Missed MBE Study Aid Test 8-21-20
Question 1910 - The question is: An individual investor purchased stock through a company's stock offering. When the price of the stock plummeted, the investor sued the company in a state court in State A, claiming that the company's offering materials had fraudulently induced him to purchase the stock and seeking $25,000 in damages. A university that had purchased the company's stock through the same offering sued the company in federal court in State B, claiming that the offering materials violated federal securities laws and seeking $1 million in damages. The individual investor's suit proceeded to trial. The state court ruled that the company's offering materials contained false information and awarded the investor a $25,000 judgment. The university immediately moved for partial summary judgment in its federal action against the company, arguing that the state court judgment bound the federal court on the issue of whether the company's offering materials contained false information. Neither State A nor State B permits nonmutual issue preclusion. Should the court grant the university's motion? A: No, because State A does not permit nonmutual issue preclusion. B: No, because the federal court sits in a state that does not permit nonmutual issue preclusion. C: Yes, because federal law permits nonmutual issue preclusion. D: Yes, because the issue of whether the materials contained false information was actually litigated and necessarily decided.
A
Question 1926 - The question is: A car manufacturer produced a car that was sold nationwide. Problems with the car's brakes allegedly caused several accidents and injuries. Two individual buyers of the car each filed a class action, in different states, against the manufacturer, asserting the same products liability claims on behalf of all buyers nationwide. One class action was filed in federal court and the other was filed in state court. The parties in the federal action reached a court-approved settlement, and the court entered judgment dismissing the action with prejudice. The manufacturer's attorney has moved to dismiss the state court action on the basis of res judicata (claim preclusion). Should the state court look to federal or state law to decide the effect of the judgment? A: Federal law, because the judgment was entered in federal court. B: Federal law, because the judgment was the result of a nationwide action governed by the federal class action rule. C: State law, because the judgment is being asserted in a state court. D: State law, because there is no general federal common law and preclusion is a common law doctrine.
A
Question 1936 - The correct answer is A. The question is: A federal statute authorizes a federal agency to issue rules requiring that state legislatures adopt laws of limited duration to reduce water pollution from gasoline-powered boat motors. The purpose of these rules is to assist the agency in attaining the clean water standards required by the statute. After the agency issued such rules, several states filed an action challenging the rules on the sole ground that they are unconstitutional. Should the court uphold the constitutionality of the agency's rules? A: No, because the federal government may not compel a state legislature to enact into state law a federally mandated regulatory program. B: No, because the Tenth Amendment grants states immunity from all direct federal regulation. C: Yes, because the rules serve an important purpose, and the requirements they impose on the states are only temporary and do not excessively interfere with the functioning of the state governments. D: Yes, because the supremacy clause of Article VI requires states to enforce federal law.
A
Question 1939 - The question is: A state criminal law prohibits the publication of any description of the details of the execution of any prisoner who is sentenced to death by the courts of the state. Although the law allows a specified number of reporters to observe an execution, only the prison warden's official statement that the prisoner was "executed as provided by law" at a certain time and date may be published. The purpose of the law is to protect the public, particularly children, from the details of executions. After a particular execution was mishandled, causing the prisoner to suffer, a newspaper in the state published a story describing the event in detail. The story was written by the newspaper's reporter, who was permitted to observe the execution but did not promise prison officials that he would report only the warden's official statement. A prosecutor subsequently filed charges against the newspaper for publishing the details of the execution in violation of the state law. Is this prosecution constitutional? A: No, because the prosecution seeks to punish the publication of lawfully obtained, truthful information about a matter of public significance, without adequate justification. B: No, because the reporter did not promise prison officials that he would report only the warden's official statement about the execution. C: Yes, because publication of the details of such events might cause psychological damage to some children. D: Yes, because the newspaper should have brought an action to test the validity of the law before publishing the reporter's story.
A
Question 1983 - The question is: A buyer contracted with a seller to purchase 10,000 bushels of soybeans at market price. The soybeans were to be delivered in 90 days. Two days after the soybean contract was made, the buyer and the seller entered into another contract under which the buyer agreed to purchase 10,000 bushels of wheat from the seller at market price. Before the time for delivery of the soybeans, the seller notified the buyer that it would not deliver the wheat because the seller's wheat supplier had refused to extend additional credit to the seller and therefore the seller had no wheat available for the buyer. Which of the following statements best describes the effect of the seller's repudiation of the wheat contract on the buyer's rights under the soybean contract? A: It gives the buyer the right to demand assurances that the seller will perform the soybean contract. B: It gives the buyer the right to terminate the soybean contract, because of the doctrine of dependent covenants. C: It gives the buyer the right to terminate the soybean contract, because the buyer does not have to deal with a party that breaches a contract. D: It has no effect on the buyer's rights, because the two contracts are entirely separate.
A
Question 1990 - The question is: A mechanic agreed in writing to make repairs to a landscaper's truck for $12,000. The mechanic properly made the repairs, but when the landscaper tendered payment, the mechanic refused to deliver the truck unless the landscaper promised to pay an additional $2,000. The customary charge for such work was $14,000. Because the landscaper needed the truck immediately to fulfill existing contractual obligations, and because no rental trucks of the same type were available, the landscaper promised in writing to pay the mechanic an additional $2,000. The mechanic then delivered the truck. Will the mechanic be able to enforce the landscaper's promise to pay the additional $2,000? A: No, because the landscaper had no reasonable alternative but to yield to the mechanic's wrongful threat. B: No, because the mechanic exerted undue influence over the landscaper with respect to the modification. C: Yes, because the landscaper could have obtained possession of the truck through legal action rather than by agreeing to the increased payment. D: Yes, because the modified contract price did not exceed a reasonable price.
A
Question 2012 - The question is: A defendant was charged with and tried for murder. At trial, the defendant testified that he had acted in self-defense. The trial court instructed the jury that the defendant had the burden of proving by a preponderance of the evidence that he had acted in selfdefense. The defendant objected, arguing that this instruction violated the constitutional requirement that the prosecution prove the offense beyond a reasonable doubt. Did the trial court's instruction violate the defendant's federal constitutional rights? A: No, because due process does not preclude requiring a defendant to prove self-defense by a preponderance of the evidence. B: No, because due process does not regulate the burdens of proof in criminal cases. C: Yes, because due process precludes placing any evidentiary burden on a criminal defendant. D: Yes, because due process precludes requiring a criminal defendant to bear the burden on an issue that would make an act lawful.
A
Question 2021 - The question is: A plaintiff, a management trainee, brought a sex discrimination lawsuit against her employer for wrongful termination of her employment. At trial, the plaintiff is prepared to testify that a janitor at the company told her that he had heard her supervisor say to other male coworkers about her, "Make it hard for her. Maybe she'll go home where she belongs." Is the plaintiff's proposed testimony admissible? A: No, because the janitor's statement is hearsay not within any exception. B: No, because the statements of both the janitor and the supervisor are hearsay not within any exception. C: Yes, because the janitor's statement is a present sense impression, and the supervisor's statement is a statement of his then-existing state of mind. D: Yes, because the statements of both the janitor and the supervisor are statements concerning a matter within the scope of their employment.
A
Question 2053 - The question is: A man owned land along the south side of a highway. To the south of the man's land was a lot owned by a woman who lived on it in a house. Five years ago the man conveyed a right-of-way easement over his land to the woman because it provided a more direct route between her house and the highway. The easement was evidenced by a clearly marked path. The document granting the easement was promptly recorded. Three years ago, the woman conveyed her house to the man. The man never took actual possession of the house. Two years ago, the man conveyed the house to a purchaser by a warranty deed. Two months after the purchaser moved into the house, a neighbor informed him about the easement. He then began using the path that had been marked on the man's land. When the man noticed the purchaser using the path, he erected a barricade on his land that effectively prevented the purchaser from using the path. The purchaser has sued the man, claiming that he has an easement over the man's land. Who is likely to prevail? A: The man, because the easement was extinguished. B: The man, because the purchaser did not have actual notice of the easement at the time of acquisition. C: The purchaser, because he purchased the house by warranty deed. D: The purchaser, because the easement was of public record when he acquired the house.
A
Question 2054 - The question is: A man borrowed $150,000 from a bank to remodel his home and executed a promissory note agreeing to repay the loan over a 10-year period. The loan was secured by a mortgage on the home. The bank promptly recorded the mortgage, which was the only lien on the home at that time. Several months later, the man borrowed $40,000 from his mother in order to purchase a new truck and gave his mother a mortgage on the home to secure repayment of the debt. The mother promptly recorded the mortgage. The man later lost his job and was struggling to make loan payments to both the bank and his mother. To accommodate the man's financial situation, the bank extended the amortization period of its loan to substantially reduce the amount of each monthly payment. The bank did not alter the interest rate or increase the principal amount of the loan. At the time of the modification of the bank loan, the man was not in default in his payments to his mother. Neither the bank nor the man informed the mother of the modification of the bank loan. After the man later missed five payments to his mother, she commenced a foreclosure action. While the action was pending, the mother learned of the bank's loan modification. The mother asserted that her mortgage had become a first lien on the home and that the bank's mortgage had become a second lien. Is the mother's assertion correct? A: No, because the bank's loan modification was not detrimental to the rights of the mother. B: No, because the man was not in default in his payments to his mother at the time of the bank's loan modification. C: Yes, because the bank's loan modification was made without the mother's prior consent. D: Yes, because the bank's loan modification was material.
A
Question 2083 - The question is: A seller sold his boat to a buyer. During negotiations, the buyer said that he planned to sail the boat on the open seas. The seller told the buyer that the boat was seaworthy and had never sustained any significant damage. In fact, the hull of the boat had been badly damaged when the seller had run the boat aground. The seller had then done a cosmetic repair to the hull rather than a structural repair. The buyer relied on the seller's representations and paid a fair price for a boat in good repair, only to discover after the sale was completed that the hull was in fact badly damaged and in a dangerous condition. The seller has refused to refund any of the buyer's money, and the buyer is contemplating suing the seller. Under what theory would the buyer be most likely to recover? A: Fraud. B: Intentional endangerment. C: Negligent misrepresentation. D: Strict products liability.
A
Question 2088 - . The question is: A longshoreman fell to his death through an open hatch on the deck of a ship. The longshoreman was an employee of a company that had contracted with the ship's owner to load and unload the ship. The fall occurred at night, when loading work was over for the day, and there was no reason for the longshoreman to have been near the hatch. A negligence action was filed against the ship's owner for the death of the longshoreman. In that action, the owner has moved for summary judgment and has provided unrebutted evidence that it is customary for the crews of ships to open the hatches for ventilation after the longshoremen have left the ships. How should the court respond to the motion? A: Deny the motion and submit the case to the jury with instructions that the custom is relevant but not conclusive on the issue of negligence. B: Deny the motion and submit the case to the jury with instructions that the ship's owner should win if the longshoreman was improperly near the hatch. C: Deny the motion, because the probability of serious injury caused by falling down an open hatch clearly outweighs the burden of keeping the hatch closed. D: Grant the motion, because the custom should be considered conclusive on the issue of negligence.
A
Question 1916 - The question is: A shop owner domiciled in State A sued a distributor in a federal district court in State A for breach of a contract. The shop owner sought $100,000 in damages for allegedly defective goods that the distributor had provided under the contract. The distributor is incorporated in State B, with its principal place of business in State C. The distributor brought in as a third-party defendant the wholesaler that had provided the goods to the distributor, alleging that the wholesaler had a duty to indemnify the distributor for any damages recovered by the shop owner. The wholesaler is incorporated in State B, with its principal place of business in State A. The wholesaler has asserted a $60,000 counterclaim against the distributor for payment for the goods at issue, and the distributor has moved to dismiss the counterclaim for lack of subject-matter jurisdiction. Should the motion to dismiss be granted? A: No, because the wholesaler's and the distributor's principal places of business are diverse. B: No, because there is supplemental jurisdiction over the wholesaler's counterclaim. C: Yes, because there is no diversity of citizenship between the distributor and the wholesaler. D: Yes, because there is no diversity of citizenship between the shop owner and the wholesaler.
B
Question 1919 - The question is: Two days before his home was to be sold at a foreclosure sale, a homeowner obtained a temporary restraining order (TRO) in federal court that prevented his lender from proceeding with the sale for 14 days or until a preliminary injunction hearing could take place, whichever was sooner. When a preliminary injunction hearing could not be scheduled within the original 14-day period, the court extended the TRO for another 30 days. The lender appealed the court's order extending the TRO. The homeowner has moved to dismiss the appeal. Is the appellate court likely to dismiss the appeal? A: No, because a TRO is immediately appealable. B: No, because the 30-day extension makes the TRO equivalent to a preliminary injunction and therefore appealable. C: Yes, because a TRO is not appealable under the interlocutory appeals statute. D: Yes, because there is no final judgment from which an appeal may be taken.
B
Question 1944 - The question is: A U.S. senator made a speech on the floor of the Senate accusing a low-level purchasing officer employed by a federal agency of wasting millions of dollars of taxpayer money by purchasing many more office supplies than the agency needed. The accusation was demonstrably false, and the senator was negligent in making it. The purchasing officer has sued the senator for defamation, alleging only that the accusation was false and that the senator was negligent. What is the most appropriate ground for the court to dismiss the purchasing officer's complaint? A: The federal government is constitutionally immune from suit without its consent, and it has not consented to suits of this kind. B: The First Amendment guarantees members of Congress an unqualified right to speak on matters of public concern at any place and time without having to fear adverse legal consequences. C: The First Amendment protects public officials from defamation liability for statements made in their official capacity, unless the plaintiff alleges and proves that the statement was false and uttered with actual malice. D: The Speech and Debate Clause of Article I, Section 6 of the Constitution wholly insulates members of Congress from tort liability for statements made on the floor of Congress.
B
Question 1971 - The question is: In order to raise revenue, a city required home-repair contractors who performed work within the city limits to pay a licensing fee to a city agency. A contractor who was unaware of the fee requirement agreed to perform home repairs for a city resident. After the contractor completed the work, the resident discovered that the contractor had not paid the licensing fee, and she refused to pay for the repairs, which were otherwise satisfactory. If the contractor sues the resident for breach of contract, how is the court likely to rule? A: Although the contract violates the law and is void, the court will require the homeowner to pay the contractor the reasonable value of the work accepted. B: Although the contract violates the law, the court will find that public policy does not bar enforcement of the contract, because the purpose of the fee is merely to raise revenue. C: Because the contract violates the law and is void, the court will not enforce it. D: Because the purpose of the fee is merely to raise revenue, the court will find that the contract does not violate the law but will allow the contractor to recover his costs only.
B
Question 1978 - The question is: A general contractor about to bid on a construction job for an office building invited a carpenter and several others to bid on the carpentry work. The carpenter agreed to bid if the general contractor would agree to give the carpenter the job provided that his bid was lowest and the general contractor was awarded the main contract. The general contractor so agreed. The carpenter, incurring time and expense in preparing his bid, submitted the lowest carpentry bid. The general contractor used the carpenter's bid in calculating its own bid, which was successful. Which of the following best supports the carpenter's position that the general contractor is obligated to award the carpentry subcontract to the carpenter? A: The carpenter detrimentally relied on the general contractor's conditional promise in preparing his bid. B: The carpenter gave consideration for the general contractor's conditional promise to award the carpentry subcontract to the carpenter. C: The general contractor has an implied duty to deal fairly and in good faith with all bidders whose bids the general contractor used in calculating its main bid to the building owner. D: The general contractor has an obligation to the owner of the building to subcontract with the carpenter because the carpenter's bid was used in calculating the general contractor's bid, and the carpenter is an intended beneficiary of that obligation.
B
Question 2052 - The question is: A woman owned land in fee simple absolute. The woman conveyed the land to a friend "for life," and when the friend died the land was to go to the woman's neighbor "and her heirs." The neighbor died and in her duly probated will devised her entire estate to a local charity. If she had died intestate, her daughter would have been her only heir. One year after the neighbor died, her daughter executed a quitclaim deed conveying any interest she might have in the land to the woman's friend. The common law Rule Against Perpetuities is unmodified in the jurisdiction. There are no other applicable statutes. Who has what interest in the land? A: The friend has a fee simple absolute, because his life estate merged with the remainder conveyed to him by the daughter. B: The friend has a life estate and the charity has a vested remainder, because the neighbor's interest was devisable. C: The friend has a life estate and the daughter has a vested remainder, because the deed from the woman created an interest in the neighbor's heirs. D: The friend has a life estate and the woman has a reversion, because the neighbor's remainder was void under the Rule Against Perpetuities.
B
Question 2062 - The question is: Seven years ago, a man conveyed vacant land by warranty deed to a woman, a bona fide purchaser for value. The woman did not record the warranty deed and did not enter into possession of the land. Five years ago, the man conveyed the same land to a neighbor, also a bona fide purchaser for value, by a quitclaim deed. The neighbor immediately recorded the quitclaim deed and went into possession of the land. Two years ago, the neighbor conveyed the land to a friend, who had notice of the prior conveyance from the man to the woman. The friend never recorded the deed but went into immediate possession of the land. The jurisdiction has a notice recording statute and a grantor-grantee index system. If the woman sues to eject the friend, will the woman be likely to succeed? A: No, because the friend took possession of the land before the woman did. B: No, because the neighbor's title was superior to the woman's title. C: Yes, because the friend had notice of the conveyance from the man to the woman. D: Yes, because the woman, unlike the friend, took title under a warranty deed.
B
Question 2101 - The question is: A construction worker was working at the construction site of a new building. An open elevator, which had been installed in the building by the elevator manufacturer, was used to haul workers and building materials between floors. While the worker was riding the elevator, it stalled between floors due to a manufacturing defect in the elevator. The worker called for assistance and was in no danger, but after waiting 15 minutes for help, he became anxious and jumped 12 feet to get out. He severely injured his back when he landed. In an action by the worker against the elevator manufacturer to recover for his back injury, is the worker likely to obtain a judgment for 100% of his damages? A: No, because such risks are inherent in construction work. B: No, because the worker was not in danger while on the stalled elevator. C: Yes, because the elevator stalled due to a manufacturing defect. D: Yes, because the worker was falsely imprisoned in the stalled elevator.
B
Question 1905 - The question is: The attorney for a plaintiff in an action filed in federal district court served the defendant with the summons, the complaint, and 25 interrogatories asking questions about the defendant's contentions in the case. The interrogatories stated that they were to be answered within 30 days after service. The defendant is likely to succeed in obtaining a protective order on which of the following grounds? A: Interrogatories are only proper to discover facts, not contentions. B: Interrogatories may not be served until an answer to the complaint is filed. C: Interrogatories may not be served until the parties have conferred to arrange for initial disclosures and prepare a discovery plan. D: The interrogatories exceed the number permitted without permission from the court or an agreement between the parties.
C
Question 1915 - The question is: A mechanic sued his former employer in federal court, claiming that the employer had discharged him because of his age in violation of federal law. The employer answered, denying the claims and promptly moving for summary judgment. In support of the motion, the employer attached the mechanic's employment evaluations for the past three years, which rated his skills and performance as poor and culminated in a recommendation for his discharge. What is the mechanic's best argument to defeat the summary judgment motion? A: The allegations in the complaint conflict with the mechanic's employment evaluations, raising a genuine dispute as to material facts. B: The employer cannot rely in his motion on matters outside the pleadings. C: The essential facts are unavailable to the mechanic and therefore discovery is required. D: The motion was filed before the close of discovery.
C
Question 1922 - The question is: A plaintiff sued a defendant in federal court for injuries arising out of an accident involving the parties. The plaintiff alleged and presented evidence at trial demonstrating that her injuries had left her legs permanently paralyzed. The jury found in favor of the plaintiff and awarded her $5 million in damages. Two months after the court entered judgment, the defendant was given a videotape made that day showing the plaintiff jogging with her doctor. What is the best way for the defendant to seek relief from the judgment? A: Move for a new trial or in the alternative for remittitur to reduce the award in light of the shortened duration of the plaintiff's injuries. B: Move for relief from the judgment on the ground that the judgment was based on the jury's mistaken belief that the plaintiff's injuries would be permanent. C: Move for relief from the judgment on the ground that the plaintiff committed a fraud in obtaining damages for permanent injuries. D: Move for relief from the judgment on the ground that there is newly discovered evidence that the plaintiff's injuries were not permanent.
C
Question 1931 - The question is: A police officer was employed on a city's police force for 10 years. When the officer accepted the job, the city's employee benefit plan provided a death benefit to the spouse of any employee who died as a result of any job-related injury. Last year, the city amended its employee benefit plan to deny its death benefit in cases where the death "was caused by the employee's refusal to accept, for any reason other than its excessive risk to life or health, reasonably available medical care prescribed by a physician." After this amendment took effect, the officer was shot while on duty. Because of a sincerely held religious belief, the officer refused to allow a prescribed blood transfusion and, as a result, died from loss of blood. When the officer's spouse applied for the death benefit, the city denied the application on the basis of the amendment to the employee benefit plan. The officer's spouse has challenged the amendment, claiming that, as applied to the officer, it violated the officer's constitutional right to the free exercise of religion. Is the court likely to find the amendment to the employee benefit plan constitutional as applied to the officer? A: No, because it effectively discriminates against a religious practice. B: No, because it violates the vested contractual rights of city employees who were hired before the amendment took effect. C: Yes, because it does not single out religious reasons for the denial of benefits and is a reasonable limitation on the award of such benefits. D: Yes, because it imposes a condition only on the award of a government benefit and does not impose a penalty on an individual's conduct.
C
Question 2018 - The question is: A federal grand jury was investigating a corporation whose tanker ship had spilled crude oil into environmentally sensitive waters. The grand jury issued a subpoena requiring the corporation to produce all emails and internal documents regarding the corporation's knowledge of the risks of an oil spill. The corporation has objected, citing its Fifth Amendment privilege against self-incrimination. Can the subpoena be enforced? A: No, because the corporation was not granted transactional immunity. B: No, because the corporation was not granted use-and-derivative-use immunity. C: Yes, because a corporation has no Fifth Amendment privilege. D: Yes, because the Fifth Amendment privilege does not apply to the compelled production of documents.
C
Question 2051 - The question is: A seller contracted to sell land to a buyer for $300,000. The contract provided that the closing would be 60 days after the contract was signed and that the seller would convey to the buyer a "marketable title" by a quitclaim deed at closing. The contract contained no other provisions regarding the title to be delivered to the buyer. A title search revealed that the land was subject to an unsatisfied $50,000 mortgage and a right-of-way easement over a portion of the land. The buyer now claims that the title is unmarketable and has refused to close. Is the buyer correct? A: No, because nothing under these facts renders title unmarketable. B: No, because the buyer agreed to accept a quitclaim deed. C: Yes, because the right-of-way easement makes the title unmarketable. D: Yes, because the unsatisfied mortgage makes the title unmarketable.
C
Question 1901 - The question is: A railroad worker's widow brought a wrongful death action in federal court against the railroad, claiming that its negligence had caused her husband's death. At trial, the widow offered the testimony of a coworker of the husband. The coworker testified that he had seen the rail car on which the husband was riding slow down and the cars behind it gain speed. The coworker also stated that he later heard a loud crash, but did not turn around to look because loud noises were common in the yard. Three other railroad employees testified that no collision had occurred. At the close of the evidence, the railroad moved for judgment as a matter of law, which was denied, and the case was submitted to the jury. The jury returned a verdict for the widow. The railroad has made a renewed motion for judgment as a matter of law. What standard should the court apply to determine how to rule on the motion? A: Whether the evidence revealed a genuine dispute of material fact supporting the widow's claim. B: Whether the verdict is against the weight of the evidence. C: Whether the widow presented a scintilla of evidence to support the verdict. D: Whether there is substantial evidence in the record to support the verdict, resolving all disputed issues in the widow's favor.
D
Question 1966 - The question is: An attorney received a document at his office with an attached note from a client for whom he had just finished drafting a will. The note read as follows: "Do you think this contract of sale for my boat complies with state law? I would have talked to you in person about this, but I'm on my way out of town. I will be back next week." The attorney reviewed the document and wrote a one-page letter to the client stating that the document complied with state law. The lawyer included a bill for $500, which was a reasonable fee. The client refused to pay the attorney anything, arguing that she had never agreed to retain the attorney and that she had received nothing of value from the attorney because the sales transaction was never concluded. Assume that there is no applicable statute or rule governing the formation of attorney-client relationships in the jurisdiction. If the attorney sues the client for the $500, will the attorney be likely to prevail? A: No, because even if the parties had an agreement, that agreement was discharged under the doctrine of frustration of purpose. B: No, because the attorney and the client never agreed on the essential terms of a contract. C: Yes, because the attorney took action on the client's note to his detriment. D: Yes, because the client's note and the attorney's performance created an implied-in-fact contract.
D
Question 1970 - The question is: A contractor agreed to remodel a homeowner's garage for $5,000. Just before the parties signed the one-page written contract, the homeowner called to the contractor's attention the fact that the contract did not specify a time of completion. The parties orally agreed but did not specify in the contract that the contractor would complete the work in 60 days, and then they both signed the contract. The contract did not contain a merger clause. The contractor failed to finish the work in 60 days. The homeowner has sued the contractor for breach of contract. Is the court likely to admit evidence concerning the parties' oral agreement that the work would be completed in 60 days? A: No, because the court must ascertain the meaning of the agreement from the terms of the written contract. B: No, because the oral agreement was merely part of the parties' negotiations. C: Yes, because the contract is ambiguous. D: Yes, because the time limit is an additional term that does not contradict the partially integrated written contract.
D
Question 1997 - The question is: A new gang member, hoping to impress the gang's leader, pointed a gun at a pedestrian and ordered her to give him her expensive watch, which she did. The gang member then tossed the watch to the gang leader, who was standing nearby. Although totally surprised by this act, the gang leader put the watch in his pocket. The pedestrian ran away. What crime did the gang leader commit? A: Accessory after the fact to robbery. B: Accomplice to robbery. C: Conspiracy to commit robbery. D: Receiving stolen property.
D
Question 2020 - The question is: A man was charged with first-degree murder. Two lawyers were appointed to represent him because the prosecution planned to seek the death penalty. On the first day of trial, the air-conditioning malfunctioned in the courtroom, so the judge directed that the selection of the jurors take place in his chambers. Because of the large number of potential jurors, the judge directed that only one lawyer for the prosecution and one for the defense participate in the jury selection process. The defendant remained in the courtroom during the questioning of the jurors. Once the jury was selected, the trial was postponed until the next day, when the air-conditioning was again working. Did the court's jury selection process violate the defendant's federal constitutional rights? A: No, because a defendant's confrontation rights are limited to witnesses rather than jurors. B: No, because there was good cause to conduct jury selection outside the defendant's presence. C: Yes, because excluding the defendant undercut the presumption of innocence. D: Yes, because jury selection is a critical stage at which a defendant is entitled to be present.
D
Question 2059 - The question is: A buyer and a seller entered into a written contract for the sale of land. The contract satisfied the requirements of the statute of frauds. Because the buyer needed time to obtain financing, the buyer and the seller did not agree upon a closing date, and the written contract did not contain a stated closing date. 10 days after signing the contract, the buyer and the seller orally agreed to rescind the contract. The next day, the seller sold the land to a third party. Two days after that sale, the original buyer told the seller that she had changed her mind and wanted to complete their contract. When the seller told her that he had sold the land to a third party, she sued him for breach of the written contract. For whom will the court find? A: For the buyer, because she informed the seller within a reasonable time that she desired to close the transaction. B: For the buyer, because the agreement to rescind the contract was not in a writing signed by the buyer and the seller. C: For the seller, because the contract failed to contain a stated closing date. D: For the seller, because the oral rescission was valid.
D
Question 2064 - The question is: A builder sold a new house to a buyer for use as the buyer's residence. The buyer paid 10% of the purchase price and financed the rest by executing a promissory note and purchase money mortgage to the builder. A year later, the buyer missed several mortgage payments to the builder and became unable to make payments. During that year, property values in the neighborhood declined substantially. The builder suggested that the buyer deed the house back to the builder to settle all claims and avoid the costs and other disadvantages of foreclosure. The buyer deeded the house back to the builder. Does the builder now own fee simple title to the house? A: No, because the deed back to the builder constitutes a disguised mortgage. B: No, because the owner of a personal residence cannot waive the right to foreclosure. C: Yes, because of the doctrine of equitable redemption. D: Yes, because the transaction was reasonable and fair under the circumstances.
D
Question 2090 - The question is: A pedestrian was injured when hit by a chair that was thrown from an upper-story hotel window. The pedestrian sued the occupants of all the rooms from which the chair might have been thrown. At trial, the pedestrian has been unable to offer any evidence as to the exact room from which the chair was thrown. The defendants have filed a motion for a directed verdict. Should the court grant the motion? A: No, because it is unreasonable to expect the pedestrian to prove which of the defendants caused the harm. B: No, because of the doctrine of alternative liability. C: Yes, because a plaintiff always has the burden to prove that a particular defendant's conduct was the factual cause of the plaintiff's physical harm. D: Yes, because the pedestrian has failed to offer evidence that the defendants jointly engaged in tortious conduct
D
Question 2092 - The question is: After her husband died in a hospital, a widow directed the hospital to send her husband's body to a funeral home for burial. The hospital negligently misidentified the husband's body and sent it to be cremated. When she was informed of the hospital's mistake, the widow suffered serious emotional distress. She has sued the hospital. Is the hospital likely to be held liable to the widow? A: No, because the widow did not witness the cremation. B: No, because the widow was never in any danger of bodily harm. C: Yes, because hospitals are strictly liable if they do not properly dispose of corpses. D: Yes, because the negligent handling of the husband's body was especially likely to cause his widow serious emotional distress.
D
Question 2093 - The question is: A hot-air balloon touring company operated near a golf course. The company's property was separated from the golf course by a fence on which the company had posted signs warning people not to enter the property because of the dangers of balloons landing. A golfer on the golf course hit an errant shot onto the company's property, ignored the warning signs, and jumped over the fence to retrieve her golf ball. At about the same time, one of the company's balloons experienced mechanical problems and had to make an emergency landing to avoid crashing. The balloon, which was out of control when it landed, struck the golfer and injured her. The jurisdiction has decided that hot-air ballooning is an abnormally dangerous activity. In an action by the golfer against the company, does the company have any affirmative defenses? A: No, because the balloon was out of control when it struck the golfer. B: No, because the company was engaged in an abnormally dangerous activity. C: Yes, because the balloon landed to avoid crashing. D: Yes, because the golfer assumed the risk by coming onto the company's property.
D
Question 1932 - The question is: A federal statute provides states with funds for child welfare programs, subject to the condition that such programs be administered in accordance with federal standards. The United States sued a state in federal court for injunctive relief, arguing that the state's child welfare programs, which were funded in part by federal funds disbursed under this statute, failed to comply with federal standards. The state has moved to dismiss the action. Is the court likely to dismiss the action? A: No, because Congress can place any condition on the receipt of federal funds. B: No, because the Eleventh Amendment does not bar actions brought by the United States. C: Yes, because the Eleventh Amendment bars actions against a state in federal court. D: Yes, because the protection of child welfare is reserved to the states.
b
