Themis Bar Review Hangout - July 2015 Exam Forum

[zor]

Jesus. NY Practice shows up *that* much?!

Oh god. I'm screwed. I don't understand any of it.

I used to be a paralegal and I remember for every case we had, the associate had to sit down with the CPLR for like 10 different things to figure out the rules. NO ONE KNOWS THEM NOT EVEN REAL LAWYERS

[Confused7]

Do some NY multiple choice questions just not contain any NY specific law? For example, I just came across this one and couldn't figure out the NY distinction for the life of me. The answer explanation does not go into NY law at all but seems to describe only MBE law.

[+] Spoiler

Defendants owned shares in a cooperative apartment in Manhattan. They entered into a three-year sublease agreement with Plaintiff. The sublease included an option to purchase the apartment for $600,000, conditional upon approval of the cooperative board. Toward the end of the third year, Plaintiff notified Defendants that he was exercising his option. Thereafter, the parties executed a contract of sale, which included an anti-assignment provision, a standard merger clause, and a reiteration that the right to purchase was subject to approval by the cooperative board. After execution of the contract, the cooperative board rejected Plaintiff's application. Pursuant to the terms of the contract of sale, the denial automatically canceled the contract but entitled Plaintiff to remain in the apartment through the term of his original sublease. Plaintiff then attempted to present a second candidate for purchase of the apartment, claiming he had a right to assign his option to purchase the apartment pursuant to the sublease. Defendants countered that the option was no longer available after the board's refusal to approve the contract. Plaintiff commenced an action for specific performance.

How should the court rule?
A) For Plaintiff, because the option clause within the sublease agreement was freely assignable.
B) For Defendant, because the non-assignment clause within the contract of sale extended to the option to purchase.
C) For Plaintiff, because the option clause remained enforceable throughout the term of the sublease.
D) For Defendant, because after Plaintiff attempted to exercise the option contract, the sublease merged, and the terms were no longer enforceable.

The correct answer was D based on the parol evidence rule. Are there any distinctions to the PER that I'm missing?

[sd5289]

Jesus. NY Practice shows up *that* much?!

Oh god. I'm screwed. I don't understand any of it.

I used to be a paralegal and I remember for every case we had, the associate had to sit down with the CPLR for like 10 different things to figure out the rules. NO ONE KNOWS THEM NOT EVEN REAL LAWYERS

That's basically the entire bar exam to me. Because obviously the first thing I'd do in practice is just try to remember what the rule is, and if I couldn't remember it, I'd just guess.

[Confused7]

Do some NY multiple choice questions just not contain any NY specific law? For example, I just came across this one and couldn't figure out the NY distinction for the life of me. The answer explanation does not go into NY law at all but seems to describe only MBE law.

[+] Spoiler

Defendants owned shares in a cooperative apartment in Manhattan. They entered into a three-year sublease agreement with Plaintiff. The sublease included an option to purchase the apartment for $600,000, conditional upon approval of the cooperative board. Toward the end of the third year, Plaintiff notified Defendants that he was exercising his option. Thereafter, the parties executed a contract of sale, which included an anti-assignment provision, a standard merger clause, and a reiteration that the right to purchase was subject to approval by the cooperative board. After execution of the contract, the cooperative board rejected Plaintiff's application. Pursuant to the terms of the contract of sale, the denial automatically canceled the contract but entitled Plaintiff to remain in the apartment through the term of his original sublease. Plaintiff then attempted to present a second candidate for purchase of the apartment, claiming he had a right to assign his option to purchase the apartment pursuant to the sublease. Defendants countered that the option was no longer available after the board's refusal to approve the contract. Plaintiff commenced an action for specific performance.

How should the court rule?
A) For Plaintiff, because the option clause within the sublease agreement was freely assignable.
B) For Defendant, because the non-assignment clause within the contract of sale extended to the option to purchase.
C) For Plaintiff, because the option clause remained enforceable throughout the term of the sublease.
D) For Defendant, because after Plaintiff attempted to exercise the option contract, the sublease merged, and the terms were no longer enforceable.

The correct answer was D based on the parol evidence rule. Are there any distinctions to the PER that I'm missing?

Okay, sorry to bump, but I have another question on a different NY multiple choice question. They are driving me crazy!

[+] Spoiler

Buyer entered into a contract to purchase property from Seller. The contract required a down payment of 10 percent to be made by check, subject to collection. The balance of the purchase price was to be paid at closing. Buyer signed the contract and delivered it, together with her personal check in the amount of the required down payment. The next day, however, she stopped payment on the check. The day after that, Seller, without knowing that payment of the check had been stopped, signed the contract as Seller and mailed it back to Buyer's attorney. Seller thereafter sold the property at a higher price, but nevertheless commenced a lawsuit to recover the full amount of the down payment, claiming that Buyer breached the contract. Buyer claimed that the contract never took effect, and even if it had, Seller suffered no recoverable damages. How should a court rule?

A) For Buyer because payment on the check was a condition precedent that failed, and mere delivery of the check was insufficient.
B) For Buyer because payment on the check was stopped prior to Seller signing the contract and therefore constituted a revocation of offer prior to acceptance.
C) For Seller because in a real-property contract, delivery of the check by Buyer constitutes a valid down payment.
D) For Seller, with a limit of nominal damages absent a showing of actual harm.

The correct answer is C. Where the heck is this rule statement? I checked both the NY Contracts and Property outlines and couldn't find anything. For the record, I wrongly chose B.

[MZaf]

Do some NY multiple choice questions just not contain any NY specific law? For example, I just came across this one and couldn't figure out the NY distinction for the life of me. The answer explanation does not go into NY law at all but seems to describe only MBE law.

[+] Spoiler

Defendants owned shares in a cooperative apartment in Manhattan. They entered into a three-year sublease agreement with Plaintiff. The sublease included an option to purchase the apartment for $600,000, conditional upon approval of the cooperative board. Toward the end of the third year, Plaintiff notified Defendants that he was exercising his option. Thereafter, the parties executed a contract of sale, which included an anti-assignment provision, a standard merger clause, and a reiteration that the right to purchase was subject to approval by the cooperative board. After execution of the contract, the cooperative board rejected Plaintiff's application. Pursuant to the terms of the contract of sale, the denial automatically canceled the contract but entitled Plaintiff to remain in the apartment through the term of his original sublease. Plaintiff then attempted to present a second candidate for purchase of the apartment, claiming he had a right to assign his option to purchase the apartment pursuant to the sublease. Defendants countered that the option was no longer available after the board's refusal to approve the contract. Plaintiff commenced an action for specific performance.

How should the court rule?
A) For Plaintiff, because the option clause within the sublease agreement was freely assignable.
B) For Defendant, because the non-assignment clause within the contract of sale extended to the option to purchase.
C) For Plaintiff, because the option clause remained enforceable throughout the term of the sublease.
D) For Defendant, because after Plaintiff attempted to exercise the option contract, the sublease merged, and the terms were no longer enforceable.

The correct answer was D based on the parol evidence rule. Are there any distinctions to the PER that I'm missing?

Okay, sorry to bump, but I have another question on a different NY multiple choice question. They are driving me crazy!

[+] Spoiler

Buyer entered into a contract to purchase property from Seller. The contract required a down payment of 10 percent to be made by check, subject to collection. The balance of the purchase price was to be paid at closing. Buyer signed the contract and delivered it, together with her personal check in the amount of the required down payment. The next day, however, she stopped payment on the check. The day after that, Seller, without knowing that payment of the check had been stopped, signed the contract as Seller and mailed it back to Buyer's attorney. Seller thereafter sold the property at a higher price, but nevertheless commenced a lawsuit to recover the full amount of the down payment, claiming that Buyer breached the contract. Buyer claimed that the contract never took effect, and even if it had, Seller suffered no recoverable damages. How should a court rule?

A) For Buyer because payment on the check was a condition precedent that failed, and mere delivery of the check was insufficient.
B) For Buyer because payment on the check was stopped prior to Seller signing the contract and therefore constituted a revocation of offer prior to acceptance.
C) For Seller because in a real-property contract, delivery of the check by Buyer constitutes a valid down payment.
D) For Seller, with a limit of nominal damages absent a showing of actual harm.

The correct answer is C. Where the heck is this rule statement? I checked both the NY Contracts and Property outlines and couldn't find anything. For the record, I wrongly chose B.

the check being good was not a condition for the contract being enforceable; the signatures made the contract enforceable. The down payment is a liquidated damages clause- just because the check was canceled, doesn't mean the contract was not enforceable. The seller could have brought an action to demand specific performance. Since they sold the house already, that's not available. that means the seller could have brought a suit for damages resulting from the breach (i.e. if the house sold for less than the breached contract price)

the sections below are excerpts from the ny distinction real prop.... answer choice D is correct because although the seller would sue for the 10 percent, he would only get nominal damages since he sold the house for more than the original K (i.e. expenses of entering into another k)


New York Point of Law: Liquidated Damages

New York courts have permitted a non-breaching seller of real property to retain a 10 percent down payment as liquidated damages in the event a buyer refuses to go forward with a sale. See, e.g., Olcott Lakeside Dev., Inc. v. Krueger, 616 N.Y.S.2d 841 (App. Div. 1994).

also- ** 3. Remedies for Breach a. Damages

Both the buyer and the seller can recover damages based on the difference between the contract price and the market value on the date of performance. If the seller breached but acted in good faith, then damages are limited to the buyer’s out-of-pocket expenses.

A non-breaching seller may also collect liquidated money damages for costs relating to reselling the property, but courts likely will not enforce liquidated damage clauses if the seller suffered no loss (such as if the value of the property actually increased).

[sd5289]

For NY takers who have done the NY Partnerships practice essay:

[+] Spoiler

I won't replicate the entire fact pattern, but you have Bob and Ann who were married in NY. They execute a separation K. Ann moves to state Y, and Bob stays in NY. They live apart for one year, and Bob files for divorce. However, during that one year time period they apparently have sex once, but with no intent to reconcile. Ann contests the divorce on two grounds: a) lack of PJ, and b) violation of the separation K. The specific question was:

1. Will Bob be successful in his action for divorce?

Is it just me, or did the way this question was worded make you think that it was asking you whether the ground for divorce (a/k/a did Bob meet the two elements for a conversion divorce) had been satisfied as opposed to whether the NY court had jurisdiction? The model answer is all about jurisdiction, which yeah okay, I missed that thinking it was asking about Ann's second challenge about an alleged violation of the separation K, especially since it threw in the fact that they had sexual relations one time during the separation time period. But asking whether he'd be "successful" in the action sounds a hell of a lot like are there sufficient grounds for divorce based on these facts. The model answer didn't even touch that part. I've never completely missed what a question is asking for before, and I feel like the wording of this question threw me in the completely wrong direction!

[MZaf]

For NY takers who have done the NY Partnerships practice essay:

[+] Spoiler

I won't replicate the entire fact pattern, but you have Bob and Ann who were married in NY. They execute a separation K. Ann moves to state Y, and Bob stays in NY. They live apart for one year, and Bob files for divorce. However, during that one year time period they apparently have sex once, but with no intent to reconcile. Ann contests the divorce on two grounds: a) lack of PJ, and b) violation of the separation K. The specific question was:

1. Will Bob be successful in his action for divorce?

Is it just me, or did the way this question was worded make you think that it was asking you whether the ground for divorce (a/k/a did Bob meet the two elements for a conversion divorce) had been satisfied as opposed to whether the NY court had jurisdiction? The model answer is all about jurisdiction, which yeah okay, I missed that thinking it was asking about Ann's second challenge about an alleged violation of the separation K, especially since it threw in the fact that they had sexual relations one time during the separation time period. But asking whether he'd be "successful" in the action sounds a hell of a lot like are there sufficient grounds for divorce based on these facts. The model answer didn't even touch that part. I've never completely missed what a question is asking for before, and I feel like the wording of this question threw me in the completely wrong direction!

same thing happened with me, missed the whole issue of jurisdiction and for the conversion part i didn't even touch that because i said he can file a no-fault divorce if he wanted to since they were separated for 6 months; at least since their last bang session- if the court even considered that intent to continue martial relationship, otherwise it was a year, and they had a separation agreement. All he would have to do is testify it was broken down and then boom- divorce.

[sd5289]

For NY takers who have done the NY Partnerships practice essay:

[+] Spoiler

I won't replicate the entire fact pattern, but you have Bob and Ann who were married in NY. They execute a separation K. Ann moves to state Y, and Bob stays in NY. They live apart for one year, and Bob files for divorce. However, during that one year time period they apparently have sex once, but with no intent to reconcile. Ann contests the divorce on two grounds: a) lack of PJ, and b) violation of the separation K. The specific question was:

1. Will Bob be successful in his action for divorce?

Is it just me, or did the way this question was worded make you think that it was asking you whether the ground for divorce (a/k/a did Bob meet the two elements for a conversion divorce) had been satisfied as opposed to whether the NY court had jurisdiction? The model answer is all about jurisdiction, which yeah okay, I missed that thinking it was asking about Ann's second challenge about an alleged violation of the separation K, especially since it threw in the fact that they had sexual relations one time during the separation time period. But asking whether he'd be "successful" in the action sounds a hell of a lot like are there sufficient grounds for divorce based on these facts. The model answer didn't even touch that part. I've never completely missed what a question is asking for before, and I feel like the wording of this question threw me in the completely wrong direction!

same thing happened with me, missed the whole issue of jurisdiction and for the conversion part i didn't even touch that because i said he can file a no-fault divorce if he wanted to since they were separated for 6 months; at least since their last bang session- if the court even considered that intent to continue martial relationship, otherwise it was a year, and they had a separation agreement. All he would have to do is testify it was broken down and then boom- divorce.

Right, even that I can see (and didn't even think about lol). I'm glad I'm not the only one who did that. I'm thinking of emailing Themis with a WTF? This question does not sound like a "does the court have PJ over Ann" question AT. ALL.

[Confused7]

the check being good was not a condition for the contract being enforceable; the signatures made the contract enforceable. The down payment is a liquidated damages clause- just because the check was canceled, doesn't mean the contract was not enforceable. The seller could have brought an action to demand specific performance. Since they sold the house already, that's not available. that means the seller could have brought a suit for damages resulting from the breach (i.e. if the house sold for less than the breached contract price)

the sections below are excerpts from the ny distinction real prop.... answer choice D is correct because although the seller would sue for the 10 percent, he would only get nominal damages since he sold the house for more than the original K (i.e. expenses of entering into another k)


New York Point of Law: Liquidated Damages

New York courts have permitted a non-breaching seller of real property to retain a 10 percent down payment as liquidated damages in the event a buyer refuses to go forward with a sale. See, e.g., Olcott Lakeside Dev., Inc. v. Krueger, 616 N.Y.S.2d 841 (App. Div. 1994).

also- ** 3. Remedies for Breach a. Damages

Both the buyer and the seller can recover damages based on the difference between the contract price and the market value on the date of performance. If the seller breached but acted in good faith, then damages are limited to the buyer’s out-of-pocket expenses.

A non-breaching seller may also collect liquidated money damages for costs relating to reselling the property, but courts likely will not enforce liquidated damage clauses if the seller suffered no loss (such as if the value of the property actually increased).

Thanks MZaf. I'm assuming that you were answering my question about the second question I posted. However, in that answer explanation it said that the answer was C not D...

[annapach]

Can somebody please explain this Crim question from an MBE mixed set? Because I feel like it is wrong!

Question:

[+] Spoiler

A homeowner, angry at a neighbor with whom he had quarreled, surreptitiously removed a piece of stone statuary from the neighbor's garden and concealed it in his garage. He intended to return it a day or two later, after giving the neighbor a chance to feel bad over its being stolen. Suspecting who was guilty, the neighbor had the homeowner arrested and charged with larceny.

Select the case summary that would be most applicable as a precedent.

Answer Choices:

[+] Spoiler

A. Two sisters saw a wealthy neighbor's pedigreed dog on the street. They took the dog home, intending to conceal it until the owner offered a reward. Held, guilty of larceny.

B.Two young men saw a motor car on the street with the keys in the ignition lock. They drove the car to a neighboring town with the intention, they said, of visiting the wife of one of them. The car was wrecked on their way back. Conviction for larceny reversed.

C. The defendant, a tenant of a city apartment, advertised the apartment for sublease. A student agreed to sublease for three months, and on March 12 paid the defendant $550, the total agreed rental price. The student was to receive possession on March 20, but possession was never given him. Held, not guilty of common-law larceny.

D. From a stablekeeper, the defendant hired a horse to go to the town and back, saying he would be back at 8 p.m. He did not return. Investigation showed that the defendant had given a false address, and that he had sold the horse the same day. Conviction of larceny affirmed.

Answer explanation:

[+] Spoiler

Answer choice B is correct. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal. This fact pattern asks the test taker to apply case law to a specific set of facts. Here, in both the fact pattern and answer choice B, at the time of the taking, the defendants intended to return the property to the victim within a reasonable time. Thus, there was no intent to permanently deprive. Accordingly, the homeowner should not be convicted of larceny. Answer choices A and D are incorrect as in both cases there was intent to permanently deprive the owner of use of the property at the time of the taking. In answer choice A, the sisters intended to permanently deprive the neighbor of either the dog or the reward at the time that they took and hid the dog. In answer choice D, the fact that the defendant gave a false address and sold the horse the same day shows that he did not intend to return the horse after hiring it. Answer choice C is incorrect because there was no trespassory taking and carrying away of the property, because the defendant already had possession. In the fact pattern, there is trespassory taking and carrying away, but no intent to permanently deprive, so answer choice C is not analogous to the fact pattern.

My problem: how did answer choice A show that there was an intent to permanently deprive?

[zot1]

Can somebody please explain this Crim question from an MBE mixed set? Because I feel like it is wrong!

Question:

[+] Spoiler

A homeowner, angry at a neighbor with whom he had quarreled, surreptitiously removed a piece of stone statuary from the neighbor's garden and concealed it in his garage. He intended to return it a day or two later, after giving the neighbor a chance to feel bad over its being stolen. Suspecting who was guilty, the neighbor had the homeowner arrested and charged with larceny.

Select the case summary that would be most applicable as a precedent.

Answer Choices:

[+] Spoiler

A. Two sisters saw a wealthy neighbor's pedigreed dog on the street. They took the dog home, intending to conceal it until the owner offered a reward. Held, guilty of larceny.

B.Two young men saw a motor car on the street with the keys in the ignition lock. They drove the car to a neighboring town with the intention, they said, of visiting the wife of one of them. The car was wrecked on their way back. Conviction for larceny reversed.

C. The defendant, a tenant of a city apartment, advertised the apartment for sublease. A student agreed to sublease for three months, and on March 12 paid the defendant $550, the total agreed rental price. The student was to receive possession on March 20, but possession was never given him. Held, not guilty of common-law larceny.

D. From a stablekeeper, the defendant hired a horse to go to the town and back, saying he would be back at 8 p.m. He did not return. Investigation showed that the defendant had given a false address, and that he had sold the horse the same day. Conviction of larceny affirmed.

Answer explanation:

[+] Spoiler

Answer choice B is correct. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal. This fact pattern asks the test taker to apply case law to a specific set of facts. Here, in both the fact pattern and answer choice B, at the time of the taking, the defendants intended to return the property to the victim within a reasonable time. Thus, there was no intent to permanently deprive. Accordingly, the homeowner should not be convicted of larceny. Answer choices A and D are incorrect as in both cases there was intent to permanently deprive the owner of use of the property at the time of the taking. In answer choice A, the sisters intended to permanently deprive the neighbor of either the dog or the reward at the time that they took and hid the dog. In answer choice D, the fact that the defendant gave a false address and sold the horse the same day shows that he did not intend to return the horse after hiring it. Answer choice C is incorrect because there was no trespassory taking and carrying away of the property, because the defendant already had possession. In the fact pattern, there is trespassory taking and carrying away, but no intent to permanently deprive, so answer choice C is not analogous to the fact pattern.

My problem: how did answer choice A show that there was an intent to permanently deprive?

[+] Spoiler

I think the following line is persuasive. Since the sisters either wanted the dog or the reward, they intended to permanently deprive the dude of his property.

[hadisious]

Can somebody please explain this Crim question from an MBE mixed set? Because I feel like it is wrong!

Question:

[+] Spoiler

A homeowner, angry at a neighbor with whom he had quarreled, surreptitiously removed a piece of stone statuary from the neighbor's garden and concealed it in his garage. He intended to return it a day or two later, after giving the neighbor a chance to feel bad over its being stolen. Suspecting who was guilty, the neighbor had the homeowner arrested and charged with larceny.

Select the case summary that would be most applicable as a precedent.

Answer Choices:

[+] Spoiler

A. Two sisters saw a wealthy neighbor's pedigreed dog on the street. They took the dog home, intending to conceal it until the owner offered a reward. Held, guilty of larceny.

B.Two young men saw a motor car on the street with the keys in the ignition lock. They drove the car to a neighboring town with the intention, they said, of visiting the wife of one of them. The car was wrecked on their way back. Conviction for larceny reversed.

C. The defendant, a tenant of a city apartment, advertised the apartment for sublease. A student agreed to sublease for three months, and on March 12 paid the defendant $550, the total agreed rental price. The student was to receive possession on March 20, but possession was never given him. Held, not guilty of common-law larceny.

D. From a stablekeeper, the defendant hired a horse to go to the town and back, saying he would be back at 8 p.m. He did not return. Investigation showed that the defendant had given a false address, and that he had sold the horse the same day. Conviction of larceny affirmed.

Answer explanation:

[+] Spoiler

Answer choice B is correct. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal. This fact pattern asks the test taker to apply case law to a specific set of facts. Here, in both the fact pattern and answer choice B, at the time of the taking, the defendants intended to return the property to the victim within a reasonable time. Thus, there was no intent to permanently deprive. Accordingly, the homeowner should not be convicted of larceny. Answer choices A and D are incorrect as in both cases there was intent to permanently deprive the owner of use of the property at the time of the taking. In answer choice A, the sisters intended to permanently deprive the neighbor of either the dog or the reward at the time that they took and hid the dog. In answer choice D, the fact that the defendant gave a false address and sold the horse the same day shows that he did not intend to return the horse after hiring it. Answer choice C is incorrect because there was no trespassory taking and carrying away of the property, because the defendant already had possession. In the fact pattern, there is trespassory taking and carrying away, but no intent to permanently deprive, so answer choice C is not analogous to the fact pattern.

My problem: how did answer choice A show that there was an intent to permanently deprive?

My interpretation is that the intention to permanently deprive is grounded in the reward money. They intended to permanently deprive unless given money to change that. That said, it's not a particularly well written question.

[Confused7]

Can somebody please explain this Crim question from an MBE mixed set? Because I feel like it is wrong!

Question:

[+] Spoiler

A homeowner, angry at a neighbor with whom he had quarreled, surreptitiously removed a piece of stone statuary from the neighbor's garden and concealed it in his garage. He intended to return it a day or two later, after giving the neighbor a chance to feel bad over its being stolen. Suspecting who was guilty, the neighbor had the homeowner arrested and charged with larceny.

Select the case summary that would be most applicable as a precedent.

Answer Choices:

[+] Spoiler

A. Two sisters saw a wealthy neighbor's pedigreed dog on the street. They took the dog home, intending to conceal it until the owner offered a reward. Held, guilty of larceny.

B.Two young men saw a motor car on the street with the keys in the ignition lock. They drove the car to a neighboring town with the intention, they said, of visiting the wife of one of them. The car was wrecked on their way back. Conviction for larceny reversed.

C. The defendant, a tenant of a city apartment, advertised the apartment for sublease. A student agreed to sublease for three months, and on March 12 paid the defendant $550, the total agreed rental price. The student was to receive possession on March 20, but possession was never given him. Held, not guilty of common-law larceny.

D. From a stablekeeper, the defendant hired a horse to go to the town and back, saying he would be back at 8 p.m. He did not return. Investigation showed that the defendant had given a false address, and that he had sold the horse the same day. Conviction of larceny affirmed.

Answer explanation:

[+] Spoiler

Answer choice B is correct. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal. This fact pattern asks the test taker to apply case law to a specific set of facts. Here, in both the fact pattern and answer choice B, at the time of the taking, the defendants intended to return the property to the victim within a reasonable time. Thus, there was no intent to permanently deprive. Accordingly, the homeowner should not be convicted of larceny. Answer choices A and D are incorrect as in both cases there was intent to permanently deprive the owner of use of the property at the time of the taking. In answer choice A, the sisters intended to permanently deprive the neighbor of either the dog or the reward at the time that they took and hid the dog. In answer choice D, the fact that the defendant gave a false address and sold the horse the same day shows that he did not intend to return the horse after hiring it. Answer choice C is incorrect because there was no trespassory taking and carrying away of the property, because the defendant already had possession. In the fact pattern, there is trespassory taking and carrying away, but no intent to permanently deprive, so answer choice C is not analogous to the fact pattern.

My problem: how did answer choice A show that there was an intent to permanently deprive?

My reasoning is this:

[+] Spoiler

because there was no indication that the owner would ever even issue a reward, the sisters' act was a permanent deprivation of the owner's property. It would have been different if they knew the owner was going to issue a reward in X amount of time, but the facts don't indicate this.

[zot1]

Can somebody please explain this Crim question from an MBE mixed set? Because I feel like it is wrong!

Question:

[+] Spoiler

A homeowner, angry at a neighbor with whom he had quarreled, surreptitiously removed a piece of stone statuary from the neighbor's garden and concealed it in his garage. He intended to return it a day or two later, after giving the neighbor a chance to feel bad over its being stolen. Suspecting who was guilty, the neighbor had the homeowner arrested and charged with larceny.

Select the case summary that would be most applicable as a precedent.

Answer Choices:

[+] Spoiler

A. Two sisters saw a wealthy neighbor's pedigreed dog on the street. They took the dog home, intending to conceal it until the owner offered a reward. Held, guilty of larceny.

B.Two young men saw a motor car on the street with the keys in the ignition lock. They drove the car to a neighboring town with the intention, they said, of visiting the wife of one of them. The car was wrecked on their way back. Conviction for larceny reversed.

C. The defendant, a tenant of a city apartment, advertised the apartment for sublease. A student agreed to sublease for three months, and on March 12 paid the defendant $550, the total agreed rental price. The student was to receive possession on March 20, but possession was never given him. Held, not guilty of common-law larceny.

D. From a stablekeeper, the defendant hired a horse to go to the town and back, saying he would be back at 8 p.m. He did not return. Investigation showed that the defendant had given a false address, and that he had sold the horse the same day. Conviction of larceny affirmed.

Answer explanation:

[+] Spoiler

Answer choice B is correct. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal. This fact pattern asks the test taker to apply case law to a specific set of facts. Here, in both the fact pattern and answer choice B, at the time of the taking, the defendants intended to return the property to the victim within a reasonable time. Thus, there was no intent to permanently deprive. Accordingly, the homeowner should not be convicted of larceny. Answer choices A and D are incorrect as in both cases there was intent to permanently deprive the owner of use of the property at the time of the taking. In answer choice A, the sisters intended to permanently deprive the neighbor of either the dog or the reward at the time that they took and hid the dog. In answer choice D, the fact that the defendant gave a false address and sold the horse the same day shows that he did not intend to return the horse after hiring it. Answer choice C is incorrect because there was no trespassory taking and carrying away of the property, because the defendant already had possession. In the fact pattern, there is trespassory taking and carrying away, but no intent to permanently deprive, so answer choice C is not analogous to the fact pattern.

My problem: how did answer choice A show that there was an intent to permanently deprive?

My interpretation is that the intention to permanently deprive is grounded in the reward money. They intended to permanently deprive unless given money to change that. That said, it's not a particularly well written question.

Should be Themis's motto.

[annapach]

Can somebody please explain this Crim question from an MBE mixed set? Because I feel like it is wrong!

Question:

[+] Spoiler

A homeowner, angry at a neighbor with whom he had quarreled, surreptitiously removed a piece of stone statuary from the neighbor's garden and concealed it in his garage. He intended to return it a day or two later, after giving the neighbor a chance to feel bad over its being stolen. Suspecting who was guilty, the neighbor had the homeowner arrested and charged with larceny.

Select the case summary that would be most applicable as a precedent.

Answer Choices:

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A. Two sisters saw a wealthy neighbor's pedigreed dog on the street. They took the dog home, intending to conceal it until the owner offered a reward. Held, guilty of larceny.

B.Two young men saw a motor car on the street with the keys in the ignition lock. They drove the car to a neighboring town with the intention, they said, of visiting the wife of one of them. The car was wrecked on their way back. Conviction for larceny reversed.

C. The defendant, a tenant of a city apartment, advertised the apartment for sublease. A student agreed to sublease for three months, and on March 12 paid the defendant $550, the total agreed rental price. The student was to receive possession on March 20, but possession was never given him. Held, not guilty of common-law larceny.

D. From a stablekeeper, the defendant hired a horse to go to the town and back, saying he would be back at 8 p.m. He did not return. Investigation showed that the defendant had given a false address, and that he had sold the horse the same day. Conviction of larceny affirmed.

Answer explanation:

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Answer choice B is correct. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal. This fact pattern asks the test taker to apply case law to a specific set of facts. Here, in both the fact pattern and answer choice B, at the time of the taking, the defendants intended to return the property to the victim within a reasonable time. Thus, there was no intent to permanently deprive. Accordingly, the homeowner should not be convicted of larceny. Answer choices A and D are incorrect as in both cases there was intent to permanently deprive the owner of use of the property at the time of the taking. In answer choice A, the sisters intended to permanently deprive the neighbor of either the dog or the reward at the time that they took and hid the dog. In answer choice D, the fact that the defendant gave a false address and sold the horse the same day shows that he did not intend to return the horse after hiring it. Answer choice C is incorrect because there was no trespassory taking and carrying away of the property, because the defendant already had possession. In the fact pattern, there is trespassory taking and carrying away, but no intent to permanently deprive, so answer choice C is not analogous to the fact pattern.

My problem: how did answer choice A show that there was an intent to permanently deprive?

My interpretation is that the intention to permanently deprive is grounded in the reward money. They intended to permanently deprive unless given money to change that. That said, it's not a particularly well written question.

Should be Themis's motto.

^^^^^ yeah. My friend is doing Kaplan and he and I work on mixed sets together from both Themis and Kaplan. Kaplan has some poorly worded questions, but Themis has SO many more *very* poorly worded questions/extreme excess of red herrings

[Confused7]

UGH, this question...just why.

[+] Spoiler

A written contract was entered into between a financier-investor and a winery and grape-grower. The contract provided that the investor would invest $1,000,000 in the winery for its capital expansion and, in return, that the winery, from grapes grown in its famous vineyards, would produce and market at least 500,000 bottles of wine each year for five years under the label "Premium Vintage-Bouquet." The contract included provisions that the parties would share equally the profits and losses from the venture and that, if feasible, the wine would be distributed by the winery only through a particular wholesale distributor of fine wines. Neither the investor nor the winery had previously dealt with the distributor. The distributor learned of the contract two days later from reading a trade newspaper. In reliance thereon, he immediately hired an additional sales executive and contracted for enlargement of his wine storage and display facility.

If the winery refuses to distribute the wine through the distributor and the distributor then sues the winery for breach of contract, is it likely that the distributor will prevail?
A) Yes, because the winery's performance was to run to the distributor rather than to the investor.
B) Yes, because the investor and the winery could reasonably foresee that the distributor would change his position in reliance on the contract.
C) No, because the investor and the winery did not expressly agree that the distributor would have enforceable rights under their contract.
D) No, because the investor and the winery, having no apparent motive to benefit the distributor, appeared in making the contract to have been protecting or serving only their own interests.

The correct answer is D, and the answer explanation states that it's because the distributor was an incidental beneficiary. Why is this the case? Am I supposed to read into the provision that states the parties would be equally financially responsible an intent to minimize lose by naming the particular distributor? I read it as intending to benefit the distributor.

[GULCPerson]

Now well into the 2.X% daily suggested pace. Even though I'm not even following the directed study schedule anymore, it still freaks me out. Just a huge reminder of how much left there is to do and makes me feel awful for every second I spend not studying.

[adevine39]

I've noticed a minor but significant bump in my MBE PQ's since the mock exam this past Wednesday. Maybe my rage at the guy in the explanation videos was a little unfounded, because something is working.

[IamIn]

I've noticed a minor but significant bump in my MBE PQ's since the mock exam this past Wednesday. Maybe my rage at the guy in the explanation videos was a little unfounded, because something is working.

I experienced the same.. I think the lectures helped me because that guy made the whole thing sound so easy, so I'm not intimidated by the MBE anymore. Thus, a confidence boost led to better results. Hope it doesn't go away in two weeks

[anon sequitur]

I've seen some contrary statements, but my understanding is that except for the Civ Pro questions, and the ones marked as modified to reflect NCBE stylistic changes, that all of Themis' questions are all real MBE questions. Is this not the case? I believe they just license the questions from the NCBE, like how most companies do for the LSAT.

[zot1]

I've noticed a minor but significant bump in my MBE PQ's since the mock exam this past Wednesday. Maybe my rage at the guy in the explanation videos was a little unfounded, because something is working.

I experienced the same.. I think the lectures helped me because that guy made the whole thing sound so easy, so I'm not intimidated by the MBE anymore. Thus, a confidence boost led to better results. Hope it doesn't go away in two weeks

I've been going down since

[Tripl3Espresso]

UGH, this question...just why.

[+] Spoiler

A written contract was entered into between a financier-investor and a winery and grape-grower. The contract provided that the investor would invest $1,000,000 in the winery for its capital expansion and, in return, that the winery, from grapes grown in its famous vineyards, would produce and market at least 500,000 bottles of wine each year for five years under the label "Premium Vintage-Bouquet." The contract included provisions that the parties would share equally the profits and losses from the venture and that, if feasible, the wine would be distributed by the winery only through a particular wholesale distributor of fine wines. Neither the investor nor the winery had previously dealt with the distributor. The distributor learned of the contract two days later from reading a trade newspaper. In reliance thereon, he immediately hired an additional sales executive and contracted for enlargement of his wine storage and display facility.

If the winery refuses to distribute the wine through the distributor and the distributor then sues the winery for breach of contract, is it likely that the distributor will prevail?
A) Yes, because the winery's performance was to run to the distributor rather than to the investor.
B) Yes, because the investor and the winery could reasonably foresee that the distributor would change his position in reliance on the contract.
C) No, because the investor and the winery did not expressly agree that the distributor would have enforceable rights under their contract.
D) No, because the investor and the winery, having no apparent motive to benefit the distributor, appeared in making the contract to have been protecting or serving only their own interests.

The correct answer is D, and the answer explanation states that it's because the distributor was an incidental beneficiary. Why is this the case? Am I supposed to read into the provision that states the parties would be equally financially responsible an intent to minimize lose by naming the particular distributor? I read it as intending to benefit the distributor.

[+] Spoiler

I'm pretty sure it is because the distributor in this case hired his assistant and enlarged the facility solely on the basis from the trade newspaper. He is likely not an intended beneficiary because he was not specifically named, received any performance directly from the other two parties, and does not have a relationship showing an intent for this beneficiary to benefit from the contract. He just happens to be regular joe distributor and took a leap of faith based on the trade newspaper. Hope that made sense, brain is kind mush at this point.

[adevine39]

I've noticed a minor but significant bump in my MBE PQ's since the mock exam this past Wednesday. Maybe my rage at the guy in the explanation videos was a little unfounded, because something is working.

I experienced the same.. I think the lectures helped me because that guy made the whole thing sound so easy, so I'm not intimidated by the MBE anymore. Thus, a confidence boost led to better results. Hope it doesn't go away in two weeks

I've been going down since

Maybe study fatigue? How much have you been putting in every day? There was a point a couple weeks ago that I scored 44% and 48% on back to back PQ sets, so I took a day off and didn't even look at anything law related, then came back and my scores went to the low to mid sixties where they had been.

[zot1]

I've noticed a minor but significant bump in my MBE PQ's since the mock exam this past Wednesday. Maybe my rage at the guy in the explanation videos was a little unfounded, because something is working.

I experienced the same.. I think the lectures helped me because that guy made the whole thing sound so easy, so I'm not intimidated by the MBE anymore. Thus, a confidence boost led to better results. Hope it doesn't go away in two weeks

I've been going down since

Maybe study fatigue? How much have you been putting in every day? There was a point a couple weeks ago that I scored 44% and 48% on back to back PQ sets, so I took a day off and didn't even look at anything law related, then came back and my scores went to the low to mid sixties where they had been.

Yeah, I guess I should have mentioned that I've been feeling under the weather yesterday and today. I took most of the morning off, but I've forced myself to work all afternoon. I'm not sure I'd feel comfortable taking a whole day off this late in the game.

[adevine39]

I've noticed a minor but significant bump in my MBE PQ's since the mock exam this past Wednesday. Maybe my rage at the guy in the explanation videos was a little unfounded, because something is working.

I experienced the same.. I think the lectures helped me because that guy made the whole thing sound so easy, so I'm not intimidated by the MBE anymore. Thus, a confidence boost led to better results. Hope it doesn't go away in two weeks

I've been going down since

Maybe study fatigue? How much have you been putting in every day? There was a point a couple weeks ago that I scored 44% and 48% on back to back PQ sets, so I took a day off and didn't even look at anything law related, then came back and my scores went to the low to mid sixties where they had been.

Yeah, I guess I should have mentioned that I've been feeling under the weather yesterday and today. I took most of the morning off, but I've forced myself to work all afternoon. I'm not sure I'd feel comfortable taking a whole day off this late in the game.

That stinks, man. Someone I work with got sick and I have been avoiding them as much as possible because the last thing I want to do is get sick at this point. Feel better!