Mixed MBE Missed Questions

Question 1

Does a quitclaim deed negate the implied covenant to provide marketable title?

Answer 1

No, EVERY land sale contract has an implied covenant of marketable title.

Question 2

What two things must be true in order for a promise to be supported by consideration?

Answer 2

(1) The promisee is giving up something of value or circumscribes his liberty in some way to suffer a legal detriment; AND
(2) The promisor makes his promise as part of a bargained-for exchange for the promisee’s legal detriment.

Question 3

May former testimony of a now unavailable witness (that was given under oath with the opportunity to cross-examine) be admissable? What may be the part against whom such a statement is admitted do?

Answer 3

Yes, however, the party against whom such a statement is admitted may still impeach the credibility of the witness with evidence that would be admissible if the witness had testified.

Question 4

What are crimes of dishonesty (therefore automatically admissible to impeach)? What are some crimes that do not fall in this category?

Answer 4

Crimes that do involve dishonesty: Involve an element of deceit, untruthfulness, or falsification.

Crimes that do not fall into the category: Theft offenses, like burglary.

Question 5

Does federal or state law govern claim-preclusion (res judicata) coming from a federal court sitting in diversity?

Answer 5

Federal common law.

Question 6

When is a statement of an opposing party admissable?

When is a statement against interest admissable?

Answer 6

A statement of an opposing party is not hearsay and admissable.

A statement against interest is an exception to hearsay only available when the declarant is unavailable.

Question 7

When there is an affirmative defense in a criminal case (like self-defense), may a state require the defendant to prove the defense?

Answer 7

Yes, by a preponderance of the evidence.

Question 8

Is a wrongful threat the same thing as undue influence?

Answer 8

No, undue influence is a defense based on lack of capacity.

Question 9

What is the standard applied to a JMOL or RJMOL?

Answer 9

Whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in the other party’s favor.

Question 10

What is the standard for a motion for a new trial?

Answer 10

Whether the verdict is against the weight of the evidence.

Question 11

What is the only unity requirement to create a tenancy in common?

Answer 11

Unity of possession.

Question 12

Do tenants in common owe eachother fiduciary duties?

Answer 12

No.

Question 13

Can two adverse possessors claim title simultaneously? Why?

Answer 13

Yes, the exclusive requirement requires exclusivity from the owner of the land or the public at large, not two adverse posessors taking adverse posession.

Question 14

May an officer use deceit to gain entry?

Answer 14

Yes.

Question 15

Does solicitation merge with the pricipal crime? What does not merge?

Answer 15

Yes, a defendant may not be convicted of both solicitation and the principal offense.

Conspiracy does not merge.

Question 16

What types of suits does the Eleventh Amendment bar?

Answer 16

Suits brought by a private party or foreign government against a state, it does NOT bar a suit by the United States against a state.

Question 17

What is the doctrine of lapse?

Answer 17

Lapse occurs when the beneficiary or divisee under the will predeceases the testator, invalidating the gift. NOT when the gift is sold, and the gift no longer exists in the estate, it is called an “ademption”.

Question 18

What are the elements of res ipsa loquitur?

Answer 18

(1) The event that happened is one that usually does not occur absent the negligence of a party;
(2) The harm was caused by something in the defendant’s exclusive control;
(3) The plaintiff is not the one who caused the event to occur.

Question 19

When can a mortgagor who has defaulted request that the mortgagee accept a deed in lieu of forclosure?

Answer 19

As long as both sides agree, and the transaction is reasonable and fair under the circumstances, it will be allowed.

Question 20

May a buyer in a real estate contract seek specific performance for breach of the sales contract by the seller?

Answer 20

Yes, damages are inadequate because the buyer is getting land, which is unique.

Question 21

What is the test for determining if restriction of commercial speech is constitutional?

Answer 21

(1) Serves a substantial government interest;
(2) Directly advances the asserted interest; and
(3) Is narrowly tailored to serve the substantial interest.

Question 22

On mortgages, are two year prepayment prohibitions valid and enforcable? Are prepayment fee provisions valid and enforceable?

Answer 22

In general, yes, both are valid and enforceable.

Question 23

In exceptional circumstances, when the jury has suffered depletions past its alternates, can the parties agree to be bound by a verdict rendered by fewer than six jurors?

Answer 23

Yes.

Question 24

When can a claim be added in a federal case (even if there is no diversity jurisdiction) by a defendant using supplemental jurisdiciton?

Answer 24

When the claim arises from the same common nucleus of operative fact.

Question 25

What amendment does the fundemental right to travel arise under, what does it encompass?

Answer 25

Not explicitly granted, but is protected by the Fourteenth Amendment. It encompasses the right: (1) to leave and enter another state; and (2) to be treated equally and enjoy the same privileges and immunities as other citizens of that state if they become permanent residents.

Question 26

Is a contract for the sale of land required to be in writing? Is a modification to that contract required to be in writing? Is a recession or abandonment required to be in writing?

Answer 26

Yes. Yes. No, if mutually executed or promisorry estoppel is present, oral recission is allowed.

Question 27

If a court has general personal jurisdiction established over a parent company, does the court also have personal jurisdiction over the subsidiary if both companies are parties in the action?

Answer 27

No, the court must have a basis for personal jurisdiction over each party seperately.

Question 28

When can a party file a motion to strike an insufficient and irrelevant defense?

Answer 28

Within 21 days of service of the pleading.

Question 29

What is the deadline for properly requesting a jury trial? What should you look for in starting the timer?

Answer 29

The demand must be made within 14 days after the last pleading related to the issue is served or else the demand is waived. Motions to dismiss are not a pleading on the issue, so look for an answer to start the timer.

Question 30

What are the limitations of subject matter on cross examination of a witness?

Answer 30

(1) Subject matters covered on direct examination; and (2) The credibility of the witness.

Question 31

Can you bring up falsifying tax returns on cross examination in order to impeach the credibility of a witness? Why?

Answer 31

Yes, it would speak to the witness's character for untruthfulness.

Question 32

What is the exception to the Fair Housing Act? What does not fall under the exception?

Answer 32

If a landlord has no more than four units in one building and one is occupied by the owner. You still cannot advertise or rental preference or discriminate even if you fall in the exception...

Question 33

Does a report or recorded recollection need to be made or adopted by a witness if it is used strictly to refresh the memory of the witness on the stand?

Answer 33

No, nearly anything may be used to refresh a witness's recollection, irrespective of admissibility.

Question 34

Is horizontal privity required to bind a sucessor in a covenant?

Answer 34

No.

Question 35

When is a state acting as a market participant (and therefore not violating the Commerce Clause)?

Answer 35

When it is buying and selling products, hiring labor, in general acting like a company.

Question 36

Is a sidewalk next to a capitol building a public forum for purposes of a time, place, and manner restriction?

Answer 36

Yes, and therefore it must comply with the requirements of being narrowly tailored to an important/significant government interest and leave open other channels of communication.

Question 37

What are the TWO requirements in order for a state tax against the federal government to be valid?

Answer 37

The tax must be (1) non-discriminitory and (2) indirectly imposed on the federal government.

Question 38

Is a prior identification by a witness admissable in court if the witness is unable to currently identify a person?

Answer 38

Yes, prior identification is not hearsay.

Question 39

What intent does attempted murder require?

Answer 39

The specific intent to commit a murder, there is no attempted murder in depraved heart murder (reckless disregard for human life).

Question 40

In a UCC contract, is quantity an essential term needed to satisfy the Statute of Frauds?

Answer 40

Yes.

Question 41

Who holds the marital privilege to prevent marital communication testimony?

Answer 41

Under the federal marital communiations privilege, both spouses, the husband and the wife, jointly hold the privilege. Therefore, either spouse can invoke the privilege to bar the other from testifying as to marital communications.

Question 42

What is one of the defenses to a nuisance claim?

Answer 42

Plaintiffs can assume the risk by "coming to the nuisance".

Question 43

What is the standard for an appelate court to overturn a trial court's finding of fact?

Answer 43

The finding of fact must be clearly erroneous, this is a very high standard to meet.

Question 44

On cross-examination, may a witness be asked about prior bad acts of specific instances of conduct?

Answer 44

Yes, if it is probative of his character for truthfulness and bears on his credibility.

Question 45

What are owners and operators of commercial properties in highly regulated industries expectation of privacy under the Fourth Amendment?

Answer 45

They have lower expectations of privacy because the state's interest in the regulations are heightened, warrantless inspections of those commercial properties will be found reasonable under the Fourth Amendment.

Question 46

How can a partially negligent plaintiff still recover in a contributory negligence jurisdiction?

Answer 46

By showing the defendant had the last clear chance to avoid an accident and failed to do so, and therefore under the last clear chance doctrine, the defendant is liable for negligence.

Question 47

Does a grantee need to sign a deed containing a restrictive covenant for the covenant to be enforceable?

Answer 47

No, if the grantee records it, it creates constructive notice, and if all other elements are met a equitable servitude is created.

Question 48

When there is a neutral law of general applicability that impacts a religious practice, what level of scrutiny is that law required to meet?

Answer 48

Rational basis review. Reasonably related to a legitimate state interest.

Question 49

What is an illusory promise?

Answer 49

A statement that appears to be promising something but does not actually commit the promisor to anything at all. "I'll buy it if I feel like it." = Illusory "I will pay as soon as I am able" = Non-Illusory

Question 50

Is assumption of risk a defense to intentional torts?

Answer 50

No, including battery. (Horse jockey example).

Question 51

What are the two elements of negligent infliction of emotional distress?

Answer 51

(1) The plaintiff was within the "zone of danger"; and (2) The plaintiff suffered physical symptoms from the distress.

Question 52

What is the "good faith" exception to the warrant requirement? What are the effects?

Answer 52

Normally, if a search warrant is invalid for any reason any search done pursuant to it will be unconstitutional (exclusionary rule applies). However, if the police reasonably believe that the warrant they have been issued is valid, the exclusionary rule will not apply.

Question 53

Does private violation of a statute alone require evidence to be suppressed?

Answer 53

No, the private gathering of evidence must be done acting on behalf of the authorities.

Question 54

Do motions for Rule 11 sanctions need to be made seperately? What is the safe harbor period?

Answer 54

Yes, and cannot file within the 21 day safe harbor period.