is valid only if three criteria are met: 1) The plaintiff is aware of its terms; 2) the injury which occurs is within the risks of which the plaintiff agreed to relieve the defendant; 3) the disclaimer is not contrary to public policy. The document Guy signed will not be interpreted as an express assumption of risk barring his recovery. A disclaimer is contrary to public policy when it is actually involuntary because the service is a critical need and the plaintiff has no effective option. The young man needs to get to the hospital for treatment of his back injury. If the rescuer is the only ambulance service available, the young man has signed the disclaimer under force of necessity and it will probably not be enforced against him.

Front 34

A soon-to-be motorist resides in a state that provides that the age of majority is 18 years of age. A month before his 18th birthday, the motorist agreed in writing to purchase a car for $4,500 from a car dealership. The market value of the car is $3,500. When he turned 18, the motorist wrote the car dealership the following letter: "I made a bad deal with you guys, and I'm not willing to pay the $4,500, but I will pay $4,000." Before the car dealership could respond, the motorist wrote them another letter telling the car dealership to "forget the whole deal."

In an action by the car dealership against the motorist, what can the car dealership recover?




A. $4,500.
B. $4,000.
C. $3,500.
D. Nothing.

Back 34

The correct answer is: $4,000.

Discussion of correct answer: The motorist's original agreement with the car dealership is voidable because the motorist was a minor at that point. Nevertheless, a minor can affirm his contract after reaching the age of majority for the full amount or for a lesser sum, as he did here for the $4,000. Only the amount affirmed after the age of majority is enforceable.