Sample MBE III July 1998 See Caveat Inside ® PREFACE The Multistate Bar Examination (MBE) is an objective six-hour examination developed by the National Conference of Bar Examiners (NCBE) that contains 200 questions. It was first administered in February 1972 and is currently a component of the bar examination in most U.S. jurisdictions. CAVEAT! The 200 questions contained in this document appeared on the MBE administered in July 1998, which consisted of questions in the following areas: Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts. This document does not contain Civil Procedure questions. The purpose of this document is to familiarize examinees with the format and nature of MBE questions. The questions in this document should not be used for substantive preparation for the MBE. Because of changes in the law since the time the examination was administered, the questions and their keys may no longer be current. Also, because the MBE test specifications have changed over time, some of these questions may contain material no longer tested on the MBE or currently tested in a different subject area. The editorial style of questions and the general instructions have changed as well. Many of these questions are currently in use, sometimes with alteration, by commercial bar review courses under a licensing agreement with NCBE. Because these questions are available in the marketplace, NCBE is choosing to make them available online. Examinees are encouraged to use as additional study aids the MBE Online Practice Exams, which are available for purchase at the NCBE Study Aids Store at https://store.ncbex.org. These study aids, which include explanations for each option selected, contain questions from more recently administered MBEs that more accurately represent the current content and format of the MBE. Copyright © 2002 by the National Conference of Bar Examiners. All rights reserved. SAMPLE MULTISTATE BAR EXAMINATION TABLE OF CONTENTS AM Book ...................................... 2 PM Book ..................................... 50 Answer Key ................................... 98 Sample Answer Sheet .......................... 100 -2- AM BOOk TIME—3 h OURS Directions: Each of the questions or incomplete statements below is followed by four suggested answers or completions. You are to choose the best of the stated alternatives. Answer all questions according to the generally accepted view, except where otherwise noted. For the purposes of this test, you are to assume that Articles 1 and 2 of the Uniform Commercial Code have been adopted. You are also to assume relevant application of Article 9 of the UCC concerning fixtures. The Federal Rules of Evidence are deemed to control. The terms “Constitution,” “constitutional,” and “unconstitutional” refer to the federal Constitution unless indicated to the contrary. You are to assume that there is no applicable statute unless otherwise specified; however, survival actions and claims for wrongful death should be assumed to be available where applicable. You should assume that joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated. 1. On July 15, in a writing signed by both parties, 2. Beth wanted to make some money, so she Fixtures, Inc., agreed to deliver to Druggist decided to sell cocaine. She asked Albert, on August 15 five storage cabinets from who was reputed to have access to illegal inventory for a total price of $5,000 to be drugs, to supply her with cocaine so she could paid on delivery. On August 1, the two parties resell it. Albert agreed and sold Beth a bag of orally agreed to postpone the delivery date to white powder. Beth then repackaged the white August 20. On August 20, Fixtures tendered powder into smaller containers and sold one the cabinets to Druggist, who refused to accept to Carol, an undercover police officer, who or pay for them on the ground that they were promptly arrested Beth. Beth immediately not tendered on August 15, even though they confessed and said that Albert was her otherwise met the contract specifications. supplier. Upon examination, the white powder was found not to be cocaine or any type of Assuming that all appropriate defenses are illegal substance. seasonably raised, will Fixtures succeed in an action against Druggist for breach of contract? If Albert knew the white powder was not cocaine but Beth believed it was, which of the (A) Yes, because neither the July 15 following is correct? agreement nor the August 1 agreement was required to be in writing. (A) Both Albert and Beth are guilty of (B) Yes, because the August 1 agreement attempting to sell cocaine. operated as a waiver of the August 15 (B) Neither Albert nor Beth is guilty of delivery term. attempting to sell cocaine. (C) No, because there was no consideration (C) Albert is guilty of attempting to sell to support the August 1 agreement. cocaine, but Beth is not. (D) No, because the parol evidence rule will (D) Albert is not guilty of attempting to sell prevent proof of the August 1 cocaine, but Beth is. agreement. GO ON TO THE NEXT PAGE. -3- 3. Neighbor, who lived next door to Homeowner, 4. Homeowner hired Arsonist to set fire to went into Homeowner’s garage without Homeowner’s house so that Homeowner permission and borrowed Homeowner’s could collect the insurance proceeds from the chain saw. Neighbor used the saw to clear fire. After pouring gasoline around the house, broken branches from the trees on Neighbor’s Arsonist lit the fire with his cigarette lighter own property. After he had finished, and then put the lighter in his pocket. As Neighbor noticed several broken branches Arsonist was standing back admiring his work, on Homeowner’s trees that were in danger of the lighter exploded in his pocket. Arsonist falling on Homeowner’s roof. While Neighbor suffered severe burns to his leg. was cutting Homeowner’s branches, the saw broke. Arsonist brought an action against the manufacturer of the lighter based on strict In a suit for conversion by Homeowner against product liability. Under applicable law, the Neighbor, will Homeowner recover? rules of pure comparative fault apply in such actions. (A) Yes, for the actual damage to the saw. (B) Yes, for the value of the saw before Will Arsonist prevail? Neighbor borrowed it. (C) No, because when the saw broke (A) Yes, if the lighter exploded because of a Neighbor was using it to benefit defect caused by a manufacturing error. Homeowner. (B) Yes, if Arsonist can establish that the (D) No, because Neighbor did not intend to lighter was the proximate cause of his keep the saw. injury. (C) No, because the lighter was not being used for an intended or reasonably foreseeable purpose. (D) No, because Arsonist was injured in the course of committing a felony by the device used to perpetrate the felony. GO ON TO THE NEXT PAGE. -4- 5. Susan owned Goldacre, a tract of land, in 6. In a federal investigation of Defendant for fee simple. By warranty deed, she conveyed tax fraud, the grand jury seeks to obtain a Goldacre in fee simple to Ted for a recited letter written January 15 by Defendant to her consideration of “$10 and other valuable attorney in which she stated: “Please prepare consideration.” The deed was promptly and a deed giving my ranch to University but, properly recorded. One week later, Susan and in order to get around the tax law, I want it Ted executed a written document that stated back-dated to December 15.” The attorney that the conveyance of Goldacre was for the refuses to produce the letter on the ground of purpose of establishing a trust for the benefit privilege. of Benton, a child of Susan’s. Ted expressly accepted the trust and signed the document Production of the letter should be with Susan. This written agreement was not authenticated to be eligible for recordation and (A) prohibited, because the statement is there never was an attempt to record it. protected by the attorney-client privilege. (B) prohibited, because the statement is Ted entered into possession of Goldacre and protected by the client’s privilege against distributed the net income from Goldacre to self-incrimination. Benton at appropriate intervals. (C) required, because the statement was in furtherance of crime or fraud. Five years later, Ted conveyed Goldacre in fee (D) required, because the attorney-client simple to Patricia by warranty deed. Patricia privilege belongs to the client and can be paid the fair market value of Goldacre, had no claimed only by her. knowledge of the written agreement between Susan and Ted, and entered into possession of Goldacre. 7. After being fired from his job, Mel drank almost a quart of vodka and decided to ride Benton made demand upon Patricia for the bus home. While on the bus, he saw a distribution of income at the next usual time briefcase he mistakenly thought was his own, Ted would have distributed. Patricia refused. and began struggling with the passenger Benton brought an appropriate action against carrying the briefcase. Mel knocked the Patricia for a decree requiring her to perform passenger to the floor, took the briefcase, the trust Ted had theretofore recognized. and fled. Mel was arrested and charged with robbery. In such action, judgment should be for Mel should be (A) Benton, because a successor in title to the trustee takes title subject to the (A) acquitted, because he used no threats and grantor’s trust. was intoxicated. (B) Benton, because equitable interests are (B) acquitted, because his mistake negated not subject to the recording act. the required specific intent. (C) Patricia, because, as a bona fide (C) convicted, because his intoxication was purchaser, she took free of the trust voluntary.