Sunday, April 19, 2015

MBE Fast Fact: The Mailbox Rule

The mailbox rule (under the common law of contracts) has the potential to be very confusing. But if you note the following, then questions testing this concept shouldn't be too bad:

The rule is meant to set forth a determination as to whether acceptance of an offer is effective. The simplest situation is where the acceptance is by mail, and only an acceptance is mailed. In such a case, the acceptance becomes effective at the moment of dispatch, unless the offeror has expressly stated that acceptance will become effective only once it is received. (And on the MBE, the offeror does sometimes state that!) As is often the case in contract law, the offeror has the final word, so if the offeror states that the mailbox rule does not apply (by claiming acceptance is only valid upon receipt,) then don't apply the rule for that particular question. Note, also, that the mailbox rule does not apply in the case of an option contract (when consideration has been provided to hold the offer open). In an option contract, acceptance is effective upon receipt by the offeror rather than dispatch by the offeree.

A second scenario involves the offeree dispatching a rejection in the mail, and then changing his mind and dispatching an acceptance before the rejection is received by the offeror. Here, the rejection will be effective, unless the acceptance is received first.

Lastly is the situation in which the offeree sends an acceptance and then sends a rejection. Because acceptance was first dispatched you should merely apply the general mailbox rule that acceptance is effective upon dispatch. But there is one twist: If the rejection arrives prior to the acceptance (unlikely), then the rejection will be effective.

Monday, April 13, 2015

MBE Fast Fact: Buyer's Acceptance Under the UCC

When dealing with a question implicating the UCC rather than the common law, it's important to remember that the doctrine of substantial performance does not apply, and instead the Perfect Tender Rule applies. This means that if the goods delivered by the seller fail to conform to the contract in any way, the buyer may reject all the goods delivered, reject some of the goods and accept some of the goods, or accept all of the goods.

As such, it is equally important to understand exactly what constitutes acceptance in such circumstances because the moment of acceptance is also the moment that the buyer loses the ability to reject the goods. A buyer accepts under the UCC under 3 circumstances:

--After a reasonable opportunity to inspect the goods, the buyer indicates to the seller that the goods conform to the requirements of the contract or that the buyer will keep the goods even though they do not conform as required.

--The buyer fails to reject the goods within a reasonable time after tender of delivery or fails to seasonably notify the seller of the rejection.

--The buyer acts in a way that indicates that the buyer is the owner of the goods, or, stated otherwise, acts inconsistent with the seller's ownership of the goods.

One further note here: If none of the 3 above apply, and buyer rightfully rejects the goods, the buyer still has an obligation to hold the goods with reasonable care at the seller's disposition and to follow any reasonable instructions given by the seller as to the rejected goods. If the seller fails to give instructions, the buyer may reship the goods to the seller, store them for the seller's account, or resell them for the seller's account and retain any expenses incurred in following the instructions of the seller.

Sunday, April 5, 2015

Buyer's Insolvency

Assume that the seller has entered into a contract with the buyer, but after entering into that contract the seller learns that the buyer is insolvent and will not be able to pay for the goods. A question becomes whether seller at that point must deliver the goods to the buyer and then later sue when buyer fails to pay, or instead whether seller can avoid delivering the goods entirely. UCC 2-702 addresses this question.

Where the seller discovers the buyer to be insolvent he may refuse delivery, or if necessary, stop delivery of goods that have already been delivered to the carrier service. (For the specifics on stopping delivery see rule 2-705)

Sometimes, however, the seller will not discover the insolvency until the buyer has already received the goods. In such instances, the seller may reclaim the goods upon demand made within 10 days after the receipt. Note that if misrepresentation of solvency has been made to the seller in writing within three months before delivery, then the ten day limitation does not apply.

Also very important for purposes of the MBE is that the seller's right to reclaim goods is subject to the rights of a buyer in ordinary course or other good faith purchaser for value. In other words, if the buyer has sold the goods to a bona fide purchaser ("BFP"), then seller will be required to seek other remedies from buyer, as the ability to reclaim the goods will have been lost upon that sale.

Sunday, March 29, 2015


Trusts is a subject tested on the state essay portion of many bar exams. It's not thought of as an MBE subject, but it is testable in the area of Real Property. Fortunately, for purposes of the MBE, the material is very basic. It's enough to know the following:

A trust is a relationship whereby a settlor conveys property to a trustee, and the trustee holds legal title to that property. The beneficiaries hold equitable title with equitable rights attached. At the time that the settlor conveyed the property, he/she must have owned the property and had the intent to create a trust.

A trust can be created in one of two ways: by will or by an inter vivos transfer of the property. It should be noted that the settlor may choose to act as trustee in which case the trust will be created if the settlor declares that he is holding the property in trust. As is the case with any transfer of real property, if the property transferred is real property, then the trust agreement must be in writing to satisfy the statute of frauds. If a settlor creates a trust during his lifetime, and then transfers property in his will to that lifetime trust, it is known as a pour over trust.

Occasionally questions will test charitable trusts. A charitable trust must have a charitable purpose, and must have indefinite beneficiaries (as opposed to a private trust in which the beneficiaries must be definite). Further, it may be of indefinite duration (the Rule Against Perpetuities does not apply). Occasionally, a trust will be set up for a charity and at some point the purpose of the trust will become impracticable or impossible. In such instances, the court will apply the cy pres doctrine which allows the court to select an alternative charity. Generally, charitable trust are enforced by the attorney general of the state.

Thursday, March 19, 2015

MBE Fast Fact: Recapture of Chattels

Within the area of intentional torts, the topic of recapture of chattels tends to cause some difficulty. And with good reason: it's somewhat of a gray area of law with different outlines stating different types of analysis. Here's what should be known for purposes of the MBE:

It's important when analyzing recapture of chattels to determine exactly how the chattels came into the possession of the person from whom the chattel is now being recaptured. Assume that X is the owner of the chattel, and that Y is now in possession of X's chattel.

If Y's possession of the chattel began lawfully, then X may only use peaceful means to recapture the chattel. To the contrary, X may only use force to recapture the chattel from Y if X is in hot pursuit of Y, and if Y has obtained the chattel unlawfully.

How might this play out in a question. Assume that Y has come into possession of X's chattel lawfully. For example, assume X has given a piece of property to Y, and that now Y refuses to return it. If X attempts to recapture the property and uses force in doing so, Y may have a claim against X for battery, even though X was merely attempting to recapture property that belonged to X. This is because the use of force on the part of X would not be allowed in such a situation, so that if X claimed recapture of chattels as a defense to a claim of battery, the defense would fail.

Monday, March 9, 2015

MBE Fast Fact: Interference with Business Relations

A tort that shows up with some regularity on the MBE is the tort of interference with business relations. As is the case with all intentional torts, the key to answering questions correctly that are testing this tort is to know the elements of the tort. They are as follows:

--A valid contractual relationship between plaintiff and a third party, or a valid business expectancy of plaintiff with the third part

--Defendant's knowledge of that relationship or expectancy

--Intentional interference of the relationship or expectancy by defendant that induces a breach of the relationship or expectancy

--Damages to plaintiff.

But the analysis does not end there. Defendant's conduct may be privileged where it is a proper attempt to obtain business for defendant. Defendant's conduct is far more likely to be deemed privileged in this respect if the conduct is one that merely interferes with plaintiff's expectancy of business and not an already-existing business relationship. In addition, the analysis should run in favor of finding a privilege if defendant used commercially acceptable means of persuasion rather than illegal or threatening tactics, or if defendant is a competitor of plaintiff seeking the same prospective clients. It's also important to note that if the third party has contacted defendant seeking business advice, and the defendant provides such advice, providing such advice is unlikely to be deemed actionable by plaintiff as an interference of plaintiff's relationship with the third party, even if the the advice ultimately leads to the third party forming a business relationship with defendant rather than plaintiff.

Sunday, February 22, 2015

Good Luck!

Best of luck to all sitting this week for the bar exam!!

Posting to resume shortly in preparation for the July '15 exam.

Monday, February 16, 2015

MBE Fast Fact: Wrongful Birth vs Wrongful Life

Let's be sure to distinguish these concepts as they do show up on the MBE:

In short, wrongful life means the the child sues the mother or others for being born. Wrongful birth, on the other hand, means the mother sues others (very often a doctor who fails to inform the mother of the potential for a disability) for being burdened monetarily with a disabled child. Wrongful birth cases are nearly always medical malpractice tort cases.

For purposes of the MBE, it's most important to remember the following: Most states reject a claim of wrongful life, and of the few states that do permit it, some would limit recovery to the special damages attributable to the disability.

In contrast, a cause of action for wrongful birth will be permitted in many states. Though allowable, damages will generally be limited to expenses incurred as a result of the child's disabilities.

Thursday, February 12, 2015

MBE Essentials: Future Interests

Future Interests is an area that many students struggle with when preparing for the MBE. Here are three questions and answers from my book MBE Essentials dealing with this difficult topic:

What is the difference between a fee simple determinable, and a fee simple subject to condition subsequent?

A fee simple determinable terminates upon the happening of a stated event and automatically reverts back to the grantor. A fee simple subject to condition subsequent, on the other hand, will not terminate automatically, but will terminate only if the grantor takes action to re-enter the property and reclaim it.

What is a fee simple subject to an executory interest?

This fee simple terminates upon the happening of a stated event, and then passes on to a third party rather than reverting back to the grantor. The third party holds an executory interest, and that interest becomes possessory upon the happening of the stated event.

What are the rights of a life tenant?

A life tenant is entitled to ordinary uses and profits of the land but cannot do anything that might injure someone holding a remainder. A life tenant may not exploit the land (for example, by removing natural resources) unless doing so is necessary for repair or maintenance of the land, the land is suitable only for such use, or doing so has been expressly or impliedly allowed by the grantor. In addition, a life tenant must keep the land in a reasonable state of repair, pay interest on mortgages, and pay ordinary taxes on the land. Note that a life tenant is not obligated to insure the property for the benefit of the remaindermen, and if a third party tortfeasor damages the property (for example, by a trespass), the life tenant would not be responsible for that damage.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on @

Or you can purchase and download it right here on the blog:
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Wednesday, February 4, 2015

MBE Fast Fact: The Appointments Clause

The Appointments Clause in the Constitution provides that the President shall nominate and by and with the advice of the Senate shall appoint ambassadors, Supreme Court Justices, and all other officers of the United States. This issue, though not as common on the MBE as many others, has appeared in the past.

It is a violation of this clause if the President, when appointing an ambassador, is required to pick from among names appearing on a congressionally-generated list. Though as per the clause the President's pick is subject to confirmation by the Senate, when picking the ambassador (or other principle federal officer), the President may act alone.

In addition, the rule regarding confirmation by the Senate is specific; namely, the appointment must be affirmatively approved by a vote of the Senate. If questions are presented in which the Senate attempts to avoid its obligation by a claim (for example by means of a statute) that a lack of disapproval of the appointment will be deemed as approval, such action will violate the Appointments clause, and any statute to that effect should be deemed unconstitutional.

Wednesday, January 28, 2015

MBE Essentials: Removal

Tough to believe that the MBE is just a few weeks away. Below are two questions on removal from the chapter on Civil Procedure from my book MBE Essentials . Best of luck to all as you gear up for the exam!

When may a case be removed from state court to federal court?

There are times in which a case is brought in state court, and later there is an attempt to remove the case from state court and transfer the case to a federal court. Such will be allowed only if the case could have originally been filed in federal court, and for cases removed in which jurisdiction in a federal court is based on diversity, no defendant is a citizen of the state in which the action was filed (in state court). Jurisdiction in federal court is generally tested as of the date of removal, though some courts will only allow for jurisdiction in federal court if jurisdiction is proper on the date of removal, and was proper when the case was originally filed in state court. Only defendants can exercise the right to removal, and if there are multiple defendants, they all must join in the action for removal. After the case has been removed, venue lies in the federal court embracing the place in which the state action is pending.

What is the procedure for removing a case from state court to federal court?

A defendant seeking removal must file a notice of removal in the federal district court in the district and division within which the action is pending. A copy of the notice must then be sent to the other parties and to the state court. The notice of removal must be filed within 30 days after defendant receives notice that the case is removable. Plaintiff may then file a motion to have the case remanded to state court, and such will be granted if there is no proper basis for jurisdiction in federal court.

**MBE Essentials contains 434 questions and answers spanning all subject areas tested on the MBE. It is available on @

Or you can purchase and download it right here on the blog:
Buy Now

Wednesday, January 21, 2015

Requests for Jury Instructions

With Federal Civil Procedure now tested, there are two things you should know going into the MBE next month regarding jury instructions (instructions to the trial jury on the law that governs the verdict). The first relates to the rules concerning the request for jury instructions, and the second relates to the rules regarding objections to those request. Let's look at each aspect individually:

At the close of the evidence or at any earlier reasonable time that the court orders, a party may file and furnish to every other party written requests for the jury instructions it wants the court to give. Note the specifics here; namely that every other party must be furnished with the written requests. In addition, if the requests are not made at the close of evidence or prior, then after the close of the evidence, a party may file requests for instructions on issues that could not reasonably have been anticipated by an earlier time. Finally, with permission by the court, a party may file untimely requests for instructions on any issue.

The court itself has obligations in regards to jury instructions as well. The court must inform the parties of its proposed instructions and proposed action on the requests before instructing the jury and before final jury arguments. Further, it must give the parties an opportunity to object on the record and out of the jury's hearing before the instructions and arguments are delivered. The court may instruct the jury at any time before the jury is discharged.

If a party is to object to jury instructions, the party who objects to an instruction or the failure to give an instruction must do so on the record, stating distinctly the matter objected to and the grounds for the objection. The objection will be timely if made either when the court provides the opportunity to do so, or if the party was not provided the opportunity to object, if the party objects promptly after learning that a jury instruction has been given or refused.

Wednesday, January 14, 2015

MBE Fast Fact: Installment Contracts

Under the UCC the "Perfect Tender Rule" allows a buyer to reject goods if the goods do not conform to the specifications as agreed upon by the buyer and seller when entering into the contract. But the rules change when an installment contract (one which requires or authorizes the delivery of goods in separate lots to be separately accepted) is involved. As always, an exception to a general rule should be noted carefully, as it's likely to be tested.

It is more difficult for a buyer under an installment contract to reject a non-conforming tender of goods than it is for a buyer in a non-installment contract to do the same. Rejection of an installment in an installment contract is permissible only if the non-conformity substantially impairs the value of that particular installment and if the installment cannot be cured. In other words, if the seller gives adequate assurances of an intent to cure the non-conforming installment, then the buyer must accept the installment and await the cure.

A non-conformity of an installment can in fact render the entire contract breached, but only under a very limited set of circumstances. Specifically, whenever a non-conformity with respect to one or more installments substantially impairs the value of the whole contract (rather than merely an installment) there is a breach of the whole.

Wednesday, January 7, 2015

MBE Fast Fact: Equitable Conversion

In all questions concerning the sale of real property there are two important dates to keep in mind: The first is the date of the contract between buyer and seller, and the second is the date of closing when legal title is delivered from seller to buyer. But there will also be time between those two dates, and on the MBE many terrible things will occur during that time that will effect the analysis.

Specifically, the doctrine of equitable conversion supplies the rules for dealing with those events that occur between the contract and the date of closing. The doctrine holds that once the parties have entered into a contract, the buyer's interest in the contract is converted into real property, and the seller's interest is converted into personal property.

And that conversion greatly affects the analysis. For example, assume X is the seller, and Y is the buyer. X dies after the contract is entered into with Y but before the date when legal title was actually transferred to Y. Because legal title has not actually changed hands, it might be expected that X's heirs would receive the real property upon the death of X. But, rather, due to the doctrine of equitable conversion, by the time of seller's death, seller was no longer deemed to have held an interest in the real property. Instead, seller held an interest in the personal property, specifically the proceeds from the sale of the real property.

Seller's heirs may be entitled to those proceeds, but buyer will be entitled to the real property. And on that note, if buyer were to die during the period prior to closing, buyer's heirs would have the right to the real property.

Sunday, December 28, 2014

MBE Fast Fact: Abstention

In prior posts I've written about some limitations on the exercise of federal jurisdiction. Some examples of such limitations are a lack of standing, the rule against advisory opinions, and cases deemed moot or not yet ripe. Another limitation to keep in mind occurs when a federal court abstains from resolving a constitutional claim. For MBE purposes, keep in mind that a federal court will temporarily abstain from resolving a constitutional claim where the disposition rests on an unsettled question of state law.

Further, federal courts will not enjoin pending state criminal proceedings (and sometimes state civil proceedings) even if the federal court has jurisdiction over the case. A case is generally deemed to be pending the moment it is filed. Rather, the federal court will wait until after the state prosecution has ended to hear the case.

There is an important exception here, however, to keep in mind. A federal court will hear an action to enjoin a pending state court proceeding if is being conducted in bad faith (for example, a case moving forward in state court merely to harass the defendant).