Foundations Benchmark Questions_4.29 Flashcards
(24 cards)
On August 1, a realtor mailed a written offer to a developer for the sale of a large tract of land. The offer included the following terms:
This offer expires on September 1, if the offeree has not caused an acceptance to be received by the offeror on or before that date.
Early on September 1, the developer sent a written acceptance by messenger but the messenger company negligently withheld delivery to the realtor until September 2. On September 4, the realtor entered into a contract for sale of the tract to another buyer but did not inform the developer of the transaction. When the developer contacted the realtor a few days later, the realtor said there was no contract between them.
What is the most accurate statement regarding the relationship between the parties?
A. No contract between the realtor and the developer arose on September 2.
B. A contract would have arisen if a letter of acceptance were mailed on September 1.
C. The realtor’s silence constituted an acceptance of the developer’s written message on September 2.
D. A voidable contract arose on September 1.
A. No contract arose on September 2 because the realtor’s offer expired on September 1, when the realtor did not receive the developer’s acceptance. If a period of acceptance is stated in an offer, the offeree must accept within that period to create a contract. Failure to timely accept terminates the power of acceptance in the offeree (i.e., a late acceptance will not be effective and will not create a contract). Under the mailbox rule, an acceptance generally is effective upon dispatch (i.e., the acceptance creates a contract at the moment it is mailed or given to the delivery company). However, the mailbox rule does not apply where the offer states that acceptance will not be effective until received. In the latter case, acceptance is effective only upon receipt. Here, the realtor’s offer specifically stated that the acceptance must be received by September 1 to be effective. Thus, the realtor opted out of the mailbox rule, and no contract was created by delivery of the acceptance on September 2. Note that the developer will not be able to successfully argue that the acceptance was valid since the late delivery was the messenger company’s fault. This would be a valid argument if the mailbox rule applied here, because the acceptance would have been effective on September 1, when the message was given to the messenger company. However, by opting out of the mailbox rule, the realtor put the burden of any negligence in delivery on the developer. Thus, there was no valid acceptance. (B) is incorrect because of the requirement that acceptance be received by September 1. This requirement obviates the general “mailbox rule,” so that the mere mailing of a letter (or sending of a message) does not operate as an effective acceptance. (C) is incorrect because the realtor was not obligated to respond in any way to the message received on September 2. Once the specified time passed without receipt of acceptance, the offer (as well as the developer’s power of acceptance) was terminated. Thus, receipt of the message on September 2 created neither a contract nor an obligation on the part of the realtor to respond to the message. (D) is incorrect because no contract, voidable or otherwise, arose on September 1. As explained above, there could be no contract because acceptance of the offer was not received as specified by the offer. Also, the facts do not indicate circumstances under which a contract is usually held to be voidable. A voidable contract is a contract that one or both parties may elect to avoid (e.g., contracts of infants). The facts of this question provide no basis for concluding that any contract that might have arisen between these parties would be voidable.
A widget manufacturer entered into a written agreement with a retailer to sell the retailer 500 widgets for a total price of $10,000. Prior to the date set for execution of the contract, the price of the raw material essential to manufacture of widgets had soared because of a civil war in the country that produces 80% of the world supply of the material. The manufacturer informed the retailer that it would now cost $11,000 to manufacture the widgets and requested that the contract price be adjusted to $12,000 for the 500 widgets. The retailer agreed orally to pay the $12,000, but no written confirmation was exchanged between the parties.
Shortly thereafter, the civil war ended and the raw material became available again at prewar price levels. The manufacturer shipped 500 widgets to the retailer. On receipt, the retailer sent the manufacturer a certified check in the amount of $10,000, marking it “payment in full.” The manufacturer did not cash the check, but telephoned the retailer demanding an additional $2,000. The retailer refuses to pay the additional sum.
May the manufacturer enforce his demand for an additional $2,000 in a court of law?
A. No, because no new consideration was given for the modification.
B. No, because of the Statute of Frauds.
C. Yes, because the parol evidence rule allows evidence of a subsequent modification.
D. Yes, because the modification was made in good faith.
B! The manufacturer will not be able to enforce his demand because the contract, as modified, is within the Statute of Frauds, and there is no writing evidencing the modification. Because the contract here is for the sale of goods, the UCC will govern. Under the UCC, a contract for the sale of goods priced at $500 or more must be evidenced by a writing signed by the party to be charged to be enforceable. A contract modification must be evidenced by such a signed writing if the contract, as modified, is within the Statute. Here, the contract as modified is well over $500 and the modification is not in writing; thus the modification is unenforceable. (A) is incorrect because a modification of a contract for a sale of goods is enforceable even though it is not supported by consideration (which is required under the common law), as long as the modification is sought in good faith. Here, the modification was sought in good faith (the civil war raised the price of the raw material needed to manufacture widgets, making the contract unprofitable). Therefore, had the modification complied with the Statute of Frauds, it would have been enforceable despite the lack of consideration.(C) is incorrect because even though the parol evidence rule does not bar evidence of a subsequent (as opposed to a prior or contemporaneous) expression, the modification here is unenforceable due to the Statute of Frauds. (D) is incorrect. because, as noted above, the modification did not comply with the Statute of Frauds. Although it is true that modifications without consideration are enforceable under the UCC if made in good faith, the manufacturer will be unable to enforce the modification because it is not evidenced by a signed writing.
A gardener entered into a contract with a landowner under which, for a monthly fee of $200, the gardener would provide the landowner with monthly gardening services for the calendar year. On June 1, the gardener told the landowner that she could no longer afford to work for $200 a month and demanded that she be paid $400 a month. The landowner refused, stating that he already had a valid contract with her and that he did not have to pay any more. The gardener again insisted that she would not work for less than $400. As a result, the gardener and the landowner agreed in writing on July 1 that the gardener would thereafter be paid $400 a month for the gardening services and that the term of the agreement would be extended through the end of next year.
Is the gardener legally entitled to receive a monthly fee of $400 from the landowner after July 1 of this year?
A. Yes, but only for the period from January 1 to December 31 of next year.
B. Yes, because the gardener and the landowner mutually agreed to modify their original contract.
C. No, because the gardener used economic duress in order to obtain the landowner’s agreement to the modification.
D. No, because the gardener was under a preexisting duty to perform the gardening services for $200 a month.
The gardener is entitled to receive the fee. The common law rule is that a promise to modify a contract must be supported by consideration. Here, the gardener agreed to work an extra year in return for the landowner’s promise to pay extra money. In the absence of facts indicating duress or unconscionability (facts not present here), courts will not inquire into the adequacy of the consideration. There is no indication that the landowner had no “meaningful choice” but to accept the price increase, and because the landowner received a year’s extension in exchange, there was adequate consideration to support a modification. (A) is incorrect because, as discussed above, the modification is valid and the price increase can take effect as agreed. (C) is incorrect for two reasons: First, economic duress generally is not a good defense to contract unless caused by the party seeking to enforce the contract. Second, as mentioned above, there are no facts indicating that the landowner had no “meaningful choice” but to accept the proposed modification; nothing indicates that the landowner could not have found another gardener or could not have sued the gardener for breach if she had not performed the original contract in the absence of modification. (D) is incorrect because the gardener did not merely promise to perform a preexisting duty in exchange for the promise to pay $200 a month more. She promised a year’s extension of services, and this is additional and valuable consideration.
A landowner borrowed $30,000 from a bank, secured by a mortgage on his land. The mortgage papers were signed by the landowner and by the chief loan officer as agent for the bank on March 18. The loan officer filled out the appropriate recording form and gave it to a bank clerk on March 19, instructing him to file the papers at the county recorder’s office. The bank clerk inadvertently misplaced the papers. He discovered the papers on April 10 and filed them with the county recorder.
At the recorder’s office, the bank clerk discovered a conveyance of the landowner’s land from the landowner to a buyer dated April 5 and recorded on April 8. Subsequent inquiry revealed that the buyer paid the landowner $150,000 for the land after a diligent title search and that the buyer had no knowledge of the mortgage on the property until the loan officer contacted her on April 11. The jurisdiction in which the land is located follows the lien theory of mortgages, and has a statute providing: “Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value without notice thereof who first records.”
If the bank seeks a declaration from the court that the buyer owns the land subject to a $30,000 mortgage with the bank, is the bank likely to prevail?
A. Yes, because the bank’s interest was acquired for value prior to the date when the buyer recorded.
B. Yes, because the mortgage was merely security for a loan.
C. No, because the buyer recorded first.
D. No, because the jurisdiction follows the lien theory.
The bank’s position will not be upheld because the buyer, a bona fide purchaser, recorded first. The applicable recording statute is a race-notice statute, under which a subsequent purchaser for value without notice of any prior conveyance is protected if she records before the prior grantee. Here, the bank, as mortgagee, is a grantee of an interest in the land prior to the buyer. However, the buyer purchased the land for valuable consideration and without notice (either actual, record, or inquiry) of the prior conveyance to the bank. The buyer recorded her conveyance on April 8, prior to the time the bank clerk filed on behalf of the bank. Consequently, the buyer satisfies the statutory requirements, and she is protected against the bank’s claim. (A) is incorrect because, to prevail, the bank must have actually recorded prior to the buyer. It is of no significance that the bank acquired its interest in the property-even for value-prior to the date of the buyer’s recordation. The bank is not protected by the recording statute because it recorded its interest after recordation by another bona fide purchaser. (B) is incorrect because, although a mortgage is a security interest for a loan, it is still an instrument creating an interest in land. As such, a mortgage comes within the scope of the recording acts, so that a grantee thereof must record in order to give notice of the conveyance to subsequent purchasers. Having failed to record in time, the bank will lose against a subsequent bona fide purchaser who records first. (D) is incorrect because whether the jurisdiction is a lien theory or a title theory state is irrelevant to this question. Under either theory, the bank’s mortgage is an instrument creating an interest in land, and is thus subject to the recording statute.
A county ordinance permits individuals, businesses, and other entities to use animated signs that comply with specified rules if the sign is located on the same premises as the party expressing the message (that is, an on-premises sign). However, the same ordinance provides that animated signs cannot be used when the sign is not located on the same premises as the party expressing the message (that is, an off-premises sign). The city passed the ordinance because numerous studies show that off-premises animated signs result in a significant increase in car accidents, but on-premises animated signs do not result in a similar increase.
A toy store filed for a permit to erect an animated sign across the street from the store on property owned by a development company, noting on the application that the proposed sign complied with the rules for on-premises signs. When the application was rejected, the store filed suit claiming that the ordinance is an unconstitutional restriction on speech under the First Amendment as applied to states through the Fourteenth Amendment. It is undisputed that the proposed sign is not misleading and does not promote illegal activities, and evidence shows that the toy store has not been treated differently than any other sign applicant.
Is the toy store likely to prevail in its claim?
A. No, because the ordinance is viewpoint-neutral and reasonably related to a legitimate government purpose.
B. No, because the ordinance is content-neutral, advances important government interests, and is narrowly tailored to further those interests.
C. Yes, because commercial speech is protected under the First Amendment as long as it is not misleading and does not promote illegal activities.
D. Yes, because the ordinance is content-based since the county can only determine whether a proposed sign is on- or off-premises by reading the sign.
The Supreme Court has held that an ordinance that distinguishes between on-premises and off-premises signs generally is content-neutral. The fact that some examination of the speech or expression on the sign is necessary to determine into which category the sign falls does not mean the ordinance involves content regulation. While content-based regulation of speech is subject to strict scrutiny, content-neutral speech regulations generally are subject to intermediate scrutiny-they will be upheld if the government can show that (i) they advance important interests unrelated to the suppression of speech, and (ii) they do not burden substantially more speech than necessary or are narrowly tailored to further those interests. Here, the ordinance appears to be narrowly tailored to an important safety interest as it applies only to a set of signs that studies show are particularly dangerous. Notably, the statute doesn’t prohibit all off-premises signs and doesn’t prohibit all animated signs. (Note that the general standard for content-neutral restrictions of speech applies rather than the commercial speech standard because the ordinance is not restricted to signs carrying commercial messages.) (A) is incorrect. The stated test-that the regulation is viewpoint-neutral and reasonably related to a legitimate government purpose-applies to regulations of speech on government-owned nonpublic or limited public forums. Here, the proposed sign would be erected on privately owned land. Therefore, forum analysis does not apply. (C) is incorrect. As an initial matter, as discussed above, the ordinance is not limited to commercial signs. Further, while it is true that the First Amendment protects some commercial speech, that protection is not unlimited, so this choice would be incomplete even if the ordinance applied only to commercial messages. A regulation of commercial speech that concerns a lawful activity and is not misleading or fraudulent will be valid if it (i) serves a substantial government interest, (ii) directly advances the asserted interest, and (iii) is narrowly tailored to serve the substantial interest. Note that the last prong of this test does not require that the least restrictive means be used; rather, there must be a reasonable fit between the legislation’s end and the means chosen. (D) is incorrect. As discussed above, the Court has specifically held that the distinction between on- and off-premises signs is not content-based. The fact that someone may need to read the sign to determine which set of rules apply does not make it a content-based restriction.
An employee of a construction company working in a high crime neighborhood negligently cut through power cables. The accident knocked out power to the area and disabled a home’s security system. The homeowner, who was out of town, received an alert from the security company advising her to arrange for someone to go to the house and restart the system with a backup power source. The homeowner got distracted soon after getting the message and neglected to contact anyone. That evening, a burglar broke into the home while power was still off in the neighborhood. Because the security system was not working and the alarm did not go off, the burglar was able to steal jewelry and other valuables from the home and escape. The homeowner sued the construction company for the loss of her valuables in a jurisdiction that has adopted pure comparative negligence rules.
Is the homeowner likely to recover?
A. Yes, because the homeowner’s negligence contributed the least to her loss.
B. Yes, because the conduct of the construction company’s employee created the opportunity for the burglar to steal the valuables.
C. No, because the homeowner’s negligence was a superseding cause of her loss.
D. No, because the burglar committed a criminal act that was a superseding cause of the loss.
The homeowner is likely to recover from the construction company. The general rule of proximate cause is that the defendant is liable for all harmful results that are the normal incidents of and within the increased risk caused by his acts. In indirect cause cases, an independent intervening force may be foreseeable where the defendant’s negligence increased the risk that these forces would cause harm to the plaintiff. Even a criminal act by a third party will not cut off the defendant’s liability if the defendant’s negligence created a foreseeable risk that a third person would commit the crime. Here, the construction company negligently cut the power in a high crime neighborhood, increasing the risk of criminal conduct occurring. But for the power being cut, the homeowner’s valuables would not have been stolen. A jury is likely to find that the burglar’s intervening act was sufficiently foreseeable that the construction company will be held liable for at least some of the damages suffered by the homeowner.
(A) is incorrect because, under pure comparative negligence rules, the homeowner could recover some of her damages even if her negligence was deemed to be greater than that of the defendant. (C) is incorrect because superseding cause analysis does not apply to the plaintiff’s negligence. The homeowner’s failure to have the security system reset is an issue of contributory negligence, which under the jurisdiction’s pure comparative negligence rules is not a complete defense. (D) is incorrect because, as discussed above, the burglar’s conduct probably would be deemed foreseeable and therefore not a superseding force that cuts off the construction company’s liability.
After having much too much to drink at the corner bar, the defendant decided it was time to go home. However, because of her intoxication, she did not notice that she grabbed an expensive and distinctive fur coat instead of her inexpensive cloth coat from the bar’s coat room. The owner of the fur coat, who noticed the defendant staggering out of the bar and down the street, ran out of the bar and shouted for the defendant to stop. A police officer on foot patrol heard the shout and immediately apprehended the defendant.
If charged with larceny of the fur coat, should the defendant be found guilty?
A. Yes, because her mistake was unreasonable.
B. Yes, because voluntary intoxication is not a defense to a charge of larceny.
C. No, because the defendant did not reach a place of temporary safety and thus did not complete the crime.
D. No, because she was too intoxicated to realize the property did not belong to her.
The defendant should be found not guilty. Larceny is a specific intent crime that requires that the defendant intend to permanently deprive the owner of his property. If the defendant can show that she really believed the property was her own, there is no intent to deprive the owner of his property, and therefore the defendant would not be guilty of larceny. This is true whether or not the mistake was reasonable or whether the mistake was attributable to intoxication. In the instant case, the defendant did not realize that she had taken another’s coat, and thus did not have the specific intent to commit larceny. (A) is incorrect. A mistake of fact that negates the state of mind requirement for specific intent crimes need not be reasonable. Any mistake of fact, reasonable or unreasonable, that negates specific intent would be a defense. For much the same reason, (B) is incorrect. For specific intent crimes, intoxication may be a defense when it prevents the defendant from formulating the requisite state of mind. (C) is incorrect because it implies that the asportation requirement for larceny must be substantial. It need not be; any movement of the property is sufficient to satisfy the requirement. Here, the defendant walked out of the bar with the fur coat, which is a sufficient asportation.
Exam Note: Reaching a place of temporary safety may be important in a question involving killings committed during the course of a felony because it may cut off liability; it has nothing to do with the asportation (the detachment, movement, or carrying away of property, considered an essential component of the crime of larceny) requirement for larceny.
An owner of land who was also a home contractor agreed in writing with a buyer to build a house to the buyer’s specifications on his (the contractor’s) land and then sell the house and lot to the buyer. The contract provided that the house was to be completed nine months later, by March 1, with full payment due at that time. On March 1, due to delays in the delivery of materials, the contractor needed 20 more days to finish construction. On March 5, after discovering that the house had not yet been completed, the buyer notified the contractor in writing of her election to cancel the contract because of the contractor’s failure to deliver the house by March 1. The contractor responded that, due to an unanticipated strike at his supplier’s company, performance had been unforeseeably delayed and that the house would be ready by March 20. The buyer responded that she would no longer accept delivery of the house and land. The contractor then brought an action to recover damages for breach of contract.
Who will prevail?
A. The buyer, because the express date listed in the contract indicates that time was of the essence.
B. The buyer, because delivery by March 1 was a condition precedent to the buyer’s performance.
C. The contractor, because the strike was truly an unforeseeable intervening event.
D. The contractor, because there was no material breach.
The contractor will prevail because he did not materially breach the contract. The failure to perform on time is a breach of contract, but in this case, it was a minor breach. Unless the nature of the contract is such as to make performance on the exact day agreed upon of vital importance, or the contract provides that time is of the essence, failure to perform at the stated time is not a material breach. Here, the home was nearly complete, and the delay was relatively short. The contract did not specify that time was of the essence; thus, the breach was minor. The remedy for a minor breach is damages; the aggrieved party is not relieved of her duty to perform. (A) is incorrect because merely stating a date for performance does not indicate that time is of the essence. There must be some explicit statement indicating that time is of the essence. (B) overlooks the fact that, although the delivery on March 1 is a condition precedent to the buyer’s duty to pay, the condition is excused by substantial performance. The test for whether a party has substantially performed is the same as the one for assessing whether a breach is minor or material. Here the breach is minor, the contractor substantially performed, and the condition is excused. (C) is incorrect because an unforeseeable event does not discharge a party’s duty to perform. A strike at the contractor’s supplier does not rise to the level of impossibility or impracticability, which would discharge his duty to perform. The contractor could have procured the supplies elsewhere.
A homeowner agreed to sell his home to an accountant. He gave the accountant a general warranty deed and the accountant gave him $86,000, his asking price. The deed was recorded. A few years later, the accountant sold the property to a doctor, who paid her $125,000 for the property. To save on attorney’s fees, the accountant went to her local office supply store to purchase a general warranty deed form. The store was out of those forms, but the clerk suggested that she use the form labeled “Quitclaim Deed,” asserting that it would transfer the title just as well as the other form. The accountant purchased the form and filled in the blanks with the appropriate information she copied from her old deed. The doctor did not hire a lawyer to represent him in the purchase of the house.
The doctor accepted the deed from the accountant and gave her $125,000. Soon after the doctor moved into the house, it was discovered that the homeowner’s title was not good. The true owner now demands that the doctor vacate. Title is judicially determined to be with the true owner, and the doctor is forced out.
Does the doctor have any action against the homeowner or the accountant based on any covenant for title?
A. Yes, the doctor can sue both the homeowner and the accountant.
B. Yes, the doctor can sue the accountant, but not the homeowner.
C. Yes, the doctor can sue the homeowner, but not the accountant.
D. No, the doctor can sue neither the homeowner nor the accountant.
The doctor can sue the homeowner but not the accountant. The homeowner gave covenants for title to the accountant when he gave her a general warranty deed. With a general warranty deed, the grantor covenants against title defects created both by themselves and by all prior titleholders. These warranties runs with the land and can be enforced by any subsequent purchaser, such as the doctor here. The doctor cannot sue the accountant because she gave only a quitclaim deed, which contains no covenants for title. (A) and (B) are incorrect because, as explained, the doctor cannot sue the accountant. (D) is incorrect because, as explained, the doctor can sue the homeowner because the homeowner gave the accountant a general warranty deed which covenants against any title defects the grantor (or their predecessors) may have created.
In a suit to recover for injuries after a car accident at an intersection, the plaintiff testified that she had had the right-of-way at the intersection. The defendant’s attorney did not cross-examine the plaintiff. The plaintiff then called a witness to testify that, shortly after the collision, as she pulled the plaintiff from the car, the witness heard the plaintiff say, “I think I’m dying! Didn’t the other driver see I had the right-of-way?”
Should the court admit the testimony?
A. Yes, because the plaintiff’s statement was made under belief of impending death.
B. Yes, because the plaintiff’s statement was an excited utterance.
C. No, because the plaintiff’s credibility has not been attacked.
D. No, because the plaintiff’s belief that she had the right-of-way has already been established without contradiction.
The witness’s testimony should be admissible as an excited utterance. Statements made under the stress of some exciting event and relating to that event are admissible under this exception to the hearsay rule. Here, the statement made by the plaintiff right after the collision and relating to it qualifies as an excited utterance. The declarant need not be unavailable for this exception to apply. In contrast, (A) is incorrect because the Federal Rules require the maker of a dying declaration to be unavailable for the declaration to be admissible under the dying declaration exception. (C) is incorrect. While it is true that the plaintiff’s credibility has not been attacked, the statement is not being offered for rehabilitation. (D) is incorrect because there is no rule limiting cumulative evidence to establish a point, so certainly testimony from a second witness tending to prove a key issue would be admissible. If this were the tenth person to testify on that point, then the testimony might not be relevant.
A stockbroker visited a customer at the customer’s office and sold her some securities. Coincidentally, three days after the sale, the stockbroker and customer were involved in a car accident on the freeway into the city. After the securities dramatically declined in value, the customer determined that the broker violated federal securities statutes when the broker sold the securities. The customer and the broker are citizens of the same state. The customer filed an action against the broker in federal district court, asserting a claim for $70,000 for the broker’s violation of federal securities statutes and a claim for $4,000 for the broker’s negligence in damaging the customer’s car.
May a federal court hear these claims together?
A. No, because unrelated claims may not be joined in the same action.
B. No, because the federal court lacks subject matter jurisdiction over the negligence claim.
C. Yes, because the amount in controversy is irrelevant in federal question cases.
D. Yes, because the court has federal question jurisdiction over the statutory securities claim and supplemental jurisdiction over the negligence claim
The federal court may not hear these claims together because there is no supplemental jurisdiction over the negligence claim. Generally, every claim in federal court must have a basis for federal subject matter jurisdiction. There are two main bases for federal subject matter jurisdiction-diversity of citizenship jurisdiction and federal question jurisdiction. Once a claim is in federal court, supplemental jurisdiction sometimes may be used to have a claim heard. Diversity of citizenship jurisdiction is available when (i) there is complete diversity of citizenship, meaning that each plaintiff is a citizen of a different state from every defendant; and (ii) the amount in controversy exceeds $75,000. A natural person’s citizenship is the state that is the person’s domicile. In the instant case, the facts state that the broker and customer are from the same state. As a result, complete diversity does not exist. Furthermore, although the customer may aggregate all the claims he has against the broker, the aggregate amount ($74,000) does not meet the minimum amount in controversy requirement. For these reasons, subject matter based on diversity is not available. Federal question jurisdiction is available when the plaintiff, in his well-pleaded complaint, alleges a claim that arises under federal law. Anticipation of a federal defense or the fact that federal law is implicated by the plaintiff’s claim do not give rise to federal question jurisdiction; the plaintiff’s claim must arise under federal law. Here, the customer alleges that the broker violated federal securities law. That is sufficient to invoke federal question jurisdiction over the securities claim (which does not have an amount in controversy requirement or a complete diversity requirement). However, the claim for damages to the customer’s car is a state law claim, and federal question jurisdiction is not available. Thus, to be heard, the negligence claim must invoke supplemental jurisdiction. When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. Here, though, the customer’s negligence claim is not related in any way to the customer’s claim for violating federal securities law. As a result, supplemental jurisdiction is not available. Thus, (B) is the correct choice and (D) is incorrect. (C) is incorrect even though it contains a true statement of law, because there is no supplemental jurisdiction and thus no federal subject matter jurisdiction. (A) is too broad of a statement. When dealing with a single plaintiff against a single defendant, the plaintiff is allowed to join any number and type of claims against the defendant. Thus, if subject matter jurisdiction requirements could have been satisfied, the customer here could have joined all the claims he has against the broker. (When multiple plaintiffs or multiple defendants are involved, it is essential only that at least one of the claims arise out of a transaction in which all were involved.)
The plaintiff, who resides in the Southern District of State A, was involved in a three-car accident in the Northern District of State A. The plaintiff intends to file a negligence action against the other two drivers in federal district court. One defendant resides in the District of State B and the other resides in the District of State C.
In which federal district(s) is venue proper?
A. The Northern District of State A only.
B. The District of State B and the District of State C.
C. The Northern District of State A, the District of State B, and the District of State
D. The Northern District of State A, the Southern District of State A, the District of State B, and the District of State C.
Venue is proper only in the Northern District of State A. Federal venue is proper in (i) the district in which any defendant resides if all defendants reside in the same state; and (ii) the district in which a substantial part of the events or omissions giving rise to the claim occurred. Here, the accident occurred in the Northern District of State A, making that district a proper venue under prong (ii). However, given that the defendants here reside in different states, venue cannot be based on the residence of the defendants. Thus, choices (B), (C), and (D) are incorrect. Choice (D) is also incorrect because venue is not based on the residence of the plaintiff.
A defendant was charged with murdering his cousin, whose body was found near the defendant’s office. The prosecution alleged that the cousin, who lived in another state, confronted the defendant to tell him about an affair that the cousin was having with the defendant’s wife. The defendant denied having even seen the cousin for several weeks before he was murdered. The prosecution wishes to introduce a properly authenticated letter from the cousin to the defendant’s wife, dated the day before the cousin’s death, that stated: “I am going to go to your husband’s office and tell him face-to-face that he must let us be together.” Defense counsel objects.
How should the judge rule on the objection?
A. Overruled, because the statement in the letter falls under the present state of mind exception to the hearsay rule.
B. Overruled, because the statement in the letter is being offered to show the defendant’s motive for murder rather than for the truth of the matter asserted.
C. Granted, because the statement in the letter is hearsay and does not fall within any exception.
D. Granted, because the cousin’s state of mind is not in issue.
The judge should overrule the objection because the statement falls within the exception for statements of present state of mind. Under that exception, declarations of existing state of mind are admissible as circumstantial evidence to show subsequent acts of the declarant in conformity with that intent. Here, an issue in this case is whether the cousin confronted the defendant at his office, as the prosecution alleges. His statement that he was intending to do so is circumstantial evidence that he did so. It should therefore be admissible under the present state of mind exception.
(B) is incorrect. While the cousin’s confrontation with the defendant may have triggered the murder, the prosecution is offering the statement in the letter for its truth (i.e., that the cousin planned to confront the defendant and subsequently did so), in large part to rebut the defendant’s assertion that he had not seen the cousin in several weeks.
(C) is incorrect because, as discussed above, the statement falls within the hearsay exception for statements of present state of mind.
(D) is incorrect because, while the cousin’s state of mind is not directly in issue, it is relevant to show that he acted in conformity with that state of mind.
The neighbors to the north and south of a poorly maintained house, a mechanic and a doctor, decided to “send a message” by placing a smoke bomb on the owner’s front porch. The doctor and mechanic consulted with another neighbor, an army veteran who was known to be an explosives expert, to help them. The army veteran agreed, but unbeknownst to the two neighbors, the army veteran manufactured a bomb containing a lethal quantity of explosives because he wanted to make sure the owner had a good scare. He gave the bomb to the mechanic and doctor, along with a timed fuse. In the middle of the night, the mechanic set the bomb on the owner’s porch. A few minutes later, a huge explosion rocked the neighborhood. Although nobody was injured, the blast blew away the front of the owner’s house.
Who, of the following, is likely to be found guilty of attempted murder?
A. The doctor, mechanic, and the army veteran.
B. The army veteran and the mechanic, but not the doctor.
C. The army veteran, but not the doctor or the mechanic.
D. Neither the mechanic nor the doctor nor the army veteran.
None of these people would be guilty of attempted murder because, on these facts, they did not possess the specific intent to kill necessary for the crime of attempted murder. At common law, all attempts were specific intent crimes. Thus, before a criminal conviction for attempt would lie, it had to be established that the actor had the specific intent to engage in the behavior or to cause the harm prohibited by the criminal statute that the actor was charged with attempting to violate. Thus, before someone could be guilty of attempted murder, he had to possess the specific intent to kill. In this question, it is clear that the mechanic and the doctor did not have the specific intent to kill. Their intent was only to place a smoke bomb on the owner’s porch. The situation with respect to the army veteran’s intent is not quite as clear, but a fair reading of the facts indicates that he did not have a specific intent to kill. It is true that he made a bomb containing a lethal quantity of explosives, but the question goes on to state that he only intended to scare the slovenly owner. Had someone died in the blast, the army veteran could be found guilty of manslaughter due to his recklessness, or perhaps he could be found guilty of murder under the depraved heart theory. However, since no one died, he will not be guilty of attempted murder because there was no specific intent to kill. Thus (D) is correct, and (A), (B), and (C) are wrong.
The owner of a self-propelled riding mower had just started the engine to mow his front lawn when the clutch of the mower suddenly engaged, causing it to lurch forward rapidly and throw him off. By the time the owner caught up with the mower, it had started into the street. A motorist swerved to avoid the mower and struck a tree on the opposite side of the street. An investigation revealed that the sudden shift of the clutch was caused by a defective gear in the transmission.
If the motorist brings a negligence action for personal injuries and property damage against the owner, will she prevail?
A. No, because the owner was physically unable to react swiftly enough to prevent the harm.
B. No, because the manufacturer of the mower is liable for the defective gear in the mower.
C. Yes, because her damages were caused by the owner’s operation of a dangerously defective piece of machinery.
D. Yes, because a landowner owes a duty to passersby to exercise reasonable care in activities on his land.
The motorist will not prevail under these facts because the owner does not appear to have breached his duty of care to her. A prima facie case for negligence consists of: (i) a duty on the part of the defendant to conform to a specific standard of conduct for the protection of the plaintiff against an unreasonable risk of injury; (ii) breach of that duty by the defendant; (iii) such breach being the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property. While the owner owed a duty of care to the motorist because she was passing by his property while he was operating his riding mower, the facts do not suggest a breach of duty. Immediately upon starting the mower, he was thrown off by its sudden forward movement and could not catch up to it before it entered the street. Absent the owner’s breach of duty, the motorist cannot recover. (B) is incorrect because the fact that the manufacturer of the mower could be liable to the motorist because of the defective gear in the mower does not preclude the owner from also being liable if he had operated the mower negligently. Here, however, nothing suggests that he was negligent in starting the mower or failing to discover or guard against the defect, and choice (A) addresses his conduct while operating the mower. Hence, (A) is a better choice than (B) because it addresses the issue of the owner’s liability. (C) is incorrect because the motorist must prove that the owner knew or should have known of the defect and was therefore negligent in operating the mower while it was in such a defective condition. Merely showing the defective condition of the mower, without more, will not suffice to impose liability on the owner, and nothing in the facts indicates that the owner knew of the defect. (D) is incorrect even though a landowner does owe a duty of reasonable care to passersby, such as the motorist. As discussed above, nothing in the facts indicates that the owner breached that duty.
In order to protect its citizens from “loan sharks” and unscrupulous business practices, a state had an anti-usury statute that prohibited loans for an interest rate in excess of 12%. When interest rates rose throughout the nation and the federal reserve began lending money to banks at 11.5%, banks in that state could not profitably make mortgage loans. Consequently, only extremely wealthy persons who could afford to pay cash for a home were able to purchase homes or farms in the state.
If an appropriate party challenges the constitutionality of the anti-usury statute, how should the court rule?
A. The statute is constitutional, because the statute does not conflict with a specific federal statute.
B. The statute is constitutional, because the state acted properly under its police power in enacting the statute.
C. The statute is unconstitutional, because the statute denies nonwealthy people equal protection of the law.
D. The statute is unconstitutional, because it restrains interstate commerce.
The court should rule that the statute is constitutional. A state has the right, under its police power, to enact legislation for the health, safety, and welfare of its citizens, provided that such legislation is not in areas reserved to the federal government or preempted by federal legislation, and provided that a state does not unduly restrain interstate commerce. The legislation in question affects only that state’s banks and does not discriminate against other banks. The political process is considered the adequate method for bringing such statutes as the anti-usury statute in line with contemporary conditions.
(A) is incorrect because even if a state statute does not actually conflict with a federal statute, the state statute may still fail under the Supremacy Clause if it prevents achievement of federal objectives or Congress has indicated an intent to preempt an entire field. Thus, (B) is a better answer than (A).
(C) is incorrect because income level is not a “suspect” category, and the fact that the super-rich can purchase homes while everyone else cannot is an incidental result of economic conditions. Regardless of the interest rate, there will always be some citizens who cannot obtain mortgages.
(D) is incorrect because the legislation affects only that state’s banks. There may be a slight incidental effect on interstate commerce, but the legislation in no way discriminates in favor of that state’s banks.
A privately owned bus company operated over fixed city routes under a franchise granted to it by the city council. To enhance revenues, the bus company rented advertising space on its vehicles. Although the city received a certain fixed percentage of the fare revenues from the company, it received nothing from the advertising fees. The management of the bus company had learned through bitter experience that any advertising that could be characterized as “controversial” led to complaints from riders and sometimes to losses in revenue. To that end, management employs a firm “no controversial advertising” policy. Thus, they refused to take ads for X-rated movies, abortion clinics, political candidates, and anything else that might be deemed “controversial.” A candidate for city council was waging a populist campaign for the job and among his targets were the local utilities and the bus company. The candidate demanded that he be allowed to buy advertising on the buses, but the company’s advertising manager refused, citing the company ban on all political ads. The candidate filed suit in federal district court, asking that the court require the company to accept his ads.
Which of the following is the company’s best argument against the candidate’s constitutional claim?
A. The company is a privately owned company, and thus there is insufficient “state action” to invoke the United States Constitution.
B. Commercial speech receives less protection under the First Amendment than most other forms of speech.
C. Bus riders have First and Fourteenth Amendment rights to see the type of advertising they desire, and past experience has shown that there is substantial opposition by riders to controversial ads.
D. The candidate has many other sources of advertising available and he does not need ads on the company’s vehicles to get his message to the public.
The Constitution is inapplicable because the bus company is a private company. The Supreme Court has ruled that the grant of a franchise is not sufficient to create state action. [Jackson v. Metropolitan Edison (1974)] Thus, there is no basis for a First Amendment claim against the bus company.
(B) is wrong; the Constitution is inapplicable because of the lack of state action. Also, (B) is wrong based on the facts of the question. The speech restricted was political, not commercial. Thus, even though commercial speech receives less protection than political speech, this speech cannot properly be characterized as speech that seeks to induce business transactions.
(C) is wrong because the audience’s opposition to a message does not justify otherwise impermissible censorship. Also, (C) wrongly assumes that the Constitution applies.
(D) is wrong because the availability of alternative avenues of expression does not justify otherwise impermissible censorship. Moreover, it also wrongly assumes that the Constitution applies.
Twenty-five years ago, a property owner placed a large sewer line (to service a single-family house he built on the property) across a neighbor’s property without the neighbor’s permission. Four years ago, the owner tore down the house in preparation for the construction of a larger house on the land, and made an agreement with municipal authorities to take an easement across the neighbor’s property and install a new sewer line to service the house. After a long delay, the municipal authorities failed to perform their agreement, and the owner finally constructed the house last year using the existing sewer line. The state has a 20-year statute for acquiring property interests by adverse use.
If the neighbor attempts to enjoin the use of the sewer line to service the new house, will she prevail?
A. Yes, because the agreement with the municipal authorities estopped the owner from using the existing line to service the new house.
B. Yes, because the owner’s tearing down of the house and nonuse of the sewer line for several years constituted an abandonment of the easement.
C. No, because the original sewer line was a license which ripened into an implied easement.
D. No, because the use was within the scope of the prescriptive easement acquired.
(C)! The neighbor will not prevail. The owner has made an adverse use of the neighbor’s land since the sewer line was first constructed across it. The fact that the owner tore down the house on his property does not stop the prescriptive period from running, because the mere existence of the sewer line was an adverse use and there was no intent to abandon it. Therefore, the owner’s use ripened into a prescriptive easement 20 years after that use first began. Moreover, the use of the line to service the new house is within the scope of the easement by prescription because the same pipe in the same location will be used for the new house.
(A) is incorrect. By the time the owner constructed the new house, he had maintained the sewer line across the neighbor’s property for the statutory period and therefore had acquired an easement by prescription to continue to use that line. Once the owner obtained an easement by prescription over the neighbor’s property, that property right persists despite any actions by the municipal authorities with regard to the neighbor’s property, or any actions by the owner with regard to the authorities.
(B) is incorrect. An easement is not terminated merely because it is not used for a long period of time. It can only be extinguished when the owner clearly demonstrates by physical action an intent to permanently abandon it. Here, abandonment could have arisen if the owner had been able to connect to a new sewer line, but that did not happen.
(C) is incorrect. The owner never had a license. A license is a permissive use of property. The owner placed the sewer line across the neighbor’s property without her permission. Moreover, the use never ripened into an implied easement. Such an easement can only occur when there is a division of a large parcel of property into smaller parcels and there is a reasonable necessity for the owner of one of the parcels to continue to use rights over another part of the larger parcel. There is no such division of property here. Instead, the adverse use by the owner ripened into an easement by prescription.
A mechanic noticed that his neighbor had a “for sale” sign on his old car. The mechanic thought it would be fun to have an old car to fix up and customize, and he asked his neighbor how much he wanted for the car. The neighbor told him that he would sell the car for $400, and the mechanic responded that he would buy the car for $400. They agreed that the mechanic would come to the neighbor’s house by 6 p.m. the next day with the money. At 9:15 the next morning, the neighbor called the mechanic and told him that when he agreed to the sale the preceding day, he forgot that he had just put two new tires on the car and, therefore, would need to be paid an extra $50. The mechanic agreed to bring $450 in cash to his neighbor’s house at six o’clock that night.
Is the mechanic legally bound to pay his neighbor the additional $50?
A. Yes, because the original contract was not in writing.
B. Yes, because the contract, as modified, does not exceed the minimum dollar amount required to invoke the Statute of Frauds.
C. No, because no additional consideration was given for the oral modification.
D. No, because contracts for the sale of goods can only be modified by merchants.
The mechanic is bound to pay the neighbor the additional $50. A contract for the sale of goods may be modified without consideration to support the modification if the modification was sought in good faith. No writing is required under the Statute of Frauds unless the contract, as modified, is within the Statute. Here, the parties formed a contract for the sale of goods (a car) when the mechanic agreed to buy the car for $400. (B) is correct because the contract as modified is under $500, so it is enforceable, even though it is not evidenced by a writing.
(A) is incorrect because the fact that the original contract was not in writing is irrelevant. The original contract was for the sale of goods under $500 in value, and the Statute of Frauds does not apply. Thus, the mechanic could have enforced the original oral contract if he had not agreed to the modification.
(C) is incorrect because under UCC section 2-209, no consideration is needed for the modification of a contract for the sale of goods.
(D) is incorrect because all Article 2 contracts can be modified, if done in good faith.
A tourist was struck and killed at a street crossing by an automobile. The accident was witnessed by a bystander and by the tourist’s wife. The wife brought an action against the automobile driver for wrongful death, alleging excessive speed, failure to observe traffic signals, and defective brakes. A witness for the driver was called to testify that the driver enjoyed a reputation for being a safe and prudent driver based on his personal knowledge of the driver’s driving habits.
How should the trial judge rule on the witness’s testimony?
A. Admissible, because, where there are no unbiased eyewitnesses to an accident, reputation as a safe driver may be used to prove the driver acted in conformity with that reputation at the time in question.
B. Admissible, because the witness first testified that he has personal knowledge of the driver’s driving habits.
C. Inadmissible, because evidence of a reputation as a safe and prudent driver cannot be used to prove that the driver acted in conformity with that reputation at the time in question.
D. Inadmissible, because, in a civil case, character evidence may be used only after the plaintiff has attacked the character of the defendant.
The judge should rule the witness’s testimony inadmissible. This question involves the admissibility of propensity evidence. The driver’s witness is prepared to testify that the driver has a reputation for being a safe and prudent driver, which the driver plans to use to prove that, because he has a propensity for driving safely, he was in fact driving safely at the time of the accident. This is a classic case of the impermissible use of propensity evidence. The general rule is that evidence of character traits (here, safety and prudence) is inadmissible in a civil case to prove that a party acted in conformity with those traits on a particular occasion. [Fed. R. Evid. 404(a)] This case fits squarely within that general rule. Thus, (C) is correct. All the other answers are wrong because they each assume that propensity evidence is admissible under some circumstances in a wrongful death action. (A) indicates that such evidence is admissible if there are no unbiased eyewitnesses to the accident. (B) indicates that such evidence is admissible because the witness has personal knowledge of the character traits (the driver’s propensity for safety and prudence) that are the subject of his testimony. (D) indicates that such evidence is admissible if the plaintiff has attacked the character of the defendant. All of these answers miss the basic point-that propensity evidence is inadmissible in civil cases. Furthermore, (A) is wrong because it presumes that there are no unbiased witnesses to the accident, but the question makes clear that there was an unbiased witness: the bystander. (B) is also wrong because it indicates that the witness must first testify that he has personal knowledge of the driver’s driving habits before testifying about the driver’s reputation for safety and prudence. This answer confuses reputation testimony with opinion testimony. The witness’s testimony pertained to the driver’s reputation. To be a competent witness, the witness would have to have personal knowledge of the driver’s reputation. He would not have to have personal knowledge of the driver’s actual driving habits. Although perhaps not as nonsensical as (A) and (B), (D) is just as inaccurate, as it bears no similarity to anything in the rules of evidence pertaining to propensity evidence.
A consumer purchased an air compressor, designed for powering tools and inflating tires, to use in a remodeling project. The consumer discovered that the reservoir and nozzle for a paint compressor gun he owned fit the threads on the nozzle of his newly purchased air compressor, so he decided to use his compressor rather than buying the compressor that went with the spray gun when he needed to paint a fence. After painting for a few minutes, the paint reservoir on the spray gun exploded, causing severe injuries to the consumer. The consumer subsequently brought a strict products liability action against the air compressor manufacturer to recover for his damages.
Evidence at trial revealed the following: (i) The spray gun reservoir had exploded because the air compressor developed too much air pressure for use in a spray device; it was for this reason that the manufacturer did not manufacture a spray painting attachment for its compressor. (ii) The manufacturer purposefully chose an unusual threading for its compressor nozzle to prevent its use with most spray painting systems, but the spray gun that the consumer had was a foreign-manufactured model that happened to use the same threading. (iii) When used with the tools and attachments produced by the air compressor manufacturer, the air compressor was completely safe and suffered from no design or manufacturing defects.
If the jury finds for the manufacturer, what is the most likely explanation?
A. The manufacturer exercised due care in the design and manufacture of the paint sprayer.
B. It was not foreseeable that the compressor would be used by consumers to attach power spray devices.
C. The compressor suffered from no design or manufacturing defects when used in the intended manner.
D. The consumer misused the compressor when he attached it to his spray-painting gun.
If the jury finds for the manufacturer, it will be because the misuse by the consumer was not foreseeable. A manufacturer is liable for a defective product, even if the plaintiff misuses it, as long as that misuse is foreseeable. Foreseeability in this case is an issue for the trier of fact. If the jury finds that the misuse was not foreseeable, the manufacturer will prevail. (A) is incorrect because the consumer’s action is based on strict liability. (C) and (D) appear to be true based on the facts, but they ignore the key issue that the jury must decide, which is whether the consumer’s misuse was foreseeable.
A property owner owned a tract of commercial property that he conveyed in joint tenancy to his twin sons as a birthday present. Unfortunately, a few years after the conveyance, the property owner and his sons had a serious falling out over how to run the family business. The property owner no longer wished the sons to control valuable commercial property, and so he demanded that they return the deed with which he conveyed the property to them. The sons returned the deed, and the property owner destroyed it. A few months later, one of the twins learned that he was seriously ill and not likely to live much longer. He executed a quitclaim deed conveying “any interest I have in the commercial property conveyed to me and my brother from my father” to his daughter. The twin who conveyed the property subsequently died.
Who owns the property?
A. The living twin.
B. The property owner.
C. The living twin and the deceased twin’s daughter as tenants in common.
D. The living twin and the deceased twin’s daughter as joint tenants.
The living twin and the deceased twin’s daughter own the property as tenants in common. A conveyance of a co-tenant’s interest in joint tenancy property severs the joint tenancy, and that interest is subsequently held as a tenancy in common with the other co-tenants. Thus, (D) is incorrect. Because the joint tenancy with right of survivorship was severed before the deceased twin’s death, (A) is incorrect. Returning the deed to the property owner did not return ownership of the property to him; that would require a reconveyance. Thus, (B) is incorrect.
A motorcyclist had just bought a new motorcycle. One week later, while still learning how to ride the motorcycle, he saw a classmate from school whom he did not like walking along the sidewalk. He tried to scare him by swerving onto the sidewalk at a driveway, planning to swerve back onto the street at the next driveway just in front of the classmate. As the motorcyclist attempted to swerve back onto the street, the motorcycle’s front tire blew because of a latent defect, causing him to lose control of the steering. He attempted to apply the brakes, but due to his inexperience, hit the accelerator by mistake. The motorcycle struck and seriously injured the classmate. The classmate sues the motorcyclist for battery.
Who is likely to prevail?
A. The classmate, because the motorcyclist intended to frighten the classmate.
B. The classmate, unless the motorcyclist’s negligence in hitting the accelerator was the proximate cause of the accident.
C. The motorcyclist, because he did not intend to inflict bodily harm on the classmate.
D. The motorcyclist, because the injury was proximately caused by the defective front tire.
The classmate is likely to prevail. The motorcyclist intended to assault the classmate, because he drove at the classmate with the intent to scare him. Under the doctrine of transferred intent, the intent to assault is sufficient to establish a battery if a touching results. A battery requires: (i) a harmful or offensive touching to the plaintiff’s person; (ii) intent; and (iii) causation. The causation element is satisfied here because the motorcyclist set in motion the force which brought about the assault and subsequent battery. (C) is incorrect because the motorcyclist’s intent to commit an assault is sufficient. (B) is incorrect because the motorcyclist’s potential negligence in hitting the accelerator would not be sufficient to cut off liability for his battery. (D) is incorrect because the fact that the tire may have been defective would not qualify as an intervening force sufficient to cut off the motorcyclist’s liability. The classmate may have a separate claim against the motorcycle manufacturer on a products liability theory, but the motorcyclist remains liable for the battery.
A seller entered into a written land sale contract with a buyer on May 20, whereby the seller agreed to sell a home to the buyer for $60,000. The closing date was set at August 1. The buyer put up $6,000 as earnest money, as provided by the contract. The contract stated that if the buyer failed to perform by tendering the balance due on the house on August 1, the $6,000 could be treated as liquidated damages “at the option of the seller.”
On July 21, the week before the closing, the house burned to the ground because of a freak lightning strike during a thunderstorm. When August 1 arrived, the buyer refused to tender $54,000 to the seller. The buyer asked the seller for the refund of his earnest money because the house had been destroyed. The seller refused and filed suit, asking for specific performance. The buyer countersued, demanding refund of the $6,000 earnest money.
How should the court rule on the suits?
A. The court will order specific performance by the buyer.
B. The court will order the seller to return the $6,000 to the buyer because of frustration of purpose of the contract.
C. The court will award the seller $6,000 as liquidated damages.
D. The court will award neither party the relief sought because of mutual mistake.
The court should order specific performance by the buyer. Because land is considered unique, specific performance is always appropriate for the enforcement of a valid land sale contract. This option is available to either the buyer or the seller. The contract gave the seller the option of using the liquidated damages provision if the seller wished, but the seller has sued for specific performance. Because that is appropriate, it will be granted. It is not of significance that the house burned to the ground. When a contract for the sale of land is signed, equitable conversion takes place and it is, for all practical purposes, the buyer’s land and the buyer’s risk. Here, the risk of loss shifted to the buyer upon the signing of the contract. (B) is incorrect because frustration of purpose is not applicable. The doctrine of equitable conversion shifted the risk of loss to the buyer when the contract of sale was signed. The fact that an improvement on the property (the house) is no longer present is not relevant to the grant of specific performance. (C) is incorrect. Based upon these facts, the seller could request as a remedy either specific performance or liquidated damages of $6,000. Because the seller elected the specific performance remedy, the court will not award liquidated damages. (D) is also incorrect because there are no facts which would indicate mutual mistake. The burning down of the house would not qualify.
