RIBAR BAR REVIEW

RIBAR BAR REVIEW ultistate Bar Examination Released Questions n2 RACTICE EXAM 2 EFTA00811439 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • Question I • Contracts In January, a teacher contracted with a summer camp to serve as its head counselor at a salary of $10,000 for 10 weeks of service from the first of June to the middle of August. In March, the camp notified the teacher that it had hired someone else to act as head counselor and that the teachers services would not be needed. In April, the teacher spent $200 traveling to interview at the only other nearby summer camp for a position as its head counselor. The teacher was not chosen for that job. The teacher then took a position teaching in a local summer school at a salary of $6,000 for the same 10-week period as the summer camp. In a breach-of-contract action against the camp, to which of the following amounts, as damages, is the teacher entitled? (A) $4,000 (B) $4,200 (C) $10,000 (D) $10,200 Question 2 - Constitutional Law A federal statute imposes an excise tax of $100 on each new computer sold in the United States. It also appropriates the entire proceeds of that tax to a special fund, which is required to be used to purchase licenses for computer software that will be made available for use, free of charge, to any resident of the United States. Is this statute constitutional? (A) No, because the federal government may not impose any direct taxes on citizens of the United States. (B)No, because this statute takes without just compensation the property of persons who hold patents or copyrights on computer software. (C) Yes, because it is a reasonable exercise of the power of Congress to tax and spend for the general welfare. (D) Yes, because the patent power authorizes Congress to impose reasonable charges on the sale of technology and to spend the proceeds of those charges to advance the use of technology in the United States. Question 3 - Criminal Law and Procedure Nine gang members were indicted for the murder of a tenth gang member who had become an informant. The gang leader pleaded guilty. At the trial of the other eight, the state's evidence showed the following: The gang leader announced a party to celebrate the recent release of a gang member from jail. But the party was not what it seemed. The gang leader had learned that the recently released gang member had earned his freedom by informing the authorities about the gang's criminal activities. The gang leader decided to use the party to let the other gang members see what happened to a snitch. He told no one about his plan. At the party, after all present had consumed large amounts of liquor, the gang leader announced that the released gang member was an informant and stabbed him with a knife in front of the others. The eight other gang members watched and did nothing while the informant slowly bled to death. The jury found the eight gang members guilty of murder and they appealed. Should the appellate court uphold the convictions? (A) No, because mere presence at the scene of a crime is insufficient to make one an accomplice. (B) No, because murder is a specific intent crime, and there is insufficient evidence to show that they intended to kill. (C) Yes, because the gang members made no effort to save the informant after he had been stabbed. (D) Yes, because voluntary intoxication does not negate criminal responsibility. Question 4 - Real Property A landlord leased an apartment to a tenant by written lease for two years ending on the last day of a recent month. The lease provided for $700 monthly rental. The tenant occupied the apartment and paid the rent for the first 15 months of the lease term, until he moved to a new job in another city. Without consulting the landlord, the tenant moved a friend into the apartment and signed an informal writing transferring to the friend his "lease rights" for the remaining nine months of the lease. The friend made the next four monthly $700 rental payments to the landlord. For the final five months of the lease term, no rent was paid by anyone, and the friend moved out with three months left of the lease term. The landlord was on an extended trip abroad, and did not learn of the default and the vacancy until last week. The landlord sued the tenant and the friend, jointly and severally, for $3,500 for the last five months' rent. What is the likely outcome of the lawsuit? (A) Both the tenant and the friend are liable for the full $3,500, because the tenant is liable on privity of contract and the friend is liable on privity of estate as assignee. MBE RELEASED t'EsTIONS 31 MBE MIXED PRACTICE 2 EFTA00811440 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 (B) The hiend is liable for $1,400 on privity of estate, which lasted only until he vacated, and the tenant is liable for $2,100 on privity of contract and estate for the period after the friend vacated. (C) The friend is liable for $3,500 on privity of estate and the tenant is not liable, because the landlord's failure to object to the friends payment of rent relieved the tenant of liability. (D) The tenant is liable for $3,500 on privity of contract and the friend is not liable, because a sublessee does not have personal liability to the original landlord. Question 5 - Evidence In a civil trial for professional malpractice, the plaintiff sought to show that the defendant, an engineer, had designed the plaintiffs flour mill with inadequate power. The plaintiff called an expert witness who based his testimony solely on his own professional experience but also asserted, when asked, that the book Smith on Milling Systems was a reliable treatise in the field and consistent with his views. On cross-examination, the defendant asked the witness whether he and Smith were ever wrong. The witness answered, "Nobody's perfect." The defendant asked no further questions. The defendant called a second expert witness and asked, "Do you accept the Smith book as reliable?" The second witness said, "It once was, but it is now badly out of date." The plaintiff requested that the July be allowed to examine the book and judge for itself the book's reliability. Should the court allow the jury to examine the book? (A) No, because the jury may consider only passages read to it by counsel or witness. (B) No, because the plaintiffs expert in testifying did not rely on the treatise but on his own experience. (C) Yes, because an expert has testified that the treatise is reliable. (D) Yes, because the jury is the judge of the weight and credibility to be accorded both written and oral evidence. Question 6 - Torts A driver, returning from a long shift at a factory, fell asleep at the wheel and lost control of his car. As a result, his car collided with a police car driven by an officer who was returning to the station after having responded to an emergency. The police officer was injured in the accident. The police officer sued the driver in negligence for her injuries. The driver moved for summary judgment, arguing that the common-law firefighters' rule barred the suit. Should the court grant the motion? (A) No, because the firefighters' rule does not apply to police officers. (B) No, because the police officer's injuries were not related to any special dangers of her job. (C) Yes, because the accident would not have occurred but for the emergency. (D) Yes, because the police officer was injured on the job. Question 7 - Contracts A lumber supplier agreed to sell and a furniture manufacturer agreed to buy all of the lumber that the manufacturer required over a two-year period. The sales contract provided that payment was due 60 days after delivery, but that a 3% discount would be allowed if the manufacturer paid within 10 days of delivery. During the first year of the contract, the manufacturer regularly paid within the 10-day period and received the 3% discount. Fifteen days after the supplier made its most recent lumber delivery to the manufacturer, the supplier had received no payment from the manufacturer. At this time, the supplier became aware of rumors from a credible source that the manufacturer's financial condition was precarious. The supplier wrote the manufacturer, demanding assurances regarding the manufacturer's financial status. The manufacturer immediately mailed its latest audited financial statements to the supplier, as well as a satisfactory credit report prepared by the manufacturer's banker. The rumors proved to be false. Nevertheless, the supplier refused to resume deliveries. The manufacturer sued the lumber supplier for breach of contract. Will the manufacturer prevail? (A) No, because the contract was unenforceable, since the manufacturer had not committed to purchase a definite quantity of lumber. (B) No, because the supplier had reasonable grounds for insecurity and was therefore entitled to cancel the contract and refuse to make any future deliveries. (C) Yes, because the credit report and audited financial statements provided adequate assurance of due performance under the contract. (D) Yes, because the supplier was not entitled to condition resumption of deliveries on the receipt of financial status information. Question 8 - Constitutional Law • MBE RELEASED QUESTIONS 32 MBE MIXED PRACTICE 2 EFTA00811441 AMERIBAR BAR REVIEW • MBE MIXED PRACTICE 2 A toy manufacturer that has its headquarters and sole manufacturing plant in the state of Green developed a "Martian" toy that simulates the exploration of Mars by a remote-controlled vehicle. It accurately depicts the Martian landscape and the unmanned exploratory vehicle traversing it. The toy is of high quality, safe, durable, and has sold very well. Other toy manufacturers, all located outside Green, developed similar toys that are lower in price. These manufacturers have contracts to sell their Martian toys to outlets in Green. Although these toys are safe and durable, they depict the Martian landscape less realistically than the toys manufactured in Green. Nevertheless, because of the price difference, sales of these toys have cut severely into the sales of the Martian toys manufactured in Green. The Green legislature subsequently enacted a law "to protect the children of Green from faulty science and to protect Green toy manufacturers from unfair competition." This law forbids the sale in Green of any toy that purports to represent extraterrestrial objects and does not satisfy specified scientific criteria. The Martian toy manufactured in Green satisfies all of these criteria; none of the Martian toys of the competing manufacturers meets the requirements. Is the Green law constitutional? (A) No, because it abrogates the obligations of the contracts between the other toy manufacturers and their Green outlets who have agreed to sell their Martian toys. (B) No, because it imposes an undue burden on interstate commerce. (C) Yes, because it deals only with a local matter, the sale of toys in Green stores. (D) Yes, because the states interest in protecting the state's children from faulty science justifies this burden on interstate commerce. Question 9- Real Property A landowner executed an instrument in the proper form of a deed, purporting to convey his land to a friend. The landowner handed the instrument to the friend, saying, "This is yours, but please do not record it until after I am dead. Otherwise, it will cause me no end of trouble with my relatives." Two days later, the landowner asked the friend to return the deed to him because he had decided that he should devise the land to the friend by will rather than by deed. The friend said that he would destroy the deed and a day or so later falsely told the landowner that the deed had been destroyed. Six months ago, the landowner, who had never executed a will, died intestate, survived by a daughter as his sole heir at law. The day after the landowners death, the friend recorded the deed from him. As soon as the daughter discovered this recording and the friend's claim to the land, she brought an appropriate action against the friend to quiet title to the land. For whom should the court hold? (A) The daughter, because the death of the landowner deprived the subsequent recordation of any effect. (B) The daughter, because the friend was dishonest in reporting that he had destroyed the deed. (C) The friend, because the deed was delivered to him. (D) The friend, because the deed was recorded by him. Question 10 - Criminal Law and Procedure An undercover police detective told a local drug dealer that she wanted to buy cocaine, but that she needed time to raise the necessary funds. The drug dealer said that he needed time to get the cocaine. They agreed to meet again in 10 days. An hour later, without a warrant, other officers forcibly entered the drug dealer's apartment and arrested him for attempted possession of a controlled substance. If the drug dealer is prosecuted in a common-law jurisdiction for attempted possession of cocaine, should he be convicted? (A) No, because he had not taken sufficient acts toward commission of the crime. (B) No, because he was illegally arrested. (C) Yes, because by objective standards an agreement between them had occurred. (D) Yes, because his intention to obtain the cocaine was unequivocally expressed. Question 11 - Torts During a comprehensive evaluation of an adult patient's psychiatric condition, the psychiatrist failed to diagnose the patient's suicidal state. One day after the misdiagnosis, the patient committed suicide. The patient's father, immediately after having been told of his son's suicide, suffered severe emotional distress, which resulted in a stroke. The patient's father was not present at his son's appointment with the psychiatrist and did not witness the suicide. The father brought an action against the psychiatrist to recover for his severe emotional distress and the resulting stroke. Will the father prevail? MBE RELEAsth Qi FEsTiONS 33 MBE MIXED PRACTICE 2 EFTA00811442 AMERIBAR BAR REVIEW • MBE MIXED PRACTICE 2 (A) No, because the father did not sustain a physical impact. (B) No, because the psychiatrists professional duty did not extend to the harms suffered by the patient's father. (C) Yes, because the father was a member of the patient's immediate family. (D) Yes, because the psychiatrist reasonably could have foreseen that a misdiagnosis would result in the patient's suicide and the resulting emotional distress of the patient's father. Question 12 - Evidence In a civil trial arising from a car accident at an intersection, the plaintiff testified on direct that he came to a full stop at the intersection. On cross- examination, the defendant's lawyer asked whether the plaintiff claimed that he was exercising due care at the time, and the plaintiff replied that he was driving carefully. At a sidebar conference, the defendant's lawyer sought permission to ask the plaintiff about two prior intersection accidents in the last 12 months where he received traffic citations for failing to stop at stop signs. The plaintiff's lawyer objected. Should the court allow defense counsel to ask the plaintiff about the two prior incidents? (A) No, because improperly failing to stop on the recent occasions does not bear on the plaintiffs veracity and does not contradict his testimony in this case. (B) No, because there is no indication that failing to stop on the recent occasions led to convictions. (C) Yes, because improperly failing to stop on the recent occasions bears on the plaintiffs credibility, since he claims to have stopped in this case. (D) Yes, because improperly failing to stop on the recent occasions tends to contradict the plaintiffs claim that he was driving carefully at the time he collided with the defendant. Question 13 - Constitutional Law According to a state law, state employees may be fired only "for good cause." A woman who was both a resident and an employee of the state was summarily fired on the sole ground that she had notified federal officials that the state was not following federal rules governing the administration of certain federally funded state programs on which she worked. The state denied the woman's request for a hearing to allow her to contest the charge. There is no record of any other state employee having been terminated for this reason. In a suit to reinstate her employment, which of the following claims provides the LEAST support for the woman? (A) The state's firing of her unconstitutionally abridged her freedom of speech. (B) The state's firing of her unconstitutionally denied her a privilege or immunity of state citizenship protected by Article IV. (C) The state's firing of her violated the supremacy clause of Article VI, because it interfered with the enforcement of federal rules. (D) The state's firing of her without affording her an opportunity for a hearing is an unconstitutional denial of procedural due process. Question I4 - Contracts A landowner and a contractor entered into a written contract under which the contractor agreed to build a building and pave an adjacent sidewalk for the landowner at a price of $200,000. Later, while construction was proceeding, the landowner and the contractor entered into an oral modification under which the contractor was not obligated to pave the sidewalk, but still would be entitled to $200,000 upon completion. The contractor completed the building. The landowner, after discussions with his landscaper, demanded that the contractor pave the adjacent sidewalk. The contractor refused. Has the contractor breached the contract? (A) No, because the oral modification was in good faith and therefore enforceable. (B) Yes, because a discharge of a contractual obligation must be in writing. (C) Yes, because the parol evidence rule bars proof of the oral modification. (D) Yes, because there was no consideration for the discharge of the contractor's duty to pave the sidewalk. Question IS - Real Property A landowner conveyed his land by quitclaim deed to his daughter and son "as joint tenants in fee simple." The language of the deed was sufficient to create a common-law joint tenancy with right of survivorship, which is unmodified by statute. The daughter then duly executed a will devising her interest in the land to a friend. Then the son duly executed a will devising his interest in the land to a cousin. The son died, and later the daughter died. Neither had ever married. The daughter's friend and the cousin •• or act racy° nI IESTIONS 34 MBE MIXED PRACTICE 2 EFTA00811443 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 survived. After both wills have been duly probated, who owns what interest in the land? (A) The cousin owns the fee simple. (B) The daughter's friend and the cousin own equal shares as joint tenants with right of survivorship. (C) The daughters friend and the cousin own equal shares as tenants in common. (D) The daughter's friend owns the fee simple. Question 16 - Evidence A defendant was charged with burglary. At trial, a police officer testified that, after the defendant was arrested and agreed to answer questions, the officer interrogated him with a stenographer present, but that he could not recall what the defendant had said. The prosecutor presented the officer with a photocopy of the stenographic transcript of the interrogation. The officer, after looking at it, was prepared to testify that he recalled that the defendant admitted to being in the area of the burglary. The defendant objected to the officers testimony on the ground that it violated the "original document" rule (also known as the "best evidence" rule). Should the officer's testimony concerning the defendant's recorded confession be admitted? (A) No, because a photocopy cannot be used without a showing that the original is unavailable. (B) No, because the stenographer has not testified to the accuracy of the transcript. (C) Yes, because a photocopy is a duplicate of the original. (D) Yes, because the prosecutor is not attempting to prove the contents of the document. Question 17 - Criminal Law and Procedure A state legislature passed a statute providing that juries in criminal trials were to consist of 6 rather than 12 jurors, and providing that jury verdicts did not have to be unanimous but could be based on 5 votes out of 6 jurors. A defendant was tried for murder. Over his objection, he was tried by a jury composed of 6 jurors. The jurors found him guilty by a vote of 5 to I and, over the defendant's objection, the court entered a judgment of conviction, which was affirmed on appeal by the state supreme court. The defendant seeks to overturn his conviction in a habeas corpus action in federal court, claiming his constitutional rights were violated by allowing a jury verdict that was not unanimous and by allowing a jury composed of fewer than 12 members. • "BE RELEASED QUM-Ms How is the federal court likely to rule in this action? (A) It will set aside the conviction, because the jury was composed of fewer than 12 members. (B) It will set aside the conviction, because the 6- person jury verdict was not unanimous. (C) It will set aside the conviction for both reasons. (D) It will uphold the conviction. Question IS - Real Property A grantor executed an instrument in the proper form of a warranty deed purporting to convey a tract of land to his church. The granting clause of the instrument ran to the church "and its successors forever, so long as the premises are used for church purposes." The church took possession of the land and used it as its site of worship for many years. Subsequently, the church wanted to relocate and entered into a valid written contract to sell the land to a buyer for a substantial price. The buyer wanted to use the land as a site for business activities and objected to the church's title. The contract contained no provision relating to the quality of title the church was bound to convey. There is no applicable statute. When the buyer refused to close, the church sued the buyer for specific performance and properly joined the grantor as a party. Is the church likely to prevail? (A) No, because the grantor's interest prevents the church's title from being marketable. (B) No, because the quoted provision is a valid restrictive covenant. (C) Yes, because a charitable trust to support religion will attach to the proceeds of the sale. (D) Yes, because the grantor cannot derogate from his warranty to the church. Question 19 - Evidence In a civil trial for fraud arising from a real estate transaction, the defendant claimed not to have been involved in the transaction. The plaintiff called a witness to testify concerning the defendant's involvement in the fraudulent scheme, but to the plaintiffs surprise the witness testified that the defendant was not involved, and denied making any statement to the contrary. The plaintiff now calls a second witness to testify that the first witness had stated, while the two were having a dinner conversation, that the defendant was involved in the fraudulent transaction. Is the testimony of the second witness admissible? 35 MBE MIXED PRACTICE 2 EFTA00811444 AMERIBAR BAR REVIEW MBE MLXED PRACTICE 2 (A) No, because a party cannot impeach the party's own witness. (B) No, because it is hearsay not within any exception. (C) Yes, but only to impeach the first witness. (D) Yes, to impeach the first witness and to prove the defendant's involvement. Question 20 - Torts A car owner washed her car while it was parked on a public street, in violation of a statute that prohibits the washing of vehicles on public streets during rush hours. The statute was enacted only to expedite the flow of automobile traffic. Due to a sudden and unexpected cold snap, the car owner's waste water formed a puddle that froze. A pedestrian slipped on the frozen puddle and broke her leg. The pedestrian sued the car owner to recover for her injury. At trial, the only evidence the pedestrian offered as to negligence was the car owner's admission that she had violated the statute. At the conclusion of the proofs, both parties moved for a directed verdict. How should the trial judge proceed? (A) Deny both motions and submit the case to the jury, because, on the facts, the jury may infer that the car owner was negligent. (B) Deny both motions and submit the case to the jury, because the jury may consider the statutory violation as evidence that the car owner was negligent (C) Grant the car owner's motion, because the pedestrian has failed to offer adequate evidence that the car owner was negligent. (D) Grant the pedestrian's motion, because of the car owner's admitted statutory violation. Question 21 - Constitutional Law Two tenured professors at a state university drafted a new university regulation prohibiting certain kinds of speech on campus. Students, staff, and faculty convicted by campus tribunals of violating the regulation were made subject to penalties that included fines, suspensions, expulsions, and termination of employment. The regulation was widely unpopular and there was a great deal of public anger directed toward the professors who drafted it. The following year, the state legislature approved a severable provision in the appropriations bill for the university declaring that none of the university's funding could be used to pay the two professors, who were specifically named in the provision. In the past, the professors' salaries had always been paid from funds appropriated to the university by the legislature, and the university had no other funds that could be used to pay them. If the professors challenge the constitutionality of the appropriations provision, is the court likely to uphold the provision? (A) No, because it amounts to the imposition of a punishment by the legislature without trial. (B) No, because it was based on conduct the professors engaged in before it was enacted. (C) Yes, because the Eleventh Amendment gives the state legislature plenary power to appropriate state funds in the manner that it deems most conducive to the welfare of its people. Clause I of the Constitution. (D) Yes, because the full faith and credit clause requires the court to enforce the provision strictly according to its terms. Question 22- Criminal Law and Procedure Police officers received a tip that drug dealing was occurring at a certain ground-floor duplex apartment. They decided to stake out the apartment. The stakeout revealed that a significant number of people visited the apartment for short periods of time and then left. A man exited the apartment and started to walk briskly away. The officers grabbed the man and, when he struggled, wrestled him to the ground. They searched him and found a bag of heroin in one of his pockets. After discovering the heroin on the man, the police decided to enter the apartment. They knocked on the door, which was opened by the woman who lived there. The police asked if they could come inside, and the woman gave them permission to do so. Once inside, the officers observed several bags of heroin on the living room table. The woman is charged with possession of the heroin found on the living room table. She moves pretrial to suppress the heroin on the ground that it was obtained by virtue of an illegal search and seizure. Should the woman's motion be granted? (A) No, because the tip together with the heroin found in the man's pocket provided probable cause for the search. (B) No, because the woman consented to the officers' entry. (C) Yes, because the officers' decision to enter the house was the fruit of an illegal search of the man. (D) Yes, because the officers did not inform the woman that she could refuse consent. Question 23 - Real Property MBE RELEASED QUESTIONS 36 MBE MIXED PRACTICE 2 EFTA00811445 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A landowner died, validly devising his land to his wife "for life or until remarriage, then to" their daughter. Shortly after the landowner's death, his daughter executed an instrument in the proper form of a deed, purporting to convey the land to her friend. A year later, the daughter died intestate, with her mother, the original landowner's wife, as her sole heir. The following month, the wife re-married. She then executed an instrument in the proper form of a deed, purporting to convey the land to her new husband as a wedding gift. Who now owns what interest in the land? (A) The daughters friend owns the fee simple. (B) The wife owns the fee simple. (C) The wife's new husband has a life estate in the land for the wife's life, with the remainder in the daughter's friend. (D) The wife's new husband owns the fee simple. Question 24 - Contracts During negotiations to purchase a used car, a buyer asked a dealer whether the car had ever been in an accident. The dealer replied: "It is a fine car and has been thoroughly inspected and comes with a certificate of assured quality. Feel free to have the car inspected by your own mechanic." In actuality, the car had been in an accident and the dealer had repaired and repainted the car, successfully concealing evidence of the accident. The buyer declined to have the car inspected by his own mechanic, explaining that he would rely on the dealers certificate of assured quality. At no time did the dealer disclose that the car had previously been in an accident. The parties then signed a contract of sale. After the car was delivered and paid for, the buyer learned about the car's involvement in a major accident. If the buyer sues the dealer to rescind the transaction, is the buyer likely to succeed? (A) No, because the buyer had the opportunity to have the car inspected by his own mechanic and declined to do so. (II) No. because the dealer did not affirmatively assert that the car had not been in an accident. (C) Yes, because the contract was unconscionable. (D) Yes, because the dealer's statement was intentionally misleading and the dealer had concealed evidence of the accident. Question 25 - Constitutional Law A state constitution provides that in every criminal MBE RELEASP.D QUESTIONS trial "the accused shall have the right to confront all witnesses against him face to face." A defendant was convicted in state court of child abuse based on testimony from a six-year-old child. The child testified while she was seated behind one-way glass, which allowed the defendant to see the child but did not allow the child to see the defendant. The defendant appealed to the state supreme court claiming that the inability of the witness to see the defendant while she testified violated both the United States Constitution and the state constitution. Without addressing the federal constitutional issue, the state supreme court reversed the defendant's conviction and ordered a new trial. The state supreme court held that "the constitution of this state is clear, and it requires that while testifying in a criminal trial, a witness must be able to see the defendant." The state petitioned the United States Supreme Court for a writ of certiorari. On which ground should the United States Supreme Court DENY the state's petition? (A) A state may not seek appellate review in the United States Supreme Court of the reversal of a criminal conviction by its own supreme court. (B) The decision of the state supreme court was based on an adequate and independent state ground. (C) The Sixth Amendment to the United States Constitution does not require that a witness against a criminal defendant be able to see the defendant while the witness testifies. (D) The state supreme court's decision requires a new trial, and therefore it is not a final judgment. Question 26 - Criminal Law and Procedure A husband and wife took their I2-year-old son to a political rally to hear a controversial United States senator speak. The speaker was late, and the wife stepped outside to smoke a cigarette. While there, she saw a man placing what she believed to be a bomb against a wall at the back of the building. She went back inside and told her husband what she had seen. Without alerting anyone, they took their son and left. Some 20 minutes later, the bomb exploded, killing eight persons and injuring 50. In the jurisdiction, murder in the first degree is defined as an intentional homicide committed with premeditation and deliberation; murder in the second degree is defined as all other murder at common law; and manslaughter is defined as either a homicide in the heat of passion arising from adequate provocation or a homicide caused by gross negligence or reckless indifference to consequence. 37 MBE MIXED PRACTICE 2 EFTA00811446 AMEMBAR BAR REVIEW MBE MIXED PRACTICE 2 • As to the deaths of the eight persons, what crime, if any, did the wife commit? (A) Manslaughter. (B) Murder in the first degree. (C) Murder in the second degree. (D) No crime. Question 27 - Criminal Law and Procedure A woman decided to steal a necklace that belonged to her neighbor. She knew where the neighbor kept the necklace because she had been in the neighbor's house on many occasions when the neighbor had taken off the necklace and put it away in a jewelry box in the bathroom. One night, the woman went to the neighbor's house. The neighbor was away and the house was dark. The woman opened the bathroom window, saw the jewelry box on the counter, and started to climb inside. As her leg cleared the window sill, the neighbor's cat let out a loud screech. Terrified, the woman bolted back outside and fled. The crimes below are listed in descending order of seriousness. What is the most serious crime committed by the woman? (A) Burglary, (B) Attempted burglary. (C) Attempted larceny. (D) No crime. Question 28 - Torts A host pointed an unloaded revolver at her guest, threatening to shoot him. The guest knew that the revolver was not loaded, and that the ammunition for the revolver was stored in a locked basement closet, two stories below where the two were then standing. In an action brought by the guest against the host for assault, will the guest prevail? (A) No, because the host did not intend to shoot her guest. (B) No, because the host did not put her guest in apprehension of an imminent contact. (C) Yes, because the ammunition was aressible to the host. (D) Yes, because the host threatened her guest with a revolver. Question 29 - Evidence A defendant has pleaded not guilty to a federal charge of bank robbery. The principal issue at trial is the identity of the robber. The prosecutor calls the defendant's wife to testify to the clothing that the defendant wore as he left their house on the day the bank was robbed, expecting her description to match that of eyewitnesses to the robbery. Both the defendant and his wife object to her testifying against the defendant. Should the wife be required to testify? (A) No, because the defendant has a privilege to prevent his wife from testifying against him in a criminal case. (B) No, because the wife has a privilege not to testify against her husband in a criminal case. (C) Yes, because the interspousal privilege does not apply in criminal cases. (D) Yes, because the wife's viewing of the defendant's clothing was not a confidential communication. Question 30 - Contracts On January 5, a creditor lent $1,000 to a debtor under a contract calling for the debtor to repay the loan at the rate of $100 per month payable on the first day of each month. On February 1, at the debtor's request, the creditor agreed to permit payment on February 5. On March 1, the debtor requested a similar time extension and the creditor replied, "Don't bother me each month. Just change the date of payment to the fifth of the month. But you must now make the payments by cashier's check." The debtor said, "Okay," and made payments on March 5 and April 5. On April 6, the creditor sold the loan contract to a bank, but did not tell the bank about the agreement permitting payments on the fifth of the month. On April 6, the bank wrote to the debtor: "Your debt to (the creditor) has been assigned to us. We hereby inform you that all payments must be made on the first day of the month." Can the debtor justifiably insist that the payment date for the rest of the installments is the fifth of each month? (A) No, because a contract modification is not binding on an assignee who had no knowledge of the modification. (B) No, because although the creditor waived the condition of payment on the first of the month, the bank reinstated it. (C) Yes, because although the creditor waived the condition of payment on the first of the month, the creditor could not assign to the bank his right to reinstate that condition. (D) Yes, because the creditor could assign to the bank only those rights the creditor had in the contract at the time of the assignment. • MBE RELEASED QUESTIONS 38 MBE MIXED PRACTICE 2 EFTA00811447 AMERIBAR BAR REVIEW Question 31 - Contracts A buyer entered into a written contract to purchase from a seller 1,000 sets of specially manufactured ball bearings of a nonstandard dimension for a price of $10 per set. The seller correctly calculated that it would cost $8 to manufacture each set. Delivery was scheduled for 60 days later. Fifty-five days later, after the seller had completed production of the 1,000 sets, the buyer abandoned the project requiring use of the specially manufactured ball bearings and repudiated the contract with the seller. After notifying the buyer of his intention to resell, the seller sold the 1,000 sets of ball bearings to a salvage company for $2 per set. The seller sued the buyer for damages. What damages should the court award to the seller? (A) $2 per set, representing the difference between the cost of production and the price the buyer agreed to pay. (B) $6 per set, representing the difference between the cost of manufacture and the salvage price. (C) $8 per set, representing the lost profits plus the unrecovered cost of production. (D) Nominal damages, as the seller failed to resell the goods by public auction. Question 32 - Torts A construction company was digging a trench for a new sewer line in a street in a high-crime neighborhood. During the course of the construction, there had been many thefts of tools and equipment from the construction area. One night, the construction company's employees neglected to place warning lights around the trench. A delivery truck drove into the trench and broke an axle. While the delivery driver was looking for a telephone to summon a tow truck, thieves broke into the delivery truck and stole $350,000 worth of goods. The delivery company sued the construction company to recover for the $350,000 loss and for $1,500 worth of damage to its truck. The construction company stipulated that it was negligent in failing to place Warning lights around the trench, and admits liability for damage to the truck, but denies liability for the loss of the goods. On cross-motions for summary judgment, how should the court rule? (A) Deny both motions, because there is evidence to support a finding that the construction company should have realized that its negligence could cr cri eate me an opportunity for a third party to commit a MBE Rkkk.AsEn QUESTIONS MBE MIXED PRACTICE 2 • (B) Grant the construction company's motion, because no one could have foreseen that the failure to place warning lights could result in the loss of a cargo of valuable goods. (C) Grant the construction company's motion, because the criminal acts of third persons were a superseding cause of the loss. (D) Grant the delivery company's motion, because but for the construction company's actions, the goods would not have been stolen. Question 33 - Constitutional Law Several public high school students asked the superintendent of the public school district whether the minister of a local church could deliver an interdenominational prayer at their graduation ceremony in the school auditorium. None of the students or their guests at graduation would be required to pray while the minister delivered the prayer. Would the minister's delivery of such a prayer at the public high school graduation be constitutional? (A) No, because it would be an unconstitutional establishment of religion. (B) No, because it would deny attendees who are not members of the minister's denomination the right to freely exercise their religion. (C) Yes, because none of the students or their guests would be required to pray at the graduation ceremony. (D) Yes, because the idea for the prayer originated with the students and not with school officials. Question 34 - Evidence At the defendant's trial for a gang-related murder, the prosecution introduced, as former testimony, a statement by a gang member who testified against the defendant at a preliminary hearing and has now invoked his privilege against self-incrimination. If the defendant now seeks to impeach the credibility of the gang member, which of the following is the court most likely to admit? (A) Evidence that the gang member had three misdemeanor convictions for assault. (B) Testimony by a psychologist that persons with the gang member's background have a tendency to fabricate. (C) Testimony by a witness that at the time the gang member testified, he was challenging the defendant's leadership role in the gang. (D) Testimony by a witness that the gang member is 39 MBE MIXED PRACTICE 2 EFTA00811448 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 a cocaine dealer. Question 35 - Criminal Law and Procedure A defendant was charged with manslaughter. At the preliminary hearing, the magistrate dismissed the charge on the grounds that the evidence was insufficient. The prosecutor then brought the case before a grand jury. After hearing the evidence presented by the prosecutor, the grand jury refused to return an indictment. The prosecutor waited a few months until a new grand jury had been impaneled and brought the case before that grand jury, which returned an indictment charging the defendant with manslaughter. The defendant moves to dismiss the indictment on double jeopardy grounds. Should the motion be granted? (A) No, because jeopardy had not attached. (B) No, because there has been no conviction or acquittal. (C) Yes, because any proceeding after the preliminary hearing would violate double jeopardy. (D) Yes, because bringing the case before the second grand jury was a violation of double jeopardy. Question 36 - Constitutional Law Congress passed a statute directing the United States Forest Service, a federal agency, to issue regulations to control campfires on federal public lands and to establish a schedule of penalties for those who violate the new regulations. The statute provided that the Forest Service regulations should "reduce, to the maximum extent feasible, all potential hazards that arise from campfires on Forest Service lands." The Forest Service issued the regulations and the schedule of penalties directed by Congress. The regulations include a rule that provides for the doubling of the fine for any negligent or prohibited use of fire if the user is intoxicated by alcohol or drugs. Which of the following is the best argument for sustaining the constitutionality of the Forest Service's rule providing for the fines? (A) The executive branch of government, of which the Forest Service is pan, has inherent rule- making authority over public lands. (B) The rule is issued pursuant to a valid exercise of Congress's power to delegate rule-making authority to federal agencies. (C) The rule is justified by a compelling governmental interest in safeguarding forest resources. • (D) The rule relates directly to law enforcement, which is an executive rather than legislative function, and hence it does not need specific congressional authorization. Question 37 - Evidence A defendant was charged with aggravated assault. At trial, the victim testified that the defendant beat her savagely, but she was not asked about anything said during the incident. The prosecutor then called a witness to testify is when the beating stopped, the victim screamed: dying-don't let [the defendant) get away with it!" Is the testimony of the witness concerning the victim's statement admissible? (A) No, because it is hearsay not within any exception. (B) No, because the victim was not asked about the statement. (C) Yes, as a statement under belief of impending death, even though the victim did not die. (D) Yes, as an excited utterance. Question 38 - Contracts A bakery offered a chef a permanent full-time job as a pastry chef at a salary of $2,000 per month. The chef agreed to take the position and to begin work in two weeks. In her employment application, the chef had indicated that she was seeking a permanent job. One week after the chef was hired by the bakery, a hotel offered the chef a position as a restaurant manager at a salary of $2,500 a month. The chef accepted and promptly notified the bakery that she would not report for work at the bakery. Is the bakery likely to prevail in a lawsuit against the chef for breach of contract? (A) No, because a contract for permanent employment would be interpreted to mean the chef could leave at any time. (8) No, because the position the chef took with the hotel was not substantially comparable to the one she had agreed to take with the bakery. (C) Yes, because the chefs acceptance of a permanent position meant that she agreed to leave the bakery only after a reasonable time. (D) Yes, because the chefs failure to give the bakery a chance to match the salary offered by the hotel breached the implied right of first refusal. Question 39- Real Property • ern nf irsTioNs -• 40 MBE MIXED PRACTICE; EFTA00811449 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A creditor received a valid judgment against a debtor and promptly and properly filed the judgment in the county. Two years later, the debtor purchased land in the county and promptly and properly recorded the warranty deed to it. Subsequently, the debtor borrowed $30,000 from his aunt, signing a promissory note for that amount, which note was secured by a mortgage on the land. The mortgage was promptly and properly recorded. The aunt failed to make a title search before making the loan. The debtor made no payment to the creditor and defaulted on the mortgage loan from his aunt. A valid judicial foreclosure proceeding was held, in which the creditor, the aunt, and the debtor were named parties. A dispute arose as to which lien has priority. A statute of the jurisdiction provides: "Any judgment properly filed shall, for 10 years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered." A second statute of the jurisdiction provides: "No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record." Who has the prior lien? (A) The aunt, because a judgment lien is subordinate to a mortgage lien. (B) The aunt, because she is a mortgagee under a purchase money mortgage. (C) The creditor, because its judgment was filed first. (D) The creditor, because the aunt had a duty to make a title search of the property. Question 40 - Torts The personnel director of an investment company told a job applicant during an interview that the company was worth millions of dollars and that the company's portfolio would triple in the next several months. The applicant was very excited about the company's prospects and accepted an offer to work for the company. Two days later, the applicant read in the newspaper that the investment company had tiled for bankruptcy reorganization. As a result of reading this news, the applicant suffered severe emotional distress but he immediately found another comparable position. Is the applicant likely to prevail in his action for negligent misrepresentation? (A) No, because the applicant did not suffer any physical injury or pecuniary loss. (B) No. because the personnel directors statement was Purely speculative. MBE REI.E.Ast Qt ES TIONS y. 4 ra (C) Yes, because the applicant relied on the personnel director's misrepresentations about the investment company. (D) Yes, because the personnel director should have foreseen that his misrepresentations would cause the applicant to be upset. Question 4! - Constitutional Law A city zoning ordinance requires anyone who proposes to operate a group home to obtain a special use permit from the city zoning board. The zoning ordinance defines a group home as a residence in which four or more unrelated adults reside. An individual applied for a special use permit to operate a group home for convicts during their transition from serving prison sentences to their release on parole. Although the proposed group home met all of the requirements for the special use permit, the zoning board denied the individual's application because of the nature of the proposed use. The individual sued the zoning board seeking declaratory and injunctive relief on constitutional grounds. Which of the following best states the appropriate burden of persuasion in this action? (A) Because housing is a fundamental right, the zoning board must demonstrate that denial of the permit is necessary to serve a compelling state interest. (B) Because the zoning board's action has the effect of discriminating against a quasi-suspect class in regard to a basic subsistence right, the zoning board must demonstrate that the denial of the permit is substantially related to an important state interest. (C) Because the zoning board's action invidiously discriminates against a suspect class, the zoning board must demonstrate that denial of the permit is necessary to serve a compelling state interest. (D) Because the zoning board's action is in the nature of an economic or social welfare regulation, the individual seeking the permit must demonstrate that the denial of the permit is not rationally related to a legitimate state interest. Question 42 - Criminal Law and Procedure State troopers lawfully stopped a driver on the turnpike for exceeding the speed limit by four miles per hour. One trooper approached the car to warn the driver to drive within the speed limit. The other trooper remained in the patrol car and ran a computer check of the car's license number. The computer check indicated that there was an outstanding warrant for the drivers arrest for unpaid traffic tickets. The 41 MBE MIXED PRACTICE 2 EFTA00811450 AMERIBAR BAR REVIEW • MBE MIXED PRACTICE 2 troopers then arrested the driver based on the warrant, and they proceeded to search the driver. During the search, they discovered a package of heroin in one of the driver's pockets. Later, it was learned that the driver had paid the outstanding traffic tickets 10 days earlier and that the warrant had been quashed, but the clerk of the court had failed to update the computer, which continued to list the warrant as outstanding. The driver was charged with unlawful possession of heroin. Her attorney has filed a motion to suppress the use of the heroin as evidence. Should the motion be granted? (A) No, because the troopers could reasonably rely on the computer report and the search was incident to arrest. (B) No, because troopers may lawfully search a driver incident to a valid traffic stop. (C) Yes, because there was no arrest for the traffic violation and no lawful arrest could be made on the basis of the warrant. (D) Yes, because there was no probable cause or reasonable suspicion to believe that the driver possessed drugs. Question 43 - Contracts A debtor owed a lender $1,500. The statute of limitations barred recovery on the claim. The debtor wrote to the lender, stating, "I promise to pay you $500 if you will extinguish the debt." The lender agreed. Is the debtor's promise to pay the lender $500 enforceable? (A) No, because the debtor made no promise not to plead the statute of limitations as a defense. (B) No, because there was no consideration for the debtor's promise. (C) Yes, because the debtor's promise provided a benefit to the lender. (13) Yes, because the debtor's promise to pay part of the barred antecedent debt is enforceable. Question 44 - Evidence A homeowner sued a plumber for damages resulting from the plumber's allegedly faulty installation of water pipes in her basement, causing flooding. At trial, the homeowner was prepared to testify that when she first detected the flooding, she turned off the water and called the plumber at his emergency number for help. The plumber responded, "('II come by tomorrow and redo the installation for free." Is the plumber's response admissible? (A) No, because it is an offer in compromise. (B) No, because it is hearsay not within any exception. (C) Yes, as a subsequent remedial measure. (D) Yes, as evidence of the plumber's fault. Question 45 - Real Property An investor purchased a tract of land, financing a large part of the purchase price by a loan from a business partner that was secured by a mortgage. The investor made the installment payments on the mortgage regularly for several years. Then the investor persuaded a neighbor to buy the land, subject to the mortgage to his partner. They expressly agreed that the neighbor would not assume and agree to pay the investors debt to the partner. The investor's mortgage to the partner contained a due-on-sale clause stating, "If Mortgagor transfers his/her interest without the written consent of Mortgagee first obtained, then at Mortgagee's option the entire principal balance of the debt secured by this Mortgage shall become immediately due and payable." However, without seeking his partner's consent, the investor conveyed the land to the neighbor, the deed stating in pertinent part " , , subject to a mortgage to (the partner]," and giving details and recording data related to the mortgage. The neighbor took possession of the land and made several mortgage payments, which the partner accepted. Now, however, neither the neighbor nor the investor has made the last three mortgage payments. The partner has sued the neighbor for the amount of the delinquent payments. In this action, for whom should the court render judgment? (A) The neighbor, because she did not assume and agree to pay the investors mortgage debt. (B) The neighbor, because she is not in privity of estate with the partner. (C) The partner, because the investor's deed to the neighbor violated the due-on-sale clause. (D) The partner, because the neighbor is in privity of estate with the partner. Question 46 - Constitutional Law A purchaser bought land in the mountain foothills just outside a resort town and planned to build a housing development there. Soon thereafter, the county in which the land was located unexpectedly adopted a regulation that, for the first time, prohibited all construction in several foothill and mountain _ Cuit-MIMS • 42 MBE MIXED PRACTICE 2 EFTA00811451 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 areas, including the area of the purchaser's property. The purpose of the county's regulation was "to conserve for future generations the unique natural wildlife and plant habitats" in the mountain areas. Since the adoption of the regulation, the purchaser has been unable to lease or sell the property at any price. Several realtors have advised the purchaser that the property is now worthless. The purchaser sued the county, claiming that the regulation has taken the purchaser's property and that the county therefore owes the purchaser just compensation. Is the court likely to rule in favor of the purchaser? (A) No, because the county did not take title to the property from the purchaser. (B) No, because the regulation has not caused or authorized any uninvited physical invasion or intrusion onto the property. (C) Yes, because the conservation objective of the county ordinance is not sufficiently compelling to justify the substantial diminution in the property value. (D) Yes, because the effect of the county's regulation is to deny the purchaser's investment-backed expectation and essentially all economically beneficial use of the property. Question 47 - Criminal Law and Procedure A woman who is a computer expert decided to dedicate herself to exposing persons who trafficked in child pornography. She posted a number of sexually oriented photographs on her web site. The file for each photograph contained an embedded Trojan horse program (a program that would allow the woman to enter the computer of anyone who downloaded the photograph). A man downloaded one of those photographs onto his personal computer. Using the embedded program, the woman entered the man's computer and found a file containing a pornographic photograph of a child. She copied the file and turned it over to a federal law enforcement agency. A federal agent told her that a successful prosecution would require more than one photograph and offered her a monetary reward for additional photographs leading to the man's conviction. The woman entered the defendant's computer again, and this time she found hundreds of child pornography photographs, which she turned over to the federal agency. The man is charged with multiple counts of violating federal child pornography statutes. He has moved to suppress the photographs that the woman discovered on his computer. The motion is based on both the Fourth Amendment and a federal statute without enn inpgintiessreioenption of electronic communication • The parties have stipulated that the woman's conduct in downloading photographs from the man's computer violated the interception statute. How should the court rule on the defendant's motion to suppress? (A) Deny the motion as to all photographs. (B) Grant the motion as to all photographs, because the woman acted without probable cause. (C) Grant the motion as to all photographs, because the woman violated the federal interception statute. (D) Grant the motion only as to the second set of photographs. Question 48 - Contracts A car dealer owed a bank $10,000, due on June I. The car dealer subsequently sold an automobile to a buyer at a price of $10,000, payable at $1,000 per month beginning on June 1. The car dealer then asked the bank whether the bank would accept payments of $1,000 per month for 10 months beginning June 1, without interest, in payment of the debt. The bank agreed to that arrangement and the car dealer then directed the buyer to make the payments to the bank. When the buyer tendered the first payment to the bank, the bank refused the payment, asserting that it would accept payment only from the car dealer. On June 2, the bank demanded that the car dealer pay the debt in full immediately. The car dealer refused to pay and the bank sued the car dealer to recover the $10,000. In this suit, which of the following arguments best supports the bank's claim for immediate payment? (A) The agreement to extend the time for payment was not in writing. (B) The car dealer could not delegate its duty to pay to the buyer. (C) The car dealer gave no consideration for the agreement to extend the time of payment. (D) The car dealers conduct was an attempted novation that the bank could reject. Question 49 - Evidence A defendant was charged in federal court with selling a controlled substance (heroin) in interstate commerce. At trial, the prosecutor introduced evidence that the defendant obtained the substance from a supplier in Kansas City and delivered it in Chicago. The defendant denied that the substance in question was heroin, but he introduced no contrary evidence on the issue of transportation. MBE RELEASED QUESTIONS 43 MBE MIXED PRACTICE 2 EFTA00811452 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 Which of the following instructions regarding judicial notice may the judge legitimately give the jury? (A) "If you find that the defendant obtained the drugs in Kansas City and delivered them to Chicago, I instruct you to find that the substance was sold in an interstate transaction." (B) "If you find that the defendant obtained the drugs in Kansas City and delivered them to Chicago, then the burden of persuasion is on the defendant to establish that the transaction was not interstate." (C) "I f you find that the defendant obtained the drugs in Kansas City and delivered them to Chicago, then you may, but you are not required to, find that the transaction was interstate in nature." (D) "I instruct you that there is a presumption that the substance was sold in an interstate transaction, but the burden of persuasion on that issue is still on the government." Question 50 - Torts An associate professor in the pediatrics department of a local medical school was denied tenure. He asked a national education lobbying organization to represent him in his efforts to have the tenure decision reversed. In response to a letter from the organization on the professor's behalf, the dean of the medical school wrote to the organization explaining truthfully that the professor had been denied tenure because of reports that he had abused two of his former patients. Several months later, after a thorough investigation, the allegations were proven false and the professor was granted tenure. He had remained working at the medical school at full pay during the tenure decision review process and thus suffered no pecuniary harm. In a suit for libel by the professor against the dean of the medical school, will the professor prevail? (A) No, because the professor invited the libel. (B) No, because the professor suffered no pecuniary loss. (C) Yes, because the dean had a duty to investigate the rumor before repeating iL (D) Yes, because the dean's defamatory statement was in the form of a writing. Question 51 - Constitutional Law A man bought an antique car from a car dealer in State A. Under State A law, a person who buys from such a dealer acquires good title, even if the property was stolen from a previous owner. The man showed the car at an antique car show in State B. A woman recognized the car as having been stolen from her. Under State B law, a person whose property is stolen may reclaim it, even if the current possessor is an innocent purchaser. The woman sued the man in a State B court to reclaim the car. The man defended, claiming that he had good title under the law of State A. Nevertheless, the State B court applied State B law, and the woman prevailed. The man did not appeal. The sheriff gave the woman possession of the car. Several months later, the woman drove the car to State A. The man brought a new suit against the woman, claiming that the State B court in the prior suit should have applied the State A law, which protected innocent purchasers. The woman appeared and moved to dismiss the suit. What should the State A court do? (A) Apply the federal law of sale of goods, because the car has moved in interstate commerce. (B) Apply the State A law, because the car is currently located in State A. (C) Dismiss the suit, because the State A court must give full faith and credit to the State B judgment. (D) Remove the case to federal court, because the car has moved in interstate commerce, and therefore the case raises a federal question. Question 52 - Real Property A seller and a purchaser signed a contract for the sale of a 60-year-old house. The contract required a warranty deed to be given at closing. The contract was silent regarding the condition of the house, and the purchaser did not ask. The purchaser received a warranty deed with all covenants of title at the closing and promptly recorded the deed. Approximately one month after the closing, the furnace in the house stopped working, the basement flooded, and the roof leaked so badly that the second floor could not be occupied. The seller, when told of the house's condition, was genuinely surprised. There is no applicable statute. The purchaser has sued the seller for damages. Will the purchaser likely be successful? (A) Yes, because with a conveyance of residential real property, a warranty of fitness is implied. (B) Yes, based on the covenants of title contained in the deed the purchaser received. (C) No, because the seller gave no warranty regarding the condition of the house. (O) No, because of the doctrine of merger. Question 53 - Torts M RR RELEASED QUESTIONS 44 MBE MIXED PRACTICE 2 EFTA00811453 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A dentist was anesthetizing a patient's gum before pulling a tooth. Although the dentist used due care, the hypodermic needle broke off in the patient's gum, causing injury. The needle broke because of a manufacturing defect that the dentist could not have detected. Is the patient likely to recover damages in an action against the dentist based on strict products liability and malpractice? (A) No, on neither basis. (B) Yes, based on malpractice, but not on strict products liability. (C) Yes, based on strict products liability, but not on malpractice. (D) Yes, on both bases. Question 54 - Contracts A bottling company sent a purchase order to a wholesaler that stated, "Ship 100,000 empty plastic bottles at the posted price." Two days after receipt of this purchase order, the wholesaler shipped the bottles and the bottling company accepted delivery of them. A week after the bottles were delivered, the bottling company received the wholesaler's acknowledgement form, which included a provision disclaiming consequential damages. After using the bottles for two months, the bottling company discovered a defect in the bottles that caused its products to leak from them. The bottling company recalled 10,000 of the bottles containing its product, incurring lost profits of $40,000. Assuming all appropriate defenses are seasonably raised, will the bottling company succeed in recovering $40,000 in consequential damages from the wholesaler? (A) No, because buyers are generally not entitled to recover consequential damages. (B) No, because the bottling company's acceptance of the goods also constituted an acceptance of the terns included in the wholesaler's acknowledgement. (C) Yes, because the disclaimer of consequential damages is unconscionable. (0) Yes, because the wholesaler's acknowledgement did not alter the terms of an existing contract between the parties. Question 55 - Criminal Law and Procedure A state statute defines murder in the first degree as knowingly causing the death of another person after deliberation upon the matter." Second-degree murder is defined as "knowingly causing the death of another person." Manslaughter is defined as at common law. Deliberation is defined as "cool reflection for any length of time, no matter how brief." The defendant, despondent and angry over losing his job, was contemplating suicide. He took his revolver, went to a bar, and drank until he was very intoxicated. A customer on the next stool was telling the bartender how it was necessary for companies to downsize and become more efficient in order to keep the economy strong. The defendant turned to him and said, "Why don't you shut the hell up." The customer responded, "This is a free country and I can say what I want," all the while shaking his finger at the defendant. The finger-shaking, combined with his already bad disposition and the alcohol, enraged the defendant. Trembling with fury, he snatched his revolver from his pocket and shot and killed the customer. What crime did the defendant commit? (A) Manslaughter, because there was a reasonable explanation for his becoming enraged. (B) Murder in the first degree, because deliberation can take place in an instant. (C) Murder in the first degree, because he contemplated taking a human life before becoming intoxicated. (D) Murder in the second degree, because he knowingly caused the customer's death without deliberation. Question 56 - Constitutional Law A state statute requires, without exception, that a woman under the age of 18 notify one of her parents at least 48 hours before having an abortion. A proper lawsuit challenges the constitutionality of this state statute. In that suit, should the court uphold the constitutionality of the statute? (A) No, because a 48-hour waiting period is excessively long and, therefore, it imposes an undue burden on a woman's right to procure an abortion. (B) No, because the state law does not provide a bypass procedure that would allow a court to authorize a minor to obtain an abortion without prior parental notification under appropriate circumstances. (C) Yes, because parents' rights to supervise their minor daughter's health care outweighs any individual right she may have. (D) Yes, because such parental notification and waiting-period requirements do not impose an MBE RELEASED QUESTIONS 45 MBE MIXED PRACTICE 2 EFTA00811454 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 undue burden on a minor's right to procure an abortion. Question 57 - Real Property A businessman owned a hotel, subject to a mortgage securing a debt he owed to a bank. The businessman later acquired a nearby parking garage, financing a part of the purchase price by a loan from a financing company, secured by a mortgage on the parking garage. Two years thereafter, the businessman defaulted on the loan owed to the bank, which caused the full amount of that loan to become immediately due and payable. The bank decided not to foreclose the mortgage on the hotel at that time, but instead properly sued for the full amount of the defaulted loan. The bank obtained and properly filed a judgment for that amount. A statute of the jurisdiction provides: "Any judgment properly filed shall, for ten years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered." There is no other applicable statute, except the statute providing for judicial foreclosure of mortgages, which places no restriction on deficiency judgments. Shortly thereafter, the bank brought an appropriate action for judicial foreclosure of its first mortgage on the hotel and of its judgment lien on the parking garage. The financing company was joined as a party defendant, and appropriately counterclaimed for foreclosure of its mortgage on the parking garage, which was also in default. AU procedures were properly followed and the confirmed foreclosure sales resulted in the following: The net proceeds of the sale of the hotel to a third party were $200,000 less than the bank's mortgage balance. The net proceeds of the sale of the parking garage to a fourth party were $200,000 more than the financing company's mortgage balance. How should the $200,000 surplus arising from the bid on the parking garage be distributed? (A) It should be paid to the bank. (B) It should be paid to the businessman. (C) It should be paid to the financing company. (D) It should be split equally between the bank and the financing company. Question 58 - Evidence In a personal injury case, the plaintiff sued a retail store for injuries she sustained from a fall in the store. The plaintiff alleged that the store negligently allowed its entryway to become slippery due to snow tracked in from the sidewalk. When the plaintiff threatened to sue, the store's manager said, "I know that there was slush on that marble entry, but I think your four-inch-high heels were the real cause of your fall. So let's agree that we'll pay your medical bills, and you release us from any claims you might have." The plaintiff refused the offer. At trial, the plaintiff seeks to testify to the manager's statement that "there was slush on that marble entry." Is the statement about the slush on the floor admissible? (A) No, because it is a statement made in the course of compromise negotiations. (B) No, because the manager denied that the slippery condition was the cause of the plaintiffs fall. (C) Yes, as an admission by an agent about a matter within the scope of his authority. (D) Yes, because the rule excluding offers of compromise does not protect statements of fact made during compromise negotiations. Question 59 - Torts In a civil action, the plaintiff sued a decedent's estate to recover damages for the injuries she suffered in a collision between her car and one driven by the decedent. At trial, the plaintiff introduced undisputed evidence that the decedent's car swerved across the median of the highway, where it collided with an oncoming car driven by the plaintiff. The decedent's estate introduced undisputed evidence that, prior to the car's crossing the median, the decedent suffered a fatal heart attack, which she had no reason to foresee, and that, prior to the heart attack, the decedent had been driving at a reasonable speed and in a reasonable manner. A statute makes it a traffic offense to cross the median of a highway. In this case, for whom should the court render judgment? (A) The decedent's estate, because its evidence is undisputed. (B) The decedent's estate, because the plaintiff has not established a prima facie case of liability. (C) The plaintiff, because the accident was of a type that does not ordinarily happen in the absence of negligence on the actor's part. (D) The plaintiff, because the decedent crossed the median in violation of the statute. Question 60 - Constitutional Law A group of students at a state university's law school wished to debate the future of affirmative action in that state and at that law school. For this debate they requested the use of a meeting room in the law school _ ".•nrwrinAIC • 46 MBE MIXED PRACTICE 2 EFTA00811455 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 that is available on a first-come, first-served basis for extracurricular student use. Speakers presenting all sides of the issue were scheduled to participate. The law school administration refused to allow the use of any of its meeting rooms for this purpose solely because it believed that "such a debate, even if balanced, would have a negative effect on the morale of the law school community and might cause friction among the students that would disrupt the institution's educational mission." Is the refusal of the law school administration to allow the use of its meeting room for this purpose constitutional? (A) No, because the law school administration cannot demonstrate that its action was necessary to vindicate a compelling state interest. (B) No, because the law school administration cannot demonstrate that its action was rationally related to a legitimate state interest. (C) Yes, because the law school administration's only concern was the adverse effect of such a discussion of affirmative action on the immediate audience and the mission of the institution. (D) Yes, because the law students do not have a right to use a state-owned law school facility for a meeting that is not organized and sponsored by the law school itself. Question 61 - Real Property A fee-simple landowner lawfully subdivided his land into 10 large lots. The recorded subdivision plan imposed no restrictions on any of the 10 lots. Within two months after recording the plan, the landowner conveyed Lot I to a buyer, by a deed that contained no restriction on the lot's use. There was then a lull in sales. Two years later, the real estate market in the state had generally improved and, during the next six months, the landowner sold and conveyed eight of the remaining nine lots. In each of the eight deeds of conveyance, the landowner included the following language: "It is a term and condition of this conveyance, which shall be a covenant running with the land for the benefit of each of the 10 lots [with an appropriate reference to the recorded subdivision plan], that for 15 years from the date of recording of the plan, no use shall be made of the premises herein conveyed except for single-family residential Purposes." The buyer of Lot I had actual knowledge .of what the landowner had done. The landowner ded the quoted language in part because the -420Nng ordinance of the municipality had been fiPI' amended a Year earlier to permit professional offices lipony residential zone. Shortly after the landowner's most recent sale, when he owned only one unsold lot, the buyer of Lot I constructed a one-story house on Lot I and then conveyed Lot I to a doctor. The deed to the doctor contained no reference to any restriction on the use of Lot I. The doctor applied for an appropriate certificate of occupancy to enable her to use a part of the house on Lot I as a medical office. The landowner, on behalf of himself as the owner of the unsold lot, and on behalf of the other lot owners, sued to enjoin the doctor from carrying out her plans and to impose the quoted restriction on Lot I. Who is likely to prevail? (A) The doctor, because Lot I was conveyed without the inclusion of the restrictive covenant in the deed to the first buyer and the subsequent deed to the doctor. (B) The doctor, because zoning ordinances override private restrictive covenants as a matter of public policy. (C) The landowner, because the doctor, as a sucnccor in interest to the first buyer, is estopped to deny that Lot I remains subject to the zoning ordinance as it existed when Lot I was first conveyed by the landowner to the first buyer. (D) The landowner, because with the first buyer's knowledge of the facts, Lot I became incorporated into a common scheme. Question 62 - Contracts A seller and a buyer have dealt with each other in hundreds of separate grain contracts over the last five years. In performing each contract, the seller delivered the grain to the buyer and, upon delivery, the buyer signed an invoice that showed an agreed upon price for that delivery. Each invoice was silent in regard to any discount from the price for prompt payment. The custom of the grain trade is to allow a 2% discount from the invoice price for payment within 10 days of delivery. In all of their prior transactions and without objection from the seller, the buyer took I5 days to pay and deducted 5% from the invoice price. The same delivery procedure and invoice were used in the present contract as had been used previously. The present contract called for a single delivery of wheat at a price of 5300,000. The seller delivered the wheat and the buyer then signed the invoice. On the third day after delivery, the buyer received the following note from the seller: "Payment in full in accordance with signed invoice is due immediately. No discounts permitted." s/Sel ler. Which of the following statements concerning these facts is most accurate? E RELEASED Q u Es-I" o N s 47 MBE MIXED PRACTICE 2 EFTA00811456 AMERIBAR BAR REVIEW • MBE MIXED PRACTICE 2 (A) The custom of the trade controls, and the buyer is entitled to take a 2% discount if he pays within 10 days. (B) The parties' course of dealing controls, and the buyer is entitled to take a 5% discount if he pays within 15 days. (C) The seller's retraction of his prior waiver controls, and the buyer is entitled to no discount. (D) The written contract controls, and the buyer is entitled to no discount because of the parol evidence rule. Question 63 - Torts A bus passenger was seated next to a woman whom he did not know. The woman stood to exit the bus, leaving a package on the seat. The passenger lightly tapped the woman on the back to get her attention and to inform her that she had forgotten the package. Because the woman had recently had back surgery, the tap was painful and caused her to twist and seriously injure her back. If the woman sues the passenger to recover for the back injury, will she prevail? (A) No, because she is presumed to have consented to the ordinary contacts of daily life. (B) No, because she was not put in apprehension because of the touching. (C) Yes, because the passenger intentionally touched her. (D) Yes, because the passenger's intentional touching seriously injured her. Question 64 - Constitutional Law The president issued an executive order in an effort to encourage citizens to use the metric (Celsius) system of temperatures. Section I of the executive order requires the United States Weather Bureau, a federal executive agency, to state temperatures only in Celsius in all weather reports. Section 2 of the executive order requires all privately owned federally licensed radio and television stations giving weather reports to report temperatures only in Celsius. No federal statute is applicable. Is the president's executive order constitutional? (A) Section 1 is constitutional, but Section 2 is not. (B) Section 2 is constitutional, but Section 1 is not. (C) Sections 1 and 2 are constitutional. (D) Sections I and 2 are unconstitutional. Question 65 - Evidence • In a civil action for misrepresentation in the sale of real estate, the parties contested whether the defendant was licensed by the State Board of Realtors, a public agency established by statute to license real estate brokers. The defendant testified she was licensed. On rebuttal, the plaintiff offers a certification, bearing the seal of the secretary of the State Board of Realtors. The certification states that the secretary conducted a thorough search of the agency's records and all relevant databases, and that this search uncovered no record of a license ever having been issued to the defendant, The certification is signed by the secretary. Is the certification that there was no record of a license issuance admissible? (A) No, because it is hearsay not within any exception. (B) No, because the writing was not properly authenticated. (C) Yes, for the limited purpose of impeaching the defendant. (D) Yes, to prove the nonexistence of a public record. Question 66 - Real Property A seller entered into a written contract to sell a tract of land to an investor. The contract made no mention of the quality of title to be conveyed. Thereafter, the seller and the investor completed the sale, and the seller delivered a warranty deed to the investor. Soon thereafter, the value of the land increased dramatically. The investor entered into a written contract to sell the land to a buyer. The contract between the investor and the buyer expressly provided that the investor would convey a marketable title. The buyer's attorney discovered that the title to the land was not marketable, and had not been marketable when the original seller conveyed to the investor. The buyer refused to complete the sale. The investor sued the original seller on multiple counts. One count was for breach of the contract between the seller and the investor for damages resulting from the seller's failure to convey to the investor marketable title, resulting in the loss of the sale of the land to the subsequent buyer. Who is likely to prevail on this count? (A) The investor, because the law implies in the contract a covenant that the title would be marketable. (B) The investor, because the original seller is liable for all reasonably foreseeable damages. (C) The original seller, because her contract • MBE RELEASED QUESTIONS 48 MBE MIXED PRACTICE2 EFTA00811457 AMERIBAR BAR REVIEW obligations as to title merged into the deed. (D) The original seller, because she did not expressly agree to convey marketable title. Question 67 - Torts A consumer became physically ill after drinking part of a bottle of soda that contained a large decomposed snail. The consumer sued the store from which she bought the soda to recover damages for her injuries. The parties agreed that the snail was put into the bottle during the bottling process, over which the store had no control. The parties also agreed that the snail would have been visible in the bottle before the consumer opened it. Will the consumer prevail in her action against the store? (A) No, because the consumer could have seen the snail in the bottle. (B) No, because the store was not responsible for the bottling process. (C) Yes, because the consumer was injured by a defective product sold to her by the store. (D) Yes, because the store had exclusive control over the bottle before selling it to the consumer. Question 68 - Evidence A defendant is on trial for attempted fraud. The state charges that the defendant switched a price tag from a cloth coat to a more expensive fur-trimmed coat and then presented the latter for purchase at the cash register. The defendant testified in her own behalf that the tag must have been switched by someone else. On cross-examination, the prosecutor asks whether the defendant was convicted on two prior occasions of misdemeanor fraud in the defrauding of a retailer by the same means of switching the price tag on a fur-trimmed coat. Is the question about the convictions for the earlier crimes proper? (A) It is not proper either to impeach the defendant or to prove that the defendant committed the crime. (B) It is proper both to prove that the defendant committed the crime and to impeach the defendant. (C) It is proper to impeach the defendant, but not to prove that the defendant committed the crime. (D) It is proper to prove the defendant committed the crime, but not to impeach the defendant. Question 69- Criminal Law and Procedure MBE REI.F:•%SED QUESTIONS MBE MIXED PRACTICE 2 • In a criminal trial, the evidence showed that the defendant's neighbor tried to kill the defendant by stabbing him. The defendant ran to his room, picked up a gun, and told his neighbor to back off. The neighbor did not, but continued her attack and stabbed him in the arm. The defendant then shot the neighbor twice. The neighbor fell to the floor and lay quietly moaning. After a few seconds, the defendant fired a third shot into the neighbor. The jury found that the neighbor died instantly from the third shot and that the defendant was no longer in fear of being attacked by her. The defendant could properly be convicted of which of the following degrees of criminal homicide, if any? (A) Attempted murder only. (B) Manslaughter only. (C) Murder or manslaughter. (D) No degree of criminal homicide. Question 70 - Real Property When a homeowner became ill, he properly executed a deed sufficient to convey his home to his nephew, who was then serving overseas in the military. Two persons signed as witnesses to qualify the deed for recordation under an applicable statute. The homeowner handed the deed to his nephew's friend and said, "I want [the nephew] to have my home. Please take this deed for him." Shortly thereafter, the nephew's friend learned that the homeowner's death was imminent. One day before the homeowner's death, the nephew's friend recorded the deed. The nephew returned home shortly after the homeowner's death. The nephew's friend brought him up to date, and he took possession of the home. The homeowner died intestate, leaving a daughter as his sole heir. She asserted ownership of his home. The nephew brought an appropriate action against her to determine title to the home. The law of the jurisdiction requires only two witnesses for a will to be properly executed. If the court rules for the nephew and against the daughter, what is the most likely explanation? (A) The deed was delivered when the homeowner handed it to the nephew's friend. (8) The delivery of the deed was accomplished by the recording of the deed. (C) The homeowner's death consummated a valid gift causa mortis to the nephew. (D) The homeowner's properly executed deed was effective as a testamentary document. Question 71 - Criminal Law and Procedure 49 MBE MIXED PRACTICE 2 EFTA00811458 AMERIBAR BAR REVIEW • A woman drove her car through the drive-through lane of a fast-food restaurant in the afternoon. When she reached the microphone used to place orders, she said, "There's a man across the street with a rifle. He can see everything you do. If you do not do exactly what I tell you, he will shoot you. Put all the money from the register into a sack and give it to me when I drive up." The clerk did not see anyone across the street and was unsure whether anyone was there. However, unwilling to risk harm to himself, he put $500 in a paper bag and handed it to the woman when she drove up to the delivery window. The woman drove off with the money but was arrested a short time later. She had lied about the man with a rifle and had acted alone. Of what crime or crimes can the woman be convicted? (A) Embezzlement. (B) Obtaining property by false pretenses. (C) Robbery and larceny. (O) Robbery or larceny. Question 72 - Tons A four-year-old child sustained serious injuries when a playmate pushed him from between two parked cars into the street, where he was struck by a car. The child, by his representative, sued the driver of the car, the playmate's parents, and his own parents. At trial, the child's total injuries were determined to be $100,000. The playmate's parents were determined to be 20% at fault because they had failed to adequately supervise her. The driver was found to be 50% at fault. The child's own parents were determined to be 30% at fault for failure to adequately supervise him. The court has adopted the pure comparative negligence doctrine, with joint and several liability, in place of the common-law rules relating to plaintiff's fault. In addition, the common-law doctrines relating to intra-family liability have been abrogated. How much, if anything, is the child's representative entitled to recover from the driver? (A) $30,000 (B) $50,000 (C) $100,000 (D) Nothing Question 73 - Constitutional Law The childhood home of a former U.S. president is part of a national park located in a city. The National Park Service entered into a contract with an MBE MIXED PRACTICE 2 • independent antique collector to acquire items owned by residents of the city during the president's lifetime. According to the contract, the collector purchases items and then sells them to the Park Service at a price equal to the collector's cost plus a 10% commission. Purchases by antique collectors are ordinarily subject to the sales tax of the state in which the city is located. The collector files suit in state court to enjoin collection of the tax on these purchases, claiming that the sales tax is unconstitutional as applied to them. Should the state court issue the injunction? (A) No, because as the purchaser of these antiques, the collector rather than the federal government is liable for the tax. (B) No, because the suit is within the exclusive jurisdiction of the federal courts. (C) Yes, because the federal government is contractually obligated to pay the amount of the sales tax when it covers the collector's cost of these antiques. (D) Yes, because under the supremacy clause, the federal program to acquire these antiques preempts the state sales tax on the purchase of these items. Question 74 - Evidence The defendant, a young doctor, is charged with falsely claiming deductions on her federal income tax return. At trial, a witness testified for the defendant that she has a reputation in the community for complete honesty. After a sidebar conference at which the prosecutor gave the judge a record showing that the defendant's medical school had disciplined her for altering her transcript, the prosecutor proposes to ask the witness on cross- examination: "Have you ever heard that the defendant falsified her medical school transcript?" Is the prosecutor's question proper? (A) No, because it calls for hearsay not within any exception. (B) No, because its minimal relevance on the issue of income tax fraud is substantially outweighed by the danger of unfair prejudice. (C) Yes, because an affirmative answer will be probative of the defendant's bad character for honesty and, therefore, her guilt. (D) Yes, because an affirmative answer will impeach the witness's credibility. Question 75 - Torts MBE RELEASED QUESTIONS 50 MBE MIXED PRACTICE 2 EFTA00811459 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 A homeowner owned a large poisonous snake which had been defanged and was kept in a cage. A storm damaged the homeowner's house and the snake's cage, allowing it to escape. During the cleanup after the storm, a volunteer worker came across the snake. The worker tried to run away from the snake and fell, breaking his arm. In a suit by the worker against the homeowner based on strict liability in tort to recover for his injury, will the worker prevail? (A) No, because the snake's escape was caused by a force of nature. (B) No, because the worker should have anticipated an injury during his volunteer work. (C) Yes, because the homeowner did not take adequate precautions to secure the snake. (D) Yes, because the worker's injury was the result of his fear of the escaped snake. Question 76 - Real Property A buyer validly contracted in writing to buy land from a seller. The contract had no contingencies and was silent as to risk of loss if there were damage to, or destruction of, property improvements between contract and closing, and as to any duty to carry insurance. As soon as the parties signed the contract, the seller (who had already moved out) canceled her insurance covering the land. The buyer did not know this and did not obtain insurance. A few days later, three weeks before the agreed closing date, the building on the land was struck by lightning and burned to the ground. There is no applicable statute. In an appropriate action, the buyer asserted the right to cancel the contract and to recover his earnest money. The seller said the risk of fire loss passed to the buyer before the fire, so the buyer must perform. If the seller prevails, what is the most likely explanation? (A) Once the parties signed the contract, only the buyer had an insurable interest and so could have protected against this loss. (3) The buyer's constructive possession arising from the contract gave him the affirmative duty of protecting against loss by fire. (C) The seller's cancellation of her casualty insurance practically construed the contract to transfer the risk of loss to the buyer. (Di Upon execution of the contract, the buyer became the equitable owner of the land under the doctrine of equitable conversion. Question 77 - Criminal Law and Procedure A customer asked to see an expensive watch in a jewelry store. In conversation with the clerk, the customer falsely claimed to be the son of the mayor. When handed the watch, he asked if he could put it on, walk around a bit so he could see how it felt on his wrist, and then briefly step outside to observe it in natural light. The clerk agreed, saying, "I know I can trust someone like you with the merchandise." The customer walked out of the store wearing the watch and never returned. A week later, the clerk was at a gathering when she spotted the customer wearing the watch. She told him that he must either pay for the watch or give it back. He hissed, "I'll knock your block off if you mess with me." Intimidated, the clerk backed off. The following list of crimes is in descending order of seriousness. What is the most serious crime the customer committed? (A) Robbery. (B) Larceny. (C) False pretenses. (D) Embezzlement. Question 78 - Evidence In a civil action for breach of an oral contract, the defendant admits that there had been discussions, but denies that he ever entered into an agreement with the plaintiff. Which of the following standards of admissibility should be applied by the court to evidence proffered as relevant to prove whether a contract was formed? (A) Whether a reasonable juror would find the evidence determinative of whether the contract was or was not formed. (B) Whether the evidence has any tendency to make the fact of contract formation more or less probable than without the evidence. (C) Whether the evidence is sufficient to prove, absent contrary evidence, that the contract was or was not formed. (D) Whether the evidence makes it more likely than not that a contract was or was not formed. Question 79 - Contracts A mother, whose adult son was a law school graduate, contracted with a tutor to give the son a bar exam preparation course. "If my son passes the bar exam," the mother explained to the tutor, "he has been promised a job with a law firm that will pay $55,000 a year." The tutor agreed to do the work for $5,000, although the going rate was $6,000. Before m BE RI% I %INF I) QUESTIONS 51 MBE MIXED PRACTICE 2 EFTA00811460 AMERIBAR BAR REVIEW • MBE MIXED PRACTICE 2 the instruction was to begin, the tutor repudiated the contract. Although the mother or the son reasonably could have employed, for $6,000, an equally qualified instructor to replace the tutor, neither did so. The son £ailed the bar exam and the law firm refused to employ him. It can be shown that had the son received the instruction, he would have passed the bar exam. If the mother and the son join as parties plaintiff and sue the tutor for breach of contract, how much, if anything, are they entitled to recover? (A) $1,000, because all other damages could have been avoided by employing another equally qualified instructor. (B) $55,000, because damages of that amount were within the contemplation of the parties at the time they contracted. (C) Nominal damages only, because the mother was not injured by the breach and the tutor made no promise to the son. (D) Nothing, because neither the mother nor the son took steps to avoid the consequences of the tutor's breach. Question 80 - Constitutional Law A federal statute required the National Bureau of Standards to establish minimum quality standards for all beer sold in the United States. The statute also provided that public proceedings must precede adoption of the standards, and that once they were adopted, the standards would be subject to judicial review. No standards have yet been adopted. Several officials of the National Bureau of Standards have indicated their personal preference for beer produced by a special brewing process commonly referred to as pasteurization. However, these officials have not indicated whether they intend to include a requirement for pasteurization in the minimum beer quality standards to be adopted by the Bureau. A brewery that produces an unpasteurized beer believes that its brewing process is as safe as pasteurization. The brewery is concerned that, after the appropriate proceedings, the Bureau may adopt quality standards that will prohibit the sale of any unpasteurized beer. As a result, the brewery sued in federal district court to enjoin the Bureau from adopting any standards that would prohibit the sale of unpasteurized beer in this country. How should the district court dispose of the suit? (A) Determine whether the Bureau could reasonably believe that pasteurization is the safest process by which to brew beer, and if the Bureau could reasonably believe that, refuse to issue the injunction against the Bureau. (B) Determine whether the process used by the brewery is as safe as pasteurization and, if it is, issue the injunction against the Bureau. (C) Refuse to adjudicate the merits of the suit at this time and stay the action until the Bureau has actually issued beer quality standards. (D) Refuse to adjudicate the merits of the suit, because it does not involve a justiciable case or controversy. Question 81 - Contracts A landowner entered into a single contract with a builder to have three different structures built on separate pieces of property owned by the landowner. Each structure was distinct from the other two and the parties agreed on a specific price for each. After completing the first structure in accordance with the terms of the contract, the builder demanded payment of the specified price for that structure. At the same time, the builder told the landowner that the builder was "tired of the construction business" and would not even begin the other two structures. The landowner refused to pay anything to the builder. Is the builder likely to prevail in a suit for the agreed price of the first structure? (A) No, because substantial performance is a constructive condition to the landowner's duty to pay at the contract rate. (B) No, because the builder's cessation of performance without legal excuse is a willful breach of the contract. (C) Yes, because the contract is divisible, and the landowner will be required to bring a separate claim for the builder's failure to complete the other two structures. (D) Yes, because the contract is divisible, but the landowner will be able to deduct any recoverable damages caused by the builder's failure to complete the contract. Question 82 - Real Property An uncle was the record title holder of a vacant tract of land. He often told friends that he would leave the land to his nephew in his will. The nephew knew of these conversations. Prior to the uncle's death, the nephew conveyed the land by warranty deed to a woman for $10,000. She did not conduct a title search of the land before she accepted the deed from the nephew. She promptly and properly recorded her deed. Last month, the uncle died, leaving the land to the nephew in his duly probated will. Both the "nr , n n, vAcvn IFSTIONS 52 MBE MIXED PRACTICE2 EFTA00811461 AMERIBAR BAR REVIEW MBE MIXED PRACTICE 2 • nephew and the woman now claim ownership of the land. The nephew has offered to return the $10,000 to the woman. Who has title to the land? (A) The nephew, because at the time of the deed to the woman, the uncle was the owner of record. (B) The nephew, because the woman did not conduct a title search. (C) The woman, because of the doctrine of estoppel by deed. (D) The woman, because she recorded her deed prior to the uncle's death. Question 83 - Torts A customer fell and injured himself when he slipped on a banana peel while shopping at a grocers store. The banana peel was fresh and clean except for a mark made by the heel of the customer's shoe. In an action brought by the customer against the grocer, these are the only facts in evidence. Should the trial judge permit the case to go to the jury? (A) No, because the customer had an obligation to watch where he stepped. (B) No, because there is not a reasonable basis for inferring that the grocer knew or should have known of the banana peel. (C) Yes, because it is more likely than not that the peel came from a banana offered for sale by the grocer. (0) Yes, because the grocer could foresee that a customer might slip on a banana peel. Question 84 - Constitutional Law The United States Congress enacted a federal statute providing that any state may "require labeling to show the state or other geographic origin of citrus. fruit that is imported into the receiving state." Pursuant to the federal statute, a state that produced large quantities of citrus fruit enacted a law requiring all citrus fruit imported into the state to be stamped with a two-letter postal abbreviation signifying the state of the fruit's origin. The law did not impose any such requirement for citrus fruit grown within the slate. When it adopted the law, the state legislature declared that its purpose was to reduce the risks of infection of local citrus crops by itinerant diseases that have been found to attack citrus fruit. A national association of citrus growers sued to have the state law declared unconstitutional. The association claims that the law is prohibited by the negative implications MBE RELEAsEu QuesrioNS of the commerce clause of the Constitution. • Which of the following is the best argument in favor of the state's effort to have this lawsuit dismissed? (A) Any burden on interstate commerce imposed by the state law is outweighed by a legitimate state interest. (B) Congress has the authority to authorize specified state regulations that would otherwise be prohibited by the negative implications of the commerce clause, and it has done so in this situation. (C) The state law does not discriminate against out- of-state citrus growers or producers. (D) The state law furthers a legitimate state interest, the burden it imposes on interstate commerce is only incidental, and the state's interest cannot be satisfied by other means that are less burdensome to interstate commerce. Question 85 - Contracts In financial straits and needing $4,000 immediately, a nephew orally asked his uncle for a $4,000 loan. The uncle replied that he would lend the money to the nephew only if the nephew's mother "guaranteed" the loan. At the nephew's suggestion, the uncle then telephoned the nephew's mother, told her about the loan, and asked if she would "guarantee" it. She replied, "Surely. Lend my son the $4,000 and I'll repay it if he doesn't." The uncle then lent $4,000 to the nephew, an amount the nephew orally agreed to repay in six weeks. The next day, the nephew's mother wrote to him and concluded her letter with the words, "Son, I was happy to do you a favor by promising your uncle I would repay your six-week $4,000 loan if you don't. is/ Mother." Neither the nephew nor his mother repaid the loan when it came due and the uncle sued the mother for breach of contract. In that action, the mother raised the statute of frauds as her only defense. Will the mothers statute-of-frauds defense be successful? (A) No, because the amount of the loan was less than $5,000. (B) No, because the mother's letter satisfies the statute-of-frauds requirement. (C) Yes, because the mothers promise to the uncle was oral. . (D) Yes, because the nephew's promise to the uncle was oral. Question 86 - Criminal Law and Procedure 53 MBE MIXED PRACTICE 2 EFTA00811462 AMERIBAR BAR REVIEW 111, MBE MIXED PRACTICE 2 After a liquor store was robbed, the police received an anonymous telephone call naming a store employee as the perpetrator of the robbery. Honestly believing that their actions were permitted by the U.S. Constitution, the police talked one of the employee's neighbors into going to the employee's home with a hidden tape recorder to engage him in a conversation about the crime. During the conversation, the employee admitted committing the robbery. The employee was charged in state court with the robbery. He moved to suppress the recording on the grounds that the method of obtaining it violated his constitutional rights under both the state and federal constitutions. Assume that a clear precedent from the state supreme court holds that the conduct of the police in making the recording violated the employee's rights under the state constitution, and that the exclusionary rule is the proper remedy for this violation. Should the court grant the employee's motion? (A) No, because the employee's federal constitutional rights were not violated, and this circumstance overrides any state constitutional provisions. (B) No, because the police were acting in the good- faith belief that their actions were permitted by the federal Constitution. (C) Yes, because the making of the recording violated the state constitution. (D) Yes, because use of the recording would violate the neighbor's federal constitutional rights. Question 87 - Evidence At a civil trial for slander, the plaintiff showed that the defendant had called the plaintiff a thief. In defense, the defendant called a witness to testify, "I have been the plaintiffs neighbor for many years, and people in our community generally have said that he is a thief." Is the testimony concerning the plaintiff's reputation in the community admissible? (A) No, because character is an essential element of the defense, and proof must be made by specific instances of conduct. (B) Yes, to prove that the plaintiff is a thief, and to reduce or refute the damages claimed, (C) Yes, to prove that the plaintiff is a thief, but not on the issue of damages. (D) Yes, to reduce or refute the damages claimed, but not to prove that the plaintiff is a thief. Question 88 - Torts • A law student rented a furnished apartment. His landlord began to solicit his advice about her legal affairs, but he refused to provide it. The landlord then demanded that he vacate the apartment immediately. The landlord also engaged in a pattern of harassment, calling the student at home every evening and entering his apartment without his consent during times when he was at school. During these unauthorized visits she removed the handles from the bathroom and kitchen sinks, but did not touch anything belonging to the student. The lease has a year to run, and the student is still living in the apartment. The student has sued the landlord for trespass to land. Is he likely to prevail? (A) No, because he has no standing to sue for trespass. (B) No, because the landlord caused no damage to his property. (C) Yes, for compensatory damages only. (D) Yes, for injunctive relief, compensatory damages, and punitive damages. Question 89 - Contracts On May I, an uncle mailed a letter to his adult nephew that stated: "I am thinking of selling my pickup truck, which you have seen and ridden in. I would consider taking $7,000 for it." On May 3, the nephew mailed the following response: "I will buy your pickup for $7,000 cash." The uncle received this letter on May 5 and on May 6 mailed a note that stated: "It's a deal." On May 7, before the nephew had received the letter of May 6, he phoned his uncle to report that he no longer wanted to buy the pickup truck because his driver's license had been suspended. Which of the following statements concerning this exchange is accurate? (A) There is a contract as of May 3. (B) There is a contract as of May 5. (C) There is a contract as of May 6. (D) There is no contract. Question 90- Real Property A buyer and a seller entered into a written contract for the sale of an identified parcel of land. The contract expressly provided that the buyer was to pay $150,000 cash for the land at the time of the closing but did not state the closing date. The parties had not agreed on the closing date because the buyer was not sure at the time the contract was signed how she • - gm. ocelinNS 54 MBE MIXED PRACTICE 2 EFTA00811463 AMERIBAR BAR REVIEW would raise the cash. Fifteen days after the contract was signed, the seller learned that he could sell the land to a third party for $200,000. The seller asked the buyer if she would agree to rescind the contract. The buyer refused. The seller then told her that he would not complete the transaction, contending that the contract was unenforceable under the statute of frauds because an essential element (time for performance) was not agreed upon by the parties and was not expressly stated in the written agreement. The seller sold the land to the third party. The buyer brought an appropriate action against the seller for breach of contract. For which party is the court likely to find? (A) The buyer, because of the doctrine of unjust enrichment. (B) The buyer, because the court will infer that performance within a reasonable time was intended. (C) The seller, because the contract is unenforceable under the statute of frauds. (D) The seller, because time of performance is presumed to be of the essence. Question 91 - Criminal Law and Procedure Four men are charged with conspiracy to commit a series of bank robberies. Nine successful bank robberies took place during the period of the charged conspiracy. Because the robbers wore masks and gloves and stole the bank surveillance tapes, no direct identification of the robbers by the witnesses has been made. Some circumstantial evidence ties each of the men to the overall conspiracy. During cross- examination, a prosecution witness testified that one defendant was in jail on other charges during six of the robberies. That defendant's lawyer has moved for a judgment of acquittal at the close of the government's case. Should the motion be granted? (A) No, because a conspirator is not required to agree to all of the objects of the conspiracy. (B) No, because a conspirator need not be present at the commission of each crime conspired upon. (C) Yes, provided the defendant has complied with the rule requiring pretrial notice of alibi. (D) Yes, regardless of compliance with the alibi rule, because the government is bound by exculpatory evidence elicited during its case-in-chief. Question 92 - Contracts MBE MIXED PRACTICE 2 • A seller and a buyer entered into a contract obligating the seller to convey title to a parcel of land to the buyer in exchange for $100,000. The agreement provided that the buyer's obligation to purchase the parcel was expressly conditioned upon the buyer's obtaining a loan at an interest rate no higher than 10%. The buyer was unable to do so but did obtain a loan at an interest rate of 10.5% and timely tendered the purchase price. Because the value of the land had increased since the time of contracting, the seller refused to perform. The buyer sued the seller. Is the buyer likely to prevail? (A) No, because an express condition will be excused only to avoid forfeiture. (B) No, because the contract called for a loan at an interest rate not to exceed 10% and it could not be modified without the consent of the seller. (C) Yes, because the buyer detrimentally changed position in reliance on the seller's promise to convey. (D) Yes, because the buyer's obtaining a loan at an interest rate no higher than 10% was not a condition to the seller's duty to perform. Question 93 - Torts A bright 12-year-old child attended a day-care center after school. The day care center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center's property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with signs that stated, 'THIN ICE - KEEP OFF." When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified personnel, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation's property from the day-care center. The jurisdiction follows a rule of pure comparative negligence. In a suit brought on the child's behalf against the corporation and based only on the facts above, who is likely to prevail? MBE BEI. EASED QUES11ONS 55 MBE MIXED PRACTICE 2 EFTA00811464 AMERI BAR BAR REVIEW MBE MIXED PRACTICE 2 (A) The child, because the corporation owes a duty to keep its premises free of dangerous conditions. (B) The child, because the pond was an attractive nuisance. (C) The corporation, because the danger of thin ice may reasonably be expected to be understood by a 12-year-old child. (D) The corporation, because the day-care center had a duty to keep the child off the ice. Question 94 - Torts [NOTE: These facts are repeated from question 93.1 A bright 12-year-old child attended a day-care center after school. The day care center's property was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with signs that stated, "THIN ICE - KEEP OFF." When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified personnel, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation's property from the day-care center. The jurisdiction follows a rule of pure comparative negligence. In a suit brought on the child's behalf against the day care center, who is likely to prevail? (A) The child, because he left the center while he was under the center's care. (B) The child, because the day care center is located near a pond. (C) The day care center, because it was not negligent. (D) The day care center, because the child was a trespasser. Question 95 - Constitutional Law A man intensely disliked his neighbors, who were of a different race. One night, intending to frighten his neighbors, he spray-painted their house with racial epithets and threats that they would be lynched. The man was arrested and prosecuted under a state law providing that "any person who threatens violence against another person with the intent to cause that person to fear for his or her life or safety may be imprisoned for up to five years." In defense, the man claimed that he did not intend to lynch his neighbors, but only to scare them so that they would move away. Can the man constitutionally be convicted under this law? (A) No, because he was only communicating his views and had not commenced any overt action against the neighbors. (B) Yes, because he was engaged in trespass when he painted the words on his neighbors house. (C) Yes, because his communication was a threat by which he intended to intimidate his neighbors. (D) Yes, because his communication was racially motivated and thus violated the protections of the Thirteenth Amendment. Question 96 - Criminal Law and Procedure A defendant was charged with assault and battery in a jurisdiction that followed the "retreat" doctrine, and he pleaded self-defense. At his trial, the evidence established the following: A man and his wife were enjoying a drink at a tavern when the defendant entered and stood near the door. The wife whispered to her husband that the defendant was the man who had insulted her on the street the day before. The husband approached the defendant and said, "Get out of here, or I'll break your nose." The defendant said, "Don't come any closer, or I'll hurt you." When the husband raised his fists menacingly, the defendant pulled a can of pepper spray from his pocket, aimed it at the husband's face, and sprayed. The husband fell to the floor, writhing in pain. Should the defendant be convicted? (A) No, because he had no obligation to retreat before resorting to non-deadly force. (B) No, because there is no obligation to retreat when one is in an occupied structure. (C) Yes, because he failed to retreat even though there was an opportunity available. (D) Yes, because the husband did not threaten to use deadly force against him. Question 97 - Contracts An innkeeper, who had no previous experience in the motel or commercial laundry business and who knew nothing about the trade usages of either business, bought a motel and signed an agreement with a laundry company for the motel's laundry services. The one-year agreement provided for "daily service • 56 MBE MIXED PRACTICE 2 EFTA00811465 AMERIBAR BAR REVIEW MBE MIXED PFtACTICE 2 • at $500 a week." From their conversations during negotiation, the laundry company knew that the innkeeper expected laundry services seven days a week. When the laundry company refused to pick up the motel's laundry on two successive Sundays and indicated that it would not ever do so, the innkeeper canceled the agreement. The laundry company sued the innkeeper for breach of contract. At trial, clear evidence was introduced to show that in the commercial laundry business "daily service" did not include service on Sundays. Will the laundry company succeed in its action? (A) No, because the laundry company knew the meaning the innkeeper attached to "daily service," and, therefore, the innkeeper's meaning will control. (B) No, because the parties attached materially different meanings to "daily service: and, therefore, no contract was formed. (C) Yes, because the parol evidence rule will not permit the innkeeper to prove the meaning she attached to "daily service." (D) Yes, because the trade usage will control the interpretation of "daily service." Question 98 - Real Property A landowner orally gave his neighbor permission to share the use of the private road on the landowner's land so that the neighbor could have more convenient access to the neighbor's land. Only the landowner maintained the road. After the neighbor had used the road on a daily basis for three years, the landowner conveyed his land to a grantee, who immediately notified the neighbor that the neighbor was not to use the road. The neighbor sued the grantee seeking a declaration that the neighbor had a right to continue to use the road. Who is likely to prevail? (A) The grantee, because an oral license is invalid. (B) The grantee, because the neighbor had a license that the grantee could terminate at any time. (C) The neighbor, because the grantee is estopped to terminate the neighbor's use of the road. (D) The neighbor, because the neighbor's use of the road was open and notorious when the grantee purchased the land. Question 99 - Contracts A carpenter contracted with a homeowner to remodel the homeowner's home for $10,000, to be paid on completion of the work. On May 29, relying on his AlliE Rt:l,£ASED QUESTIONS 57 expectation that he would finish the work and have the homeowner's payment on June I, the carpenter contracted to buy a car for "$10,000 in cash, if payment is made on June I; if payment is made thereafter, the price is $12,000." The carpenter completed the work according to specifications on June I and demanded payment from the homeowner on that date. The homeowner, without any excuse, refused to pay. Thereupon, the carpenter became very excited, suffered a minor heart attack, and, as a result, incurred medical expenses of 81,000. The reasonable value of the carpenter's services in remodeling the homeowner's home was $13,000. In an action by the carpenter against the homeowner, which of the following should be the carpenter's measure of recovery? (A) $10,000, the contract price. (B) $11,000, the contract price plus $1,000 for the medical expenses incurred because the homeowner refused to pay. (C) $12,000, the contract price plus $2,000, the bargain that was lost because the carpenter could not pay cash for the car on June I. (13) $13,000, the amount the homeowner was enriched by the carpenter's services. Question 100 - Evidence A plaintiff sued her employer, alleging that poor working conditions had caused her to develop a stomach ulcer. At trial, the plaintiff's medical expert testified to the cause of the plaintiffs ulcer and stated that his opinion was based in part on information in a letter the plaintiff's personal physician had written to the plaintiffs employer, explaining why the plaintiff had missed work. When offered to prove the cause of the plaintiffs condition, is the letter from the plaintiffs doctor admissible? (A) No, because it is hearsay not within any exception. (B) No, because the plaintiffs physician is not shown to be unavailable. (C) Yes, because it was relied upon by the plaintiff's medical expert. (D) Yes, under the business records exception to the hearsay rule. MBE MIXED PRACTICE 2 EFTA00811466