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Bar Passage Seminar Program

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1 Bar Passage Seminar Program
BYU Law School Seminar #2

2 MBE Basics Review Contains 200 multiple choice questions, 190 of which are scored 100 questions in 3 hours 1.8 minutes per question 33 questions per hour Subject areas: Constitutional Law (31), Contracts (33), Criminal Law and Procedure (31), Evidence (31), Real Property (31), and Torts (33).

3 When to eliminate an answer choice
MBE Strategy Review MBE Question Strategy When to eliminate an answer choice Identify the area of law by reading the call of the question Scan the answer choices (be careful not to jump to conclusions!) Read the fact pattern critically and carefully Re-read the call of the question, and carefully read each answer choice Apply the rule and exception to the fact pattern Eliminate incorrect answer choices The answer mischaracterizes the facts The answer choice assumes a fact in dispute The answer’s reasoning is legally incorrect The law is stated incorrectly The answer applies a minority rule A rule of law is perfectly stated, but inapplicable to the issue The answer is not the “best” answer The answer is partly true, and partly false

4 Contracts 33 questions

5 Contracts Subject Matter Outline
Formation of Contracts Mutual assent Consideration Defenses to Enforceability Incapacity Duress Undue Influence Mistake, Misunderstanding Fraud, Misrepresentation Illegality Statute of Frauds Parol Evidence and interpretation Performance, Breach, Discharge Conditions Impracticability and Frustration of Purpose Discharge of duties Warranties Anticipatory Repudiation Remedies Most tested: Formation, Breach and Discharge of Duties NCBE loves to use confusing dates and complex fact patterns that are difficult to apply the rules to or mask the true issue they’re testing Visit to find full outlines

6 Sample Contracts Question #1
Bye Bye telegraphed Vendor on June 1, “At what price will you sell 100 of your QT- Model garbage-disposal units for delivery around June 10?” Thereafter, the following communications were exchanged: Telegram from Vendor received by Bye Bye on June 2: “You’re in luck. We have only 100 QT’s, all on clearance at 50% off usual wholesale of $120 per unit, for delivery at our shipping platform on June 12.” Letter from Bye Bye received in U.S. mail by Vendor on June 5: “I accept. Would prefer to pay in full 30 days after invoice.” Telegram from Vendor received by Bye Bye on June 6: “You must pick up at our platform and pay C.O.D.” Letter from Bye Bye received in U.S. mail by Vendor on June 9: “I don’t deal with people who can’t accommodate our simple requests.” Telegram from Bye Bye received by Vendor on June 10, after Vendor had sold and delivered all 100 of the QT’s to another buyer earlier that day: “Okay. I’m over a barrel and will pick up the goods on your terms June 12.” Bye Bye now sues Vendor for breach of contract. Which of the following arguments will best serve Vendor’s defense? Vendor’s telegram received on June 2 was merely a price quotation, not an offer. Bye Bye’s letter received on June 5 was not an acceptance because it varied the terms of Vendor’s initial telegram. Bye Bye’s use of the mails in response to Vendor’s initial telegram was an ineffective method of acceptance. Bye Bye’s letter received on June 9 was an unequivocal refusal to perform that excused Vendor even if the parties had previously formed a contract. 1998 question 60. Answer is D. OFFER AND ACCEPTANCE A: incorrect—was an offer that wasn’t accepted B: incorrect—both are merchants so mirror image is not required (UCC) C: incorrect—both are merchants, UCC allows for acceptance to be given in any reasonable manner D: correct—Bye Bye had previously refused to perform and therefore was in breach of any contract formed so Vendor was no longer bound

7 Sample Contracts Question #2
A written construction contract began with the following recital: “This Agreement, between Land, Inc. (hereafter called ‘Owner’), and Builder, Inc., and Boss, its President (hereafter called ‘Contractor’), witnesseth:” The signatures to the contract appeared in the following format: LAND, INC. By /s/ Oscar Land President BUILDER, INC. By /s/ George Mason Vice President /s/ Mary Boss, Builder, Inc., became insolvent and defaulted. Land, Inc., sued Boss individually for the breach, and at the trial Boss proffered evidence from the pre-contract negotiations that only Builder, Inc., was to be legally responsible for performing the contract. If the court finds the contract to be completely integrated, is Boss’s proffered evidence admissible? Yes, because the writing is ambiguous as to whether or not Boss was intended individually to be a contracting party. Yes, because the evidence would contradict neither the recital nor the form of Boss’s signature. No, because the legal effect of Boss’s signature cannot be altered by evidence of prior understandings. No, because the application of the “four corners” rule, under which the meaning of a completely integrated contract must be ascertained solely from its own terms. 1998 question 93. Answer is A. PAROL EVIDENCE RULE: Completely integrated contract—parties intend K to represent the “complete and exclusive” statement of terms. But, if introduced to explain or interpret what is in the K, it is admissible (as long as it doesn’t supplement) A: correct—explain or interpret an ambiguous point B: incorrect—can’t just not contradict, can’t bring in any supplemental terms at all if writing is completely integrated C: incorrect—evidence of prior understandings allowed if ambiguity exists D: incorrect—still being ascertained from four corners, just explaining four corners

8 Sample Contracts Question #3
On March 1, Mechanic contracted to repair Textiles’ knitting machine and to complete the job by March 6. On March 2, Textiles contracted to manufacture and deliver specified cloth to Knitwear on March 15. Textiles knew that it would have to use the machine then under repair to perform this contract. Because the Knitwear order was for a rush job, Knitwear and Textiles included in their contract a liquidated damages clause, providing that Textiles would pay $5,000 for each day’s delay in delivery after March 15. Mechanic was inexcusably five days late in repairing the machine, and, as a result, Textiles was five days late in delivering the cloth to Knitwear. Textiles paid $25,000 to Knitwear as liquidated damages and now sues Mechanic for $25,000. Both Mechanic and Textiles knew when making their contract on March 1 that under ordinary circumstances Textiles would sustain little or no damages of any kind as a result of a five-day delay in the machine repair. Assuming that the $5,000 liquidated damages clause in the Knitwear-Textiles contract is valid, which of the following arguments will serve as Mechanic’s best defense to Textiles’ action? Time was not of the essence in the Mechanic-Textiles contract. Mechanic had no reason to foresee on March 1 that Knitwear would suffer consequential damages in the amount of $25,000. By entering into the Knitwear contract while knowing that its knitting machine was being repaired, Textiles assumed the risk of any delay loss to Knitwear. In all probability, the liquidated damages paid by Textiles to Knitwear are not the same amount as the actual damages sustained by Knitwear in consequence of Textiles’ late delivery of the cloth. 1998 question 116. Answer is B. BEST DEFENSE—not necessarily the one that excuses any liability A: incorrect—untrue B: correct—looking solely at Mechanic-Textiles contract, this is true C: incorrect—not necessarily true—they expected to have it done by March 6 with time to complete the order D: incorrect—adds facts that we don’t know

9 Sample Contracts Question #4
Loyal, aged 60, who had no plans for early retirement, had worked for Mutate, Inc., for 20 years as a managerial employee-at-will when he had a conversation with the company’s president, George Mutant, about Loyal’s post- retirement goal of extensive travel around the United States. A month later, Mutant handed Loyal a written, signed resolution of the company’s Board of Directors stating that when and if Loyal should decide to retire, at his option, the company, in recognition of his past service, would pay him a $2,000- per-month lifetime pension. (The company had no regularized retirement plan for at-will employees.) Shortly thereafter, Loyal retired and immediately bought a $30,000 recreational vehicle for his planned travels. After receiving the promised $2,000 monthly pension from Mutate, Inc., for six months, Loyal, now unemployable elsewhere, received a letter from Mutate, Inc., advising him that the pension would cease immediately because of recessionary budget constraints affecting in varying degrees all managerial salaries and retirement pensions. In a suit against Mutate, Inc., for breach of contract, Loyal will probably Win, because he retired from the company as bargained-for consideration for the Board’s promise to him of a lifetime pension. Win, because he timed his decision to retire and to buy the recreational vehicle in reasonable reliance on the Board’s promise to him of a lifetime pension. Lose, because the Board’s promise to him of a lifetime pension was an unenforceable gift promise. Lose, because he had been an employee-at-will throughout his active service with the company. 1998 question 169. Answer is B. PROMISSORY ESTOPPEL, PAST CONSIDERATION, GIFTS A: incorrect—untrue, his retirement was not consideration B: correct—reliance in this case is justified C: incorrect—even though past performance will not generally be considered consideration, this doesn’t mean Loyal cannot rely on a gift promise as he has. D: Incorrect—irrelevant

10 Sample Contracts Question #5
On April 1, Owner and Buyer signed a writing in which Owner, “in consideration of $100 to be paid to Owner by Buyer,” offered Buyer the right to purchase Greenacre for $100,000 within 30 days. The writing further provided, “This offer will become effective as an option only if and when the $100 consideration is in fact paid.” On April 20, Owner, having received no payment or other communication from Buyer, sold and conveyed Greenacre to Citizen for $120,000. On April 21, Owner received a letter from Buyer enclosing a cashier’s check for $100 payable to Owner and stating, “I am hereby exercising my option to purchase Greenacre and am prepared to close whenever you’re ready.” In a later suit against Owner, Buyer prevailed. Which of the following is buyer entitled to recover? Nominal damages only, because the remedy of specific performance was not available to Buyer. The fair market value, if any, of an assignable option to purchase Greenacre for $100,000. $20,000 plus the amount, if any, by which the fair market value of Greenacre on the date of Owner’s breach exceeded $120,000. The amount, if any, by which the fair market value of Greenacre on the date of Owner’s breach exceeded $100,000. 1998 question 130. Answer is D. REMEDIES (not option contract or consideration) A: incorrect—untrue statement—even if specific performance is not available nominal damages are not the only option B: incorrect—too difficult to calculate for court and this is not really what he lost C: incorrect--complex statement to throw test-taker D: correct—expectation damages (what he really lost)

11 Sample Contracts Question #6
In exchange for a valid and sufficient consideration, Goodbar orally promised Walker, who had no car and wanted a minivan, “to pay to anyone from whom you buy a minivan within the next six months the full purchase-price thereof.” Two months later, Walker bought a used minivan on credit from Minivanity Fair, Inc., for $8,000. At the time, Minivanity Fair was unaware of Goodbar’s earlier promise to Walker, but learned of it shortly after the sale. Can Minivanity Fair enforce Goodbar’s promise to Walker? Yes, under the doctrine of promissory estoppel. Yes, because Minivanity Fair is an intended beneficiary of the Goodbar-Walker contract. No, because Goodbar’s promise to Walker is unenforceable under the suretyship clause of the statute of frauds. No, because Minivanity Fair was neither identified when Goodbar’s promise was made, nor aware of it when the minivan-sale was made. 1998 question 172. Answer is B. THIRD PARTY BENEFICIARIES A: incorrect—promissory estoppel is inapplicable B: correct—Minivanity is creditor beneficiary and has the right to seek enforcement against a breaching promisor C: incorrect—inapplicable (but sounds important…) D: incorrect—this is not necessary to become an intended beneficiary

12 Criminal Law and Procedure
31 questions

13 Criminal Law Subject Matter Outline
Homicide Intended killings Unintended killings Other Crimes Theft Receiving stolen goods Robbery and Burglary Assault and Battery Rape Kidnapping Arson Inchoate Crimes Offenses and parties to crime General Principles Acts and omissions State of mind Causation Justification Jurisdiction Constitutional Protection of Accused Arrest, Search and Seizure Confessions and privilege against self-incrimination Lineups and right to counsel Fair Trial, Guilty Pleas, Double Jeopardy Burdens of proof and persuasion Pretty even distribution of questions in these areas NCBE always test the distinctions between theft crimes (i.e. robbery, burglary, larceny) AND focus on searches and seizures and right to counsel in procedure area. Also focus on common law v. majority law rules. Rules can easily be memorized and this is one of the easiest areas of the MBE as far as application. Visit to find full outlines

14 Sample Criminal Question #1
After being fired from his job, Mel drank almost a quart of vodka and decided to ride the bus home. While on the bus, he saw a briefcase he mistakenly thought was his own, and began struggling with the passenger carrying the briefcase. Mel knocked the passenger to the floor, took the briefcase, and fled. Mel was arrested and charged with robbery. Mel should be: Acquitted, because he used no threats and was intoxicated. Acquitted, because his mistake negated the required specific intent. Convicted, because his intoxication was voluntary. Convicted, because mistake is no defense to robbery. 1998 question 7. Answer is B SPECIFIC INTENT CRIMES AND DEFENSES A: incorrect—threats are inapplicable, intoxication only matter when it negates the required specific intent required B: correct—theft crimes are specific intent crimes—requiring more than just actus reus C: incorrect—voluntary intoxication is a defense to a crime when it negates the required mental state (required mental state wasn’t present in the first place) D: incorrect—not true—specific intent required

15 Sample Criminal Question #2
In which of the following situations would Defendant’s mistake most likely constitute a defense to the crime charged? A local ordinance forbids the sale of alcoholic beverages to persons under 18 years of age. Relying on false identification, Defendant sells champagne to a 16-year-old high school student. Defendant is charged with illegal sale of alcoholic beverages. Mistaking Defendant for a narcotics suspect, an undercover police officer attempts to arrest him. Defendant, unaware that the person who has grabbed him is an officer, hit him and knocks him unconscious. Defendant is charged with assault. Defendant, aged 23, has sexual intercourse with a 15-year-old prostitute who tells Defendant that she is 18. Defendant is charged with the felony of statutory rape under a statute that makes sexual relations with a child under 16 a felony. Relying on erroneous advice from his attorney that, if his wife has abandoned him for more than a year, he is free to marry, Defendant remarries and is subsequently charged with bigamy. 1998 question 22. Answer is B. MISTAKE A: incorrect—strict liability crime, mistake is no defense B: correct—self defense is a defense to assault C: incorrect—statutory rape, strict liability, mistake is no defense D: incorrect—mistake of law is generally not a defense

16 Sample Criminal Question #3
Homer lived on the second floor of a small convenience store/gas station that he owned. One night he refused to sell Augie a six-pack of beer after hours, saying he could not violate the state laws. Augie became enraged and deliberately drove his car into one of the gasoline pumps, severing it from its base. There was an ensuing explosion causing a ball of fire to go from the underground gasoline tank into the building. As a result, the building burned to the ground and Homer was killed. In a common-law jurisdiction, if Augie is charged with murder and arson, he should be Convicted of both offenses. Convicted of involuntary manslaughter and acquitted of arson. Convicted of arson and involuntary manslaughter. Acquitted of both offenses. 1998 question 59. Answer is A. COMMON LAW MURDER AND ARSON—Murder at common law is the unlawful killing of another with malice aforethought requiring death within one year (intent to cause serious bodily harm counts). Arson at common law is the malicious burning of a structure of another. A: correct–only one that fits the rule B: incorrect– involuntary manslaughter is unintentional killing without malice caused by recklessness or criminal negligence (malice exists here) C: incorrect— D: incorrect–

17 Sample Criminal Question #4
Sam and two of his friends were members of a teenage street gang. While they were returning from a dance late one evening, their car collided with a car driven by an elderly woman. After an argument, Sam attacked the elderly woman with his fists and beat her to death. Sam’s two friends watched, and when they saw the woman fall to the ground they urged Sam to flee. Sam was eventually apprehended and tried for manslaughter, but the jury could not decide on a verdict. If Sam’s companions are subsequently tried as accomplices to manslaughter, they should be Acquitted, because Sam was not convicted of the offense. Acquitted, because they did not assist or encourage Sam to commit the crime. Convicted, because they urged him to flee. Convicted, because they made no effort to intervene. 1998 question 70. Answer is B. ACCOMPLICES A: incorrect—this is inapplicable if their individual trial concluded that they were accomplices to manslaughter B: correct—an accomplice must assist or encourage the commission of a crime and have intent to do so. They did not assist or encourage the actual crime committed. C: incorrect—the subsequent flight is not the crime committed D: incorrect—no intervention required

18 Sample Criminal Question #5
Scott held up a drugstore at 10:30 at night, and drove away. His car broke down in an isolated area just outside the small city in which the crime occurred. Scott walked to the nearest house and asked Henry, the homeowner, if he could stay until the next morning, explaining that he had been searching for his sister’s home and had run out of gas. Henry agreed to let him sleep on a couch in the basement. During the course of the night, Henry began to doubt the story Scott had told him. Early the next morning, Henry called the police and said he was suspicious and frightened of a stranger whom he had allowed to stay the night. The police went immediately to the house to assist Henry and walked through the open front door. They found Scott and Henry drinking coffee in the kitchen. When they saw Scott, they realized he matched the description of the drugstore robber. They arrested Scott and in his jacket they found drugs taken during the robbery. Scott moves to suppress the evidence of the drugs. If the court finds that the police did not have probable cause to believe Scott was the robber until they saw him inside Henry’s house and realized he matched the description, the court should Grant the motion, because, as a guest, Scott has sufficient standing to contest the entry of the house without a warrant. Grant the motion, because as a guest, Scott has sufficient standing to contest the lack of probable cause at the time of entry. Deny the motion, because Scott had no ownership or other possessory interest in the premises. Deny the motion, because the police had the permission of the owner to enter the house. 1998 question 125. Answer is D. SEARCH AND SEIZURE A: incorrect—as a guest and without an ownership interest in the property he does not have standing to contest the entry B: incorrect—as a guest and without an ownership interest in the property he does not have standing to contest the lack of probable cause—and even if he does have standing to contest, that doesn’t mean the motion should necessarily be granted. C: incorrect—good answer, but not the best (is that why it should be denied?) D: correct—best answer—what matters here is that the owner gave police permission

19 Sample Criminal Question #6
On May 1, 1987, a car driven by Debra struck Peggy, a pedestrian. On July 1, 1987, with regard to this incident, Debra pleaded guilty to reckless driving (a misdemeanor) and was sentenced to 30 days in jail and a fine of $1,000. She served the sentence and paid the fine. On April 1, 1988, Peggy died as a result of the injuries she suffered in the accident. On March 1, 1991, a grand jury indicted Debra on a charge of manslaughter of Peggy. On May 15, 1991, trial had not begun and Debra filed a motion to dismiss the indictment on the ground of double jeopardy in that her conviction of reckless driving arose out of the same incident, and on the ground that the three-year statute of limitations for manslaughter had run. Debra’s motion should be Granted only on double jeopardy grounds. Granted only on statute of limitations grounds. Granted on either double jeopardy grounds or statute of limitations grounds. Denied on both grounds. 1998 question 178. Answer is D. DOUBLE JEOPARDY and STATUTE OF LIMITATIONS A: incorrect—crimes constitute the same offense for DJ purposes if one set of facts proves them both—here an additional fact (Peggy’s death) is added after the first trial B: incorrect—the statute of limitations no longer runs after an indictment is made C: incorrect—the phrasing of this answer choice is almost always wrong (“or”) D: correct—

20 Evidence 31 questions

21 Evidence Subject Matter Outline
Presentation of evidence Introduction of Evidence Presumptions Mode and Order Impeachment, Contradiction, and Rehabilitation Proceedings to which evidence rules apply Relevancy and reasons for excluding relevant evidence Probative value Authentication and Identification Character and related concepts Expert testimony Real, Demonstrative, and Experimental Evidence Privileges and other policy exclusions Spousal immunity, Attorney-Client, and Physician-Patient Remedial Measures Compromise, Payment of Medical Expenses, Plea Negotiations Past Sexual Conduct Writings, Recordings and Photographs Hearsay and circumstances of its admissibility Almost 30% of evidence tested on the MBE is about hearsay and its common exceptions. Also easily memorized rules—there’s just a lot of them to know. Visit to find full outlines

22 Sample Evidence Question #1
At Defendant’s trial for sale of drugs, the government called Witness to testify, but Witness refused to answer any questions about Defendant and was held in contempt of court. The government then calls Officer to testify that, when Witness was arrested for possession of drugs and offered leniency if he would identify his source, Witness had named Defendant as his source. The testimony offered concerning Witnesses’s identification of Defendant is Admissible as a prior inconsistent statement by Witness. Admissible as an identification of Defendant by Witness after having perceived him. Inadmissible, because it is hearsay not within any exception. Inadmissible, because Witness was not confronted with the statement while on the stand. 1998 question 193. Answer is C. HEARSAY A: incorrect—not applicable because a prior inconsistent statement must be subject to cross and be sworn B: incorrect—also must be sworn and subject to cross C: correct—no exception for this type of hearsay D: incorrect—true statement but the question is asking about the Officer’s testimony and whether it is hearsay or an exception

23 Sample Evidence Question #2
In an arson prosecution the government seeks to rebut Defendant’s alibi that he was in a jail in another state at the time of the fire. The government calls Witness to testify that he diligently searched through all the records of the jail and found no record of Defendant’s having been incarcerated there during the time Defendant specified. The testimony of Witness is Admissible as evidence of absence of an entry from public record. Admissible as a summary of voluminous documents. Inadmissible, because it is hearsay not within any exception. Inadmissible, because the records themselves must be produced. 1998 question 200. Answer is A. HEARSAY A: correct—absence of a public record exception to hearsay applies (to prove that the record does not exist) B: incorrect—not applicable C: incorrect—an exception does apply D: incorrect—best evidence rule applies only when the content of a writing is in issue (here it’s just whether or not the entry existed)

24 Sample Evidence Question #3
In a federal civil trial, Plaintiff wishes to establish that, in a state court, Defendant had been convicted of fraud, a fact that Defendant denies. Which mode of proof of the conviction is LEAST likely to be permitted? A certified copy of the judgment of conviction, offered as a self-authenticating document. Testimony of Plaintiff, who was present at the time of the sentence. Testimony by a witness to whom Defendant made an oral admission that he had been convicted. Judicial notice of the conviction, based on the court’s telephone call to the clerk of the state court, whom the judge knows personally. 1998 question 167. Answer is D. HEARSAY A: incorrect—meets best evidence standard and can be entered into evidence B: incorrect—hearsay but within prior statement exception C: incorrect—hearsay but within prior statement exception D: correct—judicial notice can be taken as to: laws of foreign countries, regulations of agencies, municipal ordinances, local geography, federal and state law, and indisputable facts

25 Sample Evidence Question #4
At Defendant’s murder trial, Defendant calls Witness as his first witness to testify that Defendant has a reputation in their community as a peaceable and truthful person. The prosecutor objects on the ground that Witness’s testimony would constitute improper character evidence. The court should Admit the testimony as to peaceableness, but exclude the testimony as to truthfulness. Admit the testimony as to truthfulness, but exclude the testimony as to peaceableness. Admit the testimony as to both character traits. Exclude the testimony as to both character traits. 1998 question 164. Answer is A. CHARACTER EVIDENCE A: correct—peaceableness is inconsistent with the crime of murder, truthfulness is inapplicable here. Character evidence can be introduced to show character traits inconsistent with the crime. B: incorrect— C: incorrect— D: incorrect—

26 Sample Evidence Question #5
Defendant was charged with attempted murder of Victor in a sniping incident in which Defendant allegedly shot at Victor from behind a bush as Victor drove his car along an expressway. The prosecutor offers evidence that seven years earlier Defendant had fired a shotgun into a woman’s home and that Defendant had once pointed a handgun at another driver while driving on the street. This evidence should be Excluded, because such evidence can be elicited only during cross-examination. Excluded, because it is improper character evidence. Admitted as evidence of Defendant’s propensity toward violence. Admitted as relevant evidence of Defendant’s identity, plan, or motive. 1998 question 158. Answer is B. CHARACTER EVIDENCE A: incorrect—untrue statement B: correct—evidence of crimes or other acts are inadmissible to prove conduct in conformity therewith so these acts cannot be let in as character evidence C: incorrect—same reasoning as B D: incorrect—these prior acts do not prove identity, plan, or motive in connection with the attempted murder on trial

27 Sample Evidence Question #6
Plaintiff sued Defendant for personal injuries arising out of an automobile accident. Which of the following would be ERROR? The judge allows Defendant’s attorney to ask Defendant questions on cross-examination that go well beyond the scope of the direct examination by Plaintiff, who has been called as an adverse witness. The judge refuses to allow Defendant’s attorney cross-examine Defendant by leading questions. The judge allows cross-examination about the credibility of a witness even though no question relating to credibility has been asked on direct examination. The judge, despite Defendant’s request for exclusion of witnesses, allows Plaintiffs eyewitness to remain in the courtroom after testifying, even though the eyewitness is expected to be recalled for further cross-examination. 1998 question 153. Answer is D. DIRECT AND CROSS EXAMINATION A: incorrect—cross examination may not go well beyond the scope of direct for that individual only—doesn’t apply to the testimony of another witness. B: incorrect—leading questions are allowed on cross C: incorrect—witness’s credibility may be attacked on cross D: correct—at a party’s request witnesses must be excluded so that they do not hear another witness’s testimony

28 Real Property 31 questions

29 Real Property Subject Matter Outline
Ownership Present Estates Future Interests Cotenancy Landlord Tenant Law Rights in land Covenants at law and in equity Easements, profits, and licenses Fixtures Zoning Contracts Creation and construction Marketability, Fitness, and Sustainability Equitable conversion Merger Mortgages/Security Devices Types of security devices and relationships Transfers by morgagor and mortgagee Payment, discharges, and defenses Foreclosure Titles Adverse possession Transfers Title assurance systems Focus on present and future interests, rights in land (including crops, fixtures, and water) and a huge focus on mortgages and security devices. One of the most difficult and lowest scoring parts of the bar. DRAW IT OUT Visit to find full outlines

30 Sample Property Question #1
Six years ago, Oscar, owner of Blackacre in fee simple, executed and delivered to Albert an instrument in the proper form of a warranty deed, purporting to convey Blackacre to “Albert and his heirs.” At the time, Albert was a widower who had one child, Donna. Three years ago, Albert executed and delivered to Bea and instrument in the proper form of a warranty deed, purporting to convey Blackacre to “Bea.” Donna did not join in the deed. Bea was and still is unmarried and childless. The only possibly applicable statute in the jurisdiction states that any deed will be construed to convey the grantor’s entire estate, unless expressly limited. Last month, Albert died, never having remarried. Donna is his only heir. Blackacre is now owned by Donna, because Albert’s death ended Bea’s life estate pur autre vie. Bea, in fee simple pursuant to Albert’s deed. Donna and Bea as tenant in common of equal shares. Donna and Bea as joint tenants, because both survived Albert. 1998 question 187 Answer is B. ESTATES IN LAND A: incorrect—an estate pur autre vie (where duration is measured by the life of someone else) is not applicable here. B: correct—the estate was given in fee simple to Albert, who then transferred the interest in fee simple to Bea C: incorrect—Donna has no survivorship interest D: incorrect—Donna has no survivorship interest

31 Sample Property Question #2
Three years ago Adam conveyed Blackacre to Betty for $50,000 by a deed that provided: “By accepting this deed, Betty covenants for herself, her heirs and assigns, that the premises herein conveyed shall be used solely for residential purposes and, if the premises are used for nonresidential purposes, Adam, his heirs and assigns, shall have the right to repurchase the premises for the sum of one thousand dollars ($1,000).” In order to pay the $50,000 purchase price for Blackacre, Betty obtained a $35,000 mortgage loan from the bank. Adam had full knowledge of the mortgage transaction. The deed and mortgage were promptly and properly recorded in proper sequence. The mortgage, however, made no reference to the quoted language in the deed. Two years ago Betty converted her use of Blackacre from residential to commercial without the knowledge or consent of Adam or of the bank. Betty’s commercial venture failed, and Betty defaulted on her mortgage payments to the bank. Blackacre now has a fair market value of $25,000. The bank began appropriate foreclosure proceedings against Betty. Adam properly intervened, tendered $1,000, and sought judgment that Betty and the bank be ordered to convey Blackacre to Adam, free and clear of the mortgage. The common-law Rule Against Perpetuities is unmodified by statute. If the court rules against Adam, it will be because The provision quoted from the deed violates the Rule Against Perpetuities. The Bank had no actual knowledge of, and did not consent to, the violation of the covenant. The rights reserved by Adam were subordinated, by necessary implication, to the rights of the bank as a lender of the purchase money. The consideration of $1,000 was inadequate. 1998 question 168. Answer is A. RULE AGAINST PERPETUITIES A: correct—no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the time of the creation of the interest. The interest at issue here will not vest during that time. B: incorrect—not a valid reason to rule against Adam C: incorrect—untrue statement D: incorrect—consideration was adequate

32 Sample Property Question #3
Anna owned Blackacre, which was improved with a dwelling. Beth owned Whiteacre, an adjoining unimproved lot suitable for constructing a dwelling. Beth executed and delivered a deed granting to Anna an easement over the westerly 15 feet of Whiteacre for convenient ingress and egress to a public street, although Anna’s lot did abut another public street. Anna did not then record Beth’s deed. After Anna constructed and started using a driveway within the described 15-foot strip in a clearly visible manner, Beth borrowed $10,000 cash from Bank and gave Bank a mortgage on Whiteacre. The mortgage was promptly and properly recorded. Anna then recorded Beth’s deed granting the easement. Beth subsequently defaulted on her loan payments to Bank. The recording act of the jurisdiction provides: “No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law.” In an appropriate foreclosure action as to Whiteacre, brought against Anna and Beth, Bank seeks, among other things, to have Anna’s easement declared subordinate to Bank’s mortgage, so that the easement will be terminated by completion of the foreclosure. If Anna’s easement is NOT terminated, it will be because The recording of the deed granting the easement prior to the foreclosure action protects Anna’s rights. The easement provides access from Blackacre to a public street. Anna’s easement is appurtenant to Blackacre and thus cannot be separated from Blackacre. Visible use of the easement by Anna put Bank on notice of the easement. 1998 question 10. Answer is D. EASEMENTS A: incorrect—recording is not all that is required to preserve an easement B: incorrect—another public street abuts Blackacre C: incorrect—this is untrue—the easement exists on Whiteacre and can easily be separated D: correct—notice of the easement was given at the time of the mortgage

33 Sample Property Question #4
Olive owned Blackacre, a single-family residence. Fifteen years ago, Olive conveyed a life estate in Blackacre to Lois. Fourteen years ago, Lois, who had taken possession of Blackacre, leased Blackacre to Trent for a term of 15 years at the monthly rental of $500. Eleven years ago, Lois died intestate leaving Ron as her sole heir. Trent regularly paid rent to Lois and, after Lois’s death, to Ron until last month. The period in which to acquire title by adverse possession in the jurisdiction is 10 years. In an appropriate action, Trent, Olive, and Ron each asserted ownership of Blackacre. The court should hold that title in fee simple is in Olive, because Olive held a reversion and Lois has died. Ron, because Lois asserted a claim adverse to Olive when Lois executed a lease to Trent. Ron, because Trent’s occupation was attributable to Ron, and Lois died 11 years ago. Trent, because of Trent’s physical occupancy and because Trent’s term ended with Lois’s death. 1998 question 97. Answer is C. ESTATES IN LAND and ADVERSE POSSESSION A: incorrect—adverse possession in this case has removed Olive’s reversionary interest B: incorrect—this is not true—the lease to Trent was completely acceptable C: correct—Lois died 11 years ago, and since then Ron has had open, visible, notorious, hostile, and continuous possession of the premises, renting to Trent. D: incorrect—as a renter only, Trent never had possessory interest.

34 Sample Property Question #5
Several years ago, Bart purchased Goldacre, financing a large part of the purchase price by a loan from Mort that was secured by a mortgage. Bart made the installment payments on the mortgage regularly until last year. Then Bart persuaded Pam to buy Goldacre, subject to the mortgage to Mort. They expressly agreed that Pam would not assume and agree to pay Bart’s debt to Mort. Bart’s mortgage to Mort contained a due-on-sale clause stating, “If Mortgagor transfers his/her interest without the written consent of Mortgagee first obtained, then at Mortgagee’s option the entire principal balance of the debt secured by this Mortgage shall become immediately due and payable.” However, without seeking Mort’s consent, Bart conveyed Goldacre to Pam, the deed stating in pertinent part “ , subject to a mortgage to Mort [giving details and recording data].” Pam took possession of Goldacre and made several mortgage payments, which Mort accepted. Now, however, neither Pam nor Bart has made the last three mortgage payments. Mort has brought an appropriate action against Pam for the amount of the delinquent payments. In this action, judgment should be for Pam, because she did not assume and agree to pay Bart’s mortgage debt. Pam, because she is not in privity of estate with Mort. Mort, because Bart’s deed to Pam violated the due-on-sale clause. Mort, because Pam is in privity of estate with Mort. 1998 question 33. Answer is A. MOTRGAGES A: correct—if the transferee does not assume the mortgage, and payments are not made, the mortgagee may foreclose but there is no personal liability upon the transferee B: incorrect—this is true, but is not the reason that Pam should win C: incorrect—this may be true if Mort was bringing an action against Bart (but he is bringing an action against Pam) D: incorrect—this is not true

35 Sample Property Question #6
Alex and Brenda owned Greenacre in fee simple as tenants in common, each owning an undivided one-half interest. Alex and Brenda joined in mortgaging Greenacre to Marge by a properly recorded mortgage that contained a general warranty clause. Alex became disenchanted with land-owning and notified Brenda that he would no longer contribute to the payment of installments due Marge. After the mortgage was in default and Marge made demand for payment of the entire amount of principal and interest due, Brenda tendered to Marge, and Marge deposited, a check for one-half of the amount due Marge. Brenda then demanded a release of Brenda’s undivided one-half interest. Marge refused to release any interest in Greenacre. Brenda promptly brought an action against Marge to quiet title to an undivided one-half interest in Greenacre. In such action, Brenda should Lose, because Marge’s title had been warranted by an express provision of the mortgage. Lose, because there was no redemption from the mortgage. Win, because Brenda is entitled to marshalling. Win, because the cotenancy of the mortgagors was in common and not joint. 1998 question 65. Answer is B. MORTGAGES A: incorrect—there was only a general warranty clause included B: correct—Brenda only redeemed half of the mortgage and would have to redeem the full value of the mortgage to win (even though she was only a tenant in common) C: incorrect—marshaling is not applicable here (when a creditor has access to two sources of payment he shall take his payment out of the fun upon which another creditor has no access) D: incorrect—it wouldn’t matter here whether the cotenancy was joint or in common

36 Torts 33 questions

37 Torts Subject Matter Outline
Intentional Torts Assault, Battery, False Imprisonment, IIED, Trespass, Conversion Defenses Negligence Duty (failure to act, unforeseeable plaintiffs, etc.) Standard of Care Breach (proof of fault and res ipsa loquitur) Causation Limitations on liability and special rules Liability for acts of others Strict Liability Products Liability Other Torts Nuisance Defamation and invasion of privacy Misrepresentation Intentional interference with business relations Most questions (12-15) of the 33 are about negligence. The other most commonly tested topics are intentional torts and strict liability. Also focus on invasion of right to privacy which isn’t generally covered in first year torts classes. Visit to find full outlines

38 Sample Torts Question #1
Karen was crossing Main Street at a crosswalk. John, who was on the sidewalk nearby, saw a speeding automobile heading in Karen’s direction. John ran into the street and pushed Karen out of the path of the car. Karen fell to the ground and broke her leg. In an action for battery brought by Karen against John, will Karen prevail? Yes, because John cold have shouted a warning instead of pushing Karen out of the way. Yes, if Karen was not actually in danger and John should have realized it. No, because the driver of the car was responsible for Karen’s injury. No, if John’s intent was to save Karen, not to harm her. 1998 question 14. Answer is B. BATTERY and RESCUER A: incorrect—a warning would not be required in this situation B: correct—a rescuer may act, and have a defense from battery only if plaintiff is in real danger or a reasonable mistake was made about the danger C: incorrect—adds facts to the pattern above (where driver is not responsible) D: incorrect—intent is not all that matters here--for battery it only matters if there was an intention to do the action (push her out of the way)

39 Sample Torts Question #2
The warden of State Prison prohibits the photographing of the face of any prisoner without the prisoner’s consent. Photographer, a news photographer, wanted to photograph Mobster, a notorious organized crime figure incarcerated at State Prison. To circumvent the warden’s prohibition, Photographer flew over the prison exercise yard and photographed Mobster. Prisoner, who was imprisoned for a technical violation of a regulatory statute, happened to be standing next to Mobster when the photograph was taken. When the picture appeared in the press, Prisoner suffered severe emotional distress because he believed that his business associates and friends would think he was consorting with gangsters. Prisoner suffered no physical harm as the result of his emotional distress. Prisoner brought an action against Photographer for intentional or reckless infliction of emotional distress. What is the best argument that Photographer can make in support of a motion for summary judgment? No reasonable person could conclude that Photographer intended to photograph Prisoner. Prisoner did not suffer any physical injury arising from the emotional distress. As a news photographer, Photographer was privileged to take photographs that others could not. No reasonable person could conclude that Photographer’s conduct was extreme and outrageous as to Prisoner. 1998 question 108. Answer is D. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS: intentional or reckless act amounting to extreme and outrageous conduct that causes the plaintiff severe mental distress A: incorrect—as long has the photographer intended to take the photograph, who he intended to photograph is not important B: incorrect—physical injury is not required for IIED—only severe mental distress (unless third party IIED) C: incorrect—this is an untrue statement D: correct—the photographer’s conduct towards Prisoner himself was not extreme and outrageous even if it caused him severe mental distress.

40 Sample Torts Question #3
Vintner is the owner of a large vineyard and offers balloon rides to visitors who wish to tour the grounds from the air. During one of the rides, Vintner was forced to make a crash landing on his own property. Without Vintner’s knowledge or consent, Trespasser had entered the vineyard to camp for a couple of days. Trespasser was injured when he was hit by the basket of the descending balloon. If Trespasser sues Vintner to recover damages for his injuries, will Trespasser prevail? No, unless the crash landing was made necessary by negligence on Vintner’s part. No. unless Vintner could have prevented the injury to Trespasser after becoming aware of Trespasser’s presence. Yes, because even a trespasser may recover for injuries caused by an abnormally dangerous activity. Yes, if the accident occurred at a place which Vintner knew was frequented by intruders. 1998 question 112. Answer is B. DUTY TO TRESPASSSER—LAND POSSESSOR LIABILITY: unknown trespasser, no duty of care; known and frequent trespasser, must exercise reasonable care A: incorrect—this is inapplicable to a trespasser situation B: correct—there is no duty of care for an unknown trespasser—and a reasonable duty of care for a known trespasser (if he had become known then Vintner would have a duty) C: incorrect—hot air ballooning is not an abnormally dangerous activity D: incorrect—a land possessor owes only a reasonable duty of care even to a known trespasser

41 Sample Torts Question #4
Fran, who was driving at an excessive speed, applied her brakes to stop at a traffic light. Due to damp, fallen leaves, her car skidded and came to a halt perpendicular to the roadway. Sid, who was also driving at an excessive speed and was immediately behind Fran, saw Fran’s car perpendicular to the roadway. Although Sid had sufficient distance to come to a slow, controlled stop, he decided not to slow down but, rather, to swerve to the left in an effort to go around Fran’s car. Due to oncoming traffic, the space was insufficient and Sid’s car collided with Fran’s car, severely injuring Fran. Fran filed a personal injury action against Sid in a jurisdiction in which contributory negligence is a bar to recovery. Will Fran prevail? Yes, if the jury finds that Sid was more than 50% at fault. Yes, if the jury finds that Sid had the last clear chance. No, if the jury finds that Fran’s conduct was in any way a legal cause of the accident. No, if the jury finds that, in speeding, Fran assumed the risk. 1998 question 54. Answer is B. NEGLIGENCE AND CONTRIBUTORY NEGLIGENCE: plaintiff’s own negligence is a bar to any recovery A: incorrect—percentage of fault is irrelevant for contributory negligence B: correct—the last clear chance rule provides a basis for recovery even where plaintiff is contributorily negligent if the D had the last chance to avoid the injury. C: incorrect—this is true but not the BEST answer (last clear chance still trumps) D: incorrect—this is true but not the BEST answer (last clear chance still trumps)

42 Sample Torts Question #5
Homeowner hired Arsonist to set fire to Homeowner’s house so that Homeowner could collect the insurance proceeds from the fire. After pouring gasoline around the house, Arsonist lit the fire with his cigarette lighter and then put the lighter in his pocket. As Arsonist was standing back admiring his work, the lighter exploded in his pocket. Arsonist suffered severe burns to his leg. Arsonist brought an action against the manufacturer of the lighter based on strict product liability. Under applicable law, the rules of pure comparative fault apply in such actions. Will Arsonist prevail? Yes, if the lighter exploded because of a defect caused by a manufacturing error. Yes, if Arsonist can establish that the lighter was the proximate cause of his injury. No, because the lighter was not being used for an intended or reasonably foreseeable purpose. No, because Arsonist was injured in the course of committing a felony by the device used to perpetrate the felony. 1998 question 4. Answer is A. PRODUCTS LIABILITY A: correct—a manufacturing defect produces strict products liability (where there is a defective product, and the plaintiff is injured using that defective product) B: incorrect—Arsonist must establish that the lighter was the proximate cause of his injury but needs to do more than just that. C: incorrect—this is not true—to light something on fire was a intended or reasonably foreseeable purpose. D: incorrect—the fact that he was using the device to commit a felony is irrelevant.

43 Sample Torts Question #6
Actor, a well-known movie star, was drinking Vineyard wine at a nightclub. A bottle of the Vineyard wine, with its label plainly showing, was on the table in front of Actor. An amateur photographer asked Actor if he could take his picture and Actor said, “Yes.” Subsequently, the photographer sold the photo to Vineyard. Vineyard, without Actor’s consent, used the photo in a wine advertisement in a nationally circulated magazine. The caption below the photo stated, “Actor enjoys his Vineyard wine.” If Actor sues Vineyard to recover damages as a result of Vineyard’s use of the photograph, will Actor prevail? No, because Actor consented to being photographed. No, because Actor is a public figure. Yes, because Vineyard made commercial use of the photograph. Yes, unless Actor did, in fact, enjoy his Vineyard wine. 1998 question 192. Answer is C. DEFAMATION A: incorrect—consenting to the photograph does not give the photographer or Vineyard the right to use it in public advertising B: incorrect—even a public figure has a right to decide how their photograph is used commercially C: correct—commercial use cannot be made in this case without Actor’s consent D: incorrect—but that’s funny

44 Next Seminar… The MEE basics, subjects, jurisdictions, scoring, examples and practice

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