South Dakota Bar Exam — Questions and Answers

Question 1: In a contract for the sale of goods, which of the following is not a requirement for a contract to be enforceable under the UCC?

Offer and acceptance
Consideration
A written memorandum if the contract is for $500 or more
A specific price term (Correct answer)

Correct answer: A specific price term

Under the Uniform Commercial Code (UCC) for the sale of goods, a contract does not necessarily require a specific price term to be enforceable. The UCC allows for contracts where the price can be determined later or is a 'reasonable price' at the time of delivery if not otherwise agreed upon. Essential elements typically include offer, acceptance, consideration, and a written memorandum for contracts over $500 (Statute of Frauds).

Question 2: Under South Dakota constitutional law, what is the establishment clause protection?

The state shall make no law respecting an establishment of religion (Correct answer)
Religious institutions are exempt from all state laws
Only Christian denominations are protected
The clause applies only to public schools

Correct answer: The state shall make no law respecting an establishment of religion

South Dakota, consistent with the First Amendment, prohibits government establishment of or preference for religion.

Question 3: A testator executes a will leaving 'my farm to my sister.' After execution, the testator sells the farm. Under the doctrine of ademption by extinction, what happens to the bequest?

The sister receives the sale proceeds as a substitute gift
The sister receives a general bequest equal to the farm's value
The bequest is converted into a demonstrative legacy
The specific bequest fails because the subject matter no longer exists in the estate at death (Correct answer)

Correct answer: The specific bequest fails because the subject matter no longer exists in the estate at death

Under the identity theory of ademption, a specific bequest is adeemed (extinguished) when the specific property is no longer part of the estate at the testator's death.

Question 4: In a civil action, which hearsay exception covers a statement made for the purpose of medical diagnosis or treatment?

FRE 803(4) — statements for medical diagnosis or treatment (Correct answer)
FRE 803(1) — present sense impression
FRE 803(3) — then-existing mental or emotional condition
FRE 804(b)(2) — dying declaration

Correct answer: FRE 803(4) — statements for medical diagnosis or treatment

FRE 803(4) exempts from the hearsay rule statements made for purposes of medical diagnosis or treatment, including descriptions of symptoms and their cause.

Question 5: A South Dakota essay involves strict products liability. The plaintiff must prove the product was defective when it left the defendant's control. Which type of defect involves an error specific to one unit while the product line design is sound?

Warning defect
Manufacturing defect (Correct answer)
Design defect
Marketing defect

Correct answer: Manufacturing defect

A manufacturing defect occurs when a specific unit deviates from the intended design, making that individual product unreasonably dangerous.

Question 6: In a Multistate Essay question on contract formation, a buyer emails an offer to purchase goods at $500. The seller responds: 'We accept your offer but require payment in 30 days rather than 14.' Under the UCC, this response is best characterized as:

A rejection of the offer
A counteroffer that terminates the original offer
An acceptance with a conditional modification under § 2-207 (Correct answer)
A valid acceptance creating a contract on the buyer's terms

Correct answer: An acceptance with a conditional modification under § 2-207

Under UCC § 2-207, a definite expression of acceptance operates as acceptance even if it states additional or different terms, unless acceptance is expressly conditioned on assent to the new terms.

Question 7: A defendant pleads guilty to a felony and is sentenced to probation. He later learns the court failed to advise him that the plea would result in mandatory deportation. Under Padilla v. Kentucky, his trial counsel:

Had a duty to advise only if the defendant was a lawful permanent resident
Was constitutionally ineffective for failing to advise on clear deportation consequences (Correct answer)
Was ineffective only if the defendant specifically asked about immigration consequences
Had no duty to advise on collateral immigration consequences of a guilty plea

Correct answer: Was constitutionally ineffective for failing to advise on clear deportation consequences

Padilla v. Kentucky held that the Sixth Amendment requires defense counsel to advise non-citizen clients of the deportation consequences of a guilty plea when those consequences are clear.

Question 8: On an MEE Conflicts question, a South Dakota resident is injured in a car accident in Nebraska. The plaintiff sues in South Dakota. South Dakota follows the Second Restatement (most significant relationship) approach. The court will likely apply:

Federal common law because an interstate accident is involved
South Dakota law as the forum state's law
Nebraska law as the place of injury and conduct (Correct answer)
The law the parties would have chosen had they foreseen the dispute

Correct answer: Nebraska law as the place of injury and conduct

Under the Second Restatement's most significant relationship test for torts, the place of injury and conduct (Nebraska) typically provides the applicable law absent countervailing contacts.

Question 9: Under the South Dakota Constitution, which article guarantees the right to free speech?

Article VI, the Bill of Rights (Correct answer)
Article III
Article X
Article I

Correct answer: Article VI, the Bill of Rights

Article VI of the South Dakota Constitution contains the Bill of Rights, which includes free speech protections.

Question 10: The expectation damages measure in contract law is designed to put the non-breaching party:

In the position to receive a windfall above the contract value
In the position they would have been in had the contract been fully performed (Correct answer)
In the position to recover only out-of-pocket expenses
In the position they were in before the contract was formed

Correct answer: In the position they would have been in had the contract been fully performed

Expectation damages (benefit of the bargain) are designed to give the non-breaching party the economic equivalent of full contract performance.

Question 11: A defendant is charged with burglary. At common law, which element distinguishes burglary from trespass?

Unlawfully entering any structure
Remaining on property after being asked to leave
Damaging property during entry
Breaking and entering a dwelling at nighttime with intent to commit a felony therein (Correct answer)

Correct answer: Breaking and entering a dwelling at nighttime with intent to commit a felony therein

Common law burglary requires breaking and entering a dwelling house of another at nighttime with the intent to commit a felony inside.

Question 12: In South Dakota, what is the process for initiating a civil lawsuit?

Filing a complaint with the police
Sending a demand letter to the defendant
Filing a complaint with the circuit court and serving the defendant with a summons (Correct answer)
Publishing notice in a newspaper

Correct answer: Filing a complaint with the circuit court and serving the defendant with a summons

A civil lawsuit begins when the plaintiff files a complaint with the appropriate circuit court and properly serves the defendant with a summons and copy of the complaint.

Question 13: Which doctrine allows a court to enforce a promise even without consideration when one party reasonably relied on the promise to their detriment?

Novation
Accord and satisfaction
Promissory estoppel (Correct answer)
Quasi-contract

Correct answer: Promissory estoppel

Promissory estoppel (detrimental reliance) enforces a promise without consideration when the promisee reasonably and foreseeably relied on the promise to their detriment.

Question 14: A fee simple subject to executory limitation differs from a fee simple determinable because:

The triggering condition must involve illegal activity
The future interest is held by a third party, not the grantor, and does not automatically revert (Correct answer)
It can only be created by will, not deed
The grantor retains all future interests

Correct answer: The future interest is held by a third party, not the grantor, and does not automatically revert

In a fee simple subject to an executory limitation, the future interest (executory interest) is in a third party and cuts off the prior estate rather than reverting to the grantor.

Question 15: Under South Dakota rules, what is the standard for granting a motion for summary judgment?

No genuine issue of material fact exists and the movant is entitled to judgment as a matter of law (Correct answer)
Both parties consent
The judge believes one party is likely to win
The case has been pending more than 2 years

Correct answer: No genuine issue of material fact exists and the movant is entitled to judgment as a matter of law

Summary judgment is appropriate when the record demonstrates no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.

Question 16: Under the mirror image rule, which of the following best describes how an acceptance must be made?

The acceptance must match the terms of the offer exactly (Correct answer)
The acceptance is valid only if delivered within 24 hours
The acceptance must be in writing to be effective
The acceptance may vary minor terms without affecting contract formation

Correct answer: The acceptance must match the terms of the offer exactly

Under the common law mirror image rule, an acceptance must be unequivocal and conform exactly to the offer's terms; any variation constitutes a counteroffer.

Question 17: Under South Dakota ethical rules, what is an attorneys duty regarding client funds?

Trust accounts are optional
The attorney can use client funds temporarily if repaid
Client funds must be held in a separate trust account and never commingled with the attorneys personal funds (Correct answer)
Client funds can be deposited in any account

Correct answer: Client funds must be held in a separate trust account and never commingled with the attorneys personal funds

Attorneys must maintain client funds in a separate trust (IOLTA) account, completely segregated from their own funds, with detailed records of all transactions.

Question 18: Under South Dakota criminal procedure, what is a preliminary hearing?

A mini-trial before the actual trial
A hearing to determine whether probable cause exists to bind the defendant over for trial (Correct answer)
The sentencing hearing
The arraignment

Correct answer: A hearing to determine whether probable cause exists to bind the defendant over for trial

A preliminary hearing in South Dakota determines whether there is sufficient probable cause to believe a crime was committed and the defendant committed it, justifying trial.

Question 19: What is the statute of limitations for breach of contract in South Dakota?

2 years
6 years (Correct answer)
10 years
3 years

Correct answer: 6 years

South Dakota provides a 6-year statute of limitations for breach of written contract actions.

Question 20: What is the due process requirement for South Dakota administrative proceedings?

Jury trial for all administrative cases
Appellate review within 10 days
Notice and an opportunity to be heard before a neutral decision maker (Correct answer)
Public hearing with media access

Correct answer: Notice and an opportunity to be heard before a neutral decision maker

Due process in administrative proceedings requires that affected parties receive adequate notice and a meaningful opportunity to be heard before an impartial decision maker.

Question 21: Under contract law, an agreement to accept less than the full amount owed to settle an undisputed, liquidated debt is:

Enforceable as long as the agreement is in writing
Enforceable under the doctrine of promissory estoppel
Enforceable when the creditor signs a release
Unenforceable for lack of consideration (Correct answer)

Correct answer: Unenforceable for lack of consideration

An accord to accept less on an undisputed, liquidated debt lacks consideration because the debtor is giving less than already owed, making it generally unenforceable at common law.

Question 22: Under tort law, which standard applies to a possessor of land with respect to an adult trespasser whose presence is known?

The full reasonable person standard of care
No duty whatsoever
A duty to warn of known artificial conditions that pose a risk of death or serious bodily harm (Correct answer)
A duty to inspect for hidden dangers

Correct answer: A duty to warn of known artificial conditions that pose a risk of death or serious bodily harm

A possessor owes a known trespasser only the duty to warn of or make safe known artificial conditions involving risk of death or serious bodily harm.

Question 23: Under South Dakota real property law, a grantor conveys land 'to A for life, then to B and her heirs.' B dies before A. What happens to B's remainder interest?

It passes through B's estate to her heirs or devisees (Correct answer)
It accelerates and A takes in fee simple
It lapses and reverts to the grantor
It is extinguished by the doctrine of merger

Correct answer: It passes through B's estate to her heirs or devisees

A vested remainder in fee simple is descendible and devisable, so B's interest passes through her estate when she predeceases the life tenant.

Question 24: How are amendments to the South Dakota Constitution proposed?

Through legislative proposal requiring majority vote of both chambers, or citizen initiative petition (Correct answer)
Through federal authorization
Only through a constitutional convention
Only by the Governor

Correct answer: Through legislative proposal requiring majority vote of both chambers, or citizen initiative petition

South Dakota allows constitutional amendments through either legislative proposal or citizen initiative petition, with ratification by popular vote.

Question 25: In South Dakota, what rights does a defendant have under the Sixth Amendment at trial?

The right to choose the judge
Only the right to remain silent
Only the right to appeal
The right to a speedy and public trial, to confront witnesses, and to have assistance of counsel (Correct answer)

Correct answer: The right to a speedy and public trial, to confront witnesses, and to have assistance of counsel

The Sixth Amendment guarantees criminal defendants the right to a speedy and public trial, to confront accusers, to compulsory process for witnesses, and to assistance of counsel.

Question 26: What is the South Dakota law regarding the use of deadly force in self-defense?

Only justified inside ones home
Always justified in any threatening situation
Justifiable when the person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm (Correct answer)
Never justified under South Dakota law

Correct answer: Justifiable when the person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm

South Dakota allows deadly force in self-defense when a person reasonably believes it is necessary to prevent imminent death or great bodily harm to themselves or another.

Question 27: What is the South Dakota drug scheduling system?

South Dakota does not use a scheduling system
Only marijuana has a specific schedule
Controlled substances are classified into Schedules I through IV based on potential for abuse and accepted medical use (Correct answer)
All drugs are classified the same

Correct answer: Controlled substances are classified into Schedules I through IV based on potential for abuse and accepted medical use

South Dakota classifies controlled substances into schedules, with Schedule I having the highest abuse potential and no accepted medical use, down to Schedule IV.

Question 28: A plaintiff sues a manufacturer in strict products liability for injuries from a defective ladder. The manufacturer argues the plaintiff misused the ladder by exceeding its weight limit. In a comparative fault jurisdiction, this misuse:

May reduce plaintiff's recovery proportionate to plaintiff's fault (Correct answer)
Is irrelevant because strict liability does not consider plaintiff's conduct
Is a complete defense barring all recovery
Shifts all liability to the plaintiff as a superseding cause

Correct answer: May reduce plaintiff's recovery proportionate to plaintiff's fault

Most comparative fault jurisdictions apply comparative principles to strict products liability, reducing (but not necessarily eliminating) recovery based on plaintiff's percentage of fault.

Question 29: What is the process for enforcing a judgment in South Dakota?

Only criminal fines can be enforced
The prevailing party may use garnishment, execution on property, or other collection methods to satisfy the judgment (Correct answer)
Judgments are automatically paid by the state
The losing party must voluntarily comply

Correct answer: The prevailing party may use garnishment, execution on property, or other collection methods to satisfy the judgment

South Dakota provides several enforcement mechanisms for civil judgments including wage garnishment, bank levies, and execution on real and personal property.

Question 30: When a contract is silent on a material term, courts will generally:

Declare the contract void for indefiniteness
Enforce the contract only if the gap relates to price
Supply a reasonable term based on the parties' intent and trade usage (Correct answer)
Require the parties to renegotiate all terms

Correct answer: Supply a reasonable term based on the parties' intent and trade usage

Courts prefer to save contracts by implying reasonable gap-filling terms derived from the parties' intent, course of dealing, and trade usage rather than voiding them.

South Dakota Bar Exam

The South Dakota Bar Exam is a two-day examination testing legal knowledge through the MBE (200 multiple-choice questions), MEE (essay questions including an Indian Law question), and MPT (performance tasks), with a minimum passing scaled score of 266 out of 400.

Questions

35 min

Time Limit

67%

To Pass

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