EFTA00811410

AMERIBAR BAR REVIEW Multistate Bar Examination Released Questions Section 1 PRACTICE EXAM 1 EFTA00811410 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I Question N I — Evidence as the fruit of the poisonous tree. (C) Yes, because the defendant was compelled to In a suit based on a will, inheritance of SI million speak at the lineup, and this compelled speech depended upon whether the wife had survived her led to the witness's identification testimony. husband when both died in the crash of a small (D) Yes, because the defendant was never informed airplane. An applicable statute provided that, for that he could refuse to make a statement and that purposes of distributing an estate after a common any statement could be used as evidence against disaster, there was a rebuttable presumption that him. neither spouse had survived the other. A witness was called to testi& that as she approached the plane she Question N 3 - Constitutional Law heard what she thought was a woman's voice saying, dying," although by the time the two occupants A city owned and operated a municipal bus system. were removed from the wreckage they were both The city sold space on its buses for the posting of dead. placards. Under the relevant city ordinance, the administrator of the bus system had sole discretion to Is the witness's testimony admissible? decide which placards could be posted on the buses, and the administrator's decision was final. Although (A) No, because the matter is governed by the most of the placards that appeared on city buses were presumption that neither spouse survived the commercial advertisements, the administrator had other. often sold space on the buses for placards promoting (B) No, because the witness's testimony is too various political, charitable, and religious causes. speculative to support a finding. (C) Yes, because the hearsay rule does not apply to After a circus bought space on the buses for placards statements by decedents in actions to determine advertising its upcoming performances, an animal rights under a will. rights organization asked to buy space for a placard (D) Yes, because it is relevant and not otherwise with photographs showing the mistreatment of prohibited. animals in circus shows. Question N 2 - Criminal Law and Procedure The administrator denied the organization's request, stating that the proposed placard would be offensive The defendant subsequently moved to suppress the to the circus, which had paid a substantial sum to testimony of the teller, claiming the lineup violated place its placards on the buses, and that a circus his privilege against self-incrimination. At a employee had told her that none of the photographs suppression hearing, the teller testified that she had on the organization's placard depicted animals not gotten a good look at the robber's face, because belonging to this particular circus. the robber had been wearing a hat pulled down over most of his face, but that she was certain the The organization sued the administrator in an defendant was the robber because she had recognized appropriate court for a declaration that her denial of his voice at the lineup. the organization's request for placard space for the reasons she gave violated the First Amendment as A defendant was lawfully arrested without a warrant made applicable to the states by the Fourteenth for bank robbery. He was not given Miranda Amendment. warnings, but was immediately taken to a police station where he and five other men were placed in a Is the organization likely to prevail? lineup to be viewed by the bank teller. Each man was required to say the words spoken by the bank robber: (A) No, because the administrator's denial of space "Give me all your money. I've got a gun." After to the organization was a reasonable time, place, all the men in the lineup spoke those words, the teller and manner restriction of speech. identified the defendant as the robber. (B) No, because a public official may not allow the Should the defendant's motion use of public facilities for the propagation of a be granted? message that he or she believes may create a (A) No, because being false or misleading impression. required to speak at the (C) Yes, because a public official may not refuse to lineup, while compelled, was not testimonial or permit the dissemination of a message in a public communicative. (B) No. because forum solely on the basis of its content unless testimony of a witness based on that denial is necessary to serve a compelling firsthand observation is not subject to exclusion government interest. MBE RELEASED QUESTIONS MBE MIXED PRACTICE I EFTA00811411 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I (D) Yes, because a public official may not refuse to The nonsmoker brought a battery action against the allow the use of any public facility to publish a smoker. message dealing with an issue of public concern. Which of the following questions will NOT be an Question # 4 — Torts issue in the battery action? A landowner who owned a large tract of land in the (A) Did the smoker intend to cause the nonsmoker's mountains sought to protect a herd of wild deer that contact with the cigarette smoke? lived on part of the land. Although the landowner had (B) Does smoke have the physical properties posted signs that said, "No Hunting—No necessary for making the kind of contact Trespassing," hunters frequently intruded to kill the required for battery? deer. Recently, the landowner built an eight-foot-high (C) Is contact with cigarette smoke from a lawful chain-link fence, topped by three strands of barbed smoking section in a restaurant the kind of wire, across a gully on her land that provided the only contact one must endure as a voluntary restaurant access to the area where the deer lived. patron? (D) Was the smoker's conduct unreasonable under A wildlife photographer asked the landowner for the circumstances? permission to enter the land to photograph the deer. Because the landowner feared that any publicity Question # 6 - Criminal Law and Procedure would encourage further intrusions by hunters, she denied the photographer's request. Frustrated, the A federal officer had probable cause to believe a photographer attempted to climb the fence. He woman had participated in a bank robbery. Two days became entangled in the barbed wire and suffered after the robbery, the woman checked into a local extensive lacerations. The wounds became infected hotel room. When the woman left for the evening, the and ultimately caused his death. The photographer's hotel manager opened the hotel room door so the personal representative has sued the landowner. officer could enter the room and look inside. The officer did not find any of the stolen money but did Is the personal representative likely to prevail? see, lying open on the bed, the woman's diary. The diary contained an entry describing the woman's (A) Yes, because the landowner may not use deadly involvement in robbing the bank. force to protect her land from intrusion. (B) Yes, because the landowner had no property The woman was charged in federal court with bank interest in the deer that entitled her to use force robbery. She moved to suppress the diary. to protect them. (C) No, because the photographer entered the Should the court suppress the diary? landowner's land after the landowner had refused him permission to do so and therefore (A) Yes, because the officer had no warrant. was a trespasser. (B) Yes, because admitting the diary would violate (D) No, because the potential for harm created by the the woman's privilege against self-incrimination. presence of the barbed wire was apparent. (C) No, because the hotel manager had actual authority to allow the officer into the hotel room. Question # 5 — Torts (D) No, because the officer reasonably relied on the hotel manager's apparent authority to allow the An ordinance in a small town required all restaurants officer into the hotel room. to designate smoking and nonsmoking sections for their customers. A cigarette smoker and a nonsmoker Question # 7 - Real Property were seated at adjoining tables in a small restaurant. The smoker's table was in the smoking section, and Thirty years ago, a landowner conveyed land by the nonsmoker's table was in the nonsmoking warranty deed to a church (a charity) "so long as the section. When the smoker lit a cigarette, the land herein conveyed is used as the site for the nonsmoker politely requested that he not smoke, principal religious edifice maintained by said explaining that she had a severe allergy to cigarette church." smoke. The smoker ignored the nonsmoker's request and continued to smoke. As a result, the nonsmoker Twenty years ago, the landowner died intestate, was hospitalized with a severe allergic reaction to the survived by a single heir. smoke. There is no applicable statute. The common law Rule • MBE RELEASED QUESTIONS 2 MBE MIXED PRACTICE I EFTA00811412 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • Against Perpetuities is unmodified in the jurisdiction. Question # 9 — Contracts One year ago, the church dissolved and its church A fugitive was wanted for murder. The authorities building situated on the land was demolished. offered the following reward: "$20,000 to anyone who provides information leading to the arrest and In an appropriate action, the landowner's heir and the conviction of this fugitive." A private detective knew attorney general, who is the appropriate official to of the reward, located the fugitive, and brought him assert public interests in charitable trusts, contest the to the authorities, who arrested him. The authorities right to the land. then determined that while the fugitive had, in fact, committed the crime, he had been directed to commit In such action, who will prevail? the crime by his boss. The authorities and the fugitive then agreed that in exchange for the fugitive's (A) The landowner's heir, as successor to the testimony against his boss, all charges against the landowner's possibility of reverter. fugitive would be dropped. The fugitive testified and (B) The landowner's heir, because a charity cannot was released. The authorities refused to pay the convey assets donated to it. reward to the private detective on the ground that the (C) The attorney general, because cy pres should be fugitive was never convicted. applied to devote the land to religious purposes to carry out the charitable intent of the Would the private detective be likely to prevail in a landowner. breach of contract action against the authorities? (3) The attorney general, because the landowner's attempt to restrict the church's fee simple (A) No, because the private detective failed to notify violated the Rule Against Perpetuities. the authorities that he had accepted the reward offer. Question ft 8 - Constitutional Law (B) No, because the express conditions set out in the reward were not met. With the advice and consent of the Senate, the (C) Yes, because the authorities' agreement with the President entered into a self-executing treaty with a fugitive was against public policy. foreign country. The treaty provided that citizens of (D) Yes, because the authorities themselves both nations were required to pay whatever tons prevented the conviction of the fugitive. damages were awarded against them by a court of either nation. Question # 10 — Evidence A man and a woman who were U.S. citizens and A defendant was on trial for burglary. The prosecutor residents of the same state were traveling separately called the arresting officer to testify that shortly after in the foreign country when their cars collided. The her arrest and interrogation, the defendant had orally foreign court awarded the woman a judgment for admitted her guilt to the officer. Before the officer S500,000 in damages for her injuries from the testified, the defendant objected that no Miranda accident. warning had been given to her, and she requested a hearing outside the presence of the jury to hear In federal district court in their home state, the evidence on that issue. woman filed suit against the man to enforce the judgment. The man filed a motion to dismiss for lack How should the court proceed? ofjurisdiction. (A) The court should grant the request, because the Should the court grant the motion to dismiss? hearing on the admissibility of the confession must be conducted outside the presence of the (A) Yes, because the citizenship of the parties is not jury. diverse. (B) The court may grant or deny the request, because (B) Yes, because the traffic accident was a the court has discretion whether to conduct noncommercial transaction outside interstate preliminary hearings in the presence of the jury. commerce. (C) No, because (C) The court should deny the request and rule the the case falls within the federal confession inadmissible, because only signed question jurisdiction of the (3) No, because court. confessions are permitted in criminal cases. the treaty power is plenary and not (O) The court should deny the request and rule the subject to judicial review. confession admissible, because it is the statement of a party-opponent. 3 MBE MIXED PRACTICE EFTA00811413 I MBE MIXED PRACTIC•E AMERIBAR BAR REVIEW defendant. Question # 11- Torts m consented, (B) The burden of proving that the victi rests on the with certain by clear and convincing evidence, Under the Federal Tort Claims Act, defendant. here , the fede ral government m consented, exceptions not relevant (C) The burden of proving that the victi igen ce. A fede rally owned and rests on the is liable only for negl tantial quantities by proof beyond a reasonable doubt, operated nuclear reactor emitted subs nearby dairy defendant. of radioactive matter that settled on a did not (D) The burden of proving that the victim doubt, aminating the fans, killing the dairy herd and cont consent, by proof beyond a reas onab le brou ght against the soil. At the trial of an action rests on the prosecution. 's own er, the trier of federal government by the farm plan t had a soun d design, fact found that the nuclear neering Question # 13— Contracts by the Acm e Engi but that a valve made the malf unct ione d and allow ed contract for the Company had Acm e Eng inee ring A buyer and a seller entered into a radioactive matter to esca pe, that seller had the a quality sale of 10,000 novelty bracelets. The Company is universally regarded as ts, and bracelets in stock. The cont ract spec ified that the ear plan manufacturer of components for nucl nt could seller would ship the brac elets by a third-party gove rnme ify either that there was no way the federal the carrier. However, the cont ract did not spec the emis sion of place of have anticipated or prevented who was to pay the costs of carri age or the radioactive matter. tender for the bracelets. for whom If there is no other applicable statute, On the above facts, when would the risk of loss of the should the trial judge enter judgment? bracelets pass to the buyer? doctrine of (A) The plaintiff, on the ground that the (A) When the contract was made. res ipsa loquitur applies. tified to the who allows (B) When the bracelets were iden (B) The plaintiff, on the ground that one contract by the selle r, assu ming the goods dangerous material to esca pe to the property of done . conformed to the contract. another is liable for the dam age to a carrier a case under (C) When the bracelets were delivered age was (C) The defendant, on the ground that and a proper contract for their carri proved. the Federal Tort Claims Act has not been made. the Acme (D) The defendant, on the ground that e of (O) When the bracelets were unloaded on the buyer's imat e caus Engineering Company is the prox premises by the carrier. the owner's damage. edure Question # 14 - Constitutional Law Question # I2- Criminal Law and Proc ts from accident all criminal A state legislature received complain A state statute provides as follows: "In victims who, in the days immediately following their the burden cases, whenever the Constitution permits, defendant accidents, had received unwelcome and occasionally of proof as to a defense claimed by the beha lf of med ical care nitude of the misleading telephone calls on shall rest on the defendant, and the mag providers. The callers warn ed of the risks of not stitu tion permits." detect burden shall be as great as the Con obtaining prompt med ical eval uatio n to accid ents and offer ed free forcible rape as injuries resulting from The same state defines the crime of examinations to dete rmin e whet her the victi ms had follows: "Forcible rape cons ists of sexu al penetration means of suffered any injuries. inflicted on an unconsenting person by complete force or violence. Consent of the victim is a In response to these complaints, the legislature defense to a charge of rape." ical care providers enacted a law prohibiting med hone victim by telep , he testified from soliciting any accident At a defendant's trial for forcible rape within 30 days of his or her accid ent. that the alleged victim had cons ente d to having sexual intercourse with him. argument Which of the following is the most useful constitutionality regarding for the state to use in defending the How should the trial judge instruct the jury of the law? the issue of consent? ch that is the m consented, (A) Because the commercial spee (A) The burden of proving that the victi subject of this law includes som e speech that is by a preponderance of the evid ence , rests on the • 4 MBE MIXED PRACTICE I MBE RELEASED QUESTIONS EFTA00811414 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I misleading, the First Amendment does not limit (A) No, because even if the buyer assumed the the power of the state to regulate that speech. mortgage, the man is solely responsible for any (B) Because the law regulates only commercial deficiency. speech, the state need only demonstrate that the (B) No, because the buyer did not sign a promissory restriction is rationally related to achieving the note to the bank and therefore has no personal state's legitimate interests in protecting the liability. privacy of accident victims and in regulating the (C) Yes, because the buyer assumed the mortgage medical profession. and therefore became personally liable for the (C) The state has substantial interests in protecting mortgage loan and any deficiency. the privacy of accident victims and in regulating (D) Yes, because the transfer of the mortgage debt to the practice of medical care providers, and the the buyer resulted in a novation of the original law is narrowly tailored to achieve the state's mortgage and loan and rendered the buyer solely objectives. responsible for any deficiency. (D) The law is a reasonable time, place, and manner regulation. Question # 17 — Contracts Question # 15 — Evidence In a written contract, an architect agreed to draw up the plans for and to supervise construction of a A defendant was charged with murder. While client's new house. In return, the client agreed to pay walking down the hallway during a recess in the the architect a fee of $10,000 to be paid upon the defendant's trial, the judge overheard the defendant house's completion. After completion, the client say to his attorney, "So what if I did it? There's not claimed erroneously but in good faith that the enough proof to convict." Upon the judge's reporting architect's plans were defective. The client orally the incident to counsel, the prosecutor called the offered to pay the architect $7,500 in full settlement judge as a witness in the trial. of the claim for the fee. The architect orally accepted that offer despite the fact that the reasonable value of Is the judge's testimony regarding the defendant's his services was in fact $10,000. The client paid the statement admissible? architect $7,500 pursuant to their agreement. (A) Yes, as the statement of a party-opponent. The architect subsequently sued the client for the (B) Yes, because the defendant's statement, although remaining $2,500. In a preliminary finding, the trier otherwise privileged, was made without of fact found that there were no defects in the reasonable efforts to preserve confidentiality. architect's plans. (C) No, because the statement was a privileged attorney-client communication. Will the architect be likely to prevail in his action (D) No, because a judge may never testify in a trial against the client for $2,500? over which he or she is presiding. (A) Yes, because payment of $7,500 cannot furnish Question # 16 - Real Property consideration for the architect's promise to surrender his claim. A man borrowed money from a bank and executed a (B) Yes, because the oral agreement to modify the promissory note for the amount secured by a written contract is not enforceable. mortgage on an office building that he owned. (C) No, because the architect's promise to accept Several years later, the man sold the building. As $7,500 became binding when the client made the specified in the contract of sale, the deed to the buyer payment. provided that the buyer agreed "to assume the (D) No, because the architect's acceptance of partial existing mortgage debt" on the building. payment constituted a novation. Subsequently, the buyer defaulted on the mortgage Question # 18 — Evidence loan to the bank, and appropriate foreclosure proceedings were initiated. The resulted in a deficiency. foreclosure sale A defendant's house was destroyed by fire and she was charged with arson. To prove that the defendant There is no applicable had a motive to burn down her house, the statute. government offered evidence that the defendant had Is the buyer liable fully insured the house and its contents. for the deficiency? Should the court admit this evidence? MBE RELEASED Qt csnons 5 MBE MIXED PRACTICE EFTA00811415 MBE MIXED PRACTICE I AMERIBAR BAR REVIEW • (A) No, because the probative value of the evidence Question k 21 - Constitutional Law of insurance upon the issue of whether the defendant intentionally burned her house down is A report released by a Senate investigating to committee named three U.S. citizens as helping substantially outweighed by the dangers of unfair t activiti es. All three prejudice and confusion of the jury. organize support for terroris were employed by the U.S. government as park (B) No, because evidence of insurance is not admissible upon the issue of whether the insured rangers. acted wrongfully. Congress enacted a statute naming the three (C) Yes, because evidence of insurance on the house individuals identified in the report and providing that has a tendency to show that the defendant had a motive to burn down the house. they could not hold any position of employment with the federal government. (D) Yes, because any conduct of a party to the case is admissible when offered against the party. Which of the following constitutional provisions provides the best means for challenging the Question Et 19 — Torts constitutionality of the statute? The owner of a shopping mall hired a construction (A) The bill of attainder clause. company to design and construct the entryway to the (B) The due process clause. mall. The construction company negligently selected an unusually slippery material for the floor covering. (C) The ex post facto clause. (D) The takings clause. A customer at the mall slipped on the floor of the entryway, sustaining injuries. The customer sued the Question q 22 - Real Property mall owner for the construction company's negligent design of the mall's entryway. A seller owned a single family house. A buyer gave the seller a signed handwritten offer to purchase the Will the injured customer recover damages? house. The offer was unconditional and sufficient to No, if the construction company was an satisfy the statute of frauds, and when the seller (A) ndent contractor. signed an acceptance an enforceable contract indepe No, if no customers had previously slipped resulted. (B) on the floor. (C) Yes, if the customer intended to make a The house on the land had been the seller's home, but he had moved to an apartment, so the house was purchase at the mall. Yes, if the mall's duty to maintain safe vacant at all times relevant to the proposed (D) conditions was nondelegable. transaction. Two weeks after the parties had entered into their contract, one week after the buyer had obtained a written mortgage lending commitment Question N 20 — Contracts from a lender, and one week before the agreed-upon closing date, the house was struck by lightning and On June I, a seller agreed, in a writing signed by both burned to the ground. The loss was not insured, the seller and the buyer, to sell an antique car to a because three years earlier, the seller had let his buyer for $20,000. The car was at the time on display homeowner's insurance policy lapse after he had paid in a museum in a different city and was to be delivered to the buyer on August I. On July 15, his mortgage debt in full. before the risk of loss had passed to the buyer, the car The handwritten contract was wholly silent as to was destroyed by fire without fault of either party. matters of financing, risk of loss, and insurance. The Subsequent to the contract but before the fire, the car buyer declared the contract voided by the fire, but the had increased in value to $30,000. The seller sued the seller asserted a right to enforce the contract despite buyer for the contract price of $20,000, and the buyer the loss. counterclaimed for $30,000. There is no applicable statute. Which of the following will the court conclude? If a court finds for the seller, what is the likely (A) Both claims fail. reason? (B) Only the seller's claim prevails. (A) The contract was construed against the buyer, (C) Only the buyer's claim prevails. who drafted it. (D) Both claims prevail. (B) The lender's written commitment to make a • • 6 MBE MIXED PRACTICE I MBE RELEASED QUESTIONS EFTA00811416 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • mortgage loan to the buyer made the contract of (B) No, because the property owner breached no sale fully binding on the buyer. duty to the hiker, who was a trespasser. (C) The risk of loss falls on the party in possession, (C) Yes, because the property owner had a duty to and constructive possession passed to the buyer prevent the trees on his property from becoming on the contract date. dangerous. (D) The risk of loss passed to the buyer on the (D) Yes, because the property owner is liable for contract date under the doctrine of equitable hidden dangers on his property. conversion. Question # 25 - Criminal Law and Procedure Question # 23 - Criminal Law and Procedure United States customs officials received an A federal grand jury was investigating drug anonymous tip that heroin would be found inside a trafficking in the jurisdiction. It subpoenaed a witness distinctively marked red package mailed from a to testify, and the prosecutor advised the witness that foreign country to the United States. Pursuant to this he had a Fifth Amendment privilege not to testi& if tip, United States customs officers opened the red he so chose. The witness asked that his counsel be package and found heroin inside. They then resealed allowed to advise him inside the grand jury room, but the package and left the heroin inside it. The FBI was the prosecutor refused to allow the attorney inside. notified and, as agents watched, the package was The witness, after speaking with his attorney outside delivered to the address. the grand jury room, decided to testify and ended up making self-incriminating statements. The FBI then secured a warrant to search the house for the package. About two hours after the package The witness subsequently was indicted for drug was delivered, the warrant was executed at the crimes. The indictment was based on the witness's house. The man who opened the door was arrested, grand jury testimony and on evidence seized in an and the agents found the package, unopened, in an unconstitutional search of the witness's home. upstairs bedroom closet. After seizing the package, the agents looked through the rest of the house. In a The witness moved to dismiss the indictment. footlocker in the basement, they found a machine gun. Should the court dismiss the indictment? The man was charged with, among other crimes, (A) Yes, because the witness was denied his unlawful possession of the machine gun. He moved constitutional right to advice of counsel. to suppress its use as evidence. (B) Yes, because the indictment was based upon illegally seized evidence. Should the court grant the motion to suppress the (C) No, because the witness waived his machine gun? constitutional rights by testifying. (D) No, because the witness had no right to counsel (A) Yes, because the search exceeded the authority inside the grand jury room and the illegally granted by the warrant. seized evidence did not affect the validity of the (B) Yes, because the initial search by the customs indictment. officers was without probable cause. (C) No, because, having found the package, the Question # 24 -Torts agents had probable cause to believe more narcotics could be located in the house and the A hiker sustained a head injury when he was struck gun was found in a proper search for narcotics. by a limb that fell from a tree. At the time of his (D) No, because narcotics dealers are often armed injury, the hiker was walking through a private property without the forest on and the search was justified to protect the agents. property owner's knowledge or permission. It was determined limb fell because the tree was that the Question ii 26 — Contracts infested with termites. In an action by the A homeowner and a contractor entered into a contract to recover for his hiker against the property owner for the construction of a home for the price of head injury, will the hiker be likely to prevail? $300,000. The contractor was to earn a profit of $10,000 for the job. After the contractor had spent (A) No, because the property owner $45,000 on labor and materials, including $5,000 on foresee that anyone could not oak flooring not yet installed, the homeowner would be injured. informed the contractor that the homeowner had lost MBE RELEASED QUESTIONS 7 MBE MIXED PRACTICE I ESL EFTA00811417 MBE MIXED PRACTICE I AXIERIBAR BAR REVIEW • his job and could not pay for any services. The Several sites on a mountain within federal public homeowner told the contractor to stop working lands are regarded as sacred to a group that for years immediately. The reasonable market value of the has gathered there to perform religious ceremonies. labor and materials provided by the contractor at that The United States Forest Service recently issued a point, including the oak flooring, was $40,000. The permit to a private developer to construct a ski contractor used the $5,000 worth of oak flooring on facility in an area that includes the sites that are another job. sacred to the group. In an action by the contractor against the homeowner The group filed suit in federal district court against for damages, which of the following would be the the Forest Service to force cancellation of the permit. largest amount of damages recoverable by the The group claimed solely that the permit violated its contractor? First Amendment right to the free exercise of religion. The Forest Service conceded that the (A) $40,000, the reasonable value of the services the group's religious beliefs were sincere and that the ski contractor had provided. facility would adversely affect the group's religious (B) $40,000, the contractor's construction costs. practices. (C) $50,000, the contractor's construction costs of $45,000 plus the $10,000 profit minus the $5,000 In order to prevail in its First Amendment claim, saved by reusing the oak flooring on another job. what must the group show? (D) $55,000, the contractor's construction costs of $45,000 plus the $10,000 profit. (A) Construction of the ski facility will have a discriminatory impact on the group's religious Question # 27 - Real Property practices in relation to the practices of other religious groups. A man died testate. The man's estate consisted of a (B) The burden on the group's religious practices residence as well as significant personal property. By imposed by construction of the ski facility his duly probated will, the man devised the residence outweighs the government's interest in allowing to a friend who was specifically identified in the will. the facility. The residue of the estate was given to a stated (C) The Forest Service can achieve its legitimate charity. interest in allowing the ski facility by issuing a permit that is less burdensome on the group's The man's friend, although alive at the time the man religious practices. executed the will, predeceased the man. The friend's (D) The permit issued by the Forest Service is aimed wife and their child, who has a disability, survived at suppressing the religious practices of the the man. group. The value of the residence has increased significantly Question # 29 - Evidence because of recent zoning changes. There is credible extrinsic evidence that the man wanted his friend to A defendant was charged with battery for allegedly own the residence after the man's death so that the attacking a man as they left a local bar together. No friend and his wife could care for their child there. one else witnessed the fight. At trial, each testified that he had acted only in self-defense. The defendant There is no applicable statute. called his next-door neighbor as a witness to testify as to the defendant's reputation both for truthfulness If both the charity and the child claim the residence, and for peacefulness. The government objected to the to whom should the estate distribute the residence? testimony in its entirety. (A) The charity, because the devise to the friend How should the court proceed? adeemed. (B) The charity, because the devise to the friend (A) Admit the evidence in its entirety. lapsed. (B) Admit the evidence regarding the defendant's (C) The child, because extrinsic evidence exists that reputation for peacefulness, but exclude the the man's intent was to benefit the child. evidence regarding his truthfulness. (D) The child, because no conditions of survivorship (C) Exclude the evidence regarding the defendant's were noted in the will. reputation for peacefulness, but admit the evidence regarding his truthfulness. Question # 28- Constitutional Law (D) Exclude the evidence in its entirety. • MBE RELEASED QUESTIONS 8 MBE MIXED PRACTICE I EFTA00811418 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • • Question # 30 - Torts Fourth Amendment violation. (C) Yes, because the confession was the fruit of both A cigarette maker created and published a magazine a Fourth Amendment violation and a Miranda advertisement that featured a model dressed as a violation. race-car driver standing in front of a distinctive race (D) No, because there was neither a Fourth car. In fact, the car looked almost exactly like the Amendment violation nor a Miranda violation. very unusually marked one driven by a famous and popular driver. The driver in the ad was not Question # 32 - Real Property identified, and his face was not shown in the advertisement. The cigarette maker published the A man owned property that he used as his residence. advertisement without obtaining the famous driver's The man received a loan, secured by a mortgage on permission. The race-car driver sued the cigarette the property, from a bank. Later, the man defaulted maker for economic loss only, based on common law on the loan. The bank then brought an appropriate misappropriation of the right of publicity. The action to foreclose the mortgage, was the sole bidder cigarette maker moved to dismiss the complaint. at the judicial sale, and received title to the property as a result of the foreclosure sale. Will the cigarette maker's motion to dismiss the complaint be granted? Shortly after the foreclosure sale, the man received a substantial inheritance. He approached the bank to (A) No, because there are sufficient indicia of the repurchase the property, but the bank decided to build driver's identity to support a verdict of liability. a branch office on the property and declined to sell. (B) Yes, because the driver is a public figure. (C) Yes, because there was no mention of the If the man prevails in an appropriate action to recover driver's name in the ad. title to the property, what is the most likely reason? (D) Yes, because the driver did not claim any emotional or dignitary loss. (A) He had used the property as his residence. (B) He timely exercised an equitable right of Question 14 31 - Criminal Law and Procedure redemption. (C) The court applied the doctrine of exoneration. In a city, a number of armed bank robberies were (D) The jurisdiction provides for a statutory right of committed near closing time by a masked man redemption. wearing a white hooded sweatshirt and blue sweatpants. Police saw a man wearing a white Question # 33 - Real Property hooded sweatshirt and blue sweatpants pacing nervously outside one of the city's banks just before A farmer borrowed SI00,000 from a bank and gave it closed. The police stopped the man and frisked the the bank a promissory note secured by a mortgage on outer layers of his clothing for weapons, but found the farm that she owned. The bank promptly and none. They asked the man what he was doing outside properly recorded the mortgage, which contained a the bank and pointed out that he was wearing due-on-sale provision. clothing similar to clothing worn by the perpetrator of recent robberies. After pausing for several A few years later, the farmer borrowed $5,000 from a moments, the man confessed. The police had not second bank and gave it a promissory note secured by provided him with any Miranda warnings. a mortgage on her farm. The bank promptly and properly recorded the mortgage. After being charged with the bank robberies, the man moved to suppress his confession. The parties and the court properly agreed, Subsequently, the farmer defaulted on her obligation found, that the police had to the first bank, which then validly accelerated the reasonable suspicion but not probable times before the man cause at all debt and instituted nonjudicial foreclosure confessed. proceedings as permitted by the jurisdiction. The Should the man's motion to second bank received notice of the foreclosure sale suppress be granted? but did not send a representative to the sale. At the (A) Yes, because foreclosure sale, a buyer who was not acting in the confession was the fruit of a collusion with the farmer outbid all other bidders and Fourth Amendment was no Miranda violation, even though there received a deed to the farm. (B) Yes, because violation. the Miranda violation,confession was the fruit of a Several months later, the original farmer repurchased even though there was no her farm from the buyer, who executed a warranty MBE Et • ElleAsED QUESTIONS 9 MBE MIXED PRACTICE I EFTA00811419 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 1 • deed transferring the farm to her. After the fanner (C) Yes, because the plant's activity was abnormally promptly and properly recorded that deed, the second dangerous. bank commenced foreclosure proceedings on the (D) Yes, because the plant's location near a busy farm. The farmer denied the validity of the second highway was abnormally dangerous. bank's mortgage. Question # 36 - Contracts Does the second bank continue to have a valid mortgage on the farm? While waiting in line to open an account with a bank, a customer read a poster on the bank's wall that said, (A) Yes, because of the doctrine of estoppel by deed. "New Customers! $25 FOR 5 MINUTES. If you (B) Yes, because the original owner reacquired title stand in line for more than five minutes, we will pay to the farm. you $25! We like happy customers!" The customer (C) No, because the purchase at the foreclosure sale started timing his wait and just as five minutes was by the buyer under these facts eliminated the about to pass, the bank manager tore the poster down second bank's junior mortgage lien. and announced, "The $25 stand-in-line promotion is (D) No, because of the due-on-sale provision in the over." The customer waited in line for 10 more farmer's mortgage to the first bank. minutes before being served. Question # 34 - Evidence Does the customer have a claim against the bank for $25? At a trial of a contract dispute, the plaintiff offered to testi& to what the defendant said in a private (A) No, because the bank withdrew its offer before conversation between the two of them, which the the customer completed the requested plaintiff had secretly recorded on an audiotape that performance. she did not offer in evidence. (B) No, because the bank's statement was a nonbinding gift promise. Is the plaintiff's testimony admissible? (C) Yes, because the bank could not revoke its offer once the customer had commenced performance. (A) Yes, because the plaintiff has personal (D) Yes, because the customer's presence in line knowledge of the statement of a party-opponent. served as notice to the bank that he had accepted. (B) Yes, because the original document rule does not apply to audiotapes. Question # 37 - Constitutional Law (C) No, because the statement must be proved by introduction of the audiotape itself. A federal statute required that any individual or entity (D) No, because of the plaintiff's deception, even if owning more than 100 cars had to ensure that at least the recording was not illegal. 10 percent of those cars were electric-powered. Question # 35 - Torts A city filed suit in federal district court against the federal official who enforced this requirement. The A manufacturing plant located near a busy highway city sought an injunction prohibiting enforcement of uses and stores highly volatile explosives. The owner the statute on the ground that it was unconstitutional. of the plant has imposed strict safety measures to prevent an explosion at the plant. During an Should the court grant the injunction? unusually heavy windstorm, a large tile was blown off the roof of the plant and crashed into the (A) No, because the statute is valid under the windshield of a passing car, damaging it. The driver commerce clause and does not violate the Tenth of the car brought a strict liability action against the Amendment. owner of the plant to recover for the damage to the (B) No, because the federal government has car's windshield. sovereign immunity and cannot be sued without its explicit consent. Is the driver likely to prevail? (C) Yes, because the statute violates the reserved rights of the states under the Tenth (A) No, because the damage to the windshield did Amendment. not result from the abnormally dangerous aspect (D) Yes, because as applied to state and local of the plant's activity. governments, the statute exceeds Congress's power (B) No, because the severity of the windstorm was under the commerce clause. unusual. MBE RELEASED QUESTIONS 10 MBE MIXED PRACTICE I EFTA00811420 AMERIBAR BAR REVIEW MBE MIXED PRACTICE • Question # 38 - Criminal Law and Procedure mailed and his shipment of the different computer model constituted a counteroffer. A driver stopped at a red light in his home state. A stranger opened the passenger door, got in, and Question # 40 - Evidence pointed a gun at the driver. The stranger then directed the driver to keep driving. They drove several miles, A plaintiff sued a ladder manufacturer for injuries he crossed into a neighboring state, and drove several suffered to his neck and back when a rung of the more miles. When they reached a remote location, ladder on which he was standing gave way. When the the stranger ordered the driver to pull over. The plaintiff's back and neck continued to be very sore stranger then robbed the driver of his wallet and cash, after more than two weeks, his treating physician sent and ordered him out of the car. The stranger drove off him to an orthopedist for an evaluation. Though the in the driver's car. orthopedist did not treat the plaintiff, he diagnosed an acute cervical strain. At trial, the plaintiff called the The stranger is charged with kidnapping in the orthopedist to testify that in response to the neighboring state, which has adopted the Model orthopedist's inquiry about how the plaintiff had Penal Code. injured his back, the plaintiff told him, "I was standing near the top of a I5-foot ladder when I Could the stranger properly be convicted of abruptly fell, landing hard on my back, after which kidnapping in the neighboring state? the ladder toppled onto my neck." (A) Yes, because the driver was transported under Should the statement be admitted? threat of force in the neighboring state. (B) Yes, because the driver in effect paid ransom for (A) Yes, because the plaintiff is present and can be his release. cross-examined about it. (C) No, because any kidnapping took place in the (B) Yes, because it was made for the purpose of driver's home state. medical diagnosis or treatment. (D) No, because the restraint was incidental to the (C) No, because it was not made to a treating robbery. physician. (D) No, because it relates to the inception or the Question # 39 - Contracts cause of the injury rather than the plaintiff's physical condition. On June I, a seller received a mail order from a buyer requesting prompt shipment of a specified computer Question ft 41 - Constitutional Law model at the seller's current catalog price. On June 2, the seller mailed to the buyer a letter accepting the The United States government demonstrated that order and assuring the buyer that the computer would terrorist attacks involving commercial airliners were be shipped on June 3. On June 3, the seller realized perpetrated exclusively by individuals of one that he was out of that computer model and shipped particular race. In response, Congress enacted a to the buyer a different computer model and a notice statute imposing stringent new airport and airline of accommodation. On June 5, the buyer received the security measures only on individuals of that race seller's June 2 letter and the different computer seeking to board airplanes in the United States. model, but not the notice of accommodation. Which of the following provides the best ground for At that juncture, which of the following is a correct challenging the constitutionality of this statute? statement of the parties' legal rights and duties? (A) The buyer can either accept (A) The commerce clause of Article I, Section 8. or reject the different (B) The due process clause of the Fifth Amendment. computer model and in either event recover (C) The privileges and immunities clause of Article damages, if any, for breach of contract. IV. (B) The buyer can either accept or reject the different (D) The privileges or immunities clause of the computer model, but if he rejects it, he will Fourteenth Amendment. thereby waive any remedy for (C) The seller's prompt breach of contract. shipment of nonconforming Question # 42 - Torts goods constituted an offer, thereby creatingacceptance of the buyer's a contract for sale of the replacement A consumer bought an electric kitchen blender from (D) The seller's computer model. the manufacturer. Soon after the purchase, the notice of accommodation was timely consumer was using the blender in an appropriate .,MBE RELEASED QUESTIONS II MBE MIXED PRACTICE I EFTA00811421 AMERIBAR BAR REVIEW MBE MIXED PRACTICE way when the blender jar shattered, throwing a piece (C) The privileges and immunities clause of Article of glass into the consumer's eye. IV, Section 2. (O) The takings clause of the Fifth Amendment. The consumer brought an action against the manufacturer based solely on strict product liability. Question # 44 - Real Property The consumer's expert testified that the blender was defectively designed. However, because the blender A seller who owned land in fee simple entered into a jar was destroyed in the accident, the expert could not valid written agreement to sell the land to a buyer by determine whether the accident was caused by the installment purchase. The contract stipulated that the design defect or a manufacturing defect. The seller would deliver to the buyer, upon the payment manufacturer's expert testified that the blender was of the last installment due, "a warranty deed not defective. sufficient to convey a fee simple title." The contract contained no other provision that could be construed If, at the conclusion of the evidence, both parties as referring to title. move for directed verdicts, how should the trial judge rule? The buyer entered into possession of the land. After making 10 of the 300 installment payments obligated (A) Direct a verdict for the manufacturer, because under the contract, the buyer discovered that there the consumer's expert was unable to specify the was outstanding a valid and enforceable mortgage on nature of the defect. the land, securing the payment of a debt in the (B) Direct a verdict for the manufacturer, because amount of 25 percent of the purchase price that the the consumer's action was brought solely on a buyer had agreed to pay. There was no evidence that strict liability theory. the seller had ever been late in payments due under (C) Direct a verdict for the consumer, because the the mortgage and there was no evidence of any blender was new when the jar shattered. danger of insolvency of the seller. The value of the (D) Deny both motions and send the case to the jury, land was then four times the amount due on the debt because a jury reasonably could conclude that secured by the mortgage. the harm probably was caused by a defect present in the product when it was sold. The buyer quit possession of the land, stopped making payments on the contract, and demanded that Question # 43 - Constitutional Law the seller repay the amounts that the buyer had paid under the contract. After the seller refused the Congressional committees heard testimony from demand, the buyer sued the seller to recover damages present and former holders of licenses issued by state for the seller's alleged breach of the contract. vocational licensing boards. According to the testimony, the boards had unfairly manipulated their In such action, should damages be awarded to the disciplinary proceedings in order to revoke the buyer? licenses of some license holders as a means of protecting favored licensees from competition. (A) Yes, because in the absence of a contrary express agreement, an obligation to convey In response, Congress enacted a statute prescribing marketable title is implied. detailed procedural requirements for the disciplinary (B) Yes, because an installment purchase proceedings of all state vocational licensing boards. contract is treated as a mortgage and the outstanding For example, the statute required the state boards to mortgage impairs the buyer's equity of redemption. provide licensees with adequate notice and (C) No, because an installment purchase opportunity for an adjudicatory hearing in all contract is treated as a security device. disciplinary proceedings. The statute also prescribed (D) No, because the time for the seller to deliver criteria for the membership of all state vocational marketable title has not arrived. licensing boards that were designed to ensure that the boards were likely to be neutral. Question # 45 - Contracts Which of the following provides the best source of On May 1, a seller and a buyer entered into a written authority for this federal statute? contract, signed by both parties, for the sale of a tract of land for $100,000. Delivery of the deed and (A) Section 5 of the Fourteenth Amendment. payment of the purchase price were scheduled for (B) The general welfare clause of Article I, Section July I. On June 1, the buyer received a letter from the 8. seller repudiating the contract. On June 5, the buyer MBE RELEASED QUESTIONS 12 MBE MIXED PRACTICE I EFTA00811422 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • bought a second tract of land at a higher price as a Litigation over the state law resulted in a final substitute for the first tract. On June 10, the seller decision by the United States Supreme Court that the communicated a retraction of the repudiation to the law impermissibly burdened interstate commerce buyer. and, therefore, was unconstitutional. Congress later enacted a statute permitting any state to enact a law The buyer did not tender the purchase price for the regulating the degree of light reflectiveness of the first tract on July 1, but subsequently sued the seller exteriors of commercial trucks using the state's for breach of contract. highways. Will the buyer likely prevail? Is this federal statute constitutional? (A) No, because the seller retracted the repudiation (A) No, because the U.S. Supreme Court has already prior to the agreed time for performance. determined that state laws of this type (B) No, because the buyer's tender of the purchase impermissibly burden interstate commerce. price on July I was a constructive condition to (B) No, because Article III vests the judicial power the seller's duty to tender a conveyance. in the federal courts, the essence of judicial (C) Yes, because the seller's repudiation was power is the ability to render a final judgment, nonretractable after it was communicated to the and this statute overrules a final judgment of the buyer. federal Supreme Court. (D) Yes, because the buyer bought the second tract (C) Yes, because Article I, Section 8 grants Congress as a substitute for the first tract prior to the authority to enact statutes authorizing states to seller's retraction. impose burdens on interstate commerce that would otherwise be prohibited. Question # 46 - Torts (D) Yes, because Article 1, Section 8 grants Congress authority to enact statutes for the general A driver negligently ran over a pedestrian. A welfare, and Congress. bystander witnessed the accident from across the street. The bystander ran to the pedestrian, whom he Question # 48 - Evidence did not know, and administered first aid, but the pedestrian died in the bystander's arms. The A plaintiff sued a defendant for wrongful death bystander suffered serious emotional distress as a arising out of a traffic collision between the result of his failure to save the pedestrian's life, but plaintiff's decedent and the defendant. At trial, the he experienced no resulting physical manifestations. investigating traffic officer authenticated a tape The bystander brought a negligence action against the recording of her shift-end dictation of comments used driver. in preparing the written report of her factual findings. She testified that the tape recording was Is the bystander likely to prevail? accurate when made and that she currently had no clear memory of the details of the investigation. (A) No, because the bystander assumed the risk. (B) No, because the bystander had no familial or Is the tape recording admissible as evidence? other preexisting relationship with the pedestrian. (A) Yes, under the past recollection recorded (C) Yes, because danger invites rescue. exception to the hearsay rule. (D) Yes, because the bystander was in the zone of (B) Yes, under the public records exception to the danger. hearsay rule. (C) No, because it is hearsay and is a police report Question # 47 - Constitutional Law being offered against the defendant in a wrongful A state legislature death case. conducted an investigation into a (D) No, because the police report itself is the best series of fatal accidents in the state involving evidence. commercial trucks with trailer polished aluminum. The exteriors made of the sun's glare off of investigation revealed that Question # 09 - Contracts of other vehicles. these trucks blinded the drivers a law prohibitingThe state's legislature then enacted A debtor's liquidated and undisputed $1,000 debt to a commercial trucks with polished creditor was due on March 1. On March 15, the aluminum trailer exteriors state's highways. from traveling on the creditor told the debtor that if the debtor promised to pay the S1,000 on or before December 1, then the RELEASED QUESTIONS MBE MIXED PRACTICE I 13 EFTA00811423 MBE MIXED PRACTICE 1 AMERIBAR BAR REVIEW for the builder's . The debtor Can the homeowner recover creditor wouldn't sue to collect the debt nonperformance? the debtor orally agreed. On April I, the creditor sued on March I. to collect the debt that had become due itor's (A) No, because efficiency princ iples justify the the cred ted to a higher- The debtor moved to dismiss builder's services bein g direc complaint. valued use. to perform was (B) No, because the builder's duty Should the court grant the debtor's motion? subject to a condition. pt to condition ideration to (C) Yes, because the builder's attem (A) No, because there was no cons his duty to perform rendered the contract support the creditor's promise not to sue. illusory. ideration to (B) No, because there was no cons (D) Yes, because the parol evidence rule would bar pay $1,000 on support the debtor's promise to the builder from pres entin g evid ence of oral December I. inclu ded in the final writing. a debtor to understandings not (C) Yes, because a promise to allow delay payment on a past debt is enforceable Question # 52 - Constitutional Law without consideration. g for the (D) Yes, because the debtor was bargainin A city passed an ordinance requ iring individuals to creditor's forbearance. ren under the obtain a license in order to care for child ive such a license, the edure age of 12 for pay. To rece Question # 50 - Criminal Law and Proc ordinance required the indiv idua ls to com plete 10 in child care , unde rgo a a bar and hours of instruction A man who had become very drunk left background check, and pay a 5100 fee. The her patro n of the bar, who to men , started to walk home. Anot ordinance affected women disproportion ately cond ition , follo wed him. The ered male had observed the man's nd because female babysitters far outn umb stum ble and fall to the grou who promoted patron saw the man gun babysitte rs in the city. City offic ials out a near an alley. The patron then began to pull the measure said that the certificat ion process would asleep in the but saw that the man had passed out ensure that babysitters were adeq uate ly regulated for man 's pocket, gutter. The patron reached into the the health and safety of the city' s child ren. walk away . When grabbed his wallet, and started to ing, he offic ers appr oach the patron heard police Is the ordinance constitutional? dropped the wallet and ran off. ct on women ng order of (A) No, because it has a disparate impa The crimes below are listed in descendi without a showing that the ordin ance is seriousness. pelli ng gove rnment necessary to advance a com h the patron interest. What is the most serious crime for whic (B) No, because it infringes on the freedom of properly could be convicted? a com pelli ng government contract without interest. ses is clearly (A) Robbery (C) Yes, because any burden it impo Larceny government (B) outweighed by an important (C) Attempted robbery. objective. Attempted larceny. ed to a (D) (D) Yes, because it is rationally relat legitimate government obje ctive . Question # 51 - Contracts builder about Question # 53- Real Property On March I, a homeowner contacted a to the hom eow ner's house. to sell land constructing an addition By a valid written contract, a seller agreed offer ed to perform the work for parti es 2gLee The builder orally to a buyer. The contract stated, "The project was $200,000 if his pending bid on another that closing will occur on next May I at contract 10 M." builder's rejected. The homeowner accepted the There was no other reference to closi ng. The en contract terms and the builder then prepared a writt was silent as to quality of title. did not refer to that both parties signed. The contract week later , upon the builder's pending bid. One On April 27, the seller notified the buye r that she had on the othe r proje ct had learning that his pending bid any discovered that the land was subje ct to a longstanding er refus ed to perfo rm ath for a been accepted, the build easement in favo r of a corp orati on for a towp work for the homeow ner. t to build a canal, should the corporation ever wan • 14 MBE MIXED PRACTICE 1 MBE RELEASED QUESTIONS EFTA00811424 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I canal. council enacted an ordinance requiring any "sign or visual display" visible on the streets of the historic The buyer thought it so unlikely that a canal would district to be black and white and to be no more than be built that the closing should occur notwithstanding four feet long or wide. this outstanding easement. Therefore, the buyer notified the seller on April 28 that he would expect to A political party wanted to hang a six-foot-long red, close on May 1. white, and blue political banner in front of a building in the historic district. The party filed suit to When the seller refused to close, the buyer sued for challenge the constitutionality of the sign ordinance specific performance. as applied to the display of its banner. Will the buyer prevail? Which of the following would be the most useful argument for the political party? (A) No, because the easement renders the seller's title unmarketable. (A) The ordinance is not the least restrictive means (B) No, because rights of third parties are of promoting a compelling government interest. unresolved. (B) The ordinance is not narrowly tailored to an (C) Yes, because the decision to terminate the important government interest, nor does it leave contract for title not being marketable belongs open alternative channels of communication. only to the buyer. (C) The ordinance imposes a prior restraint on (D) Yes, because the seller did not give notice of the political expression. easement a reasonable time before the closing (D) The ordinance effectively favors some categories date. of speech over others. Question b 54 - Criminal Law and Procedure Question if 56 - Contracts A drug dealer agreed with another individual to A buyer ordered a new machine from a manufacturer. purchase heroin from the individual in order to sell it The machine arrived on time and conformed in all on a city street corner. Unknown to the drug dealer, respects to the contract. The buyer, however, rejected the other individual was an undercover police officer the machine because he no longer needed it in his whose only purpose was to arrest distributors of business and returned the machine to the drugs. The drug dealer made a down payment for the manufacturer. The manufacturer sold many such heroin and agreed to pay the remainder after he sold machines each year and its factory was not operating it on the street. As soon as the undercover officer at full capacity. handed over the heroin, other officers moved in and arrested the dealer. In an action by the manufacturer against the buyer for breach of contract, which of the following is NOT a The jurisdiction follows the common law approach to proper measure of the manufacturer's damages? conspiracy. (A) The contract price of the machine. Could the dealer properly be convicted of conspiring (B) The difference between the contract price and the to distribute drugs? market price of the machine. (C) The difference between the contract price and the (A) No, because there was no overt act. price obtained from a proper resale of the (B) No, because there was no plurality of agreement. machine. (C) Yes, because neither an overt act nor plurality of (D) The profit the manufacturer would have made on agreement is required at COmmon law. the sale of the machine to the buyer. (10) Yes, because the dealer believed all the elements of conspiracy were present and cannot take Question q 57 - Contracts advantage of a mistake of fact or law. An insurance company issued an insurance policy to Question H 55 - Constitutional Law a homeowner. The policy failed to contain certain coverage terms required by a state insurance statute. R esidents of a city complained that gns detracted brightly colored from the character of the city's When the homeowner suffered a loss due to a theft that was within the policy's terms, the insurance .historic district and 'navigate its narrow distracted motorists trying to company refused to pay, claiming that the contract streets. In response, the city was unenforceable because it violated the statute. ,RELEASED Questions IS MBE MIXED PRACTICE I EFTA00811425 MBE MIXED PRACTICE I AMERIBAR BAR REVIEW • disturbed only one every hour. The chimes hood , who had purchased nst the homeowner in the neighbor Will the homeowner succeed in an action agai her house prior to the cons truct ion of the building. insurance company to recover for the loss? abno rmal ly sensitive to ringing The homeowner was and siren s, and found the not a sounds, such as bells (A) No, because the insurance policy is chimes to be extremely annoying. divisible contract. ted (B) No, because the insurance policy viola In a nuisance action by the homeow ner against the prev ail? the statute. to the law school, will the homeowner (C) Yes, because the homeowner belongs prote cted by the class of persons intended to be (A) Yes, because the chimes interfere with the statute. homeowner's use and enjo yme nt of her property. ld be (D) Yes, because the insurance policy wou (B) Yes, because the hom eow ner purchased her the insur ance com pany as building. strictly construed against house prior to the construction of the rb the other the drafter. (C) No, because the chimes do not distu e residents of the neighborhood. Question N 58 - Criminal Law and Procedur (D) No, because the law school had the requ isite cloc k towe r. small person municipal permits to erect the A foreign diplomat discovered that a ling throu gh an air could enter a jewelry store by craw Question /1 60 - Criminal Law and Proc edure frien dly with a wom an in vent. The diplomat became l was sma ll enou gh to craw ny her into her a bar who he believed a A woman told a man to accompa . With out tellin g her that he was expensive through the air vent friend's unlocked barn and retrieve an get into the diplomat, he explained how she could black saddle that she said she had loan to the ed to the larize the jewelry store. She agreed to help him burg friend. The man accompanied the wom an ersa tion and store. Someone overheard their conv friend's barn, opened the door, found a black saddle after , the police reported it to the police. Shortly there were hanging high above the grou nd, and clim bed a ladder wom an. Both the woman, arrested the diplomat and the to reach it. He handed the sadd le dow n to charged with conspiracy to com mit burg lary. it toge ther. In fact, the saddle and the two left with the friend dismiss the belonged to the friend, and when Before trial, the diplomat moved to discovered the saddle missing, she susp ected that the entitled charge against him on the ground that he was his woman was the thief. The friend used a screwdriver gran ted to diplomatic immunity. The court the to break into the woman's house to find the saddle. to dism iss motion. The woman then moved Upon discovering the saddle on the wom an's table, conspiracy charge against her. the friend took it back and calle d the polic e. Penal Code The jurisdiction has adopted the Model The jurisdiction follows the common law, except that version of conspiracy. to dwellings burglary covers structures in addition d. dismiss the and the nighttime element has been eliminate Should the woman's motion to conspiracy charge against her be granted? Which, if any, of these individuals is guilty of does not burglary? (A) No, because the diplomat's defense negate any element of the crim e. re of the (A) All of them. (B) No, because the woman was not awa (B) Only the friend. diplomat's status. (C) The man and the woman. two guilty (C) Yes, because a conspiracy requires (D) Only the woman. participants. conduct, no (ID) Yes, because but for the diplomat's Question ft 61- Evidence conspiracy would have occurred. for the full A plaintiff sued his insurance company Question N 59 - Torts by fire. The insurance loss of his banquet hall unde r a prov ision of the policy constructed its company defended A recently established law school limiting liability to 50 percent if "flammable . The law building in a quiet residential neighborhood materials not essential to the operation of the ined all of the nece ssary mun icipal caus ed a school had obta ing, whic h business were stored on the premises and permits for the construction of the build fire." The insurance company calle d the keep er of the k chim ed included a large clock tower whose cloc • • 16 MBE MIXED PRACTICE I MBE RELEASED QUESTIONS EFTA00811426 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I city fire inspection records to identify a report be traced to her. The hit man bought a gun and prepared and filed by the fire marshal as required by watched the neighbor's house for an opportunity to law, indicating that shortly before the fire, the fire shoot him. One evening, unaware of the hit man's marshal had cited the plaintiff for storing gasoline at presence, the neighbor tripped as he was walking the banquet hall. toward his house, falling and hitting his head against the front steps. Believing that the neighbor was Is the report admissible? unconscious, the hit man ran over to him and shot him twice in the chest. (A) No, because it is hearsay not within any exception. When the woman learned of the neighbor's death, she (B) No, because the proceeding is civil, rather paid the hit man $10,000. A medical examiner than criminal. determined that the neighbor was already dead when (C) Yes, as a public record describing matters the hit man shot him. observed as to which there was a duty to report. (D) Yes, as a record of regularly conducted The crimes below are listed in descending order of activity, provided the fire marshal is unavailable. seriousness. Question ft 62 - Real Property What is the most serious crime for which the woman properly could be convicted? A rectangular parcel of undeveloped land contained three acres and had 150 feet of frontage on a public (A) Murder street. The applicable zoning ordinance required that (B) Attempted murder. a buildable lot contain at least two acres and have (C) Conspiracy. frontage of not less than 100 feet on a public street. (D) Solicitation. A brother and sister owned the land as tenants in Question # 64 - Contracts common, the brother owning a one-third interest and the sister owning a two-thirds interest. Neither of Under the terms of a written contract, a builder them owned any other real property. agreed to construct a garage for a homeowner for $10,000. Nothing was stated in the parties' The sister brought an appropriate action to partition negotiations or in the contract about progress the land and proposed that a two-acre rectangular lot payments during the course of the work. with 100 feet of frontage be set off to her and that a one-acre rectangular lot with 50 feet of frontage be After completing 25 percent of the garage according set off to the brother. The brother's defense included to the homeowner's specifications, the builder a demand that the land be sold and its proceeds be demanded $2,000 as a reasonable progress payment. divided one-third to the brother and two-thirds to the The homeowner refused, and the builder abandoned sister. the job. Who will prevail? If each party sues the other for breach of contract, which of the following will the court decide? (A) The brother, because partition by sale is the preferred remedy, unless a fair price is not the (A) Both parties are in breach, and each is entitled to likely result of a sale. damages, if any, from the other. (B) The brother, because the zoning ordinance (B) Only the builder is in breach and liable for the makes it impossible to divide the land fairly. homeowner's damages, if any. (C) The sister, because partition by sale is not (C) Only the homeowner is in breach and liable for appropriate if the subject property can be the builder's damages, if any. physically divided. (D) Both parties took reasonable positions, and (D) The sister, because the ratio of the two lots that neither is in breach. would result from her to the ownership proposal conforms exactly ratio. Question # 65 - Torts Question # 63 - Criminal Law and Procedure A company manufactured metal stamping presses A woman promised to pay $10,000 to a that were usually sold with an installed safety device would kill her hit man if he that made it impossible for a press to close on a neighbor in any manner that could not worker's hands. The company strongly recommended MBE Rettnsto QuEs-noNs 17 MBE MIXED PRACTICE I EFTA00811427 MBE MIXED PRACTICE I • AMERIBAR BAR REVIEW hing the merits, ty device (D) Dismiss the suit without reac that its presses be purchased with the safe because the suit is not ripe. the safety installed, but would sell a press without device at a slightly reduced price. Question ft 67 - Torts employer Rejecting the company's advice, a worker's While driving his open-bed truck with a friend in the the safe ty device. ing his friend to purchased a stamping press without it. open bed, the driver swer ved, throw hand , crus hing severe injuries. The press closed on the worker's the pavement. The frien d susta ined open bed of the , would the The friend had often ridden in the If the worker were to sue the company driver's truck, and on some of those neensions the worker be likely to prevail? friend. The friend driver had swerved to frighten his compensatory the sued the driver to recover both (A) Yes, because the company's press was damages for his injuries and puni tive dama ges. cause in fact of the worker's injury. s to (B) Yes, because the company sold the pres Which cause of action would NOT perm it the friend an insta lled safe ty the worker's employer without to recover punitive dam ages ? device. er's (C) No, because the failure of the work (A) Assault the pres s with a safe ty devic e employer to purchase (B) Battery y. was a superseding cause of the worker's injur (C) Negligence No, beca use the com pany strongly (D) (D) Recklessness r purc hase recommended that the worker's employe the press with the safety device. Question # 68 - Evidence Question # 66 - Constitutional Law t for injuries A plaintiff sued an individual defendan tiff's car and nced diagnostic suffered in a collision between the plain In one state, certain kinds of adva the defendant's truck while the defendan t's employee in hospitals, medical technology were located only was driving the truck. The plaintiff soug ht discovery revenue. In where they provided a major source of of any accident report the employee migh t have made also available many other states, such technology was with to the defendant, but the defe ndan t resp onde d that no affili ated at "diagnostic centers" that were not such report existed. Before trial, the defe ndan t moved hospitals. from askin g the defe ndan t in to preclude the plaintiff destroyed such a its plan to the presence of the jury whether he A group of physicians announced report, because the defendant would then invoke his state a diag nost ic center that immediately open in the privilege against self-incrimination. The state would not be affiliated with a hospital. e that latur hospital association argued to the state legis Should the court allow the plain tiff to ask the le adva nced only hospitals could reliably hand a defendant about the destructi on of the report? e then enac ted medical technologies. The legislatur of in the state prepared in law prohibiting the operation (A) No, because a report that was ated with diagnostic centers that were not affili anticipation of litigation is not subject to hospitals. discovery. properly be drawn lenging the (B) No, because no inference may The group of physicians filed suit chal from invocation of a legitimat privilege e . constitutionality of the state law. (C) Yes, because a party in a civil actio n may not nst self- incri mina tion. invoke the privilege agai What action should the court take? (D) Yes, because the defe ndan t's dest ructi on of the e as the basis of an infer ence provision of report would serv (A) Uphold the law, because the adverse to the defe ndan t. medical services is trad ition ally a matter of legitimate loca l conc ern that states have to regu late. Question # 69 - Contracts unreviewable auth ority e could (B) Uphold the law, because the legislatur A collector bought from a gallery a pain ting correctly ic cente rs not rationally believe that diagnost described in the parties' signe d cont ract as a "one-of- ld be less relia ble affiliated with hospitals wou a-kind self-portrait" by a famo us artis t that had than hospitals. ract price was $100 ,000 in ses an undue recently died. The cont (C) Invalidate the law, because it impo cash, payable one mon th after a truck carrier burden on access to med ical serv ices in the state. 18 MBE MIXED PRACTICE 1 MBE RELEASED QUESTIONS EFTA00811428 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I delivered the painting to the collector. In order to reduce the federal deficit, Congress enacted a statute imposing a five percent national The painting was damaged in transit. The collector retail sales tax. The tax was levied upon all retail timely rejected it after inspection and immediately sales in the United States and applied equally to the notified the gallery of the rejection. The gallery then sales of all kinds of goods. sold the painting to a third party. It informed the collector that it would pick up the painting within a Is this tax constitutional as applied to retail sales of couple of weeks. Two weeks later, before the gallery newspapers? picked up the painting, the collector sold the painting to an art admirer for SI 20,000 cash, after notifying (A) Yes, because it is within Congress's power to her about the damage. tax. (B) Yes, because the tax is necessary to serve the If the collector's sale of the painting was NOT an compelling interest of balancing the federal acceptance of the goods, what is the maximum budget. amount that the gallery is entitled to recover from the (C) No, because retail sales taxes are within the collector? taxing power of the states. (D) No, because the imposition of a tax on the sale of (A) S120,000 (damages for conversion). newspapers violates the freedom of the press. (B) $100,000 (the collector-gallery contract price). (C) $20,000 (the excess of the market price over the Question # 72 - Criminal Law and Procedure contract price). (D) Only the allowance of lost profit to the gallery as The police suspected a woman of growing marijuana a volume dealer. in her private residence. Narcotics officers went to her neighborhood in the middle of the night. Nothing Question # 70 - Real Property unlawful could be seen from the street, so the officers walked into the neighbors' yard and looked through Six years ago, a landlord and a tenant entered into a the woman's kitchen window, which had neither 10-year commercial lease of land. The written lease drapes nor shades. The officers observed what provided that, if a public entity under the power of appeared to be marijuana plants being cultivated eminent domain condemned any part of the land, the under grow lights in the kitchen. Using this lease would terminate and the landlord would receive information, the officers obtained a search warrant. the entire condemnation award. Thereafter, the city The execution of that warrant netted numerous condemned approximately two-thirds of the land. marijuana plants. The tenant notified the city and the landlord that an The woman was charged with possession of independent appraisal of the value of the tenant's marijuana. She moved to suppress the marijuana possessory interest established that it substantially plants recovered when the warrant was executed, exceeded the tenant's obligation under the lease and claiming that the evidence supporting the warrant that the tenant was entitled to share the award. The was obtained through a search that violated the appraisal was accurate. Fourth Amendment. In an appropriate action among the landlord, the Should the marijuana plants be suppressed? tenant, and the city as to the right of the tenant to a portion of the condemnation award, for whom will (A) No, because regardless of the lawfulness of the the court likely find? police conduct beforehand, they did obtain a warrant to search the woman's home. (A) The landlord, because the condemnation (B) No, because the woman could have no superseded and canceled the lease. reasonable expectation of privacy concerning (B) The landlord, because the parties specifically activities that she exposed to the view of her agreed as to the consequences of (C) The tenant, condemnation. neighbors. because the landlord breached the (C) Yes, because the officers' clandestine landlord's implied warranty of quiet (D) The tenant, enjoyment. observation of the plants violated the woman's because otherwise the landlord reasonable expectation of privacy concerning would be unjustly enriched. activities occurring in her home. Question # 71 - (D) Yes, because no unlawful activities could be Constitutional Law observed by the officers from any public vantage point. 19 MBE MIXED PRACTICE I EFTA00811429 MBE MIXED PRACTICE 1 AMERIBAR BAR REVIEW er of unfair substantially outweighed by the dang Question # 73 - Real Property prejudice. uncle. She A niece inherited vacant land from her Question # 75 - Torts and decid ed to sell the land to lived in a distant state hasi the land ng a colleague who was interested in purc In a plaintiff's action for batte ry, the evidence upon a price, as an investment. They orally agreed established that the plaintiff was bad- tempered and, niec e agreed to used it often; and, at the colleague's insistence, the the defendant knew, carri ed a gun and deed with out any that during provide him with a warranty that the plaintiff struc k the defe ndan t first; paid , the warr anty deed ly tried to get to exceptions. The price was and the altercation, the plaintiff repeated deed was prom ptly the plaintiff was delivered, and the the his gun; and that the blows inflicted upon Neit her the niece nor plaintiff being properly recorded. by the defendant resulted in the that poin t, ever seen the land. colleague had, at hospitalized. visited the After recording the deed, the colleague Which finding of fact would be most likely to result that it had no land for the first time and discovered of the in a verdict for the defendan t? and that none access to any public right-of-way mon been held in com than he surrounding lands had ever of (A) The defendant used no more force protect own er of the tract to ownership with any previous actually believed was nececoary land. agai nst deat h or serio us bodi ly harm. himself force than he (B) The defendant used no more The colleague sued the niece for damages. reasonably believed was nece ssary to protect serio us bodi ly harm . himself against death or us For whom will the court find? feare d deat h or serio (C) The defendant, in fact, ss makes title bodily harm. (A) The colleague, because lack of acce (D) The defendant was justified in retal iating against the first unmarketable. nants of the plaintiff because the plaintiff struck (B) The colleague, because the cove blow. were warranty and quiet enjoyment in the deed breached. Question # 76 - Evidence covenants were (C) The niece, because no title ry for having breached. to sell was A defendant was on trial for perju (D) The niece, because the agreement falsely testified in an earli er civil case that he knew oral. ess fraud . In the perjury trial, nothing about a busin knew nothing the defendant again testified that he Question # 74 - Evidence ttal, the prosecutor about the business fraud. In rebu trial was the civil a police called a witness to testify that after In a prosecution for aggravated battery, over, the defendant admitted to the witne ss priva tely the defe ndant, officer testified that when he arrested that he had known about the fraud . and deliv ered it to he took a knife from the defendant fied ical exam iner testi perjury trial the medical examiner. The med victi m's Is the witness's testimony in the isten t with the that the knife blade was cons any admissible? cros s-ex amin ation that wound but admitted on ed the es coul d also have caus defendant's number of other kniv (A) Yes, but only to impeach the wound. testimony. t's testimony e the medical (B) Yes, both to impeach the defendan Should the judge grant a motion to strik and as substantive evide nce of the perju ry. examiner's testimony? hear say not with in any (C) No, because it is of this exception. (A) No, because the probative worth (D) No, because it relates to the business fraud and evidence is for the jury to asse ss. medical not to the commission of perjury. (B) Yes, because in light of the insufficient examiner's admission, his testimony has Question # 77 - Real Property probative value. could (C) Yes, because the medical examiner A landowner mortgaged her land to a nationally nd was caus ed not state the probability that the wou chartered bank as security for a loan . The mortgage by the defendant's knife. d, at its optio n, declare the is provided that the bank coul (D) Yes, because the probative value 20 MBE MIXED PRACTICE I MBE RELEASED QUESTIONS EFTA00811430 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • • entire loan due and payable if all or any part of the specific performance of the contract if he could land, or an interest therein, was sold or transferred begin by June 1. without the bank's prior written consent. (D) No, because the excavator did not state unequivocally that he would delay the beginning Subsequently, the landowner wanted to sell the land of his work. to a neighbor by an installment land contract, but the bank refused to consent. The neighbor's credit was Question I! 79 - Constitutional Law good, and all mortgage payments to the bank were fully current. In response to the need for additional toxic waste landfills in a state, the state's legislature enacted a The landowner and the neighbor consulted an law authorizing a state agency to establish five new attorney about their proposed transaction, their desire state-owned and state-operated toxic waste landfills. to complete it, and the bank's refusal to consent. The law provided that the agency would decide the locations and sizes of the landfills after an What would the attorney's best advice be? investigation of all potential sites and a determination that the particular sites chosen would not endanger (A) Even if the landowner transfers to the neighbor public health and would be consistent with the public by land contract, the bank may accelerate the welfare. debt and foreclose if the full amount is not paid. (B) The due-on-sale clause is void as an illegal A community in the state was scheduled for restraint on alienation of the fee simple, so they inspection by the agency as a potential toxic waste may proceed. landfill site. Because the community's residents (C) By making the transfer in land contract form, the obtained most of their drinking water from an aquifer landowner will prevent enforcement of the due- that ran under the entire community, a citizens' on-sale clause if the mortgage payments are kept group, made up of residents of that community, sued current. the appropriate officials of the agency in federal (D) The due-on-sale clause has only the effect that court. The group sought a declaratory judgment that the proposed transfer will automatically make the selection of the community as the site of a toxic the neighbor personally liable on the debt, waste landfill would be unconstitutional and an whether or not the neighbor specifically agrees to injunction preventing the agency from selecting the assume it. community as a site for such a landfill. The agency officials moved to dismiss. Question # 78 - Contracts Which of the following is the most appropriate basis On March 1, an excavator entered into a contract for the court to dismiss this suit? with a contractor to perform excavation work on a large project. The contract expressly required that the (A) The case presents a nonjusticiable political excavator begin work on June 1 to enable other question. subcontractors to install utilities. On May 15, the (B) The interest of the state in obtaining suitable excavator requested a 30-day delay in the start date sites for toxic waste landfills is sufficiently for the excavation work because he was seriously compelling to justify the selection of the behind schedule on another project. When the community as a location for such a facility. contractor refused to grant the delay, the excavator (C) The Eleventh Amendment bars suits of this kind stated that he would try to begin the work for the in the federal courts. contractor on June I. (D) The case is not ripe for a decision on the merits. Does the contractor have valid legal grounds to Question # 80 - Real Property cancel the contract with the excavator and hire a replacement? Fifteen years ago, after a part of the path located on his land and connecting his cabin to the public (A) Yes, because the excavator committed an highway washed out, the man cleared a small part of anticipatory repudiation of the contract by his neighbor's land and rerouted a section of the path causing the contractor to feel insecure about the through the neighbor's land. performance. (B) Yes, because the excavator breached the implied Twelve years ago, the neighbor leased her land to covenant of good faith and fair dealing. (C) No. because some hunters. For the next 12 years, the hunters and the excavator would be entitled to the man who had rerouted the path used the path for MBE RELEASED QuenioNs 21 MBE MIXED PRACTICE I EFTA00811431 MBE MIXED PRACTICE 1 AMERIBAR BAR REVIEW • unlimited. access to the highway. part of the Question # 82 - Torts A month ago, the neighbor discovered that neig hbor told the man that supermarket, an path was on her land. The As a shopper was leaving a perm issio n to cross her land opened outward she had not given him automatic door that should have ld be clos ing the rerou ted path after king the shopper's and that she wou opened inward, striking and brea ing had installed the 90 days. nose. The owner of the build which the purs uant to have never automatic door. The lease, The man's land and the neighbor's land supermarket leased the build ing, prov ided that the been in common ownership. onsib le for all main tena nce of supermarket was resp s by the premises. The period of time necessary to acquire right d dicti on is 10 year s. The perio At trial, neither prescription in the juris The shopper sued the supermarket. by adverse of time necessary to acquire title the shopper nor the supermarket offered any possession in the jurisdiction is 10 years. testimony, expert or otherwise , as to why the door lusio n of the proofs, right to use had opened inward. At the conc A man contacted his lawyer regarding his both the shopper and the supe rmar ket mov ed for vaca nt land . a path that was on his neighbor's judgment. concerning his What should the lawyer tell the man How should the trial judge rule? path on the neig hbor's land? right to use the rerouted because it is possession of (A) Grant judgment for the shopper, (A) The man has fee title by adverse undisputed that the door malf unct ione d. the land included in the path. (B) Grant judgment for the supe rmar ket, beca use the to use the (B) The man has an easement by necessity shopper failed to join the own er of the build ing path. as a defendant. cription to use (C) The man has an easement by pres (C) Grant judgment for the supermar ket, because the ket's the path. . shopper failed to offer proof of the supermar (D) The man has no right to use the path negligence, use on these (D) Submit the case to the jury, beca Question # 81 - Evidence facts negligence may be infer red. ies allegedly A plaintiff sued a defendant for injur Question N 83 - Torts on the defendant's suffered when he slipped and fell out askin g that the worth about 325, business property. With A man owned a much-loved cat, man ager be decl ared a hostile hbor's property. defendant's property that frequently tresp asse d on a neig calle d him sole ly to establish to keep the witness, the plaintiff The neighbor repeatedly asked the man property that the defendant was the owner of the cat on his own property, but the tresp asse s did not ation of the where the plaintiff fell. On cross-examin diminish. Aware of the man's attac hme nt to the cat, ht to establish manager, the defendant's attorney soug the neighbor killed the cat with a shot gun in full view le prec autions that the defendant had taken reasonab of the man. As a conseque nce, the man suffe red grea t ess invite es. to make the ptviscity safe for busin emotional distress. ation of the Should the defendant's cross-examin In an action by the man against the neig hbor, which over the plai ntiff s objection? to result in manager be permitted of the following claims would be likely ld be limited the greatest monetary recovery? (A) No, because cross-examination shou ination to the subject matter of the direct exam (A) Battery. ibilit y of the and matters affecting the cred (B) Intentional infliction of mental suffe ring. witness. (C) Trespass to a chattel. declared the (B) No, because the court has not (D) Conversion. manager hostile. er is entitled to (C) Yes, because the cross-examin Question N 84 - Constitutional Law explore matters relev ant to any issue in the case, including credibility. increase in the t of a party, National statistics revealed a dramatic (D) Yes, because the manager is the agen number of elementary and seco ndar y scho ol students amin ation is as to whom the scope of cross-ex 22 MBE MIXED PRACTICE I MBE RELEASED QUESTIONS EFTA00811432 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • bringing controlled substances to school for sale. In Question # 86 - Contracts response, Congress enacted a statute requiring each state legislature to enact a state law making it a crime An accountant and a bookkeeper, as part of a contract for any person to sell, within 1,000 feet of any dissolving their accounting business, agreed that each elementary or secondary school, any controlled would contribute $100,000 to fund an annuity for a substance that had previously been transported in clerk who was a longtime employee of the business. interstate commerce. The clerk's position would be terminated due to the dissolution, and he did not have a retirement plan. Is the federal statute constitutional? The accountant and the bookkeeper informed the clerk of their plan to fund an annuity for him. The (A) No, because Congress has no authority to require clerk, confident about his financial future because of a state legislature to enact any specified the promised annuity, purchased a retirement home. legislation. The accountant later contributed his $100,000 to fund (B) No, because the sale of a controlled substance in the annuity, but the bookkeeper stated that he could close proximity to a school does not have a afford to contribute only $50,000. The accountant sufficiently close nexus to interstate commerce agreed that the bookkeeper should contribute only to justify its regulation by Congress. $50,000. (C) Yes, because it contains a jurisdictional provision that will ensure, on a case-by-case Does the clerk have a valid basis for an action against basis, that any particular controlled substance the bookkeeper for the unpaid $50,000? subject to the terms of this statute will, in fact, affect interstate commerce. (A) No, because the clerk was bound by the (D) Yes, because Congress possesses broad authority modification of the agreement made by the under both the general welfare clause and the accountant and the bookkeeper. commerce clause to regulate any activities (B) No, because the clerk was only a donee affecting education that also have, in inseverable beneficiary of the agreement between the aggregates, a substantial effect on interstate accountant and the bookkeeper, and had no commerce. vested rights. (C) Yes, because the clerk's reliance on the promised Question # 85 - Evidence retirement fund prevented the parties from changing the terms. When a man entered a bank and presented a check (D) Yes, because the promises to establish the fund for payment, the bank teller recognized the signature were made binding by consideration from the on the check as a forgery because the check was clerk's many years of employment. drawn on the account of a customer whose handwriting she knew. The bank teller called the Question # 87 - Real Property police. Before the police arrived, the man picked up the check from the counter and left. Twenty-five years ago, a man who owned a 45-acre tract of land conveyed 40 of the 45 acres to a The man was charged with attempting to cash a developer by warranty deed. The man retained the forged check. At trial, the prosecutor called the bank rear five-acre portion of the land and continues to live teller to testify that the signature on the check was there in a large farmhouse. forged. The deed to the 40-acre tract was promptly and Is the bank teller's testimony admissible? properly recorded. It contained the following language: (A) Yes, because a bank teller is by occupation an expert on handwriting. "It is a term and condition of this deed, which shall (B) Yes, because it is rationally based on the bank be a covenant running with the land and binding on teller's perception and is helpful to the (C) No, because the jury. all owners, their heirs and assigns, that no use shall bank teller was at fault in be made of the 40-acre tract of land except for allowing loss of the original by the check. failing to secure residential purposes." (O) No, because it is not possible for either the jury Subsequently, the developer fully developed the 40- or an expert to compare the signature on the acre tract into a residential subdivision consisting of missing check with a genuine. signature established as 40 lots with a single-family residence on each lot. MBE RELEASED QUESTIONS 23 MBE MIXED PRACTICE I EFTA00811433 MBE MIXED PRACTICE 1 AMERIBAR BAR REVIEW textile company knew when making their contract on Although there have been multiple transfers of March I that under ordinary circumstances the textile ownership of each of the 40 lots within the company would sustain few or no damages of any subdivision, none of them included a reference to the e kind as a result of a five-day delay in the machin quoted provision in the deed from the man to the repair. developer, nor did any deed to a subdivision lot create any new covenants restricting use. Assuming that the $5,000-per-day liquidated damages clause in the contract between the textile Last year, a major new medical center was company and the customer is valid, which of the constructed adjacent to the subdivision. A doctor who following arguments will serve as the mechanic's owns a house in the subdivision wishes to relocate best defense to the textile company's action? her medical offices to her house. For the first time, the doctor learned of the restrictive covenant in the ct (A) Time was not of the essence in the contra deed from the man to the developer. The applicable betwee n the mecha nic and the textile compa ny. zoning ordinance permits the doctor's intended use. (B) The mechanic had no reason to foresee on March The man, as owner of the five-acre tract, however, I that the customer would suffer consequential objects to the doctor's proposed use of her property. damages in the amount of $25,000. (C) By entering into the contract with the customer There are no governing statutes other than the zoning while knowing that its knitting machine was code. The common law Rule Against Perpetuities is being repaired, the textile company assumed the unmodified in the jurisdiction. risk of any delay loss to the customer. (D) In all probability, the liquidated damages paid by Can the doctor convert her house in the subdivision the textile company to the customer are not the into a medical office? same amount as the actual damages sustained by the customer in consequence of the late delivery (A) No, because the owners of lots in the subdivision of the cloth. own property benefitted by the original residential covenant and have the sole right to Question # 89 - Real Property enforce it. (B) No, because the man owns property benefitted Five years ago, an investor who owned a vacant lot in by the original restrictive covenant and has a a residential area borrowed $25,000 from a friend and right to enforce it. gave the friend a note for $25,000 due in five years, (C) Yes, because the original restrictive covenant violates the Rule Against Perpetuities. secured by a mortgage on the lot. The friend neglected to record the mortgage. The fair market (D) Yes, because the zoning ordinance allows the value of the lot was then $25,000. doctor's proposed use and preempts the restrictive covenant. Three years ago, the investor discovered that the friend had not recorded his mortgage and in Question # 88 - Contracts consideration of $50,000 conveyed the lot to a buyer. The fair market value of the lot was then $50,000. On March I, a mechanic contracted to repair a textile The buyer knew nothing of the friend's mortgage. company's knitting machine by March 6. On March One month thereafter, the friend discovered the sale 2, the textile company contracted to manufacture and to the buyer, recorded his $25,000 mortgage, and deliver specified cloth to a customer on March IS. notified the buyer that he held a $25,000 mortgage on The textile company knew that it would have to use the lot. the machine then under repair to perform this contract. Because the customer's order was for a rush Two years ago, the buyer needed funds. Although she job, the two parties included in their contract a told her bank of the mortgage claimed by the liquidated damages clause, providing that the textile investor's friend, the bank loaned her $15,000, and company would pay $5,000 for each day's delay in she gave the bank a note for $15,000 due in two years delivery after March IS. secured by a mortgage on the lot. The bank promptly and properly recorded the mortgage. At that time, the The mechanic was inexcusably five days late in fair market value of the lot was $75,000. repairing the machine, and, as a result, the textile company was five days late in delivering the cloth to The recording act of the jurisdiction provides: "No the customer. The textile company paid $25,000 to conveyance or mortgage of real property shall be the customer as liquidated damages and then sued the and good against subsequent purchasers for value mechanic for $25,000. Both the mechanic and the • 24 MBE MIXED PRACTICE I MBE RELEASED QUESTIONS EFTA00811434 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • • without notice unless the same be recorded according witness who testified that he saw the accident and to law." that as the car sped off he accurately dictated the license number into his properly operating pocket Both notes arc now due and both the investor and the dictating machine. The witness stated that he no buyer have refused to pay. The lot is now worth only longer remembered the number. x50,000. May the tape recording be played? What are the rights of the investor's friend and the bank in the lot? (A) Yes, as a present sense impression only. (B) Yes, as a recorded recollection only. (A) Both mortgages are enforceable liens and the (C) Yes, as a present sense impression and as a past friend's has priority because it was first recollection recorded. recorded. (D) No, because it is hearsay not within any (B) Both mortgages are enforceable liens, but the exception. bank's has priority because the buyer was an innocent purchaser for value. Question # 92 - Criminal Law and Procedure (C) Only the friend's mortgage is an enforceable lien, because the bank had actual and A man decided to steal a car he saw parked on a hill. constructive notice of the investor's fraud. When he got in and started the engine, the car began (D) Only the bank's mortgage is an enforceable lien, rolling down the hill. The man quickly discovered because the buyer was an innocent purchaser for that the car's brakes did not work. He crashed value. through the window of a store at the bottom of the hill. Question # 90 - Criminal Law and Procedure The man was charged with larceny of the car and A woman offered to pay her friend one-third of the with the crime of knowingly damaging the store's stolen proceeds if the friend would drive the getaway property. At trial, the judge instructed the jury that if car to be used in a bank robbery. The friend agreed the jury found both that the man was guilty of larceny but made the woman promise not to hurt anyone of the car and that the damage to the store was the during the robbery. result of that larceny, then it should also find him guilty of malicious damage of property. The woman then drove to a sporting goods store, where she explained to the store owner that she The man was convicted on both counts. On appeal, needed a small firearm for use in a bank robbery. The he argued that the conviction for malicious damage store owner responded that he would charge extra of property should be reversed because the because the woman was so unwise as to confide her instruction was not a correct statement of the law. unlawful plans for using the weapon, and he sold her a handgun at four times the regular price. Should the man's conviction be affirmed? During the robbery, the woman used the gun to (A) Yes, because his intent to steal the car provides threaten a bank teller into handing over the money. the necessary mental element. The gun discharged by accident and killed a bank (B) Yes, because he was committing a felony. customer. (C) No, because the instruction wrongly described the necessary mental state. At common law, who in addition to the woman could (D) No, because it would violate double jeopardy to properly be convicted of murder in the convict the man of two crimes for a single act. death of the customer? (A) Both the friend and the Question # 93 - Contracts (B) Neither the friend store owner. nor the store owner. A seller and a buyer entered into a written agreement (C) Only the friend. (D) Only the store providing that the seller was to deliver 1,000 cases of owner. candy bars to the buyer during the months of May Question # 91 - and June. Under the agreement, the buyer was Evidence obligated to make a selection by March I of the A pedestrian quantities of the various candy bars to be delivered sued a driver for hit-and-run accident. At injuries suffered in a under the contract. The buyer did not make the trial, the pedestrian called a selection by March I, and on March 2 the seller MBE REt.EAsF:1) QUESTIONS 25 MBE MIXED PRACTICE I EFTA00811435 MBE MIXED PRACTICE 1 AMERIBAR BAR REVIEW have had in the larger • or his heirs or assigns might e of the buyer's failure notified the buyer that becaus tract. deliver the candy bars. to select, the seller would not The seller had all of the nec essary candy bars on The smaller tract passed Last year, the grantee died. no additional sales or ghter. She has decided hand on March I and made by the grantee's will to his dau ever, because she 2. On March 2, after t. How purchases on March I or March to sell the smaller trac it would not perform, n has been a very poor receiving the seller's notice that believes that the cor por atio of its selection and refuses to sell the the buyer notified the seller steward of the larger tract, she n though she has . The seller refused. ation eve insisted that the seller perform smaller tract to the corpor sale in the loca l real estate market. offered it for breach, of contract, is If the buyer sues the seller for an appropriate action for the buyer likely to prevail? The corporation has brought right of first refusal after specific performance of the t did not exist until preliminary steps in its (A) No, because a contrac taking all of the necessary selection of the specific can dy bars, and the purchase the smaller ction. effort to exercise its rights to seller withdrew its offer before sele tract. the can dy bars by (B) No, because selection of the seller's March I was an express con ditio n to possible defenses. The daughter has asserted all duty to perform. (C) Yes, because a delay of one day in making the e Against Perpetuities is al effect on the The common law Rul selection did not have a materi n, and there are no unmodified in the jurisdictio seller. applicable statutes. buyer's failure to make a (13) Yes, because upon the selection by March 1, the sell er had a duty to ghter, what will be the If the court rules for the dau make a reasonable selection. likely reason? Question # 94 - Real Property the right to purchase (A) The provision setting out Per petuities. violates the Rule Against land, one of 15 acres yea rs ago operates as a A grantor owned two tracts of (B) The grantee's release 10 tracts were a mile purchase that the and another of 5 acres. The two waiver regarding any right to apart. corporation might have. e not adjacent parcels (C) The two tracts of land wer conveyed the smaller t to purchase is in Fifteen years ago, the grantor of real estate, and thus the righ r retained the larger cea ble. tract to a grantee. The granto gross and is therefore unenfor purchase gives con tained, in addition righ t to tract. The deed to the grantee h properties and (D) Noncompliance with a ages, but not for to proper legal description s of bot rise to a claim for money dam following language: identifications of the parties, the specific performance. my heirs and assigns al Law "I, the grantor, bind myself and t that I now retain Question N 95 - Constitution trac that in the event that the larger wil l not ify the grantee and Congress enacted a is ever offered for sale , I the grantee and In order to combat terrorism, nt to construct , and Pre side his heirs and assigns in writing t to purchase statute authorizing the ed property if e the righ ate ly own his heirs and assigns shall hav surveillance facilities on priv ma rke t valu e as determined the construction of such the larger tract for its fair the President determined that three qualified expert guard the security of by a board consisting of facilities was "necessary to safe independent real estate appraisers. " statute provided no the United States." The of the land on which compensation for the owner the other property and and provided that the With appropriate references to such facilities were constructed reciprocal provision that be owned and operated the parties, there followed a surveillance facilities were to her heirs and assigns t. conferred upon the grantor and by the United States governmen se the smaller tract, a similar right to purcha and his heirs and President has determined purportedly binding the grantee Pursuant to this statute, the veillance facility on a assigns. that the construction of a sur an owner's large tract very small, unused portion of uired the larger tract guard the security of the Ten years ago, a corporation acq of land is necessary to safe e, the grantee had no n and operation of the from the grantor. At that tim United States. The constructio er tract and by an uses that the owner interest in acquiring the larg facility will not affect any of the released any interest he appropriate written document • MBE MLXED PRACTICE 1 26 Rrl RASED OUESTIONS EFTA00811436 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • is currently making of the entire tract of land. Under what circumstances, if any, could the grand jury compel production of the diary over the The owner has filed suit to challenge the suspect's Fifth Amendment privilege? constitutionality of the construction of a surveillance facility on the parcel of land at issue without (A) It may compel production without granting compensation. immunity because the suspect was not compelled to write a diary. How should the court rule? (B) It may compel production only if the suspect is granted use and derivative use immunity from (A) It would be a taking of the owner's property for the act of production. which the owner must be compensated. (C) It may compel production only if the suspect is (B) It would single out the owner for adverse granted transactional immunity. treatment in violation of the equal protection (D) It may not compel production of a private diary component of the Fifth Amendment. under any circumstances. (C) It would not interfere with any use the owner is currently making of the entire tract of land and, Question # 98 - Evidence therefore, would not entitle the owner to any compensation. A defendant was on trial for tax evasion. The IRS, (O) It would be valid without any compensation, seeking to establish the defendant's income by because it has been determined to be necessary showing his expenditures, called on the defendant's to protect a compelling government interest in attorney to produce records showing only how much national security. the defendant had paid his attorney in fees. Question # 96 - Torts Should the demand for the attorney's fee records be upheld? A child was bitten by a dog while playing in a fenced-in common area of an apartment complex (A) Yes, because it calls for relevant information not owned by a landlord. The child was the guest of a within the attorney-client privilege. tenant living in the complex, and the dog was owned (B) Yes, because the attorney-client privilege cannot by another tenant. The owner of the dog knew that be invoked to conceal evidence of a crime. the dog had a propensity to bite, but the landlord did (C) No, because the records are protected by the not have any notice of the dog's vicious propensities. attorney-client privilege. (D) No, because the records are protected by the In an action by the child against the landlord, will the attorney work-product doctrine. child prevail? Question # 99 - Criminal Law and Procedure (A) Yes, because in these circumstances a landlord is strictly liable. A man was angered after he was unexpectedly laid (B) Yes, because a landlord's duty to protect a off from his longtime job as a factory assembly tenant's guests from dangerous conditions is worker. The next day, he returned to the factory floor nondelegable. and indiscriminately fired shotgun rounds in the air. (C) No, because the landlord did not have any notice The man later testified, without contradiction, that he of the dog's vicious propensities. had not intended to kill anyone but simply sought to (O) No, because a landlord owes no duty to a exact revenge on the factory's owners by shutting tenant's gratuitous guests. down operations for the day. Unfortunately, one of the bullets ricocheted off the wall and killed the Question # 97 - Criminal Law and Procedure man's best friend. A state grand jury The crimes below are listed in descending order of the key suspect investigating a murder learned that seriousness. might have kept a diary. The grand jury issued a subpoena duces tecum requiring the On these facts, what is the most serious offense for suspect to produce clear that the any diary. The subpoena made which the man properly could be convicted? grand jury was seeking only the and not any diary testimony refused to produce from the suspect. The suspect (A) Murder against the diary, citing the privilege (B) Voluntary manslaughter. self-incrimination. (C) Involuntary manslaughter. (D) Assault. MBE REitAskti QUESTIoNS 27 MBE MIXED PRACTICE I EFTA00811437 AMERIBAR BAR REVIEW MBE MIXED PRACTICE • Question # 100 - Torts A food company contracted with a delivery service to supply food to remote areas. The contract between the food company and the delivery service was terminable at will. The delivery service then entered into a contract with an airline company to provide an airplane to deliver the food. The contract between the delivery service and the airline company was also terminable at will. The food company was displeased with the airline company because of a previous business dispute between them. Upon learning of the delivery service's contract with the airline company, the food company terminated its contract with the delivery service in order to cause the airline company to lose the business. When the food company terminated the delivery service's contract, the delivery service had no choice but to terminate the airline company's contract. If the airline company sues the delivery service for tortious interference with contract, will the airline company prevail? (A) No, because the airline company and the delivery service were the parties to the contract. (B) No, because the airline company was not in privity with the food company. (C) Yes, because the delivery service did not terminate the contract because of poor performance. (D) Yes, because the delivery service's termination of the contract made it a party to the food company's acts. MBE RELEASED QUESTIONS 28 MBE MIXED PRACTICE I EFTA00811438