practice MBE questions concepts

Question 1

To prove a design defect for strict products liability, what must the plaintiff show?

Answer 1

the plaintiff must show that the defendant could have made a safer product without serious impact to the product’s price or utility.

Question 2

under what circumstances can a judge issue a directed verdict? hint jury

Answer 2

judge may issue a directed verdict against a party if she determines the burden of proof for that party’s issue has not been met (i.e. a reasonable jury could not reach a decision in favor of that party)

Question 3

for a warranty deed, The three present covenants—(1) covenant of seisin, (2) covenant of right to convey and (3) covenant against encumbrances—are breached at

Answer 3

the time of delivery (cause of action arises upon delivery).

Question 4

for a warranty deed, The three future covenants—(1) covenant for quiet enjoyment, (2) covenant for warranty and (3) covenant for further assurances—are breached if

Answer 4

the grantee is disturbed while in possession

Question 5

T or F when the Plaintiff is calling Defendant as the plaintiff’s own witness, cross-examination by Defendant’s attorney will not be adversarial. It will be as eliciting testimony normally found through direct examination. As such, a judge is not required to limit the scope of Defendant’s attorney’s cross-examination to matters covered in direct examination.

Answer 5

True

Question 6

T or F The rule is that the offeree must have notice of a revocation of an offer in order for the revocation to be effective.

Answer 6

true

Question 7

T or F An individual has a reasonable expectation of privacy in the immediate area surrounding the home, but not in the open fields surrounding the home. Open fields—even if enclosed with a fence—are not protected by the Fourth Amendment.

Answer 7

True

Question 8

An easement is a grant of a non-possessory interest in land that entitles a person to use the land possessed by another (aka the servient land). Easements can be terminated as follows: Mnemonic END CRAMPS

What will NOT terminate an easement?

Answer 8

(1) estoppel,
(2) necessity end
(3) destruction of servient tenement by eminent domain

(4) condemnation of servient tenement by eminent domain,
(5) release
(6) abandonment by physical act of holder,
(7) merger,
8) prescription. Expanded use, however, will not terminate an easement.
(9) state conditions,

Question 9

The court must decide any preliminary questions about?

T or F In so deciding, the court is bound by evidence rules, except those on privilege.”

Answer 9

whether a witness is qualified, a privilege exists, or evidence is admissible

False, the court is not bound by evidence rule except those on privilege.

Question 10

Under the common law, the rule is that contract provisions expressly prohibiting oral modification or requiring writing for such modifications are ________.

Answer 10

ignored.

Question 11

The Respondeat Superior doctrine states that if an employee commits a tort in the “scope of her employment,” her employer will be vicariously liable (i.e. jointly liable with the employee). However, an employer is generally not vicariously liable for the intentional torts of employees unless?

Answer 11

the intentional tort involves actions specifically authorized by employer,

the nature of employment, or

acts motivated by the desire to serve the employer.

Question 12

T or F, an employer can be found liable for intentional torts under a negligence theory.

Answer 12

True

Question 13

How can constructive notice be established?

Answer 13

Constructive notice can be through inquiry or record. Inquiry notice is based on facts that a reasonable investigation of the land would reveal. Record notice is based on facts that a reasonable search of public records would reveal.

Question 14

If an easement benefits its owner in the use and enjoyment of her land, it is appurtenant to that land. What does an easement appurtenant require?

An easement appurtenant attaches to?

Answer 14

requires two pieces of land: the land benefited (i.e. dominant tenement), and the land burdened (i.e. servient tenement).

attaches to the land, not its owner, and therefore passes automatically with the dominant tenement.

Question 15

A land sale contract usually precedes the actual transfer of the land (i.e. the closing). There is an implied promise by a seller in a land sale contract to deliver marketable title at the closing. What remedy is available if one refuses to close?

Answer 15

Generally, specific performance is available for sale of real estate contracts.

Question 16

T or FA joint tenant can destroy the right of survivorship by severing the joint tenancy. If severed, a joint tenancy becomes a tenancy in common. For example, an inter vivos conveyance of an interest in the joint tenancy without the knowledge or consent of the other joint tenant(s) severs the joint tenancy as to the conveying joint tenant’s interest. The resulting tenancy in common is freely devisable, descendible and alienable.

Answer 16

True

Question 17

The rule is that each co-tenant for a tenancy in common must pay her share (i.e. in proportion to?

Answer 17

the tenant’s ownership interest) of the taxes.

Question 18

The general rule is that for an executory contract where simultaneous performance is possible, each party must

Answer 18

first tender performance before a duty will be imposed on the other party to perform.

Question 19

T or F Conspiracy is an agreement between two or more people to commit a crime. The rule is that when a statute was written to protect a specific class of people, a person within that class cannot be found guilty of the crime and, therefore, cannot be guilty of a conspiracy to commit that crime.

Answer 19

True

Question 20

In an installment sales contract (i.e. a contract that requires or authorizes multiple shipments in installments with multiple payments), a buyer can reject an installment delivery only if the nonconformity

Answer 20

substantially impairs the value of that installment and it cannot be cured.

Question 21

Deficiency is a judgment against the debtor if the sale proceeds are less than the amount of the loan, in which case the debtor is personally liable if the proceeds of the sale do not satisfy the debt and the mortgagee can bring an action against the debtor to recover the deficiency. If the foreclosure sale results in a surplus, the surplus is distributed in the following order:

Answer 21

(1) expenses of sale, attorneys’ fees and court costs,
(2) accrued interest on foreclosed mortgage,
(3) junior lienholders,
(4) debtor.

Question 22

the credibility of a witness may be attacked by any party, including the party calling him. Impeachment by evidence of bias, interest or motive is allowed through

Answer 22

cross-examination or extrinsic evidence.

Question 23

The Supreme Court has set out a four-part test for state and local taxes on interstate commerce to be valid under the Commerce Clause. The tax must

Answer 23

(1) not discriminate against out-of-state competition,
(2) be applied to an activity that has a substantial nexus with the taxing state,
(3) be fairly apportioned to the activities taking place in the taxing state and
(4) be fairly related to services provided by the taxing state.

Question 24

Define Malice

Answer 24

Malice is an intentional or reckless disregard of an obvious or known risk.

Question 25

In order to be guilty of attempt, the defendant must: What type of crime is attempt? (specific or general?)

Answer 25

(1) have intended to commit the crime and (2) took a substantial step towards completing the crime. Regardless of the underlying crime, attempt is always a specific intent crime (i.e. the specific intent to carry out the target offense). The intent required to actually commit the target crime (e.g. specific, general, malice, etc.) is irrelevant to attempt.

Question 26

T or F Solicitation is inciting, urging, counseling, or commanding another to commit a crime with the specific intent that the person solicited commit the crime. A solicitor, who solicits and then withdraws, remains guilty for solicitation but avoids accomplice liability.

Answer 26

True

Question 27

A private nuisance is an unreasonable interference with the plaintiff's use and enjoyment of her land. The interference must be substantial (i.e. offensive, inconvenient or annoying to the average person) and unreasonable. The defendant's conduct is unreasonable if

Answer 27

the harm to plaintiff outweighs the utility of the defendant's conduct, or the harm caused to the plaintiff is greater than the plaintiff should be required to bear without compensation. the harm to plaintiff outweighs the utility of the defendant's conduct, or the harm caused to the plaintiff is greater than the plaintiff should be required to bear without compensation.

Question 28

T or F The mere fact that a criminal is illegally carried, against his will, into the United States from a foreign country, with no reference to extradition treaties, does not render his subsequent trial and conviction, based upon jurisdiction regularly acquired by his presence in the country, invalid, as tending to deprive him of liberty "without due process of law."

Answer 28

True

Question 29

If a person acts as an accomplice what crime would they be charged with?

Answer 29

the same crime that the principal engaged in and that the accomplice participated in

Question 30

T or F, a prosecutor can charge a defendant with solicitation or accomplice liability but not both

Answer 30

True

Question 31

Accomplice liability ACE

Answer 31

Aid, Counsel, and encourage

Question 32

Elements of conspiracy we agree to pursue unlawful acts to help the cause

Answer 32

1. agreement between 2 or more to commit a crime 2. intent to enter into an agreement 3. intent to pursue an unlawful objective 4. overt act in furtherance of conspiracy

Question 33

elements of attempt

Answer 33

1. intent to commit the underlying crime | 2. an overt act in furtherance of committing the crime

Question 34

accessory after the fact

Answer 34

An accessory after the fact is someone who shields, shelters or assists another knowing that he has committed a felony in order to help the felon escape arrest, trial or conviction. The felony must be complete at the time aid is rendered.

Question 35

T or F transferred intent does not apply to attempt.

Answer 35

True

Question 36

unavailable, declarant is one who SAILS:

Answer 36

Stating a claim for privilege, Absent from the jurisdiction, Ill or dead, Lacks memory, or Stubbornly refuses to testify.

Question 37

Generally, evidence obtained in violation of the 4th Amendment is not admissible under the exclusionary rule. However, there are limitations on this rule for situations where the rule will not apply, even if there were violations are SICK

Answer 37

Standing (where the person who is trying to suppress the evidence does not have standing to challenge the search), Impeachment (evidence can still be used to impeach the defendant’s testimony), Civil and other proceedings (unconstitutionally obtained evidence can be used in other proceedings), Knock and announce rule (violations of this rule will not result in exclusion).

Question 38

An out of court statement is a valid, non-hearsay use if it KILL-SMe

Answer 38

K - used to show the declarant's knowledge IL - statement of independent legal significance L - used to show effect on listener SM - used to show state of mind

Question 39

Hearsay Exceptions - Unavailable Witness FaT DD HIC doesn't need to be available PRISM = Unavailable

Answer 39

``` FaT - Former Testimony DD - Dying Declaration H - personal or family History I - statement against Interset C - statements offered against party that wrongfully Caused D's unavailability ``` ``` P - Privilege R - Refusal I - Illness or Death S - Subpoena M - no Memory of subject matter ```

Question 40

Lay person can give opinion if based on his VISES

Answer 40

``` V - Voice or handwriting I- Intoxication S - Speed of Car E - Emotional State S - Sense Recognition ```

Question 41

Under the privilege of arrest defense, a private citizen may arrest another without warrant if:

Answer 41

(1) the private citizen has reasonable grounds to believe that a felony has been committed and that the suspect committed the felony, and (2) a felony was actually committed.

Question 42

T or F, intent for purposes of trespass requires that the D intended to trespass on someone else's land

Answer 42

False, intent only requires intent to enter the land, not an intent to trespass.

Question 43

Does a change in zoning regulation constitute a taking and therefore require just compensation to those not in compliance?

Answer 43

No,

Question 44

T or F a deed's transfer is void as a matter of law

Answer 44

True

Question 45

The general rule for the fair housing act is that an owner may not discriminate against a protected class (race, gender, national origin, religion). what are the two exceptions? 1. single family housing 2. owner of a 1-4 building who lives in one of the rental units

Answer 45

1. an owner of a single family house may discriminate against a protected class in either renting or advertising of the home as long as he does not own more than 3 single family homes. 2. An owner of 1-4 unit building who lives in one of the units may discriminate in renting the units but not discriminate in advertising a housing rental.

Question 46

for purposes of joint and several tortfeasors is evidence required that they acted in concert?

Answer 46

no

Question 47

A mutual mistake is a defense to nonperformance of a contract if:

Answer 47

(1) the mistake is in regard to subject matter of the contract, not the value; (2) the mistake has a material adverse effect on the agreement; and (3) the adversely affected party did not assume the risk of mistake.