MBE

Eleven years ago, the owner of a condominium unit located in another state, upon his death, bequeathed the condominium unit to his wife for her life and then to their son. A year after the owner's death, the wife had a stroke that left her incapacitated. The son sought and was granted both personal and financial guardianship over his mother. Six months later the son suddenly died. By will, the son devised his real property to his daughter, who was unaware of the condominium unit and took no action with regard to it. The daughter assumed guardianship over her grandmother who remains alive but unable to care for herself. Shortly after the owner's death, the wife granted an acquaintance the right to occupy the condominium unit for the following month. At the end of that month, the acquaintance tried unsuccessfully to obtain the wife's permission to remain longer. Deciding to remain despite the lack of permission, the acquaintance, since that time, has resided in the unit, maintaining it as well as paying the annual condominium fees and real estate taxes on it. The applicable statutory period to acquire title by adverse possession is 10 years. The acquaintance brings an appropriate action to determine title to the condominium unit. What type of ownership interest in the condominium unit will the acquaintance be found to possess?

A life estate measured by the wife's life. The acquaintance has adversely possessed the condominium unit for more than the requisite 10-year period. The acquaintance's possession is adverse, however, only as to any property owner with the current right to possess the unit at the time that the adverse possession began. Since only the wife's life estate was a current possessory interest at the time that the acquaintance's adverse possession began, the acquaintance is only entitled to her life estate.

The driver of a truck was involved in an accident with a car driven by a citizen of a foreign country. The truck driver filed suit in a federal district court in the state in which the accident occurred, where the truck driver was domiciled. The driver of the car was a permanent legal resident of the United States and was domiciled in this state as well. The truck driver alleged damages of $35,000 in good faith due to personal injuries and damages of an additional $50,000 due to property losses. As permitted by state law under a direct action statute, the suit named only the insurer of the car as a defendant. The insurer was incorporated in a neighboring state and had its headquarters in a distant state. The insurer timely moved to dismiss the action due to lack of subject-matter jurisdiction. How should the court rule on this motion?

Grant the motion, because diversity of citizenship does not exist. In order for subject-matter jurisdiction to exist in an action based on state law, the action must satisfy both the amount-in-controversy requirement and the diversity requirement. Here, the action satisfies the amount-in-controversy requirement, since the plaintiff is permitted to aggregate personal injury and property loss that arises from the incident in question. The aggregated amount, of $85,000 ($35,000 + $50,000), exceeds $75,000. But, the action does not meet the diversity requirement. As a corporation, the insurer is a citizen of the state of its incorporation and also a citizen of the state of its principal place of business. However, an insurer is also deemed to be a citizen of the insured's state when the insurer is sued in a direct action. Here, the insured's state is the forum state for purposes of diversity jurisdiction because the insured is a lawful permanent resident of the United States domiciled in the forum state. Consequently, diversity jurisdiction does not exist between the plaintiff-truck driver and the defendant-insurer.

An employee at a toy store intervened in a dispute between two unrelated customers, a mother and a grandfather, over who was entitled to a particular hard-to-come-by doll, which was the only remaining one at the store. The employee arbitrarily determined that the mother had possession of the doll first and awarded her the right to purchase the doll. When the grandfather protested the employee's decision, the mother threatened to inflict physical harm on the grandfather and raised her arm to strike him. Fearful that the mother would do so, the grandfather looked to the employee for help. The employee, who because of his size could easily have forestalled the mother's attack, simply shrugged his shoulders. Before the mother made contact with the grandfather, he crumpled to floor, the victim of a stroke caused by the mother's threat. The grandfather initiates a lawsuit against the mother, the employee, and the owner of the store on the grounds of assault for damages attributable to his stroke. The owner of the store moves to dismiss the complaint against herself for failure to state a cause of action. How should the court rule?

Grant the motion, because the owner is not vicariously liable for assault by one customer upon another. The store owner is not vicariously liable for an assault committed by one customer upon another. Any liability that the owner might have from the incident would arise from her employee's negligence for failure to prevent the assault.

An employee brought an action in federal district court based on sexual harassment claims under Title VII. The employer, in his answer, alleged that the employee voluntarily terminated her employment after the termination of a consensual sexual relationship with her supervisor. In the alternative, the employer alleged that the employee's poor job performance justified her termination. The court, finding that these allegations were mutually exclusive, ruled that the employer could not plead both and ordered the employer to strike one. Are the court's ruling and order correct?

No, because alternative and inconsistent allegations are permitted.

A gas station entered into a contract with an oil distributor to purchase a specified quantity of gasoline for resale. The contract specified, per the gas station's insistence, that the gasoline was to be a minimum of 99.5% free of impurities, as determined by industry-standard measurements. Another contract provision specified that the gasoline was to be delivered by July 31 at the latest. The oil distributor delivered the gasoline to the gas station on July 30. Before accepting the delivery, the gas station manager checked the purity of the gasoline. The gasoline was only 99.3% free of impurities, and the manager rejected it. The oil distributor immediately informed the gas station manager that it intended to cure the defect by delivering a new shipment as soon as possible. The oil distributor delivered a new shipment of gasoline to the gas station on August 1, but the gas station manager rejected the new shipment. Both parties agree that the gasoline in the second shipment was 99.7% free of impurities. Later, the oil distributor sued the gas station for breach of contract. Is it likely to prevail?

No, because an acceptable shipment needed to be delivered by July 31. A seller has the right to cure a defective tender if (i) the time for performance under the contract has not yet lapsed, or (ii) the seller had reasonable grounds to believe the buyer would accept the goods despite the nonconformity. Here, neither condition is satisfied; the gas station insisted on the purity provision in the contract, and so there were no reasonable grounds to believe that the station would accept a lower-quality gasoline. Nonetheless, the oil distributor retained the right to cure the defective tender by July 31. It did not deliver conforming gasoline until August 1, and consequently, the gas station was justified in rejecting the second shipment.

A high school teacher played on a hockey team in a local recreational league. During a league game, the teacher was involved in a fight with another hockey player. That player sued the teacher in a battery action to recover for injuries inflicted during the fight. The teacher contended that he had acted in self-defense. The teacher called his principal to testify that the teacher had a reputation within the school community for peacefulness. The plaintiff, who had not introduced evidence of the teacher's character for violence, objected to this testimony. Should the court admit this testimony?

No, because such evidence is not admissible in a civil action. Evidence of a defendant's character is inadmissible in a civil case to prove that the defendant acted in conformity with that character trait unless the defendant's character is an essential element of a claim or defense. Since the defendant's character for peacefulness is not an element of either battery or self-defense, the principal's testimony is not admissible.

A witness who was not a defendant invoked his Fifth Amendment right to remain silent during a federal criminal trial for insider trading. After being given derivative-use immunity, the witness testified. Several weeks later, the witness was a defendant in a state-law civil fraud proceeding based on his previous testimony in the federal trial. He moved to dismiss the case on the grounds that the previous grant of immunity protected him against a future action against him. Will the defendant's motion be granted?

No, because the defendant's immunity does not extend to a subsequent civil trial. Derivative-use immunity protects a witness from the use of the witness's own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution, but does not protect him from its use in a civil suit.

In a criminal trial for attempted murder, the prosecutor seeks to introduce a statement made by the victim immediately after he was attacked by the defendant. The victim, very seriously injured, shouted the defendant's name and said, "I can't believe you shot me! I'm dying!" At the time of the trial, the victim has mostly recovered from his injuries, but suffered permanent memory loss, has no recollection of the incident at all, and has no recollection of making the statement. The prosecutor seeks to introduce the statement as a dying declaration, but the defendant objects. Should this statement be admissible under the "dying declaration" exception to the hearsay rules?

No, the statement is not admissible as a dying declaration A dying declaration only qualifies as a hearsay exception if (i) the statement is made by an individual who believes she is dying, (ii) the individual believes that her death is imminent, and (iii) the statement pertains to the cause or circumstance of her death. The statement made by this victim likely would meet this standard. However, under the Federal Rules, a dying declaration is admissible only in homicide prosecutions and civil actions. Because this is a criminal trial for attempted murder, and not homicide or a civil case, the statement is not admissible as a dying declaration

At about 5:00 a.m., firefighters responded to a house fire. The fire was brought under control in about an hour and completely extinguished approximately two hours later. In the early afternoon, a city fire inspector came to the house with an administrative warrant. The warrant authorized the inspector to search for the cause of the fire and seize items related to it. The inspector first searched the basement of the house, finding a barely recognizable electric curling iron plugged into a partially melted timer, which was set to turn on at about 4:00 a.m. In addition, the inspector found the iron in a large soot blackened tub. Nearby were several empty gallon containers labeled "turpentine." The inspector seized the iron, timer, tub and empty turpentine containers, believing that they constituted evidence necessary to establish the cause of the fire. While the ground level of the house was almost completely destroyed by the fire, the second level was in much better condition. On the second floor, the inspector noticed that there were several empty frames, their pictures apparently having been removed, hanging on the walls. Also the inspector noted that none of the three upstairs bedrooms contained electronic equipment, such as televisions or computers, despite the presence of empty power strips plugged into outlets in these rooms. The inspector seized the empty frames and power strips, believing that they constituted evidence the homeowner had deliberately set the fire. The family who lived in the house was away on vacation at the time of the fire and did not return until the following day. The homeowner was charged with arson. Can the homeowner successfully object to the introduction into evidence of the items seized by the inspector from the second floor of the house?

Yes, because the seizure of these items exceed the scope of the warrant. Although the warrant authorized the fire inspector to search for the cause of the fire, the fire inspector determined the cause of the fire in his search of the basement. As a result, his search of the second floor of the house exceeded the scope of the administrative warrant. On the second floor, he was searching for and found evidence related to whether the homeowner had deliberately set the fire, i.e., whether the homeowner was guilty of arson, rather than the cause of the fire.

In a civil action properly removed from state court to federal district court based on diversity jurisdiction, a jury of eight persons was empanelled. During the trial, the court excused a juror for good cause. The case was submitted to the jury and the remaining jurors returned a verdict for the plaintiff by a vote of 6-to-1. The law of the state in which the court is located requires a verdict to be rendered by a jury of at least six persons in a civil lawsuit and permits a verdict to be reached by a vote of 5-to-1. Can the defendant successfully challenge this verdict?

Yes, because the verdict was not unanimous. Under the Federal Rules of Civil Procedure, a jury verdict must be unanimous, unless the parties stipulate otherwise. Here, the verdict, while rendered by a substantial majority, does not satisfy the unanimity requirement.

A woman met a man at a party at the home of a third person. The woman noticed that the man was wearing an expensive gold watch. As the party was winding down and the woman and man were alone, the woman slipped a sedative into the man's drink. Waiting until the man passed out, the woman then removed the watch from the man's wrist and left the party. Later, the party's host discovered the man asleep, and revived him. When the man discovered that his watch was missing, the man called the police. The man, who lived at home with his parents, had taken the watch from his father's dresser for the evening, without his father's permission. The woman was arrested and charged with robbery. Can she be convicted of the crime?

Yes, because the woman used force to permanently deprive the man of the watch he was wearing. Force can include giving a victim drugs in order to induce unconsciousness and thereby permit the larceny to occur.

When a mortgagor defaulted on her loan obligation, the bank forced a foreclosure sale. Among the claims on the sale proceeds were attorney's fees associated with the foreclosure sale, the unpaid portion of the bank loan associated with the mortgage five years ago, and a debt owed by the mortgagor to a contractor who had recently performed work on the property. The original purchase-money mortgage had previously been paid off. All creditors filed claims in the appropriate court to receive the funds of the foreclosure in satisfaction of the debt. Within the state, none of the interested parties were afforded additional rights or liens on the property other than those regulating regular foreclosure actions. What is the appropriate order of the application of the money from the foreclosure sale to these debtors?

Attorney, Bank, Contractor The money from a foreclosure sale is applied first to the costs associated with the foreclosure sale itself (which would include attorney's fees), second to the mortgage obligation being foreclosed, and finally to the mortgage obligations owed to all junior interest holders. When multiple interests must be paid out of the proceeds, generally, the earliest mortgage placed on the property has priority over the other interests.

A plaintiff brought an action in federal court based on diversity jurisdiction to rescind a contract to transfer real property to the defendant. The plaintiff contended that the defendant's conduct with regard to the contract constituted duress. Upon the death of the plaintiff, the personal representative of the plaintiff's estate continued the action. The applicable state law, which otherwise follows the Federal Rules of Evidence, contains a Dead Man's statute, which reads: In any civil proceeding, where any party to a contract in action is dead and his right thereto has passed to a party who represents his interest in the subject in controversy, any surviving party to the contract shall not be a competent witness to any matter occurring before the death of said party. As part of the case-in-chief, the personal representative introduced an email written by the defendant and sent to the decedent that was relevant to the issue of duress. Immediately thereafter, the defendant, noting that the email was written in response to a letter written by the decedent to the defendant, sought to introduce that letter into evidence. The personal representative objected. Which of the following is the strongest ground upon which the personal representative can base this objection?

Fairness does not require introduction of the letter during the presentation of the personal representative's case-in-chief. The rule of completeness (i.e., Federal Rule 106) permits a party to compel the introduction of a statement that in fairness should be considered at the same time as an admitted writing or recorded statement. Consequently, if fairness does not require the immediate introduction of the prior letter, the defendant will have to wait until the defendant can present evidence in order to introduce this letter.

In December, a contractor was hired by a power utility company to perform repair work on a large transformer. The contractor performed the work negligently and as a result severely damaged one of the conducting coils in the transformer. The damage resulted in a two-day power outage in a town with a large industrial park. An electronics manufacturer was a tenant in the industrial park, and the power outage crippled its ability to meet the strong demand for its products during the critical holiday buying season. While none of the electronic manufacturer's machines were damaged, it can prove with certainty that the power outage directly caused it to lose $750,000 in business. The electronics manufacturer sued the power utility company and the contractor for negligently causing its sales losses. If, at the end of the plaintiff's case, both defendants move for summary judgment, and all the foregoing facts are undisputed, how should the court rule on the motions?

Grant both motions, because the electronics manufacturer suffered no tangible injury to its equipment or employees. A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action. Here, the electronics manufacturer's $750,000 loss is purely economic, so any negligence claim is improper.

A man was arrested and charged with stealing $5 million in an armed bank robbery. The police gave the man his Miranda warnings, and the man indicated that he refused to speak to the police without his lawyer present. The police then placed the man in a holding cell in the police station with an undercover police officer who was posing as a man arrested for drunken driving. The undercover officer asked the man several questions in an attempt to elicit information about the crime and discover where the man's accomplices might be hiding. Believing that he was talking to another prisoner, the man made several self-incriminating statements about the bank robbery, which were secretly taped by a "bug" planted in the holding cell by the police. Assume that at a subsequent trial for the bank robbery, the defense makes a motion to suppress all evidence regarding the statements the man made in the holding cell to the undercover officer. How should the court rule?

Grant the motion because the police violated the man's Sixth Amendment right to counsel. . The man's Sixth Amendment right to counsel was violated by the police action. Under the Sixth Amendment, interrogation constitutes a "critical stage" of prosecution, such that a post-charge interrogation in the absence of counsel violates a defendant's Sixth Amendment right to counsel unless the defendant has waived such right. Interrogation includes not only formal questioning by the police, but any conduct of the police that is intended to elicit a response from a defendant. Here, the man had specifically sought to have his attorney present for any questioning. The police knew this, but placed an undercover officer in his cell with the intent to elicit responses from the man. Thus, the defendant's Sixth Amendment right to counsel was violated and the evidence from the interrogation should be suppressed.

In a bicycle race with a $5,000 prize for the winner, a cyclist was leading by a significant margin. A spectator at the race was married to the second place rider. Sensing that her husband would not win unless she took action, the spectator drove to a point two miles ahead on the course, scattered several nails in the middle of the course, and then left the area. Soon thereafter, the cyclist approached the area and noticed the nails. He attempted to swerve around the obstruction but a nail punctured his tire. He fell off his bike, suffered significant physical injuries, and was unable to complete the race. If the cyclist sues the spectator, under what theory is the cyclist least likely to recover maximum punitive damages?

Intentional infliction of emotional distress. To sustain a claim of intentional infliction of emotional distress, a plaintiff must prove that the defendant intended to cause severe emotional distress, or acted with recklessness as to the risk of causing such distress. The claimed conduct must be extreme and outrageous, and the plaintiff must suffer severe emotional distress. Here, there is no factual evidence that the bicyclist suffered severe emotional distress. A plaintiff can recover punitive damages in assault, battery, and trespass to chattels claims, if the defendant's behavior is willful and wanton, reckless, or if the defendant acted with malice. Here, the facts suggest such a situation, as the spectator was attempting to knock the cyclist out of the race.

A federal statute provides that, in a federal action challenging the constitutionality of a state statute where the state itself is not a defendant, the court must permit the state to defend the statute; if the state declines to do so, a predetermined private law firm in each state has the right to make this defense. A plaintiff was arrested by city police officers for violation of a state criminal statute that prohibited the obstruction of governmental administration because the plaintiff had filmed a public encounter between the officers and a group of protesters. The plaintiff, seeking money damages, sued the city and the police officers in federal court for violation of her civil rights under the First and Fourth Amendments. Among the plaintiff's contentions was the state statute was unconstitutional. The state declined to defend the statute. If the predetermined law firm in the state seeks to defend the statute, the firm should file a motion based on which of the following rules?

Intervention as of right. A nonparty such as the private law firm has the right to intervene when a federal statute grants that right. Here, a federal statute grants the law firm the right to intervene to defend the constitutionality of the state statute.

A defendant was convicted of bank robbery in federal court. Subsequently, the defendant was indicted in the state where the bank was located for the crimes of robbery and conspiracy to commit robbery. The defendant moved to dismiss the state prosecution of these offenses on double jeopardy grounds. Should the defendant's motion be granted?

No, as to either offense. Under the "Dual Sovereignty" doctrine, prosecution of a defendant by the federal government for a crime arising out of an event does not prevent a state from prosecuting the defendant for a crime arising out of the same event. (Note: Under this doctrine, the reverse is also true.) Under Blockburger, robbery and conspiracy to commit robbery are separate offenses. Each contains an element that the other does not. Consequently, prosecution of the defendant for either robbery or conspiracy to commit robbery by the state is not prohibited by double jeopardy.

Article I, § 4 of the Constitution provides: "The times, places and manner of holding elections for Senators and Representatives shall be prescribed by each state legislature, but Congress may . . . make or alter such regulations." Congress enacted a statute requiring every state to allow voters to register to vote in federal elections either by mail or at a state motor vehicle department. If a state refuses to comply with the statute and is sued by the federal government, will the state likely prevail?

No, because Article I, § 4 permits Congress to require states to change their laws regarding federal elections. The Elections Clause of Art. I explicitly empowers Congress to override state laws concerning federal elections. This express provision makes irrelevant general principles of federalism embodied in the "commandeering" cases. Answer choice D is incorrect because, although conducting elections is a traditional function of state governments, the Elections Clause allows congressional interference with that function to the extent that it involves the election of United States senators and representatives.

A corporation entered into an agreement with an accountant to audit the corporation's books pending a sale of all of the company's assets. The agreement specified that the accountant would perform "all services relating to the sale of assets of the corporation." The agreement was fully integrated, but did not contain a merger clause. The day after the agreement was executed, the corporation and the accountant amended the agreement to include the evaluation of prospective buyers, for $2,000 per buyer. The accountant evaluated two corporations who were potential buyers. The corporation refused to pay the additional $4,000. In a breach of contract action, will evidence of the evaluation agreement be excluded?

No, because the agreement regarding the evaluation of prospective buyers was entered into after the execution of the writing. The parol evidence rule does not apply because the second agreement was entered into after the writing was executed; the rule only applies to agreements reached before or contemporaneous with the writing.

An attorney represents a corporation in a federal securities case. As the attorney reviewed her files before court, she discovered that—despite her diligence—a memo marked "PRIVILEGED AND CONFIDENTIAL" had inadvertently been included in a folder containing public financial documents. The attorney knew that she had copied this folder and produced it in its entirety to opposing counsel during discovery. However, the memo is detrimental to her client's case. The attorney immediately contacted opposing counsel and requested that the memo be returned to her, that all copies be destroyed, and that the information within the memo not be used at trial; she included the judge on this correspondence. Opposing counsel refused to return the memo, and informed the attorney that they did plan to use it at trial. The memo in question was from the corporation's chief executive officer to the attorney, and contained the chief financial officer's thoughts and questions regarding the attorney's trial strategy. Should the court allow opposing counsel to introduce the memo into evidence at trial?

No, because the attorney did not waive the privilege. In a federal proceeding, the disclosure of a protected communication does not operate as a waiver if (i) the disclosure was inadvertent, (ii) the holder of the privilege took reasonable steps to prevent disclosure, and (iii) the holder promptly took reasonable steps to rectify the error, including contacting the party to whom the communication was disclosed and requesting that they return, sequester, or destroy the information. In this case, the facts indicate that the disclosure was inadvertent and that the attorney had acted diligently during discovery. Further, the facts indicate that the attorney immediately notified opposing counsel of her error. As such, the privilege was not waived by her inadvertent disclosure

A woman took her car to an unscrupulous auto mechanic's garage for a tune-up. The woman's car had a new and expensive set of tires that the mechanic coveted. The woman left her car at the garage overnight. Later that night, after the woman had left the premises, the mechanic took the tires off the woman's car, put them into a back room of his garage, and replaced the tires with a cheap, old set. That same evening, the woman's friend told her about the mechanic's unscrupulous nature, and that he had a habit of stealing tires. The woman went back to the garage the next morning. Noticing that the tires on her vehicle were different, she demanded that the new, expensive tires be put back on the vehicle. The mechanic complied, and the woman left the premises. The woman reported the mechanic to the police, and the mechanic is charged with larceny. Based on the foregoing facts, should he be convicted of the crime?

No, because the car was left with the mechanic by consent. For a larceny, the initial taking and asportation of another's property must be trespassory; that is, the defendant must not be legally entrusted with the property. Here, the woman entrusted the mechanic with her vehicle (and the tires on the vehicle). Thus, the initial taking of the tires was not trespassory, and the mechanic's crime was embezzlement, not larceny.

A company owned and operated a private golf course. One of the fairways on the course ran parallel to a navigable body of water. The company was aware that golfers frequently but unintentionally hit golf balls into the water when playing that hole because there were no barriers to prevent the balls from going into the water. A 12-year-old child, while sailing on the water, was struck by one such ball and suffered a serious physical injury. The injured child's parent has filed a public nuisance action against the company, on behalf of his child, to recover for his injuries. Is the plaintiff precluded from recovering?

No, because the child was seriously injured while on navigable water due to the company's negligence. In order for a private citizen to successfully maintain a public nuisance action, that person must suffer a special injury that is different in kind to that suffered by the general public. The plaintiff's physical injury here constitutes a special injury. In addition, with respect to the use of a public passageway, the plaintiff's injury must arise from the use of that passageway and the defendant's conduct must interfere with, obstruct, or render the passageway dangerous for passage.

The defendant declined to enter into a contract to sell her house for $200,000 to the plaintiff. The next day, the defendant executed a contract to sell her house to another individual for $201,000. The plaintiff sued the defendant in the appropriate federal court and claimed that the defendant's decision was based on the plaintiff's ethnicity and thus violated a federal statute. The court granted summary judgment for the defendant. The plaintiff then sued in the same federal court, claiming that the defendant's decision was based on the plaintiff's disability, in violation of another federal statute. Can the plaintiff pursue this action if challenged by the defendant?

No, because the claim of disability discrimination was precluded, as it arose out of the same transaction as the prior claim of discrimination based on ethnicity. The federal court's final judgment in the first case precludes the plaintiff from litigating the identical claim in the second action against the same defendant. Here the two actions are deemed to be identical because they arose out of the same transaction: the defendant's decision not to sell her house to the plaintiff.

A homeowner who sought to sell his home entered into an agreement with a real estate agent to market the home. The agreement specified that the agent was entitled to a commission if the agent procured a buyer who was "ready, willing, and able" to purchase the home in accord with the contract terms. The agent found a buyer who agreed to pay the seller's asking price for the home and who pre-qualified for a loan to finance the purchase. The buyer and seller entered into a contract of sale. Among the provisions in the contract was a home inspection clause, which permitted the buyer to enter the property and conduct an inspection of the home. After conducting the inspection, during which the buyer learned of the antiquated nature of the electrical system that did not satisfy the electrical code for newly constructed homes, the buyer, in accord with the inspection clause, presented the seller with a request to upgrade the electrical wiring. Because of the cost of such an upgrade, the seller refused. Under the terms of the inspection clause, the inability of the buyer and seller to agree resulted in the voiding of the contract. Is the agent entitled to a commission to be paid by the homeowner?

No, because the contract was subject to a condition precedent that was not satisfied. While the fact that the buyer entered into a contract would generally indicate that the buyer was both ready and willing to complete the purchase, the buyer's contractual duty was subject to a condition precedent, a satisfactory resolution of any defects uncovered by the home inspection. Since that condition was not satisfied, the buyer was not ready and willing to purchase the home.

An auto dealership sold a limited-production luxury vehicle as part of its business. It typically sold very few of the vehicles per year, but continued the business because it earned $25,000 in profit on each sale. The vehicles sold at retail for $150,000. A car buyer entered into a contract with the dealership to purchase one of these vehicles with the color scheme and options she desired, which the dealership ordered from the manufacturer. She signed a written order form and put down a $50,000 deposit on the vehicle. The form specified that, in the event that the buyer failed to purchase the vehicle, the deposit was non-refundable, representing liquidated damages that did not constitute a penalty. Later, the car buyer found a better price on an identical vehicle at another dealership, and purchased that vehicle. She demanded the return of her deposit, but the dealership refused. The dealership had difficulty selling the car, and eventually had to sell it at the discounted price of $100,000. The car buyer filed a lawsuit seeking to void the non-refundable deposit provision of the order form and seeking the return of her deposit. Is she likely to prevail?

No, because the deposit was reasonable in relation to the actual damages the dealership suffered. Liquidated damages are damages stipulated by the parties in the contract as a reasonable estimation of actual damages to be recovered in the event of a breach without proof of actual loss. When the contract contains a liquidated-damages clause, the party seeking to repudiate that clause must show that the agreed-to damage is so exorbitant as to be in the nature of a penalty. While the deposit was twice as large as the dealership could have estimated its damages would be in the event of a breach by the buyer, the deposit ended up being exactly equal to the dealership's actual damages. Answer choice C is incorrect because, although a court may consider language in the contract stating that the liquidated damages provision is not a penalty, such an exculpatory term is not controlling.

A driver was speeding through a town's business district. The driver swerved suddenly to avoid hitting a car that was double parked in the middle of a traffic lane, and hit a pedestrian who was crossing the street. The pedestrian filed a complaint in federal district court in the state where the accident occurred against the owner of the car that was double parked. The pedestrian argued that the owner's negligence in leaving his car in the middle of a traffic lane caused the pedestrian to sustain physical injuries, and asserted $100,000 in damages. The plaintiff-pedestrian is a citizen of the state where the accident occurred, and the defendant is a citizen of a neighboring state. The driver of the speeding car is a citizen of the state where the accident occurred and is in the midst of a personal bankruptcy action. The defendant filed a motion to dismiss, arguing that the driver of the speeding car was an indispensable party. Applicable state law provides that tortfeasors may be jointly and severally liable for a plaintiff's injuries. Is the court likely to grant the defendant's motion to dismiss?

No, because the driver is not subject to compulsory joinder. A person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction or destroy venue must be joined as a party if the party's participation in the lawsuit is necessary for a just adjudication. Tortfeasors facing joint and several liability are not considered necessary parties. In this case, the driver was a joint tortfeasor and thus was not a necessary party, so the court was correct to allow the case to proceed without the driver.

A uniformed police officer learned about a possible burglary of a home and went to investigate. When the officer arrived, she attempted to get into the home through the front door, but found it locked. Going to the back of the home, the officer found a door slightly open. Drawing her gun, she entered the home and announced that she was a police officer. The homeowner, honestly but unreasonably fearing that the officer was the person who had broken into the home earlier, shot and killed the officer. The homeowner was charged with murder of the police officer. The jurisdiction recognizes "imperfect" self-defense. Can the homeowner be convicted of this crime?

No, because the homeowner honestly believed that the police officer threatened him with death or serious bodily injury. Although a defendant who is not the aggressor is justified in using reasonable force in self-defense against another person to prevent immediate unlawful harm to himself, the defendant's belief that the other person's actions represent an immediate threat must be reasonable. When such belief is unreasonable but honest, the defendant is entitled to assert "imperfect self-defense," which reduces his crime from murder to voluntary manslaughter. Consequently, the homeowner cannot be convicted of murder, since he acted in self-defense on his honest but unreasonable belief that the officer threatened him with death or serious bodily harm. Answer choice C is incorrect because, although an accurate statement of the law, the absence of a duty to retreat protects the homeowner from criminal liability for the use of deadly force only when the homeowner's belief as to the need to use deadly force was reasonable.

A defendant is on trial for robbery. A witness picked the defendant's picture out of a photo array that was conducted by a police officer at the police station after the defendant's arrest. The photo array was impermissibly suggestive. No counsel was present for the defendant at the photo array. Later, at trial, the witness identified the defendant. Because of the witness's extended opportunity to view the defendant at the time of the crime, this identification was reliable. The defendant moves to suppress the identification. Should the court grant this motion?

No, because the identification was reliable. In order for a witness to be prevented from identifying the defendant in court due to a previous impermissibly suggestive photo array, the defendant must demonstrate that there was a substantial likelihood of misidentification, which is not the case here. No right to counsel at photo ID.

A borrower owed a substantial sum of money to an unsavory lender. One afternoon, the lender knocked on the borrower's door. When the borrower opened the door, the lender was holding a baseball bat and said, "If you don't get me the money you owe within the next two hours, I'll break your legs." The borrower was extremely frightened, and immediately gave the lender the cash needed to satisfy the debt. If the borrower later sues the lender for assault, will the borrower prevail?

No, because the lender gave the borrower two hours to deliver the money. To recover for assault, a plaintiff must prove that the defendant's intentional action or threat caused the plaintiff to experience reasonable apprehension of an imminent harmful or offensive bodily contact. Here, the lender threatened the borrower with harm two hours later in time; thus, the threatened harmful bodily contact was not imminent, and an assault claim cannot prevail.

A man and his friend attended their 10-year high school reunion party. There, the two struck up a conversation with another former classmate. Neither the man nor his friend had seen the classmate since high school. At the end of the reunion party, the three decided to walk to a nearby bar. As they were walking to the bar, the friend suggested a shortcut through an alley. In the alley, the friend grabbed the classmate, took out a gun, and threatened to rob him. The man, despite the classmate's pleas to help him, continued walking on towards the bar. Once there, the man ordered a beer and watched a sporting event on television, while his friend robbed the classmate in the alley. The man was charged as an accomplice to robbery. Should he be convicted of the crime?

No, because the man did not commit an actus reus for which he could be criminally liable. The man owed no duty to the classmate, since they shared no special relationship. Consequently, his failure to act to prevent his friend from robbing him does not constitute an actus reus on which criminal liability can be predicated. Answer choice B is incorrect because accomplice liability, unlike conspiracy, does not require an agreement between the parties.

A hospital placed an order to purchase scalpel blades from a medical supply company. The hospital specified that the blades were to be shipped immediately. Upon receipt of the order, the supply company discovered that it did not have the type of blade ordered by the hospital, and shipped instead a different type of blade, along with a note that these blades were not the type ordered by the hospital but were sent as an accommodation. The hospital rejected and returned the shipped blades, then sued the supply company for breach of contract. Will the hospital be successful in its suit?

No, because the medical supply company did not accept the hospital's offer. Answer choice D is correct. Normally a shipment of goods by a seller made in response to an order placed by the buyer constitutes acceptance of the buyer's offer. Such a shipment does not constitute acceptance, however, if the seller indicates that the shipped goods are made as accommodation. Since the supply company so designated the blades that it sent, the shipment did not constitute acceptance. Consequently, no contract was formed, so there can be no breach.

A law makes it a crime to "knowingly sell, distribute, or barter a sexually explicit film featuring actors younger than the age of majority." The owner of an adult video store sold explicit videos in her store that featured 18-year-old actors, but she took reasonable steps to ensure that no videos featuring younger actors were sold in her store. The video store owner, however, incorrectly believed that the age of majority in the jurisdiction was 18; in fact, the age of majority was 19 years old. The owner was arrested and charged with violating the statute in a jurisdiction that has adopted the Model Penal Code. The prosecution does not contest that her error was made honestly. Should she nonetheless be convicted?

No, because the owner's error negated the requisite mens rea. If a statute does not state the culpable mind applicable to all material elements of the crime, then the mens rea applicable to one material element is applicable to all material elements unless a contrary purpose plainly appears. Consequently, the "knowingly" state of mind is applied to both the "sell, distribute, or barter a sexually explicit film" element and the "featuring actors younger than the age of majority" element. Here, the store owner subjectively did not know that the videos she was selling featured performers below the age of majority; thus, she cannot be convicted under the statute.

A brother and sister were suspects in a bank robbery, but the police were having difficulty finding any evidence in their investigation. The police told the brother that if he testified against his sister, he would be granted use immunity for his testimony. The brother agreed. At the sister's trial, the brother testified that he and his sister had each used a gun in the robbery, and that he had helped her threaten the bank teller with his gun. He also testified that after the robbery, he had hidden his gun in a safe in an abandoned shed in the woods behind his apartment. The sister was convicted based on the brother's testimony. After the trial, the police found the safe in the abandoned shed and located the brother's gun. The brother was then charged with felony assault with a firearm for threatening the bank teller with the gun during the robbery. The brother has refused to take the stand at his trial. Can the gun be offered as evidence at the brother's trial for felony assault with a firearm?

No, because the police used the brother's testimony from the sister's trial to locate the gun. A witness may be compelled to provide incriminating testimony if the government grants him immunity from prosecution. "Use" immunity prohibits only the use of the compelled testimony against the witness. If the government does prosecute the witness in such a case, the government has the burden to show that the compelled testimony did not provide an investigatory lead that was helpful to the prosecution. Here, the brother was granted use immunity, and the police only knew about the safe because the brother had testified about it after being granted use immunity. Therefore, the gun is not admissible. Answer choice A is incorrect. If use immunity did not apply here, the brother's testimony about the gun could be admitted as a statement by a party opponent. Additionally, there is no evidence that the chain of custody cannot be established or that the gun cannot be authenticated as the one found in the safe without the brother's testimony. Therefore, the foundation could still be laid without the brother's testimony at his trial, provided that use immunity did not prevent the admission of the gun. Answer choice C is incorrect because transactional immunity is not required to prevent the admission of the gun as evidence. If the government prosecutes a witness with use immunity, the government has the burden to show that the compelled testimony did not provide an investigatory lead that was helpful to the prosecution. Because the prosecution cannot meet that burden here, using the gun as evidence would violate the brother's use immunity. Answer choice D is incorrect because use immunity prevents the use of the compelled testimony against the witness. It does not grant complete immunity from a specified charge.

A buyer who was not a merchant entered into a written contract to purchase a new car from a dealer at a cost of $35,000. Since the buyer desired a particular combination of features on the car and the dealer did not have a car with such features in its inventory, the dealer ordered the car from the manufacturer. When the car arrived, the dealer discovered that the manufacturer had increased the dealer's price for the car by five percent. Acting in good faith, the dealer sought to increase the buyer's price of the new car by a similar percentage. Reluctantly, the buyer orally agreed to the price increase, then had a change of heart and refused to complete the purchase. The car dealer eventually sold the car to another customer for $35,000. The dealer sued the buyer to recover damages for breach of contract. Will the dealer be entitled to damages?

No, because the price increase was not in writing. The UCC Statute of Frauds generally requires that a modified contract be in writing where the value of the goods is $500 or more. There is an exception for specially manufactured goods, but for this exception to apply, the goods cannot be suitable for sale to others in the ordinary course of the seller's business. Because the dealer sold the car to another customer, this exception would not apply. Since the written evidence of the parties' agreement fixed the price of the car at $35,000 and the dealer received this amount from another customer, the dealer would not be entitled to damages. Answer choice A is incorrect because the preexisting duty rule does not apply to a sale of goods governed by the UCC.

A recidivism statute calls for a mandatory life sentence for a defendant who is convicted of three felonies. The defendant was convicted of felony theft three separate times and was sentenced to life in prison after his conviction for the third theft. In each case, the defendant stole the items from stores when nobody was watching. He did not use any weapons, nor was he violent. The defendant challenges the sentence on constitutional grounds. Will the defendant succeed?

No, because the recidivism statute is constitutional even when applied to non-violent offenders. The Eighth Amendment prohibition does not prohibit life sentences for three-time repeat felony offenders, even if they are non-violent,

A state maintained its departments, including its Fish and Game Department, through tax revenues collected primarily from its residents. The department required all recreational deer hunters (i.e., those who hunt purely for sport) to obtain a deer hunting license. The license fee was $25 a year for state residents and $150 a year for out-of-state residents. An out-of-state resident wanted to go deer hunting for sport. He objected to paying a license fee that was six times the fee paid by in-state residents. He sued in an appropriate federal court. Will the court hold that the licensing fee scheme for recreational deer hunting is unconstitutional?

No, because the scheme is constitutionally valid under Article IV's Privileges and Immunities Clause, as recreational deer hunting is not a fundamental right, and a state may charge its residents a lower fee because their taxes support the Fish and Game Department. nswer choice C is incorrect because the Dormant Commerce Clause applies only when a state discriminates against an out-of-state commercial actor, whereas here the out-of-state resident wishes to hunt for noncommercial, recreational purposes.

A city often required persons seeking building permits to agree to aesthetic and environmental conditions in order to obtain such permits. A company applied for a permit to construct a 300,000 square foot warehouse on its land in the city. The city conditioned the permit on the company's agreement to plant 45 trees on the property and to limit the building's height to 70 feet. The city had imposed similar conditions on other property owners. The effect of these conditions was to reduce the value of the company's property by three percent, but they did not prevent the construction of a warehouse on the land. The company sued, claiming that the imposition of these conditions violated its constitutional rights. Would a court be likely to strike down these conditions?

No, because, under the Takings Clause, they advance a legitimate government interest and do not deny the company the economically viable use of its land. The Due Process Clause of the Fourteenth Amendment incorporates the Takings Clause of the Fifth Amendment, thereby making it applicable to the states. State and municipal zoning laws survive challenges under the Takings Clause as long as the government has a legitimate interest, which includes aesthetic and environmental concerns, and does not deny the property owner the economically viable use of his property. Answer choice D is incorrect because a property owner is entitled to compensation only where governmental action results in a taking. Here, a three percent reduction in the value of the company's property due to the conditions placed on it by the city does not constitute a taking.

Two friends, a chef and an electrician, together purchased a beachfront residence. They took title to the residence as joint owners, with the chef owning a 75% interest and the electrician a 25% interest. The chef, during the time he used the residence, prepared elaborate meals. He advertised those meals, attracted a paying clientele, and made a net profit from them. The electrician pointed out to the chef that the electrical system in the house was in dangerous condition. The chef, agreeing with the electrician that repair of the system was necessary, stated that he had neither the time nor the expertise to fix it himself and couldn't afford the cost of doing so. The electrician repaired it and demanded that the chef contribute to the cost of the repair. The chef refused. The electrician brought an action for partition. The court ordered the sale of the residence. It was purchased by a third party for its appraised value. In allocating the sale proceeds, should the court take into account either the chef's net profit from the meals or the electrician's repair of the electrical system?

Only the electrician's repair of the electrical system. The friends have a tenancy in common interest in the residence. Because there is a partition action, the electrician's repair of the electrical system must be taken into account because the repair was necessary. However, the chef's profit is not taken into account. Net income from a business operated by a co-tenant on the premises is not required to be shared with any other cotenants

An individual acquired a newly constructed house with a purchase money mortgage. Although the deed was recorded, through an oversight by the mortgagee, the mortgage was not. Several years later, the individual sold the house at its fair market value to a couple who obtained a purchase money mortgage through another mortgagee. Both the deed and the mortgage were recorded. Neither the couple nor the second mortgagee was aware of the prior mortgage. Shortly thereafter, the couple was killed in an accident, survived by their two young children. The couple did not leave a will. Under the law of intestate succession, the young children are the rightful heirs of their parents. The children's financial guardian, having been contacted by both mortgagees, has filed an appropriate action to determine ownership of the house. The jurisdiction is a lien state with regard to mortgages. In addition, the applicable recording act reads, "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." Who is entitled to priority with respect to the house?

Second mortgagee, children, first mortgagee The recording statute is a notice statute. Since the second mortgage was given by the mortgagee without notice as to the first mortgage, it has priority over the first mortgage. A purchase money mortgagee is treated as having paid value for purposes of the recording act. In addition, since the second mortgage was given by the couple before their deaths, the children's claims to the property as heirs of their parents are junior to the second mortgage. The recording act would not be helpful to the children's claim because the second mortgage was recorded before their interests arose and because as heirs they are not purchasers for value protected by the act. With regard to the first mortgage, while the children as heirs are not protected by the act, they are protected under the shelter rule because their parents were entitled to priority over the first mortgage by virtue of acquiring the property without notice of that mortgage.

A federal statute provides that "all persons within the United States shall have the same right in every state to make and enforce contracts as is enjoyed by white persons." The Supreme Court interpreted this statute as applying to all contracts, including private contracts. A black citizen of a state in the United States claims that an appliance store in her state violated this statute by refusing to enter into a sales contract with her because of her race. The appliance store defended on the ground that the statute is unconstitutional. A federal court would be most likely to uphold this statute by relying upon which provision of the Constitution?

The Thirteenth Amendment. Unlike the Fourteenth Amendment and the Contracts Clause, the Thirteenth Amendment does not require state action. Rather, it abolishes slavery and its "badges and incidents," including racial discrimination in private transactions like contracts. Moreover, Section 2 of the Thirteenth Amendment authorizes Congress to enact legislation to implement its guarantees. Answer choices B and D are incorrect because, as mentioned, the Contracts Clause and the Fourteenth Amendment protect against wrongful conduct by the government, rather than a private party such as the appliance store.

A city airport is one of the busiest in the nation and caters to travelers of all kinds, particularly sports stars. The airport had struggled for many years to maintain order at security checkpoints when these sports stars were recognized by fans. For security reasons, the board of the city's airport commission used government funds to build a special terminal with a separate, faster security checkpoint where sports stars could go without having to interact with the general public. A recent study that was given to the board showed that female sports stars earn an average of $150,000 per year, whereas male sports stars earn an average of $400,000 per year. The same study suggested that although there is a correlation between an athlete's income and his or her popularity among fans, the two factors are not directly proportional. To prevent the need for a costly and time-consuming application process for athletes wanting to use the special terminal, the board required that a sports star must earn a yearly salary of at least $300,000 to use the private terminal. A female sports star who earns $175,000 per year would like to use the special terminal, but is not permitted to do so. The female sports star sued the board, claiming that the minimum salary requirement violates her constitutional rights. Which of the following argument's best supports the female sports star's challenge to the minimum salary requirement?

The board's prior knowledge of the study evidences a discriminatory intent in setting the minimum salary requirement. To trigger strict or intermediate scrutiny under the Equal Protection Clause of the Fourteenth Amendment, there must be discriminatory intent on the part of the government. The fact that legislation has a disparate effect on people of different races, genders, etc., without intent, is not sufficient to trigger strict or intermediate scrutiny. Instead, proof of discriminatory motive or intent is required. Here, the female sports star should argue that there is discriminatory intent because the board was aware of the fact that the average female star earns far less than $300,000. Thus, there would be a disparate impact on female sports stars coupled with a discriminatory intent, thereby triggering intermediate scrutiny, as gender is a quasi-suspect class.

A buyer purchased a newly constructed house from a builder for use as a residence. The buyer did not perform an inspection of the house prior to the purchase. Neither the contract nor the deed contained any warranties as to the condition of the house. Six months later, during a heavy downpour, the basement flooded. Since that time, whenever there has been a substantial rain, there has been water in the basement. The source of the problem has been identified as several cracks in the foundation wall that surrounds the basement. An expert hired by the buyer has opined that the cracks formed due to settling after the home was built and could have been prevented by adherence to proper construction methods. The builder has repeatedly refused to address the problem. Just before the first anniversary of the purchase, the buyer filed suit against the builder for the defective foundation wall and the resulting damages. There are no applicable state statutes that address the issue. Who will prevail?

The buyer, because the builder breached the implied warranty of fitness or suitability. A builder or other commercial seller of a newly constructed residence gives a warranty of fitness or suitability to the buyer. When this warranty is not mandated by statute, the courts have implied such a warranty. The warranty covers material defects that could not have been uncovered by the buyer through a reasonable inspection prior to purchase. Here, the cracks are material in that they are the cause of the buyer's wet basement and, since they formed after the house was constructed, could not have been uncovered by the buyer prior to the purchase.

Following an accident in which a pedestrian was struck and killed by a bus, the pedestrian's children filed a wrongful death action against the bus company. In the complaint, the plaintiffs asserted that the bus company was vicariously liable for the bus driver's negligence, and also liable for its own negligence in hiring the bus driver. In support of both theories of liability, the plaintiffs moved to admit into evidence the bus driver's driving record prior to the driver's employment with the bus company. The driving record included several misdemeanor moving violations and prior suspension of the bus driver's license. The defendant objected, arguing that the evidence constituted improper character evidence. How should the court rule?

The court may admit the driving record, but only to support the negligent hiring theory. In a civil case, evidence of a person's character trait generally is inadmissible to prove that the person acted in accordance with that character trait on a particular occasion. Character evidence is admissible, however, when character is an essential element of a claim or defense, rather than a means of proving a person's conduct. Here, the bus driver's driving record cannot be used to show that the bus driver had a propensity to drive negligently and did so on this occasion, but it can be admitted for the purpose of showing that the bus company knew or should have known about the driving history of its employee and therefore acted negligently in hiring the bus driver.

A defendant was charged with the sale of narcotics. At his trial, the prosecution planned on calling as witnesses the police officer who investigated the crime, an eyewitness to the crime, a desk officer to testify regarding chain of custody, and a former co-defendant who had reached a plea agreement with the prosecution. The defendant demanded, as a matter of right, that each of these individuals be excluded from the courtroom to prevent them from hearing the testimony of the other witnesses. The prosecution objected to removing any of these individuals from the courtroom. Which of the following individuals should the judge order be removed from the courtroom?

The eyewitness, the former co-defendant, and the desk officer, but not the investigating officer. At a party's request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies. There is an exception for an officer or employee of a party who is not a natural person, and this exception has frequently been applied to the police officer in charge of investigating a criminal case.

An organization against drunk driving sought permission from the owner of a mall to pass out leaflets in favor of tougher drunk driving laws in front of a liquor store. The mall owner denied the organization permission. The organization, filing an action in an appropriate court, sought an injunction permitting the organization to pass out its leaflets in accord with its free speech rights. The state's highest court, interpreting the state constitution, permits the exercise of free speech rights on private property that is regularly held open to the public. Of the following reasons, which is the best argument for granting the injunction?

The leafleting was permitted by the state constitution. Although, for the reasons discussed below, the First Amendment to the United State Constitution does not require the mall owner to permit leafleting in this instance, the state constitution as interpreted by the state's highest court does. A state may expand, but cannot contract, individual rights, such as free speech, granted by the United States Constitution. Answer choice A is incorrect because, although leafleting is a form of speech that enjoys First Amendment protection, such protection does not extend to leafleting on private property, even private property that is open to the public such as a mall. Answer choice B is incorrect because the fact that the purpose for leafleting has a logical relationship to the location where the leafleting is to be conducted does not trigger First Amendment protection of the leafleting, where that location is private property. Answer choice D is incorrect because, as noted with respect to answer choice A, the opening of private property to the public does not convert it into a public or limited public forum at which leafleting must be permitted despite the objection of the owner of the property.

A retail furniture store ordered ten sofas from a manufacturer at $1,000 each, plus shipping, to be delivered and paid for in five equal monthly installments. With the first shipment of two sofas, the manufacturer sent an invoice to the retailer, billing the retailer $2,000 plus shipping. The invoice also noted that the manufacturer retained a security interest in all sofas shipped until the purchase price for all sofas ordered was paid in full. Not happy with the security interest term, the retailer immediately notified the manufacturer that this term was unacceptable. After sending payment for the first two sofas, the retailer told the manufacturer not to send any more sofas. The manufacturer sued the retailer for breach of contract. In the breach of contract action by the manufacturer against the retailer, what will be the result?

The manufacturer will prevail, but can only enforce the terms of the original offer. Even if the manufacturer included an additional term in its acceptance and the retailer objected to that term, a contract was still formed on the terms of the original offer.

An artist who had designed a sculpture to be made out of steel went to the website of a merchant that sold specialized tools. Using the chat feature, the artist explained to an employee of the merchant that the artist wanted to purchase a tool that could cut through steel. The employee suggested that the artist purchase a particular saw. The employee, pointing out that the website's description of the saw indicated that it could cut through most metals, added that the saw "should cut through steel with no problem." The artist purchased the saw from the merchant's website for a total cost of $450. Conspicuously appearing on the page where the artist had to indicate his consent in order to purchase the saw was the following: "There are no implied warranties provided with this product other than the general warranty of merchantability." The tool failed to cut through the steel that the artist intended to use for his sculpture. The artist sued the merchant for damages attributable to breach of the implied warranty of fitness for a particular purpose. Which party is likely to prevail?

The merchant, because the merchant disclaimed the warranty of fitness for a particular purpose. A warranty that the goods are fit for a particular purpose may be disclaimed by a conspicuous writing. Such a writing need not refer to this warranty by name.

A chef decided to start a food truck business. He borrowed $60,000 from a bank to buy a food truck, and secured the loan by mortgaging his home. The bank recorded the mortgage the day after this loan was made. The following week, the chef borrowed an additional $50,000 from his mother to buy cooking appliances for the truck. He also secured the loan by a mortgage on his home, and his mother recorded this mortgage in a timely manner. The food truck business proved to be a bad investment for the chef, and he was unable to make any payments on his bank loan. He approached his father for help paying off the bank loan and his father agreed to loan him $40,000, secured by a mortgage on the chef's home. The father recorded his mortgage in a timely manner. The father believed that the bank loan would be paid off in its entirety by the father's $40,000 loan. He was unaware of the loan by the chef's mother, who was his ex-wife. The chef used the $40,000 from his father's loan to partially pay off the bank loan. When the chef failed to make monthly payments to his mother, she brought a foreclosure action against the chef. In the foreclosure action, whose mortgage will be deemed to have priority?

The mother's mortgage, because the father recorded his mortgage after the mother did. All jurisdictions have enacted recording statutes. Regardless of which recording act applies, the mother's mortgage has priority because she recorded first.

The owner of a lakefront home in a retirement community that greatly restricts access by nonresidents was aware that her dock needed repair, but was unable to afford the considerable expense to do so. The owner placed a large heavy chair at the entrance to the dock with a sign that read, "Please do not enter. Dock in need of repair." Two children, a six-year-old boy and a ten-year-old girl, entered the property without permission from, or knowledge of the owner. The children quickly discovered the dock. The girl read the sign aloud to the boy and advised him, "You shouldn't go out on the dock." The boy, responding "But it's not dangerous," climbed over the chair and walked out onto the dock. As the boy ran to the end of the dock, a rotten plank on which the boy stepped gave way, and he fell into the lake and drowned. As permitted by the applicable jurisdiction, the boy's parents sued the owner in a wrongful death action alleging that her negligence with respect to the dock caused the boy's death. At trial, the boy's parents argued that the dock constituted an attractive nuisance. Which of the following may protect the owner from liability that otherwise would arise under this doctrine?

The owner lives in a retirement community that greatly restricts access by nonresidents. In order for the attractive nuisance doctrine to apply, the landowner must know or have reason to know that the artificial condition is located in a place that children are likely to trespass. Because the owner lives in a retirement community that greatly restricts access by nonresidents, this requirement is not satisfied.

After consuming too much alcohol, an actor tripped over his own feet and smashed face first into a sidewalk. The actor delayed seeking medical attention for his facial injuries for several days, which aggravated those injuries. When the actor finally sought treatment from a plastic surgeon, the plastic surgeon negligently performed the operation on the actor's face. After surgery, the actor failed to follow the surgeon's post-operative instructions. All of the actor's actions coupled with the surgeon's negligence contributed to the actor's permanent facial scarring. The actor received reimbursement for some of his medical expenses from an insurer under a health insurance policy. The actor sued the plastic surgeon for damages attributable to the surgeon's medical treatment of the actor's facial injuries. The applicable jurisdiction has not modified the common law collateral-source rule. Assuming that the monetary effect of each of the following can be established with reasonable certainty, which can be taken into account to reduce the damages to which the actor would otherwise be entitled due to the surgeon's negligence?

The plaintiff's failure to follow the surgeon's post-operative instructions. The plaintiff must take reasonable steps to mitigate damages. A failure by the plaintiff to mitigate his damages can be taken into account in determining the amount of the plaintiff's damages. Answer choices A and B are incorrect because the plaintiff's conduct, while contributing to the plaintiff's injuries, produced the condition that the defendant undertook to treat. Consequently, the surgeon is not liable for such injuries, but only for the harm caused by the surgeon's negligent treatment of those injuries.

In the Labor Management Relations Act, Congress expressly authorized the president to seize plants to avert a labor shutdown if the president determined that a shutdown would threaten national security. In response to a threatened national strike by America's steel workers, the president ordered the government to seize and operate steel mills to ensure steel production that the president deemed vital to the War on Terrorism and hence to national security. Subsequent to the order, Congress did not explicitly approve or disapprove of the president's action. One of the companies affected by the president's order filed a suit in an appropriate federal court claiming that the order violated the Constitution. What is the most likely ruling?

The president had Article II power to take this action. Presidential power under Article II is greatest when the president acts pursuant to Congressional authorization. Here, Congress expressly authorized the president to seize plants to prevent a shutdown that would threaten national security.

A homeowner held title to her residence in fee simple absolute. During her ownership, the homeowner converted a first floor room into a library. She designed floor-to-ceiling bookcases with elaborate decorative items. She contracted with a carpenter to build and install the bookcases in the room. The bookcases were affixed to the walls of the rooms with screws rather than nails so that they could be more easily removed. She intended to take the bookcases with her if she ever moved. In the sales brochure that was prepared by the homeowner's real-estate broker and approved of by the homeowner, the room was described as a library, but no specific mention was made of the bookcases. The contract of sale did not contain a reference to the bookcases. After the contract of sale was entered into, the homeowner had the bookcases removed from the house and repaired the damage to the walls caused by their removal. On a walk-through of the premises prior to closing, the buyer discovered that the bookcases had been removed. The buyer, after balking at the transfer of the property without the bookcases, agreed to accept the deed but reserved the right to pursue an action regarding the removal of the bookcases. In the action based on the removal of the bookcases brought by the buyer for money damages, which of the following would not be a strong argument that the specified party could make in support of its position?

The seller argues that the seller's subjective intent, at the time of installation, was to remove the bookcases if the house was ever sold. In determining whether an object is a fixture that can be removed by a seller of real property, the seller's subjective intent is not controlling. Instead, various factors are examined to ascertain the seller's objective intent.

A retail store that specialized in glass objects entered into a written contract to purchase 100 hand-blown glass ornaments from an artisan. Because of the artisan's popularity, the store paid in full for the ornaments at the time that the contract was executed. The contract specified that the store would pick up the ornaments after notification that they were ready. The contract contained no other terms related to delivery of the ornaments and did not allocate the risk of loss. When the ornaments were ready, the artisan notified the store. The parties arranged for the store to pick up the packaged ornaments no later than 2:00 pm the next day. The employee assigned by the store to make the pickup did not arrive until 6:00 pm. In the late afternoon just before the store employee arrived, a short but intense storm caused a large, healthy tree on the artisan's property to fall over and destroy all the ornaments. Neither party had insured the ornaments against such a loss. Who bears the risk of the loss with respect to the ornaments?

The store, because the artisan's insurance did not cover the loss. The UCC provides that a merchant seller generally retains the risk of loss in the absence of a contract term to the contrary until the buyer receives the goods. However, if the buyer is in breach of the contract, the risk of loss passes to the buyer to the extent of any deficiency in the seller's insurance coverage. Here, the store, as buyer, was in breach of the contract by failing to pick up the ornaments by 2:00 pm. Although the UCC only requires that the delivery time be "reasonable" in the absence of a specific contract term, the parties here modified the contract in that regard by agreeing that the seller should pick up the ornaments by 2:00 pm.

The defendant was convicted in state court of armed robbery by a unanimous vote of a six-person jury. The applicable statute provides for a sentence of not more than 20 years' imprisonment. However, if the defendant was previously convicted of specified crimes, including felony theft, the sentence could be increased to not more than 30 years' imprisonment. Upon the introduction of evidence by the prosecution, the judge determined that the defendant had been previously convicted of a felony theft and sentenced the defendant to 25 years in prison. On appeal, the defendant has challenged both his conviction and his sentence. Should the appellate court uphold the conviction and the sentence?

Yes as to the conviction, because a six-person jury is permissible in a criminal trial, and yes as to the sentence, because it was validly imposed by the judge. With respect to the conviction, a six-person jury may render a verdict in a criminal trial without violating the defendant's right to a jury trial. With respect to the sentence, generally only a jury is permitted to find a fact that serves to increase the maximum penalty that can be imposed for a crime. However, an exception exists if that fact is a prior conviction of the defendant. In that case, the judge, rather than the jury, may find that such a fact exists.

In a case properly brought in federal district court, the plaintiff alleges that the state police, acting under a longstanding custom of using excessive force against people of a certain ethnicity in traffic stops, beat him up during a routine traffic stop. The plaintiff requests $100,000 in damages to remedy this injury and, fearing that the state police are targeting him, also requests preliminary and permanent injunctions prohibiting the police from using excessive force against him. The court issues an order refusing to grant the plaintiff a preliminary injunction and setting the case for trial. Three weeks later, the plaintiff appeals this order to the appropriate U.S. Court of Appeals. Can the appellate court hear this appeal?

Yes, as a matter of right. Although most non-final (interlocutory) orders cannot be appealed, orders concerning injunctions are appealable immediately as of right.

A man asked a friend to burn down the man's residence so the man could collect the fire insurance proceeds. The friend stated that she would be willing to set fire to the residence for $20,000. The man offered $10,000, but the friend refused. Later, the man set fire to an office building that he owned in order to collect the fire insurance proceeds. The man honestly, but unreasonably and incorrectly, believed that there was no one in the building when he set the fire. There was a person in the office building at the time of the fire who escaped unharmed. The man is charged with solicitation and arson. The relevant statute defines arson as "the malicious burning of any dwelling or occupied structure." Can the man be convicted of these crimes?

Yes, as to both solicitation and arson. The man can be convicted of solicitation because he asked his friend to commit the crime of arson with the intent that the friend would do so. While solicitation to commit a crime is a completed crime in itself, it merges into the completed crime being solicited. However, the completed crime here was a different crime from the crime solicited because it involved the burning of a different structure, so the solicitation conviction stands. The man can be convicted of arson because he burned down his office building at a time when a person was inside. The fact that the person inside was not harmed is irrelevant. The man's unreasonable mistake as to the person's presence in the building is not a defense to a malice crime.

Based on an advertisement in a local newspaper, a state resident bought a cross-country roundtrip ticket on a national airline for $450. The ad did not mention that the airline charged $75 for any changes to a ticket. Because of illness, the state resident had to change her return flight, and the airline charged her $75. The state resident refused to pay, citing a state law that required any ad for the sale of tickets for any event or trip to clearly disclose any monetary penalties for changing tickets. The airline sued the state resident in federal court for the unpaid fee, arguing that the state law is invalid, citing a federal statute prohibiting states from enforcing any law "relating to the rates, routes, or services" of any airline. Will the airline prevail?

Yes, because Congress has occupied the field of airline rates, routes, and services and hence has preempted the state law. The language of the federal statute indicates a specific intent by Congress to preempt the field of airline regulations with regard to rates, routes, and services. Under the Supremacy Clause, federal law preempts state law when Congress has enacted legislation that explicitly prohibits state regulation in the same area.

In a pre-trial hearing, a judge determined that a defendant's confession was given voluntarily to a police detective after the detective had given Miranda warnings to the defendant. At this hearing, the defendant testified. At trial, the defense did not contest the defendant's receipt of Miranda warnings, but sought to question the police detective about the manner in which the defendant was interrogated after receiving the warnings in order to call into question whether the confession was voluntary. The defense does not plan to call the defendant to the witness stand. Should the court permit this line of questioning?

Yes, because a party may introduce evidence that is relevant to the weight and credibility of other evidence. Even though a judge has decided that evidence, such as a confession, is admissible, a party may nevertheless introduce other evidence that is relevant to the weight and credibility of the admitted evidence. Here, the defense seeks to discredit the confession by introducing evidence that it was not given voluntarily.

The owner of a residence devised it to his wife for her life and remainder to his son. The son, after his father's death, regularly stopped by the residence to look after his mother and the residence. On some of the visits, the son would perform routine maintenance on the property, such as changing the air filter for the heating and air conditioning unit. When the mother permitted a companion to occupy the residence with her, the son became estranged from his mother and stopped visiting her. Recently, a neighbor who had visited the mother called the son. The neighbor indicated that mother was in good health, but that the condition of the premises was deplorable. The son contacted his mother. She asked him to come over, which he did, but denied him access to the premises when he arrived. Can the son gain entry to the residence to inspect the premises?

Yes, because he has a license coupled with an interest. The holder of a future interest, such as a remainder interest, has a license to inspect the property for waste. This license is not subject to revocation by the holder of the current possessory interest in the property.

A city passed an ordinance prohibiting all "adult entertainment establishments," defined as "enterprises that sell, trade, or depict materials that are obscene or pornographic." The city justified its law on the basis of reputable studies showing that (i) obscene and pornographic material degrades females and increases the tendency towards anti-social behavior of people who view it; and (ii) adult entertainment establishments are linked with criminal activity such as prostitution and drug dealing. The city also emphasized that the three cities bordering it all allow adult entertainment establishments. An entrepreneur who wishes to open an adult bookstore in the city sues the city in an appropriate federal court and claims that the ordinance is unconstitutional. Will she likely prevail?

Yes, because the First Amendment prohibits the city from banning all adult entertainment establishments. Under the First Amendment, a city can regulate adult entertainment establishments (e.g., by localizing them in a particular area), but cannot impose a blanket ban on all pornography. It does not matter that (i) the city might have legitimate reasons for such a ban (e.g., decreasing crime), or (ii) other neighboring cities allow such establishments.

The Occupational Safety and Health Act of 1970 (OSHA) required all private employers in America to meet certain minimum federal standards to ensure safe and healthful work environments. Recently, Congress amended OSHA, extending its coverage requirements to state and local government employers. A state sued in an appropriate federal court, challenging the constitutionality of this amendment. Will the court likely uphold the amendment as constitutional?

Yes, because the amendment is a valid exercise of Congress's Commerce Clause power. The amendment regulates an intrastate economic activity (i.e., the workplace itself) that has a substantial effect on interstate commerce.

The owner of a chain of retail stores built a warehouse that was financed by a loan from a bank. In exchange for the loan, the bank took a mortgage on the warehouse. Several years later, a thief broke into the warehouse by cutting a hole in the roof. The owner hired a contractor to repair the roof but, due to the contractor's shoddy work, the roof leaks whenever it rains, making a large portion of the warehouse unusable. Due to a contraction in the owner's business, the remaining usable space of the warehouse is sufficient for the owner's needs, but the unusable space impairs the bank's security interest. Learning of the condition of the warehouse, the bank requested that the owner repair the warehouse roof. The owner refused. The bank brought an action to compel the owner to properly repair the roof. The mortgage provides that it was made with recourse to the personal liability of the owner. Neither the mortgage nor the deed contains a covenant requiring the owner to maintain or repair the premises. The owner is not in default with respect to the mortgage payments. The jurisdiction follows a lien theory with regard to ownership of a mortgage and does not have an anti-deficiency statute. Will the bank succeed?

Yes, because the condition of the roof impairs the bank's security interest. A mortgagor has a duty not to commit waste with respect to the mortgaged property when such waste impairs the mortgagee's security interest in that property.

An engineer and a corporation entered into a contract. After the engineer failed to perform as required under the contract, the corporation filed a complaint for breach of contract in federal district court based on diversity jurisdiction. The corporation was incorporated and had its principal place of business in the forum state. The contract had been executed and performance was required to have taken place in a neighboring state of which the engineer was a lifelong resident. Instead of answering the complaint, the engineer served a motion to dismiss based on a lack of personal jurisdiction. Prior to the court ruling on the engineer's motion to dismiss, can the corporation dismiss the action without the engineer's agreement or the approval of the court?

Yes, because the engineer had not served an answer or summary judgment motion. A plaintiff may dismiss an action without court approval or the agreement of the other parties prior to the service of an answer or summary judgment motion. A motion to dismiss for lack of personal jurisdiction is not a summary judgment motion.

A surgeon was operating on a patient using a new device she invented. Unfortunately, the patient died. The patient's husband has filed a wrongful death lawsuit against the surgeon in federal court. The husband retained an expert witness who will testify at trial that the device used by the surgeon was defective and the cause of the patient's death. The husband disclosed the identity of this expert witness and provided the expert's report to the surgeon 30 days before the date set for trial, although the husband could have made the disclosure several months earlier. At that time, the surgeon had already hired her own expert witness to testify as to the safety of the new device. The disclosure of the husband's expert witness had no impact on the surgeon's pre-trial preparation. Can the husband's expert testify at trial?

Yes, because the failure to timely make the expert disclosures was harmless. Under Rule 37(c)(1), if a party fails to make or supplement its automatic disclosures as required by Rules 26(a) and (e), then the party will not be permitted to use the documents or witnesses that were not disclosed unless the nondisclosure was substantially justified or was harmless. Here, the husband's expert witness disclosure was not timely. Expert witness disclosures must occur at least 90 days before the date set for trial. However, because the failure to disclose in a timely manner was harmless to the surgeon, the husband can use the testimony at trial.

An American helicopter manufacturer contracted with a foreign hospital located in a severely war-torn region to sell five helicopters specially outfitted for medical use. The helicopter manufacturer, in turn, contracted with a subcontractor to provide five flight systems for use in the helicopters. The subcontractor was not informed about the contract between the helicopter manufacturer and the foreign hospital, nor the location where the helicopters would be used. After the two contracts were formed, the country in which the hospital was located descended deeply into civil war. The United Nations imposed an embargo against all shipments to that country. The helicopter manufacturer directed the subcontractor to stop all work on the contract, and to place any completed systems into storage. At that point, the subcontractor had finished three of the five flight systems called for by the subcontract. The systems were custom-built, and could not be used for any other purpose. The subcontractor sued the helicopter manufacturer for breach of contract. Is the subcontractor likely to prevail?

Yes, because the helicopter manufacturer assumed the risk of the failure of the contract. The defense of impracticability may be raised if performance has become illegal after the formation of the contract. However, the defense is unavailable to a party who has assumed the risk of an event happening that makes performance impracticable. Here, the helicopter manufacturer entered into a contract with the subcontractor knowing that the helicopters were to be used in a "severely war-torn region." The subcontractor was not informed of this information, and consequently had no opportunity to assess the risk involved in the contract. Consequently, it can be fairly said that the helicopter manufacturer assumed the risk, and cannot advance the defense of impracticability.

A homeowner hired a contractor to finish her basement. They agreed on a price of $20,000 for the job. During the final stages of the remodeling, the contractor discovered that there was mold in the basement, the existence of which had been unknown to either party. The contractor refused to complete the job unless the homeowner paid an additional $2,000 to the contractor for removal of the mold. The homeowner reluctantly agreed, and the contractor finished the basement in accord with the modified contract. The homeowner paid the contractor $20,000. In a breach of contract action to recover the $2,000, will the contractor prevail?

Yes, because the homeowner agreed to the price increase. Under the common law, which applies to a construction contract, a contract generally cannot be modified without consideration. Here, the contractor proposed modifying the contract to increase the contractor's compensation in exchange for the removal of the mold from the basement. Since the homeowner agreed to the modification and the contractor finished the basement in accord with the modified contract, the homeowner is liable to the contractor for the additional $2,000.

The owner of an office building leased space to a physician in general practice for a term of five years. The physician's written lease with the owner restricted use of the space to a doctor's office, but permitted the assignment of the office with the written permission of the owner, which, according to the terms of the lease, could be withheld for any reason. At the end of second year of the lease, the physician decided to move to another building and rented the space to a lawyer for one year. The lawyer's monthly payments were the same as those called for in the lease between the owner and the physician. The owner's permission was not sought, but the owner accepted rental payments directly from the lawyer. At the end of the third year of the lease, the physician found a psychiatrist to rent the space for a year. As with the lawyer, the psychiatrist's monthly payments were to be the same as those called for in the lease between the owner and the physician. When contacted by the physician, the owner at first orally agreed, and then, upon learning the identity of the psychiatrist, refused due to personal animosity towards the psychiatrist. Can the owner be compelled to accept the psychiatrist as a tenant?

Yes, because the lease does not restrict the physician from subletting the office space.

A pedestrian was walking next to a building under construction. Suddenly, he was hit in the head by a falling brick. As a consequence, the pedestrian suffered a skull fracture and a severe brain injury. The pedestrian sued the construction company. At trial, the pedestrian did not introduce any direct evidence of the construction company's negligence, but proved that the construction company's employees were in control of its bricks at all relevant times, and that a brick does not ordinarily fall from a building under construction without negligence. The construction company offered uncontroverted proof that the pedestrian was negligent by walking so close to an active construction site. The jurisdiction in which the lawsuit is proceeding applies pure comparative negligence rules. At the close of all evidence, the construction company moved for a directed verdict. Should the court deny this motion?

Yes, because the pedestrian's negligence does not reduce the likelihood of the construction company being negligent. To obtain a res ipsa loquitur jury instruction, a plaintiff must prove that (i) his injury was caused by an instrumentality or agent within the exclusive control of the defendant, (ii) the accident was of a kind that ordinarily does not occur in the absence of negligence, and (iii) the harm was not due to any action on the part of the plaintiff. The third requirement is not satisfied if a plaintiff's own negligence increases the likelihood of the defendant's negligence. In this case, the pedestrian's negligence (his proximity to the construction site) had nothing to do with the construction company's negligent control of the brick.

A plaintiff sued a defendant for injuries she sustained when she slipped on a wet floor in the defendant's restaurant. The plaintiff saw a physician and underwent physical therapy sessions to treat her injuries. During one session, the plaintiff said to her physical therapist, "You know, I saw the 'Caution, Floor is Wet' sign before I fell, but I was in such a hurry to get back to my table that I ignored it." Another patient undergoing physical therapy with another therapist overheard the statement, and informed the defendant, who happened to be his friend. The defendant wants to introduce the testimony of his friend, as whether the plaintiff had notice of the wet floor is at issue in the case. The plaintiff objects to the testimony. Should the court allow the friend to testify as to the plaintiff's statement?

Yes, because the statement is not hearsay. The statement qualifies as a statement by an opposing party. A prior out-of-court statement by a party to the current litigation used against that party is, by definition, not hearsay. As such, the plaintiff's statement that she saw but ignored a warning sign is not hearsay, and is admissible

Concerned with protecting the use of federal funds from the deleterious effects of bribery, Congress enacted a statute criminalizing the acceptance of a bribe by a state or local official where the state or local government received at least $10,000 in federal funds. A county government, in exchange for its agreement to permit the housing of federal prisoners in the county's jail, received a payment of federal funds for each prisoner. The total amount received by the county government for housing federal prisoners exceeded $100,000 annually. A federal prisoner housed in the county jail agreed to transfer title to a pickup truck to a prison guard in exchange for the guard permitting the prisoner to receive illegal conjugal visits. The prison guard was charged with violating the statute. Is the application of the statute to the guard's taking title to the prisoner's truck constitutional?

Yes, because the statute was a valid congressional exercise, pursuant to the Necessary and Proper Clause, of ensuring that its power to appropriate money for the general welfare was not thwarted. Congress may enact legislation that is necessary and proper to execute its spending power. Here the criminalization of the taking of bribes by an official of an entity that receives substantial federal funds is necessary and proper to ensure that such funds are properly spent. Such funds are provided to the state and local governments pursuant to the Spending Clause. Answer choice A is incorrect because the Constitution does not require that the bribe directly relates to the federal funds. The preferential treatment given the prisoner was a threat to the integrity and proper operation of the federal program, and hence justified imposition of criminal sanctions on the guard.

A mother, upon learning that her son had been assaulted by his middle school teacher, filed a suit on behalf of her son against the school district, claiming that it had negligently hired the teacher. At trial, the mother sought to introduce the testimony of one of the teacher's former students from when the teacher had worked in a different school district. The witness would testify that the teacher had beaten her. The mother had further evidence that this incident had been included in the teacher's personnel file. Is the former student's testimony likely to be admitted?

Yes, because the teacher's character is an essential element of the mother's claim. Evidence of a person's character (or character trait) generally is inadmissible to prove that the person acted in accordance with that character (or character trait) on a particular occasion. Character evidence is admissible if it is an essential element of a claim, such as in the case of negligent hiring or entrustment. In this case, the mother asserted a negligent hiring claim against the school district, and thus, the teacher's character as violent toward his students and the school district's knowledge of that character is an essential element of the claim.

A husband and his friend agreed to kill the husband's wife and split the insurance proceeds the man received following the wife's death. The friend helped the husband obtain a handgun to commit the murder, but on the night of the planned murder, the friend decided that she could not go through with it. Afraid that the husband would kill her if she went to the police, she did not contact them. Instead, she called the husband and told him that she could not go through with the crime and urged him not to kill his wife. The husband ignored her and went through with the killing. The husband and friend were subsequently arrested and the friend was charged with conspiracy to commit murder. Should the friend be convicted?

Yes, because withdrawal is not a valid defense to conspiracy. The modern majority view of conspiracy is that the crime is complete at the moment an overt act in furtherance of the conspiracy has been completed. Here, the friend helped the husband obtain a handgun; at that moment, the conspiracy was complete and withdrawal was not possible. At common law, the conspiracy is complete as soon as the parties enter into the agreement. Accordingly, as soon as the man and his friend agreed to kill the man's wife, a common-law conspiracy was complete.