CO Bar Multistate Bar 2 — Questions and Answers
Question 1: A buyer and seller sign a written contract for the sale of a warehouse, but the buyer orally agrees at signing that the deal is contingent on the buyer obtaining a zoning variance. If the variance is denied and the seller sues, may the buyer introduce evidence of the oral condition?
- Yes, because evidence of a condition precedent to the contract's effectiveness is admissible despite the parol evidence rule (Correct answer)
- No, because the parol evidence rule bars all prior or contemporaneous oral agreements
- No, because real estate contracts must be entirely in writing under the Statute of Frauds
- Yes, but only if the written contract contains a merger clause
Correct answer: Yes, because evidence of a condition precedent to the contract's effectiveness is admissible despite the parol evidence rule
The parol evidence rule does not bar evidence showing the parties agreed the writing would not become effective until a condition occurred.
Question 2: A defendant is charged with burglary after entering a neighbor's garage at night to retrieve a lawnmower he honestly but unreasonably believed was his. Which element of burglary is negated by his belief?
- The intent to commit a felony inside the structure (Correct answer)
- The breaking element
- The entry element
- The nighttime element
Correct answer: The intent to commit a felony inside the structure
An honest belief that property is one's own, even if unreasonable, negates the specific intent to commit larceny required for burglary.
Question 3: A state law requires all trucks on state highways to use a specific mudflap design used in no other state, significantly burdening interstate trucking companies. The law's stated purpose is highway safety, but evidence of safety benefit is minimal. The law is most likely:
- Unconstitutional under the dormant Commerce Clause because the burden on interstate commerce clearly exceeds the local benefit (Correct answer)
- Constitutional because states have plenary power over their own highways
- Constitutional because safety regulations receive absolute deference
- Unconstitutional under the Privileges and Immunities Clause of Article IV
Correct answer: Unconstitutional under the dormant Commerce Clause because the burden on interstate commerce clearly exceeds the local benefit
Under Pike balancing, a nondiscriminatory state law violates the dormant Commerce Clause when its burden on interstate commerce is clearly excessive compared to putative local benefits.
Question 4: At trial, a witness testifies she cannot remember the license plate number she reported to police right after a hit-and-run. The prosecutor shows her the police report, but her memory is not refreshed. The report, which she signed, may be:
- Read into evidence as a recorded recollection but not received as an exhibit unless offered by the adverse party (Correct answer)
- Admitted as a business record and given to the jury
- Excluded entirely because the witness is available and testifying
- Admitted only as a prior inconsistent statement
Correct answer: Read into evidence as a recorded recollection but not received as an exhibit unless offered by the adverse party
A recorded recollection under FRE 803(5) may be read into evidence but received as an exhibit only if offered by the adverse party.
Question 5: A landowner conveys property 'to my daughter for life, then to my grandson if he graduates from law school.' The grandson is currently in college. What is the grandson's interest?
- A contingent remainder (Correct answer)
- A vested remainder subject to divestment
- An executory interest
- A vested remainder subject to open
Correct answer: A contingent remainder
The grandson's remainder is contingent because it is subject to a condition precedent—graduating from law school—that has not yet occurred.
Question 6: A pedestrian sues a driver for negligence in a jurisdiction applying pure comparative negligence. The jury finds the pedestrian 70% at fault and total damages of $100,000. How much may the pedestrian recover?
- $30,000 (Correct answer)
- Nothing, because the pedestrian was more than 50% at fault
- $70,000
- $100,000
Correct answer: $30,000
Under pure comparative negligence, a plaintiff recovers damages reduced by their percentage of fault regardless of how high that percentage is.
Question 7: A plaintiff files a federal diversity suit and the defendant answers without raising personal jurisdiction. Two months later, the defendant moves to dismiss for lack of personal jurisdiction. The motion should be:
- Denied, because the defense was waived by omission from the answer or a pre-answer motion (Correct answer)
- Granted, because personal jurisdiction can be raised at any time
- Granted, because two months is a reasonable time
- Denied, but only if the plaintiff shows prejudice
Correct answer: Denied, because the defense was waived by omission from the answer or a pre-answer motion
Under Rule 12(h)(1), the defense of lack of personal jurisdiction is waived if omitted from the answer or a pre-answer Rule 12 motion.
CO Bar Multistate Bar 2
A buyer and seller sign a written contract for the sale of a warehouse, but the buyer orally agrees at signing that the deal is contingent on the buyer obtaining a zoning variance.
If the variance is denied and the seller sues, may the buyer introduce evidence of the oral condition?