MBE Selected questions - Tx Bar Exam

A buyer agreed in writing to purchase a car from a seller for $15,000, with the price to be paid on a specified date at the seller's home. The contract provided, and both parties intended, that time was of the essence. Before the specified date, however, the seller sold the car to a third party for $18,000. On the specified date, the buyer arrived at the seller's home prepared to tender payment. The seller was not there, so the buyer called the seller to ask where he was. The seller then told the buyer that he had sold the car to the third party. If the buyer sues the seller for breach of contract, will the buyer be likely to prevail?

B: Yes, because the seller anticipatorily repudiated the contract when he sold the car to the third party Anticipatory repudiation occurs if a promisor, prior to the time set for performance of his promise, indicates he will not perform when the time comes. The seller's sale of the car to the 3rd party was an anticipatory repudiation that gave the buyer an immediate claim for breach of K. The seller anticipatorily repudiated his promise to perform by informing the buyer he had already sold the car. Under UCC Article 2, a seller's tender of delivery of goods and a buyer's tender of payment are concurrent conditions of exchange. Thus, the buyer and the seller were obligated to simultaneously tender their respective performances. However, b/c the seller breached by anticipatory repudiation, the buyer's performance obligation was discharged. Accordingly, the buyer has a claim for breach of K, even though she did not tender performance.

A man asked his girlfriend to lend him something he could use to break into his neighbor's padlocked storage shed in order to steal a lawnmower. She handed him a crowbar. He took the crowbar but then found a bolt cutter that the neighbor had left outside the shed. Using the bolt cutter, he cut the padlock on the shed and took the mower, which he then used to mow his girlfriend's lawn. She was surprised and pleased by this gesture. Burglary in the jurisdiction applies to any structure or building, and there is no nighttime element. The G Friend has been charged as an accomplice to burglary & larceny. Of which crimes, if any, is she guilty?

A: Burglary & larceny. The girlfriend is guilty as an accomplice b/c she provided aid to the man with the intent of helping him break into the shed & steal the mower; the fact that the man ultimately used an alternative means to accomplish his crimes does not eliminate the girlfriend's accomplice liability. (Wrong: C: Larceny, but not burglary, because she provided no actual assistance to the breaking but received a benefit from the larceny. C is incorrect. The girlfriend is guilty as an accomplice to both crimes.)

An unconstrued state law prohibited the distribution within the state of "seditious propaganda." The state prosecuted United States Post Office letter carriers under this law for delivering propaganda from a foreign country to state residents. Which of the following statements is an INACCURATE description of the state's law as applied to the letter carriers?

A: It is an unconstitutional bill of attainder. This is not a bill of attainder because the law does not inflict punishment without a judicial trial upon named individuals or those who engaged in certain prior conduct. Rather, it applies to anyone who engages in newly-criminalized behavior after the law was enacted. (Wrong: B: It is void for vagueness. B is incorrect. This law would be considered void for vagueness b/c the terms "seditious propaganda" do not provide individuals with fair & reasonable notice of the boundaries between lawful and unlawful conduct.)

A man and his friend were watching a televised football game at the man's home. Upset by a penalty called by the referee, the friend threw a bottle of beer at the man's television, breaking the screen. Enraged, the man picked up a nearby hammer and hit the friend on the head with it. The friend died from the blow. The crimes below are listed in descending order of seriousness. In a jurisdiction that follows common law principles, what is the most serious crime of which the man could properly be convicted?

A: Murder. At common law, a D could be convicted of murder not only for an intentional killing but also for causing another's death by actions intended to cause serious bodily injury short of death. HERE, a jury could properly convict the man of murder under that C.L. theory. While a jury could convict the man of lesser manslaughter, murder is the MOST SERIOUES crime that the man could properly be convicted of. (Wrong: B: Voluntary manslaughter. B is incorrect. It is debatable whether the friend breaking the man's TV could = adequate provocation" to mitigate murder to voluntary manslaughter. But assuming that it could, a jury could reject that and instead convict the man of murder. Thus, voluntary manslaughter is not the most serious crime of which the man could properly be convicted.)

A woman went to an art gallery and falsely represented that she was an agent for a museum and wanted to purchase a painting that was hanging in the gallery. The woman and the gallery owner then agreed on a price for the painting to be paid 10 days later, and the woman took the painting. When the gallery failed to receive the payment when due, the owner called the museum & discovered that the woman did not work there. The owner then notified the police. When interviewed by the police, the woman admitted making the false representation and acquiring the painting, but she said she believed that the painting had been stolen from her by someone who worked in the gallery. Is the woman guilty of obtaining property by false pretenses?

A: No, b/c she believed that the painting belonged to her. The woman cannot properly be found guilty of obtaining property by false pretenses b/c, although she made the false statements to obtain property, she subjectively believed it belonged to her. C is incorrect. In some jurisdictions, a false pretenses conviction can be based on a promise to make payment in the future if the promisor had no present intent to make the future payment. But the promisor must still have the intent to defraud, which she did not here.

A seller & a buyer signed a contract for the sale of vacant land. The contract was silent concerning the quality of title, but the seller agreed in the contract to convey the land to the buyer by a warranty deed w/out any exceptions. When the buyer conducted a title search for the land, she learned that the applicable zoning did not allow for her planned commercial use. She also discovered that there was a recorded restrictive covenant limiting the use of the land to residential use. The buyer no longer wants to purchase the land. Must the buyer purchase the land?

A: No, because the restrictive covenant renders the title unmarketable. A right held in the land by a 3rd party, such as the right to enforce a restrictive covenant, renders the title unmarketable, & the buyer need not purchase the land. (Wrong: D: Yes, because the contract was silent regarding the quality of the title. D is incorrect. This contract was silent on the quality of title and therefore a marketable title will be implied. A marketable title is not a perfect title but is title a court will require an unwilling buyer to purchase.)

A recently enacted fed statute requires the President to make each appointment of a United States ambassador to a foreign country from a list of three individuals. The list is to be compiled by the Senate Foreign Relations Committee and approved by the full Senate in advance of the appointment. The statute also provides that Senate confirmation of the appointment is deemed to occur automatically 30 days after the time the President names an appointee from the list, unless the full Senate determines otherwise within the 30-day period. Is this statute constitutional?

A: No, because the statute violates the constitutional requirements for appointment of principal officers of the United States. The statute violates the Appointments Clause in 2 ways: 1, limiting the ambassador selection to a list of nominees = violation of the President's power to nominate principal officers; AND 2, the automatic 30-day confirmation provision = violation the senatorial consent requirement. (Wrong: B: No, b/c the statute impermissibly restricts the plenary foreign affairs powers of the President. B is incorrect. The statute does not restrict the President's foreign affairs powers because it only applies to the appointment of ambassadors.)

A borrower owed a lender $50,000 due on March 1. On January 10, the lender telephoned the borrower and said that he would discharge the debt if the borrower would promise to pay the lender $45,000 by January 15. The borrower responded, "I will attempt to get the money together." On January 11, the lender again telephoned the borrower and said that he had changed his mind and would expect the borrower to make full payment on March 1. On January 15, the borrower tendered $45,000 as full payment, which the lender refused to accept. On March 1, the borrower refused the lender's demand for $50,000, and the lender sued for that amount. Which of the following statements best supports the lender's position?

A: The borrower's January 10 statement was not a return promise, & therefore the lender effectively revoked his offer on Jan 11. The lender's offer requested that the borrower accept by making a return promise. The borrower's response to the lender's offer was a statement of intention, which was not sufficiently promissory to constitute acceptance of an offer and create a binding K. (Wrong: D: The lender's promise to discharge the $50,000 debt was not enforceable because it was not in writing. D is incorrect. The purported contract between the lender and the borrower was not a transaction that would fall within a SOF. Moreover, the dispositive issue is not compliance with the SOF but if the borrower's response to the offer = valid acceptance.)

A man owned a large tract of land that had frontage on a public highway. The land had no access to any other road. 15 years ago, the man conveyed the rear half of the land to a woman and at the same time conveyed an express easement to the woman that provided access from her land across his retained land to the public highway. The woman used the easement until she reconveyed the land back to the man 10 years ago. The deed to the man-made no reference to the easement. 5 years ago, the man again conveyed the rear half of the land, this time to an investor in a deed that made no reference to any easement to the public highway. Recently, the man told the investor that he could no longer cross the man's land for access to the public highway. A neighbor has told the investor that he can use her land for access to another public road "for a price." The investor has sued the man for the right to cross the man's land to the public highway. For whom will the court likely decide?

A: The investor, because an easement will be implied. The express easement granted to the woman was terminated by merger when she reconveyed her land to the man, who again became the common owner of both tracts. The man then conveyed the rear half of the land to the investor, whose land is now landlocked.

A state law provides that a person who has been divorced may not marry again unless he or she is current on all child-support payments. A woman who was refused a marriage license pursuant to this law sued the appropriate state officials. What standard should the court apply in reviewing the constitutionality of this law?

A: The state must show that the law is necessary to serve a compelling government interest. Marriage is a fundamental right, meaning any law that unduly burden a decision to marry, trigger strict judicial scrutiny. Which puts the burden on the state to show that the law is necessary to serve a compelling gover't interest. HERE, the law burdens the right to marry by stating a divorced person may not remarry UNLESS she is current on all child support. Thus, the Ct will apply the strict scrutiny standard & require the state to prove that the law is necessary to serve a compelling state interest. (Wrong: B: The state must show that the law is substantially related to an important gover't interest. B is incorrect. This answer states the wrong standard of review.)

A firstborn child was examined as an infant by a Dr. who was a specialist in the diagnosis of speech and hearing impairments. Although the Dr. should have concluded that the infant was totally deaf due to a hereditary condition, the doctor negligently concluded that the infant's hearing was normal. After the diagnosis, but B4 they learned that the infant was in fact deaf, the parents conceived a 2nd child who also suffered total deafness due to the hereditary condition. The parents claim that they would not have conceived the 2nd child had they known of the high probability of the hereditary condition. They have sought the advice of their attorney regarding which negligence action against the doctor is most likely to succeed. What sort of action against the Dr. should the attorney recommend?

B: A wrongful Birth Action by the parents for expenses they have incurred due to the second child's deafness, on the ground that but for the doctor's negligence, they would not have conceived the 2nd child. This COA will be permitted in many st.. The parents sought an accurate assessment of their 1st child, which the Dr. failed to provide. Unaware of the hereditary condition, the parents conceived a 2nd child & incurred unexpected expenses that could have been avoided had the Dr. acted properly. The parents can recover ONLY for the additional expenses related to the child's deafness. (Wrong: C: A wrongful life action by the parents for expenses for the entire period of the 2nd child's life, on the ground that but for the doctor's negligence, the 2nd child would not have been born. C is incorrect. A wrongful life action would be brought BY A CHILD who would NOT have been born. An action BY the PARENTS based on advice that would have avoided a conception of a child is a wrongful birth action. Also, most courts would NOT permit the parents to recover ALL of the expenses for the 2nd child's life EVEN in A PROPER action. Only the additional expenses attributable to the child's disability.)

Police responded to a call that shots had been heard coming from a certain house. Upon arriving at the house, the police looked through a window and saw a man lying on the living room floor. The police opened the front door, which was not locked, and found that the man had recently been shot in the back and was unconscious. An ambulance was called. While waiting for the ambulance, one officer walked through the house to see if anyone else was present. No 1 else was found, but the officer did see on the kitchen table clear bags of what he believed to be cocaine. The officer seized the bags, & laboratory tests later confirmed that the contents were cocaine. After the ambulance arrived a few minutes later & took the man to the hospital, the police went through the house and opened drawers trying to find the gun used in the shooting. No gun was found, but upon opening a drawer in an upstairs bedroom, the police found marijuana & seized it. Later investigation led to charging a young woman, who lived in the house, with unlawful possession of the cocaine and the marijuana. The young woman has filed a motion to suppress the use of both as evidence on the ground that the entry into the house & the searches were made without a warrant. How should the court decide the young woman's motion?

B: Deny it as to the cocaine, but grant it as to the marijuana. The cocaine was properly seized under the plain view exception to the warrant requirement, whereas the marijuana was the fruit of an unlawful, warrantless search of the home where no exception applied. (Wrong: C: Grant it as to both the cocaine and the marijuana. C is incorrect. The motion should be granted as to the marijuana, the fruit of an improper warrantless search and seizure, but denied as to the cocaine, which was in plain view and is thus admissible.)

A builder borrowed $10,000 from a lender to finance a small construction job under a K with a homeowner. The builder gave the lender a writing that stated, "Any money I receive from the homeowner will be paid immediately to the lender, regardless of any demands from other creditors." The builder died after completing the job but B4 the homeowner paid. The lender demanded that the homeowner pay the $10,000 due to the builder directly to the lender. The homeowner refused, saying that he would pay directly to the builder's estate everything that he owed the builder. Is the lender likely to succeed in an action against the homeowner for $10k?

B: No, b/c the writing the builder gave to the lender did not transfer to the lender the right to receive payment from the homeowner. An assignment arises when the holder of a right, manifests the intent to make a present transfer of that right to another, the assignee. Upon an assignment, the assignor's rights are extinguished and transferred to the assignee. An assignment is to be distinguished from a promise to do something in the future, such as the payment of $. Here, the writing in which the builder promised to pay the lender the $10k he received from the homeowner did not transfer to the lender the right to receive payment directly from the homeowner, and thus it did not create an assignment. (Wrong: D: Yes, b/c the lender is an intended beneficiary of the builder-homeowner contract. D is incorrect. B/c any rights that may have been granted to the lender were NOT created by the K between the builder & the homeowner, the lender did not acquire 3rd-party beneficiary status. The issue here is whether the builder gave the lender a valid assignment.)

A D was charged with the crime of defrauding the federal agency where he worked as an accountant. At trial, the court allowed the defendant to call his supervisor at the large corporation where he had previously worked, who testified about the D's good reputation in the community for honesty. Over objection, the D then sought to elicit testimony from his former supervisor that on several occasions the corporation had, without incident, entrusted him with large sums of money. Should the testimony be admitted?

B: No, because good character cannot be proved by SPECIFIC INSTANCES of conduct UNLESS character is an essential element of the charge or defense. When a D seeks to establish his good character, proof is only admissible by reputation evidence or opinion evidence, not by specific instances of conduct, unless character is the ultimate issue in the case. HERE, the specific incidents are inadmissible because character is not the ultimate issue. (Wrong: D: Yes, b/c it is relevant to whether the defendant was likely to have taken $ as charged in this case. D is incorrect. Although the evidence regarding honesty is relevant, as explained above, it is NOT ADMISS in the form of SPECIFIC INSTANCES of CONDUCT.)

A defendant was validly arrested for the murder of a store clerk and was taken to a police station where he was given Miranda warnings. When an interrogator asked the defendant, "Do you understand your Miranda rights, and are you willing to give up those rights and talk to us?" the defendant replied, "Yes." When asked, "Did you kill the clerk?" the defendant replied, "No." When asked, "Where were you on the day the clerk was killed?" the defendant replied, "Maybe I should talk to a lawyer." The interrogator asked, "Are you sure?" and the defendant replied, "I am not sure." The interrogator then asked, "Why would you want to talk with a lawyer?" and the defendant replied, "Because I killed the clerk. It was an accident, and I think I need a lawyer to defend me." At that point, all interrogation ceased. Later, the defendant was formally charged with murdering the clerk. The defendant has moved to suppress evidence of his statement, "I killed the clerk" on the ground that this statement was elicited in violation of his Miranda rights. Should the defendant's motion be granted?

B: No, because the defendant did not effectively assert the right to counsel, and his conduct prior to making the statement constituted a valid waiver of his Miranda rights. The defendant did not effectively assert his right to counsel because such an assertion must be unambiguous. The defendant's statement, "Maybe I should talk to a lawyer" is not an unambiguous request for counsel. In addition, the defendant unequivocally waived his Miranda rights prior to making this statement.

A newspaper published an editorial in which an editor asserted that a candidate for high political office was a user of illegal drugs. The accusation was untrue. The editor acted unreasonably in not investigating the accusation before publishing it; however, the editor honestly believed that the accusation was true. The candidate sued the editor for defamation. Is the candidate entitled to recover?

B: No, because the editor honestly believed that the accusation was true. In a defamation action that involves a matter of public concern (here, a claim brought by a candidate for public office) the P must establish more than mere negligence with regard to the truth or falsity of the allegedly defamatory statement of fact. A political candidate, like a political official, must also establish that the defendant acted with actual malice, that is, that the D in fact NEW the statement to be FALSE OR entertained SERIOUES DOUBTS as to the truth of the statement. Here, the candidate cannot establish actual malice on the part of the editor in publishing the statement b/c the editor honestly believed the accusation was true. (Wrong: C: Yes, because calling someone an illegal drug user is defamatory per se. C is incorrect. The P in a defamation action must establish that a statement is defamatory, and accusing someone of a criminal act is indeed "defamatory per se." But, a political candidate, like a political official, must also establish that the defendant acted with actual malice. Here, the candidate cannot establish that essential element of his case)

A clerical employee of a city water department was responsible for sending out water bills to customers. His work in this respect had always been satisfactory. The employee's sister ran in a recent election against the incumbent mayor, but she lost. The employee had supported his sister in the election campaign. After the mayor found out about this, she fired the employee solely because his support for the sister indicated that he was "disloyal" to the mayor. The city's charter provides that "all employees of the city work at the pleasure of the mayor." Is the mayor's action constitutional?

B: No, because the mayor's action violates the employee's right to freedom of expression and association. The political views or affiliations of a clerical employee of a city water department are not relevant to the employee's job, and thus the employee may not be fired b/c of them. A is incorrect. A public employee has a prop interest in his or her employment IF the employee CAN BE FIRED ONLY FOR CAUSE. B/c the clerical employee signed a charter to "work at the pleasure of the mayor," there is NO PROPERTY interest in his employment

An environmental organization's stated mission is to support environmental causes. The organization's membership is generally open to the public, but its bylaws permit its officers to refuse to admit anyone to membership who does not adhere to the organization's mission statement.In a recent state administrative proceeding, the organization opposed plans to begin mining operations in the mountains surrounding a small town. Its opposition prevented the mine from being opened on schedule. In an effort to force the organization to withdraw its opposition, certain residents of the town attended a meeting of the organization and tried to become members, but the officers refused to admit them. The residents sued the organization, claiming that the refusal to admit them was discriminatory and violated a local ordinance that prohibits any organization from discriminating on the basis of an individual's political views. The organization responded that the ordinance is unconstitutional as applied to its membership decisions. Are the residents likely to prevail in their claim?

B: No, because the organization's right to freedom of association allows it to refuse to admit potential members who do not adhere to its mission statement. The state may not force the inclusion of the residents b/c this would significantly burden the environmental org's right of expressive association given that 1 of its sincerely held purposes is environmental protection, specifically, opposing the mining. If the residents were included, their aim to stop the org's efforts would interfere with its free expression. (Wrong: A: No, b/c the membership policies of a private organization are not state action. A is incorrect. Despite the fact that the membership policies themselves are NOT state action, the local ordinance cited by the residents is state action & is thus subj to the requirements of the 1st Amendment.)

A D was charged with robbery of a savings and loan branch after being arrested near the scene and found with marked bills. An hour after the robbery, the officer investigating the crime videotaped an interview with an eyewitness, in which the eyewitness described the crime and the robber. The officer then arranged for a lineup, at which the teller who was robbed identified the D as the robber. The officer later obtained computerized records of that day's deposits & withdrawals at the savings and loan, which allowed the calculation of how much cash was taken in the robbery. A month later, the teller testified B4 a grand jury, which indicted the D. The teller and the eyewitness both died of unrelated causes shortly afterward. At trial, which of the following evidence, if properly authenticated, may properly be admitted against the defendant over his attorney's objection that its receipt would violate the Confrontation Clause?

B: The computerized records from the savings and loan. The computerized records are not testimonial b/c they were not prepared for the purpose of being used in a criminal prosecution. (Wrong: A: A transcript of the teller's sworn grand jury testimony. A is incorrect. The teller's GJ estimony is a classic testimonial statement barred by the Confrontation Clause.)

A woman broke off her engagement to a man but refused to return the engagement ring the man had given her. 1 night, the man entered the woman's house after midnight to retrieve the ring. Although the woman was not at home, a neighbor saw the man enter the house and called the police. The man unsuccessfully searched for the ring for 10 minutes. As he was walking out the front door, the police arrived and immediately arrested him. The man has been charged with burglary in a jurisdiction that follows the C.L. Which of the following, if proved, would serve as the man's best defense to the charge?

B: The man incorrectly and unreasonably believed that he was legally entitled to the ring. The crime of burglary requires that the breaking & entering of the dwelling have been done at (1) night, with the (2) intent to commit an underlying felony (here larceny). The man's subjective belief that he was entitled to the ring (even if it was incorrect/unreasonable) negates the intent required for the underlying felony of larceny. (Wrong - A: The man knew that the woman kept a key under the doormat and he used the key to enter the house. A is incorrect. This fact does not provide a defense to burglary, b/c the man still broke into and entered the house w/out the woman's consent.)

A wholesaler contracted in a signed writing to sell to a bakery 10k pounds of flour each week for 10 weeks, the flour to be delivered to the bakery on Mondays and payment to be made on Wednesdays of each week. The bakery did all of its weekly bread baking on Tuesdays. On Monday morning of the first week, the wholesaler tendered delivery of 8k pounds of flour to the bakery, and the bakery accepted it on the wholesaler's assurance that the remaining 2k pounds would be delivered later that evening, which it was. The bakery paid for both deliveries on Wednesday. On Monday of the second week, the wholesaler tendered delivery of 5k pounds of flour to the bakery and said that the remaining 5k pounds could not be delivered on Monday but would be delivered by Wednesday. The bakery rejected the tender. Was the bakery legally justified in rejecting the tender of the 5k pounds of flour?

B: Yes, b/c the tender was a substantial impairment of that installment and could not be cured. UCC provides that a buyer may reject any installment that is nonconforming if the nonconformity substantially impairs the value of that installment & it cannot be cured. HERE, the delivery of less than the K'ed-for amount = a nonconformity that substantially impaired the value of the installment since the wholesaler could not deliver the remaining 5k pounds until the day after the bakery needed the flour to fulfill its weekly baking needs, & the bakery was entitled to reject the tender (Wrong: A: Yes, because the bakery was legally entitled to reject any tender that did not conform perfectly to the contract. A is incorrect. UCC Article 2 adopts the perfect tender rule, BUT that rule is inapplicable to assess the conformance of a seller's performance under an installment K. B/c this is an installment K, the substantial impairment standard governs rejection rights, & the bakery is entitled to reject under that standard.)

On June 15, a teacher accepted a contract for a one-year position teaching math at a public high school at a salary of $50k, starting in Sept. On June 22, the school informed the teacher that, due to a change in its planned math curriculum, it no longer needed a full-time math teacher. The school offered instead to employ the teacher as a part-time academic counselor at a salary of $20K, starting in Sept. The teacher refused the school's offer. On June 29, the teacher was offered a 1-year position to teach math at a nearby private academy for $47,000, starting in Sept. The teacher, however, decided to spend the yr completing work on a graduate degree in mathematics and declined the academy's offer. If the teacher sues the school for breach of K, what is her most likely recovery?

C: $3,000, the full contract amount less the amount the teacher could have earned in the teaching position at the academy. The teacher is entitled to recover damages that will place her in the position she would have been in but for the school's breach. However, an injured party is expected to make reasonable efforts to mitigate the loss resulting from the other party's breach. In the case of a wrongfully discharged employee, the employee is expected to accept an offer of comparable employment. If the employee fails or refuses to do so, the employee's recovery is reduced by the amount of the loss that the employee could have avoided by accepting comparable employment. Here, the teacher's damages of $50K should be reduced by the $47K she would have earned if she had accepted the comparable teaching position at the private academy. Thus, the teacher is entitled to recover $3,000 from the school. (Wrong: A: $50,000, the full contract amount. - Did not try and midiate, and when the new job offered a similar positon she did not take it = 50-47 = 3k in damages)

A tenant leased a commercial property from a landlord for a 12-year term. The property included a large store and a parking lot. At the start of the lease period, the tenant took possession and with the landlord's oral consent installed counters, display cases, shelving, and special lighting. Both parties complied with all lease terms. The lease is set to expire next month. 2 weeks ago, when the landlord contacted the tenant about a possible lease renewal, she learned that the tenant had decided not to renew the lease, and that the tenant planned to remove all of the above-listed items on or B4 the lease termination date. The landlord claimed that all the items had become part of the real estate and had to remain on the premises. The tenant asserted his right and intention to remove all the items. Both the lease and the statutes of the jurisdiction are silent on the matter in dispute. At the time the landlord consented & the tenant installed the items, nothing was said about the tenant's right to retain or remove the items. The landlord has sued the tenant to enjoin his removal of the items. How is the court likely to rule?

C: For the tenant, provided that the tenant reasonably restores the premises to the prior condition or pays for the cost of restoration. Here, this is a commercial lease, and the tenant has been using the items in his business. It is unlikely that the removal of these items will cause substantial damage; if so, however, the tenant must either restore the premises or pay the cost of restoration.

A buyer sent a seller an offer to buy 50 tons of cotton of a specified quality. The offer contained no terms except those specifying the amount and quality of the cotton. The seller then sent an acknowledgment by fax. The acknowledgment repeated the terms of the buyer's offer and stated that shipment would occur within five days. Among 12 printed terms on the acknowledgment was a statement that any dispute about the cotton's quality would be submitted to arbitration. Neither the buyer nor the seller said anything further about arbitration. The seller shipped the cotton, and it was accepted by the buyer. A dispute arose between the buyer and the seller as to the quality of the cotton, and the seller asserted that the dispute had to be submitted to arbitration. The buyer instead sued the seller in court. In that suit, which of the following arguments best supports the seller's position that the buyer must submit the dispute to arbitration?

C: The provision for arbitration did not materially alter the parties' contract. B/c the buyer's offer was silent as to arbitration, the arbitration provision in the seller's acknowledgment should be characterized as an additional term. Under UCC an additional term is considered a proposal for addition to the contract. UCC also provides that an additional term becomes a term of the parties' contract if both parties are merchants unless certain specified circumstances are present. 1 such circumstance is where an additional term materially alters the parties' contract. Because none of the other circumstances appear applicable here and both parties are merchants, the arbitration provision will be considered a term of the contract if the seller can successfully argue that the provision did not materially alter the parties' contract. (Wrong: D: The seller's acknowledgment containing a provision for arbitration constituted a counteroffer that was accepted by the buyer when it accepted delivery of the cotton. D is incorrect: Under the common law, an additional material term in a response to an offer = a counteroffer. BUT, this was for the SALE OF GOOD = UCC governs) (Under the UCC an additional term - the arbitration provision in the seller's acknowledgment - DID NOT give rise to a counteroffer.) (Rather, a K was formed, & the arbitration provision = a PROPOSAL for an addition to the K.) (Also, under UCC , a buyer's mere acceptance of goods DOES NOT = assent to an additional term in a seller's acceptance. BUT, under the UCC, the arbitration provision will be considered a term of the K IF the seller CAN successfully argue that the provision DID NOT "materially alter" the parties' K.)

For 22 years, the land records have shown a man as the owner of an 80-acre farm. The man has never physically occupied the land. 19 years ago, a woman entered the farm. The character and duration of the woman's possession of the farm caused her to become the owner of the farm under the adverse possession law of the jurisdiction. 3 years ago, when the woman was not present, a neighbor took over possession of the farm. The neighbor repaired fences, put up "no trespassing" signs, & did some plowing. When the woman returned, she found the neighbor in possession of the farm. The neighbor vigorously rejected the woman's claimed right to possession and threatened force. The woman withdrew. The woman then went to the man & told him of the history of activity on the farm. The woman orally told the man that she had been wrong to try to take his farm. She expressly waived any claim she had to the land. The man thanked her. Last month, unsure of the effect of her conversation with the man, the woman executed a deed purporting to convey the farm to her son. The son promptly recorded the deed. The period of time to acquire title by A.P in the jurisdiction is 10 years. Who now owns the farm?

C: The son, because he succeeded to the woman's adverse possession title by privity of conveyance. The woman acquired title to the farm by adverse possession. The SOF requires that the conveyance of the farm be in writing. Thus, the woman's oral statement was INSUFFICENT to release the title to the man, & the woman validly conveyed the farm to her son. The woman's title was an original title & did not derive from the man's title. Having established title to the farm by A.P. , there is no requirement that the woman must bring an action to establish title. Thus, she could convey the farm to her son.

A mining company that operated a copper mine in a remote location kept dynamite in a storage facility at the mine. The storage facility was designed and operated in conformity with state-of-the-art safety standards. In the jurisdiction, the storage of dynamite is deemed an abnormally dangerous activity. Dynamite that was stored in the mining company's storage facility and that had been manufactured by an explosives manufacturer exploded due to an unknown cause. The explosion injured a state employee who was at the mine performing a safety audit. The employee brought an action in strict liability against the mining company. What would be the mining company's best defense?

C: The state employee assumed the risk of injury inherent in the job. Assumption of risk can be an affirmative defense to strict liability. Here, the state employee willingly took on auditing duties in potentially dangerous environments. (Wrong: B: The mining company did not manufacture the dynamite. B is incorrect. In a products liability action, the defendant's status as a manufacturer or other "seller" of the product would be important, but this strict liability action is based on an abnormally dangerous activity rather than on a defective product. In a strict liability action based on engaging in an abnormally dangerous activity, a defendant can be held liable for all the risks inherent in the activity, whatever other actors might be involved in creating those risks.

A man and his friend, who were both adults, went to a party. The man and the friend had many drinks at the party and became legally intoxicated. They decided to play a game of chance called "Russian roulette" using a gun loaded with one bullet. As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger. The man shot the friend in the shoulder.The friend has brought a negligence action against the man. Traditional defenses based on plaintiff's conduct apply. What is likely to be the dispositive issue in this case?

C: Whether the friend was also negligent. Contributory negligence is an appropriate defense to a negligence action, and here both parties seem to have been acting unreasonably in exactly the same way. Whether the argument is put in the form of the friend's carelessness in engaging in the activity or in her unreasonable assumption of risk, many states would now evaluate the defense under comparative negligence principles.

Last year, a buyer and a seller entered into a valid contract for the sale of a parcel of real property. The contract contained no contingencies. The seller was killed in a car accident before the parcel was conveyed, but the closing eventually took place with the conveyance by a deed from the personal representative of the seller's estate.The personal representative of the seller's estate wants to distribute the proceeds of the real property sale. The seller's will was executed many years ago and was duly admitted to probate. Paragraph 5 of his will leaves all of the seller's real property to his son, and Paragraph 6 leaves the residue of the estate to the seller's daughter. No other provisions of the will are pertinent to the question regarding to whom the proceeds of the sale should be distributed. What will determine who receives the proceeds?

C: Whether the jurisdiction has adopted the doctrine of equitable conversion. The determination of who will receive the proceeds thus depends on who had equitable title. HERE, the son had only a legal interest in the land at the time of the seller's death, & the daughter had the equitable interest in the proceeds and should receive them. (Wrong: A: Whether Paragraph 5 refers specifically to the parcel of real property that was sold or simply to "all of my real property." A is incorrect. The K contained no contingencies, & thus the doctrine of equitable conversion applied as of the date of K signing and determines who is entitled to the proceeds.)

A P sued his insurance C.O. for the proceeds of a casualty insurance policy covering his 60-foot yacht, claiming that the yacht was destroyed by an accidental fire. The C.O. has denied liability, claiming that the plaintiff hired his friend to set the fire. In the hospital the day after the fire, the friend, who had been badly burned in the fire, said to his wife, in the presence of an attending nurse, "I was paid to set the fire." 2 weeks later, the friend died of an infection resulting from the burns. At trial, the insurance company calls the wife to testify to the friend's statement. Is the wife's testimony admissible over the plaintiff's objection?

C: Yes, because it is a statement against interest. The statement was against the friend's interest b/c had he lived, it could have subj him to civil/criminal liability. He made it w/out a motive to lie, it was based on his own personal knowledge, & b/c a nurse was present as a witness, he had to have known he was subj'ing himself to potential liability. &, due to his death, he is unavailable. (Wrong: D: Yes, b/c it is a statement by a co-conspirator. D is incorrect b/c the statement was not made in furtherance of a conspiracy, but it was against the friend's interest.)

A woman borrowed $100,000 from a bank and executed a promissory note to the bank in that amount. As security for repayment of the loan, the woman's brother gave the bank a mortgage on a tract of land solely owned by him. The brother did not sign the promissory note.The woman subsequently defaulted on the loan, and after acceleration, the bank instituted foreclosure proceedings on the brother's land. The brother filed a timely objection to the foreclosure. Will the bank succeed in foreclosing on the tract of land?

C: Yes, because the bank has a valid mortgage. A mortgage is a type of security interest in real estate, which secures a promise to repay a loan, represented by a promissory note. However, the debtor and mortgagor can be different people.

Congress enacted a statute establishing a program to protect areas in the United States that are rich in biological diversity. The program is consistent with the terms of an environmental treaty that the President objected to and did not sign.The statute creates an executive agency and authorizes it to designate parts of federal lands for inclusion in the program in accordance with criteria taken from the treaty. In an inseverable provision, the statute further provides that the agency must report each designation to a committee of Congress and that the committee may overturn the agency's designation by a majority vote.Why is the statute unconstitutional?

D: It authorizes a committee of Congress to overturn an executive decision. By authorizing a congressional committee to overturn the agency's designations of federal lands by a majority vote, without seeking bicameral approval or presidential signature, this provision of the statute amounts to an unconstitutional legislative veto of an executive decision. (Wrong: C: It requires an executive agency to report its decisions to Congress.C is incorrect. The Necessary and Proper Clause gives Congress the authority to require executive agencies to report decisions to Congress, assuming this requirement is rationally related to a proper objective and is otherwise constitutional.)

A common law jurisdiction defines first-degree murder as any murder that is (1) committed by means of poison or (2) premeditated. All other murder is second-degree murder, and manslaughter is defined as at common law. An employee was angry with her boss for denying her a raise. Intending to cause her boss discomfort, the employee secretly dropped into his coffee three over-the-counter laxative pills. The boss drank the coffee containing the pills. Although the pills would not have been dangerous to an ordinary person, because the boss was already taking other medication, he suffered a seizure and died. If the employee is charged with murder in the 1st degree, should she be convicted?

D: No. In this jurisdiction, the use of poison or acting with premeditation may elevate murder from 2nd to 1st degree. But, murder requires that a killer has acted with MALICE aforethought, express or implied. Malice exists when a person: 1. intends to kill, 2. intends to inflict great bodily harm, 3. intends to commit an inherently dangerous felony, 4. or acts with a reckless indifference to an unjustifiably high risk to human life. Here, the employee did not intend to kill/cause serious injury to her boss; the employee only intended to cause her boss discomfort. Moreover, giving her boss laxatives that could be purchased over the counter does not = reckless indifference to an unjustifiably high risk to human life. Thus, because the employee DID NOT: 1. intend to kill, 2. did not intend to cause serious bodily injury, 3. did not act with reckless indifference, and 4. was not in the course of committing a felony, = SHE would NOT be GUILTY of any Degree of MURDER.

In the most recent deed in the chain of title to a tract of land, a man conveyed the land as follows: "To my niece & her heirs and assigns in F.S. until my niece's daughter marries, and then to my niece's daughter and her heirs and assigns in F.S." There is no applicable statute, and the common law Rule Against Perpetuities has not been modified in the jurisdiction. Which of the following is the most accurate statement concerning the title to the land?

D: The niece has a defeasible F.S. & the daughter has an executory interest. The niece has a defeasible F.S. b/c of the limitation placed on the estate by the words "until my niece's daughter marries." If the niece's daughter marries, the estate in the niece will end automatically & will pass to the holder of the future interest (the niece's daughter). The future interest given to the daughter, a grantee, is an executory interest. The executory interest in this case does not violate the common law Rule Against Perpetuities, b/c it will be known w/in the lifetime of the validating lives - the niece and the niece's daughter - whether the condition of marriage has occurred. C is incorrect. The niece was granted a defeasible F.S. The express limitation was the marriage of the niece's daughter. If the limitation occurs, the estate transfers automatically to the niece's daughter. The future interest held by a grantee following a defeasible estate is an executory interest. Executory interests are subg to the common law Rule Against Perpetuities; however, the niece and the niece's daughter are both validating lives and the condition of the marriage either will or will not occur during their lifetimes. The additional 21 years after the death of all validating lives is not needed, and the rule is not violated.

A schizophrenic patient who was institutionalized in a psychiatric facility pushed a nurse down a stairwell at the facility. The nurse, a paid employee of the facility who was trained to care for schizophrenic patients, was injured. The patient is an indigent whose care is paid for by the government. The jurisdiction generally follows the rule that a person with a mental deficiency is held to the standard of a reasonable person. In a negligence action brought by the nurse against the patient, the patient's lawyer will argue that the patient should not be held responsible for the nurse's injury. Which of the following facts will be LEAST helpful to the patient's lawyer's argument?

D: The patient is an indigent whose care is paid for by the gover't. Whether the patient has the resources to satisfy an adverse judgment is irrelevant to the judgment itself & should NOT be a subject of argument on the issue of liability in the case, although the patient's financial situation might affect a lawyer's decision to take on the case. (Wrong: C: At the time she pushed the nurse, the patient thought she was being attacked by an elephant. C is incorrect. The patient's mental state is relevant because the patient's actions were no doubt caused by the mental illness and thus fell within the risks likely assumed and anticipated by the nurse.)

A farmer who wanted to sell her land received a letter from a developer that stated, "I will pay you $1,100 an acre for your land." The farmer's letter of reply stated, "I accept your offer." Unbeknownst to the farmer, the developer had intended to offer only $1,000 per acre but had mistakenly typed "$1,100." As both parties knew, comparable land in the vicinity had been selling at prices between $1,000 and $1,200 per acre. Which of the following states the probable legal consequences of the correspondence between the parties?

D: There is a contract formed at a price of $1,100 per acre. An enforceable contract requires mutual assent as determined by the parties' objective, rather than subjective, manifestations of assent. Given the parties' knowledge of the price of comparable land, the developer's offer created a reasonable understanding that the developer would purchase the land for $1,100 per acre. Moreover, because the farmer neither knew nor had reason to know that the developer intended to purchase the land for only $1,000 per acre, the developer will be bound to purchase it for $1,100 per acre. Accordingly, the parties' conduct gave rise to a contract formed at $1,100 per acre when the farmer accepted the developer's offer.

A driver sued her insurance company on an accident insurance policy covering personal injuries to the driver. The insurance company defended on the ground that the driver's injuries were intentionally self-inflicted and therefore excluded from the policy's coverage. The driver testified at trial that she had inflicted the injuries, as her negligence had caused the crash in which she was injured, but that she had not done so intentionally. She then called as a witness her treating psychiatrist to give his opinion that the driver had been mentally unbalanced, but not self-destructive, at the time of the crash. Should the court admit the witness's opinion?

D: Yes, because it is a helpful opinion by a qualified expert. The psychiatrist should be able to testify about the driver's mental state, which is based on his specialized knowledge and sufficient data from evaluating the driver, and would be helpful to the trier of fact in determining whether the crash was intentional. (Wrong: B: No, because it is an opinion about a mental state that constitutes an element of the defense. B is incorrect. FRE 704(b) prevents an expert from testifying to a criminally accused's mens rea. But, this is a civil case in which the expert may offer his opinion regarding the driver's mental state to aid the trier of fact without usurping its fact-finding role.

A city ordinance prohibited individuals from picketing in residential neighborhoods unless the picketing related to the neighborhood zoning requirements. This exception to the ordinance was adopted in response to local citizens' strong views about proposed rezoning of residential neighborhoods. A group that wished to picket in front of a business owner's home because of the business owner's employment practices challenged the ordinance as unconstitutional under the First Amendment. Will the group's challenge likely prevail?

D: Yes, because the ordinance is a content-based regulation of speech. The ordinance is a content-based regulation of speech b/c it permits an expressive activity (picketing) on 1 subject (neighborhood zoning requirements) & prohibits it on all other subjects. This type of restriction on expression presumptively violates the freedom of speech protected by the 1st Amendment. To justify a content-based restriction, the gover't must satisfy strict scrutiny, proving that the restriction is necessary to serve a compelling govert interest. The city would be unable to meet that burden. (Wrong: A: No, because the ordinance is a content-neutral regulation of speech. A is incorrect. As explained above, the ordinance is a content-based regulation of speech, not a content-neutral regulation of speech.)

A mother purchased an expensive TV from an appliance store for her adult son. 2 years after the purchase, a fire started in the son's living room in the middle of the night. The fire department concluded that the fire had started in the Tv. No other facts are known. The son sued the appliance store for negligence. The store has moved for summary judgment. Should the court grant the store's motion?

D: Yes, because there is no evidence of negligence on the part of the store. The son is suing in negligence, NOT in strict liability. To succeed in his case of negligence, the son must introduce evid that the store was negligent. Here, the son did not pointed to any negligent action or omission by the store. No res ipsa loquitur here, because the manufacturer, rather than the store, may have been negligent OR the negligence may have occurred AFTER the sale. For example, during a repair or while the Tv was being used by the son.

At a woman's trial for bank robbery, the prosecutor has called a private security guard for the bank who has testified, without objection, that while he was on a coffee break, the woman's brother rushed up to him and said, "Come quickly! My sister is robbing the bank!" The woman now seeks to call a witness to testify that the brother later told the witness, "I got my sister into trouble by telling a security guard that she was robbing the bank, but now I realize I was mistaken." The brother is unavailable to testify. Is the witness's testimony admissible?

D: Yes, but only as an inconsistent statement to impeach the brother's credibility. When a hearsay declarant is not present at trial, FRE 806 allows for impeachment of that declarant, even without an opportunity to explain or deny it, by a prior inconsistent statement.