AMERIBAR BAR REVIEW

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 In a suit based on a will, inheritance of SI million depended upon whether the wife had survived her husband when both died in the crash of a small airplane. An applicable statute provided that, for purposes of distributing an estate after a common disaster, there was a rebuttable presumption that neither spouse had survived the other. A witness was called to testi& that as she approached the plane she heard what she thought was a woman's voice saying, dying," although by the time the two occupants were removed from the wreckage they were both dead. Is the witness's testimony admissible? (A) No, because the matter is governed by the presumption that neither spouse survived the other. (B) No, because the witness's testimony is too speculative to support a finding. (C) Yes, because the hearsay rule does not apply to statements by decedents in actions to determine rights under a will. (D) Yes, because it is relevant and not otherwise prohibited. Question N 2 - Criminal Law and Procedure The defendant subsequently moved to suppress the testimony of the teller, claiming the lineup violated his privilege against self-incrimination. At a suppression hearing, the teller testified that she had not gotten a good look at the robber's face, because the robber had been wearing a hat pulled down over most of his face, but that she was certain the defendant was the robber because she had recognized his voice at the lineup. A defendant was lawfully arrested without a warrant for bank robbery. He was not given Miranda warnings, but was immediately taken to a police station where he and five other men were placed in a lineup to be viewed by the bank teller. Each man was required to say the words spoken by the bank robber: "Give me all your money. I've got a gun." After all the men in the lineup spoke those words, the teller identified the defendant as the robber. Should the defendant's motion be granted? (A) No, because being required to speak at the lineup, while compelled, was not testimonial or communicative. (B) No. because testimony of a witness based on firsthand observation is not subject to exclusion MBE RELEASED QUESTIONS as the fruit of the poisonous tree. (C) Yes, because the defendant was compelled to speak at the lineup, and this compelled speech led to the witness's identification testimony. (D) Yes, because the defendant was never informed that he could refuse to make a statement and that any statement could be used as evidence against him. Question N 3 - Constitutional Law A city owned and operated a municipal bus system. The city sold space on its buses for the posting of placards. Under the relevant city ordinance, the administrator of the bus system had sole discretion to decide which placards could be posted on the buses, and the administrator's decision was final. Although most of the placards that appeared on city buses were commercial advertisements, the administrator had often sold space on the buses for placards promoting various political, charitable, and religious causes. After a circus bought space on the buses for placards advertising its upcoming performances, an animal rights organization asked to buy space for a placard with photographs showing the mistreatment of animals in circus shows. The administrator denied the organization's request, stating that the proposed placard would be offensive to the circus, which had paid a substantial sum to place its placards on the buses, and that a circus employee had told her that none of the photographs on the organization's placard depicted animals belonging to this particular circus. The organization sued the administrator in an appropriate court for a declaration that her denial of the organization's request for placard space for the reasons she gave violated the First Amendment as made applicable to the states by the Fourteenth Amendment. Is the organization likely to prevail? (A) No, because the administrator's denial of space to the organization was a reasonable time, place, and manner restriction of speech. (B) No, because a public official may not allow the use of public facilities for the propagation of a message that he or she believes may create a false or misleading impression. (C) Yes, because a public official may not refuse to permit the dissemination of a message in a public forum solely on the basis of its content unless that denial is necessary to serve a compelling government interest. MBE MIXED PRACTICE I EFTA00811411 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I (D) Yes, because a public official may not refuse to allow the use of any public facility to publish a message dealing with an issue of public concern. Question # 4 — Torts A landowner who owned a large tract of land in the mountains sought to protect a herd of wild deer that lived on part of the land. Although the landowner had posted signs that said, "No Hunting—No Trespassing," hunters frequently intruded to kill the deer. Recently, the landowner built an eight-foot-high chain-link fence, topped by three strands of barbed wire, across a gully on her land that provided the only access to the area where the deer lived. A wildlife photographer asked the landowner for permission to enter the land to photograph the deer. Because the landowner feared that any publicity would encourage further intrusions by hunters, she denied the photographer's request. Frustrated, the photographer attempted to climb the fence. He became entangled in the barbed wire and suffered extensive lacerations. The wounds became infected and ultimately caused his death. The photographer's personal representative has sued the landowner. Is the personal representative likely to prevail? (A) Yes, because the landowner may not use deadly force to protect her land from intrusion. (B) Yes, because the landowner had no property interest in the deer that entitled her to use force to protect them. (C) No, because the photographer entered the landowner's land after the landowner had refused him permission to do so and therefore was a trespasser. (D) No, because the potential for harm created by the presence of the barbed wire was apparent. Question # 5 — Torts An ordinance in a small town required all restaurants to designate smoking and nonsmoking sections for their customers. A cigarette smoker and a nonsmoker were seated at adjoining tables in a small restaurant. The smoker's table was in the smoking section, and the nonsmoker's table was in the nonsmoking section. When the smoker lit a cigarette, the nonsmoker politely requested that he not smoke, explaining that she had a severe allergy to cigarette smoke. The smoker ignored the nonsmoker's request and continued to smoke. As a result, the nonsmoker was hospitalized with a severe allergic reaction to the smoke. The nonsmoker brought a battery action against the smoker. Which of the following questions will NOT be an issue in the battery action? (A) Did the smoker intend to cause the nonsmoker's contact with the cigarette smoke? (B) Does smoke have the physical properties necessary for making the kind of contact required for battery? (C) Is contact with cigarette smoke from a lawful smoking section in a restaurant the kind of contact one must endure as a voluntary restaurant patron? (D) Was the smoker's conduct unreasonable under the circumstances? Question # 6 - Criminal Law and Procedure A federal officer had probable cause to believe a woman had participated in a bank robbery. Two days after the robbery, the woman checked into a local hotel room. When the woman left for the evening, the hotel manager opened the hotel room door so the officer could enter the room and look inside. The officer did not find any of the stolen money but did see, lying open on the bed, the woman's diary. The diary contained an entry describing the woman's involvement in robbing the bank. The woman was charged in federal court with bank robbery. She moved to suppress the diary. Should the court suppress the diary? (A) Yes, because the officer had no warrant. (B) Yes, because admitting the diary would violate the woman's privilege against self-incrimination. (C) No, because the hotel manager had actual authority to allow the officer into the hotel room. (D) No, because the officer reasonably relied on the hotel manager's apparent authority to allow the officer into the hotel room. Question # 7 - Real Property Thirty years ago, a landowner conveyed land by warranty deed to a church (a charity) "so long as the land herein conveyed is used as the site for the principal religious edifice maintained by said church." Twenty years ago, the landowner died intestate, survived by a single heir. There is no applicable statute. The common law Rule • MBE RELEASED QUESTIONS 2 MBE MIXED PRACTICE I EFTA00811412 MBE MIXED PRACTICE I AMERIBAR BAR REVIEW • Against Perpetuities is unmodified in the jurisdiction. One year ago, the church dissolved and its church building situated on the land was demolished. In an appropriate action, the landowner's heir and the attorney general, who is the appropriate official to assert public interests in charitable trusts, contest the right to the land. In such action, who will prevail? (A) The landowner's heir, as successor to the landowner's possibility of reverter. (B) The landowner's heir, because a charity cannot convey assets donated to it. (C) The attorney general, because cy pres should be applied to devote the land to religious purposes to carry out the charitable intent of the landowner. (3) The attorney general, because the landowner's attempt to restrict the church's fee simple violated the Rule Against Perpetuities. Question ft 8 - Constitutional Law With the advice and consent of the Senate, the President entered into a self-executing treaty with a foreign country. The treaty provided that citizens of both nations were required to pay whatever tons damages were awarded against them by a court of either nation. A man and a woman who were U.S. citizens and residents of the same state were traveling separately in the foreign country when their cars collided. The foreign court awarded the woman a judgment for S500,000 in damages for her injuries from the accident. In federal district court in their home state, the woman filed suit against the man to enforce the judgment. The man filed a motion to dismiss for lack ofjurisdiction. Should the court grant the motion to dismiss? (A) Yes, because the citizenship of the parties is not diverse. (B) Yes, because the traffic accident was a noncommercial commerce. (C) No, because the case falls within the federal question jurisdiction of the court. (3) No, because the treaty power is plenary and not subject to judicial review. transaction outside interstate Question # 9 — Contracts A fugitive was wanted for murder. The authorities offered the following reward: "$20,000 to anyone who provides information leading to the arrest and conviction of this fugitive." A private detective knew of the reward, located the fugitive, and brought him to the authorities, who arrested him. The authorities then determined that while the fugitive had, in fact, committed the crime, he had been directed to commit the crime by his boss. The authorities and the fugitive then agreed that in exchange for the fugitive's testimony against his boss, all charges against the fugitive would be dropped. The fugitive testified and was released. The authorities refused to pay the reward to the private detective on the ground that the fugitive was never convicted. Would the private detective be likely to prevail in a breach of contract action against the authorities? (A) No, because the private detective failed to notify the authorities that he had accepted the reward offer. (B) No, because the express conditions set out in the reward were not met. (C) Yes, because the authorities' agreement with the fugitive was against public policy. (D) Yes, because the authorities themselves prevented the conviction of the fugitive. Question # 10 — Evidence A defendant was on trial for burglary. The prosecutor called the arresting officer to testify that shortly after her arrest and interrogation, the defendant had orally admitted her guilt to the officer. Before the officer testified, the defendant objected that no Miranda warning had been given to her, and she requested a hearing outside the presence of the jury to hear evidence on that issue. How should the court proceed? (A) The court should grant the request, because the hearing on the admissibility of the confession must be conducted outside the presence of the jury. (B) The court may grant or deny the request, because the court has discretion whether to conduct preliminary hearings in the presence of the jury. (C) The court should deny the request and rule the confession inadmissible, because only signed confessions are permitted in criminal cases. (O) The court should deny the request and rule the confession admissible, because it is the statement of a party-opponent. 3 MBE MIXED PRACTICE EFTA00811413 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • Question # 11- Torts Under the Federal Tort Claims Act, with certain exceptions not relevant here, the federal government is liable only for negligence. A federally owned and operated nuclear reactor emitted substantial quantities of radioactive matter that settled on a nearby dairy fans, killing the dairy herd and contaminating the soil. At the trial of an action brought against the federal government by the farm's owner, the trier of fact found that the nuclear plant had a sound design, but that a valve made by the Acme Engineering Company had malfunctioned and allowed the radioactive matter to escape, that Acme Engineering Company is universally regarded as a quality manufacturer of components for nuclear plants, and that there was no way the federal government could have anticipated or prevented the emission of the radioactive matter. If there is no other applicable statute, for whom should the trial judge enter judgment? (A) The plaintiff, on the ground that the doctrine of res ipsa loquitur applies. (B) The plaintiff, on the ground that one who allows dangerous material to escape to the property of another is liable for the damage done. (C) The defendant, on the ground that a case under the Federal Tort Claims Act has not been proved. (D) The defendant, on the ground that the Acme Engineering Company is the proximate cause of the owner's damage. Question # I2- Criminal Law and Procedure A state statute provides as follows: "In all criminal cases, whenever the Constitution permits, the burden of proof as to a defense claimed by the defendant shall rest on the defendant, and the magnitude of the burden shall be as great as the Constitution permits." The same state defines the crime of forcible rape as follows: "Forcible rape consists of sexual penetration inflicted on an unconsenting person by means of force or violence. Consent of the victim is a complete defense to a charge of rape." At a defendant's trial for forcible rape, he testified that the alleged victim had consented to having sexual intercourse with him. How should the trial judge instruct the jury regarding the issue of consent? (A) The burden of proving that the victim consented, by a preponderance of the evidence, rests on the defendant. (B) The burden of proving that the victim consented, by clear and convincing evidence, rests on the defendant. (C) The burden of proving that the victim consented, by proof beyond a reasonable doubt, rests on the defendant. (D) The burden of proving that the victim did not consent, by proof beyond a reasonable doubt, rests on the prosecution. Question # 13— Contracts A buyer and a seller entered into a contract for the sale of 10,000 novelty bracelets. The seller had the bracelets in stock. The contract specified that the seller would ship the bracelets by a third-party carrier. However, the contract did not specify either who was to pay the costs of carriage or the place of tender for the bracelets. On the above facts, when would the risk of loss of the bracelets pass to the buyer? (A) When the contract was made. (B) When the bracelets were identified to the contract by the seller, assuming the goods conformed to the contract. (C) When the bracelets were delivered to a carrier and a proper contract for their carriage was made. (O) When the bracelets were unloaded on the buyer's premises by the carrier. Question # 14 - Constitutional Law A state legislature received complaints from accident victims who, in the days immediately following their accidents, had received unwelcome and occasionally misleading telephone calls on behalf of medical care providers. The callers warned of the risks of not obtaining prompt medical evaluation to detect injuries resulting from accidents and offered free examinations to determine whether the victims had suffered any injuries. In response to these complaints, the legislature enacted a law prohibiting medical care providers from soliciting any accident victim by telephone within 30 days of his or her accident. Which of the following is the most useful argument for the state to use in defending the constitutionality of the law? (A) Because the commercial speech that is the subject of this law includes some speech that is • MBE RELEASED QUESTIONS 4 MBE MIXED PRACTICE I EFTA00811414 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I misleading, the First Amendment does not limit the power of the state to regulate that speech. (B) Because the law regulates only commercial speech, the state need only demonstrate that the restriction is rationally related to achieving the state's legitimate interests in protecting the privacy of accident victims and in regulating the medical profession. (C) The state has substantial interests in protecting the privacy of accident victims and in regulating the practice of medical care providers, and the law is narrowly tailored to achieve the state's objectives. (D) The law is a reasonable time, place, and manner regulation. Question # 15 — Evidence A defendant was charged with murder. While walking down the hallway during a recess in the defendant's trial, the judge overheard the defendant say to his attorney, "So what if I did it? There's not enough proof to convict." Upon the judge's reporting the incident to counsel, the prosecutor called the judge as a witness in the trial. Is the judge's testimony regarding the defendant's statement admissible? (A) Yes, as the statement of a party-opponent. (B) Yes, because the defendant's statement, although otherwise privileged, was made without reasonable efforts to preserve confidentiality. (C) No, because the statement was a privileged attorney-client communication. (D) No, because a judge may never testify in a trial over which he or she is presiding. Question # 16 - Real Property A man borrowed money from a bank and executed a promissory note for the amount secured by a mortgage on an office building that he owned. Several years later, the man sold the building. As specified in the contract of sale, the deed to the buyer provided that the buyer agreed "to assume the existing mortgage debt" on the building. Subsequently, the buyer defaulted on the mortgage loan to the bank, and appropriate foreclosure proceedings were initiated. The foreclosure sale resulted in a deficiency. There is no applicable statute. Is the buyer liable for the deficiency? (A) No, because even if the buyer assumed the mortgage, the man is solely responsible for any deficiency. (B) No, because the buyer did not sign a promissory note to the bank and therefore has no personal liability. (C) Yes, because the buyer assumed the mortgage and therefore became personally liable for the mortgage loan and any deficiency. (D) Yes, because the transfer of the mortgage debt to the buyer resulted in a novation of the original mortgage and loan and rendered the buyer solely responsible for any deficiency. Question # 17 — Contracts In a written contract, an architect agreed to draw up the plans for and to supervise construction of a client's new house. In return, the client agreed to pay the architect a fee of $10,000 to be paid upon the house's completion. After completion, the client claimed erroneously but in good faith that the architect's plans were defective. The client orally offered to pay the architect $7,500 in full settlement of the claim for the fee. The architect orally accepted that offer despite the fact that the reasonable value of his services was in fact $10,000. The client paid the architect $7,500 pursuant to their agreement. The architect subsequently sued the client for the remaining $2,500. In a preliminary finding, the trier of fact found that there were no defects in the architect's plans. Will the architect be likely to prevail in his action against the client for $2,500? (A) Yes, because payment of $7,500 cannot furnish consideration for the architect's promise to surrender his claim. (B) Yes, because the oral agreement to modify the written contract is not enforceable. (C) No, because the architect's promise to accept $7,500 became binding when the client made the payment. (D) No, because the architect's acceptance of partial payment constituted a novation. Question # 18 — Evidence A defendant's house was destroyed by fire and she was charged with arson. To prove that the defendant had a motive to burn down her house, the government offered evidence that the defendant had fully insured the house and its contents. Should the court admit this evidence? MBE RELEASED Qt csnons 5 MBE MIXED PRACTICE EFTA00811415 AMERIBAR BAR REVIEW • MBE MIXED PRACTICE I (A) No, because the probative value of the evidence of insurance upon the issue of whether the defendant intentionally burned her house down is substantially outweighed by the dangers of unfair prejudice and confusion of the jury. (B) No, because evidence of insurance is not admissible upon the issue of whether the insured acted wrongfully. (C) Yes, because evidence of insurance on the house has a tendency to show that the defendant had a motive to burn down the house. (D) Yes, because any conduct of a party to the case is admissible when offered against the party. Question Et 19 — Torts The owner of a shopping mall hired a construction company to design and construct the entryway to the mall. The construction company negligently selected an unusually slippery material for the floor covering. A customer at the mall slipped on the floor of the entryway, sustaining injuries. The customer sued the mall owner for the construction company's negligent design of the mall's entryway. Will the injured customer recover damages? (A) No, if the construction company was an independent contractor. (B) No, if no customers had previously slipped on the floor. (C) Yes, if the customer intended to make a purchase at the mall. (D) Yes, if the mall's duty to maintain safe conditions was nondelegable. Question N 20 — Contracts On June I, a seller agreed, in a writing signed by both the seller and the buyer, to sell an antique car to a buyer for $20,000. The car was at the time on display in a museum in a different city and was to be delivered to the buyer on August I. On July 15, before the risk of loss had passed to the buyer, the car was destroyed by fire without fault of either party. Subsequent to the contract but before the fire, the car had increased in value to $30,000. The seller sued the buyer for the contract price of $20,000, and the buyer counterclaimed for $30,000. Which of the following will the court conclude? (A) Both claims fail. (B) Only the seller's claim prevails. (C) Only the buyer's claim prevails. (D) Both claims prevail. Question k 21 - Constitutional Law A report released by a Senate investigating committee named three U.S. citizens as helping to organize support for terrorist activities. All three were employed by the U.S. government as park rangers. Congress enacted a statute naming the three individuals identified in the report and providing that they could not hold any position of employment with the federal government. Which of the following constitutional provisions provides the best means for challenging the constitutionality of the statute? (A) The bill of attainder clause. (B) The due process clause. (C) The ex post facto clause. (D) The takings clause. Question q 22 - Real Property A seller owned a single family house. A buyer gave the seller a signed handwritten offer to purchase the house. The offer was unconditional and sufficient to satisfy the statute of frauds, and when the seller signed an acceptance an enforceable contract resulted. The house on the land had been the seller's home, but he had moved to an apartment, so the house was vacant at all times relevant to the proposed transaction. Two weeks after the parties had entered into their contract, one week after the buyer had obtained a written mortgage lending commitment from a lender, and one week before the agreed-upon closing date, the house was struck by lightning and burned to the ground. The loss was not insured, because three years earlier, the seller had let his homeowner's insurance policy lapse after he had paid his mortgage debt in full. The handwritten contract was wholly silent as to matters of financing, risk of loss, and insurance. The buyer declared the contract voided by the fire, but the seller asserted a right to enforce the contract despite the loss. There is no applicable statute. If a court finds for the seller, what is the likely reason? (A) The contract was construed against the buyer, who drafted it. (B) The lender's written commitment to make a • MBE RELEASED QUESTIONS • 6 MBE MIXED PRACTICE I EFTA00811416 AMERIBAR BAR REVIEW mortgage loan to the buyer made the contract of sale fully binding on the buyer. (C) The risk of loss falls on the party in possession, and constructive possession passed to the buyer on the contract date. (D) The risk of loss passed to the buyer on the contract date under the doctrine of equitable conversion. Question # 23 - Criminal Law and Procedure A federal grand jury was investigating drug trafficking in the jurisdiction. It subpoenaed a witness to testify, and the prosecutor advised the witness that he had a Fifth Amendment privilege not to testi& if he so chose. The witness asked that his counsel be allowed to advise him inside the grand jury room, but the prosecutor refused to allow the attorney inside. The witness, after speaking with his attorney outside the grand jury room, decided to testify and ended up making self-incriminating statements. The witness subsequently was indicted for drug crimes. The indictment was based on the witness's grand jury testimony and on evidence seized in an unconstitutional search of the witness's home. The witness moved to dismiss the indictment. Should the court dismiss the indictment? (A) Yes, because the witness was denied his constitutional right to advice of counsel. (B) Yes, because the indictment was based upon illegally seized evidence. (C) No, because the witness waived his constitutional rights by testifying. (D) No, because the witness had no right to counsel inside the grand jury room and the illegally seized evidence did not affect the validity of the indictment. Question # 24 -Torts A hiker sustained a head injury when he was struck by a limb that fell from a tree. At the time of his injury, the hiker was walking through a forest on private property without the property owner's knowledge or permission. It was determined that the limb fell because the tree was infested with termites. In an action by the hiker against the property owner to recover for his head injury, will the hiker be likely to prevail? (A) No, because the property owner could not foresee that anyone would be injured. MBE MIXED PRACTICE I • (B) No, because the property owner breached no duty to the hiker, who was a trespasser. (C) Yes, because the property owner had a duty to prevent the trees on his property from becoming dangerous. (D) Yes, because the property owner is liable for hidden dangers on his property. Question # 25 - Criminal Law and Procedure United States customs officials received an anonymous tip that heroin would be found inside a distinctively marked red package mailed from a foreign country to the United States. Pursuant to this tip, United States customs officers opened the red package and found heroin inside. They then resealed the package and left the heroin inside it. The FBI was notified and, as agents watched, the package was delivered to the address. The FBI then secured a warrant to search the house for the package. About two hours after the package was delivered, the warrant was executed at the house. The man who opened the door was arrested, and the agents found the package, unopened, in an upstairs bedroom closet. After seizing the package, the agents looked through the rest of the house. In a footlocker in the basement, they found a machine gun. The man was charged with, among other crimes, unlawful possession of the machine gun. He moved to suppress its use as evidence. Should the court grant the motion to suppress the machine gun? (A) Yes, because the search exceeded the authority granted by the warrant. (B) Yes, because the initial search by the customs officers was without probable cause. (C) No, because, having found the package, the agents had probable cause to believe more narcotics could be located in the house and the gun was found in a proper search for narcotics. (D) No, because narcotics dealers are often armed and the search was justified to protect the agents. Question ii 26 — Contracts A homeowner and a contractor entered into a contract for the construction of a home for the price of $300,000. The contractor was to earn a profit of $10,000 for the job. After the contractor had spent $45,000 on labor and materials, including $5,000 on oak flooring not yet installed, the homeowner informed the contractor that the homeowner had lost MBE RELEASED QUESTIONS ESL 7 MBE MIXED PRACTICE I EFTA00811417 AXIERIBAR BAR REVIEW • MBE MIXED PRACTICE I his job and could not pay for any services. The homeowner told the contractor to stop working immediately. The reasonable market value of the labor and materials provided by the contractor at that point, including the oak flooring, was $40,000. The contractor used the $5,000 worth of oak flooring on another job. In an action by the contractor against the homeowner for damages, which of the following would be the largest amount of damages recoverable by the contractor? (A) $40,000, the reasonable value of the services the contractor had provided. (B) $40,000, the contractor's construction costs. (C) $50,000, the contractor's construction costs of $45,000 plus the $10,000 profit minus the $5,000 saved by reusing the oak flooring on another job. (D) $55,000, the contractor's construction costs of $45,000 plus the $10,000 profit. Question # 27 - Real Property A man died testate. The man's estate consisted of a residence as well as significant personal property. By his duly probated will, the man devised the residence to a friend who was specifically identified in the will. The residue of the estate was given to a stated charity. The man's friend, although alive at the time the man executed the will, predeceased the man. The friend's wife and their child, who has a disability, survived the man. The value of the residence has increased significantly because of recent zoning changes. There is credible extrinsic evidence that the man wanted his friend to own the residence after the man's death so that the friend and his wife could care for their child there. There is no applicable statute. If both the charity and the child claim the residence, to whom should the estate distribute the residence? (A) The charity, because the devise to the friend adeemed. (B) The charity, because the devise to the friend lapsed. (C) The child, because extrinsic evidence exists that the man's intent was to benefit the child. (D) The child, because no conditions of survivorship were noted in the will. Question # 28- Constitutional Law Several sites on a mountain within federal public lands are regarded as sacred to a group that for years has gathered there to perform religious ceremonies. The United States Forest Service recently issued a permit to a private developer to construct a ski facility in an area that includes the sites that are sacred to the group. The group filed suit in federal district court against the Forest Service to force cancellation of the permit. The group claimed solely that the permit violated its First Amendment right to the free exercise of religion. The Forest Service conceded that the group's religious beliefs were sincere and that the ski facility would adversely affect the group's religious practices. In order to prevail in its First Amendment claim, what must the group show? (A) Construction of the ski facility will have a discriminatory impact on the group's religious practices in relation to the practices of other religious groups. (B) The burden on the group's religious practices imposed by construction of the ski facility outweighs the government's interest in allowing the facility. (C) The Forest Service can achieve its legitimate interest in allowing the ski facility by issuing a permit that is less burdensome on the group's religious practices. (D) The permit issued by the Forest Service is aimed at suppressing the religious practices of the group. Question # 29 - Evidence A defendant was charged with battery for allegedly attacking a man as they left a local bar together. No one else witnessed the fight. At trial, each testified that he had acted only in self-defense. The defendant called his next-door neighbor as a witness to testify as to the defendant's reputation both for truthfulness and for peacefulness. The government objected to the testimony in its entirety. How should the court proceed? (A) Admit the evidence in its entirety. (B) Admit the evidence regarding the defendant's reputation for peacefulness, but exclude the evidence regarding his truthfulness. (C) Exclude the evidence regarding the defendant's reputation for peacefulness, but admit the evidence regarding his truthfulness. (D) Exclude the evidence in its entirety. • MBE RELEASED QUESTIONS 8 MBE MIXED PRACTICE I EFTA00811418 AMERIBAR BAR REVIEW • Question # 30 - Torts A cigarette maker created and published a magazine advertisement that featured a model dressed as a race-car driver standing in front of a distinctive race car. In fact, the car looked almost exactly like the very unusually marked one driven by a famous and popular driver. The driver in the ad was not identified, and his face was not shown in the advertisement. The cigarette maker published the advertisement without obtaining the famous driver's permission. The race-car driver sued the cigarette maker for economic loss only, based on common law misappropriation of the right of publicity. The cigarette maker moved to dismiss the complaint. Will the cigarette maker's motion to dismiss the complaint be granted? (A) No, because there are sufficient indicia of the driver's identity to support a verdict of liability. (B) Yes, because the driver is a public figure. (C) Yes, because there was no mention of the driver's name in the ad. (D) Yes, because the driver did not claim any emotional or dignitary loss. Question 14 31 - Criminal Law and Procedure In a city, a number of armed bank robberies were committed near closing time by a masked man wearing a white hooded sweatshirt and blue sweatpants. Police saw a man wearing a white hooded sweatshirt and blue sweatpants pacing nervously outside one of the city's banks just before it closed. The police stopped the man and frisked the outer layers of his clothing for weapons, but found none. They asked the man what he was doing outside the bank and pointed out that he was wearing clothing similar to clothing worn by the perpetrator of recent robberies. After pausing for several moments, the man confessed. The police had not provided him with any Miranda warnings. After being charged with the bank robberies, the man moved to suppress his confession. The parties agreed, and the court properly found, that the police had reasonable suspicion but not probable cause at all times before the man confessed. Should the man's motion to suppress be granted? (A) Yes, because the confession was the fruit of a Fourth Amendment violation, even though there was no Miranda violation. (B) Yes, because the confession was the fruit of a Miranda violation, even though there was no MBE MIXED PRACTICE I • Fourth Amendment violation. (C) Yes, because the confession was the fruit of both a Fourth Amendment violation and a Miranda violation. (D) No, because there was neither a Fourth Amendment violation nor a Miranda violation. Question # 32 - Real Property A man owned property that he used as his residence. The man received a loan, secured by a mortgage on the property, from a bank. Later, the man defaulted on the loan. The bank then brought an appropriate action to foreclose the mortgage, was the sole bidder at the judicial sale, and received title to the property as a result of the foreclosure sale. Shortly after the foreclosure sale, the man received a substantial inheritance. He approached the bank to repurchase the property, but the bank decided to build a branch office on the property and declined to sell. If the man prevails in an appropriate action to recover title to the property, what is the most likely reason? (A) He had used the property as his residence. (B) He timely exercised an equitable right of redemption. (C) The court applied the doctrine of exoneration. (D) The jurisdiction provides for a statutory right of redemption. Question # 33 - Real Property A farmer borrowed SI 00,000 from a bank and gave the bank a promissory note secured by a mortgage on the farm that she owned. The bank promptly and properly recorded the mortgage, which contained a due-on-sale provision. A few years later, the farmer borrowed $5,000 from a second bank and gave it a promissory note secured by a mortgage on her farm. The bank promptly and properly recorded the mortgage. Subsequently, the farmer defaulted on her obligation to the first bank, which then validly accelerated the debt and instituted nonjudicial foreclosure proceedings as permitted by the jurisdiction. The second bank received notice of the foreclosure sale but did not send a representative to the sale. At the foreclosure sale, a buyer who was not acting in collusion with the farmer outbid all other bidders and received a deed to the farm. Several months later, the original farmer repurchased her farm from the buyer, who executed a warranty MBE Et • ElleAsED QUESTIONS 9 MBE MIXED PRACTICE I EFTA00811419 AMERIBAR BAR REVIEW deed transferring the farm to her. After the fanner promptly and properly recorded that deed, the second bank commenced foreclosure proceedings on the farm. The farmer denied the validity of the second bank's mortgage. Does the second bank continue to have a valid mortgage on the farm? (A) Yes, because of the doctrine of estoppel by deed. (B) Yes, because the original owner reacquired title to the farm. (C) No, because the purchase at the foreclosure sale by the buyer under these facts eliminated the second bank's junior mortgage lien. (D) No, because of the due-on-sale provision in the farmer's mortgage to the first bank. Question # 34 - Evidence At a trial of a contract dispute, the plaintiff offered to testi& to what the defendant said in a private conversation between the two of them, which the plaintiff had secretly recorded on an audiotape that she did not offer in evidence. Is the plaintiff's testimony admissible? (A) Yes, because the plaintiff has personal knowledge of the statement of a party-opponent. (B) Yes, because the original document rule does not apply to audiotapes. (C) No, because the statement must be proved by introduction of the audiotape itself. (D) No, because of the plaintiff's deception, even if the recording was not illegal. Question # 35 - Torts A manufacturing plant located near a busy highway uses and stores highly volatile explosives. The owner of the plant has imposed strict safety measures to prevent an explosion at the plant. During an unusually heavy windstorm, a large tile was blown off the roof of the plant and crashed into the windshield of a passing car, damaging it. The driver of the car brought a strict liability action against the owner of the plant to recover for the damage to the car's windshield. Is the driver likely to prevail? (A) No, because the damage to the windshield did not result from the abnormally dangerous aspect of the plant's activity. (B) No, because the severity of the windstorm was unusual. MBE MIXED PRACTICE 1 • (C) Yes, because the plant's activity was abnormally dangerous. (D) Yes, because the plant's location near a busy highway was abnormally dangerous. Question # 36 - Contracts While waiting in line to open an account with a bank, a customer read a poster on the bank's wall that said, "New Customers! $25 FOR 5 MINUTES. If you stand in line for more than five minutes, we will pay you $25! We like happy customers!" The customer started timing his wait and just as five minutes was about to pass, the bank manager tore the poster down and announced, "The $25 stand-in-line promotion is over." The customer waited in line for 10 more minutes before being served. Does the customer have a claim against the bank for $25? (A) No, because the bank withdrew its offer before the customer completed the requested performance. (B) No, because the bank's statement was a nonbinding gift promise. (C) Yes, because the bank could not revoke its offer once the customer had commenced performance. (D) Yes, because the customer's presence in line served as notice to the bank that he had accepted. Question # 37 - Constitutional Law A federal statute required that any individual or entity owning more than 100 cars had to ensure that at least 10 percent of those cars were electric-powered. A city filed suit in federal district court against the federal official who enforced this requirement. The city sought an injunction prohibiting enforcement of the statute on the ground that it was unconstitutional. Should the court grant the injunction? (A) No, because the statute is valid under the commerce clause and does not violate the Tenth Amendment. (B) No, because the federal government has sovereign immunity and cannot be sued without its explicit consent. (C) Yes, because the statute violates the reserved rights of the states under the Tenth Amendment. (D) Yes, because as applied to state and local governments, the statute exceeds Congress's power under the commerce clause. MBE RELEASED QUESTIONS 10 MBE MIXED PRACTICE I EFTA00811420 AMERIBAR BAR REVIEW MBE MIXED PRACTICE • Question # 38 - Criminal Law and Procedure A driver stopped at a red light in his home state. A stranger opened the passenger door, got in, and pointed a gun at the driver. The stranger then directed the driver to keep driving. They drove several miles, crossed into a neighboring state, and drove several more miles. When they reached a remote location, the stranger ordered the driver to pull over. The stranger then robbed the driver of his wallet and cash, and ordered him out of the car. The stranger drove off in the driver's car. The stranger is charged with kidnapping in the neighboring state, which has adopted the Model Penal Code. Could the stranger properly be convicted of kidnapping in the neighboring state? (A) Yes, because the driver was transported under threat of force in the neighboring state. (B) Yes, because the driver in effect paid ransom for his release. (C) No, because any kidnapping took place in the driver's home state. (D) No, because the restraint was incidental to the robbery. Question # 39 - Contracts On June I, a seller received a mail order from a buyer requesting prompt shipment of a specified computer model at the seller's current catalog price. On June 2, the seller mailed to the buyer a letter accepting the order and assuring the buyer that the computer would be shipped on June 3. On June 3, the seller realized that he was out of that computer model and shipped to the buyer a different computer model and a notice of accommodation. On June 5, the buyer received the seller's June 2 letter and the different computer model, but not the notice of accommodation. At that juncture, which of the following is a correct statement of the parties' legal rights and duties? (A) The buyer can either accept or reject the different computer model and in either event recover damages, if any, for breach of contract. (B) The buyer can either accept or reject the different computer model, but if he rejects it, he will thereby waive any remedy for breach of contract. (C) The seller's prompt shipment of nonconforming goods constituted an acceptance of the buyer's offer, thereby creating a contract for sale of the replacement computer model. (D) The seller's notice of accommodation was timely .,MBE RELEASED QUESTIONS mailed and his shipment of the different computer model constituted a counteroffer. Question # 40 - Evidence A plaintiff sued a ladder manufacturer for injuries he suffered to his neck and back when a rung of the ladder on which he was standing gave way. When the plaintiff's back and neck continued to be very sore after more than two weeks, his treating physician sent him to an orthopedist for an evaluation. Though the orthopedist did not treat the plaintiff, he diagnosed an acute cervical strain. At trial, the plaintiff called the orthopedist to testify that in response to the orthopedist's inquiry about how the plaintiff had injured his back, the plaintiff told him, "I was standing near the top of a I5-foot ladder when I abruptly fell, landing hard on my back, after which the ladder toppled onto my neck." Should the statement be admitted? (A) Yes, because the plaintiff is present and can be cross-examined about it. (B) Yes, because it was made for the purpose of medical diagnosis or treatment. (C) No, because it was not made to a treating physician. (D) No, because it relates to the inception or the cause of the injury rather than the plaintiff's physical condition. Question ft 41 - Constitutional Law The United States government demonstrated that terrorist attacks involving commercial airliners were perpetrated exclusively by individuals of one particular race. In response, Congress enacted a statute imposing stringent new airport and airline security measures only on individuals of that race seeking to board airplanes in the United States. Which of the following provides the best ground for challenging the constitutionality of this statute? (A) The commerce clause of Article I, Section 8. (B) The due process clause of the Fifth Amendment. (C) The privileges and immunities clause of Article IV. (D) The privileges or immunities clause of the Fourteenth Amendment. Question # 42 - Torts A consumer bought an electric kitchen blender from the manufacturer. Soon after the purchase, the consumer was using the blender in an appropriate I I MBE MIXED PRACTICE I EFTA00811421 AMERIBAR BAR REVIEW MBE MIXED PRACTICE way when the blender jar shattered, throwing a piece of glass into the consumer's eye. The consumer brought an action against the manufacturer based solely on strict product liability. The consumer's expert testified that the blender was defectively designed. However, because the blender jar was destroyed in the accident, the expert could not determine whether the accident was caused by the design defect or a manufacturing defect. The manufacturer's expert testified that the blender was not defective. If, at the conclusion of the evidence, both parties move for directed verdicts, how should the trial judge rule? (A) Direct a verdict for the manufacturer, because the consumer's expert was unable to specify the nature of the defect. (B) Direct a verdict for the manufacturer, because the consumer's action was brought solely on a strict liability theory. (C) Direct a verdict for the consumer, because the blender was new when the jar shattered. (D) Deny both motions and send the case to the jury, because a jury reasonably could conclude that the harm probably was caused by a defect present in the product when it was sold. Question # 43 - Constitutional Law Congressional committees heard testimony from present and former holders of licenses issued by state vocational licensing boards. According to the testimony, the boards had unfairly manipulated their disciplinary proceedings in order to revoke the licenses of some license holders as a means of protecting favored licensees from competition. In response, Congress enacted a statute prescribing detailed procedural requirements for the disciplinary proceedings of all state vocational licensing boards. For example, the statute required the state boards to provide licensees with adequate notice and opportunity for an adjudicatory hearing in all disciplinary proceedings. The statute also prescribed criteria for the membership of all state vocational licensing boards that were designed to ensure that the boards were likely to be neutral. Which of the following provides the best source of authority for this federal statute? (A) Section 5 of the Fourteenth Amendment. (B) The general welfare clause of Article I, Section 8. (C) The privileges and immunities clause of Article IV, Section 2. (O) The takings clause of the Fifth Amendment. Question # 44 - Real Property A seller who owned land in fee simple entered into a valid written agreement to sell the land to a buyer by installment purchase. The contract stipulated that the seller would deliver to the buyer, upon the payment of the last installment due, "a warranty deed sufficient to convey a fee simple title." The contract contained no other provision that could be construed as referring to title. The buyer entered into possession of the land. After making 10 of the 300 installment payments obligated under the contract, the buyer discovered that there was outstanding a valid and enforceable mortgage on the land, securing the payment of a debt in the amount of 25 percent of the purchase price that the buyer had agreed to pay. There was no evidence that the seller had ever been late in payments due under the mortgage and there was no evidence of any danger of insolvency of the seller. The value of the land was then four times the amount due on the debt secured by the mortgage. The buyer quit possession of the land, stopped making payments on the contract, and demanded that the seller repay the amounts that the buyer had paid under the contract. After the seller refused the demand, the buyer sued the seller to recover damages for the seller's alleged breach of the contract. In such action, should damages be awarded to the buyer? (A) Yes, because in the absence of a contrary express agreement, an obligation to convey marketable title is implied. (B) Yes, because an installment purchase contract is treated as a mortgage and the outstanding mortgage impairs the buyer's equity of redemption. (C) No, because an installment purchase contract is treated as a security device. (D) No, because the time for the seller to deliver marketable title has not arrived. Question # 45 - Contracts On May 1, a seller and a buyer entered into a written contract, signed by both parties, for the sale of a tract of land for $100,000. Delivery of the deed and payment of the purchase price were scheduled for July I. On June 1, the buyer received a letter from the 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 substitute for the first tract. On June 10, the seller communicated a retraction of the repudiation to the buyer. The buyer did not tender the purchase price for the first tract on July 1, but subsequently sued the seller for breach of contract. Will the buyer likely prevail? (A) No, because the seller retracted the repudiation prior to the agreed time for performance. (B) No, because the buyer's tender of the purchase price on July I was a constructive condition to the seller's duty to tender a conveyance. (C) Yes, because the seller's repudiation was nonretractable after it was communicated to the buyer. (D) Yes, because the buyer bought the second tract as a substitute for the first tract prior to the seller's retraction. Question # 46 - Torts A driver negligently ran over a pedestrian. A bystander witnessed the accident from across the street. The bystander ran to the pedestrian, whom he did not know, and administered first aid, but the pedestrian died in the bystander's arms. The bystander suffered serious emotional distress as a result of his failure to save the pedestrian's life, but he experienced no resulting physical manifestations. The bystander brought a negligence action against the driver. Is the bystander likely to prevail? (A) No, because the bystander assumed the risk. (B) No, because the bystander had no familial or other preexisting relationship with the pedestrian. (C) Yes, because danger invites rescue. (D) Yes, because the bystander was in the zone of danger. Question # 47 - Constitutional Law A state legislature conducted an investigation into a series of fatal accidents in the state involving commercial trucks with trailer exteriors made of polished aluminum. The investigation revealed that the sun's glare off of these trucks blinded the drivers of other vehicles. The state's legislature then enacted a law prohibiting commercial trucks with polished aluminum trailer exteriors from traveling on the state's highways. RELEASED QUESTIONS Litigation over the state law resulted in a final decision by the United States Supreme Court that the law impermissibly burdened interstate commerce and, therefore, was unconstitutional. Congress later enacted a statute permitting any state to enact a law regulating the degree of light reflectiveness of the exteriors of commercial trucks using the state's highways. Is this federal statute constitutional? (A) No, because the U.S. Supreme Court has already determined that state laws of this type impermissibly burden interstate commerce. (B) No, because Article III vests the judicial power in the federal courts, the essence of judicial power is the ability to render a final judgment, and this statute overrules a final judgment of the federal Supreme Court. (C) Yes, because Article I, Section 8 grants Congress authority to enact statutes authorizing states to impose burdens on interstate commerce that would otherwise be prohibited. (D) Yes, because Article 1, Section 8 grants Congress authority to enact statutes for the general welfare, and Congress. Question # 48 - Evidence A plaintiff sued a defendant for wrongful death arising out of a traffic collision between the plaintiff's decedent and the defendant. At trial, the investigating traffic officer authenticated a tape recording of her shift-end dictation of comments used in preparing the written report of her factual findings. She testified that the tape recording was accurate when made and that she currently had no clear memory of the details of the investigation. Is the tape recording admissible as evidence? (A) Yes, under the past recollection recorded exception to the hearsay rule. (B) Yes, under the public records exception to the hearsay rule. (C) No, because it is hearsay and is a police report being offered against the defendant in a wrongful death case. (D) No, because the police report itself is the best evidence. Question # 09 - Contracts A debtor's liquidated and undisputed $1,000 debt to a creditor was due on March 1. On March 15, the creditor told the debtor that if the debtor promised to pay the S1,000 on or before December 1, then the 13 MBE MIXED PRACTICE I EFTA00811423 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 1 creditor wouldn't sue to collect the debt. The debtor orally agreed. On April I, the creditor sued the debtor to collect the debt that had become due on March I. The debtor moved to dismiss the creditor's complaint. Should the court grant the debtor's motion? (A) No, because there was no consideration to support the creditor's promise not to sue. (B) No, because there was no consideration to support the debtor's promise to pay $1,000 on December I. (C) Yes, because a promise to allow a debtor to delay payment on a past debt is enforceable without consideration. (D) Yes, because the debtor was bargaining for the creditor's forbearance. Question # 50 - Criminal Law and Procedure A man who had become very drunk left a bar and started to walk home. Another patron of the bar, who had observed the man's condition, followed him. The patron saw the man stumble and fall to the ground near an alley. The patron then began to pull out a gun but saw that the man had passed out asleep in the gutter. The patron reached into the man's pocket, grabbed his wallet, and started to walk away. When the patron heard police officers approaching, he dropped the wallet and ran off. The crimes below are listed in descending order of seriousness. What is the most serious crime for which the patron properly could be convicted? (A) (B) (C) (D) Robbery Larceny Attempted robbery. Attempted larceny. Question # 51 - Contracts On March I, a homeowner contacted a builder about constructing an addition to the homeowner's house. The builder orally offered to perform the work for $200,000 if his pending bid on another project was rejected. The homeowner accepted the builder's terms and the builder then prepared a written contract that both parties signed. The contract did not refer to the builder's pending bid. One week later, upon learning that his pending bid on the other project had been accepted, the builder refused to perform any work for the homeowner. Can the homeowner recover for the builder's nonperformance? (A) No, because efficiency principles justify the builder's services being directed to a higher- valued use. (B) No, because the builder's duty to perform was subject to a condition. (C) Yes, because the builder's attempt to condition his duty to perform rendered the contract illusory. (D) Yes, because the parol evidence rule would bar the builder from presenting evidence of oral understandings not included in the final writing. Question # 52 - Constitutional Law A city passed an ordinance requiring individuals to obtain a license in order to care for children under the age of 12 for pay. To receive such a license, the ordinance required the individuals to complete 10 hours of instruction in child care, undergo a background check, and pay a 5100 fee. The ordinance affected women disproportionately to men, because female babysitters far outnumbered male babysitters in the city. City officials who promoted the measure said that the certification process would ensure that babysitters were adequately regulated for the health and safety of the city's children. Is the ordinance constitutional? (A) No, because it has a disparate impact on women without a showing that the ordinance is necessary to advance a compelling government interest. (B) No, because it infringes on the freedom of contract without a compelling government interest. (C) Yes, because any burden it imposes is clearly outweighed by an important government objective. (D) Yes, because it is rationally related to a legitimate government objective. Question # 53- Real Property By a valid written contract, a seller agreed to sell land to a buyer. The contract stated, "The parties 2gLee that closing will occur on next May I at 10 M." There was no other reference to closing. The contract was silent as to quality of title. On April 27, the seller notified the buyer that she had discovered that the land was subject to a longstanding easement in favor of a corporation for a towpath for a canal, should the corporation ever want to build a • MBE RELEASED QUESTIONS 14 MBE MIXED PRACTICE 1 EFTA00811424 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I canal. The buyer thought it so unlikely that a canal would be built that the closing should occur notwithstanding this outstanding easement. Therefore, the buyer notified the seller on April 28 that he would expect to close on May 1. When the seller refused to close, the buyer sued for specific performance. Will the buyer prevail? (A) No, because the easement renders the seller's title unmarketable. (B) No, because rights of third parties are unresolved. (C) Yes, because the decision to terminate the contract for title not being marketable belongs only to the buyer. (D) Yes, because the seller did not give notice of the easement a reasonable time before the closing date. Question b 54 - Criminal Law and Procedure A drug dealer agreed with another individual to purchase heroin from the individual in order to sell it on a city street corner. Unknown to the drug dealer, the other individual was an undercover police officer whose only purpose was to arrest distributors of drugs. The drug dealer made a down payment for the heroin and agreed to pay the remainder after he sold it on the street. As soon as the undercover officer handed over the heroin, other officers moved in and arrested the dealer. The jurisdiction follows the common law approach to conspiracy. Could the dealer properly be convicted of conspiring to distribute drugs? (A) No, because there was no overt act. (B) No, because there was no plurality of agreement. (C) Yes, because neither an overt act nor plurality of agreement is required at COmmon law. (10) Yes, because the dealer believed all the elements of conspiracy were present and cannot take advantage of a mistake of fact or law. Question H 55 - Constitutional Law Residents of a city complained that brightly colored gns detracted from the character of the city's .historic district and distracted motorists trying to 'navigate its narrow streets. In response, the city council enacted an ordinance requiring any "sign or visual display" visible on the streets of the historic district to be black and white and to be no more than four feet long or wide. A political party wanted to hang a six-foot-long red, white, and blue political banner in front of a building in the historic district. The party filed suit to challenge the constitutionality of the sign ordinance as applied to the display of its banner. Which of the following would be the most useful argument for the political party? (A) The ordinance is not the least restrictive means of promoting a compelling government interest. (B) The ordinance is not narrowly tailored to an important government interest, nor does it leave open alternative channels of communication. (C) The ordinance imposes a prior restraint on political expression. (D) The ordinance effectively favors some categories of speech over others. Question if 56 - Contracts A buyer ordered a new machine from a manufacturer. The machine arrived on time and conformed in all respects to the contract. The buyer, however, rejected the machine because he no longer needed it in his business and returned the machine to the manufacturer. The manufacturer sold many such machines each year and its factory was not operating at full capacity. In an action by the manufacturer against the buyer for breach of contract, which of the following is NOT a proper measure of the manufacturer's damages? (A) The contract price of the machine. (B) The difference between the contract price and the market price of the machine. (C) The difference between the contract price and the price obtained from a proper resale of the machine. (D) The profit the manufacturer would have made on the sale of the machine to the buyer. Question q 57 - Contracts An insurance company issued an insurance policy to a homeowner. The policy failed to contain certain coverage terms required by a state insurance statute. When the homeowner suffered a loss due to a theft that was within the policy's terms, the insurance company refused to pay, claiming that the contract was unenforceable because it violated the statute. ,RELEASED Questions IS MBE MIXED PRACTICE I EFTA00811425 AMERIBAR BAR REVIEW • MBE MIXED PRACTICE I Will the homeowner succeed in an action against the insurance company to recover for the loss? (A) No, because the insurance policy is not a divisible contract. (B) No, because the insurance policy violated the statute. (C) Yes, because the homeowner belongs to the class of persons intended to be protected by the statute. (D) Yes, because the insurance policy would be strictly construed against the insurance company as the drafter. Question N 58 - Criminal Law and Procedure A foreign diplomat discovered that a small person could enter a jewelry store by crawling through an air vent. The diplomat became friendly with a woman in a bar who he believed was small enough to crawl through the air vent. Without telling her that he was a diplomat, he explained how she could get into the jewelry store. She agreed to help him burglarize the store. Someone overheard their conversation and reported it to the police. Shortly thereafter, the police arrested the diplomat and the woman. Both were charged with conspiracy to commit burglary. Before trial, the diplomat moved to dismiss the charge against him on the ground that he was entitled to diplomatic immunity. The court granted his motion. The woman then moved to dismiss the conspiracy charge against her. The jurisdiction has adopted the Model Penal Code version of conspiracy. Should the woman's motion to dismiss the conspiracy charge against her be granted? (A) No, because the diplomat's defense does not negate any element of the crime. (B) No, because the woman was not aware of the diplomat's status. (C) Yes, because a conspiracy requires two guilty participants. (ID) Yes, because but for the diplomat's conduct, no conspiracy would have occurred. Question N 59 - Torts A recently established law school constructed its building in a quiet residential neighborhood. The law school had obtained all of the necessary municipal permits for the construction of the building, which included a large clock tower whose clock chimed every hour. The chimes disturbed only one homeowner in the neighborhood, who had purchased her house prior to the construction of the building. The homeowner was abnormally sensitive to ringing sounds, such as bells and sirens, and found the chimes to be extremely annoying. In a nuisance action by the homeowner against the law school, will the homeowner prevail? (A) Yes, because the chimes interfere with the homeowner's use and enjoyment of her property. (B) Yes, because the homeowner purchased her house prior to the construction of the building. (C) No, because the chimes do not disturb the other residents of the neighborhood. (D) No, because the law school had the requisite municipal permits to erect the clock tower. Question /1 60 - Criminal Law and Procedure A woman told a man to accompany her into her friend's unlocked barn and retrieve an expensive black saddle that she said she had loaned to the friend. The man accompanied the woman to the friend's barn, opened the door, found a black saddle hanging high above the ground, and climbed a ladder to reach it. He handed the saddle down to the woman, and the two left with it together. In fact, the saddle belonged to the friend, and when the friend discovered the saddle missing, she suspected that the woman was the thief. The friend used a screwdriver to break into the woman's house to find the saddle. Upon discovering the saddle on the woman's table, the friend took it back and called the police. The jurisdiction follows the common law, except that burglary covers structures in addition to dwellings and the nighttime element has been eliminated. Which, if any, of these individuals is guilty of burglary? (A) All of them. (B) Only the friend. (C) The man and the woman. (D) Only the woman. Question ft 61 - Evidence A plaintiff sued his insurance company for the full loss of his banquet hall by fire. The insurance company defended under a provision of the policy limiting liability to 50 percent if "flammable materials not essential to the operation of the business were stored on the premises and caused a fire." The insurance company called the keeper of the • MBE RELEASED QUESTIONS • 16 MBE MIXED PRACTICE I EFTA00811426 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I city fire inspection records to identify a report prepared and filed by the fire marshal as required by law, indicating that shortly before the fire, the fire marshal had cited the plaintiff for storing gasoline at the banquet hall. Is the report admissible? (A) No, because it is hearsay not within any exception. (B) No, because the proceeding is civil, rather than criminal. (C) Yes, as a public record describing matters observed as to which there was a duty to report. (D) Yes, as a record of regularly conducted activity, provided the fire marshal is unavailable. Question ft 62 - Real Property A rectangular parcel of undeveloped land contained three acres and had 150 feet of frontage on a public street. The applicable zoning ordinance required that a buildable lot contain at least two acres and have frontage of not less than 100 feet on a public street. A brother and sister owned the land as tenants in common, the brother owning a one-third interest and the sister owning a two-thirds interest. Neither of them owned any other real property. The sister brought an appropriate action to partition the land and proposed that a two-acre rectangular lot with 100 feet of frontage be set off to her and that a one-acre rectangular lot with 50 feet of frontage be set off to the brother. The brother's defense included a demand that the land be sold and its proceeds be divided one-third to the brother and two-thirds to the sister. Who will prevail? (A) The brother, because partition by sale is the preferred remedy, unless a fair price is not the likely result of a sale. (B) The brother, because the zoning ordinance makes it impossible to divide the land fairly. (C) The sister, because partition by sale is not appropriate if the subject property can be physically divided. (D) The sister, because the ratio of the two lots that would result from her proposal conforms exactly to the ownership ratio. Question # 63 - Criminal Law and Procedure A woman promised to pay $10,000 to a hit man if he would kill her neighbor in any manner that could not be traced to her. The hit man bought a gun and watched the neighbor's house for an opportunity to shoot him. One evening, unaware of the hit man's presence, the neighbor tripped as he was walking toward his house, falling and hitting his head against the front steps. Believing that the neighbor was unconscious, the hit man ran over to him and shot him twice in the chest. When the woman learned of the neighbor's death, she paid the hit man $10,000. A medical examiner determined that the neighbor was already dead when the hit man shot him. The crimes below are listed in descending order of seriousness. What is the most serious crime for which the woman properly could be convicted? (A) Murder (B) Attempted murder. (C) Conspiracy. (D) Solicitation. Question # 64 - Contracts Under the terms of a written contract, a builder agreed to construct a garage for a homeowner for $10,000. Nothing was stated in the parties' negotiations or in the contract about progress payments during the course of the work. After completing 25 percent of the garage according to the homeowner's specifications, the builder demanded $2,000 as a reasonable progress payment. The homeowner refused, and the builder abandoned the job. If each party sues the other for breach of contract, which of the following will the court decide? (A) Both parties are in breach, and each is entitled to damages, if any, from the other. (B) Only the builder is in breach and liable for the homeowner's damages, if any. (C) Only the homeowner is in breach and liable for the builder's damages, if any. (D) Both parties took reasonable positions, and neither is in breach. Question # 65 - Torts A company manufactured metal stamping presses that were usually sold with an installed safety device that made it impossible for a press to close on a worker's hands. The company strongly recommended MBE Rettnsto QuEs-noNs 17 MBE MIXED PRACTICE I EFTA00811427 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • that its presses be purchased with the safety device installed, but would sell a press without the safety device at a slightly reduced price. Rejecting the company's advice, a worker's employer purchased a stamping press without the safety device. The press closed on the worker's hand, crushing it. If the worker were to sue the company, would the worker be likely to prevail? (A) Yes, because the company's press was the cause in fact of the worker's injury. (B) Yes, because the company sold the press to the worker's employer without an installed safety device. (C) No, because the failure of the worker's employer to purchase the press with a safety device was a superseding cause of the worker's injury. (D) No, because the company strongly recommended that the worker's employer purchase the press with the safety device. Question # 66 - Constitutional Law In one state, certain kinds of advanced diagnostic medical technology were located only in hospitals, where they provided a major source of revenue. In many other states, such technology was also available at "diagnostic centers" that were not affiliated with hospitals. A group of physicians announced its plan to immediately open in the state a diagnostic center that would not be affiliated with a hospital. The state hospital association argued to the state legislature that only hospitals could reliably handle advanced medical technologies. The legislature then enacted a law prohibiting the operation in the state of diagnostic centers that were not affiliated with hospitals. The group of physicians filed suit challenging the constitutionality of the state law. What action should the court take? (A) Uphold the law, because the provision of medical services is traditionally a matter of legitimate local concern that states have unreviewable authority to regulate. (B) Uphold the law, because the legislature could rationally believe that diagnostic centers not affiliated with hospitals would be less reliable than hospitals. (C) Invalidate the law, because it imposes an undue burden on access to medical services in the state. (D) Dismiss the suit without reaching the merits, because the suit is not ripe. Question ft 67 - Torts While driving his open-bed truck with a friend in the open bed, the driver swerved, throwing his friend to the pavement. The friend sustained severe injuries. The friend had often ridden in the open bed of the driver's truck, and on some of those neensions the driver had swerved to frighten his friend. The friend sued the driver to recover both compensatory damages for his injuries and punitive damages. Which cause of action would NOT permit the friend to recover punitive damages? (A) Assault (B) Battery (C) Negligence (D) Recklessness Question # 68 - Evidence A plaintiff sued an individual defendant for injuries suffered in a collision between the plaintiff's car and the defendant's truck while the defendant's employee was driving the truck. The plaintiff sought discovery of any accident report the employee might have made to the defendant, but the defendant responded that no such report existed. Before trial, the defendant moved to preclude the plaintiff from asking the defendant in the presence of the jury whether he destroyed such a report, because the defendant would then invoke his privilege against self-incrimination. Should the court allow the plaintiff to ask the defendant about the destruction of the report? (A) No, because a report that was prepared in anticipation of litigation is not subject to discovery. (B) No, because no inference may properly be drawn from invocation of a legitimate privilege. (C) Yes, because a party in a civil action may not invoke the privilege against self-incrimination. (D) Yes, because the defendant's destruction of the report would serve as the basis of an inference adverse to the defendant. Question # 69 - Contracts A collector bought from a gallery a painting correctly described in the parties' signed contract as a "one-of- a-kind self-portrait" by a famous artist that had recently died. The contract price was $100,000 in cash, payable one month after a truck carrier MBE RELEASED QUESTIONS 18 MBE MIXED PRACTICE 1 EFTA00811428 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I delivered the painting to the collector. The painting was damaged in transit. The collector timely rejected it after inspection and immediately notified the gallery of the rejection. The gallery then sold the painting to a third party. It informed the collector that it would pick up the painting within a couple of weeks. Two weeks later, before the gallery picked up the painting, the collector sold the painting to an art admirer for SI 20,000 cash, after notifying her about the damage. If the collector's sale of the painting was NOT an acceptance of the goods, what is the maximum amount that the gallery is entitled to recover from the collector? (A) S120,000 (damages for conversion). (B) $100,000 (the collector-gallery contract price). (C) $20,000 (the excess of the market price over the contract price). (D) Only the allowance of lost profit to the gallery as a volume dealer. Question # 70 - Real Property Six years ago, a landlord and a tenant entered into a 10-year commercial lease of land. The written lease provided that, if a public entity under the power of eminent domain condemned any part of the land, the lease would terminate and the landlord would receive the entire condemnation award. Thereafter, the city condemned approximately two-thirds of the land. The tenant notified the city and the landlord that an independent appraisal of the value of the tenant's possessory interest established that it substantially exceeded the tenant's obligation under the lease and that the tenant was entitled to share the award. The appraisal was accurate. In an appropriate action among the landlord, the tenant, and the city as to the right of the tenant to a portion of the condemnation award, for whom will the court likely find? (A) The landlord, because the condemnation superseded and canceled the lease. (B) The landlord, because the parties specifically agreed as to the consequences of condemnation. (C) The tenant, because the landlord breached the landlord's implied warranty of quiet enjoyment. (D) The tenant, because otherwise the landlord would be unjustly enriched. Question # 71 - Constitutional Law In order to reduce the federal deficit, Congress enacted a statute imposing a five percent national retail sales tax. The tax was levied upon all retail sales in the United States and applied equally to the sales of all kinds of goods. Is this tax constitutional as applied to retail sales of newspapers? (A) Yes, because it is within Congress's power to tax. (B) Yes, because the tax is necessary to serve the compelling interest of balancing the federal budget. (C) No, because retail sales taxes are within the taxing power of the states. (D) No, because the imposition of a tax on the sale of newspapers violates the freedom of the press. Question # 72 - Criminal Law and Procedure The police suspected a woman of growing marijuana in her private residence. Narcotics officers went to her neighborhood in the middle of the night. Nothing unlawful could be seen from the street, so the officers walked into the neighbors' yard and looked through the woman's kitchen window, which had neither drapes nor shades. The officers observed what appeared to be marijuana plants being cultivated under grow lights in the kitchen. Using this information, the officers obtained a search warrant. The execution of that warrant netted numerous marijuana plants. The woman was charged with possession of marijuana. She moved to suppress the marijuana plants recovered when the warrant was executed, claiming that the evidence supporting the warrant was obtained through a search that violated the Fourth Amendment. Should the marijuana plants be suppressed? (A) No, because regardless of the lawfulness of the police conduct beforehand, they did obtain a warrant to search the woman's home. (B) No, because the woman could have no reasonable expectation of privacy concerning activities that she exposed to the view of her neighbors. (C) Yes, because the officers' clandestine observation of the plants violated the woman's reasonable expectation of privacy concerning activities occurring in her home. (D) Yes, because no unlawful activities could be observed by the officers from any public vantage point. 19 MBE MIXED PRACTICE I EFTA00811429 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 1 Question # 73 - Real Property A niece inherited vacant land from her uncle. She lived in a distant state and decided to sell the land to a colleague who was interested in purchasing the land as an investment. They orally agreed upon a price, and, at the colleague's insistence, the niece agreed to provide him with a warranty deed without any exceptions. The price was paid, the warranty deed was delivered, and the deed was promptly and properly recorded. Neither the niece nor the colleague had, at that point, ever seen the land. After recording the deed, the colleague visited the land for the first time and discovered that it had no access to any public right-of-way and that none of the surrounding lands had ever been held in common ownership with any previous owner of the tract of land. The colleague sued the niece for damages. For whom will the court find? (A) The colleague, because lack of access makes title unmarketable. (B) The colleague, because the covenants of warranty and quiet enjoyment in the deed were breached. (C) The niece, because no title covenants were breached. (D) The niece, because the agreement to sell was oral. Question # 74 - Evidence In a prosecution for aggravated battery, a police officer testified that when he arrested the defendant, he took a knife from the defendant and delivered it to the medical examiner. The medical examiner testified that the knife blade was consistent with the victim's wound but admitted on cross-examination that any number of other knives could also have caused the wound. Should the judge grant a motion to strike the medical examiner's testimony? (A) No, because the probative worth of this evidence is for the jury to assess. (B) Yes, because in light of the medical examiner's admission, his testimony has insufficient probative value. (C) Yes, because the medical examiner could not state the probability that the wound was caused by the defendant's knife. (D) Yes, because the probative value is substantially outweighed by the danger of unfair prejudice. Question # 75 - Torts In a plaintiff's action for battery, the evidence established that the plaintiff was bad-tempered and, the defendant knew, carried a gun and used it often; that the plaintiff struck the defendant first; that during the altercation, the plaintiff repeatedly tried to get to his gun; and that the blows inflicted upon the plaintiff by the defendant resulted in the plaintiff being hospitalized. Which finding of fact would be most likely to result in a verdict for the defendant? (A) The defendant used no more force than he actually believed was nececoary to protect himself against death or serious bodily harm. (B) The defendant used no more force than he reasonably believed was necessary to protect himself against death or serious bodily harm. (C) The defendant, in fact, feared death or serious bodily harm. (D) The defendant was justified in retaliating against the plaintiff because the plaintiff struck the first blow. Question # 76 - Evidence A defendant was on trial for perjury for having falsely testified in an earlier civil case that he knew nothing about a business fraud. In the perjury trial, the defendant again testified that he knew nothing about the business fraud. In rebuttal, the prosecutor called a witness to testify that after the civil trial was over, the defendant admitted to the witness privately that he had known about the fraud. Is the witness's testimony in the perjury trial admissible? (A) Yes, but only to impeach the defendant's testimony. (B) Yes, both to impeach the defendant's testimony and as substantive evidence of the perjury. (C) No, because it is hearsay not within any exception. (D) No, because it relates to the business fraud and not to the commission of perjury. Question # 77 - Real Property A landowner mortgaged her land to a nationally chartered bank as security for a loan. The mortgage provided that the bank could, at its option, declare the MBE RELEASED QUESTIONS 20 MBE MIXED PRACTICE I EFTA00811430 AMERIBAR BAR REVIEW • entire loan due and payable if all or any part of the land, or an interest therein, was sold or transferred without the bank's prior written consent. Subsequently, the landowner wanted to sell the land to a neighbor by an installment land contract, but the bank refused to consent. The neighbor's credit was good, and all mortgage payments to the bank were fully current. The landowner and the neighbor consulted an attorney about their proposed transaction, their desire to complete it, and the bank's refusal to consent. What would the attorney's best advice be? (A) Even if the landowner transfers to the neighbor by land contract, the bank may accelerate the debt and foreclose if the full amount is not paid. (B) The due-on-sale clause is void as an illegal restraint on alienation of the fee simple, so they may proceed. (C) By making the transfer in land contract form, the landowner will prevent enforcement of the due- on-sale clause if the mortgage payments are kept current. (D) The due-on-sale clause has only the effect that the proposed transfer will automatically make the neighbor personally liable on the debt, whether or not the neighbor specifically agrees to assume it. Question # 78 - Contracts On March 1, an excavator entered into a contract with a contractor to perform excavation work on a large project. The contract expressly required that the excavator begin work on June 1 to enable other subcontractors to install utilities. On May 15, the excavator requested a 30-day delay in the start date for the excavation work because he was seriously behind schedule on another project. When the contractor refused to grant the delay, the excavator stated that he would try to begin the work for the contractor on June I. Does the contractor have valid legal grounds to cancel the contract with the excavator and hire a replacement? (A) Yes, because the excavator committed an anticipatory repudiation of the contract by causing the contractor to feel insecure about the performance. (B) Yes, because the excavator breached the implied (C) covenant of good faith and fair dealing. No. because the excavator would be entitled to MBE RELEASED QuenioNs MBE MIXED PRACTICE I • specific performance of the contract if he could begin by June 1. (D) No, because the excavator did not state unequivocally that he would delay the beginning of his work. Question I! 79 - Constitutional Law In response to the need for additional toxic waste landfills in a state, the state's legislature enacted a law authorizing a state agency to establish five new state-owned and state-operated toxic waste landfills. The law provided that the agency would decide the locations and sizes of the landfills after an investigation of all potential sites and a determination that the particular sites chosen would not endanger public health and would be consistent with the public welfare. A community in the state was scheduled for inspection by the agency as a potential toxic waste landfill site. Because the community's residents obtained most of their drinking water from an aquifer that ran under the entire community, a citizens' group, made up of residents of that community, sued the appropriate officials of the agency in federal court. The group sought a declaratory judgment that the selection of the community as the site of a toxic waste landfill would be unconstitutional and an injunction preventing the agency from selecting the community as a site for such a landfill. The agency officials moved to dismiss. Which of the following is the most appropriate basis for the court to dismiss this suit? (A) The case presents a nonjusticiable political question. (B) The interest of the state in obtaining suitable sites for toxic waste landfills is sufficiently compelling to justify the selection of the community as a location for such a facility. (C) The Eleventh Amendment bars suits of this kind in the federal courts. (D) The case is not ripe for a decision on the merits. Question # 80 - Real Property Fifteen years ago, after a part of the path located on his land and connecting his cabin to the public highway washed out, the man cleared a small part of his neighbor's land and rerouted a section of the path through the neighbor's land. Twelve years ago, the neighbor leased her land to some hunters. For the next 12 years, the hunters and the man who had rerouted the path used the path for 21 MBE MIXED PRACTICE I EFTA00811431 AMERIBAR BAR REVIEW • access to the highway. MBE MIXED PRACTICE 1 A month ago, the neighbor discovered that part of the path was on her land. The neighbor told the man that she had not given him permission to cross her land and that she would be closing the rerouted path after 90 days. The man's land and the neighbor's land have never been in common ownership. The period of time necessary to acquire rights by prescription in the jurisdiction is 10 years. The period of time necessary to acquire title by adverse possession in the jurisdiction is 10 years. A man contacted his lawyer regarding his right to use a path that was on his neighbor's vacant land. What should the lawyer tell the man concerning his right to use the rerouted path on the neighbor's land? (A) The man has fee title by adverse possession of the land included in the path. (B) The man has an easement by necessity to use the path. (C) The man has an easement by prescription to use the path. (D) The man has no right to use the path. Question # 81 - Evidence A plaintiff sued a defendant for injuries allegedly suffered when he slipped and fell on the defendant's business property. Without asking that the defendant's property manager be declared a hostile witness, the plaintiff called him solely to establish that the defendant was the owner of the property where the plaintiff fell. On cross-examination of the manager, the defendant's attorney sought to establish that the defendant had taken reasonable precautions to make the ptviscity safe for business invitees. Should the defendant's cross-examination of the manager be permitted over the plaintiffs objection? (A) No, because cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. (B) No, because the court has not declared the manager hostile. (C) Yes, because the cross-examiner is entitled to explore matters relevant to any issue in the case, including credibility. (D) Yes, because the manager is the agent of a party, as to whom the scope of cross-examination is unlimited. Question # 82 - Torts As a shopper was leaving a supermarket, an automatic door that should have opened outward opened inward, striking and breaking the shopper's nose. The owner of the building had installed the automatic door. The lease, pursuant to which the supermarket leased the building, provided that the supermarket was responsible for all maintenance of the premises. The shopper sued the supermarket. At trial, neither the shopper nor the supermarket offered any testimony, expert or otherwise, as to why the door had opened inward. At the conclusion of the proofs, both the shopper and the supermarket moved for judgment. How should the trial judge rule? (A) Grant judgment for the shopper, because it is undisputed that the door malfunctioned. (B) Grant judgment for the supermarket, because the shopper failed to join the owner of the building as a defendant. (C) Grant judgment for the supermarket, because the shopper failed to offer proof of the supermarket's negligence, (D) Submit the case to the jury, because on these facts negligence may be inferred. Question N 83 - Torts A man owned a much-loved cat, worth about 325, that frequently trespassed on a neighbor's property. The neighbor repeatedly asked the man to keep the cat on his own property, but the trespasses did not diminish. Aware of the man's attachment to the cat, the neighbor killed the cat with a shotgun in full view of the man. As a consequence, the man suffered great emotional distress. In an action by the man against the neighbor, which of the following claims would be likely to result in the greatest monetary recovery? (A) Battery. (B) Intentional infliction of mental suffering. (C) Trespass to a chattel. (D) Conversion. Question N 84 - Constitutional Law National statistics revealed a dramatic increase in the number of elementary and secondary school students MBE RELEASED QUESTIONS 22 MBE MIXED PRACTICE I EFTA00811432 AMERIBAR BAR REVIEW MBE MIXED PRACTICE I • bringing controlled substances to school for sale. In response, Congress enacted a statute requiring each state legislature to enact a state law making it a crime for any person to sell, within 1,000 feet of any elementary or secondary school, any controlled substance that had previously been transported in interstate commerce. Is the federal statute constitutional? (A) No, because Congress has no authority to require a state legislature to enact any specified legislation. (B) No, because the sale of a controlled substance in close proximity to a school does not have a sufficiently close nexus to interstate commerce to justify its regulation by Congress. (C) Yes, because it contains a jurisdictional provision that will ensure, on a case-by-case basis, that any particular controlled substance subject to the terms of this statute will, in fact, affect interstate commerce. (D) Yes, because Congress possesses broad authority under both the general welfare clause and the commerce clause to regulate any activities affecting education that also have, in inseverable aggregates, a substantial effect on interstate commerce. Question # 85 - Evidence When a man entered a bank and presented a check for payment, the bank teller recognized the signature on the check as a forgery because the check was drawn on the account of a customer whose handwriting she knew. The bank teller called the police. Before the police arrived, the man picked up the check from the counter and left. The man was charged with attempting to cash a forged check. At trial, the prosecutor called the bank teller to testify that the signature on the check was forged. Is the bank teller's testimony admissible? (A) Yes, because a bank teller is by occupation an expert on handwriting. (B) Yes, because it is rationally based on the bank teller's perception and is helpful to the jury. (C) No, because the bank teller was at fault in allowing loss of the original by failing to secure the check. (O) No, because it is not possible for either the jury or an expert to compare the signature on the missing check with a signature established as genuine. Question # 86 - Contracts An accountant and a bookkeeper, as part of a contract dissolving their accounting business, agreed that each would contribute $100,000 to fund an annuity for a clerk who was a longtime employee of the business. The clerk's position would be terminated due to the dissolution, and he did not have a retirement plan. The accountant and the bookkeeper informed the clerk of their plan to fund an annuity for him. The clerk, confident about his financial future because of the promised annuity, purchased a retirement home. The accountant later contributed his $100,000 to fund the annuity, but the bookkeeper stated that he could afford to contribute only $50,000. The accountant agreed that the bookkeeper should contribute only $50,000. Does the clerk have a valid basis for an action against the bookkeeper for the unpaid $50,000? (A) No, because the clerk was bound by the modification of the agreement made by the accountant and the bookkeeper. (B) No, because the clerk was only a donee beneficiary of the agreement between the accountant and the bookkeeper, and had no vested rights. (C) Yes, because the clerk's reliance on the promised retirement fund prevented the parties from changing the terms. (D) Yes, because the promises to establish the fund were made binding by consideration from the clerk's many years of employment. Question # 87 - Real Property Twenty-five years ago, a man who owned a 45-acre tract of land conveyed 40 of the 45 acres to a developer by warranty deed. The man retained the rear five-acre portion of the land and continues to live there in a large farmhouse. The deed to the 40-acre tract was promptly and properly recorded. It contained the following language: "It is a term and condition of this deed, which shall be a covenant running with the land and binding on all owners, their heirs and assigns, that no use shall be made of the 40-acre tract of land except for residential purposes." Subsequently, the developer fully developed the 40- acre tract into a residential subdivision consisting of 40 lots with a single-family residence on each lot. MBE RELEASED QUESTIONS 23 MBE MIXED PRACTICE I EFTA00811433 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 1 Although there have been multiple transfers of ownership of each of the 40 lots within the subdivision, none of them included a reference to the quoted provision in the deed from the man to the developer, nor did any deed to a subdivision lot create any new covenants restricting use. Last year, a major new medical center was constructed adjacent to the subdivision. A doctor who owns a house in the subdivision wishes to relocate her medical offices to her house. For the first time, the doctor learned of the restrictive covenant in the deed from the man to the developer. The applicable zoning ordinance permits the doctor's intended use. The man, as owner of the five-acre tract, however, objects to the doctor's proposed use of her property. There are no governing statutes other than the zoning code. The common law Rule Against Perpetuities is unmodified in the jurisdiction. Can the doctor convert her house in the subdivision into a medical office? (A) No, because the owners of lots in the subdivision own property benefitted by the original residential covenant and have the sole right to enforce it. (B) No, because the man owns property benefitted by the original restrictive covenant and has a right to enforce it. (C) Yes, because the original restrictive covenant violates the Rule Against Perpetuities. (D) Yes, because the zoning ordinance allows the doctor's proposed use and preempts the restrictive covenant. Question # 88 - Contracts On March I, a mechanic contracted to repair a textile company's knitting machine by March 6. On March 2, the textile company contracted to manufacture and deliver specified cloth to a customer on March IS. The textile company knew that it would have to use the machine then under repair to perform this contract. Because the customer's order was for a rush job, the two parties included in their contract a liquidated damages clause, providing that the textile company would pay $5,000 for each day's delay in delivery after March IS. The mechanic was inexcusably five days late in repairing the machine, and, as a result, the textile company was five days late in delivering the cloth to the customer. The textile company paid $25,000 to the customer as liquidated damages and then sued the mechanic for $25,000. Both the mechanic and the textile company knew when making their contract on March I that under ordinary circumstances the textile company would sustain few or no damages of any kind as a result of a five-day delay in the machine repair. Assuming that the $5,000-per-day liquidated damages clause in the contract between the textile company and the customer is valid, which of the following arguments will serve as the mechanic's best defense to the textile company's action? (A) Time was not of the essence in the contract between the mechanic and the textile company. (B) The mechanic had no reason to foresee on March I that the customer would suffer consequential damages in the amount of $25,000. (C) By entering into the contract with the customer while knowing that its knitting machine was being repaired, the textile company assumed the risk of any delay loss to the customer. (D) In all probability, the liquidated damages paid by the textile company to the customer are not the same amount as the actual damages sustained by the customer in consequence of the late delivery of the cloth. Question # 89 - Real Property Five years ago, an investor who owned a vacant lot in a residential area borrowed $25,000 from a friend and gave the friend a note for $25,000 due in five years, secured by a mortgage on the lot. The friend neglected to record the mortgage. The fair market value of the lot was then $25,000. Three years ago, the investor discovered that the friend had not recorded his mortgage and in consideration of $50,000 conveyed the lot to a buyer. The fair market value of the lot was then $50,000. The buyer knew nothing of the friend's mortgage. One month thereafter, the friend discovered the sale to the buyer, recorded his $25,000 mortgage, and notified the buyer that he held a $25,000 mortgage on the lot. Two years ago, the buyer needed funds. Although she told her bank of the mortgage claimed by the investor's friend, the bank loaned her $15,000, and she gave the bank a note for $15,000 due in two years secured by a mortgage on the lot. The bank promptly and properly recorded the mortgage. At that time, the fair market value of the lot was $75,000. The recording act of the jurisdiction provides: "No conveyance or mortgage of real property shall be good against subsequent purchasers for value and • MBE RELEASED QUESTIONS 24 MBE MIXED PRACTICE I EFTA00811434 AMERIBAR BAR REVIEW • without notice unless the same be recorded according to law." Both notes arc now due and both the investor and the buyer have refused to pay. The lot is now worth only x50,000. What are the rights of the investor's friend and the bank in the lot? (A) Both mortgages are enforceable liens and the friend's has priority because it was first recorded. (B) Both mortgages are enforceable liens, but the bank's has priority because the buyer was an innocent purchaser for value. (C) Only the friend's mortgage is an enforceable lien, because the bank had actual and constructive notice of the investor's fraud. (D) Only the bank's mortgage is an enforceable lien, because the buyer was an innocent purchaser for value. Question # 90 - Criminal Law and Procedure A woman offered to pay her friend one-third of the stolen proceeds if the friend would drive the getaway car to be used in a bank robbery. The friend agreed but made the woman promise not to hurt anyone during the robbery. The woman then drove to a sporting goods store, where she explained to the store owner that she needed a small firearm for use in a bank robbery. The store owner responded that he would charge extra because the woman was so unwise as to confide her unlawful plans for using the weapon, and he sold her a handgun at four times the regular price. During the robbery, the woman used the gun to threaten a bank teller into handing over the money. The gun discharged by accident and killed a bank customer. At common law, who in addition to the woman could properly be convicted of murder in the death of the customer? (A) Both the friend and the store owner. (B) Neither the friend nor the store owner. (C) Only the friend. (D) Only the store owner. Question # 91 - Evidence A pedestrian sued a driver for injuries suffered in a hit-and-run accident. At trial, the pedestrian called a MBE MIXED PRACTICE I • witness who testified that he saw the accident and that as the car sped off he accurately dictated the license number into his properly operating pocket dictating machine. The witness stated that he no longer remembered the number. May the tape recording be played? (A) Yes, as a present sense impression only. (B) Yes, as a recorded recollection only. (C) Yes, as a present sense impression and as a past recollection recorded. (D) No, because it is hearsay not within any exception. Question # 92 - Criminal Law and Procedure A man decided to steal a car he saw parked on a hill. When he got in and started the engine, the car began rolling down the hill. The man quickly discovered that the car's brakes did not work. He crashed through the window of a store at the bottom of the hill. The man was charged with larceny of the car and with the crime of knowingly damaging the store's property. At trial, the judge instructed the jury that if the jury found both that the man was guilty of larceny of the car and that the damage to the store was the result of that larceny, then it should also find him guilty of malicious damage of property. The man was convicted on both counts. On appeal, he argued that the conviction for malicious damage of property should be reversed because the instruction was not a correct statement of the law. Should the man's conviction be affirmed? (A) Yes, because his intent to steal the car provides the necessary mental element. (B) Yes, because he was committing a felony. (C) No, because the instruction wrongly described the necessary mental state. (D) No, because it would violate double jeopardy to convict the man of two crimes for a single act. Question # 93 - Contracts A seller and a buyer entered into a written agreement providing that the seller was to deliver 1,000 cases of candy bars to the buyer during the months of May and June. Under the agreement, the buyer was obligated to make a selection by March I of the quantities of the various candy bars to be delivered under the contract. The buyer did not make the selection by March I, and on March 2 the seller MBE REt.EAsF:1) QUESTIONS 25 MBE MIXED PRACTICE I EFTA00811435 AMERIBAR BAR REVIEW • notified the buyer that because of the buyer's failure to select, the seller would not deliver the candy bars. The seller had all of the necessary candy bars on hand on March I and made no additional sales or purchases on March I or March 2. On March 2, after receiving the seller's notice that it would not perform, the buyer notified the seller of its selection and insisted that the seller perform. The seller refused. MBE MIXED PRACTICE 1 If the buyer sues the seller for breach, of contract, is the buyer likely to prevail? (A) No, because a contract did not exist until selection of the specific candy bars, and the seller withdrew its offer before selection. (B) No, because selection of the candy bars by March I was an express condition to the seller's duty to perform. (C) Yes, because a delay of one day in making the selection did not have a material effect on the seller. (13) Yes, because upon the buyer's failure to make a selection by March 1, the seller had a duty to make a reasonable selection. Question # 94 - Real Property A grantor owned two tracts of land, one of 15 acres and another of 5 acres. The two tracts were a mile apart. Fifteen years ago, the grantor conveyed the smaller tract to a grantee. The grantor retained the larger tract. The deed to the grantee contained, in addition to proper legal descriptions of both properties and identifications of the parties, the following language: "I, the grantor, bind myself and my heirs and assigns that in the event that the larger tract that I now retain is ever offered for sale, I will notify the grantee and his heirs and assigns in writing, and the grantee and his heirs and assigns shall have the right to purchase the larger tract for its fair market value as determined by a board consisting of three qualified expert independent real estate appraisers." With appropriate references to the other property and the parties, there followed a reciprocal provision that conferred upon the grantor and her heirs and assigns a similar right to purchase the smaller tract, purportedly binding the grantee and his heirs and assigns. Ten years ago, a corporation acquired the larger tract from the grantor. At that time, the grantee had no interest in acquiring the larger tract and by an appropriate written document released any interest he or his heirs or assigns might have had in the larger tract. Last year, the grantee died. The smaller tract passed by the grantee's will to his daughter. She has decided to sell the smaller tract. However, because she believes that the corporation has been a very poor steward of the larger tract, she refuses to sell the smaller tract to the corporation even though she has offered it for sale in the local real estate market. The corporation has brought an appropriate action for specific performance of the right of first refusal after taking all of the necessary preliminary steps in its effort to exercise its rights to purchase the smaller tract. The daughter has asserted all possible defenses. The common law Rule Against Perpetuities is unmodified in the jurisdiction, and there are no applicable statutes. If the court rules for the daughter, what will be the likely reason? (A) The provision setting out the right to purchase violates the Rule Against Perpetuities. (B) The grantee's release 10 years ago operates as a waiver regarding any right to purchase that the corporation might have. (C) The two tracts of land were not adjacent parcels of real estate, and thus the right to purchase is in gross and is therefore unenforceable. (D) Noncompliance with a right to purchase gives rise to a claim for money damages, but not for specific performance. Question N 95 - Constitutional Law In order to combat terrorism, Congress enacted a statute authorizing the President to construct surveillance facilities on privately owned property if the President determined that the construction of such facilities was "necessary to safeguard the security of the United States." The statute provided no compensation for the owner of the land on which such facilities were constructed and provided that the surveillance facilities were to be owned and operated by the United States government. Pursuant to this statute, the President has determined that the construction of a surveillance facility on a very small, unused portion of an owner's large tract of land is necessary to safeguard the security of the United States. The construction and operation of the facility will not affect any of the uses that the owner • Rrl RASED OUESTIONS 26 MBE MLXED PRACTICE 1 EFTA00811436 AMERIBAR BAR REVIEW • MBE MIXED PRACTICE I is currently making of the entire tract of land. The owner has filed suit to challenge the constitutionality of the construction of a surveillance facility on the parcel of land at issue without compensation. How should the court rule? (A) It would be a taking of the owner's property for which the owner must be compensated. (B) It would single out the owner for adverse treatment in violation of the equal protection component of the Fifth Amendment. (C) It would not interfere with any use the owner is currently making of the entire tract of land and, therefore, would not entitle the owner to any compensation. (O) It would be valid without any compensation, because it has been determined to be necessary to protect a compelling government interest in national security. Question # 96 - Torts A child was bitten by a dog while playing in a fenced-in common area of an apartment complex owned by a landlord. The child was the guest of a tenant living in the complex, and the dog was owned by another tenant. The owner of the dog knew that the dog had a propensity to bite, but the landlord did not have any notice of the dog's vicious propensities. In an action by the child against the landlord, will the child prevail? (A) Yes, because in these circumstances a landlord is strictly liable. (B) Yes, because a landlord's duty to protect a tenant's guests from dangerous conditions is nondelegable. (C) No, because the landlord did not have any notice of the dog's vicious propensities. (O) No, because a landlord owes no duty to a tenant's gratuitous guests. Question # 97 - Criminal Law and Procedure A state grand jury investigating a murder learned that the key suspect might have kept a diary. The grand jury issued a subpoena duces tecum requiring the suspect to produce any diary. The subpoena made clear that the grand jury was seeking only the diary and not any testimony from the suspect. The suspect refused to produce the diary, citing the privilege against self-incrimination. Under what circumstances, if any, could the grand jury compel production of the diary over the suspect's Fifth Amendment privilege? (A) It may compel production without granting immunity because the suspect was not compelled to write a diary. (B) It may compel production only if the suspect is granted use and derivative use immunity from the act of production. (C) It may compel production only if the suspect is granted transactional immunity. (D) It may not compel production of a private diary under any circumstances. Question # 98 - Evidence A defendant was on trial for tax evasion. The IRS, seeking to establish the defendant's income by showing his expenditures, called on the defendant's attorney to produce records showing only how much the defendant had paid his attorney in fees. Should the demand for the attorney's fee records be upheld? (A) Yes, because it calls for relevant information not within the attorney-client privilege. (B) Yes, because the attorney-client privilege cannot be invoked to conceal evidence of a crime. (C) No, because the records are protected by the attorney-client privilege. (D) No, because the records are protected by the attorney work-product doctrine. Question # 99 - Criminal Law and Procedure A man was angered after he was unexpectedly laid off from his longtime job as a factory assembly worker. The next day, he returned to the factory floor and indiscriminately fired shotgun rounds in the air. The man later testified, without contradiction, that he had not intended to kill anyone but simply sought to exact revenge on the factory's owners by shutting down operations for the day. Unfortunately, one of the bullets ricocheted off the wall and killed the man's best friend. The crimes below are listed in descending order of seriousness. On these facts, what is the most serious offense for which the man properly could be convicted? (A) Murder (B) Voluntary manslaughter. (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