Barbri MBE Questions

The defendant robbed a bank and fled in a getaway car driven by an accomplice, not realizing that one of the bundles of money he took had the serial numbers recorded and had a tiny tracking device attached to the wrapper. The bank's security consultant obtained portable tracking equipment and was able to trace the bundle of money to the defendant's house. The police were notified and they arrived at the defendant's house a few hours after the robbery. They knocked on the door, announced their presence, and saw someone matching the description of the robber in the hallway. They entered and arrested the defendant, and then conducted a protective sweep of the house for the accomplice, who they believed had a gun. They did not find him, but while checking a closet, they discovered several of the bundles of money from the bank and a gun the defendant had used in the robbery. The police also discovered two clear plastic bags of what appeared to be marijuana sitting on top of a dresser. They seized the money, the gun, and the two bags. Later testing confirmed that the substance in the bags was marijuana.

The defendant was charged with the bank robbery and with possession of the marijuana. At a preliminary hearing, he moves to suppress introduction of the money, gun, and marijuana.

How should the court rule?

The court should suppress all of the evidence because it was the fruit of an unconstitutional arrest. As a general rule, the police must have an arrest warrant to effect an arrest of an individual in his own home. There is no general "emergency" exception to the warrant requirement. While police officers in hot pursuit of a fleeing felon or trying to prevent the destruction of evidence may sometimes make a warrantless search and seizure, the burden is on the government to show that one of those exceptions applies. Here, the police did not arrive at the defendant's house in hot pursuit of the defendant, and there was no indication that the defendant might be destroying the money or other evidence; i.e., there were no circumstances precluding them from keeping the house under surveillance while they obtained a warrant. Hence, the arrest was unconstitutional. Because an arrest constitutes a seizure under the Fourth Amendment, the exclusionary rule applies, and evidence that is the fruit of the unconstitutional arrest may not be used against the defendant at trial. Here, all of the evidence was seized without a warrant, and none of the other exceptions to the warrant requirement are applicable. While the protective sweep that turned up the money and gun probably would have been within the bounds of a search incident to an arrest because the police had reason to believe an armed accomplice was present, the arrest in violation of the Fourth Amendment makes the search unlawful. Similarly, while the bags of marijuana were discovered in plain view, the police have to be legitimately on the premises for that exception to apply. Thus, (C) is correct; (A), (B), and (D) are incorrect.

A gang member threatened to kill ∆ unless he robbed a convenience store and gave the proceeds to the gang member. The gang member also demanded at gunpoint that ∆kill the clerk to prevent identification. In abject fear of his life, ∆did everything that the gang member requested.

If ∆ is arrested and charged with murder and robbery in a common law jurisdiction, what result?

A The defendant should be convicted of murder and robbery.

B The defendant should be acquitted of the robbery and convicted of murder.

C The defendant should be convicted of robbery, and the killing will be reduced to voluntary manslaughter.

D The defendant should be acquitted of the robbery, and the killing should be reduced to voluntary manslaughter.

B) murder = unlawful killing with malice aforethought. "Malice aforethought" exists if the defendant has any of the following states of mind: (i) the intent to kill (express malice);or (iv) the intent to commit a felony. Here, could be found by (i) (b/c the clerk was intentionally killed to prevent identification) or by (iv) (the killing committed during robbery). Robbery =aggravated form of larceny and consists of the following elements: (i) a taking; (ii) of the personal property of another; (iii) from the other's person or presence; (iv) by force or intimidation; (v) with the intent to permanently deprive him of it.

Fact pattern also raises the defense of duress. ∆ not guilty of an offense, other than intentional homicide, if he performs an otherwise criminal act under the reasonable belief that another will imminently inflict death or great bodily harm on him or an immediate family member if he does not commit the criminal act.

An argument could be raised that the killing should be reduced to voluntary manslaughter from murder, given that ∆ was acting under the provocation of a threat of deadly force. At common law, provocation would reduce a killing to voluntary manslaughter if (i) the provocation must have been one that would arouse the sudden and intense passion in the mind of an ordinary person such as to cause him to lose self-control; (ii) ∆ must have in fact been provoked; (iii) there must not have been sufficient time to cool off; and (iv) ∆ did not in fact cool off. Provocation includes being subjected to a serious battery or a threat of deadly force.

That said, the reduction to voluntary manslaughter occurs only as to the person who provoked ∆ (or the killing of 3P under the transferred intent doctrine). Thus, had ∆ killed the gang member, he might have been able to claim "adequate provocation" to have the killing reduced to voluntary manslaughter (assuming that a straight self-defense issue could not have been raised). However, as discussed above in terms of a duress defense, it would not justify the killing of a third party.

A brother and a sister held record title to a home as joint tenants with right of survivorship. The brother moved out of the home shortly after conveying his interest in the home to his friend by quitclaim deed. The friend did not record his deed. Several years later, the sister died, leaving her adopted daughter as her sole heir. Shortly after the sister died, the brother asked his friend to return his deed and give up his interest in the home. The friend agreed and returned the deed, which the brother destroyed.

Who has title to the home?

A The friend and the daughter as co-tenants.

B The brother and the daughter as co-tenants.

C The brother as sole owner.

D The friend as sole owner.

C) An inter vivos conveyance by one joint tenant of his undivided interest destroys the JT so that the transferee takes the interest as a tenant in common and not as JT. Here, when the brother conveyed his interest to the friend, JT b/t bro and sister was severed. At that point, the friend and the sister held title to the home as TIC. The adopted daughter then inherited the sister's interest upon the sister's death. Because delivery of a deed cannot be canceled, the friend's return and subsequent destruction of his deed has no effect. Thus, (A) is correct and (C) is incorrect. (B) is incorrect because the brother has transferred his interest to the friend. As stated above, the destruction of the friend's deed has no effect on his interest. For the brother to have his interest back, the friend would have to reconvey by deed to him.

An officer on routine patrol noticed a flashlight moving within a darkened house and stopped to investigate. The suspect, who had broken into the home to steal valuables, caught sight of the patrol car, dropped the bag of valuables as he was about to carry them out of the house, and tried to sneak out the back way. The officer saw him sneaking out and seized him. The suspect, who had a lock-picking device in his possession, pulled out two $100 bills from his wallet, stating that he did not take anything and would like to forget the whole thing. The officer took the money, stating that she would give him a break this time around, and let the suspect go.

How may the officer be charged in this situation?

A) As an accessory after the fact to burglary and larceny.

B) As an accomplice to the crimes of burglary and larceny.

C) As an accessory after the fact to burglary only.

(C) Accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. The crime committed by principal must have been completed @ aid is rendered. Here, O had a duty to arrest ∆ and failed to do so, instead letting him go. Her failure to act under these circumstances constituted sufficient assistance to the suspect to make her liable as an accessory after the fact. O almost certainly knew that ∆ had committed the felony of burglary, as she saw him w/flashlight in the darkened house & caught ∆ sneaking out the back way with a lock-picking device

(A)= incorrect. Facts do not indicate that O knew that ∆ had committed larceny when she let him go. She had stopped him outside of the house, and because he apparently had none of the home's valuables in his possession, she had no reason to doubt his claim that he had not gotten anything from the house. Although she probably surmised that he had broken in with the intent to commit larceny, she had no way of knowing that he had completed the crime of larceny by carrying the bag of valuables almost out of the house.

(B) = incorrect b/c accomplice is one who, with the intent that the crime be committed, aids, counsels, or encourages the principal before or during the commission of the crime. Because ∆ already completed his crimes when O stopped him, her only liability will be as an accessory after the fact.

After picking up a load of hazardous chemical waste, a truck driver for a waste management company set out on the road to his next stop. However, he had failed to secure the latch on the back panel of the truck. Consequently, the panel opened while the truck was on the road, and a metal canister full of chemical waste fell onto the road. A car struck the canister, causing the car to veer off the road and injure the driver. The driver filed suit against the company for his injuries.

The jurisdiction in which the above events took place has adopted a rule of partial comparative negligence. At trial, the driver of the car admitted that he had momentarily taken his eyes off the road to look at his speedometer. When he had looked up again, the canister was there and he could not stop in time. The jury found that the company, through its truck driver, had acted willfully and wantonly and was 90% at fault, while the driver of the car was 10% at fault. The driver filed a motion for judgment notwithstanding the verdict, seeking recovery for 100% of his damages.

If the judge grants the motion, what is the most likely reason?

A) A plaintiff's comparative negligence is not taken into account in cases of willful and wanton conduct by the defendant.

B) A state ordinance mandating motorists to stay within the posted speed limit requires as a matter of law an occasional glance at the speedometer.

If the driver was effectively required by statute to take an occasional quick look at his speedometer to make sure that he was complying with appropriate speed limits, then his momentary glance at the speedometer in the instant case would, as a matter of law, not constitute negligent conduct. Because this is a matter of law, the judge would be authorized to correct this aspect of the jury's verdict. If the driver is thus found to be not negligent in this matter, his recovery will not be reduced. (A) is incorrect because in most states that have adopted comparative negligence, the plaintiff's negligence will be considered even in cases where the defendant has acted willfully and wantonly.

A proud grandfather who planned to take pictures of his grandson's graduation purchased a camera from a camera store. He used the camera on several occasions over the next few weeks without incident, but when he used it on the day before his grandson's graduation, it caught fire and exploded, burning him and destroying an expensive coat he was wearing. Although the grandfather was in a great deal of pain because of his injuries, he insisted on attending his grandson's graduation. However, because he no longer had a workable camera, the grandfather hired a professional photographer to take pictures of the special day.

In a breach of warranty action, which of the following represents the most that the grandfather may recover?

C) The difference between the value of the camera accepted and its value if it had been as warranted, medical costs for treating the grandfather's burns, and the cost to replace the grandfather's coat.

D) The difference between the value of the camera accepted and its value if it had been as warranted, medical costs for treating the grandfather's burns, the cost to replace the grandfather's coat, and the cost of hiring the professional photographer.

(C)When a buyer accepts goods that turn out to be defective, he may recover as damages any "loss resulting in the normal course of events from the breach," which includes the difference between the value of the goods accepted and the value they would have had if they had been as warranted, plus incidental and consequential damages. Incidental damages resulting from the seller's breach include expenses reasonably incurred in inspection, receipt, and transportation, care, and custody of goods rightfully rejected. In this case, the grandfather incurred no incidental damages. Consequential damages resulting from the seller's breach include any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise, and injury to person or property proximately resulting from any breach of warranty. Here, the grandfather is entitled to breach of warranty damages for the loss of the camera—the difference between the value of the camera accepted and its value if it had been as warranted—plus damages for injury to his person (e.g., medical costs for treating the grandfather's burns) and property (i.e., the cost to replace his coat) because they were proximately caused from the breach of warranty. Thus, (C) is correct, and (A) and (B) are wrong. (D) is wrong because the cost of hiring the professional photographer was not foreseeable. The seller was not told of any particular requirements and needs of the grandfather at the time of contracting nor would the seller have reason to know that the grandfather planned to use the camera to take pictures of his grandson's graduation and would hire a professional photographer if he lost the use of the camera.

On December 6, the owner of an electronics store sent a written request to a computer manufacturer asking for the price of a certain laptop computer. The manufacturer sent a written reply with a catalog listing the prices and descriptions of all of his available computers. The letter stated that the terms of sale were cash within 30 days of delivery. On December 14, by return letter, the store owner ordered the computer, enclosing a check for $4,000, the listed price. Immediately on receipt of the order and check, the manufacturer informed the store owner that there had been a pricing mistake in the catalog, which should have quoted the price as $4,300 for that computer. The store owner refused to pay the additional $300, arguing that his order of December 14 in which the $4,000 check was enclosed was a proper acceptance of the manufacturer's offer.

In a suit for damages, will the manufacturer prevail?

A) Y first communication stated terms calling for cash within 30 days of delivery.

B) Y b/c of mistake of price

C) Y b/c communication ≠ offer

D) N b/c owner's letter was a proper acceptance

The store owner's December 14 letter was an acceptance. Whether the letter was an acceptance depends on whether the manufacturer's letter was an offer, because an acceptance is a manifestation of assent to an offer. For a communication to be an offer, it must create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms. There must be a promise, undertaking, or commitment to enter into a contract with certain and definite terms. Courts usually hold that if a statement is made broadly, such as in an advertisement or catalog, it will not constitute an offer because it is not reasonable to expect that the sender intended to make offers to all who received the advertisement; rather, the courts usually find such advertisements to be invitations seeking offers. However, price quotations may be considered as offers if given in response to a specific inquiry. The courts will look to the surrounding circumstances, and here a court would probably determine that the catalog that the manufacturer sent was an offer because it was sent in response to the store owner's specific inquiries about prices on a specific computer and it included delivery terms and conditions of sale. (A) is incorrect because although the letter called for payment in cash, tender by check is sufficient unless the seller demands legal tender and gives the buyer time to obtain cash. Moreover, because the contract called for payment within 30 days of delivery, even if the check was not sufficient, the store owner still had time under the contract to obtain cash. (B) is incorrect because the mistake was unilateral. Generally, a unilateral mistake will not be grounds to rescind a contract unless the nonmistaken party knew or should have known of the mistake. Here, nothing in the facts indicates that the store owner knew of the mistake, and the mistake was not so large that it could be said that he should have known of it. (C) is incorrect because, as explained above, the manufacturer's catalog was sent in response to the store owner's request for information and his terms for sale constituted an offer.

A landowner leased 150 acres of farmland to a produce company for 15 years. The produce company used the land for crops along with several other contiguous acres that it owned or leased. About four years into the lease, the state condemned a portion of the leased property because it intended to build a highway. As a result, too little property remained for the produce company to profitably farm, although there still existed the farmhouse on the property, which was being used by one of its foremen. The produce company gave the landowner 30 days' written notice that it considered the lease to have been terminated because of the condemnation.

In a suit for breach of contract, is the landowner likely to win?

The landowner probably will win in a breach of contract suit. In partial condemnation cases, the landlord-tenant relationship continues, as does the tenant's obligation to pay the entire rent for the remaining period of the lease. The tenant is, however, entitled to share in the condemnation award to the extent that the condemnation affected the tenant's rights under the lease. Therefore, (B) and (C) are incorrect. (A) is not correct because the law of landlord and tenant traditionally refuses to recognize frustration of purpose as grounds for termination of a lease.

A corporation whose subsidiaries include a major hotel chain planned to build a new hotel and advertised for bids to build the hotel within the next six months. Four bids were received, for $17 million, $17.2 million, $17.4 million, and $15 million. The corporation's chief financial officer reviewed the bids, then emphatically told the corporation's chief executive officer ("CEO") that there was "no way" the low bidder could make a profit on the $15 million bid. The CEO made no response.

In fact, the builder had stayed up for 72 hours without sleep preparing the bid for the hotel project and had neglected to include the plumbing expenses in the bid. Typically, the cost of plumbing, including the shop's profit, would have been about $2 million.

Shortly after the $15 million contract was signed by the CEO and the builder, the builder discovered his mistake and telephoned the CEO to tell her that he had forgotten to include the cost of plumbing, adding that he would normally charge $2 million for plumbing. The CEO agreed to pay the additional $2 million, but this arrangement was never reduced to writing. After the builder completed the project on time, the CEO sent him a check for only $15 million.

Can the builder compel the CEO to tender the additional $2 million?

A) Yes, because the CEO was on notice of the builder's mistake.

B) Yes, because the builder relied to his detriment on the CEO's promise.

C) No, because the builder had a preexisting legal duty to complete the project for $15 million.

D) No, because evidence of the agreement to pay the additional $2 million is barred by the parol evidence rule.

The builder will be able to compel the CEO to pay the additional $2 million because the CEO was on notice of the mistake. The builder has the defense of unilateral mistake. Although the general rule is that a contract will not be avoided by a unilateral mistake, there is an exception where the nonmistaken party either knew or should have known of the mistake. Here the facts clearly indicate that the CEO knew that the builder's bid could not be correct, yet relied on it anyway. Thus, the builder had grounds to avoid the contract. Rather than completely avoid the contract here, the parties agreed to reform it, but they failed to record the reformation in writing. Nevertheless, the court will allow the parties to show the reformed terms because of the mistake. (B) is incorrect because the fact that the builder relied to his detriment on the CEO's promise would not allow him to collect the additional $2 million. Detrimental reliance is a factor in promissory estoppel, which is a doctrine used by the courts to avoid an unjust outcome when there is no contract. Here, there is a contract supported by consideration, so this doctrine does not apply. The builder is entitled to reformation of the bargained-for contract because the CEO was on notice of the builder's mistake. In addition, even if this were a proper case for promissory estoppel, the builder would not necessarily be entitled to the $2 million. Courts that follow the Second Restatement approach typically award reliance, not expectation, damages. (C) is incorrect because the unilateral mistake here was sufficient to discharge the builder from his duties under the contract, so there was no preexisting duty. (If the mistake had not been sufficient to discharge the builder, (C) would be correct because where one is under a preexisting legal duty to perform, performance of that same duty generally will not be sufficient consideration to support a promise to pay additional sums for the performance.) (D) is incorrect because the parol evidence rule only prevents introduction of oral statements made prior to or contemporaneously with a written contract. Here, the $2 million term, although oral, was agreed upon after the original contract was made; thus, the parol evidence rule would not be a bar.

WA citizen of State B struck a pedestrian who was a citizen of State C while driving in A. The pedestrian sued both the driver and the State A city in federal district court, seeking $100,000. The pedestrian alleged that the driver = negligently operating his car and that the State A city = negligently maintaining a traffic signal. The driver, who owns an office supply wholesaler, also has a contract claim against the State A city for $80,000 worth of furniture that the city allegedly purchased and received but never paid for. Assume that State A has waived any applicable governmental immunity.

If the driver files a cross-claim for negligence against the State A city to recover damages for his injuries in the accident with the pedestrian, can the driver join with that cross-claim his contract claim for the purchase price of the furniture and maintain the claim in the same federal action?

A) No, because defendants cannot add claims against co-defendants that are not related to the original claims asserted by the plaintiff.

B) No, because the court does not have supplemental jurisdiction over the driver's contract claim against the State A city.

C) Yes, the driver must assert the contract claim or he will be foreclosed from asserting it later.

D) Yes, the driver may join his contract claim with his negligence cross-claim against the State A city, but is not required to do so.

The driver can join his contract claim with his negligence cross-claim, but he is not required to do so. As a general rule, a party may assert a cross-claim against a co-party only if the cross-claim arises from the same transaction or occurrence as that of the original action or of a counterclaim. However, once the party has filed such a cross-claim, he also may join with it any other claim that he has against the same party. Here, the driver's contract claim is unrelated to the pedestrian's negligence claim; however, the driver's negligence claim is related to the pedestrian's negligence claim. Thus, the contract claim also can be asserted in this case. (A) is therefore incorrect. (B) is incorrect because the court would have diversity jurisdiction over the contract case. (C) is incorrect because the contract claim is not a compulsory counterclaim.

Woman sued her ex-husband for installments due under their divorce property settlement agreement. The ex-H defended the suit on the ground that the ex-W was in breach of the agreement. Court granted judgment for the ex-W. Now, the ex-W is suing ex H for other installments due under the agreement. The ex-H raises defense that the agreement = void and illegal b/c of fraud perpetrated by his ex-wife at the time the agreement was signed. The ex-W moves to strike her ex-H defense, claiming issue preclusion.

Should the court grant the motion?

A) No, because the issue was never litigated.

B) No, because judgment on one installment does not bar subsequent actions on other installments.

C) Yes, because the husband should have raised the defense in the first action.

D) Yes, because the issue of fraud is never waived.

The court should not grant the motion. Generally, issues actually litigated between the parties are binding on them in subsequent actions concerning the same claim. If the second suit involves a different claim, the first judgment may be invoked as to all matters actually litigated and determined in the first action, provided that the findings were essential to the first judgment. Here, the fraud issue was not actually litigated in the first action, and thus it can be raised with respect to the later installments. (B) is incorrect. The general principle recited in this answer is true for claim preclusion (unless there is an acceleration clause). However, even if claim preclusion does not apply, if the defendant raises the same issues as in the first case, he may be prevented by issue preclusion (collateral estoppel) from re-litigating those issues in that subsequent case. (C) is incorrect. Claim preclusion (res judicata) would bar claims arising out of the same transaction or occurrence. Here, claim preclusion does not apply because a defense, not a claim, is involved, and the second installment is a separate transaction or occurrence. (D) is incorrect because there is no such rule.

A department store buyer and a manufacturer of food processors entered into a written contract whereby the manufacturer would sell to the buyer 50 of its top-of-the-line models for $100 each. When the delivery arrived on May 15, several days early, the buyer noticed that the food processors were a different model that did not have all of the features as the top-of-the-line model that was ordered. The buyer contacted the manufacturer and told him that he was rejecting the food processors that were delivered to him and expected the manufacturer to send 50 top-of-the-line models immediately. The manufacturer replied that because of a backlog of orders that had not yet been filled, the top-of-the-line models could not be delivered until August 15. Because the department store had contracted with a restaurant to deliver three top-of-the-line models by May 31, the buyer delivered three of the nonconforming food processors along with a promise to replace them with three top-of-the-line models in mid-August. The buyer returned the remaining food processors to the manufacturer.

How much could the department store recover from the manufacturer for the three food processors that it delivered to the restaurant?

A) Nothing, b/c they were resold to another.

B) Nothing, b/c it accepted them knowing they were defective.

C) The difference b/t the market price of the top-of-the-line models and the existing food processors' actual value.

D) The difference b/t the existing food processors' actual value and the cost of the food processors that the department store must provide to the restaurant in mid-August.

The department store was entitled to recover contract damages from the manufacturer for the three food processors that it accepted. If the buyer accepts goods that breach one of the seller's warranties, the basic measure of damages is the difference between the value of the goods as delivered and the value they would have had if they had been according to the contract, which is best stated by choice (C). The department store's acceptance of the three food processors did not waive its right to collect damages for the defect in quality. Thus, (A) and (B) are wrong. Having accepted the nonconforming food processors, the department store's damages would be the difference between the value of the food processors as received and what they would have been worth if they had been as warranted, plus foreseeable incidental and consequential damages. (D) is wrong because the measure of damages is based on market value rather than cost. Also, the agreement with the restaurant was to accommodate the department store only and was not foreseeable by the manufacturer.

A man and a woman were arrested and charged with a series of armed robberies. Each suspect was given Miranda warnings, and different interrogation teams questioned each suspect separately. Upon being questioned, the man told the police, "I'm not going to talk until I see a lawyer." An officer responded, "You might want to reconsider, because your partner has already confessed, and she's implicated you in the crimes." The man then told the police that he wanted to talk to the woman privately. The police escorted the man to the woman's cell, locked him in with her, and left. Unbeknownst to either of them, the police had bugged the woman's cell and recorded both the man and the woman making self-incriminating statements during their meeting. The man made no further statements to the police on advice of counsel, whom he called immediately after his conversation with the woman. The man was put on trial first, and the prosecution sought to introduce into evidence tapes of the bugged conversation between the man and the woman. The defense made a motion to suppress the evidence.

Should the court grant the motion to suppress?

A) Yes, because the evidence is the fruit of a wiretap that violated the Fourth Amendment.

B) Yes, because the police created a situation likely to induce the defendant to make an incriminating statement.

C) No, because there is no expectation of privacy in a jail cell.

D) No, because the conversation constituted a waiver of the man's Miranda rights.

The conversation should be suppressed b/c the police conduct violated the man's 6th Am right to counsel. The 6th Am provides that in all criminal prosecutions a ∆ has a right to the assistance of counsel at all critical stages after formal proceedings have begun. For 6th Am, a criminal prosecution begins when adversary judicial proceedings commenced, such as the filing of formal charges in this case. Because custodial interrogation is a critical stage of prosecution, the 6th Am is violated by post-charge interrogation unless the ∆ waived his right to counsel. Interrogation includes not only direct questioning, but also any other conduct by the police intended to elicit a response. Police conduct here (telling the man that the woman had implicated him and then bugging the conversation) = prohibited interrogation. (A) incorrect b/c the wiretap was not an illegal search under the 4th Am. Wiretapping and other forms of electronic surveillance are subject to the 4th Am prohibition of unreasonable searches and seizures. However, to have a 4th Am right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. In a different context, the Supreme Court has held that prisoners have no reasonable expectation of privacy in their cells or in any personal property that they have in their cells. Hence, neither ∆ can assert a 4th Am claim based on the wiretap, because they had no REOP in the jail cell. The fact that there was no REOP doesn't make choice (C) correct, however. Even though he probably cannot claim that the bugging was an unreasonable search under the 4th Am, the man can claim that it was an interrogation in violation of his 6th Am right to counsel, as discussed above. (D) is incorrect, irrelevant. Prob≠ Miranda violation b/c Court's ruling that Miranda ≠apply unless interrogation is by someone known to be a police officer. In any case, Miranda rights and 6th Am rights to counsel can only be waived knowingly, and so the man's ignorance of the fact that the cell was bugged precludes a finding of waiver here.

Three drivers were in an automobile accident in a city in State A. The drivers were citizens of State A, State B, and State C. The State B driver filed a tort action against the other two in a State A state court, seeking $300,000 for her severe injuries. The State C driver wants to remove the action to a federal district court.

Is the action removable?

A)No, because one of the defendants is a citizen of State A.

B) No, because an action may be removed from state court only if it "arises under" federal law.

C) Yes, because there is complete diversity of citizenship and the amount in controversy exceeds $75,000.

D) Yes, because one of the defendants is a citizen of a state other than State A.

The action not removable. Under 28 U.S.C. § 1441, a ∆ may remove an action that could have originally been brought in federal courts. A case may not be removed on the basis of diversity jurisdiction if a defendant is a citizen of the state in which the action was filed. Here, the action was filed in State A against a State A defendant; thus, the case may not be removed, even though it is a State C defendant who is seeking removal. This fact also makes (D) incorrect. (B) is incorrect because a case may be removed based on diversity, with the restriction that removal is not available if one of the defendants is a citizen of the forum state. (C) is incorrect. Even though the case satisfies the requirements of diversity jurisdiction, the "in-state defendant" restriction prevents removal.

A young man proposed to his girlfriend, but she was reluctant because of his meager income and lack of job potential. The young man told his father about her reluctance. The father told the girlfriend that if she married his son, he would support them for six months and send his son to a six-month computer technology training school. This was sufficient to dispel her reservations and the two were married very soon after. When they returned from their honeymoon, the father refused to go through with his offer. Although the girlfriend is happy in her marriage, she sued the father for damages.

If the father prevails, what is the likely reason?

A) The father's promise was not supported by valid consideration.

B) The contract is against public policy.

C) The contract was oral.

If the father prevails, it will be because his promise to the young woman was not in writing. The Statute of Frauds requires that a contract in consideration of marriage must be evidenced by a writing to be enforceable. This includes any promise that induces someone to marry by offering something of value. Hence, the father's offer of support and education expenses is unenforceable. (A) is wrong because a promise to marry is a sufficient detriment to constitute valid consideration. (B) is wrong because there is no public policy against encouraging marriage

On February 1, the owner of a bowling alley read in a magazine an ad from a major manufacturer of bowling balls offering sets of 40 balls in various weights and drilled in various sizes for $10 per ball. The owner immediately filled out the order form included in the ad for the 40 balls and deposited it, properly stamped and addressed, into the mail. On February 2, the bowling alley owner received in the mail a letter from the manufacturer, sent out as part of its advertising campaign, stating in relevant part that it will sell the bowling alley owner 40 bowling balls at $10 per ball. A day later, on February 3, the manufacturer received the bowling alley owner's order. On February 4, the balls were shipped.

On what day did an enforceable contract arise?

The contract arose when the balls were shipped. The general rule is that an offer can be accepted by performance or a promise to perform unless the offer clearly limits the method of acceptance. Here, the offer would be the bowling alley owner's order, because a magazine ad is usually held to be merely solicitation to accept offers rather than an offer. Thus, the manufacturer accepted and the contract was formed when it shipped the balls. Feb 1 is wrong because the bowling alley owner's order was an offer to buy, and no contract could be formed until that offer was accepted. Feb 2 is wrong because this is a case of crossing offers; even though both offers contain the same terms, they do not form a contract. Feb 3 is wrong because no contract will be formed until there has been an acceptance, and, as stated, the bowling alley owner's letter was merely an offer.

A developer subdivided a 25-acre tract of land into 100 quarter-acre lots. On each lot she built a two-unit townhouse. The deeds to each of the purchasers contained a covenant that "the grantee, his heirs and assigns" would use the property only for single-family use. All deeds were promptly and properly recorded. Subsequently, the zoning laws were amended to allow multifamily use within the subdivision. Six months later, a social worker offered to purchase an original owner's unit that was for sale. The social worker informed the owner that she planned to operate a halfway house out of the unit, an activity in conformity with the applicable zoning regulations. Therefore, the owner did not include the single-family restriction in the deed to the social worker.

If a neighbor, who purchased his lot from the developer, seeks to enjoin the operation of the halfway house, will he succeed?

A) No, because the deed from the owner to the social worker did not refer to the covenant.

B) No, because the social worker relied on the zoning regulations when purchasing the unit.

C) Yes, because the social worker had notice of the restrictive covenant.

D) Yes, but only if the neighbor can establish a common scheme for development.

The neighbor will succeed in enjoining the operation of the halfway house because the social worker had notice of the restrictive covenant. A covenant runs with the land to a subsequent purchaser with notice of the covenant if it touches and concerns the land and is intended to run. Notice may be actual or constructive. Here, the social worker was on record notice of the covenant because the original owner's deed was recorded. Restricting land to single-family use touches and concerns the land, and it is evident that the developer and the original owners, including the neighbor, intended it to run with the land by use of the language "grantee, his heirs and assigns." The social worker thus will be bound even though her deed did not refer to the covenant. Thus, (A) is incorrect. (B) is incorrect because compliance with zoning regulations does not excuse noncompliance with an enforceable covenant; both must be complied with. (D) is incorrect because the neighbor can prevail without needing to show a servitude implied from a common scheme, which comes into play when a developer subdivides land into several parcels and some of the deeds contain negative covenants and some do not. Here, the covenant relating to single-family use was in all of the original deeds and, as discussed above, it runs with the land. A covenant that runs with the land may be enforced as an equitable servitude if the assignees of the burdened land have notice of the covenant; the usual remedy is an injunction. Here, the social worker had record notice of the covenant and it runs with the land, so the neighbor can enforce the covenant as an equitable servitude without resort to implying a reciprocal negative servitude.

The police received a tip from a reliable informant that a former student at the local university was selling narcotics. A brief investigation revealed that the former student, a college dropout, still hung around the university campus, had no visible means of support, and yet drove a large luxury car and wore flashy clothing and jewelry. The police picked up the former student the next time he showed up on campus, took him to the station, and questioned him all night long without a break and without letting him communicate with anyone else. When the former student tired from the interrogation, he admitted that he sold cocaine to his friend, who is a current student at the university. Based on this information, the police went to the current student's dormitory room. When they arrived, they found the door open but no one was in the room. The police entered, searched the room, and discovered a vial of white powder. Later laboratory tests established the powder to be cocaine. The former student was then charged with the sale of narcotics. At his trial, the prosecution attempted to admit the cocaine discovered in the dormitory room into evidence.

What is the former student's best argument for preventing the cocaine from being admitted into evidence?

A) The dorm search was conducted without a warrant and without consent.

B) The police arrested the former student w/o warrant.

C) The former student's confession ≠ voluntary under the circumstances.

D) The police failed to give the former student Miranda warnings.

Best arg= confession ≠t voluntary. With regard to (A), the search of the current student's dorm room appears to be an unreasonable search under the Fourth Amendment. However, a person's Fourth Amendment rights against unreasonable search and seizure may be enforced by the exclusion of evidence only at the instance of someone whose own protection was infringed by the search and seizure. Former student doesn't have possessory interest or REOP in the current student's dorm room. So no exclusion on 4th am. (B) is incorrect b/c arrest warrants are usually required only for arrests made in the person's home. Police generally do not need to obtain a warrant before arresting a person in a public place, even if they have time to get a warrant, as long as the arrest is based on probable cause. Police had probable cause to arrest the former student, and because he was arrested on the grounds of the campus, the failure of the police to obtain an arrest warrant will be of no help to him. (C) and (D) both focus on improper conduct during interrogation, but (C) = better-former student will have a better chance of invoking the exclusionary rule if the confession is involuntary. For confessions to be admissible, the Due Process Clause of the Fourteenth Amendment requires that they be voluntary. While voluntariness is a fact question that is assessed by looking at the totality of the circumstances, the duration and manner of the police interrogation here indicate that the confession probably was the result of actual coercion. If the confession is found to be involuntary, the former student can invoke the exclusionary rule to exclude the cocaine as "fruit of the poisonous tree." In contrast to an involuntary confession, a confession obtained without Miranda warnings, as long as the failure to warn was not purposeful, may not be sufficient to justify excluding the nontestimonial "fruits" of the confession. [See United States v. Patane (2004)] Thus, the involuntariness of the confession, rather than the absence of Miranda warnings, is the best argument for excluding the cocaine.

A retailer entered into an oral contract with an office supply wholesaler to buy 100 file boxes for an upcoming back to school sale at the retailer's store. The wholesaler agreed to deliver the file boxes in two weeks at a cost of $4 per file box. A week later, the retailer phoned the wholesaler and asked if she could increase her order to 200 file boxes. The wholesaler agreed. The wholesaler delivered the 200 file boxes as promised, but the retailer accepted only 150 upon discovering that she lacked storage space for all 200.

May the wholesaler recover damages with respect to the 50 file boxes that were not accepted?

A) Yes, the retailer accepted $600 worth of file boxes.

B) Yes, the modification was for less than $500.

C) No, the contract as modified was for $800.

D) No, the wholesaler is a merchant w/r/t file boxes.

The wholesaler may not recover damages. Under the UCC Statute of Frauds, a contract for the sale of goods for $500 or more is unenforceable unless evidenced by a writing signed by the party sought to be held liable. The original contract was for $400 and, thus, was not within the Statute. Whether a modification must be in writing to be enforceable depends on whether the entire contract price as modified is within the statute. Here, the retailer and the wholesaler modified their original contract to 200 file boxes, bringing the total price to $800. Thus, the modification was unenforceable under the Statute and Frauds, and the wholesaler cannot collect damages with respect to the 50 unaccepted file boxes. (A) is incorrect. Acceptance is an exception to the Statute of Frauds—but only to the extent of the goods accepted. That is, an oral contract for the sale of goods for $500 or more is enforceable to the extent the goods are accepted. Here, the original contract for 100 boxes is enforceable, but the modification is not. However, since the retailer accepted 50 additional boxes, the modified contract is enforceable to the extent of the additional 50 boxes accepted. The fact that the accepted amount meets the Statute of Frauds $500 threshold does not make the contract enforceable for all 200. (B) is incorrect because, as noted above, when determining whether a contract for the sale of goods is enforceable, we look at the whole contract price as modified; the price of the modification itself does not matter. (D) is incorrect because the fact that the wholesaler is a merchant with respect to the goods being sold (file boxes) has no bearing on the enforceability of the contract here.

A hockey player who was playing in the final game of the season before a hostile crowd in the opponent's packed stadium had an opportunity to get his team into the playoffs, but he missed a shot into an open net as the horn sounded, ending the game. As the crowd cheered and jeered, the puck bounced back to him and he shot it in anger toward the stands. A fan who had been looking the other way turned back toward the rink just in time to be struck in the face by the puck. He suffered a broken nose and a severe gash under his eye. After the game, the league commissioner fined the player for violating league rules by intentionally directing the puck out of the playing area.

If the fan sues the player for battery, will the fan likely prevail?

The fan will prevail in his battery action because the player had the requisite intent for battery. A prima facie case for battery requires plaintiff to prove (i) an act by defendant that brings about a harmful or offensive contact to the plaintiff's person, (ii) intent on defendant's part to bring about harmful or offensive contact, and (iii) causation. The intent element is satisfied as long as the defendant knew with substantial certainty that the harmful or offensive contact would result. Here, the player's conduct caused a harmful contact to the fan, because the player set into motion the force that caused injury to the fan. His intentionally shooting the puck into the crowded stands is enough to establish that he knew with substantial certainty that the puck would strike a spectator. (D) is wrong. That the player violated league rules when he shot the puck into the stands tends to establish only that a spectator does not impliedly consent to a puck's intentionally being shot at him, thus negating the defense of consent in a battery action. It does nothing to establish that the player did have the intent to commit a battery.

A small processor of specialized steel agreed in writing with a small toy manufacturer that it would supply, and the manufacturer would buy, all of the manufacturer's specialized steel requirements over a period of years at a set price per ton of steel. Their contract did not include a nonassignment clause. Recently, the toy manufacturer decided to abandon its line of steel toys, so it made an assignment of its rights and delegation of its duties under the contract to a toymaker many times larger. The large toymaker notified the steel processor of the assignment and relayed to the processor its good faith belief that its requirements will approximate those of the assignor.

Must the steel processor supply the requirements of the large toymaker?

A) Yes, because there was no nonassignment clause in the contract.

B) Yes, because the large toymaker acted in good faith to assure the steel processor that its requirements will approximate those of the small manufacturer into whose shoes it stepped.

C) No, because requirements contracts are not assignable under the UCC

D) No, because the steel processor did not give prior approval of the assignment.

Because the large toymaker acts in good faith in setting its requirements to approximately those of the small manufacturer into whose shoes it stepped, the contract may be assigned. The contract in this question is a "requirements" contract. Generally, the right to receive goods under a requirements contract is not assignable because the obligor's duties could change significantly. In fact, here, a significant change would seem possible because the large toymaker is a larger company than the small manufacturer and its needs could be greater. However, the UCC allows the assignment of requirements contracts if the assignee acts in good faith not to alter the terms of the contract. [UCC §2-306]. Thus, assuming the large toymaker's requirements remain about the same as the small manufacturer's requirements, the steel processor would be required to honor its contract, now assigned to the large toymaker. (A) is wrong because requirements contracts may be nonassignable, even without a nonassignment clause. Thus, the clause would be irrelevant. The only thing that could allow assignment of a requirements contract is a good faith limitation, as addressed in choice (B). (C) is wrong because the UCC does allow requirements contracts to be assigned, as long as the good faith limitation is satisfied. (D) is similarly incorrect. The UCC would allow assignment without approval by the obligor if there is a good faith limitation on the requirements.

A landowner possessed a 40-acre tract of land. He had inherited 30 acres and had possessed the other 10 acres for longer than the statutory period necessary to acquire title by adverse possession from a rancher. The landowner entered into a land sale contract promising to convey the 40 acres to a developer. The contract provided that the landowner would convey marketable title. The developer paid the landowner the purchase price and accepted a deed from him. The developer promptly recorded the deed. The rancher, having learned of the sale, brought a successful action against the developer to quiet title. The developer realized for the first time that there were no covenants for title in his deed. The developer brings an action against the landowner.

What is the most likely outcome of the suit?

A) The developer will win, because the landowner breached the terms of the contract.

B) The developer will win, because the landowner misrepresented the size of the tract.

C) The landowner will win, because the terms of the deed control his liability.

D) The landowner will win, because the developer was negligent in not checking the covenants of title at the time of closing.

The landowner will win because the terms of the deed, not of the contract, control his liability. There is an implied covenant in every land sale contract that at closing the seller will provide the buyer with a title that is "marketable." Marketable title is title reasonably free from doubt, i.e., title that a reasonably prudent buyer would be willing to accept. It need not be a "perfect" title, but the title must be free from questions that might present an unreasonable risk of litigation. Generally, this means an unencumbered fee simple with good record title. Generally, a title acquired by adverse possession is not considered marketable because the purchaser might be later forced to defend in court the facts that gave rise to the adverse possession against the record owner. Here, the marketability requirement did not have to be implied, it was an express term of the contract. Under the doctrine of merger, the contract merges into the deed, and the terms of the contract are meaningless. Even though the contract specified a "good and marketable title," it is the deed that controls, and the deed contained no covenants of title. A deed does not incorporate the title terms of a contract. Thus, (A) is wrong. (B) is wrong; it is not supported by the facts. (D) is wrong because the developer's negligence is irrelevant.

The owner of an old car parked it in front of his house with a "for sale" sign in the windshield. In response to an inquiry from his neighbor, the car owner said that he would take $400 for the car. The neighbor responded, "You've got a deal." Because it was a Sunday, and the banks were closed, the neighbor told the car owner that he would come to his house with the $400 the next day at about 6 p.m. The car owner said that was fine. At 9:15 the next morning, the car owner called his neighbor and told him that when they had talked the previous day, he forgot that he had just put two new tires on that car and that he would need an extra $50 to cover their cost. The neighbor agreed to bring $450 in cash to the car owner's house at about six o'clock.

Is the neighbor legally bound to pay the car owner the additional $50?

A) Yes, the original K was not in writing.

B) Yes, the K, as modified, does not need to be in writing.

C) No, no additional consideration was given for the oral modification.

D) No, neither the neighbor nor the car owner is a merchant.

The neighbor must pay the car owner the additional $50 because the parties have an enforceable K. K for the sale of goods (the car) was formed when the neighbor said, "You've got a deal." The parties orally agreed to a modification of K when the car owner called his neighbor the next morning. Under the Statute of Frauds provision in the UCC, which applies to all Ks for the sale of goods, a promise requires a writing signed by the party to be charged to be enforceable if it is for the sale of goods of $500 or more. Here, the K as modified is under $500, so it is enforceable even though ≠ writing. (A) is incorrect b/c that the original K was not in writing is irrelevant to issue of whether the modified K is enforceable. If modification had caused the K to reach or exceed $500, the car owner could not have collected the additional $50 from his neighbor. (C) is incorrect because under UCC section 2-209, no consideration is needed for a good faith modification of K for the sale of goods. (D) is incorrect because the UCC rules on modifications and the Statute of Frauds apply to all Ks for the sale of goods, not just those b/t merchants.

The president of a private college received a report that there was a great deal of cocaine use occurring on the second floor of the dormitory. The president persuaded the school security officers to place several concealed microphones in the second-floor student lounge. Conversations occurring in the lounge were monitored by the security officers and they recorded a conversation in which a sophomore at the college offered to sell cocaine to a freshman. A tape of the conversation was taken to the local police, who played it for a local judge. The judge issued a warrant to search the sophomore's room. While searching the room the police discovered a large amount of cocaine and the sophomore was arrested and charged with unlawful possession of narcotics. His attorney moved to prevent the introduction of the cocaine into evidence.

Will the motion most likely be granted?

A) Yes, the sophomore's privacy was unreasonably invaded.

B) Yes, the electronic surveillance was "fundamentally unfair."

C) No, the police properly obtained a search warrant.

D) No, the college president was acting on behalf of the college population in general.

The motion to suppress should be denied because a valid search warrant was obtained. A search warrant must be based on probable cause. Here, there was sufficient information for a judge to conclude that there was probable cause to believe that evidence of a crime would be found in the sophomore's room. Thus, the warrant was properly obtained. (A) is wrong because the sophomore had only a limited expectation of privacy in a dormitory's lounge. Also, even if his privacy had been invaded, any invasion here was done by private persons, not the state, and thus would not prevent introduction of the evidence. (B) is wrong because it is untrue as a matter of law. (D) is wrong because it is not a sufficient basis to deny the sophomore's motion. It is irrelevant that the college president acted on behalf of the college population.

Acting on anonymous phone call, police went to the ∆'s apartment, knocked on the door, and demanded to search it for narcotics. When ∆ refused, the police forced the door open and placed him under arrest. As they were removing him from the apartment, ∆ offered to give the officers "valuable information" in exchange for his release. Before ∆ could say anything else, ∆ was given Miranda warnings by the police. Thereafter, ∆ told the police that ∆ had stored some heroin in friend's apartment and that ∆ and friend had been going to sell it. The heroin was recovered, and ∆ was prosecuted for conspiracy to sell narcotics and for possession of narcotics. At trial, ∆ moved to suppress his statements.

Which of the following is the defendant's best argument in support of the motion to suppress?

response - incorrect

A) ∆ entitled to know the identity of his accuser, and the state cannot supply this information.

B) police should have given ∆ Miranda warnings prior to entry into the apartment, and the warnings were ineffectual once ∆t offered to give police information.

C) ∆was intimidated by the forced entry into the apartment, and b/c the statements were involuntary and coerced, their use against ∆ would violate due process of law.

D) statements were fruits of an unlawful arrest, and though the Miranda warnings may have been sufficient to protect his right against self-incrimination, they were not sufficient to purge the taint of the illegal arrest.

The entry into the defendant's apartment and his arrest, without a warrant, probable cause, or circumstances permitting an exception from these requirements, were unconstitutional. The statements he made thereafter were fruits of the original unconstitutional arrest and must be suppressed unless the taint was purged. The giving of Miranda warnings was not sufficient. Hence, (D) is the best answer. If probable cause for a warrant is based on information from an informer, usually that informer's identity need not be revealed. Thus, (A) is incorrect. (B) is a misstatement of law. There was no interrogation by the police to trigger the Miranda requirements. (C) is attractive but not as accurate an answer as (D). If the police had been acting with probable cause to arrest, their forced entry into the apartment would not have made the defendant's statements involuntary.

A ∆ held up a gasoline station. During the robbery, ∆ shot/ killed a customer who attempted to apprehend him. ∆ prosecuted for premeditated murder and convicted. Thereafter, he was indicted for armed robbery of the station. Before the trial, his attorney moved to dismiss the indictment on the ground that further proceedings were unconstitutional because of the ∆'s prior conviction.

Should the motion to dismiss be granted?

A) Yes, because once the defendant was convicted on any of the charges arising out of the robbery, the prosecution was constitutionally estopped from proceeding against the defendant on any charge stemming from the same transaction.

B) Yes, because the Double Jeopardy Clause prohibits a subsequent trial on what is essentially a lesser included offense.

C) No, because there is no constitutional requirement that all known charges against a defendant be brought in the same prosecution.

D) No, because estoppel does not apply when a defendant is charged with violating two different statutes.

The motion to dismiss should be denied. For purposes of the Double Jeopardy Clause, two crimes do not constitute the "same offense" if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes. Here, even though the same facts are involved for both crimes, the robbery charge requires proof of a taking by force but not a death, while the murder charge requires proof of a death but not of a taking of property. Thus, (C) is correct and (A) is incorrect. (B) is incorrect because armed robbery is not a lesser included offense of premeditated murder. (D) is incorrect because the prosecution would be estopped if violation of one statute constituted a lesser included offense of the other statute.

A quilter who had restored a rare Civil

War-era quilt spoke with an old friend whose

business was selling new and vintage quilts. When the friend learned of the quilter's latest restoration, she told her that for 15% of the gross, she could find her a buyer who would pay at least $5,000 for it. The quilter said nothing in reply. The next morning, the friend telephoned the quilter and told her that she had a prospective buyer who was willing to pay $5,200 for the quilt, sight unseen. The quilter asked for the buyer's phone number, which the friend gave to her, and then called the buyer and arranged a sale. The quilter refused to pay her friend the 5% commission, disclosing to her that another party had expressed interest in the quilt and she instead could have sold it to that party for at least $5,200. The friend sues the quilter for breach of contract, seeking her 15% sales commission.

What will be the probable outcome?

(B) The quilter will win, because there was no consideration for any promise to pay that might have been implied from her conduct.

(D) The friend will win, because she obtained a buyer for the quilt and a purchase price over $5,000 was paid

D) Whether friend can recover depends on whether there was a K. Friend's statement that she could find a buyer for 15% of price of at least $5K was sufficiently definite to be an offer. Quilter didn't accept offer immediately, when friend informed her she found a buyer, quilter asked for buyer's phone number. Sufficient acceptance even though quilter didn't explicitly state she was accepting, because acceptances are tested by an objective standard, and a reasonable person would presume that statement = acceptance given that the quilter knew the info was being supplied under terms of the friend's offer

The owner of an apparel store faxed an order to her regular supplier for 100 pairs of wool gloves at $10 a pair, the supplier's list price. The supplier checked his inventory and discovered that he had only 90 pairs of wool gloves, which he shipped to the store owner along with 10 pairs of wool blend gloves that also had a list price of $10 a pair. The supplier also enclosed a note to the store owner explaining that he did not have enough stock of wool gloves to fill her order, and that, in the hopes she could use them, he was sending wool blend gloves at the same list price to make up the balance of the shipment.

On receipt of the shipment and note, what are the store owner's options?

(A) The store owner may accept the shipment, in which case she must pay the supplier $1,000 less any damages sustained because of the nonconforming shipment, or she may reject the shipment, in which case she has no further remedy against the supplier.

(B) The store owner may accept the shipment, in which case she must pay the supplier $1,000, or she may reject the shipment, in which case she may recover against the supplier for breach of contract.

(C) The store owner may accept the shipment, in which case she must pay the supplier $1,000, or she may reject the shipment, in which case she has no further remedy against the supplier.

(D) The store owner may accept the conforming part of the shipment and reject the nonconforming part, in which case she must pay the supplier $900 less any damages sustained because of the nonconforming part of the shipment, or she may reject the entire shipment, in which case she may recover against the supplier for breach of contract.

C) Under UCC, offer to buy goods for current/prompt shipment construed as inviting acceptance either by promise to ship or by prompt shipment of conforming OR nonconforming goods. Shipment of NC goods normally = acceptance creating bilateral K as well as breach,

BUT if seller seasonably notifies buyer that shipment of nonconforming goods = offered only as accommodation, shipment of goods = counter offer rather than an acceptance, and buyer = free to accept/ reject it.

Store would not have damage claims b/c shipment is a counteroffer rather than acceptance/ breach

D) is wrong b/c store owner doesn't have power to accept only part of the goods, given that it's a counteroffer

A large-scale bakery in the South entered into a written contract with a commercial apple orchard in the upper Midwest to purchase 200 bushels of apples at a cost of $8 per bushel. The contract provided that the apple orchard would deliver the apples "F.O.B. Louisville Railroad Depot," where the apples would be loaded onto a train headed south. The orchard assigned all of its rights under the contract to a large produce distributor which, in turn, hired a trucking company to deliver the apples to Louisville. En route to Louisville, the truck skidded off the road due to inclement weather and overturned, and the apples were destroyed. The bakery brought suit against the apple orchard for breach of contract. What will be the probable outcome of the litigation?

(B) The bakery will recover the amount necessary to replace the destroyed apples, over the contract price.

(C) The bakery will recover the full contract price.

(D) The bakery will be able to compel specific performance of the contract.

B) Apple orchard remained liable on assigned K and it had the risk of loss. No issue w/ assigning K duties, delegating party remains liable on obligation. B did not receive performance that was due, so could sue A for breach. Possible remedies for nonbreaching: 1) cancel K and recover incidental damages; 2) purchase replacement goods and sue for cost of replacement. Measured by difference of K price and amount buyer actually has to pay.

C) is incorrect UNLESS buyer had already paid for apples and wished to cancel (and facts do not indicate this to be the case) b/c K price may not be enough to purchase replacement goods if the price of apples has risen, and would be to much if the price had dropped

D owed her father $1,250. The father's BFF was having financial difficulties and the father wanted to help, so the father told D to pay the $1,250 BFF when the debt came due in three days. Immediately after directing his D to pay BFF, the father called BFF and told him he should expect to get $1,250 from his D in three days. When the debt came due, D tendered the $1,250 to her father instead of BFF, and the father accepted the money. BFF sues D for $1,250.

Which of the following is the most likely result?

(B) The friend will not recover, because the father's acceptance of $1,250 from his daughter revoked his gift to his friend.

(C) The friend will not recover, because the daughter was never indebted to him and cannot be forced to pay him.

(D) The friend will not recover, because the daughter's tender of $1,250 to her father, and her father's acceptance of the money, constituted a novation.

B) Assignment = valid, but revocable b/c gratuitous. Neither writing nor consideration req'd for valid assignment. Exceptions to revocability of gratuitous assignments: 1) where obligor has already performed; 2) where assignor will be estopped from revoking by virtue that he should reasonably forsee assignee will change position in reliance on assignment and detrimental reliance occurs. Neither applies on these facts. By accepting performance from D, father took direct performance from obligor, thereby revoking the assignment.

C) is incorrect b/c the D was indebted to BFF while assignment was still in effect

D owed a C $5,000, but the debt was barred by the applicable statute of limitations. The D agreed to assign to the C a $4,000 debt that was owed to him by 3P and was coming due in a week. The D called 3) to inform him of the assignment. When the debt became due, the 3P refused to pay the creditor. The creditor brings an action to collect the debt against the 3P. Will the C likely prevail?

(A) Yes, because the creditor's agreement to accept a lesser amount than the original debt constituted consideration for the assignment.

(B) Yes, because an assignment need not be in writing to be enforceable.

B) Don't need a writing to enforce. A) is wrong: 1) creditor's agreement to accept other debt didn't constitute consideration b/c he no longer ahd a right to enforce the original debt. 2) consideration not req'd for assignment

A buyer of a new car owed the car dealership where she purchased the vehicle $1,000 on a promissory note that was due on December 30. The buyer determined that she would be unable to pay the note on its due date, and she informed the owner of the dealership of that fact. The owner told her that she would not have to pay the debt if she bought him four tickets to a popular concert on January 15 that had been sold out for weeks, because she worked as publicist for the concert venue. She agreed to do so, and the parties memorialized their agreement in a signed writing on December 18. On January 2, the dealership filed suit against the car buyer failure to pay the $1,000 promissory note, before the car buyer had secured the concert tickets for the owner.

May the car buyer have this action enjoined by introducing evidence of the December 18 agreement?

(A) Yes, because the December 18 agreement between the parties suspended the car buyer's obligation on the promissory note.

(B) Yes, because the December 18 agreement between the parties discharged the car buyer's obligation on the promissory note.

A) dealership doesn't have right to enforce promissory note. Valid accord doesn't discharge prior K but merely suspends right to enforce it in accordance w/ terms of accord K. Performance of accord- satisfaction-discharges accord and original K

A chef wanted to open his own restaurant and a contractor offered to build the place for $160,000. Their written contract provided that the chef would pay the contractor $60,000 in cash when construction commenced, scheduled for April 15 after the spring thaw. On completion of the restaurant on September 30, the contractor would be paid the remaining $100,000. The region had a late spring, and on April 30 the contractor had not yet commenced construction of the restaurant. Has the contractor breached the contract?

(A) No, and the chef need not make the initial $60,000 payment.

(B) No, but the chef must make the initial $60,000 payment.

(C) Yes, in a nonmaterial particular; thus, the chef need not make the initial $60,000 payment.

(D) Yes, in a material particular; thus, the chef may treat the contract as at an end and sue for damages.

A) C has not breached K and chef doesn't need to make first payment until C begins work. C did not promise to build work on a particular date, K term as to C's beginning construction = condition precedent to making first payment (relating to chef's perforamnce, not C's performance). Nothing indicates that C promised to begin on April 15. Purpose is to build by 9/15, and construction cannot commence before spring thaw- thus best interpretation = that language regarding commencement of construction = condition of chef's first payment, inserted to insure C was motivated to begin and chef wouldn't be out of pocket if C failed to begin

A cashier at a bookstore who accepted a $50 bill as payment from a customer placed the bill underneath all of the $20 bills in the cash register and took it home with her at closing time. At the cashier's second job as a truck driver, she drove her tractor to a trucking terminal and attached a trailer filled with wine. At the first truck stop, the cashier entered the trailer, took a bottle of wine from a case, and drank it.

In a common law jurisdiction, of which of the following crimes is the cashier guilty?

(A) Larceny for the money and embezzlement for the wine.

(B) Embezzlement for the money and larceny for the wine.

(C) Larceny for both the money and the wine.

(D) Embezzlement for both the money and the wine.

(C) Larceny is the taking and carrying away of tangible personal property of another by trespass w/ the intent to permanently deprive the other of his interest in the property.

Cashier = guilty of larceny b/c even though she originally had possession of $50 when she received it from the customer, she then placed it in register (ER then obtains possession) and cashier's right to money reduced to custody. When she took the bill from the register @ end of day, she committed trespassory taking from Er's possession, therefore committed larceny. Had she instead took the $50 from the customer and placed it in her pocket, she would hav committed embezzlement b/c money wouldn't have reached possession of ER.

Also guilty of larceny for wine. As a bailee she clearly was in possession of entire trailer, however when she entered the trailer and took one wine bottle, she broke bulk, and possession of wine bottle is deemed to revert back to owner of the wine. Thus, when she removed the bottle from its place in the trailer w/ the intention of depriving its owner of the wine permanently, she committed larceny.

A masked gunman held up a convenience store. Due to the poor quality of the surveillance recording, it was very difficult to identify the masked gunman. Nonetheless, the ∆ was arrested and charged with the robbery. At the preliminary hearing, the magistrate, on seeing the poor quality of the tape, determined that there was not probable cause to prosecute ∆. After that, the county prosecutor presented the case to a grand jury, but the grand jury refused to indict ∆. After waiting a couple of months, the prosecutor presented the case to a different grand jury. The grand jury indicted ∆ and the case went to trial. At trial, the jury was unable to reach a verdict. After this trial, the county prosecutor again tried the case before a jury; in this instance, the jury acquitted ∆ of all charges. At a third trial, the county prosecutor was finally successful in having ∆ convicted. ∆ appeals on double jeopardy grounds. On appeal, the court overturned the conviction because jeopardy had attached.

After what point in the proceedings did jeopardy attach?

(A) When the magistrate determined that there was insufficient evidence to prosecute.

(B) When the first grand jury refused to indict the defendant

(C) When the first trial had ended in a hung jury.

(D) When the second trial had ended in an acquittal.

(D) general rule = once jeopardy attaches, ∆ ma not be retried fro same offense. In jury trials, attaches when jury is empannelled and sworn, but state may retry a ∆ even if jeopardy has attached when first trial ends in a hung jury.

(A) and (B) are incorrect b/c jury deciding case would not have been empanelled at this point. (C) = incorrect b/c of exception.

P sued dry cleaner, claiming that it had permanently ruined her $10,000 mink coat by cleaning it with a solvent that left an extremely offensive odor that smelled like "skunk." Odor so bad that she could no longer wear the coat. At the trial, P testified to the above facts. She then identified a mink coat as her coat that D had ruined. She testified that it still smelled the same as it did after D cleaned it. P's counsel offered to introduce the coat for the purpose of having the jury smell it. D's counsel objected.

How should the court rule?

(A) The coat is admissible based on the plaintiff's testimony.

(B) The coat is admissible, but the plaintiff must first present extrinsic evidence sufficient to support a finding that the coat is the coat that she had cleaned by the defendant.

(D) The coat is not admissible because its limited probative value in resolving the case would be substantially outweighed by the prejudice that would result in admitting it

(A) For real evidence, object at issue is presented for inspection by trier of fact. Such evidence can be presented to any of the sense of the jury from which the jury can obtain relevant info. Odor here = central issue and jury would obtain relevant evidence by smelling the coat.

(B) is wrong b/c π's testimony = sufficient authentication. For auth need evidence sufficient to support a finding that item is what proponent claims. Real evidence is commonly authenticated by recognition testimony, such as in the case here, which satisfies the rule

(D) is not as good of a choice as (A)- while it's true that it could possibly be rejected if judge determined it's probative value was substantially outweighed by unfair prejudice, difficult to see any substantial prejudice that would result from smelling coat

A landowner owns 15 acres of undeveloped property. He plans to build a stadium complex on the property to house a football team two years from now, but would like to open the 15 acres to public use for picnicking and similar activities until then. Which of the following would best accomplish the landowner's goal?

(A) Dedicate the 15 acres for use as a public park.

(B) Lease the 15 acres to the city for two years.

(C) Grant the city an easement for public recreational uses for two years.

(D) Covenant that the city may use the 15 acres for recreation for two years.

(C) Easement would allow city to use land only for purposes provided for in easement and L could limit purposes to recreational uses.

(A) not as good b/c if L dedicated land t public use would be giving title to land to gov so wouldn't be able to reclaim it after 2 years.

(B) not good b/c lease would give city more control over land than an easement- gives lesee exclusive right to possess premises and broad rights to use them in any manner unless specifically restricted. Easement in contrast grants only limited interest in land

(D) not good b/c covenants are usually made in conjunction w/ a lease, deed, or other instrument; promise some act/ forbearance w/r/t property and are generally not used to grant rights for access to property

A landowner had a contract to sell land to a developer. Before closing on the sale, the developer died. In his will, he left his real property to his son and the residuary estate, including all of his personal property, to his daughter. Just after the developer died, a third party offered to purchase the land from the landowner at a higher price than the contract price. The landowner notified the developer's son that he was canceling the contract, and would not be conveying the land to the developer's son. The jurisdiction retains the common law rules regarding exoneration. What are the rights of the developer's son?

He can demand conveyance of RP at closing and compel daughter to pay purchase price. Once parties entered into valid land sale K rights of parties fixed according doctrine of equitable conversion. Purchaser = owner of RP and seller = has a personal property right to proceeds of sale. A deceased buyer's interest passes as RP to the taker of the buyer's RP interests, and under common law, person with those interests can compel whoever has deceased personal property interests to pay the purchase price of out their share of the estate.

A motorist lapsed into unconsciousness while driving. Her car crossed the center line, which was marked with a double yellow line. A statute made it illegal for any person operating a motor vehicle on the highways of the state to cross a double yellow line. The motorist's car collided with another vehicle, and the driver of that vehicle was seriously injured. The driver sued the motorist for his injuries. At trial, the parties stipulated to the above facts. The motorist testified that she had not previously lapsed into unconsciousness while driving. At the close of the evidence, the driver moved for a directed verdict in his favor. How should the court rule?

(C) Deny the motion, because the jury could find that the motorist had no reason to believe that she would lapse into unconsciousness.

(D) Deny the motion, because it was impossible for the motorist to comply with the statute.

(C) if M had no reasont o elieve she might lapse into unconsciousness, her operation of car breached no duty and she would be found not to be liable; fact that she violated statute wouldn't necessarily make her liable. Violation of statute may be excused where violation would have been beyond ∆'s control

(D) is incorrect b/c court will need to determine whether breach of duty occurred when she drove the car, if she had reason to believe she might lapse into unconsciousness. Jury needs to make that determination

A motorist purchased a new sport utility vehicle from his local dealer. Standard equipment on the vehicle included a set of top-of-the-line tires from a premium tire company. However, the motorist was able to save $400 on the purchase price by allowing the dealer to substitute a lower priced tire manufactured by a discount tire manufacturer. Unbeknownst to the motorist and the dealer, the tire manufacturer had negligently designed the tires, with the result that a tire would occasionally blow out when the car was traveling at a high rate of speed in hot weather. On an exceptionally hot day, the motorist was traveling 80 m.p.h. in a 55 m.p.h. zone. A tire exploded, resulting in damage to the vehicle and injury to the motorist. If the motorist sues the dealer on a theory of strict liability, is he likely to prevail?

(A) Yes, because the tire was in a dangerously defective condition when the motorist purchased the car.

(B) Yes, because the dealer is responsible for the negligence of the tire manufacturer, because the dealer used its tires.

(A) M will prevail b/c D sold defective tires to him. In SL based on a defective product, a commercial supplier of a product who sells product in defective condition unreasonably dangerous to consumers will be held strictly liable for damage. Doesn't matter that goods were discounted

(B) is wrong b/c dealer would've been liable under SL regardless of whether manufacturer was negligent, and also b/c dealer's liability arises when it sells car to consumer, not when it "uses" the tires