Exam (elaborations)
MBE BARBRI EXAM QUESTIONS AND ANSWERS
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MBE BARBRI EXAM QUESTIONS AND ANSWERS
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MBE BARBRI EXAM QUESTIONS AND ANSWERSA motorist, a citizen of State A, was injured when her car collided with a bakery delivery
truck. The bakery company that owns the truck is a State B corporation based in State
B. The driver of the truck is a citizen of State A and an employee of the bakery
company, and he was acting in the scope of his employment when the collision
occurred. The motorist filed an action against the bakery company in federal district
court. The complaint alleges that the bakery company is liable for the negligence of its
employee, the driver. The bakery company in turn filed a third-party claim against its
driver, alleging that he, as the primarily negligent party, is liable to the company for any
sum that the motorist recovers from it.
Can the driver, once impleaded, assert and maintain in the same action a counterclaim
against the bakery company under the federal Fair Labor Standards Act to recover
$2,000 in wages that the company - Answers-C
The manufacturer and the retailer have a contract without the disclaimer of warranties.
Thus, the terms include the implied warranty of merchantability. In contracts for the sale
of goods, a definite expression of acceptance operates as an acceptance even if it
states additional terms. Between merchants, additional terms proposed by the offeree in
an acceptance automatically become part of the contract unless: (i) they materially alter
the original terms of the offer (e.g., they change a party's risk or the remedies available);
(ii) the offer expressly limits acceptance to the terms of the offer; or (iii) the offeror
objects to the additional terms within a reasonable time. A disclaimer of warranties is a
material alteration because such a clause affects the remedies that the parties can
pursue. Hence, the acceptance is effective to create a contract but the disclaimer clause
would not become part of the contract. (B) is therefore incorrect. (C) is incorrect
because it reflects the common law "mirror image" rule, which the UCC has rejected in
sale of goods cases. (D) is incorrect because under the UCC rule, the inclusion of a
material additional term does not prevent formation of a contract; instead, a contract is
formed without the inclusion of that additional term.
During the investigation of a large gambling operation, the police obtained a warrant to
search a bookie's home based on the affidavit of an informant. The informant was a rival
bookie who had never acted as an informant before, and much of the substance of the
rival's information came from third-party sources. During the search, the police seized a
variety of gambling evidence, including betting slips and a check from the defendant.
The bookie and the defendant were arrested for violating the state's gambling laws, and
separate trials were ordered. At a suppression hearing for the bookie, the court held that
the search warrant for the bookie's home was not supported by probable cause and
suppressed introduction of the evidence seized. The defendant moved to suppress
introduction of the betting slips and the check on the same basis.
If the court agrees that the search warrant of the bookie's home was not supported by -
Answers-C
The defendant's motion should be denied because his constitutional rights were not
violated by the search and seizure of the bookie's home based on an invalid warrant. To
,have a Fourth Amendment right to be free from unreasonable search and seizure, a
person must have a reasonable expectation of privacy in the place searched or the item
seized. Standing to challenge a search on Fourth Amendment grounds does not exist
merely because a person will be harmed by introduction of evidence seized during an
illegal search of a third person's property; the defendant's own expectation of privacy
must be violated. Here, the defendant had no right of possession of the place searched
and no property interest in the items seized; thus, he had no standing to object to the
search of the bookie's home and the seizure of the betting slips and check. (D) is
incorrect because the defendant's motion should be denied regardless of the
reasonableness of the police reliance on the search warrant. Under United States v.
Leon (1984), a finding that a warrant was invalid because it was not supported by
probable cause will not entitle a defendant to exclude the evidence obtained thereby if
the police reasonably relied on a facially valid warrant. However, that determination
does not need to be made with regard to the defendant because his constitutional rights
were not violated by the defective warrant. (A) and (B) are incorrect because, as
discussed above, the search was unlawful only with regard to the bookie's rights; the
evidence may be used against the defendant because he had no expectation of privacy
in the place searched.
A buyer purchased a parcel of property from a seller for $100,000, financing the
purchase with a loan from the seller secured by a mortgage on the property. The seller
promptly and properly recorded his mortgage. Shortly thereafter, the buyer obtained a
loan from a credit union for remodeling secured by a mortgage on the property. The
credit union promptly and properly recorded its mortgage. One year later, the buyer
obtained a home equity loan from a bank secured by a mortgage on the property. The
bank promptly and properly recorded its mortgage. A few months later, the buyer
stopped making payments on the debt owed to the credit union. With proper notice to all
parties, the credit union brought an action to foreclose on its mortgage. At that time, the
buyer owed $20,000 on the seller's mortgage, $25,000 on the credit union's mortgage,
and $30,000 on the bank's mortgage. At the foreclosure sale, the property was sol -
Answers-C
The driver may assert a counterclaim against the bakery company. Once a third-party
defendant is impleaded, he may assert permissive and compulsory counterclaims the
same as any other defendant. If a counterclaim arises out of the same transaction or
occurrence as one of the plaintiff's claims, it is a compulsory counterclaim and must be
pleaded or it will be barred. Any other counterclaim is permissive and may be asserted
even though there is no connection at all between it and the plaintiff's claim, as long as
there is subject matter jurisdiction for the counterclaim. Here, the wage claim does not
arise from the same transaction or occurrence as the claim asserted against the driver,
but it has an independent jurisdictional basis, so it is permitted as a permissive
counterclaim. Therefore (A) is incorrect. (B) is incorrect because the court has federal
question jurisdiction over the driver's federal Fair Labor Standards Act claim. (D) is
incorrect because this claim has an independent jurisdictional basis and may be
asserted independently rather than as a permissive counterclaim.
, On July 26, a manufacturer of computer accessories received a purchase order form
from a retailer who ordered 2,000 ergonomic mouse pads for delivery no later than
September 1 for a total price of $10,000, as quoted in the manufacturer's current
catalog. Two days later, the manufacturer faxed its own purchase order acceptance
form to the retailer, who was a first-time customer. This form stated that it was an
acceptance of the specified order, was signed by the manufacturer's shipping manager,
and contained all of the terms of the retailer's form, but it also contained an additional
printed clause stating that the manufacturer makes no express or implied warranty of
fitness or of merchantability.
Assuming no further communication between the parties, which of the following is an
accurate statement of the legal relationship between the manufacturer and the retailer?
A There is an enforceable contract between the part - Answers-A
The seller's mortgage remains on the property and the bank's mortgage is extinguished,
and the buyer is personally liable to the bank for the deficiency. As a general rule, the
priority of a mortgage is determined by the time it was placed on the property. When a
mortgage is foreclosed, the purchaser at the sale will take title as it existed when the
mortgage was placed on the property. Thus, foreclosure will terminate interests junior to
the mortgage being foreclosed but will not affect senior interests. The proceeds of the
foreclosure sale are used first (after expenses and fees) to pay the principal and
accrued interest on the loan that was foreclosed, and then to pay off any junior interests
in the order of priority. Where the proceeds of the sale are insufficient to satisfy a
mortgage debt, the mortgagee can bring a personal action against the mortgagor/debtor
for the deficiency. Here, foreclosure by the credit union leaves the seller's senior
purchase money mortgage interest intact on the property; the purchaser at the
foreclosure sale takes the property subject to that mortgage. On the other hand, the
bank's mortgage interest, because it was junior to the credit union's interest, was
extinguished by the credit union's foreclosure action. After the credit union's loan is paid
off, the $20,000 that remains is used to reduce the amount of the debt owed to the
bank. The bank can recover the balance against the buyer personally in a deficiency
action. (A) is wrong because the seller's mortgage and the bank's mortgage are treated
differently because of their priority in relation to the credit union's mortgage. (B) states
the opposite of the actual result-the seller's mortgage (the senior interest) remains on
the property and the bank's mortgage (the junior interest) is extinguished. (D) is wrong
because, as discuss
A pool hall seeking to attract more afternoon business advertised a $2-per-hour table
rental discount between the hours of 2 p.m. and 6 p.m. The advertisement caught the
attention of students who attended a high school in the city where the pool hall was
located. Soon the hall was full of students in the afternoon. To discourage city youth
from frittering away their afternoons, the city council passed an ordinance imposing a
$2-per-hour rental tax on pool tables rented before 6 p.m. on weekdays.
Which of the following people or entities would not have standing to bring a lawsuit to
challenge the tax?
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