MBE Simulated Wrong Qs Flashcards
Learn from errors
Civ Pro
A three-car accident occurred in which the drivers were a citizen of State A, a citizen of State B, and a citizen of State C. The State A citizen filed a negligence action against the other two in federal district court and lost his case.
After judgment, may the State C citizen assert and maintain a negligence action against the State B citizen seeking damages for the injuries the State C citizen sustained in the same accident?
A. Yes, because, while the State C citizen could have asserted the claim as a cross-claim in the prior action, he may wait and assert it as an independent action.
B. Yes, because the State C citizen could not have asserted the claim in the prior action and thus may assert it independently.
C. No, because the State C citizen’s claim was a compulsory cross-claim in the prior action and, since it was not asserted as a cross-claim in that action, it is now barred.
D. No, because the State C citizen’s claim is barred by claim preclusion.
A is the correct answer.
D is the wrong answer bc claim preclusion = same P vs same D. Here, the D is now the P, so it is not barred by claim preclusion.
Torts
A motorist was driving to a luncheon in a car that he knew did not have operating headlights. On the way there he was rear-ended by another driver who had been driving 20 m.p.h. over the speed limit posted on that stretch of road. He suffered personal injuries and his car was extensively damaged. The jurisdiction makes it a misdemeanor to drive a vehicle that does not have operating headlights.
If the motorist brings an action against the other driver and the above facts are established, will he prevail?
A. Yes, because the other driver violated the speeding statute, but the motorist’s damages will be reduced because of his violation of the headlight statute.
B. Yes, because the other driver violated the speeding statute, and the motorist’s damages will not be reduced despite his violation of the headlight statute.
C. No, because the motorist’s violation of the headlight statute constitutes negligence per se.
D. No, because the motorist has not established that driving 20 m.p.h. over the speed limit created an unreasonable risk of injury to others.
Correct answer is B.
D is incorrect because negligence per se establishes duty and breach. The speeing statute was made to protect the class of people from the type of harm suffered.
Contracts
Two brothers who were certified public accountants worked together at a large accounting firm practicing their chosen profession. The older brother was concerned about his younger brother’s apparent inability to show up at his job by 9 a.m. each morning, sober and clear-eyed. One day, after the younger brother showed up late for work yet again, the older brother told him that if he would show up at the office sober and ready to work by 9 a.m. each morning for the next 10 months, he would pay him $15,000 at the end of that time. The younger brother accepted the offer and complied with its terms from that day forward. Nine months later, the older brother died unexpectedly. One month after that, the younger brother filed a claim with his brother’s estate for the $15,000.
Will the younger brother prevail in his claim?
A. No, because he will be unable to prove the terms of the oral contract between him and his brother, because his brother is dead.
B. No, because his brother’s offer to pay was terminated on his death.
C. Yes, because he has performed under a valid contract, and thus his brother’s estate must now perform.
D. Yes, because he changed his position for the worse in reliance on his brother’s promise, and thus his brother’s executor is estopped from denying that the contract existed.
Correct answer is C. Brother giving up something he had legal right to do = consideration
B is wrong because because an offer will not be terminated by the death of the offeror if the offeror’s power to revoke is limited by law, such as in the case of a valid unilateral contract. Here, the younger brother has begun performance, making the offer irrevocable during the time he was given to complete performance
contracts - remedies
A wholesaler who sold hair-care products to beauty salons and spas contracted to purchase 20 hand-held ionic hair dryers to be delivered no later than May 1. She paid for the hair dryers at the time she placed her order. When the hair dryers were delivered on May 1, the wholesaler noticed that they were hot-air, and not ionic, hair dryers. She immediately contacted the manufacturer, which refused to grant the wholesaler any remedy.
If the wholesaler decides to keep the hair dryers and brings a claim for breach of contract against the manufacturer, which of the following awards is most likely?
A. Nothing, because the wholesaler waived her rights when she paid for the hair dryers in advance.
B. Nothing, because the wholesaler decided to keep the nonconforming hair dryers.
C. The difference between the value of the ionic hair dryers and the value of the hot-air hair dryers.
D. The difference between the contract price and the cost of buying conforming goods.
Correct answer is C.
The wholesaler is entitled to damages based on the difference between the value of the ionic hair dryers and the value of the hot-air hair dryers that she received. If a buyer accepts nonconforming goods, the buyer may recover warranty damages. The basic measure of warranty damages is the difference between the value of the goods delivered and the value they would have had if they had been as warranted in the contract, plus incidental and consequential damages.
D is incorrect bc it is a measure for cover in the event the wholesaler REJECTED the goods.
Con Law
It was common practice in a particular state for a security interest in land to be structured as a deed absolute, which gave a lender absolute title to the borrower’s property as security for the loan. The lender would reconvey only on complete payment of the loan by the debtor party, and could dispose of the land immediately without a foreclosure sale on default. A new governor of the state whose campaign platform was built around abolishing the deed absolute mortgage encouraged the legislature to enact a bill that immediately outlawed use of the deed absolute, declaring that all such deeds would be considered mere liens against the secured property. The law applied not only to loans made in the future, but also to the thousands of such loans in existence at the time the legislation was passed. As soon as the governor signed the legislation, lending institutions and individuals who had loaned money secured through deeds absolute challenged the constitutionality of the new law.
What is the strongest argument that the challengers can make?
A. As applied to loans outstanding at the time the bill was enacted, the law is an ex post facto law, and such laws are banned by the federal Constitution.
B. Lenders using the deed absolute have been singled out by the governor and his followers in the legislature as political scapegoats, and such discrimination against the lenders violates the Equal Protection Clause.
C. Lenders had property rights in the secured property and such rights were summarily abrogated by the new law, constituting an unconstitutional taking of property without due process of law.
D. As applied to loans outstanding at the time the bill was enacted, the law impairs the contract rights of the lenders and such rights are guaranteed by the Contracts Clause of the federal Constitution.
Correct answer is D. Issue is contract clause of Fed constitution.
Contracts Clause prohibits states from retroactively and substantially impairing contract rights unless the governmental act serves an important and legitimate government interest and is a reasonable and narrowly tailored means of promoting that interest.
Approach:
Does it affect exisiting contracts?
Substantial impairment?
Legitimate gov interest? Is it narrowly tailored?
property
A homeowner borrowed $50,000 from a bank, secured by a mortgage on his home. Shortly thereafter, the homeowner sold his home to a buyer for $70,000 by a deed containing a recital signed by both parties that title passed **“subject to” the bank’s mortgage, “which obligation grantee expressly assumes.” **The buyer paid the homeowner $20,000, took possession of the house, and began making monthly payments of principal and interest to the bank. A few years later, a chemical manufacturing firm built a huge sulfur processing plant just down the road from the home, which caused the house to immediately decline in value to $35,000. Subsequently, the buyer stopped making the monthly payments to the bank. The bank exercised its contractual right of nonjudicial foreclosure and sold the house at a public auction for $34,000. The bank then brought suit against the homeowner and the buyer for $14,000, the difference between the proceeds of the foreclosure sale and the $48,000 principal remaining due on the original loan to the homeowner. The jurisdiction does not bar deficiency judgments.
Against whom should the bank be granted a judgment for $14,000?
A. Both the homeowner and the buyer.
B. Only the homeowner.
C. Only the buyer.
D. No one.
Correct answer is A.
DONT GET TRICKED BY THE “SUBJECT TO” WHEN IT ALSO SAYS “WHICH OBLIGATION GRANTEE EXPRESSLY ASSUMES” !!!
B is wrong because deed was not subject to morgage but ASSUMES = buyer and original borrower are responsible!
Evidence
The defendant is charged with having been one of two men who robbed a tavern and its patrons at gunpoint at 5:30 p.m. on December 16.
The defendant calls a witness to testify that he was at the defendant’s house at about 9:30 a.m. on December 16, and that as he was leaving, the defendant said to him, “I’m going to my mother-in-law’s house this afternoon for a birthday party.”
Is the witness’s testimony admissible?
A. No, it is hearsay not within any exception.
B. No, it is irrelevant.
C. Yes, it is not being offered to prove the truth of the matter stated, so it is not hearsay.
D. Yes, it is hearsay within an exception, and thus admissible.
Correct answer is D. Present state of mind exception. “I’m going to my mother-in-law’s house this afternoon for a birthday party.” = present intent / state of mind
C is incorrect because the evidence is being offered to prove that he was somewhere else at a given time, so it is hearsay.
crim law
A young couple agreed to break into an elderly woman’s house to steal a painting, but they were arrested shortly after they pried open the house’s back door. Both were charged with conspiracy to commit larceny, among other crimes. At her trial, the woman testified that she suspected the man of being a thief, that she agreed to the plan in order to catch him, and that she had made an anonymous telephone call to the police alerting them to the crime to enable them to make an arrest “in the act.” The jurisdiction follows common law conspiracy rules.
As to a charge of conspiracy to commit larceny, if the jury believes the woman, it should find her:
A. Not guilty, because she did not intend to steal.
B. Not guilty, because she prevented the theft from occurring.
C. Guilty, because there was an agreement.
D. Guilty, because she is not a police officer, and thus cannot claim any privilege of apprehending criminals.
Correct answer is A. conspiracy requires intent to enter into agreement with another and intent to commit the act agreed upon in the agreement.
evidence
A bank was robbed on March 18. As the perpetrator escaped, she was struck in the right leg by a bullet fired by a bank guard. In July, the police arrested the defendant at the home of her mother and charged her with the bank robbery.
At trial, the prosecution called the defendant’s mother to the stand and asked her if the defendant had a surface wound on her right leg when she came home on March 18. The mother answered, “No.” The prosecution then asked the mother if she had been convicted of bank robbery five years earlier and sentenced to two years in a federal penitentiary. In fact, the mother had been so convicted, and the prosecution possessed a certified copy of that conviction. The defendant’s attorney objected.
Should the trial court allow the questions?
A. No, because proof of prior crimes to impeach credibility is not permissible during direct examination.
B. No, unless the probative value of the evidence outweighs its prejudicial effect.
C. Yes, unless the probative value of the evidence is substantially outweighed by the danger of unfair prejudice.
D. Yes, regardless of how unfairly prejudicial the evidence is.
Correct answer is C. B is incorrect because that is the standard for when the defendant is on the stand. C is the standard for when a non-defendant is on the stand.
Defendant on stand = ADMISSIBLE if probative value outweighs prejudicial effect
Non-D on stand = ADMISSIBLE unless probative value is substantially outweighed by prejudicial effect
torts
A well-known local businesswoman was the featured speaker at an annual business dinner. Just as she was heading for the podium to deliver her speech, another guest speaker who was already on the platform kicked a circular napkin ring into the businesswoman’s path. Not seeing the ring, she slipped on it as she was stepping onto the platform and almost fell to the floor. Although she was not hurt physically, the businesswoman was very embarrassed by being made to look so foolish in front of a group of her peers and colleagues.
In addition to the above facts, what will the businesswoman need to establish to recover damages against the other speaker for her embarrassment?
A. That the other speaker was negligent in kicking the napkin ring into her path.
B. That the other speaker knew that the businesswoman would slip on the napkin ring.
C. That the other speaker acted out of spite against the businesswoman.
D. No additional facts.
THIS IS A BATTERY QUESTION!!!
Correct answer is B. Battery = intentional tort. Answer B would make the offensive touching intentional.
