JD Advising Simulated MBE Quiz
1. An explosives manufacturer contracted with a fireworks company in a signed writing for the sale of 100 red, white, and blue-themed fireworks, 50 of them to be delivered on June 1 and the remaining 50 to be delivered on July 1. The agreement did not specify where the delivery would take place or when payment was due. On June 1, the explosives manufacturer delivered 49 fireworks and explained that one of the fireworks unexpectedly suffered water damage but that a replacement would be delivered within two days.
Which of the following states the rights and duties of the fireworks company?
(A) The fireworks company is entitled to accept any of the 49 fireworks, reject the rest, and cancel the contract for the remaining fireworks due on July 1.
(B) The fireworks company is entitled to accept any number of the 49 fireworks and reject the rest, but it may not cancel the contract as to any fireworks due on July 1.
(C) The fireworks company must accept the 49 fireworks, but it may cancel the rest of the contract for the remaining fireworks due on July 1.
(D) The fireworks company must accept the 49 sets and is not entitled to cancel the rest of the contract.
Check The Answer Here!
(D) is the correct answer. Under the UCC, the general rule for acceptance is the “perfect tender rule.” This rule states that the seller has to deliver perfect goods and if the goods fail to conform in any way the buyer can reject all of them, accept all of them, or accept however many commercial units he wants and reject the rest. However, there is a special rule for installment contracts that supplants the general rule. An installment contract is any contract that requires or authorizes delivery in separate lots to be separately accepted. Here, we have an installment contract whereby there are two installments of 50 fireworks each. Under UCC § 2-612, the buyer can only reject an installment when the non-conformity substantially impairs the value of that installment and if it cannot be cured. But, if non-conformity does not substantially impair the value of that installment and the seller gives adequate assurances of its cure “the buyer must accept that installment.” Here, delivery of 49 of the 50 fireworks does not substantially impair the value of the installment, and the seller gave assurances that he could cure the non-conformity by delivering the last firework promptly. Therefore, the buyer must accept the installment. Furthermore, under UCC § 2-612 “[w]henever non-conformity or default with respect to one or more installments substantially impairs the value of the whole contract there is a breach of the whole.” This breach may allow the buyer to cancel the entire contract under UCC § 2-711. However, in our facts, the buyer’s non-conformity of one firework did not substantially impair the entire contract in order to permit cancellation. Therefore, the buyer is also not permitted to cancel the contract, making (D) the correct answer.
(A) and (B) are both incorrect because the perfect tender rule does not apply to installment contracts.
(C) is incorrect because the buyer may not cancel the entire contract.
2. A man was taken to a police station for questioning after his girlfriend disappeared. The man was not given Miranda warnings. After a few minutes of questioning by a police officer, the man confessed to murdering his girlfriend and told the police officer that he threw the gun that he used to shoot his girlfriend in a swamp, which was located several miles from the city. After an intensive search of the swamp over a period of several weeks, the police found the gun. The man is charged with first-degree murder. The prosecutor plans to use the gun as evidence against the man at trial.
The man argues that the gun should be suppressed at trial. Will he prevail?
(A) Yes, because the man was not given Miranda warnings.
(B) Yes, because the interrogation violated the man’s due process rights.
(C) No, because the exclusionary rule will not serve to exclude the gun from evidence.
(D) No, pursuant to the “inevitable discovery” exception to the exclusionary rule.
Check The Answer Here!
(C) is the correct answer. In this case, the man was not given Miranda warnings despite the fact that he was in custody and being interrogated. This violated the man’s Fifth Amendment right against self-incrimination since, pursuant to the Fifth Amendment, the man should have received Miranda warnings as soon as the custodial interrogation began. However, (assuming that there is no Fourteenth Amendment Due Process Clause violation), a violation of the Fifth Amendment right against self-incrimination only suppresses statements made, not physical “fruits” of the statement. Thus, the man’s confession would not be admitted into evidence. However, the gun could be admitted into evidence.
The Sixth Amendment right to counsel is not violated because he was not yet formally charged with a crime; thus the Sixth Amendment right to counsel did not yet attach.
The Fourteenth Amendment Due Process Clause is not violated because there are no circumstances suggesting that the interrogation was involuntary. The fact pattern states that after only a few minutes of questioning, he told the police officer where the gun was. (Note: if the Fourteenth Amendment was violated, then neither the confession nor the gun would be admitted.)
(Remember the exclusionary rule applies when there is a Fourth Amendment violation. It does not apply to “physical fruits” when there is a Fifth Amendment violation. Here, there is no unlawful search and seizure; rather, the confession was obtained in an unlawful manner.)
(A) is incorrect because a violation of Miranda requires suppression of statements made in violation, but not physical fruits of those statements.
(B) is incorrect because it contradicts the facts. There is no due process violation because there is nothing showing that there was police coercion that overcame the suspect’s will. The man confessed after just a few minutes.
(D) is incorrect because the inevitable discovery rule is not needed in this case. Further, it contradicts the facts, which state, “[a]fter an intensive search of the swamp over a period of several weeks, the police found the gun.” The gun is likely not something they would have found otherwise!
Bar Exam Tip: What if I am always in between two answers?
You may have found yourself going back and forth between two or more answers when answering this question. Here are a few strategies to try if you find yourself doing that on the real MBE:
- Stop staring at the answers. Go back to the fact pattern and see if there are any key facts that help you accurately answer the question. This tip in and of itself has helped a lot of students choose the right answer! We are not used to going back to the fact pattern, but it can help immensely.
- Ask yourself, “What is the precise legal issue being tested?” If you can figure out the precise legal issue, you can identify the answer that best recognizes that legal issue.
- If two answers seem truly equally right, they may both be wrong! Keep this in mind if you really cannot choose between two!
3. A woman was walking across the street when she was struck by a vehicle traveling at a high rate of speed. As she was laying on the pavement dying, she told a bystander who was at her side, “I know I am dying. I want to tell you before I die that I saw my neighbor steal the Madonna painting from the museum.” The woman then died.
In a civil suit by the museum against the neighbor for conversion, is the woman’s statement to the bystander admissible?
(A) Yes, as an excited utterance.
(B) Yes, as a dying declaration.
(C) No, because it would violate the neighbor’s Sixth Amendment right of confrontation.
(D) No, it is inadmissible hearsay.
Check The Answer Here!
(D) is the correct answer. As is explained below, this does not fall into any hearsay exceptions or exclusions.
(A) is incorrect. An excited utterance is admissible if (i) there is a startling event, (ii) the declarant makes the statement while under the stress of the excitement, and (iii) the statement relates to the startling event. Here, even if this would presumably meet the requirements of (i) (that is, a startling event) and (ii) (that is, the declarant making the statement under the stress of the excitement), the statement does not relate to the startling event.
Bar Exam Tip: If you picked (A), you simply need to memorize the law better.
(B) is incorrect. A dying declaration is admissible if (i) the declarant is unavailable (here she is because she died), (ii) it is a civil or homicide case (here it is a civil suit by the museum), (iii) the declarant made the statement while believing she would die (here, she did), and (iv) the statement relates to the cause or circumstances of death. The fourth element is missing here. This statement has nothing to do with the cause or circumstances of death.
Bar Exam Tip: If you picked (B), you need to slow down while you read these questions and memorize the law better.
(C) is incorrect. The Sixth Amendment right to confront witnesses is only applicable in a criminal case. The facts here tell us that this is a civil case.
Bar Exam Tip: If you picked (C), make sure you did not pick it just because it “sounded good.” You may need to both slow down while you analyze the answers and/or make sure you review the Sixth Amendment!
