Quiz_22.docx
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University of St Thomas *
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251
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Law
Date
Jan 9, 2024
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Uploaded by meganmarkle99
Question 1 of 50
ID# 6667
A city solicited bids for the repair of a crawler tractor used at its city landfill. A mechanic submitted the low bid of $8,500. The next lowest bid was $9,000. The remaining bids were between $10,000 and $11,000. The city awarded the contract to the mechanic. However, before commencing the actual repairs, the mechanic realized that he had made a mistake and underestimated the repair work. If the mechanic completes the job, he will lose money. The mechanic refused to do the work unless the city agreed to pay him $9,000. The city was anxious that the work not be delayed and told the mechanic: "All right. We will pay you $9,000 if you go ahead and perform, even though we think you ought to stick by your bid." The mechanic then went ahead and repaired the crawler tractor. Thereafter, the city paid the mechanic $8,500, saying it had changed its mind about paying the additional amount. The mechanic sued the city for $500, and the city defended on the basis that there was no consideration for its promise to pay the additional amount.
In most jurisdictions, who will prevail?
The mechanic, because the parties mutually rescinded the original contract at the $8,500 price and made a new one at $9,000.
The mechanic, because his forbearance to exercise his right to break the original contract and to pay damages is consideration for the city's promise to pay the additional $500.
The city, because the city's promise to pay the additional amount was obtained by undue influence.
The city, because the mechanic was already duty-bound to do the work for $8,500 when the city promised to pay $9,000.
Explanation
The correct answer is:
The city, because the mechanic was already duty-bound to do the work for $8,500 when the city promised to pay $9,000.
Discussion of correct answer
:Traditionally, one party's demand for additional performance from the other party to an existing executory contract could not be enforced unless both parties agreed and there was consideration to support the modifications. A modern minority of courts will enforce a modification if both
parties assent and there are unanticipated circumstances that have arisen, making some adjustment in performance fair and equitable. Here, no unanticipated circumstances arose, thereby making the attempted modification unenforceable even under the minority rule.
Discussion of incorrect answers
:
Incorrect. The mechanic, because the parties mutually rescinded the original contract at the $8,500 price and made a new one at $9,000. In legal rescission, the party wishing to rescind the contract notifies the other party of the rescission, and tenders to the other party any consideration that has been furnished to the
rescinding party; the rescinding party then may seek recovery of any benefit conferred on the other party through an action for restitution. Here, the mechanic did not notify the city of the rescission; he merely refused to work until the city agreed to pay him $9,000. It cannot therefore be said that the contract was rescinded. Thus, this answer is incorrect.
Incorrect. The mechanic, because his forbearance to exercise his right to break the original contract and to
pay damages is consideration for the city's promise to pay the additional $500. A few modern courts might recognize this argument, but it is not the majority rule. Thus, this answer is incorrect.
Incorrect. The city, because the city's promise to pay the additional amount was obtained by undue influence. Where a party's assent was induced by force or threat of force, the contract will not be enforced. There are no facts to indicate that the mechanic induced the city's promise to pay the extra $500 by force or
threat thereof; the mechanic merely refused to work until the city agreed to pay $9,000 for the job. If the mechanic failed to perform under the original contract, the city could sue the mechanic for breach. Thus, this answer is incorrect.
Question 2 of 50
ID# 6696
A college dean entered into a contract with a lacrosse coach whereby the coach agreed to coach the college's lacrosse team, and the dean agreed to pay the coach a salary of $3,000 during the season. However, several months later, the lacrosse season was nearly half over, and the coach still had not been paid. Furious, the coach informed the dean that he refused to report to work until he was paid.
Is the coach obligated to continue to coach the remainder of the season?
Yes, because the promise to coach and the promise to pay are independent of one another.
Yes, because the contract did not expressly condition payment for a particular point in the season.
Yes, because parol evidence cannot be used to contradict a writing.
No, if the promise to coach and the promise to pay are dependent on one another.
Explanation
The correct answer is:
No, if the promise to coach and the promise to pay are dependent on one another.
Discussion of correct answer
:Conditions implied-in-law, also known as constructive conditions, function to fix the order of performance when the express terms of the bargain have not. Here, the facts state that the coach agreed to coach the team, and the college agreed to pay him a salary of $3,000 during the season. However, the contract neglected to specify precisely when the coach was to be paid, and it did not expressly condition his salary payment on his continuing to coach for the rest of the season. Given the lack of contractual specificity, a court will resolve this problem through a constructive condition. A court will determine that the promises are independent of one another only where such an intention is clearly expressed or otherwise consistent with the overall purpose of the contract; otherwise, the promises are considered dependent on one another. As noted, here, such an intent is not clearly expressed in the contract. Therefore, without more information, the court is unlikely to find a construction that the promises are independent of one another is consistent with the overall purpose of the contract. It is more likely that the court will find that the coach's obligation to coach is dependent on the university's obligation to pay, and hence, if the coach is not paid, he is not obligated to continue to coach. As such,
this is the best answer.
Discussion of incorrect answers
:
Incorrect. Yes, because the promise to coach and the promise to pay are independent of one another. Given the lack of contractual specificity, a court will need to resolve this problem through the use of a constructive condition. A court will determine that the promises are independent of one another only where such an intention is clearly expressed or otherwise consistent with the overall purpose of the contract. Otherwise, the promises are considered dependent on one another. As noted, here, such an intent
is not clearly expressed in the contract. Therefore, without more information, the court will more likely find that the court will find that the coach's obligation to coach is dependent on the university's obligation to pay, and hence, if he is not paid, he is not obligated to continue to coach. As such, this answer is incorrect.
Incorrect. Yes, because the contract did not expressly condition payment for a particular point in the season. Because the contract does not specify the payment terms, a court will need to resolve this problem
by using a constructive condition. (This is also called a condition implied-in-law.) A court will determine that the promises are independent of one another only where such an intention is clearly expressed or otherwise consistent with the overall purpose of the contract. Otherwise, the promises are considered dependent on one another. As noted, here, such an intent is not clearly expressed in the contract. Therefore, without more information, the court will more likely find that the court will find that the coach's obligation to coach is dependent on the university's obligation to pay, and hence, if he is not paid, he is not obligated to continue to coach. As such, this answer is incorrect.
Incorrect. Yes, because parol evidence cannot be used to contradict a writing. The Parol Evidence Rule prevents introduction of prior or contemporaneous evidence to contradict a writing. To determine if the parol evidence rule applies, it must first be determined whether the writing is fully integrated. A document is fully integrated if it is a complete and exclusive statement of the agreement. To determine whether a document is fully integrated, it is necessary to examine the "four corners" of the contract, considering such factors as whether the contract declares itself to be the complete agreement, as well as the complexity and duration of the parties' pre-contract negotiations. If a document is fully integrated, all extrinsic evidence as to its meaning is barred. However, if the agreement is not fully integrated, extrinsic evidence can be admissible to explain or supplement the writing. Here, the facts state that the coach agreed to coach the team, and the college agreed to pay him a salary of $3,000 during the season. However, the contract neglected to specify precisely when the coach was to be paid, and it did not expressly condition his salary payment on his continuing to coach for the rest of the season. Thus, given the contract's failure to include an important specification, it does not appear that the document was "fully
integrated." As such, it is unlikely that the Parol Evidence Rule will apply to bar the introduction of evidence regarding the terms of payment, and this answer is therefore incorrect.
Question 3 of 50
ID# 6698
In honor of its reverend's 20 years of service, the congregation of Good Shepherd Lutheran Church planned
a special celebration to be held on October 31. A longtime member of the church decided to present the reverend with a bronze statuette of Martin Luther at the celebration. The member contacted a local sculptor. On August 1, the member and sculptor entered into a written contract, which read: "Sculptor to sculpt and deliver a 12-inch statuette of Martin Luther on or before October 31. Payment of $3,000 to be made ten days thereafter. Statuette to conform to a picture of Martin Luther ,which will be provided to Sculptor. Statuette guaranteed to be fully satisfactory and on time." Because the church member was required to go out of town unexpectedly, he was unable to deliver the picture of Luther to the sculptor until the middle of September. When the sculptor received the picture, he advised the church member that due to the delay, he might not be able to deliver the statuette until the first week in November. The church member told the sculptor to sculpt the statuette anyway. The sculptor delivered the statuette to the church member on November 2, the sculptor having diligently worked on it in the interim. Although the statuette pleased all of the members of the congregation to whom the church member showed the statuette, he refused to accept it. After a cursory inspection, he complained, "The statuette makes Martin Luther look
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too short and stumpy. Besides, it was not delivered on time."
With regard to the sculpting of the statuette, which of the following statements is LEAST accurate?
The church member had an implied duty to reasonably cooperate with the sculptor in providing the picture of Luther.
A refusal by the church member to cooperate reasonably in providing the picture of Luther would excuse the sculptor from further obligation under the contract and also give the sculptor a cause of action against the church member for breach of contract.
An implied condition of the sculptor's duty to perform was that the church member reasonably cooperate in providing the sculptor with the picture of Luther.
Under the provisions of the drafted contract, the sculptor assumed the risk that the church
member would fail to cooperate in providing the picture of Luther.
Explanation
The correct answer is:
Under the provisions of the drafted contract, the sculptor assumed the risk that the church member would fail to cooperate in providing the picture of Luther.
Discussion of correct answer
:This choice is the least accurate and, therefore, the best answer. A condition not mentioned in the contract may arise by necessary implication from the nature of the agreement and the performance to be rendered by the parties; in fact, courts have indicated that every contract contains an implied condition of good faith. In this situation, the church member's cooperation in good faith was always a condition implied in the arrangement. Because this is the only choice that does not discuss the implied condition of good faith, this answer is the least accurate choice.
Discussion of incorrect answers
:
Incorrect. The church member had an implied duty to reasonably cooperate with the sculptor in providing the picture of Luther. This choice is incorrect. It is not the least accurate choice because it mentions the implied condition of good faith that is present in every contract.
Incorrect. A refusal by the church member to cooperate reasonably in providing the picture of Luther would excuse the sculptor from further obligation under the contract and also give the sculptor a cause of action against the church member for breach of contract. This choice is wrong because it correctly addresses the issue of the implied condition of good faith. The question asks for the least accurate choice, and this is not it.
Incorrect. An implied condition of the sculptor's duty to perform was that the church member reasonably cooperate in providing the sculptor with the picture of Luther. This choice is wrong because it accurately focuses on the implied condition of good faith. It is an implied condition precedent to the sculptor's duty to
perform that the church member reasonably cooperate by providing the sculptor with the picture of Luther. Therefore, this is not the least accurate choice.
Question 4 of 50
ID# 6699
A law school professor was known among students and colleagues for her extravagant collection of hats. She had dozens of them, ornate and plain, recent and antique. As her retirement approached, her colleagues decided to commission a hat that would summarize her career. The assistant dean researched which hatmakers the professor favored and signed a contract with the professor's favorite hatmaker on October 5 with the following terms: "Hatmaker to create an artistic interpretation of Professor's career and
deliver it on or before December 8. Assistant Dean to pay $700 within two days of receiving the finished
hat." When the hatmaker delivered the hat, all of the faculty members who saw it thought it was great. However, the assistant dean hated the hat, which she thought did not emphasize the role of law school in the professor's life strongly enough, and refused to accept it.
What is the correct characterization of the parties' duties?
Under the contract, the hatmaker's performance was a condition precedent to the assistant dean's duty to pay the $700.
The assistant dean's payment of the $700 was a condition subsequent to the hatmaker's duty to perform.
The contract made the performances of the assistant dean and hatmaker concurrently conditional.
The assistant dean's payment of the $700 was a condition precedent to the hatmaker's duty to perform.
Explanation
The correct answer is:
Under the contract, the hatmaker's performance was a condition precedent to the assistant dean's duty to pay the $700.
Discussion of correct answer
:A condition precedent must occur before the obligation to which it is attached becomes an absolute duty. The duty to pay did not arise until after the hatmaker's performance, therefore making the performance a condition precedent.
Discussion of incorrect answers
:
Incorrect. The assistant dean's payment of the $700 was a condition subsequent to the hatmaker's duty to perform. Where an obligation is subject to a condition subsequent, the obligation has already matured into
an absolute duty to perform. The subsequent occurrence of the condition then has the effect of extinguishing that previously absolute duty. This concept does not apply on these facts.
Incorrect. The contract made the performances of the assistant dean and hatmaker concurrently conditional. Concurrent conditions are conditions which operate simultaneously. In this situation, the hatmaker's performance was the condition precedent which had to be satisfied or excused before the assistant dean had an absolute duty to pay. Therefore, the performances were not concurrently conditional.
Incorrect. The assistant dean's payment of the $700 was a condition precedent to the hatmaker's duty to perform. The duty to pay arose after the hatmaker's performance, which makes his performance (not the duty to pay) the condition precedent.
Question 5 of 50
ID# 6733
A massage therapist owned the building in which she had her business. When she decided to marry, she wanted to move, so she arranged to sell the building to a chiropractor for $350,000. They entered into a written sales contract, which provided a closing date of February 1, at which time the chiropractor was to submit full payment to the massage therapist in exchange for the deed to the property. On February 1, however, the massage therapist and her new husband spontaneously decided to take a weekend trip, and she failed to deliver the title to the chiropractor.
If the chiropractor sues immediately for breach of contract, will he prevail?
Yes, because the massage therapist's tender of the title was a condition precedent to the chiropractor's obligation to pay $350,000.
Yes, if the chiropractor was prepared to tender his payment of $350,000 on February 1.
No, unless the chiropractor paid the massage therapist $350,000 on February 1.
No, because the contract contained no "time is of the essence" clause.
Explanation
The correct answer is:
Yes, if the chiropractor was prepared to tender his payment of $350,000 on February 1.
Discussion of correct answer
:Concurrent conditions are those that are mutually dependent and are to be performed at the same time. Any contract for the sale of real property contains concurrent conditions, in that each party's performance is conditioned upon the other party's performance, and both conditions can occur at the same time. If one party breaches the agreement, the aggrieved party, prior to filing a breach of contract action, must show that he did perform or was prepared to perform his contractual duties. In this case, under the parties' contract, the massage therapist was to tender the title to the building and the chiropractor was to tender payment of $350,000. The massage therapist's tendering the title was a condition of the chiropractor's obligation to pay, and his tendering of payment was likewise a condition of the massage therapist's obligation to tender the title. To be entitled to recover in a breach of contract action against the massage therapist for her failure to tender title, the chiropractor is first required to show either that he paid or was prepared to pay the agreed-upon amount. Having shown that he was prepared to meet his contractual obligation, the chiropractor could then sue the massage therapist for her failure to perform.
Discussion of incorrect answers
:
Incorrect. Yes, because the massage therapist's tender of the title was a condition precedent to the chiropractor's obligation to pay $350,000. A condition precedent is an event or condition that must take place before a party to a contract is required to perform. In contrast, concurrent conditions are those that are mutually dependent and are to be performed at the same time. Any contract for the sale of real property
contains concurrent conditions, in that each party's performance is conditioned upon the other party's performance and both conditions can occur at the same time. If one party breaches the agreement, the aggrieved party, prior to filing a breach of contract action, must show that he did perform or was prepared to perform his contractual duties. In this case, the massage therapist was to tender the title to the building and the chiropractor was to tender payment of $350,000. The tendering of the title was a condition of the obligation to pay, and the tendering of payment was likewise a condition of the obligation to tender the title. Because both these conditions can occur simultaneously, they are concurrent conditions, rather than conditions precedent, making this response incorrect.
Incorrect. No, unless the chiropractor paid the massage therapist $350,000 on February 1. Concurrent conditions are those that are mutually dependent and are to be performed at the same time. Any contract for the sale of real property contains concurrent conditions, in that each party's performance is conditioned
upon the other party's performance, and both conditions can occur at the same time. If one party breaches the agreement, the aggrieved party, prior to filing a breach of contract action, must show that he did perform or was prepared to perform his contractual duties. In this case, the massage therapist was to tender
the title to the building and the chiropractor was to tender payment of $350,000. The tendering of the title was a condition of the obligation to pay, and the tendering of payment was likewise a condition of the obligation to tender the title. To be entitled to recover in a breach of contract action against the massage
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therapist for her failure to tender title, it is not necessary for the chiropractor to show that he paid the agreed-upon amount; he is required simply to show that he was prepared to tender payment. As such, this response is incorrect.
Incorrect. No, because the contract contained no "time is of the essence" clause. In contracts for the sale of land, time is not considered to be "of the essence" unless expressly stated in the contract or the parties have by their conduct manifested an understanding that time is of the essence. While it is true that there are
no facts indicating that time was of the essence in the parties' agreement, this factor has little relevance to the issue of whether the chiropractor is entitled to recover in a breach of contract action against the massage therapist. The chiropractor's right to recover in a breach of contract action against the massage therapist based on her failure to perform does not hinge upon whether time was of the essence, but on whether the chiropractor fulfilled or was prepared to fulfill his duties under the contract. As such, this response is incorrect.
Question 6 of 50
ID# 6777
A nature lover brought all kinds of animals and plants to her three-acre farm and let them roam wherever they wanted. The animals lived on the property for years without incident. Her longtime neighbor wanted to sell his adjacent farm but had no luck because of the noise the animals made. Frustrated, he filed a nuisance action against the nature lover, seeking damages for the decrease in value to his property as a result of her animals.
What will be the result of the neighbor's lawsuit?
The neighbor will prevail, if he can show that the nature lover does not keep the animals away from the edge of the property.
The neighbor will prevail, as long as he can show that he hasn't sold the land.
The neighbor will not prevail, because the presence of animals in farming areas is not unreasonable.
The neighbor will not prevail, unless he moved to the property before the nature lover started raising animals.
Explanation
The correct answer is:
The neighbor will not prevail, because the presence of animals in farming areas is not unreasonable.
Discussion of correct answer
:A private nuisance is substantial and unreasonable interference with a plaintiff's use and enjoyment of her land. To recover in a nuisance action, the interference with a plaintiff's
use and enjoyment must be "substantial," that is, it must be offensive, inconvenient, or annoying to an average person in the community. A plaintiff cannot, by devoting her land to an unusually sensitive use, make a nuisance out of conduct that would otherwise be relatively harmless. Here, the neighbor lived adjacent to the nature lover's property for a long time and had no complaint about her animals until he was unable to sell his land. Moreover, inasmuch as they lived in a farming community, it is unlikely that the nature lover's conduct would be offensive, inconvenient, or annoying to an average person in the community. Whether the nature lover kept the animals well away from the property lines will not matter to the court as much as whether the animals produced some type of significant interference with the neighbor's use or enjoyment of his land. Because it is not unreasonable to raise animals on a farm, it is
unlikely that the neighbor can prevail in a nuisance action.
Discussion of incorrect answers
:
Incorrect. The neighbor will prevail, if he can show that the nature lover does not keep the animals away from the edge of the property. Whether the nature lover's animals interfered with property lines will not matter to the court as much as whether the animals produced some type of significant interference with the neighbors use or enjoyment of his land. Because it is not unreasonable to raise animals on a farm, it is unlikely that the neighbor can prevail in a nuisance action. Thus, this answer is incorrect.
Incorrect. The neighbor will prevail, as long as he can show that he hasn't sold the land. A private nuisance is a substantial and unreasonable interference with a plaintiff's use and enjoyment of his land. The fact that the plaintiff hasn't been able to sell the land is really not conclusive of this point, so this is not the best answer.
Incorrect. The neighbor will not prevail, unless he moved to the property before the nature lover started raising animals. Who came first is not the sole determining factor in a nuisance claim. "Coming to the nuisance" is but one of several factors used to decide whether the defendant's interference with the plaintiff's use and enjoyment of his land is unreasonable. The neighbor will not prevail in his action merely by showing that he lived on the property before the nature lover began raising animals nearby; neither will his action necessarily fail if he moved to his property after the nature lover began raising animals on her farm. Other factors, such as the nature of the nature lover's land and the nature of the community, will play a much greater role in the court's determination of whether the nature lover's actions
constitute a private nuisance. Thus, this answer is incorrect.
Question 7 of 50
ID# 6794
Brent states that Arnold never tells the truth and is not to be trusted. Arnold sues Brent for defamation.
Which of the following facts weaken Arnold's case against Brent?
Brent was trying to tell the bartender in a crowded bar, but the only person who heard the
statement was the man at the next table who shouldn't have been listening to the conversation.
Brent was merely repeating what Jason had told him, and Brent made clear that he was only repeating something he had heard.
Frank is the only one who heard what Brent said, and Frank, who knew Arnold quite well, would never believe what Brent said about Arnold.
Brent was responding to a request for a job recommendation about Arnold and was explaining why Brent's company had to let Arnold go.
Explanation
The correct answer is:
Brent was responding to a request for a job recommendation about Arnold and was explaining why Brent's company had to let Arnold go.
Discussion of correct answer
:If the speaker believes the statement to be true and is communicating a matter
of interest, he has qualified immunity from defamation. One example of this is in requests for job references.
Discussion of incorrect answers
:
Incorrect. Brent was trying to tell the bartender in a crowded bar, but the only person who heard the statement was the man at the next table who shouldn't have been listening to the conversation. In most cases, it is apparent that a defendant desired that third persons receive the defamatory message. However, a message is considered published for purposes of defamation if the defendant negligently permits it to be communicated to third persons. If it is reasonably foreseeable that an eavesdropper might overhear a message, and one does so, there is a sufficient publication. Therefore, the fact that Brent was trying to speak solely to the bartender in a crowded bar does not weaken Arnold's case. Thus, this answer is incorrect.
Incorrect. Brent was merely repeating what Jason had told him, and Brent made clear that he was only repeating something he had heard. Any person who repeats the defamatory message is liable as a publisher.
This is so even where the repetition is qualified by such terms as "alleged" or is said not to be the opinion of the republisher. Therefore, the fact that Brent made clear that he was only repeating what Jason told him does not weaken Arnold's case. Thus, this answer is incorrect.
Incorrect. Frank is the only one who heard what Brent said, and Frank, who knew Arnold quite well, would never believe what Brent said about Arnold. The defamatory message need merely be understood by
the person who receives it. It is not required that the recipient actually believe the defamatory statement. Therefore, the fact that the only person who heard Brent's statement was someone who did not believe it would not operate to relieve Brent of liability in a defamation action. Thus, this answer is incorrect.
Question 8 of 50
ID# 6817
A student applied to and was rejected by the MBA program of the state university. The makeup of each entering MBA class at the university was determined by a formula fixed by state law that took into account the academic record, quality of undergraduate education, and ethnicity of each applicant. According to state policy, the formula was necessary to ensure that each entering class reflected the cultural diversity of the state. The student's academic record was strong, placing her in the top 20 percent of applicants. She believed that she failed to gain admission to the MBA program solely because she was white, and she filed suit in federal court challenging the state's admissions policy and seeking admission to the university's MBA program. A citizen action group filed an amicus
brief. Members of the citizen action group include current students of the state university, as well as tenured faculty and concerned private citizens. While the suit was pending, the student reapplied and was admitted to the MBA program and began her first year of studies.
In a motion to dismiss the student's pending action, filed in federal court by the state,
the student will prevail, because the suit can be continued as a test case without the original plaintiff.
the student will prevail, because members of the citizen action committee have a continuing interest in the action.
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the state will prevail, because the student's action is moot.
the state will prevail, because the student never had standing to bring her action.
Explanation
The correct answer is:
the state will prevail, because the student's action is moot.
Discussion of correct answer
:The student's action is moot and no longer constitutes a "case or controversy." When the student brought her action in federal court, her suit satisfied the "case and controversy" requirement of Article III, Section 2. She had standing because she was able to allege a direct injury (denial of admission to the MBA program) caused by a discriminatory state action. Her action was timely (ripe) because she had suffered an actual injury. When the suit was filed, there was an actual controversy. However, to satisfy the "case and controversy" requirement, a controversy must exist at
all stages of judicial review, from the filing of the complaint through the final appeal. When the student was admitted to the MBA program, her discrimination claim became moot.
Discussion of incorrect answers
:
Incorrect. the student will prevail, because the suit can be continued as a test case without the original plaintiff. The student's claim is no longer a "case or controversy." To satisfy the "case and controversy" requirement of Article III, Section 2, a controversy must exist at all stages of judicial review. When the student was admitted to the MBA program, her claim of discrimination became moot. This is not a class action, so there is no way to substitute a plaintiff. Thus, this answer is incorrect.
Incorrect. the student will prevail, because members of the citizen action committee have a continuing interest in the action. The citizen action group that filed the amicus
brief is not a person directly involved in the suit such that the "case and controversy" requirement of Article III, Section 2 is satisfied. To satisfy the "case and controversy" requirement, the group would have to demonstrate that a live controversy exists
by showing a direct injury (denial of admission to the MBA program) caused by a violation of a constitutional right (discriminatory state admissions policy). The group would also have to show that the case was ripe for review by showing actual injury or a threat of imminent injury. The court only looks at the interests of named parties and does not consider the interests of amici
. Under these facts, the student suffered the only direct injury, and her case was rendered moot by her admission to the MBA program. Thus, this answer is incorrect.
Incorrect. the state will prevail, because the student never had standing to bring her action. The student did have standing to bring the case when she filed suit. She could allege a direct injury in fact (denial of admission to the MBA program). Causation, or the "but-for" test, was shown by the violation of a constitutional right (discriminatory state action)--but for the discriminatory admissions policy, she would have been accepted to the program. Finally, the federal court was able to provide her with a remedy (striking down the allegedly discriminatory state policy). The injury was an injury in fact that she suffered
personally. Therefore, when the suit was filed, an actual controversy existed between the parties that satisfied the "case and controversy" requirement of Article III, Section 2. The controversy became moot when the student was subsequently admitted to the MBA program. Thus, this answer is incorrect.
Question 9 of 50
ID# 6871
Congress enacted the Reproductive Health Act and appropriated funds for the implementation of health education and clinical programs associated with sex education and pregnancy-related medical treatment. The sex-education programs were to provide clients with information about the prevention of sexually transmitted diseases, as well as information about all aspects of pregnancy prevention and termination. The
president, who felt that homosexuality was immoral, ordered all executive branch personnel to refrain from
discussing AIDS-related aspects of health care on the job. A physician's assistant working for the National
Centers for Disease Control challenged the constitutionality of the president's order.
How is the court likely to find on the question of the constitutionality of the president's order?
The order is constitutional, because the president has authority over executive branch employees.
The order is constitutional, because the president has substantial discretion in executing the laws.
The order is unconstitutional, because it violates the president's duty to faithfully execute the laws.
The order is unconstitutional, because the president cannot refuse to spend funds as appropriated.
Explanation
The correct answer is:
The order is unconstitutional, because it violates the president's duty to faithfully execute the laws.
Discussion of correct answer
:The president's order violates the separation of powers. The Constitution authorizes Congress to make laws and the president to execute the laws. The presidential duty to faithfully execute the laws encompasses the obligation to carry out specific standards set by Congress. Unless the legislative branch gives substantial discretion to the executive branch to determine the manner in which a law is to be executed, the president is bound by Congress's standards. In the case of the Reproductive Health Act, Congress delineated the information and medical treatment to be provided to clients, so the president cannot issue an order in conflict with the congressional standards.
Discussion of incorrect answers
:
Incorrect. The order is constitutional, because the president has authority over executive branch employees. While the president has authority over executive branch employees, the president cannot issue orders in direct conflict with the legislative mandate to provide reproductive health education and treatment
to clients. The answer fails to address the issue of a conflict between a congressional mandate and an executive order. Thus, this answer is incorrect.
Incorrect. The order is constitutional, because the president has substantial discretion in executing the laws. The president does not always have substantial discretion in executing the laws. The executive branch's discretionary ability depends on the extent that Congress delegates power to the president to execute a particular law. If Congress, in enacting legislation such as the Reproductive Health Act, sets specific standards for execution of the law, then the president must faithfully execute it as mandated. Thus, this answer is incorrect.
Incorrect. The order is unconstitutional, because the president cannot refuse to spend funds as appropriated. The president has not impounded the funds appropriated by Congress. A president has no authority to impound funds when Congress has mandated their expenditure. The president under these facts has not refused to expend properly appropriated funds, but rather has issued an order in conflict with the congressional purposes of the Reproductive Health Act. Thus, this answer is incorrect.
Question 10 of 50
ID# 6892
In the wake of several incidents involving violent and deadly confrontations between the FBI and splinter groups with political agendas, in which large caches of weaponry and explosives were discovered, Congress enacted the Nitric Acid Containment and Permitting Act. Nitric acid is used to produce not only
explosives and rocket fuel, but also fertilizers. To prevent the use of nitric acid for "violent or terrorist activities," but to allow its ongoing use for the production of fertilizers, the Act provided that "any individual purchasing more than 20 pounds of nitric acid must register with the local branch of the FBI, apply for a user's license, and undergo a background check and one-week waiting period prior to purchase." Chemical companies involved in the large-scale production of fertilizer were exempt from the licensing requirements, but were already subject to stringent government regulations.
If an individual challenged the licensing and registration requirements of the Nitric Acid Containment and
Permitting Act, the court would most likely find the Act
unconstitutional, because the Act will not prevent individuals or groups with violent or terrorist intent from obtaining nitric acid surreptitiously.
unconstitutional, because control of the illegal use of nitric acid is within the police power of the states.
constitutional, because control of the illegal use of nitric acid can be rationally construed as affecting interstate commerce.
constitutional, because there are no external limits on the federal government's power to regulate the states for the general welfare.
Explanation
The correct answer is:
constitutional, because control of the illegal use of nitric acid can be rationally construed as affecting interstate commerce.
Discussion of correct answer
:An act of Congress regulating interstate commerce will be upheld if it can rationally be construed as a regulation of activities having a national economic effect, provided that it violates no other constitutional rights. The Act affects interstate commerce because it regulates activities (illegal uses of nitric acid) that may, in the aggregate, have a national economic effect (the sale of nitric acid in interstate commerce). Therefore, Congress has regulatory authority over nitric acid under the Commerce Clause.
Discussion of incorrect answers
:
Incorrect. unconstitutional, because the Act will not prevent individuals or groups with violent or terrorist intent from obtaining nitric acid surreptitiously. The Act is not invalid simply because it does not address all methods by which people may obtain nitric acid, including theft or other subterfuge. Therefore, this is not a good answer.
Incorrect. unconstitutional, because control of the illegal use of nitric acid is within the police power of the states. The Tenth Amendment police power reserved to the states does not prohibit Congress from regulating the illegal use of nitric acid under one of its enumerated powers. The police power authorizes the states to regulate for the general health, safety, and welfare of state citizens. However, if the federal government is properly exercising one of its enumerated powers, the states must submit to federal authority. Thus, this answer is incorrect.
Incorrect. constitutional, because there are no external limits on the federal government's power to
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regulate the states for the general welfare. The federal government cannot regulate for the general welfare; it can only spend for the general welfare. Under the congressional spending power, federal expenditures for the general welfare need only have a rational basis to be constitutional. There are no external limits on the federal government's power to regulate the states when properly exercising an enumerated power such as the commerce power, but there is no authority to regulate for the general welfare. Thus, this answer is incorrect.
Question 11 of 50
ID# 6918
National regulation of wildflowers on federal lands is most likely
constitutional, because the protection of wildflowers is important to the general welfare.
constitutional, because Congress has authority to make regulations respecting federal property.
unconstitutional, because wildflowers as defined by state common law are not federal properties.
unconstitutional, because regulation and control of wildflowers is retained by the states under the Tenth Amendment.
Explanation
The correct answer is:
constitutional, because Congress has authority to make regulations respecting federal property.
Discussion of correct answer
:Article IV, Section 3 of the Constitution provides that "Congress shall have the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." This so-called "property power" allows Congress to regulate all federal property, both real (federal buildings, post offices, Indian reservations) and personal (military vehicles, surplus food products, plants and animals on federal lands). This is the best choice because the power of Congress to regulate federal property would allow it to regulate plants on federal lands.
Discussion of incorrect answers
:
Incorrect. constitutional, because the protection of wildflowers is important to the general welfare. Congress has no power to regulate for the general welfare of the country. Congress may only act pursuant to a constitutionally enumerated source of power. These include the power to regulate interstate commerce and the power to tax or spend for the general welfare. Because a regulation of plants on federal lands may not involve any taxing or spending, this is not the best choice.
Incorrect. unconstitutional, because wildflowers as defined by state common law are not federal properties. Congress may regulate federal lands and any plants, animals, persons, or activities that take place on or near those lands. Whether the wildflowers are considered federal property according to state common law is irrelevant. Pursuant to any of its enumerated powers, Congress may do whatever is "necessary and proper" to effectuate its legislative goals. Thus, pursuant to the Article IV power over federal property, Congress may regulate living things on federal property when such regulation is necessary
and proper to protect federal property. Moreover, if Congress defined such flowers to be federal property, any conflicting state laws would be struck down as a violation of the Supremacy Clause. Thus, this answer is incorrect.
Incorrect. unconstitutional, because regulation and control of wildflowers is retained by the states under
the Tenth Amendment. The Tenth Amendment is no bar to federal regulation of wildflowers on federal property. The Tenth Amendment reserves to the states and the people all powers not expressly delegated to the federal government. Here, Congress is acting pursuant to the Article IV property power. The Supreme Court rejected the idea that certain "integral" or "traditional state government functions," like the regulation of wildflowers, are immune from federal regulation in Garcia v. San Antonio Metro Transit Authority [469 U.S. 528 (1985)]. After Garcia, as long as the federal regulation is within the scope of an enumerated federal power, the Tenth Amendment is no bar to its validity. Thus, this answer is incorrect.
Question 12 of 50
ID# 6922
A diplomat had spent his entire career stationed in Baruba, a South Pacific nation, as a U.S. diplomatic envoy. Recently, a military junta had overtaken the elected government of Baruba and had taken several hostages, including some United States citizens. Although the diplomat had retired from government service, he undertook to negotiate with the coup leaders for the release of the United States citizens. A criminal law makes it a crime for any citizen of the United States not specifically authorized by the president to negotiate with a foreign government for the purpose of influencing the foreign government in relation to a dispute with the United States. The diplomat has been charged with violating this federal law.
The strongest constitutional ground for the validity of this law is that
under several of its enumerated powers, Congress may legislate to preserve the monopoly of the national government over the conduct of United States foreign affairs.
the president's inherent power to negotiate for the United States with foreign countries authorizes the president, even in the absence of statutory authorization, to punish citizens who engage in such negotiations without permission.
the law deals with foreign relations and, therefore, is not governed by the First Amendment.
federal criminal laws dealing with international affairs need not be as specific as those dealing with domestic affairs.
Explanation
The correct answer is:
under several of its enumerated powers, Congress may legislate to preserve the monopoly of the national government over the conduct of United States foreign affairs.
Discussion of correct answer
:A federal law involving foreign relations is best supported by one or more of
Congress's powers over war, defense, and foreign affairs. To be valid, all federal laws must be based upon the proper exercise of enumerated constitutional congressional powers. This is because only the legislative
branch of the federal government may pass laws. In the area of foreign affairs, Congress has enumerated legislative powers over foreign commerce, declaration of war, regulation of the armed forces, and other areas of foreign relations. As a necessary and proper means of carrying these enumerated powers into effect, Congress could rationally conclude that criminal penalties were necessary to prevent unauthorized individuals from negotiating with foreign countries in relation to disputes with the United States. This is
the best choice because it alone identifies a constitutional source of power authorizing Congress to pass this law.
Discussion of incorrect answers
:
Incorrect. the president's inherent power to negotiate for the United States with foreign countries authorizes the president, even in the absence of statutory authorization, to punish citizens who engage in such negotiations without permission. The president is constitutionally authorized to execute laws passed by the legislature, not to make law. The call of the question asks for the strongest reason why the law is valid. To be valid, a federal law must first be based upon a proper exercise of federal legislative power. This means that a congressional source of power is generally required. There is some limited inherent emergency power of the president to make law in emergency situations, but this power is constitutionally suspect because of the possible usurpation of legislative authority it entails. This is not the best choice because a reliance on the inherent emergency legislative power of the president is a weak argument to support the validity of a federal law, especially when the correct choice provides a legislative source of power.
Incorrect. the law deals with foreign relations and, therefore, is not governed by the First Amendment. First Amendment freedom of expression protects speech involving foreign affairs as well as domestic politics. A law that seeks to punish speech because of its content must directly advance a compelling government interest and burden no more speech than is necessary, unless the speech is one of the special types of expression that receive limited or no constitutional protection, such as speech that is obscene, defamatory, commercial, or incites imminent violence. This is not the best choice because it inaccurately suggests that all expression involving foreign relations can be prohibited. This also is not the best choice because it fails to state the constitutional source of power to enact the law.
Incorrect. federal criminal laws dealing with international affairs need not be as specific as those dealing with domestic affairs. To be valid, a federal law must be enacted pursuant to a constitutional source of legislative power. This is not the best choice because it fails to state why this federal law is within the scope of a constitutional source of power. The specificity of the law will only be an issue if it is determined that the law has been validly enacted in the first place.
Question 13 of 50
ID# 6976
A corporation is privately owned and incorporated in State A. The corporation contracted with the United States to construct and operate a general store in a federal park in State B. State B imposed a gross receipt tax on all business conducted within the state. State B then sued the corporation to collect that tax on the receipts the corporation received under this federal contract. No federal statutes or administrative rules are applicable, and the contract between the United States and the corporation does not mention state taxation.
The court should hold the state tax, as applied here, to be
constitutional because a state has exclusive jurisdiction over all commercial transactions executed wholly within its borders.
constitutional because private contractors performing work under a federal contract are not immune in these circumstances from non-discriminatory state taxation.
unconstitutional because it violates the Supremacy Clause.
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unconstitutional because it imposes an undue burden on interstate commerce.
Explanation
The correct answer is:
constitutional because private contractors performing work under a federal contract
are not immune in these circumstances from non-discriminatory state taxation.
Discussion of correct answer
:A state tax levied against an independent contractor hired by the federal government is valid as long as the tax does not discriminate against the federal government or its agents. While state and local governments are forbidden by the Supremacy Clause from directly taxing or regulating the federal government, they are allowed to impose indirect, non-discriminatory taxes on the federal government. In this regard, state taxes imposed upon federal employees, federal contractors and federal lessees have been upheld because the "legal incidence" of the taxes did not fall upon the federal government and the taxes were applied to all employees, contractors or lessees, not just the federal ones. Because the State B tax was imposed on all businesses in the state, the corporation must pay the tax.
Discussion of incorrect answers
:
Incorrect. constitutional because a state has exclusive jurisdiction over all commercial transactions executed wholly within its borders. This is not the best choice because it overstates the ability of the state and local governments to tax or regulate within their borders. A state cannot exercise exclusive jurisdiction over federal government activities, regardless of where the activity takes place. The police power of the states does not extend to regulation or taxation imposed directly on the federal government, even if the federal government is engaged in commercial activities inside the state.
Incorrect. unconstitutional because it violates the Supremacy Clause. State governments may indirectly tax or regulate the federal government by imposing taxes on federal employees, contractors, or lessees as long as the tax does not discriminate against the federal agents. Therefore, this is not the best choice, because the tax was payable by the federal contractor (not directly by the federal government) and was imposed on all businesses (non-discriminatory). Moreover, there were no applicable federal statutes, administrative rules or contractual language which might directly preempt the tax.
Incorrect. unconstitutional because it imposes an undue burden on interstate commerce. State or local regulations or taxes imposed on interstate commerce will be struck down as violative of the Commerce Clause if the laws discriminate against interstate commerce or impose an undue burden on interstate commerce. A state tax on the gross receipts of all business conducted within the state as applied to an out-
of-state corporation does not, without additional facts, impose an undue burden on interstate commerce. This choice states that a gross receipts tax imposed on all business conducted within the state is, by definition, an undue burden on interstate commerce. However, there are no facts to suggest that the tax is exceedingly high or excessively interferes with the interstate flow of goods and services. Thus, this is not the best choice because it erroneously suggests that any gross receipts tax applied to out-of-state businesses
doing business in the state amounts to an undue burden on interstate commerce.
Question 14 of 50
ID# 6990
A small local organization is limited to people who can prove that they are 100 percent Irish, and that they
are first-, second-, or third-generation Irish-American. The purpose of the group is for members to discuss
and implement ways to preserve their Irish heritage and improve working conditions for Irish-American citizens. Many politicians are members and help the group with its legislative and charitable work. The members meet regularly in the conference hall of a local hotel, and new members are admitted twice per year on recommendation of current and past members. As part of the initiation ceremony, each new member takes an oath to uphold the standards and mission of the organization and to refrain from seeking
membership for non-Irish-Americans.
A state legislator of Italian descent, with a majority of his constituents of Irish descent, believes membership in the Irish organization would allow him to gain insight into the values of his constituents, thereby enabling him to better represent them. He applied but was denied membership.
If challenged in court, which of the following is the best constitutional argument the organization can make in defense of its exclusion of the state legislator?
There is no state action.
The exclusion is permissible under Fourteenth Amendment equal protection principles.
Forcing admission of the state legislator would violate existing private contract rights.
Forcing admission of the state legislator would constitute a bill of attainder.
Explanation
The correct answer is:
There is no state action.
Discussion of correct answer
:The protections of the Constitution are triggered where there is state action. State action can be inferred where a private organization is performing functions traditionally and exclusively performed by the state or where the private organization is closely intertwined with the state. Here there is none of the above and, therefore, any of the provisions that might otherwise apply, including the Fourteenth Amendment and the First Amendment (freedom of association), have no application. The membership of some public officials does not constitute state action.
Discussion of incorrect answers
:
Incorrect. The exclusion is permissible under Fourteenth Amendment equal protection principles. This answer is not the best choice because it is too narrowly tailored. The First Amendment's freedom of association is another protection in the Constitution that might apply had state action been found. Therefore, the strongest answer is that there is no state action, real or inferred.
Incorrect. Forcing admission of the state legislator would violate existing private contract rights. The constitutional prohibition against impairment of contracts refers only to legislation enacted to modify the contractual obligations of private parties, and there is no such legislation presented in the facts. Under Art.
I, sec. 10 of the Constitution, states cannot pass any law "impairing the obligation of contract." Legislation modifying private contract rights will be upheld only if the legislation is necessary to advance an important state interest and does not substantially impair existing contract rights. There is no state legislation at issue in this case. Thus, this answer is incorrect.
Incorrect. Forcing admission of the state legislator would constitute a bill of attainder. A bill of attainder is a legislative act that punishes an individual without a judicial trial, and no such act is presented in the facts. The Constitution prohibits the legislature from inflicting punishment on an individual or an easily ascertainable group without a judicial determination of guilt. No such issue is implicated here. Thus, this answer is incorrect.
Question 15 of 50
ID# 6992
A state fire safety statute requires each township with a population exceeding 10,000 people to maintain a full-time fire department. A church abbey houses a cloistered community of monks in a small town within the state. With the increased pace of life and the violence in the outside world, many middle-aged and older men have sought more contemplative lives within its walls. Over the course of two years, the number of novices in the abbey increases from 200 to 1,000. The increase in the abbey's population brings the
population of the city to more than 10,000, making the city subject to the statute requiring a full-time fire department. The resulting expenditures for the fire department exceed the funds the city had previously allocated for municipal services in the fiscal year. Were it not for the abbey and its population of monks accounting for nearly one-tenth of the city's population, the city would not have to maintain a full-time fire department. The city challenges the state fire safety statute on grounds that it violates the First Amendment
establishment clause by forcing it to allocate a disproportionate amount of the city's resources to its fire department as a result of the abbey being located in the town.
Will the court uphold the statute?
No, because it has a preferential effect in favor of the abbey over other churches.
No, because it fosters an excessive government entanglement with religion.
Yes, because it passes strict scrutiny.
Yes, because it passes the three-part Lemon test.
Explanation
The correct answer is:
Yes, because it passes the three-part Lemon test.
Discussion of correct answer
:The establishment clause of the First Amendment prohibits the government from making any law "respecting the establishment of religion." When the legislation at issue contains no preference for any religion or sect, courts then apply a three-part test to determine whether legislation or a government program violate the establishment clause: (1) the statute must have a secular purpose; (2) the principal or primary effect or purpose must neither advance nor inhibit religion; and (3) the statute must not foster any excessive government entanglement with religion. [Lemon v. Kurtzman, 403 U.S. 602 (1971).] This statute makes no mention of religion, and its primary purpose and effect is fire safety. The fact that the abbey's increased population changes the town's fire department classification does not create an excessive governmental entanglement with religion. Therefore, the court is quite likely to uphold the statute.
Discussion of incorrect answers
:
Incorrect. No, because it has a preferential effect in favor of the abbey over other churches. At issue is the First Amendment's establishment clause, which prohibits the government from making any law "respecting
the establishment of religion." If a law contains any preference for one religion or sect over another, the law
is subject to strict scrutiny. If no such preference is contained in the law, the test the courts apply to determine whether government action provides an unconstitutional benefit to religion is whether the action (1) has a secular purpose; (2) has a principal or primary effect that neither advances nor inhibits religion; and (3) does not result in excessive government entanglement with religion. [Lemon v. Kurtzman, 403 U.S.
602 (1971).] In this instance, fire protection serves a secular purpose, neither advances nor inhibits the monks' religion and does not excessively entangle municipal government with the abbey. The abbey does not benefit more from the law than any other church just because it has a large population. Increased fire safety benefits the town as a whole in a nondiscriminatory fashion. Thus, this answer is incorrect.
Incorrect. No, because it fosters an excessive government entanglement with religion. The fire protection services provided to the abbey do not violate the three-prong Lemon test for violations of the establishment
clause. [Lemon v. Kurtzman, 403 U.S. 602 (1971).] Fire protection serves a secular purpose; it neither advances nor inhibits the monks' religion; and it does not excessively entangle municipal government with the abbey. Fire protection is an essential municipal service that is provided to all members of the secular
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and religious community on a nondiscriminatory basis, and the facts do not indicate that the abbey benefits
excessively or exclusively from the city's provision of fire protection services. The fact that the population of the abbey put the town into a different fire department classification does not mean that the government is now entangled with religion. Thus, this answer is incorrect.
Incorrect. Yes, because it passes strict scrutiny. Strict scrutiny under the establishment clause of the First Amendment is triggered where the governmental program favors one religion or sect over another. Such is not the case here. The statute is secular on its face and in its application. Therefore, this answer choice is incorrect for applying the wrong test.
Question 16 of 50
ID# 7165
Two men, one five years older than the other, were rivals for the same promotion. The older man knew that the younger man's spouse was a very jealous person with a sometimes uncontrollable temper. The older man decided to eliminate the younger man as a competitor for the promotion by prodding the younger man's wife into killing him.
One day, at 11:45 a.m., the older man disguised his voice and called the younger man's wife, telling her that her husband had been having an affair with a co-worker for several weeks and that they met every day
at noon in the company storage room. The older man knew this was not true, but he hoped this news would send the younger man's wife into a jealous rage. The wife, who worked in an adjoining building, immediately rushed to the company at which her husband worked and waited out of sight in the storage room. Enraged, she brought with her a gun she kept in her desk. At noon the older man asked the younger man to go to the storage room and retrieve some supplies needed in the office. When the younger man entered the storage room, his wife, still in a jealous rage, pulled out the gun and shot and killed her husband.
The older man was prosecuted for the homicide of the younger man. The defendant should be found guilty of
first-degree murder.
second-degree murder.
voluntary manslaughter.
involuntary manslaughter.
Explanation
The correct answer is:
first-degree murder.
Discussion of correct answer
:The older man's criminal liability for the homicide of the younger man must
be analyzed step by step. The older man was an actual cause of the homicide, because he set in motion the
force that ended the younger man's life by falsely stating that the younger man was having an affair, knowing that his wife was a jealous person with a volatile temper. The older man was also a proximate cause, because the younger man's wife is a dependent intervening force since her reaction was quite predictable as a result of her known jealousy and violent temper; it was not totally abnormal and would not supersede the older man's criminal liability. The older man had the intent to kill the younger man, and
there was no justification, excuse, or mitigation as to the older man. Premeditation and deliberate action can be accomplished in a short period of time and on these facts, since the older man formulated this plan
to bring about the younger man's death. The older man is, therefore, guilty of the first-degree murder of the younger man.
Discussion of incorrect answers
:
Incorrect. second-degree murder. The older man is guilty of the murder of the younger man. Almost all jurisdictions separate murder into degrees; first-degree murder is usually defined as an intentional killing where the defendant acted with premeditation and deliberation (or where the homicide is one of any specified felonies). All other murders fall by default into the second-degree category. Since the older man acted with intent to kill the younger man, and with premeditation and deliberation, the murder is of the first degree.
Incorrect. voluntary manslaughter. Voluntary manslaughter is an intentional killing mitigated by adequate provocation or other circumstances that negate premeditation. This is the category often referred to with phrases like "heat of passion." It is inapplicable in this case because the older man's actions were decidedly premeditated. Therefore, this is not a good answer.
Incorrect. involuntary manslaughter. Involuntary manslaughter is present when a homicide is unintended,
but the defendant's behavior causing the homicide was criminally (grossly) negligent or was a malum in se
misdemeanor. On the facts, the older man intentionally caused the younger man to die. Therefore, the older man's liability will be for murder, not involuntary manslaughter.
Question 17 of 50
ID# 7228
Shortly after midnight, the defendant forced open the skylight of an expensive suburban residence in order to steal jewelry the occupants were reputed to have. When he had searched the entire house, he discovered that the residents had taken their jewelry on vacation with them. The defendant then noticed that a built-in security system installed by the owners had filmed him as he moved about the house. The defendant positioned a wooden bookcase under the camera, stacked some newspapers on it, set the papers afire, and then left the premises. By the time the fire department arrived and doused the flames, summoned by the house's security system, the bookcase was burned to cinders and the wall and ceiling near the security camera were charred and peeling. The camera and its film were unharmed, and the defendant was subsequently apprehended and charged with common law burglary and arson.
What should the jury's verdict be?
The defendant is guilty of burglary but not arson.
The defendant is guilty of arson but not burglary.
The defendant is guilty of both burglary and arson.
The defendant is not guilty of either of the charged crimes.
Explanation
The correct answer is:
The defendant is guilty of both burglary and arson.
Discussion of correct answer
:At common law, burglary was the trespassory breaking and entering of the dwelling house of another, at night, with the intent to commit a felony therein. The defendant's entry into
the residence was clearly a trespassory breaking, since he forced open a skylight and had no right to be on the premises. The defendant acted "during the night," since the events took place at midnight. A residence is a dwelling house, it was not owned by the defendant, and when he entered he intended to steal valuable jewelry, which would by its nature exceed any dollar amount separating misdemeanor theft from the felony variety. Thus, every element of common law burglary is present. The fact that the residents were temporarily away on vacation does not detract from the fact that the building entered was a dwelling house.
Neither does the absence of any jewelry (and, thus, the fact that no grand theft occurred) eliminate the intent to commit a felony element; it is the defendant's intent when he entered the residence, not his ultimate actions, that determine whether the intent element is met. Common law arson is the burning of the
dwelling house of another with malice. "Malice" for purposes of arson is: 1) the intent to burn the dwelling
house of another; or 2) wanton and willful misconduct (conduct that creates a plain and substantial likelihood that a protected structure will be burned), not justified, excused, or mitigated. Again, the defendant's actions satisfy all the elements. The defendant must have intended to burn the house down or, if he didn't so intend, his actions created a plain and substantial likelihood that the house would be destroyed by fire. Common law arson required damage to the structure from the fire, not just to the house's contents. Here, the wall and ceiling were charred and peeling; sufficient fire damage to the structure to support an arson conviction.
Discussion of incorrect answers
:
Incorrect. The defendant is guilty of burglary but not arson. This answer is correct in that the defendant will be guilty of burglary, but the answer omits the fact that the defendant will be found guilty of arson. He
either intended to burn down the house or, if not, then his actions either way created a plain and substantial
likelihood that the house would be destroyed by fire. There was damage to the wall and the ceiling, so there
is sufficient damage to the structure to support a conviction for arson.
Incorrect. The defendant is guilty of arson but not burglary. This omits one of the crimes of which the defendant was guilty. He is guilty for burglary, because his entry into the residence was a trespassory breaking as he forced open a skylight and had no right to be on the premises. He also seemed to have entered at night, which satisfies the "during the night" requirement at common law. Therefore, the defendant is guilty of burglary and this answer is incorrect.
Incorrect. The defendant is not guilty of either of the charged crimes. The defendant will be found guilty of both of the charged crimes. He broke into a residence of another with the intention of committing the felony of stealing the jewels. He then set fire to the house. Thus, he is guilty of both burglary and arson.
Question 18 of 50
ID# 7332
Which of the following is most likely to be a strict liability offense?
A city ordinance making it an infraction, for which a $100 fine is payable, to trespass upon the property of another that is posted as private property.
A state statute providing that the failure to have a current valid inspection sticker on a vehicle is a misdemeanor.
A state statute providing that it is a felony punishable by two, three, or four years in prison to carry a concealed knife whose blade is longer than three and one-half inches.
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A federal statute which provides that any person who files an income tax return containing false information has committed a felony punishable by imprisonment for five years and up to $5,000 in fines.
Explanation
The correct answer is:
A state statute providing that the failure to have a current valid inspection sticker on a vehicle is a misdemeanor.
Discussion of correct answer
:Four categories of crime are likely to be strict liability offenses: regulatory offenses, public welfare offenses, morality crimes, and selling liquor to a minor. A requirement that a vehicle have a valid inspection sticker is a public welfare statute. Two major factors which indicate that a defined crime is a public welfare offense (and, therefore, treated as imposing strict liability) are: 1) that the penalty is not severe; and 2) that the harm to the public from the prohibited behavior is serious. The crime described in this choice--operating a vehicle on public roads without a valid inspection sticker--is only a misdemeanor, and the harm to the public that could result from violation is very serious. It is most likely that a violator would be subject to strict liability--that is, liable without fault or a showing of bad intent.
Discussion of incorrect answers
:
Incorrect. A city ordinance making it an infraction, for which a $100 fine is payable, to trespass upon the property of another that is posted as private property. This is not the correct answer. There are four categories of crime that are likely to be strict liability offenses: regulatory offenses, public welfare offenses, morality crimes, and selling liquor to a minor. An ordinance requiring citizens to respect posted property rights does not fit into any of these categories. Therefore, a trespasser would not necessarily be liable just because she set foot on posted property. Instead, a prosecutor enforcing this ordinance against a trespasser would need to show that the trespasser had intended to enter the posted property with knowledge that she was trespassing.
Incorrect. A state statute providing that it is a felony punishable by two, three, or four years in prison to carry a concealed knife whose blade is longer than three and one-half inches. This answer is incorrect. In general, proof of requisite intent must be established for crimes, with only a few exceptions that carry strict liability. The strict liability crimes are: regulatory offenses, public welfare offenses, morality crimes,
and selling liquor to a minor. The only strict liability category into which this crime arguably fits is "public welfare offense." However, a crime is a public welfare offense only if: 1) the penalty is not severe; and 2) the harm to the public from the prohibited behavior is serious. In this case, the severity of the punishment probably disqualifies the offense from the category of public welfare offenses, and therefore strict liability would not apply. Instead, a prosecutor would need to show that the defendant had the requisite intent to violate the statute.
Incorrect. A federal statute which provides that any person who files an income tax return containing false information has committed a felony punishable by imprisonment for five years and up to $5,000 in fines. This is not the best answer. Of the four categories of crime that carry strict liability--regulatory offenses, public welfare offenses, morality crimes, and selling liquor to a minor--only public welfare offense is arguably applicable to making false statements on a federal tax return. However, two major factors indicate that a defined crime is a public welfare offense: the penalty is not severe and the harm to the public from the prohibited behavior is serious. Here, the severe punishment associated with the defined crime of filing a false income tax return renders it unlikely that this would be considered a public welfare offense. Where the consequences of violation are serious, some wrongful intent or fault is necessary to support a conviction. Thus, conviction under this statute requires a showing that the defendant knew the statements were false when he made them.
Question 19 of 50
ID# 7337
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A father was watching his son's little league baseball game when he became incensed at a call by the umpire that he thought was extremely unfair and even mean-spirited. After the game was over, the father went onto the field and confronted the umpire. They had a heated argument. The umpire finally had to call a park security officer to remove the father so that the next little league game could take place. A half-hour later, the father returned to the same baseball diamond with a baseball bat and began arguing with the umpire again, right in the middle of an ongoing game. The father then beat the umpire with the baseball bat, killing him. At the father's trial for the criminal homicide of the umpire, the father testified that during the second argument, the umpire seized him by the throat. The father further stated that he believed that in order to avoid being choked to death, he had to use the baseball bat to kill the umpire.
In the following scenarios, if the jury makes the stated finding, which is the most likely outcome for the father's trial?
The jury disbelieves the father's testimony and convicts him of involuntary manslaughter.
The jury disbelieves the father's testimony and convicts him of voluntary manslaughter.
The jury believes the father's testimony and convicts him of first-degree murder.
The jury believes the father's testimony and finds that the father's beliefs were reasonable,
and acquits him of all homicide charges.
Explanation
The correct answer is:
The jury believes the father's testimony and finds that the father's beliefs were reasonable, and acquits him of all homicide charges.
Discussion of correct answer
:Even where there is no actual threat of deadly force against a defendant, if there reasonably appears to be such a threat, and the defendant honestly believes that he must defend himself with deadly force, a resulting homicide is justified. If the jury believed the father's testimony about his subjective beliefs, and further found that those beliefs were reasonable, the father would be guilty of no crime in the homicide of the umpire.
Discussion of incorrect answers
:
Incorrect. The jury disbelieves the father's testimony and convicts him of involuntary manslaughter. This choice is not correct on the facts. Involuntary manslaughter is an unintentional killing without malice aforethought. Conviction on involuntary manslaughter charges is not a plausible outcome on these facts. The facts state that the father left the area and returned, armed with a weapon, the baseball bat. He then deliberately resumed his argument with the umpire, which ended in the umpire's death by beating. A jury could not plausibly conclude that the father had no malice aforethought when the father left the vicinity, returned with a weapon, and--without provocation--behaved aggressively to the victim.
Incorrect. The jury disbelieves the father's testimony and convicts him of voluntary manslaughter. This answer is not the best choice. Voluntary manslaughter is an intentional homicide with extenuating circumstances that mitigate criminal liability to some degree. Voluntary manslaughter is a killing that is intentional but occurs in the heat of passion. Here, the father left the vicinity for about half an hour before returning to resume his argument with the umpire. The father had an adequate period to cool off, and, therefore, the heat of passion cannot mitigate his liability for his actions. Note that if the jury believed that
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the father thought his life was in danger, voluntary manslaughter is a likely verdict. However, the choice states that the jury did not believe the father's testimony, so this is an incorrect answer choice.
Incorrect. The jury believes the father's testimony and convicts him of first-degree murder. This choice is not correct, although the jury may believe the father's testimony and still convict him of a crime if it finds that the father's belief that his life was in danger was not reasonable. If the defendant honestly believes that a deadly attack requires the use of deadly force in self-defense, but is unreasonable in so believing (i.e., a reasonable person in the same circumstances would not think deadly force was necessary in self-defense), a
resulting homicide is no longer justified, but may be mitigated from murder to voluntary manslaughter. In contrast, a conviction on first degree murder charges requires the jury to find that the defendant acted with malice and deliberation. If the jury believed the father's testimony regarding his fear for his life, then it would be a contradiction for the jury to also find that the father acted with malice and deliberation. Thus, this is an incorrect answer.
Question 20 of 50
ID# 7338
A stockbroker was president of a corporation in the business of linking investors with property owners who wished to borrow money. The stockbroker offered to arrange a $25,000 loan for a homeowner, to be secured by the homeowner's residence, in exchange for a fee of $2,500. The stockbroker persuaded a lender to loan the $25,000 to the homeowner at 15 percent interest by falsely representing that the homeowner had $50,000 worth of equity in the home and that the lender would be a second mortgagee. In
fact, the homeowner had no equity in his home and the lender became the fourth mortgagee as to that home.
Assuming that the stockbroker is guilty of a felony in connection with the homeowner-lender transaction, is the corporation criminally liable for the same offense?
No, because it is impossible to imprison a corporation.
No, because a corporation cannot have the requisite wrongful mental state to be convicted of a crime.
Yes, but only if the stockbroker is first convicted of the offense in question.
Yes, because the stockbroker was acting within the scope of his duties as president of the
corporation.
Explanation
The correct answer is:
Yes, because the stockbroker was acting within the scope of his duties as president
of the corporation.
Discussion of correct answer
:Here, the stockbroker committed a felony while conducting what is clearly corporate business--arranging loans between investors and property owners. The corporation is therefore liable for the same offense.
Discussion of incorrect answers
:
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Incorrect. No, because it is impossible to imprison a corporation. This is not the correct answer. At early common law, one justification for not holding a corporation liable for crimes committed by its agents was that it had no body which could be imprisoned. In modern times, the possibility of fines or other non-
imprisonment sanctions has obviated the old common law rule. Corporations can be liable for criminal offenses, even though it is not possible to incarcerate a corporation.
Incorrect. No, because a corporation cannot have the requisite wrongful mental state to be convicted of a crime. This answer is incorrect. Although old common law doctrine held that a corporation had no mind, and thus could not possess a criminal mental state, the modern rule is that the wrongful mental state of the corporate agent is imputed to the corporation. Thus, corporations may be convicted of crimes if their agents have the requisite mens rea
.
Incorrect. Yes, but only if the stockbroker is first convicted of the offense in question. This is not the best answer. It is true that a corporation can only act through its human agents, and so is criminally liable solely because of the acts of its agent. Therefore, it is necessary to prove that the acts of the agent constituted a crime in order to hold a corporation liable for the crime. However, it is not necessary that the
agent be convicted of that crime first.
Question 21 of 50
ID# 7376
A plumber and an electrician have been friends for many years. The plumber tells the electrician that he has an easy burglary for them to pull off. He tells the electrician that a local jewelry store always leaves jewelry lying around on the counters after showing it to customers. The plumber tells the electrician that all
he has to do is drive the getaway car, and that he (the plumber) will handle the inside part all by himself.
The next afternoon, the electrician drops the plumber off in front of the store. The plumber goes into the store, looks around, and spies a large pile of gold jewelry on the counter. He walks up to the counter, scoops up the jewelry, pockets it, and runs for the door. No one follows, and the plumber makes it out of the store without anyone even noticing. As the plumber nears the corner where he is to meet the electrician,
he turns to see if he is being followed. In the process, he accidentally slams into a pedestrian. The plumber recovers his footing and runs to the car in which the electrician is waiting. The pedestrian takes note of the license plate number and calls the police on his cell phone.
A few blocks away, a patrol vehicle sees the car and executes a stop. The police officers order the plumber and the electrician to exit the vehicle. As they step out of the car, the electrician starts babbling that the jewelry store heist was all the plumber's idea and that he didn't want to go along, but that he thought he could help to keep something really bad from happening. The officers order them both to the ground and frisk them, at which time the police find the stolen jewelry in the plumber's pocket.
Meanwhile, another patrol vehicle pulls up with the pedestrian for a show-up. The pedestrian tells the police that the plumber is the one who knocked him over. A third patrol car brings the jewelry store owner, who also identifies the plumber as the perpetrator of the theft of the jewelry. At the plumber's ensuing criminal trial, the plumber's lawyer moves to exclude the on-the-scene identifications of the plumber from use at his trial.
What is the likely outcome of the plumber's motion?
The identification by the pedestrian will be excluded, because the procedure violated the plumber's due process rights.
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The identification by the jewelry store owner will be excluded, because it was unnecessarily suggestive.
Both identifications will be excluded.
Both identifications will be admitted.
Explanation
The correct answer is:
Both identifications will be admitted.
Discussion of correct answer
:A show-up, like any other identification procedure, will be considered valid unless it is unnecessarily suggestive and likely to produce an irreparable, mistaken identification [Stovall v. Denno, 388 U.S. 293 (1967)]. Here, there is no indication that either of the two show-ups was unduly suggestive--the defendant wasn't, for example, handcuffed or forced to pose in an incriminating position. As such, the identifications are admissible as evidence.
Discussion of incorrect answers
:
Incorrect. The identification by the pedestrian will be excluded, because the procedure violated the plumber's due process rights. The show-up of the pedestrian will be admitted (as will the show-up of the store owner). A show-up will be considered constitutional--i.e., not violative of a defendant's due process rights--as long as it is not unnecessarily suggestive and not likely to produce an irreparable, mistaken identification. Nothing in the facts suggests that this show-up was unnecessarily suggestive. Thus, this answer is incorrect.
Incorrect. The identification by the jewelry store owner will be excluded, because it was unnecessarily suggestive. The court would likely hold both show-ups constitutional. A show-up will be deemed constitutional as long as it is not unnecessarily suggestive and not likely to produce an irreparable, mistaken identification. Nothing in the facts suggests that the show-up of the jewelry store owner (or the show-up of the pedestrian) was unduly suggestive. Thus, this answer is incorrect.
Incorrect. Both identifications will be excluded. To the contrary--both identifications will likely be admitted. A show-up is considered a valid identification procedure as long as it is not (1) unnecessarily suggestive; and (2) likely to produce an irreparable, mistaken identification. Nothing in the facts suggests that either of the two show-ups was unduly suggestive. Indeed, the show-ups might be considered even more fair than the typical show-up in that there was another person present (the electrician) besides only the police officers and the accused. Thus, this answer is incorrect.
Question 22 of 50
ID# 7455
A florist was weeding his prize tulips when he saw a man run out of his neighbor's house carrying a television. The man jumped in a car and sped away. The florist immediately telephoned the police. Later, at the police station, the florist identified a man from "mug shots" as the man who ran out of the house. The florist gave the police a signed statement and testified before the grand jury regarding the identity of the man. The man was indicted.
At trial, the prosecutor called the florist to identify the man as the man he saw run out of the house. The florist stared at the man, then responded, "No. I don't recognize him." The prosecutor then asked the florist, "Didn't you identify this man at the police station and also testify to his identity before the grand jury?" The man's attorney objected.
Will the objection be sustained?
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Yes, since a party cannot impeach his own witness.
Yes, since the prior statements and identification constitute inadmissible hearsay.
No, because a party may impeach his own witness.
No, because the florist's earlier statements and identification are more reliable.
Explanation
The correct answer is:
No, because a party may impeach his own witness.
Discussion of correct answer
:Under the Federal Rules of Evidence, a witness can be impeached by any party, including the party calling the witness. Therefore, the prosecution can ask the florist about his prior inconsistent statements and identification of the man and the attorney's objection to the question will be overruled. Thus, this answer is correct.
Discussion of incorrect answers
:
Incorrect. Yes, since a party cannot impeach his own witness. The Federal Rules of Evidence permit any party to attack the credibility of a witness, even the party calling that witness. Therefore, the prosecutor can ask the question about prior inconsistent statements in an attempt to impeach the florist and the objection will not be sustained. Thus, this answer is not correct.
Incorrect. Yes, since the prior statements and identification constitute inadmissible hearsay. A prior inconsistent statement is not hearsay if it is used only for impeachment purposes or if it is a sworn statement, i.e., given under oath. In this case, the florist's prior statement was made before a grand jury and was under oath. Thus, the prior statement before the grand jury is not inadmissible under the hearsay rule. Additionally, prior identifications do not violate the hearsay rule under the Federal Rules of Evidence, so long as the declarant is available to testify at the trial. The florist is available and, in fact, is testifying. Therefore, the statements and identifications are not hearsay and the objection will be overruled.
Incorrect. No, because the florist's earlier statements and identification are more reliable. The reliability of evidence is determined by a jury. Before the jury can make that reliability determination, the judge determines admissibility. The statements and identification are offered for impeachment purposes, to attack the credibility of the florist, and they are admissible for that purpose. Therefore, the attorney's objection to the admissibility of that evidence will be overruled and this answer is incorrect.
Question 23 of 50
ID# 7563
A plaintiff filed a civil action against a husband and wife after their dog bit the plaintiff. An issue in the case was whether the husband and wife had prior knowledge of their dog's propensity for biting others. During the wife's testimony at trial, the plaintiff's attorney questioned the wife about whether she had ever said to her husband that the dog was going through a biting stage. The plaintiff had heard a rumor among the couple's neighbors that the wife was upset that her husband had dismissed her concerns regarding the dog's likelihood of biting someone. But the plaintiff could not find a witness who heard any discussion between the spouses about the dog's biting. The husband and wife had been married since before acquiring the dog but recently divorced after the lawsuit had been filed but before it made it to trial. The husband's attorney objected to the question.
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Can the husband prevent the wife from answering the question?
No, because the couple has since divorced.
No, because the only the wife can assert the privilege to avoid answering the question.
Yes, because the testimony would violate the marital communication privilege.
Yes, because the statement is an admission by a party opponent.
Explanation
The correct answer is:
Yes, because the testimony would violate the marital communication privilege.
Discussion of correct answer
:The marital communication privilege allows either spouse to refuse to disclose or prevent the other spouse from disclosing confidential communications made between the spouses during their marriage. Unlike the spousal privilege that applies in criminal cases, the marital communication privilege does not terminate when the marriage ends. Even after the spouses divorce, the marital communication privilege still protects from disclosure any confidential communications between the spouses made during the marriage. Here, any statement the wife made to the husband regarding the dog's likelihood of biting others was made during their marriage. Therefore, the husband can assert the marital communication privilege to prevent the wife from answering the plaintiff's lawyer's question. Therefore, this answer is correct.
Discussion of incorrect answers
:
Incorrect. No, because the couple has since divorced. The marital communication privilege protects from disclosure confidential communications made between spouses during the marriage. Either spouse may refuse to disclose or may prevent the other spouse from disclosing those communications. The privilege survives a divorce. Here, any statements the wife made to her husband during the marriage about the dog's likelihood of biting someone were protected by the privilege. The divorce does not remove that privilege. Therefore, this answer is incorrect.
Incorrect. No, because the only the wife can assert the privilege to avoid answering the question. The marital communication privilege applies to confidential communications made between spouses during the
marriage. The privilege can be asserted by either spouse, regardless of whether the spouse is a party to the action. Any statements the wife may have made about the dog's propensity to bite others were made during
the marriage. Therefore, in this case, either the husband or the wife can assert the privilege to refuse to disclose or prevent the other spouse from disclosing confidential communications about the dog's propensity to bite others. Therefore, this answer is incorrect.
Incorrect. Yes, because the statement is an admission by a party opponent. Under Federal Rules of Evidence regarding hearsay, an out-of-court statement offered to prove the truth of the matter asserted can be excluded as hearsay. However, an admission by a party opponent is classified as non-hearsay and therefore admissible. Thus, the wife's out-of-court statements to the husband that admit knowledge the dog could bite someone might be admissible as non-hearsay. However, the statement can still be excluded on other grounds. In this case, the husband can assert a privilege to prevent the disclosure of the wife's statement. Therefore, this answer is incorrect.
Question 24 of 50
ID# 7650
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A driver is on his way home from the local bar when he collides with another vehicle. A police officer sees the driver get out of his pickup truck, lose his balance and fall. It is apparent that he is intoxicated. The officer administers roadside sobriety tests and determines that the driver is drunk. The driver is arrested and taken to the police station, where he takes a Breathalyzer test and his blood alcohol level is revealed to be at two times the legal limit. The driver is charged with driving while intoxicated and initially pleads guilty. However, at the time of his sentencing, it is discovered that the driver had a prior conviction for driving while intoxicated. As such, the judge would be required to sentence him to at least three months in prison. At that point, the driver withdraws his guilty plea. The case subsequently goes to trial, and the driver is found guilty of driving while intoxicated, a misdemeanor offense in the jurisdiction.
One month later, the driver of the other vehicle files suit against the first driver for injuries sustained in the
accident and the property damage to his car.
If the other driver moves to have the testimony from the guilty plea entered into evidence, what is the likely outcome?
The testimony will be excluded, because evidence of a plea agreement is never admissible.
The testimony will be excluded, because the plea was withdrawn.
The testimony will be admitted, because a plea is a statement against penal interest and is therefore non-hearsay.
The testimony will be admitted, because it is relevant to the driver's state of mind.
Explanation
The correct answer is:
The testimony will be excluded, because the plea was withdrawn.
Discussion of correct answer
:While it might seem that a plea of guilty would constitute an admission by a
party and therefore be admissible as non-hearsay, for public policy reasons a withdrawn plea cannot be used against a person at a later civil or criminal proceeding. Federal Rule of Evidence 410 provides that evidence of a plea of guilty that was later withdrawn is not admissible in any civil or criminal proceeding against the defendant who made the plea.
Discussion of incorrect answers
:
Incorrect. The testimony will be excluded, because evidence of a plea agreement is never admissible. Federal Rule of Evidence 410 provides that evidence of a plea of guilty that was later withdrawn is not admissible in any civil or criminal proceeding against the defendant who made the plea. However, the rule
does provide for certain exceptions, and the rule does not bar evidence of a plea that is not withdrawn. As such, it is incorrect to say that evidence of a plea agreement is never admissible.
Incorrect. The testimony will be admitted, because a plea is a statement against penal interest and is therefore non-hearsay. Unlike an admission, a statement against penal interest is considered hearsay under the Federal Rules of Evidence, and is admissible only where the declarant is unavailable. As such, this answer is incorrect.
Incorrect. The testimony will be admitted, because it is relevant to the driver's state of mind. Although the evidence is relevant, even relevant evidence may be excluded if it is hearsay or for public policy or other reasons. As such, this answer is incorrect.
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Question 25 of 50
ID# 7662
An owner of several charter fishing boats employed about ten employees to conduct the excursions, while he spent a nominal amount of time completing the administrative work. One afternoon, he received a telephone call from the Coast Guard. He was told that one of his boats had run into a yacht that afternoon. Although no one was hurt, his boat had sunk. Infuriated, he turned to his secretary and said, "one of our boats ran into a yacht this afternoon. There go our insurance rates. I knew I shouldn't have kept that captain
on with that drinking problem!" The Coast Guard later established that the yacht had run into the boat. However, the yacht's owner brought suit anyway.
At trial, the fishing boat owner's secretary is called to testify to his statement. Her testimony is
inadmissible, because the owner had no firsthand knowledge of the accident.
inadmissible, because it constitutes opinion.
admissible, to impeach owner's expected testimony.
admissible, as an admission.
Explanation
The correct answer is:
admissible, as an admission.
Discussion of correct answer
:The owner's statements to his secretary are admissible as admissions. Admissions are words or acts of a party opponent offered as evidence against him. This is a tough question. The facts "sucker" you because you know the evidence is inaccurate. However, the judge has to admit the evidence for the jury to weigh.
Discussion of incorrect answers
:
Incorrect. inadmissible, because the owner had no firsthand knowledge of the accident. This answer is wrong because it is immaterial whether the speaker has first-hand knowledge. This is an admission which comes into evidence.
Incorrect. inadmissible, because it constitutes opinion. Lay opinion is admissible where it is rationally based on the witness' perceptions and is helpful to the jury. Lay opinions regarding alcohol use are permissible.
Incorrect. admissible, to impeach owner's expected testimony. This choice is a classic distractor. A witness
cannot be impeached before he has testified. This wording is a misstatement which should never present a correct argument for admissibility.
Question 26 of 50
ID# 7715
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A mother had a son and daughter. The mother adored the daughter and tolerated the son. However, at the time the mother wrote her will, only the son had children. Feeling obligated to provide for her grandchildren, but preferring to provide for the daughter, the mother included the following provision in her will: "I leave all my real property to my son for life, remainder to his children. But if my daughter has children, I leave all my real property to my daughter in fee simple." The mother died in 2025. In 2037, after giving birth to her first child, the daughter sued to have the title put in her name.
Which party will prevail?
The son's children, because their interest vested at the mother's death.
The daughter, because it is a valid gift.
The son, because his interest vested at the mother's death.
The son, because the gift to the daughter violated the Rule Against Perpetuities.
Explanation
The correct answer is:
The daughter, because it is a valid gift.
Discussion of correct answer
:The Rule Against Perpetuities provides that a gift must vest or fail within 21
years after a life in being at the time the gift was created. A testamentary gift is created when the testator dies. In this case, the daughter will be the life in being at the time the gift was created (the measuring life). As she will (or will not) have children before the requisite time of 21 years after her death (the law does not yet take into account the miracles of modern reproductive science), the gift to her will vest or fail
within the requisite time period. Therefore, the gift does not violate the Rule Against Perpetuities and is fully valid.
Discussion of incorrect answers
:
Incorrect. The son's children, because their interest vested at the mother's death. The mother's death merely gave the son's children a shifting executory interest. Their interest cannot vest until and unless the daughter dies childless.
Incorrect. The son, because his interest vested at the mother's death. At the time of the mother's death, the son held only a contingent life estate. His children's interest could not vest until and unless the daughter died childless.
Incorrect. The son, because the gift to the daughter violated the Rule Against Perpetuities. The Rule Against Perpetuities provides that a gift must vest or fail within 21 years after a life in being at the time the gift was created. A testamentary gift is created when the testator dies. In this case, the daughter will be the life in being at the time the gift was created. As she will (or will not) have children before the requisite time of 21 years after her death (the law does not yet take into account the miracles of modern reproductive science), the gift to her will vest or fail within the requisite time period. Therefore, the gift to
the daughter does not violate the Rule Against Perpetuities and is fully valid.
Question 27 of 50
ID# 7722
An owner of a small private airport on a resort island dies, leaving the airport by validly recorded and executed executor's deed "to my son for life, then to my daughter." After inheriting the airport, the son runs
the airport for several years, until he is injured in a catastrophic accident that leaves him unable to work.
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The son enters into a properly executed lease agreement with a pilot, according to which the pilot agrees to
pay the son $120,000 in annual rent for a term of 15 years. The pilot runs the airport successfully for 10 years, at which time the son dies from complications associated with his accident years before. The daughter now seeks to use the land on which the airport is located for something unrelated to aviation and demands that the pilot quit the premises. The pilot refuses to cease airport operations.
In an action by the daughter to eject the pilot, what is the most likely outcome?
The daughter will prevail, but she is liable to the pilot for costs related to the pilot's expulsion from the airport.
The daughter will prevail, because the daughter has the right to possess the airport.
The pilot will prevail, because there are five years remaining on the lease.
The pilot will prevail, because daughter must honor the terms of the lease agreement.
Explanation
The correct answer is:
The daughter will prevail, because the daughter has the right to possess the airport.
Discussion of correct answer
:A life tenant cannot lease, mortgage, or otherwise encumber a property to an extent greater than his interest in the property. As a life tenant of the airport, the son could not legally lease
the airport for a period extending longer than his lifetime. Therefore, even though the son could legitimately enter a lease with the pilot, his ability to lease the property terminated automatically upon his death. Upon the death of the life tenant (son), ownership of the airport immediately passed to the remainderman (daughter). At that point, the daughter became the fee simple owner of the airport. As fee simple owner, the daughter's ownership interest supersedes the interests of all others in the property, and she may therefore properly demand that the pilot quit the premises. If the pilot refuses to leave, the daughter will prevail in an action to eject her.
Discussion of incorrect answers
:
Incorrect. The daughter will prevail, but she is liable to the pilot for costs related to the pilot's expulsion from the airport. As life tenant of the airport, the son could lease it to the extent of his life tenancy interest in the property--that is, for the period of his lifetime. Here, he entered into a 15-year lease with the pilot. The lease would have remained perfectly valid had the son lived at least 15 more years. However, when the son died 10 years into the term of the lease, the remainderman (the daughter) became the fee simple owner
of the airport and the lease between the son and pilot therefore became invalid. Thus, the son's estate may be liable to the pilot for damages relating to the son's effective breach of the lease agreement. However, because there is no lease or contract between the daughter and the pilot, the daughter would not be liable to
the pilot for costs related to the pilot's expulsion from the property. Thus, this answer is incorrect.
Incorrect. The pilot will prevail, because there are five years remaining on the lease. The term of the lease agreement between the son and pilot was 15 years. However, because the son was only a life tenant in the airport, his ability to lease the property terminated upon his death. When the son died 10 years into the 15-
year term of the lease, the lease became invalid, because the son was no longer the actual title owner of the
property. Therefore, the pilot cannot prevail in an action to enforce the lease. In this case, the validly executed and recorded deed contained information regarding the son's life tenancy interest in the airport. As such, the pilot could be charged with constructive knowledge of the son's life tenancy. Thus, this answer
is incorrect.
Incorrect. The pilot will prevail, because daughter must honor the terms of the lease agreement. The lease of the airport was between the life tenant (the son) and the pilot, not between the daughter and pilot. As the
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remainderman, the daughter has no obligation to honor the terms of a lease that wrongfully encumbers her ownership of the property. Had the pilot signed a lease with both the son and daughter, or had the daughter
ratified the lease between the pilot and the son, then the daughter would be required to honor the lease agreement. However, given that she was not a party to the lease, the daughter is under no obligation to honor it. Thus, this answer is incorrect.
Question 28 of 50
ID# 7753
In 2035, an owner of a parcel of land in fee simple absolute conveyed the land to a nonprofit outdoor recreation organization for the life of his daughter and, after the death of his daughter, to all of his grandchildren and their heirs. The nonprofit organization "shall use the premises for camping and outdoor
recreational purposes only." The organization uses the land for camping, hiking, nature studies, and related outdoor activities. However, in 2040, when the head of the organization is convicted of soliciting an act of prostitution and donations fall by 60 percent, the organization sells logging rights for a 1,000 acre portion to a lumber company. The lumber company has regularly logged the designated area and paid
its royalties since 2040. The organization has continued to use the unlogged portion of the land for camping and outdoor activities. In 2045, all three of the living grandchildren of the owner sue the organization and the lumber company, seeking damages for the logging and an injunction preventing any further logging. There is no applicable statute.
Which of the following best describes the likely disposition of this lawsuit?
The land should revert to the owner's estate, because the interest of the organization terminated with the first logging of trees on the land.
The court should grant the injunction and damages, but the damages should be impounded for future distribution.
The court should grant the injunction but deny damages, because the owner and the daughter are not parties to the action.
The court should award damages, but not an injunction.
Explanation
The correct answer is:
The court should grant the injunction and damages, but the damages should be impounded for future distribution.
Discussion of correct answer
:The interest created in the organization is a life estate pur autre vie
(measured by the life of a person other than the grantee - in this case, the daughter). As a life tenant, the organization may not exploit the natural resources of the property unless the creating instrument expressly permits it. The injury is to the remainderpersons, who are entitled to receive the property at the natural termination of the life estate in the same condition in which the life tenant took possession of it. However, the organization has committed affirmative waste. Thus, the grandchildren of the owner can enjoin any further logging and must be compensated in damages for the trees already wrongfully cut and removed.
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Discussion of incorrect answers
:
Incorrect. The land should revert to the owner's estate, because the interest of the organization terminated
with the first logging of trees on the land. The effect of the final phrase in the grant - that the organization "shall use the premises for camping and outdoor recreational purposes only" - is problematic. It appears to
create a defeasible life estate, but in favor of whom? If the organization's interests were destroyed, the land
would revert to the owner for the life of the daughter, remainder to the grandchildren. However, the quoted
phrase uses words of condition rather than words of duration, so that the defeasible estate is subject to a condition subsequent (rather than determinable), and no express right of reentry was provided for. Thus, the organization's interest does not terminate automatically upon the first logging and removal of trees. By
failing to expressly provide for a right of reentry, the owner effectively gave the organization a life estate pur autre vie free of the purported camping and outdoor recreation purposes limitation (but not free
of the obligation to avoid waste). In any case, since the owner has done nothing to exercise any right of reentry, this choice's automatic termination notion makes it inaccurate.
Incorrect. The court should grant the injunction but deny damages, because the owner and the daughter are not parties to the action. The owner and the daughter have no interest in the land that is harmed by the affirmative waste committed by the organization. The daughter never had any interest in the land; hers was
merely the life by which the organization's life estate was measured. The owner might be viewed as having
a right of reentry, but the injury of logging the forest is to the rights of the remainderpersons, the grandchildren of the owner. The owner is not a necessary party to an action to enjoin future waste and to recover damages.
Incorrect. The court should award damages, but not an injunction. The remainderpersons have a right both to enjoin any future affirmative waste and to recover damages for the waste that has already occurred.
Their remedy at law--damages--for the future waste is inadequate because they would have to return to court again and again to obtain relief. Only an injunction will prevent future harm in a judicially economic
fashion.
Question 29 of 50
ID# 7764
A rancher granted Greenacre to his son-in-law, the son-in-law's heirs and assigns, provided that the son-in-
law is survived by issue of himself and the rancher's daughter, but if the son-in-law dies without issue of himself and the rancher's daughter, then to the rancher's nephew. The son-in-law has discovered that the mountains on the eastern edge of Greenacre are rich in copper.
May he properly mine copper from Greenacre?
No, because, under the open mines doctrine, the son-in-law is not permitted to open a new mine after he takes possession of Greenacre.
No, because mining at Greenacre would invade the nephew's future interest in the property.
Yes, because the son-in-law holds a fee simple determinable, so he may use Greenacre as
he pleases.
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Yes, because the son-in-law holds a fee simple defeasible, he may use Greenacre as he pleases.
Explanation
The correct answer is:
Yes, because the son-in-law holds a fee simple defeasible, he may use Greenacre as
he pleases.
Discussion of correct answer
:The son-in-law was granted a fee simple subject to an executory interest in Greenacre. The "heirs and assigns" language creates a fee interest, and the words of condition that require that the son-in-law die survived by children of himself and the rancher's daughter establish that the fee is defeasible; upon the occurrence of the specified condition (no children of the son-in-law and the rancher's daughter survive him), the fee interest in Greenacre passes to the rancher's nephew. The owner of a fee interest is not limited (except as specified in the grant of the fee) in the manner in which he may use the property. Holders of executory interests have no right to complain of "waste," as do remaindermen who follow a life estate. Therefore, the son-in-law may open a mine on Greenacre without regard for the nephew's interest.
Discussion of incorrect answers
:
Incorrect. No, because, under the open mines doctrine, the son-in-law is not permitted to open a new mine
after he takes possession of Greenacre. The open mines doctrine allows life tenants to continue operation of mines that already exist when they take possession of the property. New mines are not permitted to life tenants under the doctrine of waste. Because the son-in-law owns a fee simple (even though it is defeasible), he is not subject to the doctrine of waste or the open mines doctrine. Thus, this answer is incorrect.
Incorrect. No, because mining at Greenacre would invade the nephew's future interest in the property. A holder of a fee interest is not subject to the doctrine of waste, which protects holders of remainder interests from depletion of the property by a life tenant. The nephew holds an executory interest, not a remainder, and has no such interest to assert. Thus, this answer is incorrect.
Incorrect. Yes, because the son-in-law holds a fee simple determinable, so he may use Greenacre as he pleases. The son-in-law was granted a fee simple defeasible, subject to the executory interest of a third party (the rancher's nephew) if the specified condition occurs. A fee simple determinable is a defeasible fee
where, upon occurrence of the event or circumstance of limitation, the fee reverts to the grantor (or his successors). This distinction has no materiality as to the mining issue, but this choice does not accurately characterize the interest granted to the son-in-law. Thus, this answer is incorrect.
Question 30 of 50
ID# 7796
A potter owned an 80-acre tract of land. She subdivided part of the tract adjacent to her own home, which is located on the property, into 40 numbered parcels and began to sell the numbered parcels. In each deed,
the potter required that the lots be used for single-family housing only. Each deed stated that this provision
would bind the grantee and any heirs or assigns of the grantee. The deed also stated that this provision is enforceable by the owner of any of the numbered parcels. The residential use restriction did not by its terms affect the part of the development containing the potter's own home. The whole development is currently zoned for either single-family or multiple-family housing units.
Which device will likely best maintain the residential scheme that the potter intends for the property and also be readily acceptable to the purchasers of the numbered parcels?
A running covenant.
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An easement.
A change in the local zoning ordinance.
Fee simple subject to a condition subsequent.
Explanation
The correct answer is:
A running covenant.
Discussion of correct answer
:A covenant that runs with the land restricts the right to use land. It provides the potter with the best means of assuring the continuation of the residential scheme that she intends for the property. It is also likely to be readily acceptable to the purchasers of the numbered parcels.
Discussion of incorrect answers
:
Incorrect. An easement. An easement is the right to use the land of another for a limited purpose. A complete restriction on the way a piece of land is used provides the potter with the best device to maintain
her intended residential scheme. As such, this is not the best response.
Incorrect. A change in the local zoning ordinance. Even if the local government changes the zoning ordinance to reflect the potter's intended use of the property, the zoning laws could change again. As such,
this is not the best response.
Incorrect. Fee simple subject to a condition subsequent. To create a fee simple subject to condition subsequent, the conveyance must expressly state that the grantor reserves the right to re-enter and terminate the estate upon the occurrence of a designated event. Here, it is unlikely that the purchasers of the numbered parcels would agree to this possible forfeiture of their land. As such, this is not the best response.
Question 31 of 50
ID# 7815
A historian owned a 40-acre parcel of property that was mostly vacant, arid land, but an auto-service station owned by an unsavory businessman stood on a section of the property next to the state highway. A two-acre parcel containing the service station was surrounded by a chain-link fence and separated from the remainder of the property. In 2036, the historian died, leaving a will in which she devised the parcel to her 10-year-old daughter. Knowing that the state highway was to be replaced with an expressway carrying increased traffic, the businessman sought to buy the 40 acres from the daughter. He put in a ridiculously low offer of $2,000 for the property, but the daughter accepted the offer, and, in 2038, they drew up a warranty deed conveying the land from the daughter to the businessman. The businessman never recorded the deed. The expressway was built as scheduled, and the service station became very successful. He even built and operated a restaurant within the two-acre, fenced area containing the service station. The businessman never made use of the portion of the property outside the fenced area.
In 2044, the daughter turned 18. Three years later, she brought an action to quiet title to the parcel. The state's statutory period for adverse possession is five years. The adverse possession statute is tolled until the
original owner reaches the age of majority, which is the age of 18, or for 10 years, whichever comes first. The recording statute reads, "A conveyance of an estate in land shall not be valid as against any subsequent
purchaser for value, mortgagee, or judgment creditor, except such persons having notice of it, unless the conveyance is properly recorded."
Is the court likely to find in the daughter's favor and confirm her title to the parcel?
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Yes, because she had not yet reached the age of majority when she conveyed the property to the businessman.
Yes, because the businessman violated the recording act when he failed to record the deed conveying the parcel to him.
No, because the businessman will have title over the two-acre fenced area, which he has possessed in an "actual, open, notorious, and exclusive" manner.
No, because the businessman has acquired title to all of the parcel by adverse possession.
Explanation
The correct answer is:
Yes, because she had not yet reached the age of majority when she conveyed the property to the businessman.
Discussion of correct answer
:The businessman has not satisfied the requirements for adverse possession of the parcel. As a general rule, the statutory period for adverse possession begins to run at the time of the claimant's hostile entry. The businessman's possession was immediately hostile, because the daughter, a minor, did not have the legal capacity to execute a valid deed. However, the statutory period for adverse possession is "tolled" when the true owner has not reached the age of majority, which the daughter had not when the deed was executed. In this case, the "tolling" period is 10 years or until the owner reaches the age
of majority, whichever comes first. Given that the daughter turned 18 in 2044, the businessman's period of adverse possession began in that year. The 10-year alternative provision was not met because the daughter's
action to quiet title in 2047 effectively ended the statutory period of adverse possession.
Discussion of incorrect answers
:
Incorrect. Yes, because the businessman violated the recording act when he failed to record the deed conveying the parcel to him. The issue here is not recording of the deed but the validity of the deed itself. Recording acts are designed to settle rival claims to property between multiple grantees asserting they received title from the same grantor--that is, recording acts are applied to cases involving a dispute between
multiple grantees, not between a grantor and a grantee. As such, recording acts are not relevant to the title dispute between the daughter (grantor) and the businessman (grantee).
Incorrect. No, because the businessman will have title over the two-acre fenced area, which he has possessed in an "actual, open, notorious, and exclusive" manner. The businessman did not meet the 10-year
requirement for claiming adverse possession. The years during which the daughter had not reached the age of majority do not count toward determining how long the businessman had been in adverse possession. He
was in possession of the parcel for, at most, four years following the daughter's reaching the age of majority. The businessman also failed to meet the alternative 10-year statutory requirement. This answer also contains an additional misconception. If the adverse possessor enters under "color of title" (a facially valid deed or will), he will acquire title to all the land described in the deed so long as he has actually possessed a reasonable portion. As such, if the businessman had met the other statutory requirements for adverse possession, his possession would not have had to extend to all 40 acres of the parcel.
Incorrect. No, because the businessman has acquired title to all of the parcel by adverse possession. The businessman had not met the 10-year requirement for claiming adverse possession. The years during which
the daughter had not reached majority do not count. The businessman was in possession of the parcel for, at most, four years after the daughter reached majority. The businessman also fails to meet the alternative 10-year statutory requirement, since the daughter's action to quiet title in the ninth year of his possession effectively ended his possession and his claim.
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Question 32 of 50
ID# 7842
A developer was concerned about the loss of small family farms. He bought 10,000 acres of prime farmland that was owned by large corporate farms and filed a plat for a subdivision consisting of the 10,000 acres of farm land divided into 200-acre parcels, which he began selling to families wanting to operate their own farms. As set forth in the subdivision plat, each deed by which he sold a parcel specified
that the grantee, for herself and for her heirs and assigns, agreed to use the parcel for farming only.
Which of the following methods of land use regulation would most effectively enforce the farming-only restriction without overly burdening buyers?
Persuade the governmental authorities to zone the development so that the only use permitted was farming.
Requiring each grantee to grant all other owners an easement that precludes any use but farming on the grantee's parcel.
Convey each grantee's land in fee simple subject to a condition subsequent that should it ever be used for other than farming purposes, it would revert to the appropriate grantor.
Requiring each grantee to undertake a covenant that the grantee's land will only be used for farming.
Explanation
The correct answer is:
Requiring each grantee to undertake a covenant that the grantee's land will only be
used for farming.
Discussion of correct answer
:A covenant is a contractual obligation that is created in connection with the transfer of real property. If done properly, the covenant will bind and benefit not only the original obligor and obligee, but will "run with the land" to bind and benefit successors to the original parties. A covenant may be either negative (a promise not to do something, such as not to use land for anything other than farming) or affirmative (a promise to do something, such as pay dues to a country club). A covenant is the best way to assure that each parcel owner, even those who did not buy from the developer, will restrict use of the lot to agricultural purposes. Covenants are widely used in residential subdivisions to preserve characteristic elements of the development, and thus should not be objectionable to potential purchasers of farm properties when used for the same purpose.
Discussion of incorrect answers
:
Incorrect. Persuade the governmental authorities to zone the development so that the only use permitted was farming. Zoning would be a cumbersome and unreliable method of preserving the agricultural use restriction for the development. Because zoning is controlled by the government, it might be changed at any time or variances granted for political purposes. Therefore, zoning is not the best way to preserve the farming use.
Incorrect. Requiring each grantee to grant all other owners an easement that precludes any use but farming on the grantee's parcel. An easement is an interest in land that permits the holder to make specified use of the burdened land. A "negative easement," where the owner of the dominant estate has an
"easement for light and air" over the servient estate means that the owner of the servient estate may not
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construct any improvement to such a height that it will block the dominant estate's view. Except for this and a few other historical situations, the term "negative easement" is just another name for a covenant running with the land. Since they have the same requisites and effects, and since the term "negative easement" is better left as the label for certain historical rights, a covenant is a better choice than an easement under these circumstances.
Incorrect. Convey each grantee's land in fee simple subject to a condition subsequent that should it ever be used for other than farming purposes, it would revert to the appropriate grantor. If the subdivision was restricted to agricultural use by granting each purchaser a fee simple subject to the condition subsequent that the land be used only for farm purposes, including an express right of reentry in favor of the original grantor (the developer), each purchaser could lose all of her interest in the lot, without compensation, if she violated the agricultural use restriction. This would be totally unacceptable to most purchasers, and is an unnecessarily harsh method, which the courts would disfavor, of preserving the agricultural character of the development.
Question 33 of 50
ID# 7861
A firefighter inherited a five-unit apartment building from his mother. He lived in one of the units and leased out the other four. One tenant, a receptionist, had lived there for nearly three years. The term of her written lease was 12 months, which she could extend from year to year by timely notice to the firefighter. The receptionist also had an in-home millinery business creating whimsical hats. For this purpose, shortly after she had moved into the building, she had placed a professional pressing machine of the type used by drycleaners in the apartment's spare bedroom, as well as dying vats and industrial racks for keeping her supplies.
The firefighter also had an in-home business--making fruit-flavored vinegars. He had installed fermentation vats, dryers for processing the fruit, and an industrial refrigerator in his spare bedroom. During the second year of the receptionist's occupancy, and without notice to any of the tenants, the firefighter had executed a mortgage in favor of a bank, to secure a line of credit. The bank had promptly recorded this mortgage. Two months before the end of her third lease term, the receptionist tried to notify the firefighter that she would not be renewing her lease. The apartment house was in foreclosure because the firefighter had defaulted on his obligation to the bank. A bank representative told the receptionist that no leases were being renewed, and that she was to vacate the premises at the end of her current term, leaving behind all "fixtures," such as her millinery equipment. The firefighter had sought a judicial declaration permitting him to remove his vinegar-making equipment when he left the apartment after foreclosure. At the same time, the receptionist consulted a lawyer, who filed for a judicial declaration that the receptionist was entitled to remove her millinery equipment and take it with her when she vacated the apartment.
How would the firefighter's litigation differ from the receptionist's litigation?
The judgment would be controlled by the terms of the mortgage regarding personal property located on the premises.
The firefighter's probability of success would be lower than the receptionist's.
The firefighter's probability of success would be equal to the receptionist's.
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The firefighter's probability of success would be higher than the receptionist's.
Explanation
The correct answer is:
The firefighter's probability of success would be lower than the receptionist's.
Discussion of correct answer
:Whether a chattel annexed to leased premises becomes a "fixture," and thus a
part of the real property which the tenant may not remove, is determined by the intentions of the parties as revealed by the circumstances. In practical effect, the intentions of the parties are found by application of the following four factors: (1) Are the chattels firmly embedded or connected to the soil or some pre-
existing structure? (2) Are the chattels peculiarly adapted or fitted to the particular premises? (3) Would removal of the chattels largely destroy the chattels or damage the premises? (4) Did the person who annexed the chattels have a substantial and permanent interest in the land (e.g., owner of fee simple interest)? To the extent that each question is answered yes, the disputed chattels are fixtures. Here, the fact that the firefighter's equipment was installed by someone who owned a fee simple interest in the real property makes the firefighter less likely to be able to remove the equipment than the receptionist. Factor (4) assumes great importance when the owner is the person who attaches the chattels--there is much less support for the argument that the person who annexed the chattels intended that they would someday be removed.
Discussion of incorrect answers
:
Incorrect. The judgment would be controlled by the terms of the mortgage regarding personal property located on the premises. By law, a mortgagee has a lien on any fixtures attached to the real property that is subject to the mortgage. There need be no express mention of such an interest in the mortgage instrument itself. The critical issue is whether or not a particular attached chattel is a fixture, which is controlled by the intentions of the parties.
Incorrect. The firefighter's probability of success would be equal to the receptionist's. The firefighter would actually be less likely to prevail in the litigation to obtain a judicial declaration permitting removal of the chattels. His ownership of the building would be strongly indicate that the firefighter never intended that the chattels be removed, since an owner does not contemplate vacating the premises in the same ready manner as does a tenant.
Incorrect. The firefighter's probability of success would be higher than the receptionist's. This is not a good choice. It is more likely that a court would find that the firefighter--owner of the property in fee simple--intended for his chattels to become part of the property than that they would find that the receptionist (tenant) had intended her chattels to be permanently installed. An owner does not contemplate vacating the premises in the same ready manner as a tenant does.
Question 34 of 50
ID# 7962
A computer whiz decided to start an Internet business selling computer software from his home. He talked two of his retired neighbors, a man and a woman, into investing $50,000 each to get him started. The whiz's only asset was his home, which his parents had left him in their wills free of all encumbrances.
The whiz simultaneously executed mortgages on his home securing his debt to each of his investors and presented these to them at a dinner to celebrate their venture.
Although the woman waited a week to record her mortgage, the man recorded his immediately. The recording act in the jurisdiction states, "A conveyance of an estate in land shall not be valid as against any subsequent purchaser for value, except persons having notice of it, unless the conveyance is properly recorded." Within a year, the whiz decided to pull the plug on his business, and he defaulted on his
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mortgage payments to the man and the woman. The woman brought a foreclosure action, and whiz's home
was sold at a judicial sale. The proceeds of the sale were $90,000 after payment of costs.
How should the court distribute these proceeds?
$45,000 each to the man and the woman, because their mortgages were executed simultaneously, and no recording act can alter their priority.
$45,000 each to the man and the woman, so long as the terms of their mortgages do not provide that one has priority over the other.
$90,000 to the woman, because she brought the foreclosure action.
$90,000 to the man, because he recorded first.
Explanation
The correct answer is:
$45,000 each to the man and the woman, so long as the terms of their mortgages do not provide that one has priority over the other.
Discussion of correct answer
:Mortgages that are executed simultaneously have equal priority, unless an agreement provides otherwise, or the recording act affects their priority. A race-type recording act could establish priority of the first mortgagee to record, but this is a notice-type act. Neither mortgage is considered subsequent to the other, and both the man and the woman are on notice of each other's mortgage. Since the recording act does not affect their priority, an agreement establishing priority is the only thing that could alter their equal priority.
Discussion of incorrect answers
:
Incorrect. $45,000 each to the man and the woman, because their mortgages were executed simultaneously, and no recording act can alter their priority. Mortgages, as here, that are executed simultaneously have equal priority, unless an agreement provides otherwise or a recording act affects their
priority. In the present scenario, neither mortgage is considered subsequent to the other, both the man and the woman are on notice of each other's mortgage, and their simultaneous priorities are not altered by the described recording act. However, because there are types of recording acts that could alter their priorities,
this response is incorrect.
Incorrect. $90,000 to the woman, because she brought the foreclosure action. The party who initiates a foreclosure action does not thereby improve his priority. A junior mortgagee may initiate foreclosure, but will have to notify senior mortgagees and satisfy any senior encumbrances out of the proceeds.
Incorrect. $90,000 to the man, because he recorded first. The fact that the man recorded first is irrelevant in a jurisdiction with a notice-type recording act. Here, the two mortgages were executed simultaneously, so there was no subsequent purchaser, and each mortgagee had notice of the other. Thus, the recording act
has no effect on their simultaneous priorities.
Question 35 of 50
ID# 8015
A new father, who had never been interested in taking pictures before, saw a photographer taking photos in a park and decided that he would like to own a digital camera to take pictures of his new son. The father asked the photographer if he knew where the new dad could get the same model camera. The photographer
showed the father a digital camera the photographer had for sale in the back of his car.
The digital camera offered to the dad had a smudge on its lens. When the new father asked the
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photographer whether the smudge would affect the quality of the photos, the photographer replied that it would have no effect at all.
Actually, the photographer knew that the smudge probably would interfere substantially with the camera's ability to take clear photos. Unaware of the significance of the smudge, the new father arranged to go to the
photographer's studio to buy the camera for $150 and pick up the camera. The photographer wrote the terms of their agreement on a camera supply store receipt he found in his front seat, and both parties signed it.
When the photographer wrote the terms of the agreement on the receipt, he made a mistake in the model's serial number. Instead of writing DSLR 301, the serial number of the model he had agreed to sell to the new father, the photographer had written DSLR 306, the serial number of another model of the same digital camera, without a smudged lens, that the photographer had at his studio. When he signed the written receipt, the dad noticed that the photographer had written down the wrong serial number.
While researching the digital camera online, the new father found out that the smudged lens would affect the quality of the photos. When the dad went to the photography studio, the photographer gave the new father the digital camera with serial number DSLR 301. The new father refused to accept that model and demanded the digital camera with serial number DSLR 306 instead. The photographer refused.
Will the new father win if he sues the photographer for breach of contract for this refusal to sell him the digital camera with serial number DSLR 306?
Yes, because the photographer will be unable to prove that the digital camera with serial number DSLR 306 identified in the written receipt is not the one he agreed to sell to the new father, since any evidence of their discussion in the park is barred by the parol evidence rule.
Yes, because the photographer made a unilateral mistake.
No, because there was a mutual mistake.
No, because the parties had not agreed to the sale of the digital camera with serial number DSLR 306 identified in the written receipt.
Explanation
The correct answer is:
No, because the parties had not agreed to the sale of the digital camera with serial number DSLR 306 identified in the written receipt.
Discussion of correct answer
:This is the correct answer choice. The photographer did not breach the contract between the parties when he refused to sell the new father the digital camera with the serial number DSLR 306, because that was not the camera model he had agreed to sell. The court may reform the written contract to accurately reflect what the parties agreed to and will enforce those terms. The parol evidence rule does not bar evidence of the prior agreement, since such a principle would effectively preclude reformation. Whether the source of the discrepancy between the parties' prior agreement and the written instrument is through the mistake of one or both parties or through the fraudulent misrepresentation by one of them does not matter; in either case, the court may reform the document to conform to the actual prior agreement to sell the new father the digital camera identified by serial number DSLR 301.
Discussion of incorrect answers
:
Incorrect. Yes, because the photographer will be unable to prove that the digital camera with serial number DSLR 306 identified in the written receipt is not the one he agreed to sell to the new father, since any evidence of their discussion in the park is barred by the parol evidence rule. The parol evidence rule is
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not applicable under circumstances where a party is seeking to reform a written contract that, as the result of a mistake in the writing, does not accurately reflect the parties' agreement. This is an incorrect answer.
Incorrect. Yes, because the photographer made a unilateral mistake. Although this answer option contains some accurate discussion of the law, it is not the correct answer. It is true that the photographer made a unilateral mistake, since he did not realize that he had written the wrong serial number on the paper contract. The general rule is that a unilateral mistake will not justify reformation of the contract. Yet, reformation of the contract terms may be available where the other contracting party knew or reasonably should have known of the mistake and took advantage of the aggrieved party's error. Here, the new father knew of the photographer's mistake in denoting the wrong serial number and was attempting to take advantage of the error. Initially, it may be thought that this is an appropriate situation to allow reformation of the contract. However, this would not be a reason for the new father to win, because such a result would allow the dad to take advantage of the photographer's mistake. Rather, this situation would provide for the photographer to be able to reform the contract to sell the dad the digital camera with serial number DSLR 301, as originally agreed to, and to successfully defend against the new father's breach of contract lawsuit.
Incorrect. No, because there was a mutual mistake. If there had been a mutual mistake, it would have enabled either party to the contract to rescind, which would have terminated all rights and liabilities flowing from the contract. However, the facts state that the new father knew about the mistaken specification of the digital camera's serial number when he signed the written contract. This means that the
mistake was unilateral by the photographer, not mutual. This is not the correct answer.
Question 36 of 50
ID# 8045
After a dry cleaner won the lottery, he sold her business to an investor, who agreed to honor all existing contracts. One of his best clients, a hotel that had contracted to have the dry cleaner press all of its linens, immediately took its business elsewhere, accepting a better price from a rival company, notwithstanding the three years remaining on the hotel's 10-year contract with the dry cleaner.
If the investor sued the hotel, how should the court rule?
For the hotel, because the dry cleaner could not delegate performance of the underlying contract.
For the hotel, because there was no privity of contract between the hotel and the investor.
For the investor, because although the performance of the dry cleaner's duty could not be
delegated, his rights could be assigned.
For the investor, because performance of the dry cleaner's duty under the contract could be delegated and the rights under that contract could be assigned.
Explanation
The correct answer is:
For the investor, because performance of the dry cleaner's duty under the contract could be delegated and the rights under that contract could be assigned.
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Discussion of correct answer
:This answer is fairly straightforward. Here, the dry cleaner effectively delegated his duty to perform under the contract with the hotel to the investor, and assigned to the investor
his right to receive the hotel's performance. None of the defenses or exceptions to delegation or assignment (such as that the service is too "personal" to delegate or the delegation is barred by contract) apply.
Discussion of incorrect answers
:
Incorrect. For the hotel, because the dry cleaner could not delegate performance of the underlying contract. A duty may be delegated except where such delegation is prohibited by the terms of the contract,
or where those duties are not delegable, e.g.
, a personal services contract. Since there was no contractual prohibition against the dry cleaner's delegation to the investor, and since dry cleaning is not traditionally a personal service, the dry cleaner's duty could in fact be effectively delegated.
Incorrect. For the hotel, because there was no privity of contract between the hotel and the investor. An effective assignment and delegation transfers rights and duties under the original contract to a new third party. Here, there was an effective transfer to the investor of the dry cleaner's rights and duties in relation to the hotel. Privity is not required for the investor to sue the hotel to enforce rights and duties under this type of contractual arrangement.
Incorrect. For the investor, because although the performance of the dry cleaner's duty could not be delegated, his rights could be assigned. This second half of this answer is inaccurate--the dry cleaner's duties could in fact be effectively delegated. It is the hotel's refusal to accept the performance of those duties that constituted a breach of the contract.
Question 37 of 50
ID# 8191
While working in a pesticide plant, a worker was accidentally exposed to a toxin known to cause genetic defects in the children of exposed parents at a certain level. Generally, the level of exposure can be determined by blood and fatty tissue testing. The worker's doctor ran those tests, misinterpreted the results,
and informed the worker that the level of toxins in his body appeared to be too low to pose a risk to any fetus. A year later, a baby girl was born to the worker and his wife with precisely the type of birth defect known to be caused by the toxin.
When the worker sues the doctor, what will be the critical issue in the case?
Can the doctor be held liable for an injury (i.e., exposure to toxins) which she did not cause?
Are money damages too speculative?
Did the doctor act as a doctor having the knowledge, skill, and judgment ordinarily possessed by members of the profession in good standing would have acted?
Did the doctor act as a typical doctor with the knowledge, skill and judgment of doctors in the community?
Explanation
The correct answer is:
Did the doctor act as a doctor having the knowledge, skill, and judgment ordinarily possessed by members of the profession in good standing would have acted?
Discussion of correct answer
:The critical issue in a medical malpractice action is whether the doctor has breached the standard of care to which doctors are held. Doctors are expected to have the knowledge, skill,
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and judgment ordinarily possessed and employed by members of the profession in good standing.
Discussion of incorrect answers
:
Incorrect. Can the doctor be held liable for an injury (i.e., exposure to toxins) which she did not cause? The doctor is not being sued for causing the worker to be exposed to toxins. The doctor is being sued for her failure to properly evaluate test results reflecting the consequences of the worker's exposure. Therefore, this issue is not relevant.
Incorrect. Are money damages too speculative? In this case, at least some of the damages can be very easily quantified in dollars, such as the extra medical costs the worker will incur because of the special needs of the child.
Incorrect. Did the doctor act as a typical doctor with the knowledge, skill and judgment of doctors in the community? Traditionally, a defendant with knowledge or skills greater than those possessed by the "ordinary" person was judged for negligence purposes by comparison to a member of the same profession possessing the customary level of specialized knowledge and skill as a practitioner in good standing in the same or a similar community. This rule was intended to protect the small town practitioner from being judged by the same high standards as someone in a large city who was on the cutting edge of the profession's technological advancement. The modern rule is that even a relatively isolated practitioner has access to the most current information, and thus the standard of comparison is the profession as a whole, not merely the practitioners in a particular community.
Question 38 of 50
ID# 8406
The Senate Committee on Governmental Reform held hearings about the use of steroids in professional sports in the United States. A famous soccer star was called before the committee for questioning. The soccer player had created several charitable organizations, founded a soccer school for underprivileged youths, and lent his name and likeness to any charitable organization that asked. During questioning, a senator stood up from his chair to shout at the soccer player, saying, "You, sir, are a hypocrite and a liar. Everyone knows that you used steroids to prolong your career, which not only allowed you to defraud your
clubs of millions of dollars, but also devalued the worship that millions of our young people have placed upon you. You are a disgrace and a fraud." The soccer player sued the senator for defamation, because the soccer player had never tested positive for steroids.
How should the court rule?
In favor of the soccer player, because the senator's statements were not only false, but were maliciously intended.
In favor of the soccer player, because the senator's statements were made with reckless disregard of the truth.
In favor of the senator, because the soccer player could not prove that the senator's statements were made maliciously.
In favor of the senator, because a member of Congress is immune from liability under the Speech and Debate Clause for any comment made during any speech or debate
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during a legislative hearing.
Explanation
The correct answer is:
In favor of the senator, because a member of Congress is immune from liability under the Speech and Debate Clause for any comment made during any speech or debate during a legislative hearing.
Discussion of correct answer
:U.S. Const. Art. I, sec. 6 provides, in part, that "for any speech or debate in either House, they (members of Congress) shall not be questioned in any other place." This provision gives senators and congresspersons immunity for statements made on the floor of either the House or the Senate during a committee hearing.
Discussion of incorrect answers
:
Incorrect. In favor of the soccer player, because the senator's statements were not only false, but were maliciously intended. It is true that under New York Times v. Sullivan,
376 U.S. 254 (1964) (public official
standard) and
Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) (public figure standard), in order for a public official (or public figure) to recover for defamation, the plaintiff must establish that the false statement was made with "actual malice." However, U.S. Const. Art. I, sec. 6 provides, in part, that "for any speech or debate in either House, they (members of Congress) shall not be questioned in any other place." This provision gives senators and congresspersons immunity for statements made on the floor of either the House or the Senate during a committee hearing. As such, the senator cannot be held liable for defamation. Thus, this answer is incorrect.
Incorrect. In favor of the soccer player, because the senator's statements were made with reckless disregard of the truth. Under New York Times v. Sullivan,
376 U.S. 254 (1964) (public official standard) and Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) (public figure standard), in order for a public official
(or public figure) to recover for defamation, the plaintiff must establish that the false statement was made with "actual malice." Here, because the soccer player was a public figure, he would have to prove "actual malice." However, U.S. Const. Art. I, sec. 6 provides, in part, that "for any speech or debate in either House, they (members of Congress) shall not be questioned in any other place." This provision grants senators and congresspersons immunity for statements made on the floor of either the House or the Senate
during a committee hearing. As such, the senator cannot be held liable for defamation. Thus, this answer is incorrect.
Incorrect. In favor of the senator, because the soccer player could not prove that the senator's statements were made maliciously. It is true that under New York Times v. Sullivan,
376 U.S. 254 (1964) (public official standard) and Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974) (public figure standard), in order for a public official (or public figure) to recover for defamation, the plaintiff must establish that the false statement was made with "actual malice." However, U.S. Const. Art. I, sec. 6 provides, in part, that "for any speech or debate in either House, they (members of Congress) shall not be questioned in any other place." This provision is held to give senators and congresspersons immunity for statements made on the floor of either the House or the Senate during a committee hearing. As such, the senator cannot be held liable for defamation. Thus, this answer is incorrect.
Question 39 of 50
ID# 9059
A brother and sister both owned small businesses in a small town. On April 28, the brother mailed the sister a letter indicating that he needed to purchase a small delivery truck, and offering to purchase the sister's small, used pickup truck for $2,000. The letter further stated that the brother needed the truck to be delivered by no later than 1:00 p.m. on May 20. The sister received the letter on April 30. Later that same day, the sister sent out a letter accepting the brother's offer. However, the sister's letter was delayed by a mixup at the post office. On May 18, not having received any reply from his sister, the brother purchased a used pickup truck from a neighbor for $1,800. On May 19, the sister's letter finally reached the brother.
On the evening of May 18, the brother's neighbor ran into the sister at the local grocery store and mentioned to her that he had just sold his used pickup truck to the brother. The neighbor then asked if the
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sister would consider selling her used pickup truck to him for $1,750. The sister was surprised to learn that
her brother had purchased the neighbor's truck without telling her, when he had already arranged to purchase a delivery truck from her, but she assumed that the brother must have decided to acquire two delivery trucks instead of one. On May 20, the sister arrived at her brother's business office with her truck, prepared to deliver it to him and retrieve payment of $1,800.
What legal effect did the conversation between the neighbor and the sister have on the agreement, if any, between the sister and the brother?
The conversation had no legal effect on the agreement between the sister and the brother, because the brother is estopped from denying the existence of a valid contract for the purchase and sale of the sister's truck.
The conversation had no legal effect on the agreement between the sister and the brother, because at the time of the conversation, a contract had already been formed between the sister and the brother for the purchase and sale of the sister's truck.
The conversation revoked the brother's original offer to the sister, because it made the sister aware that the brother was no longer in need of a delivery truck.
The conversation revoked the brother's original offer to the sister, because the neighbor's offer became a substitute for the brother's original offer.
Explanation
The correct answer is:
The conversation had no legal effect on the agreement between the sister and the brother, because at the time of the conversation, a contract had already been formed between the sister and the brother for the purchase and sale of the sister's truck.
Discussion of correct answer
:The common-law mailbox rule is the rule in every American jurisdiction except the federal court of claims. The mailbox rule holds that acceptance of an offer for a bilateral contract by mail is effective upon dispatch, so long as the acceptance is properly posted, with the correct address and postage amount. The mailbox rule applies only to acceptances and not to any other communication between contracting parties. Once the offeree dispatches acceptance, he thereby creates a binding contract. In this case, the sister's letter to the brother constituted an offer to purchase the sister's truck. The sister properly accepted this offer by mailing her letter of acceptance to the brother, and this acceptance was effective as of the mailing date, April 30, thereby creating a binding contract between the brother and the sister. Given that a valid contract had already been formed, the subsequent conversation between the sister and the brother's neighbor had no legal effect on the agreement.
Discussion of incorrect answers
:
Incorrect. The conversation had no legal effect on the agreement between the sister and the brother, because the brother is estopped from denying the existence of a valid contract for the purchase and sale of the sister's truck. This answer reaches the correct conclusion, but for the wrong reason. While there are circumstances in which a party is estopped from denying the existence of a binding contract, the doctrine of promissory estoppel is not relevant if the parties have in fact formed a valid contract. In this case, when the sister mailed her letter accepting the brother's offer, a contract was created between the sister and the brother pursuant to the mailbox rule. And, given that a valid contract had already been formed, the doctrine
of promissory estoppel is irrelevant.
Incorrect. The conversation revoked the brother's original offer to the sister, because it made the sister aware that the brother was no longer in need of a delivery truck. Although the brother himself could have revoked his offer to purchase the sister's truck at any time before the sister accepted the offer, the neighbor's
conversation with the sister did not operate to terminate the brother's offer. Unless the neighbor was acting as the brother's agent (which does not appear to be the case here), the neighbor did not have the power to
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revoke the brother's offer to purchase the sister's truck. Moreover, under the mailbox rule, the sister's acceptance of the brother's offer became effective on April 30, when she mailed her letter of acceptance. Therefore, at the time of the conversation between the neighbor and the sister, the sister had already accepted the brother's offer, meaning that at that point in time, the brother no longer had the power to revoke his offer. For these reasons, this answer is incorrect.
Incorrect. The conversation revoked the brother's original offer to the sister, because the neighbor's offer became a substitute for the brother's original offer. Although the brother himself could have revoked his offer to purchase the sister's truck at any time before the sister accepted the offer, the neighbor's conversation with the sister did not operate to terminate the brother's offer. Unless the neighbor was acting as the brother's agent (which does not appear to be the case here), the neighbor did not have the power to revoke the brother's offer to purchase the sister's truck, or to "substitute" his own offer. Moreover, under the
mailbox rule, the sister's acceptance of the brother's offer became effective on April 30, when she mailed her letter of acceptance. Therefore, at the time of the conversation between the neighbor and the sister, the sister had already accepted the brother's offer, meaning that at that point in time, the brother no longer had the power to revoke his offer. For these reasons, this answer is incorrect.
Question 40 of 50
ID# 9068
A lobbyist was on trial in federal court for the murder of his neighbor. The neighbor's body was found in a
liquefied state. The prosecution called a scientist to testify. Although the scientist had written his dissertation on biochemistry, he had spent the last 10 years specializing in behavioral modification. The scientist testified that according to the Northern Journal of Science
, a human body could be liquefied with
certain chemicals. The required chemicals had been found in the lobbyist's control. The Northern Journal
of Science
is well-known, but had become less popular in recent years. The scientist did not disclose the underlying facts prior to testifying, nor did he bring a copy of the journal with him. The lobbyist's lawyer objected to the scientist's testimony.
The objection will be
sustained because the scientist did not disclose the underlying facts prior to testifying.
sustained because expert testimony cannot be based on hearsay.
overruled because the treatise relied on was well-known.
overruled because the scientist may qualify as an expert on the facts in issue.
Explanation
The correct answer is:
overruled because the scientist may qualify as an expert on the facts in issue.
Discussion of correct answer
:If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by
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knowledge, skill, experience, training, or education may testify thereto in the form of an opinion. An expert's opinion may be based on assumed facts, facts not in evidence, or even inadmissible hearsay, provided it is of a type reasonably relied upon by experts in the field [FRE 703]. Here, while the scientist has spent the last 10 years specializing in behavioral modification, his dissertation was on biochemistry. Therefore, he may qualify as an expert. The facts state that the Northern Journal of Science
has become less popular in recent years. There are no facts that explain why the journal has been experiencing a reduction in popularity. Therefore, if the journal is one reasonably relied upon by experts in the field, the testimony would be admissible.
Discussion of incorrect answers
:
Incorrect. sustained because the scientist did not disclose the underlying facts prior to testifying. Federal Rule of Evidence 703 states that an expert's opinion may be based on assumed facts, facts not in evidence,
or even inadmissible hearsay, provided it is of a type reasonably relied upon by experts in the field. The expert need not disclose underlying facts unless the court requests.
Incorrect. sustained because expert testimony cannot be based on hearsay. An expert's opinion may be based on assumed facts, facts not in evidence, or even inadmissible hearsay, provided it is of a type reasonably relied upon by experts in the field [FRE 703]. Here, the facts state that the Northern Journal of Science
is well-known but has become less popular in recent years. There are no facts that explain why the journal has been experiencing a reduction in popularity. Therefore, if the journal is one reasonably relied upon by experts in the field, the testimony would be admissible.
Incorrect. overruled because the treatise relied on was well-known. Under the Federal Rules of Evidence,
the standard is not whether the treatise relied on is well-known. Rather, an expert can be cross-examined on any treatise that is established as a reliable authority by testimony or admission of the expert, by other expert testimony, or by judicial notice. Therefore, this is not the best choice.
Question 41 of 50
ID# 12605
An investigative report by a major network news magazine revealed that fish and other seafood in fish markets around the country were improperly stored at high temperatures, and in unsanitary conditions, creating a serious public health hazard. In response to the report, the state legislature of Atlantis enacted regulations requiring all commercial fish markets in Atlantis, and all out-of-state markets doing business in Atlantis, to have their seafood inspected by the Atlantis Fisheries Division (AFD), a state agency. An AFD inspection sticker certifies the seafood as safe for sale in Atlantis. The inspection regulations provide that uncertified seafood is subject to seizure and destruction by the AFD.
Hook runs the biggest lobster market in the State of Marina. Forty percent of Hook's yearly sales are in Atlantis. All of Hook's seafood is inspected according to stringent standards set by Marina, but Atlantis has
informed him that Marina certification cannot be substituted for Atlantis certification of any lobsters that cross state lines.
In a suit by Hook to enjoin enforcement of the inspection regulations as to his lobster business, is Hook likely to prevail?
No, because the Atlantis state regulations have a rational relationship to the health and safety of Atlantis citizens.
No, because Atlantis has a legitimate state interest in protecting Atlantis citizens from unsafe food.
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Yes, because the Atlantis state regulations interfere with Hook's interstate business in lobsters.
Yes, because the Atlantis state regulations violate Hook's equal protection rights.
Explanation
The correct answer is:
Yes, because the Atlantis state regulations interfere with Hook's interstate business in lobsters.
Discussion of correct answer
:Under the Dormant Commerce Clause, the states have power to regulate interstate commerce provided that the regulation: 1) is not preempted by existing federal regulation; 2) does not discriminate against interstate commerce; and 3) does not impose an undue burden on interstate commerce. Not all discriminatory or burdensome regulation is prohibited by Congress. A state may discriminate if Congress authorizes the discrimination or if the state shows a legitimate local purpose and the unavailability of nondiscriminatory alternatives. A state may unduly burden interstate commerce provided that, on balance, the burden imposed is outweighed by the local interest advanced. The court will also examine whether there exist less restrictive alternatives that would satisfy the local interest. Applying the undue burden test to the Atlantis state regulations, a court could well find that less restrictive alternatives to the state inspection scheme exist, such as the exchange of inspection data with the State of Marina in lieu of re-inspection. Atlantis has a significant local interest in the health of its citizens who consume seafood; however, because alternatives exist to the burdensome regulations imposed on out-of-
state businesses such as Hook's, Hook is likely to prevail in his action to enjoin enforcement of the statute.
Discussion of incorrect answers
:
Incorrect. No, because the Atlantis state regulations have a rational relationship to the health and safety of Atlantis citizens. Even if state regulations have a rational relationship to a legitimate state interest, the regulations may still violate the Commerce Clause if they impose an undue burden on commerce. When state regulations unduly burden an interstate business such as Hook's lobster operation, the state must show
that any burden imposed is outweighed by the local interest advanced (here, consumer health) and that less restrictive alternatives to the regulations do not exist. While this answer addresses the first prong of that test, it neglects to address the second--and here, crucial--question of whether less restrictive alternatives exists. As such, this is not the best response.
Incorrect. No, because Atlantis has a legitimate state interest in protecting Atlantis citizens from unsafe food. While this answer correctly notes that the matter is within the state's police power, it does not speak to the federal constitutional issue raised by the legislation. Even if state regulations have a rational relationship to a legitimate local interest, the regulations may still violate the Commerce Clause if they impose an undue burden on commerce. Here, the Atlantis state regulations interfere with Hook's interstate business in lobsters, and Hook should prevail.
Incorrect. Yes, because the Atlantis state regulations violate Hook's equal protection rights. Social and economic legislation is presumed to be constitutional unless the challenger can make a "clear showing of arbitrariness and irrationality." [Hodel v. Indiana, 452 U.S. 314 (1981)]. Here, as the legislation is clearly rationally related to a legitimate state purpose (consumer health), Hook would have difficulty overcoming the presumption of constitutionality of the inspection regulations on equal protection grounds. Additionally, because Hook is not a member of a suspect class and the state regulations do not implicate any of his fundamental rights such as privacy or free speech, the court would apply the rational basis test to
an equal protection challenge to the regulations. However, the statute may be struck down on other constitutional grounds.
Question 42 of 50
ID# 12639
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A talented florist took great pride in the gardens on his estate, his dress, and his political party membership. He had donated flowers to decorate the White House of every President of his chosen party for many decades. To ensure that his flowers would grace only the homes of those he felt worthy, his will left his real property to his nephew for as long as the nephew donated flowers to Presidents of his chosen party and to no others. The florist also devised all the rest of his estate to his nephew, except for an account containing $100. The florist's only other heir was his nonmarital daughter, to whom he left the residue of his estate (which was nothing except for the $100 account). Several decades later, the nephew became a generous supporter of a different political party. When that party's candidate was elected, the nephew was given the honor of supplying the flowers for that party's President's inauguration. Upon hearing of the plans, the nonmarital daughter filed suit to quiet title.
If the court finds in the nonmarital daughter's favor, what is the most likely reason?
The nonmarital daughter held a valid possibility of reverter.
The gift to the nephew violated the rule against perpetuities.
The nonmarital daughter inherited a valid reversionary interest.
The gift to the nephew failed, because the conditions of the gift were void as against public policy.
Explanation
The correct answer is:
The nonmarital daughter held a valid possibility of reverter.
Discussion of correct answer
:Given that the property was granted to the nephew for only as long as he fulfilled the conditions set forth by the will, the nephew received a fee simple determinable. When a grantor conveys a fee simple determinable, the grantor retains a possibility of reverter. Here, since the florist did not specify who was to inherit his possibility of reverter, it passed to the nonmarital daughter. Therefore, as soon as the nephew violated the conditions of his gift, title automatically reverted back to the daughter, as the owner of the florist's interest.
Discussion of incorrect answers
:
Incorrect. The gift to the nephew violated the rule against perpetuities. The gift did not violate the rule against perpetuities. The nonmarital daughter's possibility of reverter vested when the florist died. Possibilities of reverter are not subject to the rule.
Incorrect. The nonmarital daughter inherited a valid reversionary interest. When a grantor conveys a fee simple determinable, as the florist did to his nephew, the grantor retains a possibility of reverter. Here, since the florist did not specify who was to inherit his possibility of reverter, it passed to his nonmarital daughter. Thus, it is true that she inherited a reversionary interest. However, reversionary interests are a general category including reversions, possibilities of reverter, and right of reentry. Because this answer does not specify which type of reversionary interest she inherited, it is not the best response.
Incorrect. The gift to the nephew failed, because the conditions of the gift were void as against public policy. If a court ruled that the conditions of the gift violated public policy, the conditions would be voided, but the gift to the nephew would remain intact. In such case, the nonmarital daughter's interest
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would also be voided. However, there is no reason to think that this condition was void.
Question 43 of 50
ID# 12785
One evening, a man asked his cousin if he could borrow the cousin's car to go to a job interview the following day. The location of the interview made driving preferable to taking the bus. The cousin agreed to lend the man his car. The next morning, the man picked up the car from the cousin's house and headed to the interview. However, on the way to the interview, the man decided to stop by a liquor store for a little "fortification." He bought a large bottle of vodka and drank some of its contents in the car as he traveled the remainder of the way to his interview. While the car was parked in the parking lot in front of his prospective employer's place of business, the car was struck by a large van. The driver of the van immediately drove away from the scene and was not located or identified. The collision caused $1,600 damage to the cousin's car.
If the cousin sues the man for the damage to his car, the cousin will most likely recover
the cost of repairing the cousin's car, because the car was damaged while under the man's control.
nothing, unless the damage to the cousin's car was caused by negligence on the part of the
man.
the value of the cousin's car before it was damaged, because the car was damaged while under the man's control.
the value of the cousin's car before it was damaged, because the man exceeded the authorized use of the car.
Explanation
The correct answer is:
nothing, unless the damage to the cousin's car was caused by negligence on the part
of the man.
Discussion of correct answer
:At first glance, the facts of the question may appear to raise issues of trespass to chattels or conversion. The intentional tort of trespass to chattels involves an act by the defendant that interferes with the plaintiff's rightful possession of personal property. Conversion involves an act by the defendant that interferes with the plaintiff's rightful possession of personal property to such a degree that it is just to require that the defendant pay the plaintiff the full value of the property. Both torts require the defendant's wrongful interference with the plaintiff's possessory interests. However, under the facts of the question, the man borrowed the car with the owner's permission. The fact that the man used the cousin's car for an unauthorized purpose is irrelevant, because the accident did not occur while the man was engaged in this unauthorized use. Unless the man was negligent in some manner that helped cause the accident, such as in the way that he parked the car in front of his prospective employer's building, he is not liable for the damage to the car. Thus, this is the best answer. If the cousin sues the man for the damage to his car, he will most likely recover nothing, unless the damage to the cousin's car was caused by negligence on the part of the man.
Discussion of incorrect answers
:
Incorrect. the cost of repairing the cousin's car, because the car was damaged while under the man's control. This answer choice describes the measure of damages that would apply if the man had been liable for trespass to chattels. In this case, the man is not liable unless the damage to the car occurred as a result of the man's negligence.
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Incorrect. the value of the cousin's car before it was damaged, because the car was damaged while under the man's control. This answer choice describes the measure of damages that would apply if the man had been liable for conversion. However in this case conversion did not occur and the accident was not caused by the man's negligence.
Incorrect. the value of the cousin's car before it was damaged, because the man exceeded the authorized use of the car. The man's unauthorized use of the car is irrelevant, because the accident did not occur while
the man was engaged in unauthorized use. Unless the man was negligent in some manner, such as in the way that he parked the car in front of his prospective employer's building, he is not liable for the damage to the car.
Question 44 of 50
ID# 12794
A villager walked through his village one winter night. The temperature was well below freezing. As he was walking, he saw a man in nice clothes lying in an alley, which was unheard of in his upscale village. Because it was so out of the ordinary, he went over to the man to investigate. When the villager tapped the
man, he saw that the man was wearing an expensive suit and was clearly intoxicated. Disgusted, he left the
man lying in the alley. About an hour later, a teenager led the police on a chase on his dirt-bike. He led the
police down the alleyway. The teen was able to avoid the man still lying in the alley, but the police hit him. When they checked the man, he was dead. When the villager heard of this he told the police his story so the officers involved wouldn't feel guilty. Two days later, the autopsy revealed that the man was dead from cold exposure prior to the police hitting him.
Under which of the following situations, if true, is the villager most likely to be found liable to the man's estate?
The man was his father-in-law.
The man was a patron at the villager's bar an hour earlier.
The villager told the man, who was a stranger, he'd try to get help but couldn't guarantee it.
The man was the villager's gym teacher in high school.
Explanation
The correct answer is:
The man was a patron at the villager's bar an hour earlier.
Discussion of correct answer
:Where a defendant has a special relationship with the plaintiff, he has a duty
to aid the plaintiff. The relationship between a business and its patron is usually considered to be one such
relationship. If, as this answer choice states, the man was a patron at the villager's bar, then the villager had a position of control over the plaintiff, so he is bound to aid him. The villager could have stopped serving the man but did not; therefore, he would have a duty to protect the man from harm.
Discussion of incorrect answers
:
Incorrect. The man was his father-in-law. The general rule is that a person who has not created the risk to
another person has no duty to act to protect that person. While certain relationships carry with them a duty, the father-in-law/son-in-law relationship is not sufficient to create a legal duty. Therefore, even if the man had been the villager's father-in-law, the villager would not be liable to the man's estate.
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Incorrect. The villager told the man, who was a stranger, he'd try to get help but couldn't guarantee it. A promise to help does not bind a person to that gratuitous promise even if the plaintiff relied upon the promise. In the case presented in this answer choice, the promise to help was not even definite--all that was promised was that he would try to get help. This would not create a duty and therefore, it would not create liability for the villager.
Incorrect. The man was the villager's gym teacher in high school. The general rule is that a bystander does not have a duty to aid another person. The simple fact that the bystander is acquainted with the other person does not alter that rule. The fact that the man had been the villager's teacher at some point in his life would not create a duty to aid. Thus, even if the parties had the relationship suggested by this answer choice, the villager would not be liable to the man's estate.
Question 45 of 50
ID# 12825
A city's school board decided to redraw school zones and to assign students to different schools based on the students' race in order to achieve greater racial integration in the city's schools. Although the city's schools had never been subject to any segregation laws, they were extremely segregated. A coalition of white parents whose children had been reassigned to predominantly black schools brought a constitutional challenge to the school board's measures.
How is the court likely to rule?
The school board may redraw school districts and assign students to schools based on the students' race.
The school board may redraw school districts but may not assign students to schools based on the students' race.
The school board may assign students to schools based on the students' race but may not redraw school districts.
The school board may neither redraw school districts nor assign students to schools based
on the students' race.
Explanation
The correct answer is:
The school board may redraw school districts but may not assign students to schools based on the students' race.
Discussion of correct answer
:In [Parents Involved v. Seattle 551 U.S. 701 (2007)], the Supreme Court held that a school district may not assign students to schools based on race in order to achieve racial integration when school segregation is not caused by past or present government action. School districts are, however, permitted to implement "structural" changes such as redrawing school districts or building new schools in order to achieve racial integration.
Discussion of incorrect answers
:
Incorrect. The school board may redraw school districts and assign students to schools based on the students' race. Although a school board may redraw school districts in order to remedy school segregation that is not the result of past or present government action, a school board may not assign students to schools based on race in order to remedy segregation. [Parents Involved v. Seattle, 551 U.S. 701 (2007)]
Incorrect. The school board may assign students to schools based on the students' race but may not redraw
school districts. This answer choice is incorrect because a school board may not assign students to schools based on students' race in an effort to overcome school desegregation that is not the result of past or present
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government action. A school board may, however, implement "structural" remedies such as building new schools and redrawing school zones in order to achieve racial integration. [Parents Involved v. Seattle, 551 U.S. 701 (2007)]
Incorrect. The school board may neither redraw school districts nor assign students to schools based on the students' race. This answer choice is incorrect because in [Parents Involved v. Seattle 551 U.S. 701 (2007)], the Supreme Court ruled that a school board may make "structural" changes such as building new schools and redrawing school districts in order to remedy school segregation not caused by past or present government action. A school board may not, however, remedy school segregation by assigning students to schools based on students' race.
Question 46 of 50
ID# 12846
A businessman, tired of working long hours, plans to sell his grocery store to a competitor. The businessman meets the competitor at a lawyer's office, and they sign a contract for the competitor to close on the grocery store one month later. Unfortunately, the next night, an electrical fire in an adjoining liquor store spreads to the grocery store, destroying it.
Which of the following is correct?
The businessman is liable for breach of contract, because the risk of loss remained with him.
The businessman is liable for breach of contract, because the court may find the contract
to be impracticable.
The businessman is not liable for breach of contract, because of objective impossibility.
The businessman is not liable, because of subjective impossibility.
Explanation
The correct answer is:
The businessman is not liable for breach of contract, because of objective impossibility.
Discussion of correct answer
:The doctrine of impossibility excuses both parties from their obligations under a contract if the performance has been rendered impossible by events occurring after the contract was formed. Impossibility is objective if it occurs because of circumstances beyond the parties' control, as it is here. As a result of the objective impossibility, both parties are excused from performance.
Discussion of incorrect answers
:
Incorrect. The businessman is liable for breach of contract, because the risk of loss remained with him. When the subject matter of a contract is destroyed through neither party's fault, the doctrine of impossibility excuses both parties from performance. The businessman is not liable for breach of contract,
because performance under the contract was excused due to objective impossibility. The burning down of the store was not the fault of either party, so the businessman will not be held liable for breach of contract.
Note that, if the contract had contained a clause specifically allocating the risk of loss, that clause would govern. However, the facts did not mention such a clause here.
Incorrect. The businessman is liable for breach of contract, because the court may find the contract to be impracticable. Courts are reluctant to excuse performance for any reason other than impossibility. However, under the doctrine of impracticability, a promisor may be excused from performance where
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unforeseen difficulties have made performance prohibitively expensive or otherwise extremely burdensome. In this case, the sale of the grocery store became impossible, not merely prohibitively expensive or extremely burdensome, and it was not through the fault of either party. Therefore, both parties are excused from performance.
Incorrect. The businessman is not liable, because of subjective impossibility. Subjective impossibility occurs when the performance under the contract becomes impossible because of some failure or fault on the part of the performing party. When that happens, the performance obligation is not excused and will be considered a breach of contract. In this case, the burning down of the store was not the businessman's fault, so it created an objective impossibility excusing both parties from performance. However, if the store's burning had been his fault, the businessman would be found liable, not be relieved of liability. As such, this answer is incorrect.
Question 47 of 50
ID# 12907
A father decides to make a gift to his son who has just decided to join the military. The father goes to a car dealership and signs a contract whereby the father will pay the dealership $45,000 in two weeks, while the dealership will deliver a new car to the son and his family. The father then tells his son about the planned purchase and the son decides to sell the car he currently has for a low price. However, after the father makes the payment, the dealership refuses to give the car to the son.
Which of the following is correct?
The son can sue the dealership, because the son is a creditor beneficiary.
The son can sue the dealership, even though the son is a donee beneficiary.
The son cannot sue the dealership, because the son's rights did not vest.
The son cannot sue the dealership, because the son is a donee beneficiary.
Explanation
The correct answer is:
The son can sue the dealership, even though the son is a donee beneficiary.
Discussion of correct answer
:When a promisee seeks a promised performance from the promisor that will benefit a third party and the promisee's purpose is to make a gift of that performance to the third party, the third-party beneficiary is a donee beneficiary. In this case, the father was seeking performance from the dealership in order to make a gift to the son, so the son is a donee beneficiary. Both donee beneficiaries and creditor beneficiaries are considered intended beneficiaries, and both can sue the promisor if the promisor's performance is not forthcoming. As such, this is the right answer.
Discussion of incorrect answers
:
Incorrect. The son can sue the dealership, because the son is a creditor beneficiary. The son is not a creditor beneficiary. When a promisee seeks a performance from the promisor that will benefit a third party and the promisee's purpose is to satisfy a debt or other obligation owed by the promisee to the third party, the third-party beneficiary is a creditor beneficiary. In this case, the father was not securing performance from the dealership in order to satisfy a debt owed to the son. Therefore, the son is not a creditor beneficiary.
Incorrect. The son cannot sue the dealership, because the son's rights did not vest. The son's rights vested
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when he relied on the father's promise by selling his older car at a low price. When the beneficiary changes
her position in justifiable reliance on the contractual promise, the beneficiary's rights vest. Therefore, the son can sue the dealership.
Incorrect. The son cannot sue the dealership, because the son is a donee beneficiary. This is an incorrect statement of law. Donee beneficiaries are considered intended beneficiaries and intended beneficiaries have
a right to sue the promisor if performance is not forthcoming. In this case, the son can sue the dealership, because the dealership did not deliver the car.
Question 48 of 50
ID# 28225
In an effort to work towards change in his community, an alien ran for a position on the local city council. The man's name was not included on the ballot because of a statute which prohibits aliens from holding positions on the city council. The man challenged the statute as violating the Equal Protection clause. The
city claimed the statute was justified because city council members influence community members' views toward government. The case went to the Supreme Court to determine whether the statute was constitutional.
How should the Supreme Court rule?
The statute is constitutional, because the city council performs a function of the government.
The statute is constitutional, because aliens do not have constitutional rights.
The statute is unconstitutional, because the statute does not pass intermediate scrutiny.
The statute is unconstitutional, because the law furthers no compelling state interest.
Explanation
The correct answer is:
The statute is constitutional, because the city council performs a function of the government.
Discussion of correct answer
:Alienage is a suspect classification. Any state law that discriminates against aliens warrants strict scrutiny. Generally, laws which are based on suspect classifications are presumed to be invalid. However, alienage is different than race and national origin, two of the other suspect classifications. States are allowed to discriminate against aliens in activities where participation in the functioning of government is involved. One reason for allowing this restriction is to keep aliens from influencing others' views towards the government and the political process. Here, the man was prevented from becoming a member of the city council because he is an alien. Since the city council is performing a
function of the government, this type of statute would be perfectly permissible.
Discussion of incorrect answers
:
Incorrect. The statute is constitutional, because aliens do not have constitutional rights. This answer is incorrect because it is extreme. Given that alienage is one of the suspect classifications, laws which specifically regulate or restrict aliens are subject to strict scrutiny and therefore, presumptively invalid. This means that rather than aliens having no rights, they have a heightened level of protection from laws which would seek to discriminate against them.
Incorrect. The statute is unconstitutional, because the statute does not pass intermediate scrutiny. This
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answer is incorrect because it reaches the wrong conclusion by applying the wrong rule. Strict scrutiny review applies to government action that uses suspect classifications - race, alienage, and national origin. The statute here makes a classification based on alienage. Therefore, strict scrutiny, rather than intermediate scrutiny, applies.
Incorrect. The statute is unconstitutional, because the law furthers no compelling state interest. This answer is incorrect because it reaches the wrong conclusion by making a false assumption. The false assumption is that statutes which discriminate against non-citizens serve no legitimate purpose or compelling state interest. Courts have held that it is permissible to discriminate against aliens in activities where participation in the functioning of government is involved because aliens can influence others' views toward government and the political process. This is a compelling state interest.
Question 49 of 50
ID# 28264
A mother picking her children up from soccer practice sees a red vehicle run a stop light and crash into bicyclist who was lawfully in the intersection. The driver of the red vehicle kept driving and did not stop to help the severely injured bicyclist. The mother ran towards the intersection and memorized the license plate
information of the red vehicle. She then called the police and just before they arrived on the scene twenty minutes later, she wrote number on the bottom of her grocery list. She gave the police officer her grocery list with the license information on it and the driver of the red vehicle was located and arrested. At trial, the
mother testified that she had gotten the license plate information from the red vehicle as it sped away from the bicyclist. The prosecutor asked the mother what was on the license plate and the mother stated that she did not remember. The prosecutor handed the mother her grocery list and asked her to read the license plate information into evidence.
Under what theory may the license plate information be read into the record?
Recorded recollection.
Public records and reports.
Records of vital statistics.
Present sense impression.
Explanation
The correct answer is:
Recorded recollection.
Discussion of correct answer
:When the mother wrote down the license plate information for the red vehicle, she created a memorandum or record concerning the matter being addressed in court. This record concerns a matter about which the mother once had knowledge but now has insufficient recollection to enable her to testify fully and accurately. If the grocery list is admitted under the hearsay exception of recorded recollection, the mother can read her writing into evidence. Remember to note that the grocery list cannot be entered into evidence as an exhibit unless it is being offered into evidence by an adverse party. But that does not keep the mother from being able to use it in court to refresh her recollection and read it into the record.
Discussion of incorrect answers
:
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Incorrect. Public records and reports. The license number written on the grocery list is an out-of-court statement. If it is offered for the purpose of showing the license plate number of the red car that struck the bicyclist, then it is hearsay. To be admissible, it must be subject to some exception. Public records and reports is an exception to the hearsay rule that makes hearsay admissible when it is in the form of records, reports, statements, or data compilation of public offices or agencies. However, although it was a government agency holding the mother's grocery list and introducing it into evidence through the mother, it
is not a public record for purposes of the hearsay exception. To be a public record in a criminal case, the record must set forth: 1) the activities of the office or agency; 2) matters observed pursuant to duties imposed by law as to which there was a duty to report. Since the mother was under no legal duty to observe and report, the grocery list is not a public record.
Incorrect. Records of vital statistics. The license number written on the grocery list is an out-of-court statement. If it is offered for the purpose of showing the license plate number of the red car that struck the bicyclist, then it is hearsay. To be admissible, it must be subject to some exception. Records of vital statistics are excepted from the hearsay rule when they are records or data compilations of births, fetal deaths, deaths, or marriages which are kept pursuant to a public office. The mother's grocery list would not
fall within the requirements of the exception and, therefore, the exception cannot be used as a basis for reading the license information into evidence.
Incorrect. Present sense impression. The license number written on the grocery list is an out-of-court statement. If it is offered for the purpose of showing the license plate number of the red car that struck the bicyclist, then it is hearsay. Hearsay, while generally inadmissible, may become admissible when subject to certain exceptions. Present sense impression is one such exception. When a statement is made which describes or explains an event or condition made while the declarant was perceiving the event or condition or immediately thereafter, then that statement is not excluded by the hearsay rule. It could be argued that the license plate information recorded on the grocery list by the mother was created as a present sense impression of what was going on. However, this exception would allow the mother to testify to the statements from memory and make them admissible hearsay. This fact pattern presents a scenario in which
the mother cannot remember the statement that was recorded on her grocery list. Therefore, an applicable exception to the hearsay rule would be one which allows the mother to remind herself of the information which she once knew but does not remember anymore. That would make the recorded recollection exception the best avenue to introduce the mother's grocery list and allow her to read it into evidence.
Question 50 of 50
ID# 28274
An owner had a big house located on five hundred acres on a mountain top in the Rocky Mountains. He became tired of the snow and ice and wanted to move to the tropics. He was also a charter member of an environmental organization dedicated to saving the endangered Rocky Mountain spotted bobcat. The owner conveyed the house and property "to my nephew, but if hunting is allowed on the premises, then to my niece and her heirs." Thirteen years after the grant, his nephew opened a hunting lodge on the property.
Which of the following is correct?
The nephew has a fee simple absolute.
The nephew has a fee simple subject to a springing executory interest.
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The niece has a fee simple subject to a springing executory interest.
The niece has a shifting executory interest.
Explanation
The correct answer is:
The nephew has a fee simple absolute.
Discussion of correct answer
:An executory interest is subject to the Rule Against Perpetuities. The common law Rule Against Perpetuities provides that "no interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest." Here, the vesting of the future interest is unlimited in time; it is not certain to vest or fail within 21 years of any life in being at the time of the grant. Therefore, the shifting executory interest in the niece and her heirs is void, and the owner's nephew is left with a fee simple absolute.
Discussion of incorrect answers
:
Incorrect. The nephew has a fee simple subject to a springing executory interest. A springing executory interest is an interest that follows a gap in possession or divests the estate of the transferor. The interest passes from grantor to grantee. This is not the case here, where the nephew instead has a fee simple subject to a void shifting executory interest because the grant divests the owner completely. In any case, the shifting executory interest is void here and the nephew is left with a fee simple absolute.
Incorrect. The niece has a fee simple subject to a springing executory interest. The niece does not have a fee simple; her interest is a void future interest, not a present possessory interest. By the words of the deed
"to my nephew, but if hunting is allowed on the premises, then to my niece and her heirs," she can not have a fee simple. In addition, her executory interest is void as to the Rule Against Perpetuities because the vesting of the future interest is unlimited in time, it is not certain to vest or fail within 21 years of any life in being. Thus, she has nothing.
Incorrect. The niece has a shifting executory interest. The niece's shifting executory interest is void. The vesting of the future interest is unlimited in time ("but if hunting is allowed"), and since it is not certain to
vest or fail within 21 years of any life in being it violates the Rule Against Perpetuities. Therefore, she has
nothing.
Answer Sheet:
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