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Question 1Multistate Bar Examination (MBE) subjects

A homeowner signed a written contract to sell her house to a buyer for $400,000, closing in 60 days. One week later, before the buyer had paid anything or taken possession, the homeowner died. Her will devised all real property to her nephew. The buyer now seeks specific performance from the estate. What is the estate's best argument against the buyer's claim?

  1. The buyer's remedy is limited to damages because the property passed to the nephew under the will.
  2. The contract was unenforceable because the homeowner's death automatically terminated any obligation to convey real property.
  3. Specific performance is unavailable because the buyer has not yet paid the purchase price.
  4. Equitable conversion did not occur because the buyer had neither paid nor taken possession, so the estate retains the power to convey. Correct answer.

Explanation

Under the doctrine of equitable conversion, the buyer holds equitable title once a specifically enforceable land sale contract exists, and the risk and devolution issues shift accordingly. Where the buyer has not paid or taken possession, some authorities treat the seller's interest as retaining the right to convey, and a devise of the property can defeat the buyer's equitable interest. The estate's strongest position is therefore that no conversion occurred on these facts.

Question 2Multistate Bar Examination (MBE) subjects

A defendant is charged with burglary. The prosecution offers evidence that, three years earlier, the defendant broke into a different home at night and stole a television. The defendant objects. The prosecutor argues the evidence shows intent. How should the court rule?

  1. Admit it, because prior bad acts are always admissible to prove intent when intent is an element of the charged crime.
  2. Exclude it, because prior crimes are inadmissible in the prosecution's case-in-chief under any theory.
  3. Admit it only if the prior act is sufficiently similar and probative of intent such that its relevance is not substantially outweighed by unfair prejudice. Correct answer.
  4. Exclude it, because the prior act occurred more than two years before the charged offense.

Explanation

Evidence of other crimes is inadmissible to show propensity but may be admitted for a permissible purpose such as intent, provided the prior act is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice. The similarity of the prior conduct to the charged conduct is central to that relevance assessment. There is no categorical bar based on the passage of time or on the prosecution's case-in-chief.

Question 3Multistate Bar Examination (MBE) subjects

A state enacted a statute requiring all incoming first-year students at state universities to live in dormitories. A religious college challenges the statute, arguing that its students should be exempt. The statute contains no exception for religious institutions. Which standard governs the college's free exercise challenge?

  1. Intermediate scrutiny, because the law implicates education.
  2. The compelling interest test, because the law targets religion on its face.
  3. Strict scrutiny, because the statute burdens religious practice.
  4. Rational basis review, because the law is neutral and generally applicable. Correct answer.

Explanation

A law that is neutral and generally applicable is subject only to rational basis review under the Free Exercise Clause, even if it incidentally burdens religious practice. The dormitory rule applies to all incoming students at state universities and does not single out religion for disfavored treatment. Accordingly, the college must show the law lacks a rational basis, a demanding standard to meet.

Question 4Multistate Bar Examination (MBE) subjects

A pedestrian was injured when a delivery truck ran a red light. The pedestrian sued the driver. At trial, the pedestrian offers a certified copy of a municipal ordinance making it unlawful to run a red light. The driver objects on hearsay grounds. How should the court rule?

  1. Admit it, because ordinances are self-authenticating and exempt from hearsay rules.
  2. Exclude it, because the ordinance is an out-of-court statement offered for its truth.
  3. Admit it, because a certified copy of a public record is admissible to prove the content of the law. Correct answer.
  4. Exclude it, because the pedestrian must call a city official to authenticate the ordinance.

Explanation

Public records, including statutes and ordinances, may be proved by certified copy, and the hearsay rule does not bar using an official written law to establish its terms. The ordinance is offered to show the standard of care, which is a permissible non-hearsay use of legislative facts. Certification satisfies authentication.

Question 5Multistate Bar Examination (MBE) subjects

A buyer and seller enter into a contract for the sale of goods. The contract states that the seller will deliver 500 widgets 'on or about June 1.' On May 15, the seller repudiates. The buyer waits until June 1 and then buys substitute widgets at a higher market price. In the buyer's action for breach, what measure of damages applies?

  1. The contract price, because the buyer did not accept the goods.
  2. The difference between the contract price and the cost of cover, plus incidental and consequential damages. Correct answer.
  3. The difference between the contract price and the market price at the time the buyer learned of the repudiation.
  4. Nominal damages only, because the buyer waited until the delivery date to act.

Explanation

Under the UCC, a buyer who covers in good faith may recover the difference between the cost of cover and the contract price, together with incidental and consequential damages less expenses saved. Waiting to cover until the stated delivery date is commercially reasonable and does not forfeit the remedy. The cover measure, not the market-price measure, governs when the buyer has purchased substitute goods.

Question 6Multistate Bar Examination (MBE) subjects

A landowner granted a neighbor an easement 'for access to the rear of the neighbor's lot across the landowner's driveway.' The grant was recorded. The landowner later built a fence blocking the driveway and offered the neighbor a different route along the property line. The neighbor sues. What is the neighbor's strongest position?

  1. The easement holder is entitled to use the described driveway, and the landowner may not unilaterally relocate a fixed easement. Correct answer.
  2. The easement is extinguished because the landowner provided a substitute route.
  3. The neighbor must accept the substitute route because easements are construed in favor of the servient owner.
  4. The easement is void because it was not supported by consideration.

Explanation

Where an easement is fixed by express description, the servient owner generally cannot unilaterally relocate it, and the easement holder may enforce the described route. The right to use the specific driveway is the essence of the grant. A substitute route is permissible only where the easement's location is indefinite or the parties agree.

Question 7Multistate Bar Examination (MBE) subjects

A defendant is tried for robbery. During jury deliberations, the jury sends a note asking the judge to explain the definition of 'force.' The judge, without notifying counsel, goes into the jury room and answers the question orally. The jury convicts. On appeal, what is the strongest ground for reversal?

  1. The judge's response was given outside the presence of counsel and the defendant, depriving them of notice and an opportunity to be heard. Correct answer.
  2. The judge should have declared a mistrial rather than answering any jury question.
  3. The judge's oral answer was improper only if it misstated the law.
  4. The definition of force is a question of fact for the jury alone, so any instruction was improper.

Explanation

A judge may respond to jury questions but must do so in open court with counsel present so the parties can object and propose an accurate response. Ex parte communication with the jury about the law violates the defendant's right to be present and to counsel. The error is structural in nature and generally requires reversal without a showing of prejudice.

Question 8Multistate Bar Examination (MBE) subjects

A testator executed a will leaving her entire estate to her two children equally. She later executed a valid codicil revoking the gift to one child. The testator then had a falling out with the remaining child and tore the will in half, intending to revoke it, but did not touch the codicil. Under the traditional rules, what is the effect?

  1. The entire will and codicil are revoked because the will was physically destroyed. Correct answer.
  2. The codicil remains valid and the torn will is revoked, so the estate passes as the codicil directs.
  3. The tearing is ineffective because revocation requires a signed writing.
  4. Nothing is revoked because the codicil was not also destroyed.

Explanation

Under the traditional integrated will-and-codicil rule, intentional physical revocation of the entire will also revokes a dependent codicil. Tearing the will with revocatory intent therefore revokes both instruments, even though the codicil is untouched. This codicil merely revoked a gift and does not independently distribute the estate.

Question 9Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for battery. The defendant admits striking the plaintiff but claims the plaintiff consented. The plaintiff testifies that she agreed to a friendly sparring match but not to being struck after the match ended. Who bears the burden of proving the scope of consent?

  1. The defendant, because consent is an affirmative defense. Correct answer.
  2. The plaintiff, because she asserts the claim.
  3. The court, because consent is a question of law.
  4. Neither party, because consent is presumed absent objection.

Explanation

Consent is an affirmative defense, and the party asserting it bears the burden of proving both its existence and its scope. The defendant must show that the contact fell within the consent given. If the blow occurred after the match ended, it exceeded the consent and the defense fails.

Question 10Multistate Bar Examination (MBE) subjects

A corporation's board adopted a poison pill without shareholder approval in response to a hostile tender offer. The pill would make the offer prohibitively expensive. The board asserts the pill is needed to obtain a better price. Under Delaware law, which standard applies to the board's defensive measure?

  1. The entire fairness standard, because a takeover defense is a conflicted transaction.
  2. The waste standard, because the pill dilutes shareholder value.
  3. The business judgment rule, because the board acted in good faith.
  4. Reasonableness review under Unocal, because the board must show a threat and a proportionate response. Correct answer.

Explanation

Defensive measures adopted in response to a threatened takeover are reviewed under the Unocal standard, which asks whether the board reasonably perceived a threat and whether the response was reasonable in relation to that threat. The board bears the burden of showing both elements. Ordinary business judgment deference does not apply to entrenchment measures.

Question 11Multistate Bar Examination (MBE) subjects

A witness testifies that she saw the defendant leave a store carrying a cash register. The defense offers evidence that another person, now deceased, confessed to the same robbery. The prosecution objects. How should the court rule?

  1. Admit the evidence only if the declarant's confession was reduced to writing and signed.
  2. Exclude the evidence because it is irrelevant to the defendant's guilt.
  3. Exclude the evidence because a confession by a deceased person is hearsay.
  4. Admit the evidence as a statement against interest if the declarant is unavailable and the statement was against the declarant's interest when made. Correct answer.

Explanation

A statement against interest is admissible when the declarant is unavailable and the statement was so contrary to the declarant's proprietary or penal interest that a reasonable person would not have made it unless true. A confession to a serious crime qualifies, and death renders the declarant unavailable. Corroborating circumstances may be required for statements exposing the declarant to criminal liability.

Question 12Multistate Bar Examination (MBE) subjects

A state law imposes a $5,000 filing fee on any group that wishes to hold a public rally on the state capitol grounds. A small advocacy group challenges the fee as a violation of the First Amendment. Which statement best describes the governing principle?

  1. The fee is invalid because any permit requirement for speech is unconstitutional.
  2. The fee is valid because the state may charge for the use of public property.
  3. The fee is valid because it applies to all groups equally.
  4. The fee is invalid if it is not narrowly tailored to serve a compelling interest. Correct answer.

Explanation

A permit scheme that conditions expressive activity in a public forum must be narrowly tailored to serve a significant or compelling governmental interest and must not give officials unbridled discretion. A flat $5,000 fee can operate as a prior restraint that chills speech, especially for small groups. The state must justify the amount and its relationship to the costs of the event.

Question 13Multistate Bar Examination (MBE) subjects

A tenant signed a one-year lease. Three months into the term, the landlord sold the building. The new owner demanded that the tenant vacate, claiming the lease terminated with the sale. The tenant refuses. Who prevails?

  1. The new owner, because the tenant must attorn to a new landlord only under a written assignment.
  2. The tenant, because the lease runs with the land and binds a successor landlord who takes with notice. Correct answer.
  3. The new owner, because a lease is a contract that does not bind a purchaser.
  4. The tenant, because the sale automatically renewed the lease for another year.

Explanation

A leasehold is an interest in land, and the purchaser of the reversion takes subject to a lease of which it has notice. The new owner succeeds to the landlord's rights and obligations, including the duty to permit the tenant to remain for the balance of the term. Privity of estate binds the successor landlord to the lease covenants that run with the land.

Question 14Multistate Bar Examination (MBE) subjects

A defendant is charged with arson. At trial, the prosecution calls a witness who testifies that the defendant's friend told her, 'He burned the building for the insurance money.' The defense objects. The statement is offered against the defendant. What is the best ruling?

  1. Exclude the statement because it is testimonial and the declarant is unavailable.
  2. Admit the statement as a statement of a co-conspirator if the prosecution shows the conspiracy and the statement was made during and in furtherance of it. Correct answer.
  3. Admit the statement because statements by friends are admissions.
  4. Exclude the statement because it is hearsay and no exception applies as a matter of law.

Explanation

A statement by a co-conspirator made during the conspiracy and in furtherance of its objectives is admissible against other conspirators as a hearsay exception. The prosecution must establish the conspiracy and the declarant's participation by a preponderance of the evidence. The statement here identifies a purpose and participant, so it may qualify if those foundational facts are shown.

Question 15Multistate Bar Examination (MBE) subjects

A creditor obtained a judgment against a debtor for $50,000. The debtor owns a home worth $300,000 subject to a $250,000 mortgage. The state homestead exemption is $100,000. The debtor also owns a car worth $20,000 with no lien. What is the creditor's best course to collect?

  1. Force a sale of the home because the debtor has equity exceeding the exemption.
  2. Garnish the debtor's wages for the full judgment immediately.
  3. Execute on the car, because the car is non-exempt personal property not protected by the homestead. Correct answer.
  4. Do nothing, because a judgment lien cannot attach to any property.

Explanation

A homestead exemption protects a fixed amount of equity in the debtor's residence; here the debtor's equity is $50,000, below the $100,000 exemption, so the home is fully protected. The creditor may instead execute on non-exempt assets such as the unencumbered car. Wage garnishment is subject to statutory exemptions and limits and cannot be used to collect the entire judgment at once.

Question 16Multistate Bar Examination (MBE) subjects

A defendant is charged with murder. At trial, the defendant's former cellmate testifies that the defendant told him, 'I did it, but I was so drunk I don't remember.' The defendant was not in custody and had not been interrogated. The defense objects based on Miranda. What is the best ruling?

  1. Admit the statement only if the cellmate was not promised anything in exchange.
  2. Exclude the statement because the cellmate was acting as a government agent.
  3. Exclude the statement because the defendant was in jail and therefore in custody.
  4. Admit the statement because Miranda warnings are required only for custodial interrogation by government agents, and no interrogation occurred. Correct answer.

Explanation

Miranda protects against compelled self-incrimination arising from custodial interrogation by government agents; voluntary statements to a fellow inmate who is not acting for the police are not covered. Because the defendant was not interrogated and the cellmate was not a government agent, the warnings were unnecessary. The statement may be admissible as a party admission.

Question 17Multistate Bar Examination (MBE) subjects

A seller agreed in writing to sell a parcel of land to a buyer for $200,000. The writing described the property as 'the lot at 123 Elm Street' and was signed by the seller but not the buyer. The buyer now seeks to enforce the contract. The seller argues the statute of frauds bars enforcement. What is the buyer's best response?

  1. The statute of frauds does not apply to land sales under $250,000.
  2. The buyer's part performance, standing alone, always satisfies the statute.
  3. The statute of frauds requires only the signature of the party to be charged, and the description is adequate. Correct answer.
  4. The contract is enforceable because the buyer accepted the seller's offer orally.

Explanation

The statute of frauds requires a writing signed by the party to be charged, which here is the seller, and the writing must reasonably identify the land. A street address can suffice if it identifies the parcel with reasonable certainty. The buyer's signature is not required to enforce the contract against the seller.

Question 18Multistate Bar Examination (MBE) subjects

A homeowner hired a contractor to remodel a kitchen for $40,000, payable in installments as work progressed. After the contractor completed half the work, the homeowner wrongfully refused to allow the contractor to continue. The contractor had been paid $15,000. What can the contractor recover?

  1. The full contract price, because the homeowner breached.
  2. The contract price minus the cost of completing the work, plus any profit lost. Correct answer.
  3. Only the reasonable value of the work performed, with no allowance for profit.
  4. Nothing, because the contract was not fully performed.

Explanation

When the owner prevents performance, the contractor may recover damages measured by the contract price less the cost of completion, which preserves the benefit of the bargain, including expected profit. The contractor is not limited to restitution for work performed. The breaching owner cannot use the doctrine of substantial performance to escape liability.

Question 19Multistate Bar Examination (MBE) subjects

A police officer stopped a car for a broken taillight. During the stop, the officer ordered the driver to exit and, without consent or probable cause, searched the locked glove compartment, finding contraband. The driver moves to suppress. What is the best ruling?

  1. Grant the motion because the officer lacked a warrant to stop the car.
  2. Deny the motion because automobiles are exempt from the warrant requirement in all circumstances.
  3. Deny the motion because the stop was lawful.
  4. Grant the motion because the search of the locked glove compartment exceeded the scope of a permissible automobile search incident to the stop. Correct answer.

Explanation

A traffic stop permits limited inquiries and, for officer safety, an order to exit the vehicle, but it does not authorize a full search of locked compartments without probable cause or another exception. The automobile exception requires probable cause to believe the vehicle contains evidence of a crime. Because no probable cause existed, the search violated the Fourth Amendment and the evidence must be suppressed.

Question 20Multistate Bar Examination (MBE) subjects

A defendant is charged with fraud. The prosecution seeks to introduce the defendant's prior conviction for perjury to impeach the defendant's credibility if he testifies. The conviction is eight years old. Under the Federal Rules, what is the best analysis?

  1. The conviction is admissible if the court finds its probative value outweighs its prejudicial effect, considering the age of the conviction. Correct answer.
  2. The conviction is inadmissible because it is more than ten years old.
  3. The conviction is automatically admissible because perjury is a crime involving dishonesty.
  4. The conviction is inadmissible because prior convictions may never be used to impeach a testifying defendant.

Explanation

A conviction for a crime involving dishonesty is admissible to impeach a witness, but the court retains discretion to exclude it if its probative value is substantially outweighed by unfair prejudice. Age is a relevant factor in that balancing. The ten-year limit applies only to convictions older than ten years, so an eight-year-old conviction is not automatically barred.

Question 21Multistate Bar Examination (MBE) subjects

A landowner died intestate survived by a spouse and two children from a prior marriage. Under the Uniform Probate Code intestacy scheme, how is the estate distributed?

  1. The entire estate passes to the surviving spouse.
  2. The children receive the entire estate because they are the decedent's issue.
  3. The surviving spouse receives the first $150,000 plus one-half of the remainder, and the children share the rest. Correct answer.
  4. The estate is divided equally among the spouse and all children.

Explanation

Under the Uniform Probate Code, when the decedent is survived by a spouse and descendants who are not descendants of the surviving spouse, the spouse receives the first $150,000 plus one-half of the balance, and the descendants take the remainder. The rule balances support for the spouse against the decedent's intent to provide for children of another relationship. The exact figures depend on the version of the UPC adopted.

Question 22Multistate Bar Examination (MBE) subjects

A plaintiff sued a defendant for negligence arising from a car accident. The defendant denies fault and asserts that the plaintiff was contributorily negligent. At trial, the plaintiff offers evidence of the defendant's reputation in the community for reckless driving. The defendant objects. How should the court rule?

  1. Exclude the evidence because reputation evidence is hearsay and no exception applies.
  2. Admit the evidence because the defendant's character is directly at issue in a negligence case.
  3. Exclude the evidence because character evidence is generally inadmissible to prove conforming conduct in a civil case. Correct answer.
  4. Admit the evidence because reputation is always admissible to prove conduct.

Explanation

In civil cases, evidence of a person's character is generally inadmissible to prove that the person acted in conformity with that character on a particular occasion. Negligence is not a character trait, and the defendant's character is not an element of the claim. The evidence is therefore excluded as improper propensity evidence.

Question 23Multistate Bar Examination (MBE) subjects

A principal gave an agent authority to purchase office furniture. The agent, without telling the principal, bought furniture for the agent's own home using the principal's credit line. The seller knew the authority was limited to the principal's office and that the purchase was for the agent's home, but seeks payment from the principal. What is the principal's best defense?

  1. The principal is liable because apparent authority always protects third parties.
  2. The agent's purchase was outside the scope of apparent authority because the seller knew the furniture was for the agent's home. Correct answer.
  3. The principal is not liable because the agent's self-dealing voids any agency relationship.
  4. The agent lacked actual authority, so the principal is not liable.

Explanation

Apparent authority depends on the principal's manifestations and the third party's reasonable belief in the agent's authority. Here the seller knew authorization covered purchases for the principal's office and knew this purchase was for the agent's home. That knowledge defeats reasonable reliance on apparent authority for this transaction.

Question 24Multistate Bar Examination (MBE) subjects

A defendant is charged with larceny. The evidence shows the defendant took a bicycle that he mistakenly believed belonged to him, but which in fact belonged to a neighbor. The defendant intended to keep the bicycle permanently. Can the defendant be convicted of larceny?

  1. Yes, because the defendant intended to permanently deprive the owner of the bicycle.
  2. No, because the defendant lacked the intent to permanently deprive another of property he knew belonged to another. Correct answer.
  3. No, because the bicycle was not taken from the owner's person.
  4. Yes, because the defendant's mistake of fact is irrelevant to larceny.

Explanation

Larceny requires the trespassory taking and carrying away of another's personal property with the intent to permanently deprive the owner of it. A good-faith belief that the property is one's own negates the requisite intent to steal, even if the belief is mistaken. The defendant therefore lacks the mens rea for larceny.

Question 25Multistate Bar Examination (MBE) subjects

A state statute requires that all contracts for the sale of goods over $500 be in writing. A buyer and seller orally agreed to a sale of goods for $700. The seller delivered the goods, and the buyer accepted them. The seller now sues for the price. What is the result?

  1. The seller loses because the contract was oral and the statute of frauds bars enforcement.
  2. The seller wins only if the buyer admits the contract in court.
  3. The seller wins because the goods were delivered and accepted, taking the contract out of the statute of frauds. Correct answer.
  4. The seller loses because the price exceeded $500 and no writing exists.

Explanation

Under the UCC, a contract for goods priced at $500 or more is enforceable without a writing if the goods are received and accepted, or if payment has been made and accepted. Delivery and acceptance remove the contract from the statute of frauds. The seller may therefore recover the price.

Question 26Multistate Bar Examination (MBE) subjects

A state enacted a statute requiring any person who sells a firearm at a gun show to run a background check, but exempting sales by licensed dealers. A plaintiff who sells firearms at gun shows sues, arguing the statute violates the Second Amendment. Which standard of review will the court most likely apply?

  1. Intermediate scrutiny, because the law burdens a constitutional right without prohibiting it outright Correct answer.
  2. Rational basis review, because firearm sales are commercial activity outside constitutional protection
  3. No review, because the Second Amendment applies only to federal legislation
  4. Strict scrutiny, because any regulation touching a fundamental right must be narrowly tailored

Explanation

The Supreme Court has applied intermediate scrutiny to firearm regulations that burden the core right while leaving substantial avenues for lawful access. Strict scrutiny is reserved for laws that severely restrict the right, and commercial sale of arms remains within the amendment's scope.

Question 27Multistate Bar Examination (MBE) subjects

A state passed a law requiring any publisher of a newspaper circulated in the state to publish a reply from any candidate the paper criticizes. A newspaper challenges the law. A court applying controlling precedent will most likely hold the statute:

  1. Valid, because the state has a substantial interest in ensuring voters receive candidates' responses
  2. Valid, because the newspaper remains free to criticize candidates if it accepts the reply obligation
  3. Invalid, because it compels the press to publish speech it did not choose to publish Correct answer.
  4. Invalid, because the law regulates only newspapers rather than all media

Explanation

A government may not compel a newspaper to print a reply it would not otherwise publish; this is a content-based compulsion of speech. The interest in informing voters does not override the First Amendment's protection against forced publication.

Question 28Multistate Bar Examination (MBE) subjects

A city council holds a closed meeting to discuss whether to fire the police chief. A reporter challenges the closure. Under the First Amendment, the reporter's strongest argument is that:

  1. The reporter's newsgathering rights override any state closure statute
  2. The council's decision affects a public employee's reputation, requiring a hearing
  3. All government meetings must be open unless a statute expressly closes them
  4. The public has a presumptive right of access to meetings historically open to the public Correct answer.

Explanation

The First Amendment guarantees access to proceedings that have a tradition of openness and where access plays a significant role in the process. Closed meetings on personnel matters may still be permissible if the closure is narrowly tailored.

Question 29Multistate Bar Examination (MBE) subjects

A defendant is charged with kidnapping. The prosecution seeks to introduce evidence that the defendant previously abducted a child in a different state. The defendant objects. The court should admit the evidence only if it is offered to prove:

  1. The defendant's prior conviction as impeachment if he testifies
  2. The defendant's propensity to commit abductions
  3. That the defendant is a bad person likely to commit crimes
  4. The defendant's motive, plan, or identity under an exception to character evidence Correct answer.

Explanation

Evidence of other crimes is inadmissible to show propensity but may be admitted for a non-propensity purpose such as motive, intent, plan, identity, or absence of mistake. The court must also weigh unfair prejudice under the balancing test.

Question 30Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for breach of contract. At trial, the plaintiff offers a copy of a letter the defendant wrote admitting the debt. The defendant objects that the original is required. The court should admit the copy if the plaintiff shows:

  1. The original is in the defendant's possession and the defendant refuses to produce it after notice Correct answer.
  2. The letter was written more than five years ago
  3. The copy was made by the plaintiff's attorney
  4. The defendant has denied writing the letter

Explanation

The best evidence rule requires the original unless it is unavailable through no fault of the proponent, such as when an adverse party possesses and withholds it after notice. A duplicate may then be admitted.

Question 31Multistate Bar Examination (MBE) subjects

A defendant is charged with burglary. The prosecution offers a witness who will testify that the defendant's roommate said, 'We broke into the store last night.' The defendant objects on hearsay grounds. The statement is:

  1. Inadmissible because it was made after the crime was completed
  2. Admissible as a statement against the roommate's interest, but not against the defendant
  3. Inadmissible because it is testimonial
  4. Admissible as a co-conspirator statement if made during and in furtherance of the conspiracy Correct answer.

Explanation

A statement by a co-conspirator made during and in furtherance of the conspiracy is admissible against all members under the hearsay exception. Statements made after the conspiracy ends are not admissible on that basis.

Question 32Multistate Bar Examination (MBE) subjects

A plaintiff asserts a claim for intentional infliction of emotional distress against a coworker who repeatedly made crude jokes at her expense. The court will most likely dismiss the claim because:

  1. The plaintiff did not suffer physical harm
  2. The coworker lacked intent to cause distress
  3. The conduct was not extreme and outrageous enough to support the tort Correct answer.
  4. Emotional distress is never recoverable in tort

Explanation

Intentional infliction of emotional distress requires conduct so extreme and outrageous as to exceed all bounds of decency. Crude jokes, without more, generally do not meet that threshold.

Question 33Multistate Bar Examination (MBE) subjects

A landowner stores explosives in a shed near a public road. A passing driver is injured when the shed explodes. The driver sues in strict liability. The landowner's best defense is that:

  1. The landowner exercised reasonable care
  2. The driver assumed the risk by driving on the road
  3. The storage of explosives is not an abnormally dangerous activity Correct answer.
  4. The driver was not a trespasser

Explanation

Strict liability for abnormally dangerous activities applies only if the activity creates a foreseeable risk that cannot be eliminated by reasonable care and is inappropriate to its location. Storage of explosives near a public road generally qualifies, so the landowner cannot rely on lack of negligence.

Question 34Multistate Bar Examination (MBE) subjects

A buyer and seller enter into a contract for the sale of a used car for $8,000. The buyer later learns the car's odometer was rolled back. The buyer sues for fraud. To recover punitive damages, the buyer must prove:

  1. The car was worth less than the purchase price
  2. The seller made a false statement of material fact with scienter and justifiable reliance Correct answer.
  3. The seller breached an implied warranty of merchantability
  4. The seller acted negligently in failing to inspect the odometer

Explanation

Fraud requires a false statement of material fact, scienter, intent to induce reliance, justifiable reliance, and damages. Punitive damages are available when the defendant's conduct is intentional or malicious.

Question 35Multistate Bar Examination (MBE) subjects

A tenant rents an apartment under a one-year lease. The landlord fails to repair a leaking roof despite written notice. The tenant may:

  1. Terminate the lease immediately without notice
  2. Withhold all rent without further action
  3. Make the repair and deduct the cost from rent if the lease or statute permits Correct answer.
  4. Sue for specific performance of the repair covenant

Explanation

Under the implied warranty of habitability, a tenant may repair and deduct, withhold rent, or terminate in some jurisdictions, but only after notice and an opportunity to cure. Self-help must follow statutory or lease procedures.

Question 36Multistate Bar Examination (MBE) subjects

A grantor conveys 'to my sister for life, then to my nephew.' The nephew has:

  1. A vested remainder subject to open Correct answer.
  2. A reversion
  3. A contingent remainder
  4. A vested remainder subject to divestment

Explanation

The nephew is a born, ascertained person, so the remainder is vested, but it is subject to open because the sister could have additional children who would share. A remainder subject to open is vested but may be partially divested by later-born takers.

Question 37Multistate Bar Examination (MBE) subjects

A property owner grants a neighbor a right-of-way across the owner's land 'so long as the neighbor uses the land for residential purposes.' The neighbor begins operating a commercial day care. The owner may:

  1. Terminate the easement because the condition has been violated Correct answer.
  2. Terminate only if the neighbor's use causes damage
  3. Not terminate because the neighbor's use is residential in nature
  4. Not terminate because easements are perpetual

Explanation

An easement subject to a condition subsequent terminates when the condition is breached. Operating a commercial day care exceeds the residential-purpose limitation, so the owner may terminate.

Question 38Multistate Bar Examination (MBE) subjects

A corporation's board considers a merger offer. A director owns stock in the acquiring company. Under the duty of loyalty, the director must:

  1. Resign from the board before any vote
  2. Disclose the interest and abstain if the transaction is not fair to the corporation Correct answer.
  3. Consult only the corporation's outside counsel
  4. Vote in favor if the merger benefits shareholders

Explanation

A director with a personal interest in a transaction must disclose it and may be required to abstain unless the transaction is fair to the corporation. The duty of loyalty requires undivided allegiance to the corporation.

Question 39Multistate Bar Examination (MBE) subjects

A general partnership dissolves. After winding up, a creditor's claim remains unpaid. The partner with the largest capital contribution:

  1. May avoid liability by withdrawing from the partnership
  2. Is personally liable for the unpaid claim Correct answer.
  3. Has no personal liability because the partnership is dissolved
  4. Is liable only up to the amount of capital contributed

Explanation

General partners are jointly and severally liable for partnership obligations incurred during the partnership's existence. Dissolution does not extinguish that liability, and contribution limits do not cap it.

Question 40Multistate Bar Examination (MBE) subjects

An agent agrees to sell the principal's goods for a 10% commission. The agent sells the goods but the principal refuses to pay. The agent may:

  1. Recover the commission from the principal under the agency agreement Correct answer.
  2. Sue the buyer for the commission
  3. Keep the entire sale proceeds as compensation
  4. Rescind the sale to the buyer

Explanation

An agent is entitled to compensation as agreed, and may sue the principal for breach if the commission is not paid. The agent has no direct claim against the buyer for the commission.

Question 41Multistate Bar Examination (MBE) subjects

A defendant is charged with larceny of a laptop. The evidence shows the defendant took the laptop intending to return it after using it for a weekend. The defendant should be:

  1. Convicted, because the laptop was taken from the owner's possession
  2. Acquitted, because the laptop was not taken from a building
  3. Convicted, because he intended to deprive the owner temporarily
  4. Acquitted, because he lacked intent to permanently deprive Correct answer.

Explanation

Larceny requires the intent to permanently deprive the owner of the property. Borrowing property with intent to return it, even without permission, does not satisfy that element, though it may constitute trespassory taking.

Question 42Multistate Bar Examination (MBE) subjects

A defendant is charged with murder. He claims he acted in self-defense. The prosecution bears the burden of proving:

  1. That the defendant was the initial aggressor
  2. Beyond a reasonable doubt that the defendant did not act in self-defense Correct answer.
  3. That no weapon was present at the scene
  4. By a preponderance that the defendant intended to kill

Explanation

Once a defendant raises self-defense, the prosecution must disprove it beyond a reasonable doubt as part of its burden on the elements of the crime. The defendant bears only the burden of production.

Question 43Multistate Bar Examination (MBE) subjects

A defendant is charged with possession of stolen goods. The prosecution proves the defendant had the goods and knew they were stolen. The defendant's best argument for acquittal is that:

  1. He did not personally steal the goods Correct answer.
  2. The goods were worth less than $500
  3. He was unaware of the goods' stolen character
  4. He did not receive the goods from the thief

Explanation

Receiving stolen property requires that the defendant received possession and control over the property from another, knowing it was stolen. A person who steals property cannot be convicted of receiving it from himself.

Question 44Multistate Bar Examination (MBE) subjects

A plaintiff from State A sues a defendant from State B in federal court for $100,000 in a diversity case. The plaintiff also sues a citizen of State A as a co-defendant. The federal court:

  1. Lacks jurisdiction unless the State A co-defendant consents
  2. Has jurisdiction if the State A co-defendant is a nominal party
  3. Lacks jurisdiction because complete diversity is absent Correct answer.
  4. Has jurisdiction because the amount exceeds $75,000

Explanation

Diversity jurisdiction requires complete diversity, meaning no plaintiff may share citizenship with any defendant. The presence of a State A co-defendant destroys complete diversity regardless of the amount in controversy.

Question 45Multistate Bar Examination (MBE) subjects

A defendant fails to respond to a complaint and a default judgment is entered. The defendant later moves to set aside the default. The court should grant relief if the defendant shows:

  1. The plaintiff's claim is worth more than $75,000
  2. The defendant has a meritorious defense and the default resulted from excusable neglect Correct answer.
  3. The defendant intends to retain new counsel
  4. The defendant disagrees with the complaint's allegations

Explanation

A court may set aside a default for good cause, including excusable neglect, and the movant typically must show a meritorious defense. Disagreement with the allegations or intent to hire counsel is insufficient.

Question 46Multistate Bar Examination (MBE) subjects

A defendant is charged with assault. At trial, the defendant's attorney asks a witness about the defendant's truthful reputation. The prosecution objects. The evidence is:

  1. Admissible because the defendant opened the door by testifying
  2. Inadmissible because reputation evidence is never allowed
  3. Inadmissible because the defendant has not put character in issue Correct answer.
  4. Admissible because the defendant's character is always at issue

Explanation

In a criminal case, the prosecution may not introduce evidence of the defendant's bad character unless the defendant first offers evidence of good character. Here the defendant's own attorney offered the evidence, so it is admissible on the defendant's behalf.

Question 47Multistate Bar Examination (MBE) subjects

A husband is charged with murdering his wife. The prosecution offers the wife's statement to a friend, 'I'm afraid my husband will kill me,' made one week before her death. The statement is:

  1. Inadmissible because it was not made to a police officer
  2. Admissible as a statement of the declarant's then-existing state of mind Correct answer.
  3. Inadmissible because it is hearsay not subject to exception
  4. Admissible as a dying declaration

Explanation

A statement describing the declarant's then-existing fear or state of mind is admissible under the state-of-mind exception. It may also be relevant to the defendant's motive or to rebut claims of accident.

Question 48Multistate Bar Examination (MBE) subjects

A state law prohibits the sale of any drug not approved by a state board, and the board has refused to approve a drug that is federally approved. A manufacturer challenges the law. The strongest constitutional challenge is under:

  1. The Dormant Commerce Clause
  2. The Privileges or Immunities Clause
  3. The Contracts Clause
  4. The Supremacy Clause Correct answer.

Explanation

When a state law conflicts with federal law, the Supremacy Clause makes the federal law controlling and the state law invalid. Federal approval of the drug preempts a state ban that obstructs the federal scheme.

Question 49Multistate Bar Examination (MBE) subjects

A plaintiff sues a defendant for negligence. The defendant moves for summary judgment, supporting the motion with an affidavit denying that he was driving the car. The plaintiff responds with her own affidavit stating she saw the defendant driving. The court should:

  1. Deny the motion only if the plaintiff requests a jury trial
  2. Grant the motion because the plaintiff's affidavit is self-serving
  3. Grant the motion because the defendant denied driving
  4. Deny the motion because a genuine dispute of material fact exists Correct answer.

Explanation

Summary judgment is appropriate only when no genuine dispute of material fact exists. Competing affidavits on a dispositive fact create a credibility question for the jury, so the motion must be denied.

Question 50Multistate Bar Examination (MBE) subjects

A testator's will leaves $100,000 to 'my friend Alice.' The testator later marries Bob and has a child, Carl. Under the doctrine of pretermitted heirs, Carl may:

  1. Take the entire estate because the will is revoked by marriage
  2. Take only if Alice renounces her gift
  3. Take an intestate share unless the will shows the omission was intentional Correct answer.
  4. Take nothing because the will predates his birth

Explanation

A child born after the execution of a will is generally entitled to an intestate share unless the will shows an intention to omit the child or provides for the child. Marriage may also affect the spouse's share but does not automatically revoke the will.