MBE review

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MBE review
2011-06-20 15:47:59
MBE review

MBE review
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  1. Property: "Subject to Mortgage"
    • When S sells property to B "subject to mortgage, S remains liable for the morgage if defaulted. Mortgagor may foreclose on the home, but the
    • company may not sue D (must sue S)

    *Mortgage company rights do not change
  2. Torts:Defenses- When "consen"t is the product of fatual Mistake
    If the consent is the product of a mistake and the D knows it, the defense of consent is defeated. (ineffective)
  3. Property: Private nuisance
    Conduct that substantially and unreasonably interferes w/ another's use and enjoyment of their land.

    *Substantial inteference=offensive to a normal person's sensibilities in the community

    -not sufficient for the interference to be offensive to a abnormally sensitive person
  4. Contracts: When form of payment is not specified in K (common law)
    Under common law, when form of payment is not specified, payment is allowed in either cash or check

    *Exception--> Different "course of dealing" has been established
  5. Contracts: Doctrine of Part Performance (S/F exception)
    The doctrine of part performance is an exception to the S/F for oral contracts for the sale of land

    • Person seeking to prove existence of the K, must show (some or all):
    • 1) Payment (all or some)

    2) Possession of property

    #) The making of substantial improvements
  6. Crim: Criminal Assault
    MAJORITY: The definition of criminal assault is attempted battery. D must have intended to commit a battery for an assault charge to consent

    *The fact that the V was unaware of the danger does not defeat the charge (focus is on D's intent)

    MINORITY: The definition of criminal assault is fear of battery

    *If V is put into fear of immediate battery, then criminal assault may be charged

    *V does not have to fear injury or pain

    *Present ability to carry out the act at time of offense is not a defense
  7. Property: Oral agreements to settle boundary disputes
    Oral agreements to settle boundary disputes are enforceable if the parties subsequently accepted the line for a sufficient time
  8. Crim: Concept of Collateral Estoppel
    A D may not be tried for a different cime arising out of the same crime arising out of the same criminal conduct if a previous prosecution necessarily determined factual issues required for conviction in D's favor.
  9. Evidence: Physician-Patient Privilege
    Privilege applies when the patient consults w/ a Dr for purposes of diagnosis or treatment

    -Physician= person authorized

    - Patient has privilege to refuse disclose
  10. Crim: Defense of Consent
    • Three Elements:
    • 1) Must be unforced and the result of an informed decision

    2) Search must not exceed the scope of the consent

    3) The consenting party must have authority to consent

    *Consent by trick results in a illegal search
  11. Property: Covenant of Quiet Enjoyment
    The covenant of quiet enjoyment runs w/ the land

    *A remote grantee can sue the orignal grantor (original owner of the land) for damages if a third-party claimant disturbs the grantee's possession and enjoyment

    • NOTE: Also applies to:(Standard Covenants of Title)
    • 1) Covenant of seisin
    • 2) Right to Convey
    • 3) Encumberances
  12. Con Law: 14th A (enabling clause)
    Congress has the authority to enforce civil right pursuant to the 14th A enabling clause
  13. Property: Tricky wording for "Notice" recording statute
    "A conveyance of an estate in land, other than a lease for less than one year, shall not be valid as against any subsequent purchaser for value, except (except=unless hers) such persons having notice of it, unless the conveyance is properly recorded

    *A subsequent search of grantors and grantees of the property would not have revealed unrecorded deeds
  14. Torts: Strict Liability Defense
    Assumption of Risk is a defense to the imposition of strict liability (aware or risk and voluntary)
  15. Con law: De facto segregation & De jure segregation
    De facto= segregation caused by social factors

    De jure= caused by past or present government action
  16. Con law: Takings Clause
    The taking clause does not explicitly permit the state to take private land for a developer where the proposed development will benefit the public

    * The SC has interpreted the "public use" language to mean "public purpose"
  17. Property: Destuction of leasehold premises
    A tenant who rents a portion of a bulding is excused from paying rent if the leasehold premises are destroyed
  18. Con law: Congress power to dispose US property
    The Supremacy Clause gives Congress the power to dispose of any property or territory which belongs to the US, even Native American reservations

    *All that is needed is the approval of Congress
  19. Crim: "Staleness"of the information on a warrant
    Information used to support the issuance of a search warrant must not be outdated

    • *Look at the type of opertaion to determine if info is considerd to stale to support the warrant, factors include:
    • 1)Info from informants that illegal activities have been ongoing over time

    2) Period of time law enforcement ha observed the operation (weeks? months?)
  20. Contracts: Right of First Refusal
    A promise to give another the right of first refusal is an agreement concerning the interest in land that is w/in the S/F
  21. Torts: Vicarious Liability (Parent-Child)
    A parent is generally not vicariously liable for the negligence of a child unless the child committed the tort while acting as an agent for the parent

    EXCEPTION: A parent may be liable for his or her negligence in supervising the child
  22. Crim: Co-Conspirators liability for offenses committed during comission
    Offense must be both foreseeable and must have been accomplished to further the originally planned crime
  23. Crim: Burglary- Intent required
    The intent to commit some other criminal act (other than trespass, because it's inherent) must also be present at the time of the breaking and entering for a charge of burglary to stand
  24. Contracts: Clauses for payment
    • Ks may include a clause for payment.
    • Courts don't always interpret them literrally, but oftern view them simply guildelines as to when payment is to occur.

    *Ex: One providing that the B will not receive any proceeds until B reaches a certain age.
  25. Property: Pefection of Liens ????????????
    Whoever perfects the lien 1st gives him or her priority over claims against the property
  26. Con Law: Takings Clause- Temporary land use
    GR: A land use regulation is a taking if it denies an owner all reasonable economically beneficial use of land.

    EXCEPTION: A temporary regulation may not be a taking where the property will recover value when the prohibition is lifted (the regulation will not permantly deprive the owner).

    *To determine if temp tacking is appropriate, the court will examine both time and space demensions of the property interest.
  27. Contracts: Common Law K modifications
    • Governed by the preexisting duty rule :
    • 1) Enforceable where there is a mutual modification, AND
    • 2) The performance by the party receiving the pay increase has not changed.

    * Mutual mod reqs that both parties agree to a perfromrnace that is different from that required in the original K (not a mere pretense)
  28. Evidence: When can W's credibility be attacked.
    Either party may on direct examination or cross ask questions relating to the Ws credibility.
  29. Evidence: Can lay Ws address ultimate facts?
    Yes, if W observed the incident or occurrence
  30. Evidence: Party admission
    Statement made by a party-oppent, which is offered against the party-opponent
  31. Evidence: Marital Communications Privilege
    Extends to all communications made before or during a valid marriage.

    • *Either spouse may invoke the privilege to:
    • 1) Refuse to testify

    2) Keep the other spouse from testifying

    *protects only communications made during marriage
  32. Con Law: When a treaty and federal statute conflicts
    The last in time prevails (last one recorcded prevails)
  33. Torts: Superseeding Cause (Criminal Act)
    D will not be liable for harm caused b this type of intervening force unless he should have foreseen that his NEG would increase the risk that the crime would be committed
  34. Con law: Privileges & Immunities Clause applies to:
    Discrimination against out-of-state residents (such as the pursuit of employment)
  35. Evidence: 1004( Collateral Evidence)When evidence other than the writing is allowed in
    Permits other evidence about the contents of a writing including oral testimony, when the writing is not closely related to a controlling issue
  36. Property: AP (Easement by prescription)--> When does "hostility start"
    The hostility element necessary to establish an easement by prescription is satisfied when the claimant possesses the property w/ intent to assert ownership
  37. Property: Power of a mortgagee to dispossess tenants when default occurs
    Mortgagee can dispossess only tenants of the mortgagor if thoses tenants' rights of possession are inferior to the mortgagee's rights

    * If the tenants of the property had leased premises before the lender had recorded the mortgage, their possessory rights would be superior to the lender's and he could not evict them.
  38. Con Law: Ex post facto laws
    There are 2 expost facto clauses in the US constitution (Art I, se 9 and Art I, sec 10)
  39. Torts: Defamation
    Where P is a private person and the subject matter is private, the P doesn't have to prove actual malice

    Where P is a public figure, P must prove that D acted w/ malice (knowing falsity or recklessness as to truth or falsity)
  40. Torts: Last Clear Chance Doctrine
    The doctrine operates as a P's defense to claims of contributory negligence, which allows P full recovery where the last human wrongdoer failed to avoid the accident

    *Jurisdictions applying comparative negligence do not utilize the last clear chance doctrine
  41. Con Law: Commerce Clause
    Can regulate activities that are only intra state if the aggregate national economic effect
  42. Con Law: Free exercise clause
    Does not prohibit a court from inquiring into the extent to which a D's religious beliefs affect his life and actions

    *The court can inquire the degree to which a D's religious beliefs affect his life and actions
  43. Property: Recording Statutes
    Charge grantees w/ constructive notice of all prior conveyances affecting the property that have been properly recorded

    *If a party has constructive notice of another's ownership interest, it could not pass good title to new owners
  44. Con Law: Privileges & Immunites clasue (14thA)
    • Very limited application, grants right to:
    • -travel from state to state
    • -petition congress for redress of grievances
    • -vote for national office
    • -enter public lands
    • -be protected while in custody of US marshalls
    • -assemble peaceably

    *Corporations and Aliens are not protected under the 14th A privileges and immunities clause
  45. Contracts: Equitable Conversion
    Once a binding contract for the sale of real estate has been executed, then the risk of loss is on the buyer

    *EXCEPTION: Where states have adopted the Uniform Vendor and Purchaser Risk Act, the risk of loss remains w/ the seller during the period after the contract was executed, but before the deed has been conveyed

    NOTE: The risk of loss transfers to the purchaser once the purchaser takes possession or takes legal title.
  46. Contracts: Anticipatory Repudiation
    The UCC requires that demands for adequate assurances be in writing

    - Once an aggrieved party has filed suit, it is too late for the repudiating party to retract the repudiation
  47. Contracts: Restitution
    • May be measured by:
    • 1) The market value of the benefits conferred, or

    2) Value added
  48. Contracts: Exception to "impossibility"
    When parties have allocated the risk of the contingency and made remedial measures available
  49. Torts: Product liability- "Inadequate warnings"
    1) Company fails to communicates its message to the user

    2) Fails to sufficiently describe the danger

    3) Fails to mention all dangers

    4) Inconsistent w/ the instructions for use of the product
  50. Property: Right to Redemption (Mortgage)
    The mortgagor cannot waive the right to redemption when the mortgage is created

    * Clauses purporting to waive the right to redemption after foreclosure are ineffective
  51. Crim: Conspiracy "Meeting of the Minds"
    Conspiracy requires meeting of the minds umong co-conspirators

    *If a co-conspirator has no intent to commit a criminal act, there is no meeting of the minds between her and her co-defendants (look for evidence of lack of intent)
  52. Contracts: Waiver of Conditions of Contract
    Either party may waive a condition or conditions. A waiver may occur by either words or actions.

    *Performing after a failure of a condition gives up the right to satisfaction of the condition and performance becomes obligatory
  53. Property: Adverse Possession
    Not having permission from the actual owner to stay on the property forever satisfies the requirement of hostile possession

    *Hostile possession is that which is inconsistent w/ the rights of the owner

    *The "mindset" of the possessor is not important
  54. Crim: Arson
    Dwelling house of another--> It's someonewho is in actual possession and has the legal right to occupy the property

    *Ex: Even if a D owns the property, he could be guilty of arson if he's not the possessor of the property
  55. Con Law: Employee property interest
    An employee has a protected property interest in public employment subject to due process if termination is only "for cause" under statute
  56. Con Law: 5thA DP & Age discrimination
    The 5thA DP clause has been interpreted to gurantee the same right to individuals affected by discriminatory Fed Gov action.

    *Mandaoty retirement statutes are constitutional (judged under the RB test)
  57. Crim: Larceny by Trick
    D gains custody of the subject of larceny through the use of deception
  58. Con Law: Congress' use of Taxing Power to regulate
    Generally, as long as Congress has the power to regulate the activity taxed, the tax can then be used as a regulating device rather than for revenue-raising purposes.

    * Even when Congress does not have power to regulate the activity taxed, the tax will be upheld if the tax does raise revenue (even where it has a substantial regulatory effect)
  59. Evidence: "Modus operandi"
    Visual signature or "propensity"

    *Funny word they might use on test
  60. Property: Two situations where licenses are not revokable:
    • A license may become irrevocable in two situations:
    • 1) If one person owns personal property on the land of another and along w/ that receives a license to use or retrieve that property

    2) If the license is relied on the promise of access to the land by spending a lot of money
  61. Con Law: Unilateral Contract--> Acceptance by performance
    When acceptance hinges on performance, unless the offeror requires otherwise, the fact that the offeree did not communicate his acceptance does not preclude the offeree from enforcing the K when he completes performance

    *If you perform the award is yours

    Example: Radio station scavenger hunt

    *A unilateral contract that requires acceptance by performance cannot be revoked by the offeror if the offeree has begun performance
  62. Con Law: Content-based speech regulation
    Subject to strict scrutiny

    • The state must show:
    • 1) A compelling gov interest in the regulation

    2)It does not have a less restrictive means to its end
  63. Torts: Abnormally dangerous activity
    If D's abnormally dangerous activity leads to injury, D will be S/L

    *The harm caused must be a result of the type caused by the particular dangerous activity

    *The mere fact that it's dangerous is insufficient to support a claim in S/L against the D
  64. Con Law: Who can regulate pollution?
    Congress has the power to regulate pollution
  65. Evidence: Admission (801)
    An admission (words or acts) of a party-opponent offered against the party-oponent is not hearsay

    - An admission is a statement by a party-opponent acknowledging a fact relevant to the case
  66. Evidence: Crimes involving dishonesty "PEF"


    raud (check fraud etc...)
  67. Con Law: Campaign Signs
    Campaign signs are a form of constitutionally protected speech
  68. Crim: Arson
    A person's lawn is considered a part of their dwelling
  69. Contracts: Damages--> "Lost Valume Profts"
    The UCC standard measure of damages is the difference between the market price and the contract price.

    *If this does not put the seller in as good a position as he was prior to performance, the seller may recover the profit, including reasonable overhead, which the seller would have made from the buyer's full performance
  70. Con Law: Adequate and Independent Grounds
    If the adequacy and independence of any possible state law gound is not clear from the face of the opinion, the SC will assume that the state court decided the case the way it did because it beleived that federal law required it to do so

    *Under an unclear circumstance, the SC will not apply the adequate and independent state ground doctrine and will hear the case.
  71. Torts: Manufacturing Defect Defense (Misuse)
    Most jurisdictions bar recovery in S/L if P uses the defective product in a manner not reasonably foreseeable by the manufacturer.
  72. Evidence: Marital Communication Privilege Exception
    When the spouses were joint participants in a crime, the marital communication privilege does not apply w/ respect to communications about the crime.
  73. Property: Subsidence (gradual caving in)of unimproved land
    A landowner who engages in activities that cause the subsidence of unimproved land on an adjacent parcel is S/L for resulting damage.
  74. Crim: Attempt
    An attempt is an endeavor to accomplish a crime, carried beyond mere preparation, but falling short of the complete execution.
  75. Crim: Larceny Defense
    A good-faith belief that one has a right to carry the property away is a defense to larceny.
  76. Con Law: Public Employment
    Public employment is a protected property right only when the employee can be terminated only "for cause."

    - If employee had an oral employment K w/ the employer, ER breach of K would be a violation of EE property right w/out being given any reason for termination and w/out hearing (DP vio)
  77. Contracts: How does one properly accept a K?
    An acceptance may be made by a means of communiation that is equivalent in expeditiousness and reliability to the means used by the offeror
  78. Crim: Is a jury instruction that states "D must prove mistake-in-fact" proper?
    No, the mistake-of-fact instruction unconstitutionally shifted to the burden of proof to the D
  79. Property: Relationship between new owner and tenants
    A new owner is entitled to collect rent from tenants follwoing a conveyance from the original landlord

    *The burden of searching the record to detrermine the actual owner of record does not fall upon the tenants (it's not the tenants job to find out who to pay rent too)
  80. Evidence: Other name for "best evidence rule"
    Original documents rule
  81. Con Law: Race (strict scrutiny)
    • The Gov must show:
    • 1) Past discrimination w/in the community

    2) The race-consious program is necessary to effecutate the gov's compelling interest in remedying past discrimination

    3) There are no race neutral means to accomplish the same goal
  82. Crim: Involuntary manslaughter
    IM is the unintentional killing of a person w/out malice afterthought caused by criminal negligence or during the comission or attempted comission of an unlawful act (can be misdeamenor)
  83. Torts: Who can be sued in a defamation cause of action
    The party who initially publishes the defaming statement, along w/ others who subsequently republish the statement, may be sued

    *Look at these actors to determine public or private (the less who knows, the more private)
  84. Contracts: Expectation Damages
    Expectations damages are designed to put P in the position P would have been in had the breach had not occurred.
  85. Contracts: Restitution in a construction case
    Restitution in a construction case is usually measured by the market value of the work completed (minus the cost to hire someone else to finish the job)
  86. Property: Does a property in violation of zoning law have a "marketable title?"
    Maybe not, marketablility of title might be affected
  87. Property: Riparian rights
    Riparian rights are use of water rights that apply to navigable bodies of water (including those capable of use for commerce such as rivers or streams)
  88. Property: Title to lands under a non-navigable body of water
    Title belongs to the abutting landowner (lands closely attached to property) and stretches to the center of the body of water
  89. Crim: Is duress/coercion a proper defense for "murder?"
    No, duress/coercion is not a defense for murder because it would be equivalent to valuing one life over another
  90. Torts: Landowner duty to "known trespasser"
    When a LL becomes aware that a particular person has trespassed on his property, that person becomes a known trespasser.

    * The LL is then obligated to exercise R care to warn a "known trespasser" of AC/DC (artificial conditions & dangerously concealed ones)
  91. Evidence: "The Completeness Doctrine"
    When a party introduces a writing or part therof, the adverse party may require introduction @ the time of any other part or any other writing that in fairness ought to be considered.
  92. Torts: Design Defect
    A product that was manufactured as the manufacturer intended but presents an unreasonable danger of personal injury or property damage to the user has a design defect.
  93. Torts: Manufacturing Defect
    A product manufactured in a form other than that intended by the manufacturer contains a manufacturing defect.
  94. Torts: When P discovers or is warned about manufacturing defect:
    • Where a P discovers or is warned of a dangerous defect and voluntarily and unreasonably continues to use the product, is usually regarded as assumption of risk, and bars P's recover in S/L
    • *NOTE: A P's continued use of a product that the P knows to be defective is not considered voluntary if there are no practical alternatives to such use.
  95. Property: Can a joint tenant transfer interest once deceased?
    No, because joint tenants have a right of survivorship
  96. Contracts: Surety K
    A contract to answer for or guarantee the debt or obligation of another

    - Must satisfy S/F (must be in writing)

    • EXCEPTION: Surety K not in writing enforceble when:
    • 1) Main Purpose rule: An oral surety K in enforceable if the main purpose of the guarantor's promise is her own benefit

    2) Detrimental Reliance: An unwritten surety K is enforceable if the creditor discharges the original debtor from obligation in reliance on the guarantor's promise
  97. Contract: Anticipatory Repudiaton
    When a party to a K unequicocally indicates that it will not perform by either words or conduct prior to the time set for performance

    • *The aggrieved party may:
    • 1) Immediately sue for damages

    2) Urge the other party to perform

    3) Wait until the time for performance has passed, and sue for damages if the other party has not performed
  98. Crim: Search Incident to Lawful Arrest
    The area that may be searched must be limited to the person arrested and the area w/in the person's immediate control ("wingspan"), unless the officers have a R and articulable (RS) suspicion that accomplices who might threaten the police are on the premises.
  99. Property: When does statute of limitations begin to run on present and future covenants?
    Present covenants-The statute of limitations on suits based on present covenants start to run when title passes

    Future Covenants-The statute of limitations does not begin to run until the grantee's rights have been disturbed or the grantee becomes aware of the encroachment
  100. Con Law: SC jurisdiction over suits between states and fed gov
    -When a state is sued by the Fed Gov (or gov agencies or instrumentalities) the SC has original jurisdiction (but not exclusive jurisdiction)

    • - When a state is sued by a sister state, the SC has both original and exclusive jurisdiction
  101. Evidence: Can a criminal D plead the 5th if questioned by a non-gov person?
    Where a hearsay declaration does not involve government conduct (i.e. questioning), the 5th A does not bar admission of an incriminating admission by a criminal defendant
  102. Con Law: Right to Travel
    • The right to travel also encompasses a person's right to enjoy the rights provided to other residents of the state (Subject to Strict Scrutiny)
    • *A durational waiting period for benefits such as state-subsidized medical benefits will be invalid