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Question 1Multistate Bar Examination (MBE) subjects

A homeowner signed a contract to sell her house to a buyer for $300,000, with closing set for June 1. On May 1, the homeowner told the buyer, "I have decided not to sell; the deal is off." The buyer did nothing until June 2, when he tendered the purchase price and demanded a deed. Which doctrine most directly excuses the buyer's failure to tender on June 1?

  1. Anticipatory repudiation, which excuses the nonbreaching party's remaining duties and permits immediate suit Correct answer.
  2. The perfect tender rule, which allows the buyer to withhold performance until the seller cures the breach
  3. Substantial performance, which discharges the buyer's duty because the homeowner received most of the benefit
  4. Impossibility of performance, which discharges both parties once one party announces an intent not to perform

Explanation

When a party unequivocally repudiates before the time set for performance, the other party may treat the repudiation as a breach, sue at once, and is excused from rendering his own remaining performance. The buyer therefore did not have to tender on June 1 to preserve his claim. Substantial performance and impossibility concern different doctrines and do not fit these facts.

Question 2Multistate Bar Examination (MBE) subjects

A state statute requires that any contract for the sale of goods priced at $500 or more be in writing and signed by the party to be charged. A merchant orally agreed to sell a custom-built machine to a buyer for $2,000. The buyer sent a signed purchase order confirming the oral agreement, and the merchant received it but never objected. In a suit by the buyer against the merchant, what is the merchant's best argument that the writing is insufficient?

  1. The purchase order is insufficient because it was sent after the oral agreement rather than before it
  2. The writing was not signed by the merchant, but the merchant's failure to object to a writing received from the other merchant may satisfy the merchant exception Correct answer.
  3. The merchant exception applies only to contracts for services, not to the sale of goods
  4. A writing is never sufficient unless both parties have signed the same document

Explanation

Under the merchant confirmation exception, a writing in confirmation of an oral contract that is sufficient against the sender binds the recipient merchant if the recipient has reason to know its contents and does not object within ten days. The merchant's strongest argument is that the exception's requirements were not met, not that a single signature is categorically inadequate. The timing and subject-matter objections are legally incorrect.

Question 3Multistate Bar Examination (MBE) subjects

A delivery van driver, while making a routine delivery for his employer, negligently struck a pedestrian. At the time, the driver had deviated three blocks from his assigned route to buy a sandwich. Under the traditional respondeat superior rule, is the employer vicariously liable for the pedestrian's injuries?

  1. Yes, because employers are strictly liable for every tort committed by an employee during working hours
  2. No, because any deviation from the assigned route automatically removes the employee from the scope of employment
  3. No, because the driver was engaged in a purely personal errand at the moment of the accident
  4. Yes, because the driver was acting within the scope of employment since the deviation was minor and related to his workday Correct answer.

Explanation

An employer is vicariously liable for torts committed by an employee acting within the scope of employment. A minor deviation from the assigned route that is incidental to the workday generally does not take the employee outside that scope, so liability attaches under the traditional rule. Only a substantial, purely personal frolic severs the employment connection.

Question 4Multistate Bar Examination (MBE) subjects

A defendant published a newspaper article stating that a local restaurant owner "routinely serves spoiled meat to customers." The statement was false. The owner sues for defamation. The defendant concedes the statement was false but argues it is protected opinion. Which factor is most important in determining whether the statement is actionable?

  1. Whether the defendant intended to cause the owner emotional distress when publishing the article
  2. Whether the statement was published in a newspaper rather than communicated orally to one person
  3. Whether the restaurant owner is a private figure or a public official, which alone decides the issue
  4. Whether the statement can reasonably be understood as asserting an objectively verifiable fact about the restaurant's food Correct answer.

Explanation

A statement is actionable defamation if a reasonable reader would understand it as asserting an objectively verifiable fact rather than a subjective opinion or rhetorical hyperbole. Whether spoiled meat is served is a factual matter capable of verification, so the court will look at that question. The medium of publication and the speaker's intent to cause distress are not the governing test.

Question 5Multistate Bar Examination (MBE) subjects

A landowner granted a neighbor an easement "for access to the lake" across the landowner's property. The grant was recorded but did not specify the easement's width or exact location. The neighbor later widened a path from four feet to twenty feet to accommodate vehicles. The landowner sues to enjoin the widening. What is the neighbor's best argument?

  1. The neighbor may widen the path because a recorded easement grants an unlimited right to use the servient land
  2. The easement's scope is determined by its purpose, and reasonable changes consistent with access to the lake are permitted Correct answer.
  3. The neighbor acquired title by prescription once the widened path remained in place for one year
  4. An easement for access is void unless its exact width and location are stated in the recorded instrument

Explanation

When an easement's dimensions are not specified, its scope is construed in light of the purpose for which it was created, and the holder may make reasonable use consistent with that purpose, subject to the burden on the servient estate. Whether a twenty-foot widening is reasonable is a factual question, but the legal premise favoring purpose-based scope is correct. Missing dimensions do not invalidate the easement.

Question 6Multistate Bar Examination (MBE) subjects

A testator executed a will leaving "my entire estate to my sister." The will was properly witnessed by two competent witnesses who signed in the testator's presence. The testator later married, and the spouse survived the testator. The testator never revised the will. Under the omitted-spouse doctrine, what is the surviving spouse entitled to?

  1. An intestate share of the estate, unless the will shows an intention to omit the spouse or the spouse was provided for by settlement Correct answer.
  2. The entire estate, because marriage automatically revokes a prior will
  3. A life estate in the family home, with the remainder to the sister
  4. Nothing, because a validly executed will controls regardless of later marriage

Explanation

Under the omitted-spouse doctrine, a spouse who marries the testator after the will's execution and is not mentioned receives an intestate share, unless the will shows an intent to disinherit the spouse or the spouse was otherwise provided for. A subsequent marriage does not automatically revoke the will. The remedy is an intestate share, not the whole estate or a fixed life estate.

Question 7Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for battery after an alleged altercation. At trial, the plaintiff called a witness who testified that a third person told the witness, "The defendant punched the plaintiff first." The defendant objects on hearsay grounds. The plaintiff argues the statement is admissible as a statement against interest. What is the correct ruling?

  1. Admissible, because statements describing a crime are always admissible as statements against interest
  2. Inadmissible, because hearsay statements are never admissible in civil cases
  3. Admissible, because the declarant is unavailable and the statement is corroborated
  4. Inadmissible, because the declarant is not a party and the statement is offered against the defendant rather than against the declarant Correct answer.

Explanation

A statement against interest requires that the declarant be unavailable and that the statement be so contrary to the declarant's proprietary, pecuniary, or penal interest that a reasonable person would not have made it unless true. It is admitted only against a party, and here the statement is offered against the defendant, not the declarant. The declarant's availability and corroboration are not what defeats this use.

Question 8Multistate Bar Examination (MBE) subjects

A police officer stopped a driver for a broken taillight. The officer asked for the driver's license and registration, then asked, "Do you have any drugs in the car?" The driver answered, "No." The officer then ordered the driver out of the car and searched the passenger compartment, finding a bag of cocaine under the seat. The driver moves to suppress. What is the strongest argument for suppression?

  1. The search of the passenger compartment exceeded the permissible scope of a search incident to arrest because the driver was not arrested before the search Correct answer.
  2. The driver's answer of "No" was compelled and therefore violated his privilege against self-incrimination
  3. The officer lacked reasonable suspicion to ask whether the driver had drugs in the car
  4. The broken taillight did not justify the initial traffic stop

Explanation

A search incident to arrest must follow a lawful custodial arrest; it cannot precede the arrest. Here the officer searched before arresting the driver, and the automobile exception requires probable cause, which the facts do not establish. The traffic stop itself was valid, and a single question about drugs does not require reasonable suspicion.

Question 9Multistate Bar Examination (MBE) subjects

A criminal defendant was charged with robbery. At trial, the prosecution offered evidence that the defendant had been convicted of theft five years earlier. The defendant objects. Under the Federal Rules of Evidence, which statement best describes the admissibility of the prior theft conviction?

  1. It is admissible only if the prosecution shows the defendant used the same method in both crimes
  2. It may be admitted to impeach the defendant's credibility if the court finds its probative value outweighs the danger of unfair prejudice, since theft is a crime involving dishonesty Correct answer.
  3. It is admissible as substantive evidence that the defendant has a propensity to commit robbery
  4. It must be excluded automatically because the conviction is more than three years old

Explanation

Under Rule 609, a prior conviction for a crime involving dishonesty or false statement is admissible to impeach, subject to the court's Rule 403 balancing. Theft is generally treated as a crime involving dishonesty. There is no automatic three-year bar, and propensity evidence is not permitted.

Question 10Multistate Bar Examination (MBE) subjects

A landowner conveyed a parcel to a buyer by warranty deed. The deed described the parcel as "Lot 7, Block 2, as shown on the plat recorded in Book 12, Page 4." The plat showed Lot 7 as a rectangle. Later, a dispute arose about whether a strip of land between Lot 7 and the adjoining lot was included. The strip was not shown on the plat as part of Lot 7. What is the buyer's best argument that the strip was conveyed?

  1. The buyer acquired the strip by adverse possession when the deed was recorded
  2. The reference to the plat incorporates the plat's boundaries, and extrinsic evidence may show the parties intended to include the strip Correct answer.
  3. The strip passed because the deed did not contain a metes-and-bounds description
  4. A warranty deed automatically conveys all adjoining land owned by the grantor, including the strip

Explanation

When a deed refers to a plat or map, the plat is incorporated into the deed and defines the boundaries. Courts may consider extrinsic evidence to resolve ambiguities about the parties' intent, but a warranty deed does not automatically convey adjoining land. Recording a deed does not itself create adverse possession.

Question 11Multistate Bar Examination (MBE) subjects

A plaintiff filed a complaint in federal court alleging that the defendant, a citizen of another state, breached a contract. The amount in controversy is $90,000. The defendant moves to dismiss for lack of subject-matter jurisdiction. What is the likely result?

  1. The motion is granted, because contract claims are not within diversity jurisdiction
  2. The motion is denied, because diversity jurisdiction requires only that the parties be citizens of different states
  3. The motion is denied, because the plaintiff may aggregate multiple claims against one defendant to reach the threshold
  4. The motion is granted, because the amount in controversy does not exceed $75,000 Correct answer.

Explanation

Diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity and an amount in controversy exceeding $75,000. Because $90,000 exceeds the threshold, the motion fails; the plaintiff need not aggregate anything. Contract claims are fully within diversity jurisdiction when the requirements are met.

Question 12Multistate Bar Examination (MBE) subjects

A defendant was charged with burglary. The prosecution sought to introduce the defendant's confession, obtained after six hours of interrogation during which the defendant was not given Miranda warnings. Before trial, the defendant's attorney requested a hearing on voluntariness. The trial judge admitted the confession without holding the hearing. On appeal, what is the most likely outcome?

  1. Affirmance, because the confession was made to police officers rather than to a judge
  2. Reversal, because confessions obtained without Miranda warnings are always involuntary
  3. Affirmance, because the defendant's attorney could have objected during trial
  4. Reversal, because the defendant was entitled to a pretrial hearing on the voluntariness of the confession before it could be admitted Correct answer.

Explanation

Due process requires that a defendant be given a fair hearing on the voluntariness of a confession before it is admitted, and the judge must make an independent determination. Failure to hold the hearing is constitutional error. A Miranda violation does not automatically make a confession involuntary, but the absence of a voluntariness hearing is itself the error.

Question 13Multistate Bar Examination (MBE) subjects

A homeowner hired a contractor to remodel a kitchen for $40,000. The contract stated that the contractor would be paid "upon substantial completion." The contractor finished all work except installing the cabinet handles, which cost $200 to complete. The homeowner refused to pay anything. In the contractor's suit for the contract price, what is the likely result?

  1. The contractor recovers nothing, because the contract expressly required complete performance
  2. The contractor may recover the contract price less the cost of completing the handles, because the performance was substantial Correct answer.
  3. The contractor recovers nothing, because complete performance is a condition precedent to payment
  4. The contractor may recover the full contract price, because the omission was trivial and therefore excused entirely

Explanation

Substantial performance permits recovery of the contract price minus the cost of completing or correcting the minor omissions, provided the breach is not material. Omitting $200 of cabinet handles is minor. The homeowner's refusal to pay anything is not justified, but the contractor is not entitled to the full price without deduction.

Question 14Multistate Bar Examination (MBE) subjects

A woman was walking home when a man grabbed her purse and ran. A bystander chased the man and tackled him, breaking the man's arm. The man sues the bystander for battery. What is the bystander's best defense?

  1. Privilege of arrest, because the bystander was a private citizen making a citizen's arrest
  2. Defense of others, because the bystander reasonably believed the man was committing a crime against the woman Correct answer.
  3. Consent, because the man assumed the risk of injury by committing a crime
  4. Necessity, because the bystander acted to prevent a greater harm

Explanation

A private person may use reasonable force to defend another person if the defender reasonably believes the other is being unlawfully attacked and that force is necessary. The bystander's tackle was proportionate to stopping a purse snatching. Consent and necessity do not fit, and citizen's arrest requires that the actor actually be effecting an arrest.

Question 15Multistate Bar Examination (MBE) subjects

A testator's will devised "$50,000 to my friend, Alice, if she survives me." Alice predeceased the testator. The will contained no residue clause. The testator's only heir is a cousin. What happens to the $50,000?

  1. It passes to the cousin as a constructive trust for Alice's heirs
  2. It passes to the state by escheat, because there are no residuary beneficiaries
  3. It passes by intestacy to the cousin, because the gift lapsed and there is no residue clause to capture it Correct answer.
  4. It passes to Alice's estate, because the gift vested when the will was executed

Explanation

A gift conditioned on survival lapses if the beneficiary predeceases the testator. Without a residue clause, the lapsed gift falls into the intestate estate and passes to the testator's heirs. It does not vest in Alice's estate, and escheat applies only when no heirs exist.

Question 16Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for negligence arising from a car accident. At trial, the plaintiff offered a police report containing the responding officer's conclusion that the defendant "was driving too fast for conditions." The defendant objects. The report was prepared after the officer interviewed witnesses at the scene. What is the best basis for admitting the report?

  1. It is admissible because the officer is a public official and public officials are always available to testify
  2. It is admissible because police reports are always admissible as business records
  3. It is admissible as a learned treatise because it was prepared by a trained officer
  4. It may be admitted as a public record if the officer's conclusion is based on the officer's own observations and the report is otherwise trustworthy Correct answer.

Explanation

Public records are admissible under the public-records exception if they set forth matters observed by the public official and are trustworthy. Conclusions based on interviews with witnesses may be excluded, but observations made by the officer can qualify. Police reports are not automatically admissible as business records, and a learned treatise is a different exception.

Question 17Multistate Bar Examination (MBE) subjects

A state enacted a law requiring all businesses to provide employees with unpaid leave for family emergencies. A federal statute already regulates the same subject and expressly preempts state laws on the matter. A business challenges the state law. What is the likely result?

  1. The state law is invalid under the Supremacy Clause because the federal statute expressly preempts it Correct answer.
  2. The state law is invalid under the Commerce Clause because it burdens interstate commerce
  3. The state law is valid because the federal statute does not mention family emergencies
  4. The state law is valid because states may always regulate employment matters

Explanation

The Supremacy Clause makes federal law supreme, and Congress may expressly preempt state regulation of the same subject. When a federal statute contains an express preemption clause covering the field, the conflicting state law cannot stand. The Commerce Clause argument is a separate question and is not the best basis here.

Question 18Multistate Bar Examination (MBE) subjects

A defendant was charged with assault. At trial, the prosecutor called a witness who testified that the victim told her, "The defendant threatened me with a knife yesterday." The victim died before trial. The defendant objects on hearsay grounds. The prosecutor argues the statement is admissible as an excited utterance. Which fact is most important to that ruling?

  1. Whether the victim was still under the stress of the startling event when she made the statement Correct answer.
  2. Whether the statement was made in the defendant's presence
  3. Whether the victim knew she was dying when she made the statement
  4. Whether the witness is a relative of the victim

Explanation

An excited utterance is a statement relating to a startling event made while the declarant was under the stress of excitement caused by the event. The key inquiry is the declarant's state of mind at the time of the statement, not the witness's relationship or the defendant's presence. A dying declaration requires a belief in imminent death, which is a different exception.

Question 19Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for breach of a written contract. The defendant asserted that the contract was modified orally. The contract contained a clause stating that it could be modified only by a signed writing. The plaintiff objects to evidence of the oral modification. Under the common law, what is the likely ruling?

  1. The oral modification is void because a no-oral-modification clause is always conclusive
  2. The oral modification is enforceable only if it is supported by new consideration and reduced to writing
  3. The oral modification may be enforceable despite the no-oral-modification clause if the parties' conduct shows waiver or estoppel Correct answer.
  4. The oral modification is unenforceable because the parol evidence rule bars all evidence of prior or contemporaneous agreements

Explanation

A no-oral-modification clause is generally enforceable, but it may be overcome by waiver, estoppel, or conduct indicating the parties intended to modify the agreement. The clause is not absolutely conclusive. The parol evidence rule governs prior or contemporaneous agreements, not later modifications.

Question 20Multistate Bar Examination (MBE) subjects

A landowner died intestate survived by her husband and two children from a prior marriage. The estate consists of $300,000 in separate property. Under the Uniform Probate Code's intestate succession rules, how is the estate distributed?

  1. The husband receives the first $150,000 plus one-half of the remainder, and the children share the rest Correct answer.
  2. The husband receives the entire estate because he is the surviving spouse
  3. The children receive the entire estate because the property was the decedent's separate property
  4. The husband receives one-third and the children share two-thirds

Explanation

Under the UPC, when the decedent is survived by a spouse and descendants who are not descendants of the spouse, the spouse receives the first $150,000 plus one-half of the balance, and the descendants take the remainder. The spouse does not take the entire estate, and separate property is not excluded from intestate distribution.

Question 21Multistate Bar Examination (MBE) subjects

A defendant was convicted of arson. At sentencing, the prosecutor argued for an enhanced sentence based on the defendant's prior juvenile adjudication, which the defendant had no opportunity to contest. The defendant objected. What is the defendant's best constitutional argument?

  1. The use of any prior record at sentencing violates the Double Jeopardy Clause
  2. Prior juvenile adjudications may never be used at sentencing under any circumstances
  3. The prosecutor's argument violated the defendant's right to a jury trial on sentencing facts
  4. The prior adjudication cannot be used to enhance the sentence unless the defendant had a meaningful opportunity to contest it Correct answer.

Explanation

Due process requires that a defendant have a meaningful opportunity to contest prior convictions or adjudications used to enhance a sentence. The use of a juvenile adjudication is not categorically barred, but it must satisfy procedural fairness. Double jeopardy is not implicated by sentencing enhancements.

Question 22Multistate Bar Examination (MBE) subjects

A buyer contracted to purchase a used car from a dealer for $12,000. The contract stated that the car was sold "as is." After delivery, the buyer discovered that the car's engine had a cracked block that the dealer knew about but did not disclose. The buyer sues for fraud. What is the buyer's best argument?

  1. The buyer may rescind because the car was not merchantable
  2. The "as is" clause is unenforceable because it is a contract of adhesion
  3. The "as is" clause does not bar a fraud claim based on the dealer's active concealment of a known defect Correct answer.
  4. The buyer may recover because the dealer had a duty to inspect the car before selling it

Explanation

An "as is" clause generally disclaims implied warranties, but it does not protect a seller who actively conceals a known defect or commits fraud. The buyer's strongest argument is that the dealer's knowing concealment is independent of the warranty disclaimer. Adhesion and merchantability arguments are weaker or inapplicable here.

Question 23Multistate Bar Examination (MBE) subjects

A woman was charged with embezzlement after her employer discovered that funds were missing from a company account. At trial, the prosecution offered evidence that the woman had previously been accused of stealing from a former employer, though the accusation was never proven. The defense objects. What is the likely ruling?

  1. Admissible, because the employer is a witness and the evidence impeaches the employer
  2. Admissible, because the prior accusation shows a pattern of dishonest conduct
  3. Inadmissible, because unproven accusations of prior misconduct are not admissible to show propensity or bad character Correct answer.
  4. Inadmissible, because embezzlement is a specific-intent crime and prior acts are never relevant

Explanation

Evidence of unproven accusations of prior misconduct is generally inadmissible to show that the defendant acted in conformity with a dishonest character. Character evidence is not admissible to prove propensity in a criminal case, and an unproven accusation has little probative value. Prior acts may be admissible for other purposes, such as motive or intent, but not on these facts.

Question 24Multistate Bar Examination (MBE) subjects

A plaintiff brought a negligence action against a defendant in state court. The defendant removed the case to federal court based on diversity of citizenship. The plaintiff then amended the complaint to add a nondiverse defendant. The new defendant moved to remand. What is the likely result?

  1. The case is remanded only if the new defendant is an indispensable party
  2. The case remains in federal court, because the plaintiff waived the diversity issue by amending
  3. The case is remanded, because the addition of a nondiverse defendant destroys complete diversity Correct answer.
  4. The case remains in federal court, because removal jurisdiction is determined at the time of removal

Explanation

Diversity jurisdiction requires complete diversity between all plaintiffs and all defendants. If a nondiverse defendant is added after removal and the case is still at a stage where the amendment is proper, the court loses diversity jurisdiction and must remand. The time-of-removal rule does not save jurisdiction when a later amendment destroys complete diversity.

Question 25Multistate Bar Examination (MBE) subjects

A tenant signed a one-year lease. Three months into the term, the landlord sold the building to a new owner. The new owner demanded that the tenant vacate, arguing that the lease terminated when the landlord sold the property. What is the tenant's best response?

  1. The lease is void because the new owner did not sign it
  2. The lease survives the sale and binds the new owner, because a leasehold interest runs with the land Correct answer.
  3. The tenant must vacate but may recover the security deposit from the original landlord
  4. The lease terminated automatically upon sale, but the tenant may recover damages from the original landlord

Explanation

A leasehold is an interest in land that runs with the land, so a purchaser of the property takes subject to an existing lease and the tenant's possessory rights survive the sale. The new owner stands in the landlord's shoes. The lease does not terminate merely because the property changed hands.

Question 26Multistate Bar Examination (MBE) subjects

A state trooper stopped a motorist for speeding. While approaching the car, the trooper noticed a handgun lying on the passenger seat. The motorist was lawfully licensed to carry the weapon in that state. The trooper then opened the glove compartment without consent and found cocaine. The motorist was charged with drug possession and moved to suppress the cocaine. How should the court rule?

  1. Deny the motion, because the trooper was lawfully present at the car window and the weapon was in plain view.
  2. Grant the motion, because the trooper lacked probable cause to believe contraband was in the glove compartment. Correct answer.
  3. Grant the motion, because the motorist held a valid license for the weapon found on the seat.
  4. Deny the motion, because a motorist's privacy interest in a vehicle is diminished during any traffic stop.

Explanation

The plain view doctrine permits an officer to seize an item whose incriminating character is immediately apparent from a lawful vantage point, but the sight of a lawfully possessed firearm did not supply probable cause to search the glove compartment for drugs. A warrantless search of a closed compartment requires probable cause plus a recognized exception, such as the automobile exception. The diminished privacy interest in a car does not authorize an exploratory search on facts this thin.

Question 27Multistate Bar Examination (MBE) subjects

A homeowner executed a valid deed conveying her house "to my brother, for life, then to my brother's children who survive him." The brother has two living children. The brother wishes to sell the property and keep the proceeds. Which interest does the brother hold?

  1. A fee simple absolute, because the deed contains no words of limitation.
  2. A life estate, with the remainder in the children subject to open. Correct answer.
  3. A term of years measured by his own life, followed by a reversion in the grantor.
  4. A life estate, with the children holding a vested remainder subject to divestment.

Explanation

A grant "to my brother for life" creates a life estate, and the gift over to the brother's children who survive him creates a remainder in a class that is not yet closed because the brother is alive and could have more children. Because survival of the brother is a condition precedent to taking, the children hold no vested interest until that condition is satisfied. The brother therefore may possess and use the land but cannot convey a fee or keep the sale proceeds beyond his own life estate.

Question 28Multistate Bar Examination (MBE) subjects

A company mailed a buyer a signed offer to sell 500 widgets at $10 each, stating that the offer would remain open for 30 days. No consideration was given for the promise to hold the offer open. Twelve days later, the company mailed a revocation that the buyer received on day fourteen. On day thirteen, the buyer mailed an acceptance that the company received on day sixteen. Which statement is correct?

  1. A contract formed on day sixteen, because the acceptance was received before the offer lapsed.
  2. A contract formed on day thirteen, because the acceptance was dispatched before the revocation was received.
  3. No contract formed, because the promise to keep the offer open was unsupported by consideration.
  4. No contract formed, because the offer was revoked before acceptance. Correct answer.

Explanation

An offer not supported by consideration or a firm-offer statute may be revoked at any time before acceptance, and a revocation is effective on receipt by the offeree. Because the buyer received the revocation on day fourteen, before dispatching any acceptance on day thirteen, the offer had already been terminated. The mailbox rule protects an acceptance dispatched before a revocation is received, but that is not what happened here.

Question 29Multistate Bar Examination (MBE) subjects

A pedestrian sued a driver for injuries suffered when the driver's car struck her in a crosswalk. At trial, the pedestrian offers a certified copy of a final judgment from an earlier case in which a different pedestrian obtained a verdict finding that this same driver ran the red light at that intersection. The driver was a party and had a full opportunity to litigate the issue. The driver objects. How should the court rule?

  1. Exclude the judgment, because the earlier finding is not binding on this different plaintiff. Correct answer.
  2. Admit the judgment, because the driver is estopped from relitigating the issue of fault.
  3. Admit the judgment, because it is a certified public record.
  4. Exclude the judgment, because prior verdicts are never admissible in later civil cases.

Explanation

Issue preclusion requires mutuality or a recognized exception, and a defensive use of a prior judgment against a party who was not a party to the first case generally fails absent mutuality. Because the new pedestrian was a stranger to the earlier action, the driver's liability finding in that case cannot be used offensively against the driver here. The certified copy is therefore inadmissible for the purpose offered.

Question 30Multistate Bar Examination (MBE) subjects

A defendant was charged with larceny of a bicycle. The prosecution proved that the defendant took the bicycle from a rack outside a store without permission and rode away. The defendant claims he believed the bicycle belonged to his friend, who had lent it to him. Which element is most directly at issue?

  1. Intent to permanently deprive, because the defendant may have lacked the mental state. Correct answer.
  2. Asportation, because the bicycle was moved only a short distance.
  3. Personal property of another, because the friend may have owned the bicycle.
  4. Trespassory taking, because the bicycle was on private property.

Explanation

Larceny requires a trespassory taking and carrying away of another's personal property with the intent to permanently deprive. A good-faith belief that the taker has the owner's permission negates the intent to permanently deprive and thus defeats the mental element. The physical acts of taking and carrying away are otherwise satisfied.

Question 31Multistate Bar Examination (MBE) subjects

A landowner granted a neighbor an easement "for access to the lake" across the landowner's parcel. The deed was recorded. Years later, the landowner built a fence that blocked the path. The neighbor sued to remove the fence. The landowner argues the easement is unenforceable because its location was never fixed. How should the court rule?

  1. For the neighbor, because a general easement is valid and its location may be fixed by reasonable use. Correct answer.
  2. For the neighbor, only if the neighbor proves twenty years of continuous use.
  3. For the landowner, because an easement without a fixed location is void.
  4. For the landowner, because the easement was not supported by consideration.

Explanation

An easement appurtenant may be created without specifying its exact route; when the location is left undetermined, the easement holder is entitled to a reasonable location consistent with the purpose of the grant. The servient owner cannot defeat the easement by fencing off access. Consideration and prescriptive use are irrelevant to an express granted easement.

Question 32Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for fraud arising from a real estate sale. The plaintiff alleged that the defendant falsely stated the basement had never flooded. The defendant denies making the statement. The plaintiff calls a witness who proposes to testify that, one week before the sale, the defendant told the witness, "I told the buyer the basement is bone dry, even though I pumped it out last spring." The defendant objects on hearsay grounds. How should the court rule?

  1. Exclude the statement, because it is offered to prove the truth of the matter asserted.
  2. Exclude the statement, because it is not under oath.
  3. Admit the statement as an opposing party's statement. Correct answer.
  4. Admit the statement as a statement against interest.

Explanation

A statement made by a party opponent and offered against that party is not hearsay under the evidence rules. The defendant's own account of what he told the buyer, offered to prove he made the misrepresentation, falls squarely within that category. The declarant's availability and oath are irrelevant to this exemption.

Question 33Multistate Bar Examination (MBE) subjects

A state enacted a statute banning all billboards within its borders to preserve scenic views. A company that owns billboards along an interstate highway challenged the law, showing that the ban applies to commercial and noncommercial messages alike. Which standard should the court apply?

  1. The time, place, and manner test for a content-neutral regulation of speech. Correct answer.
  2. Rational basis review, because the law regulates land use.
  3. Strict scrutiny, because the ban restricts speech.
  4. Intermediate scrutiny, because billboards are commercial speech.

Explanation

A regulation that restricts speech without regard to its content, and that leaves open ample alternative channels of communication, is evaluated as a time, place, and manner regulation. Because the billboard ban applies equally to commercial and noncommercial messages, it is content neutral and is not judged under commercial-speech intermediate scrutiny. Strict scrutiny would apply only if the law were content based or failed the neutrality requirements.

Question 34Multistate Bar Examination (MBE) subjects

A consumer signed a contract to purchase a used boat from a marina. The contract contained a clause stating that the marina made no warranties of any kind. The consumer later discovered the boat's hull was cracked and had been repaired with epoxy that the marina knew about but never disclosed. The consumer sues for fraud. The marina invokes the disclaimer. Which result is most likely?

  1. The disclaimer bars the claim because the consumer had an opportunity to inspect the boat.
  2. The fraud claim fails because the consumer did not read the contract carefully.
  3. The disclaimer bars the fraud claim because the consumer signed the contract.
  4. The fraud claim survives because a party cannot contractually shield itself from its own knowing misrepresentation. Correct answer.

Explanation

Although a valid disclaimer can eliminate implied warranty liability, it generally cannot insulate a seller from liability for its own fraudulent concealment of a known material defect. Courts treat fraud as independent of the warranty provisions the parties allocated. The buyer's failure to inspect does not excuse the seller's deliberate concealment.

Question 35Multistate Bar Examination (MBE) subjects

A woman was charged with murder after her roommate died from a stab wound. The prosecution's theory is that the woman stabbed the roommate during an argument. The woman claims a third person committed the killing. She seeks to introduce evidence that another resident of the building had a prior conviction for assault with a knife. How should the court rule?

  1. Exclude the evidence, because the defendant has not shown a sufficient connection between the third person and the crime. Correct answer.
  2. Exclude the evidence, because it is irrelevant to whether the third person committed this killing.
  3. Admit the evidence, because prior convictions are always admissible to show propensity.
  4. Admit the evidence, because it raises a reasonable doubt about the defendant's guilt.

Explanation

Evidence of a third party's violent character or prior acts is admissible only when it tends to show that the third person, rather than the defendant, committed the crime, which requires a connection between that person and the offense. A bare prior conviction, without more, invites speculation and is excluded. The mere hope of creating a reasonable doubt is not enough.

Question 36Multistate Bar Examination (MBE) subjects

A company and a supplier signed a written agreement for the delivery of steel "in monthly installments as ordered by the company." After six months, the company stopped ordering, and the supplier sued for breach. The company argues the agreement fails for indefiniteness because it lacks a quantity term. Which argument is strongest for the supplier?

  1. The agreement is unenforceable because output and requirement terms must state an estimate.
  2. The agreement is enforceable because the parties performed under it for six months. Correct answer.
  3. The agreement is unenforceable because price was not specified.
  4. The agreement is enforceable because the writing was signed by both parties.

Explanation

A requirements contract satisfies the quantity term by measuring quantity against the buyer's actual needs in good faith, and the parties' course of performance over six months supplies concrete content to that term. Courts are reluctant to hold such agreements too indefinite to enforce once the parties have acted on them. Signature and price terms do not cure an alleged indefiniteness problem.

Question 37Multistate Bar Examination (MBE) subjects

A defendant was tried for robbery. During closing argument, the prosecutor said: "The victim had no reason to lie, and the defendant's story makes no sense. Use your common sense and do justice." Defense counsel did not object. On appeal, the defendant argues prosecutorial misconduct. How should the appellate court rule?

  1. Reverse, because vouching for the victim's credibility is plain error.
  2. Affirm, because the comments were not so prejudicial as to deprive the defendant of a fair trial. Correct answer.
  3. Reverse, because commenting on the defendant's story shifts the burden of proof.
  4. Affirm, because the absence of an objection waives all appellate review.

Explanation

Improper prosecutorial comments require reversal only when they so infect the trial as to deny the defendant due process. Remarks urging the jury to use common sense and assessing the plausibility of competing accounts fall within the broad latitude afforded closing argument. Because no objection was made, the claim is also reviewed only for plain error.

Question 38Multistate Bar Examination (MBE) subjects

A testator's will left her entire estate to her two children equally. One child predeceased the testator, leaving a son. The will contains no residue clause and no anti-lapse provision. Under the common law rule, what happens to the deceased child's share?

  1. It passes to the deceased child's son by representation.
  2. It passes to the surviving child.
  3. It passes to the testator's heirs at law as intestate property. Correct answer.
  4. It escheats to the state.

Explanation

At common law, a lapsed specific or general devise falls into the residue, and if there is no residue clause, the property passes by intestacy to the testator's heirs. Modern anti-lapse statutes may redirect the share to the deceased child's descendants, but the question asks for the common law result. Escheat occurs only when no heirs exist.

Question 39Multistate Bar Examination (MBE) subjects

A buyer agreed in writing to purchase a warehouse from a seller for $2 million, with closing set for June 1. On May 1, the seller informed the buyer that she had decided not to sell. The buyer did not respond and did nothing until June 2, when the buyer tendered the purchase price and demanded the deed. The seller refused. In the buyer's suit for specific performance, which is the seller's best defense?

  1. The seller's repudiation excused the buyer from tendering performance.
  2. The contract lacked a sufficient writing under the statute of frauds.
  3. The buyer failed to mitigate damages by finding another warehouse.
  4. The buyer's delay in tendering after the repudiation bars the claim. Correct answer.

Explanation

When a party repudiates before the time for performance, the other party may treat the repudiation as a breach and sue immediately, but if the nonbreaching party waits and performs after the date set for closing, the tender can come too late. A buyer seeking specific performance must show readiness, willingness, and ability to perform at the contract time or within a reasonable extension. Waiting until the day after closing without explanation weakens the equitable claim.

Question 40Multistate Bar Examination (MBE) subjects

A police officer received an anonymous tip that a man was selling drugs from a specific apartment. The tip gave no basis for the caller's knowledge. The officer went to the apartment, knocked, and when the man opened the door, the officer stepped inside without permission and saw drugs on a table. The man was arrested. At the suppression hearing, the man argues the entry was unlawful. How should the court rule?

  1. Grant suppression, because officers may never enter a home without a warrant.
  2. Deny suppression, because the officer had probable cause from the tip.
  3. Deny suppression, because the drugs were in plain view once the door was open.
  4. Grant suppression, because the anonymous tip did not provide reasonable suspicion to enter. Correct answer.

Explanation

An anonymous tip that lacks indicia of reliability does not supply reasonable suspicion, much less probable cause, to intrude into a home. Because the officer's entry was unlawful, the drugs seen after that entry are the fruit of the illegality and must be suppressed. The plain view doctrine cannot justify a seizure made after an unconstitutional intrusion.

Question 41Multistate Bar Examination (MBE) subjects

A homeowner hired a painter to paint her house for $8,000. After the painter finished, the homeowner refused to pay, claiming the color was slightly different from the swatch. The painter sued. The homeowner counterclaimed for breach and offered evidence that the painter had previously been late on two unrelated jobs. The painter objects. How should the court rule?

  1. Admit the evidence to show the painter's pattern of unreliability.
  2. Exclude the evidence because prior acts are never admissible in civil cases.
  3. Exclude the evidence because it is inadmissible character evidence offered to prove conduct in conformity. Correct answer.
  4. Admit the evidence because the homeowner is the defendant.

Explanation

Evidence of prior bad acts offered to show that a person acted in conformity with a character trait on a particular occasion is barred in civil cases. The homeowner is using the earlier lateness to argue that the painter was late or careless here, which is precisely propensity reasoning. Specific instances may be admissible for other purposes, such as impeachment or motive, but none is offered.

Question 42Multistate Bar Examination (MBE) subjects

A defendant was charged with possession of a stolen vehicle. The prosecution proved that the defendant was driving the vehicle and that its owner had reported it stolen. The defendant testified that a friend handed him the keys and asked him to move the car. The jurisdiction requires the prosecution to disprove the defendant's honest mistake defense beyond a reasonable doubt. Which instruction should the court give?

  1. The jury must convict unless the defendant proves he did not know the car was stolen.
  2. The jury must convict if the defendant's story is uncorroborated.
  3. The jury must acquit if the evidence raises a reasonable doubt about whether the defendant knew the car was stolen. Correct answer.
  4. The jury may convict if the defendant was negligent in failing to inquire about the car's ownership.

Explanation

Knowledge that the property is stolen is an element of receiving or possessing stolen property, and the prosecution bears the burden of proving every element beyond a reasonable doubt. When the defendant raises an honest mistake of fact that negates the required knowledge, the jury must acquit if the evidence leaves reasonable doubt on that point. Negligence and corroboration are not substitutes for proof of knowledge.

Question 43Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant in federal court for injuries from a fall in the defendant's store. The plaintiff alleged the defendant failed to warn of a wet floor. At trial, the plaintiff sought to introduce a store manual stating that employees must place warning cones on wet floors. The defendant objected that the manual was irrelevant because it was not followed on the day of the fall. How should the court rule?

  1. Admit the manual, because a party's own safety rules are relevant to the standard of care. Correct answer.
  2. Admit the manual only if the plaintiff proves the defendant violated the policy.
  3. Exclude the manual, because the manual was not followed.
  4. Exclude the manual, because evidence of internal policies is privileged.

Explanation

A party's own safety rules are relevant evidence of the care it considered reasonable and of whether it breached the standard of care. The fact that employees may have departed from the manual does not make it irrelevant; it bears on the adequacy of the defendant's practices. Relevance requires only that the evidence make a fact of consequence more or less probable.

Question 44Multistate Bar Examination (MBE) subjects

A state law required that all contracts for the sale of goods over $500 be in writing. A buyer and a seller orally agreed on the sale of a $900 machine. The buyer sent the seller a signed letter confirming the terms, and the seller received it but did not reply. The seller later refused to deliver. In the buyer's suit, which is the seller's best argument?

  1. The oral agreement is unenforceable because the buyer did not sign a writing.
  2. The oral agreement is unenforceable because the machine was not delivered.
  3. The oral agreement is unenforceable because the letter was not notarized.
  4. The oral agreement is unenforceable because the seller did not sign the confirmation. Correct answer.

Explanation

The merchant confirmation exception to the statute of frauds requires that the confirming writing be sufficient against the sender and that the recipient merchant have reason to know its contents and fail to object within ten days. Even then, the exception binds the recipient only as to quantity, and the recipient's own signature is not required. The seller's strongest argument is therefore that he never signed anything, which limits enforcement against him.

Question 45Multistate Bar Examination (MBE) subjects

A woman was convicted of embezzling funds from her employer. At sentencing, the judge considered a presentence report stating that the woman had also stolen from a prior employer, though she was never charged. The judge imposed a sentence above the guideline range based on that finding. The woman appeals. Which is her strongest argument?

  1. The judge should have held a full adversarial trial before sentencing.
  2. The judge's finding by a preponderance of the evidence violated her right to a jury trial on facts that increased her sentence. Correct answer.
  3. The judge could not consider any conduct for which she was not convicted.
  4. The judge could not rely on hearsay in the presentence report.

Explanation

Sentencing facts that increase the statutory maximum must be found by a jury beyond a reasonable doubt, while facts that merely guide the judge's discretion within the range may be found by the judge. If the enhancement pushed the sentence above the statutory maximum, the judge's findings violated the woman's jury-trial right. Guidelines calculations within the range remain within the judge's discretion.

Question 46Multistate Bar Examination (MBE) subjects

A landowner granted a neighbor a right-of-way across her property for access to a public road. The grant was by written deed and recorded. The neighbor used the path for ten years. The landowner then sold her parcel to a buyer who had actual notice of the easement. The buyer blocked the path. The neighbor sued. Which result is correct?

  1. The neighbor loses, because the easement was not mentioned in the buyer's deed.
  2. The neighbor loses, because easements terminate when the servient parcel is sold.
  3. The neighbor wins, because a recorded easement binds a purchaser with notice. Correct answer.
  4. The neighbor wins only if she can prove twenty years of use.

Explanation

An express easement created by a recorded deed runs with the land and binds subsequent purchasers of the servient estate who have actual, inquiry, or record notice. The buyer had actual notice, so the easement survives the sale. Recording protects the easement holder regardless of whether the later deed mentions it.

Question 47Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for breach of a construction contract. The plaintiff called the project architect, who testified that in his opinion the defendant's work did not meet industry standards. The defendant objected that the architect was not disclosed as an expert and that his opinion usurped the jury's role. The architect had personally inspected the site and reviewed the plans. How should the court rule?

  1. Exclude the testimony, because opinions on industry standards are for the jury.
  2. Admit the testimony only if the architect is licensed in the state where the project was built.
  3. Admit the testimony, because the architect was a percipient witness who may give opinion testimony rationally based on his observations. Correct answer.
  4. Exclude the testimony, because the architect was not disclosed as an expert.

Explanation

A lay witness may give opinion testimony that is rationally based on the witness's perception, helpful to the factfinder, and not based on specialized knowledge beyond the witness's ordinary experience. A percipient witness such as an architect who personally observed the work may testify about what he saw and draw reasonable conclusions. The jury remains free to accept or reject the opinion.

Question 48Multistate Bar Examination (MBE) subjects

A defendant was charged with arson of a warehouse. The prosecution offered evidence that the defendant had purchased five gallons of gasoline the day before the fire and was seen carrying a can near the warehouse. The defendant offers evidence that he was at home asleep at the time of the fire, supported by his roommate's testimony. Which statement about the burden of production is correct?

  1. The prosecution bears the burden of disproving the alibi beyond a reasonable doubt. Correct answer.
  2. The defendant bears the burden of proving his alibi by a preponderance of the evidence.
  3. The alibi defense shifts the burden of persuasion to the defendant.
  4. The defendant must produce evidence of alibi before the prosecution presents its case.

Explanation

An alibi is not an affirmative defense that shifts the burden; it is evidence that negates the prosecution's proof of identity and presence at the scene. The prosecution retains the burden of proving every element beyond a reasonable doubt, including that the defendant committed the act. The defendant need only raise a reasonable doubt.

Question 49Multistate Bar Examination (MBE) subjects

A buyer contracted to purchase a house from a seller. The contract included a financing contingency stating that the buyer would obtain a mortgage at 6% interest within 30 days. The buyer applied to three lenders and was approved only at 7.5%. The buyer notified the seller that he was canceling. The seller sues, arguing the buyer did not try hard enough. Which result is most likely?

  1. The buyer wins, because a financing contingency excuses performance when the buyer makes reasonable efforts and cannot obtain the specified financing. Correct answer.
  2. The seller wins, because the buyer failed to apply to enough lenders.
  3. The buyer wins, because financing contingencies are absolute rights to cancel.
  4. The seller wins, because the financing contingency is unenforceable as a penalty.

Explanation

A financing contingency is a condition precedent to the buyer's duty to close, and the buyer must make reasonable, good-faith efforts to satisfy it. If the buyer applies diligently and cannot obtain financing on the stated terms, the condition fails and the buyer is excused. The contingency is neither an absolute cancellation right nor a penalty.

Question 50Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for defamation after the defendant posted online that the plaintiff had cheated customers. The defendant asserted the statement was true. At trial, the plaintiff sought to introduce evidence that the defendant had previously posted similar accusations about two other business owners, both of which turned out to be false. The defendant objects. How should the court rule?

  1. Exclude the evidence because prior acts are irrelevant in civil cases.
  2. Admit the evidence to show the defendant's motive, intent, or absence of mistake. Correct answer.
  3. Admit the evidence to show the defendant has a character for lying.
  4. Exclude the evidence because the other accusations involved different people.

Explanation

Evidence of prior bad acts is admissible when offered for a purpose other than propensity, such as proving motive, intent, plan, or absence of mistake. The earlier false accusations against other business owners tend to show that the defendant acted with knowledge of falsity or a pattern of targeting businesses, which bears on malice and intent. The evidence is not offered to show that the defendant is a liar by character.