MBE Practice Test 4

Question 1

At a no-reserve auction, the auctioneer put up a painting that was unsigned and apparently quite old.
A woman made the highest bid, which was $100, and the auctioneer slammed the gavel down, completing the transaction.
Before the day's auction ended, an art historian told the auctioneer in private during a break that the piece was an original by Claude Monet, worth about $1 million.
The auctioneer quickly told the successful bidder that the amount was rejected by the seller and that the piece would be withdrawn from the sale that day.
The woman sued the auctioneer, claiming that there was a binding contract and requesting specific performance.
Based strictly on the rules of offer and acceptance, is the auctioneer in danger of losing the painting to the successful bidder and, if so, why?

Accepted Answer

Yes, in a no-reserve auction there is a binding contract based on the highest amount offered by the winning bidder.

Answer

No, the auctioneer can always reject an offer made by a bidder at a public auction sale.

Answer

No, the auctioneer is the offeree at a no-reserve auction and, as such, the offeree has the absolute power to reject the offer if it is not accepted by the owner.

Answer

Yes, in a no-reserve auction there is a binding contract as soon as the bidding starts, with each bid being a new binding contract.

Question 2

A large man with menacing tattoos all over his face and bald head followed closely behind a businessman who was lost in a long dark alley. The large man followed the businessman for several blocks of unending, unlit alleys. The businessman was in great fear. The large man was just a few feet behind, singing songs about how he was going to have a "big meal tonight" and it looked like he "had struck it rich," and other words indicating possible violence and robbery. Finally, the businessman threw his wallet in one direction and ran the other way, as he yelled, "You can have my money, just leave me my life!" The large man picked up the wallet and ran in the opposite direction, but when he came to the end of the alley he was arrested and charged with robbery. He appealed his conviction, arguing that he had no intent to steal and was trying to return the wallet to the victim. Will the appellate court likely affirm the robbery conviction?

Accepted Answer

Yes, because the large man followed too closely for too long, he sang menacing songs that placed the businessman in fear, and then he took the wallet and ran in the other direction.

Answer

No, the large man's songs could have been coincidental or unthinking, he made no threats, and later could have been trying to return the wallet.

Answer

Yes, because one should never pick up someone else's wallet laying on the ground for any reason.

Answer

No, because the wallet was not in the immediate presence of the victim when the large man picked it up.

Question 3

After a party where the adults all drank alcohol, with everyone having at least six beers, they started up a game of baseball. The host supplied the bats, balls and gloves. An argument arose at home plate after a controversial call by the umpire, who was inebriated like all of the other participants. The host of the party became enraged at the umpire's decision and hit him in the face, breaking his nose. The umpire pressed charges when he became sober, and the authorities charged the host with criminal battery. At trial, the defense raised the defense of voluntary intoxication, arguing that the host lacked the mentality to form an intent to commit a criminal battery. Will the defense of voluntary intoxication be successful under these facts?

Accepted Answer

No, criminal battery in this case is a general intent crime and the defense of voluntary intoxication is not available.

Answer

Yes, criminal battery is a specific intent crime to which voluntary intoxication may be asserted as a defense.

Answer

Yes, voluntary intoxication is always at least a partial defense to any crime that requires mens rea.

Answer

No, the host was grossly negligent in allowing a group of drunk men to play a dangerous game of hardball, which precluded him from the benefit of the defense.

Question 4

A campaign worker for a City Council candidate distributed a flier saying that the candidate was offering transportation to the polls on election day. The flier stated that recipients should come to a nearby storefront on election day, where there would be free food and drink, and other “prizes” for those who voted. Two police undercover agents went to the party, where they agreed to be taken to vote in return for $50 each. The campaign worker drove the men to their alleged poll location, where the agents arrested him on charges of conspiracy to violate the election bribery laws. The defense filed a motion to dismiss on the basis that it was legally impossible to commit the crime because the agents were not registered to vote in that district and they never intended to allow a crime to be permitted. Is the trial court likely to grant the motion to dismiss?

Accepted Answer

No, because the basis of the conspiracy charge is the agreement to commit the act, along with an affirmative step in that direction.

Answer

Yes, because legal impossibility is a defense to the crime of conspiracy.

Answer

Yes, because he could not be guilty of conspiring with two law enforcement agents who never intended to commit the crime.

Answer

No, because when the worker drove the agents to the voting place, he committed the complete crime of bribery and the conspiracy was an element contained within it.

Question 5

A man entered a half-opened window to a neighbor's trailer and waited in the dark bedroom inside. After a while, he got in bed and had sexual relations with the woman while she slept. At trial, he claimed that he believed that the woman had consented because he had dated her many times and had consensual sexual relations with her many times in the past. He hadn’t seen her in about one week but assumed her consent. He denied specific intent to rape and claimed a desire to surprise her with a “romantic” variation of their usual activities. The woman admitted to prior consensual relations but denied consent on this occasion. Has he stated a viable defense to rape?

Accepted Answer

No, his belief that she consented in advance was unreasonable and impermissible.

Answer

Yes, rape is a specific intent crime and there’s no evidence that he intended a criminal result.

Answer

Yes, his belief that she consented was reasonable based on prior experience.

Answer

No, rape of an unconscious woman is a strict liability crime that does not permit a defense.

Question 6

A man was arrested under a criminal statute that prohibited public intoxication. A magistrate fined him $100 and sentenced him to a weekend in jail. On appeal, he had a de novo trial before a county trial court. He presented medical testimony diagnosing the disease of alcoholism, which was marked by a nearly uncontrollable urge to drink. The defense claimed that a person could not be convicted for suffering from a disease process. The state simply argued that the man had no defense to what he did. The U.S. Supreme Court accepted the man's appeal after his conviction. Will the Court likely reverse the conviction?

Accepted Answer

No, because he was convicted not for being a chronic alcoholic but for the actions of being in public while drunk.

Answer

Yes, because it is unconstitutional to punish someone for the status of being an alcoholic or a drug addict.

Answer

Yes, because when a person acts under a compulsion that is part of a medical disease, this negates criminal intent.

Answer

No, because the man was sane and knew the difference between right and wrong when he was sober.

Question 7

A federal statute governing food stamp fraud makes it a crime to knowingly acquire or possess food coupons in a manner not authorized by the statute or the regulations. A grocery store owner purchased discounted food stamps from an undercover agent, and was arrested for violating the statute. At trial, the store owner claimed that the government must prove that he had the specific intent to commit a crime. The government contended it only had to show that he knowingly acquired food stamps, and that this was not a specific intent crime. The trial judge adopted the government's interpretation, and the store owner was convicted. His appeal made it all the way to the U.S. Supreme Court. Will the Court likely reverse or affirm the conviction and why?

Accepted Answer

Conviction reversed, because the better interpretation is that mens rea is included, and the owner must know his conduct is in violation of the criminal laws.

Answer

Conviction reversed, because a store owner is exempt from the statute, which applies only to consumers who use food stamps illegally.

Answer

Conviction affirmed, because the meaning of knowingly does not connote that there must be specific knowledge by the actor that what he is doing is illegal.

Answer

Conviction affirmed, because the modern trend of the law is to recognize criminal liability without mens rea or specific criminal intent.

Question 8

A man wants to sell his bungalow for $10,000. His neighbor wants to buy it so he can make his yard bigger and use the structure as a storage space, so he agrees to buy the bungalow in a written agreement. The sale is to be complete on October 14. On October 10, the neighbor realizes he cannot pay $10,000, and offers to pay $8,000 instead. The man agrees, and the exchange takes place on October 14. The man then sues for the remaining $2000. Would he likely prevail in getting the additional $2,000 that is part of the signed contract?

Accepted Answer

Yes, there was a lack of additional consideration under the pre-existing duty rule so that the modification was invalid and the original price was still valid.

Answer

No, the modification of the sales price was accepted and therefore both parties are bound to the $8000 price.

Answer

No the original contract was a unilateral contract that could not be modified and had to be performed at the original price

Answer

No, there was full performance of the contract.

Question 9

An owner of a solar heated residence filed a lawsuit that tried to enjoin her neighbor from building a house that would totally interfere with her access to daily sunlight. The neighbor's plan conformed to all local building ordinances and land use regulations. The owner had been in the house for 10 years and the neighbor recently bought the adjoining lot. The owner showed that a different placement of the house would not interfere with her use and enjoyment of her residence. The trial judge ruled in favor of the defendant on the basis that the defendant had a right to build his house anywhere as long as he followed the building/zoning laws. The owner appealed. Will the appellate court likely reverse the trial court's decision?

Accepted Answer

Yes, because the proposed use is a private nuisance that unreasonably interferes with the owner's use and enjoyment of her property.

Answer

Yes, because blocking a neighbor's sunlight is a constitutional deprivation of substantive due process.

Answer

No, because the trial court was correct in ruling that there had to be some violation of building regulations before the construction could be enjoined.

Answer

No, because a comparative evaluation of the benefits and detriments of each position favor the neighbor's position.

Question 10

A businessman was the owner of an idyllic lake and wooded area. In 1980, the businessman conveyed the land to the state “on the condition that” it be used as recreational property only. Two years later, the state decided that they wanted a small industrial park attached to the corner of the land. The state went ahead and developed a small portion of the land as industrial space, making it part of a larger industrial park that was adjacent to the land. The businessman notified the state that he was the owner of the property because the state violated the conditions of the conveyance, and that he was taking possession of the property back. What was the interest that was created by the conveyance and can the businessman get the property back?

Accepted Answer

The interest created is a fee simple subject to a condition subsequent, and the original owner can get the property back only by taking affirmative steps to exercise his right of entry.

Answer

The interest created is a reverter, and the property instantly reverts back to the grantor upon the occurrence of the specified violation.

Answer

The interest is a fee simple subject to an executory limitation, and if the condition occurs the property reverts in fee simple to a pre-designated third party.

Answer

The interest created is an indefeasible estate, and the owner cannot do anything to enforce a condition that is against public policy and never enforceable in the first place.