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BARBRI MBE PREVIEW DIAGNOSTIC QUESTIONS
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BARBRI MBE PREVIEW DIAGNOSTIC QUESTIONS
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BARBRI MBE PREVIEW DIAGNOSTIC QUESTIONSA "wind farm" was constructed on the open land next to a gas station where a mechanic
is employed. The huge windmills generated electrical power and oscillated at low
speeds, resulting in very low-frequency but high-amplitude sound waves that caused
extreme discomfort in a substantial minority of people. The mechanic is one of the
people adversely affected by such sound waves; the vibrations from the windmills give
him severe headaches and upset his immune system. If the mechanic brings an action
for nuisance against the owners of the wind farm and loses, what is the most likely
explanation? (A) Sound waves are not the kind of physical phenomenon on which
liability for nuisance can be based. (B) The owners of the wind farm cannot generate
power without producing the offending sound waves, despite their best efforts to find an
alternative technology. (C) At least six out of 10 people are not affected by low-
frequency - Answers-(D) If the mechanic loses, it will be because he does not own or
rent the affected property. A private nuisance is a substantial and unreasonable
interference with the use and enjoyment of real property. Because the mechanic does
not own or rent the property where he works, he may not pursue a claim based on
interference with that real property's use and enjoyment. (A public nuisance is an
interference with the rights of the community at large—a situation not presented by the
fact pattern.) (A) is wrong because sound waves may be a basis for a nuisance action.
(C) is wrong because, if 40% of the people are bothered by the sound waves, they
probably are a nuisance. It is not necessary for a majority of the population to be
affected for there to be a nuisance, but more than one must be affected. The choice
between (B) and (D) is a difficult one. Nuisance requires an unreasonable interference
with the property, and if the facts in (B) were true, the defendants could arguably be
acting reasonably. However, (D) is more clearly a basis for the mechanic to lose than
(B).
The plaintiff and defendant in a lawsuit were in an accident in which the plaintiff was
injured. As a result of the accident, the plaintiff incurred medical expenses of $100,000.
At the time of the accident, the plaintiff and defendant both lived in State A. Before the
action was filed, the plaintiff moved permanently to State B. The plaintiff then filed a
negligence action against the defendant in federal district court, with subject matter
jurisdiction being based on diversity of citizenship. After the action was filed but before
the defendant was served with process, the defendant was transferred by his employer
and moved permanently to State B. For purposes of evaluating the court's diversity of
citizenship jurisdiction, what are the citizenships of the two parties? (A) Both are citizens
of State A. (B) The plaintiff is a citizen of State B and the defendant is a citizen of State
A. (C) The plaintiff is a citizen - Answers-(B) The plaintiff is a citizen of State B and the
defendant is a citizen of State A. In addition to an amount in controversy that exceeds
$75,000, diversity of citizenship jurisdiction requires complete diversity, meaning that
each plaintiff must be a citizen of a different state from every defendant. Whether
complete diversity exists is determined when the suit is filed, not when the cause of
action arose or when the defendant is served with process. The citizenship of a natural
person is the state in which he is domiciled. A new state citizenship may be established
by (i) physical presence in a new place; and (ii) the intention to remain there
,permanently. In this question, the plaintiff was originally from State A, but then moved
permanently to State B before suit was filed. After suit was filed, the defendant also
moved to State B from State A. Because the plaintiff's move to State B was before he
filed suit, he is considered to be a citizen of State B for purposes of diversity jurisdiction,
whereas the defendant is considered to be a citizen of State A because his move did
not occur until after suit was filed. Thus, complete diversity exists. Choices (A), (C), and
(D) are incorrect for the reasons stated above.
During the nighttime, a woman broke into the house of the victim with the intention of
stealing his diamond ring. When she could not find the diamond ring, she became
angry, lit a match to a newspaper and threw it on the victim's bed, setting the mattress
on fire. The flames destroyed the bed and a portion of the floor under the bed. In a
common law jurisdiction, of which crime or crimes is the woman guilty? (A) Burglary
only. (B) Arson only. (C) Burglary and attempted arson. (D) Burglary and arson. -
Answers-(D) The woman is guilty of arson and burglary. She is guilty of arson because
she deliberately set a fire that, in addition to burning the mattress, also burned part of
the dwelling house of another, namely the floor. She is also guilty of burglary because
she broke and entered into the dwelling house of another during the nighttime to commit
a felony. The fact that she was not successful in committing the crime she intended or
that she in fact committed another felony is irrelevant to her guilt for burglary; it is the
intent to commit a felony at the time of the breaking and entering which is critical. (A) is
incorrect. This choice correctly states that the woman is guilty of burglary, but she is
also guilty of arson; she deliberately set a fire that, in addition to burning the mattress,
also burned part of the dwelling house of another, namely the floor. Therefore, (B) and
(C) are incorrect.
A consumer purchased an air compressor, designed for powering tools and inflating
tires, to use in a remodeling project. The consumer discovered that the reservoir and
nozzle for a paint compressor gun he owned fit the threads on the nozzle of his air
compressor. He decided to use the manufacturer's compressor rather than buying the
compressor that went with the spray gun because he needed to paint a fence. After
painting for a few minutes, the paint reservoir on the spray gun exploded, causing
severe injuries to the consumer. The consumer subsequently brought a strict products
liability action against the air compressor manufacturer to recover for his damages.
Evidence at trial revealed the following: (i) The spray gun reservoir had exploded
because the air compressor developed too much air pressure for use in a spray device;
it was for this reason that the manufacturer did not manufacture a spray painting
attachmen - Answers-(B) If the jury finds for the manufacturer, it will be because the
misuse by the consumer was not foreseeable. A manufacturer is liable for a defective
product, even if the plaintiff misuses it, as long as that misuse is foreseeable.
Foreseeability in this case is an issue for the trier of fact. If the jury finds that the misuse
was not foreseeable, the manufacturer will prevail. (A) is incorrect because the
consumer's action is based on strict liability. (C) and (D) appear to be true based on the
facts, but they ignore the key issue that the jury must decide, which is whether the
consumer's misuse was foreseeable.
,On January 30, a company that designs and builds generators to standard industrial
specifications received a telephone call from a buyer who ordered two generators at a
price of $25,000 each. The parties agreed that delivery of the first generator would be
on March 15, and the second on April 30. Payment was to be made no more than 30
days after delivery. On March 12, the company delivered the first generator, which the
buyer accepted. On April 22, the company completed the second generator but had not
yet notified the buyer. On April 23, the buyer, having made no payment to the company,
canceled the agreement. The company brings an action against the buyer for breach of
contract. How much should the company recover in damages? (A) Nothing. (B) $25,000
only. (C) Damages for total breach of contract for the sale of two generators, because
the buyer accepted part performance. (D) Damages for total breach of contract fo -
Answers-(B) The company should recover $25,000 only. Contracts for goods for $500
or more must be evidenced by a writing to be enforceable. There are three exceptions
to this rule: specially manufactured goods unsuitable for resale in the seller's regular
course of business, contracts admitted in court, and contracts partially accepted
(enforceable to the extent of the acceptance). Here, the contract was for $50,000 and
was oral. Thus, it will be enforceable only if one of the exceptions applies. The buyer's
acceptance of the first generator constitutes part acceptance that will make the buyer
liable to the extent of the acceptance: $25,000. Therefore, (B) is correct and (A) is
incorrect. (C) is incorrect because partial acceptance renders the buyer liable only for
the part accepted, not the entire contract. (D) is incorrect because, while the goods
were made for the buyer, they were suitable for resale in the company's business,
because they were built to standard industry specifications.
A manufacturer of washing machines telephoned an engine company and asked for a
price quote on an order for 250 washing machine motors built according to the
specifications that the manufacturer had sent to the engine company the previous week.
The company responded that it would sell the motors to the manufacturer at a cost of
$20 apiece, with delivery in 30 days. The manufacturer agreed to the terms and
instructed that its order be entered. The engine company immediately started work on
the motors, and had made a substantial beginning on their manufacture (having
completed 110 motors) when the manufacturer notified the company that it would not
honor the contract. The engine company stopped work on the motors and sued the
manufacturer, which raised the Statute of Frauds as a defense. The engine company
responded that the specially manufactured goods exception takes the contract out of
the Statute of Frauds. If the - Answers-(D) If the engine company loses, it will be
because it could have sold the motors in the ordinary course of its business. This
question concerns the specially manufactured goods exception to the U.C.C.'s Statute
of Frauds. In order for the specially manufactured goods exception to apply, there MPQ
100 preview diagnostic exam and divider P.indd 62 12/22/2015 4:13:32 PM MBE
PREVIEW DIAGNOSTIC EXAM 63. must be all three of the following elements: (i) the
goods must be specially manufactured for the buyer, (ii) the seller must have started
work on the goods or else entered into a commitment to purchase them from someone
else, and (iii) the goods must not be sellable in the seller's ordinary course of business.
If the goods are sellable, as (D) states, this exception does not apply. (A) and (B) are
, incorrect because the seller need only have started work on the goods, which the
engine company had done. (C) is incorrect because the company was entitled to stop
work after the manufacturer's repudiation.
A developer prepared and recorded a subdivision plan, calling for 100 home sites on
half-acre lots. There were five different approved plans from which a purchaser could
choose the design of the home to be built on his lot. Each deed, which referred to the
recorded plan, stated that "no residence shall be erected on any lot that has not been
approved by the homeowners' association." A lawyer purchased a lot and built a home
based on one of the approved designs. However, many of the lots were purchased by
investors who wanted to hold the lots for investment purposes. Two years after the lots
went on the market, one such investor sold her lot to an architect by a deed that did not
contain any reference to the recorded plan nor the obligation regarding approval by the
homeowners' association. In fact, because very few residences had been built in the
subdivision since the lots were first available for purchase, no homeo - Answers-(C) The
lawyer will likely prevail. When a subdivision is created with similar covenants in all
deeds, there is a mutual right of endorsement (each lot owner can enforce against every
other lot owner) if two things are satisfied: (i) a common scheme for development
existed at the time that sales of parcels in the subdivision began; and (ii) there was
notice of the existence of the covenant to the party sued. Here, there was a common
scheme evidenced by the recorded plan, and the fact that the covenant was in the
architect's chain of title gave her constructive notice of the restriction. Therefore, not
only does the covenant apply to the architect's land, but the lawyer (or any other lot
owner) can enforce it as a reciprocal negative servitude. (A) is incorrect. While it is true
that the architect's deed had no restrictions, those restrictions are binding if they are in
her chain of title so as to give her notice of them. The restriction was in the deed from
the developer to the investor, so the fact that it was omitted in the deed from the
investor to the architect is of no significance. (B) is incorrect. While a covenant is
normally only enforceable by the party receiving the promise (here, the developer), this
is a situation of mutual rights of enforcement within a geographically defined area, a
special situation that gives every lot owner in the area the right of enforcement, even
though they did not directly receive the benefit of the promise. (D) is incorrect. The fact
that gives the lawyer the right of enforcement is not just the fact that his deed contains
the covenant, but that the same covenant was in all of the deeds from the developer,
including the one to the architect's predecessor in title.
The defendant was charged with forging the signature of her employer on several
checks made payable to her best friend, a co-worker. After discovering that the checks
had been forged, the employer called the defendant into his office and told her that he
regretted trusting her with the task of paying his bills and could not believe that his two
most trusted employees devised a scheme to defraud him. The defendant did not
respond to the statement and walked out of the room. At trial, the prosecution wants to
offer the defendant's silence as evidence of her guilt. How should the court rule? (A)
Admissible under an exception to the hearsay rule for implied statements against
interest. (B) Admissible nonhearsay. (C) Inadmissible, because failure to reply to an
accusation in a criminal case cannot be used as an implied admission of a criminal act.
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