Multistate Bar Flashcards

A contractor building a house deviates slightly from specifications, using a different but equivalent brand of pipe. The homeowner refuses to pay anything. Under the substantial performance doctrine, what may the contractor recover?

Answer: The contract price minus damages for the minor defect

A builder who substantially performs in good faith may recover the contract price less the cost of remedying minor deviations, as in Jacob & Youngs v. Kent.

A grand jury subpoenas a suspect's voice exemplar. The suspect refuses, claiming the Fifth Amendment privilege against self-incrimination. Must the suspect comply?

Answer: Yes, because voice exemplars are physical evidence, not testimonial communication

The Fifth Amendment protects only testimonial communications, not physical characteristics like voice, handwriting, or blood.

A driver negligently crashes into a utility pole, cutting power to a nearby restaurant, which loses a day's profits. The restaurant sues the driver for its lost profits. Under the majority rule, can the restaurant recover?

Answer: No, because purely economic loss without physical harm is generally not recoverable in negligence

The economic loss rule bars negligence recovery for pure economic harm unaccompanied by physical injury or property damage.

A deed is delivered to a grantee but never recorded. The grantor then sells the same land to a second buyer who pays value, knows nothing of the first deed, and records immediately. In a notice jurisdiction, who owns the land?

Answer: The second buyer, as a bona fide purchaser without notice

In a notice jurisdiction, a subsequent bona fide purchaser for value without notice of the prior unrecorded conveyance prevails.

In a civil trial, the plaintiff calls the defendant's former employee, who testifies favorably to the defendant, surprising the plaintiff. May the plaintiff impeach her own witness?

Answer: Yes, because any party may impeach any witness under the Federal Rules

FRE 607 abolished the voucher rule and permits any party, including the calling party, to impeach a witness.

A defendant sued in federal court files an answer without raising lack of personal jurisdiction. Two months later, he moves to dismiss for lack of personal jurisdiction. What is the result?

Answer: The motion is denied because the defense was waived by omission from the answer or a pre-answer motion

Under Rule 12(h)(1), lack of personal jurisdiction is waived if not raised in the first Rule 12 motion or responsive pleading.

A state grants a tax exemption only to religious organizations, excluding secular nonprofits with similar charitable functions. A secular charity sues. Under the Establishment Clause and Equal Protection analysis, what is the central question?

Answer: Whether the exemption impermissibly favors religion over non-religion without adequate justification

Government benefits reserved exclusively for religious entities raise the question of impermissible preference for religion over non-religion.