MBE Question Thread Forum

[TheWalrus]

For a joint tenancy with survivorship it must explicitly say it is a joint tenancy with a right of survivorship, right?

[lakers180]

For a joint tenancy with survivorship it must explicitly say it is a joint tenancy with a right of survivorship, right?

If you mean in the question, then no. A joint tenancy definitionally has a right of survivorship regardless of whether it is stated. If you mean in the conveyance, then yes there has to be clear intent to create joint tenancy w/ right of survivorship. They are disfavored so courts will default to tenancy in common.

[TheWalrus]

For a joint tenancy with survivorship it must explicitly say it is a joint tenancy with a right of survivorship, right?

If you mean in the question, then no. A joint tenancy definitionally has a right of survivorship regardless of whether it is stated. If you mean in the conveyance, then yes there has to be clear intent to create joint tenancy w/ right of survivorship. They are disfavored so courts will default to tenancy in common.

Oh, so the conveyance is the only time where it must say with right of survivorship? Thanks, that's really helpful.

[Yugihoe]

For a joint tenancy with survivorship it must explicitly say it is a joint tenancy with a right of survivorship, right?

If you mean in the question, then no. A joint tenancy definitionally has a right of survivorship regardless of whether it is stated. If you mean in the conveyance, then yes there has to be clear intent to create joint tenancy w/ right of survivorship. They are disfavored so courts will default to tenancy in common.

Oh, so the conveyance is the only time where it must say with right of survivorship? Thanks, that's really helpful.

All of that is true, but its not necessarily true. A court can still find the conveyance to be a JT instead of a TIC in some cases, even in the absensce of words about survivorship. You need to run the analysis thing about unity in time, conveyance, etc (I forgot what all 4 factors were)

[lakers180]

For a joint tenancy with survivorship it must explicitly say it is a joint tenancy with a right of survivorship, right?

If you mean in the question, then no. A joint tenancy definitionally has a right of survivorship regardless of whether it is stated. If you mean in the conveyance, then yes there has to be clear intent to create joint tenancy w/ right of survivorship. They are disfavored so courts will default to tenancy in common.

Oh, so the conveyance is the only time where it must say with right of survivorship? Thanks, that's really helpful.

All of that is true, but its not necessarily true. A court can still find the conveyance to be a JT instead of a TIC in some cases, even in the absensce of words about survivorship. You need to run the analysis thing about unity in time, conveyance, etc (I forgot what all 4 factors were)

Yeah it doesn't have to be those explicit words, like I said the question is whether there is intent to create a joint tenancy. (Time, title, interest, possession).

[champloo]

under an express satisfaction condition contract, if an artist paints a picture for P and P is honestly and genuinely not satisfied with it, can P still keep the picture? if P does keep the picture and P refuses to pay, can the artist sue for breach of that contract or does the artist have to bring a separate action (conversion?)?

No breach is clear. I think keeping the product opens P up to a later equitable claim, though, to the extent P got any benefit.

This is separate from a hypo where the artist must paint a wall mural and P doesn't like it, though. no chance of getting that back. The artist could sue but I can't even imagine the suit being successful (damages, for one)

Makes sense about the breach but later equitable claim.

About the wall mural hypo: would the artist have pay to erase (or erase it himself) the mural? My intuition says no.... but I get into a lot of trouble trusting my inuition

[uceoledinbdnrn]

under an express satisfaction condition contract, if an artist paints a picture for P and P is honestly and genuinely not satisfied with it, can P still keep the picture? if P does keep the picture and P refuses to pay, can the artist sue for breach of that contract or does the artist have to bring a separate action (conversion?)?

No breach is clear. I think keeping the product opens P up to a later equitable claim, though, to the extent P got any benefit.

This is separate from a hypo where the artist must paint a wall mural and P doesn't like it, though. no chance of getting that back. The artist could sue but I can't even imagine the suit being successful (damages, for one)

Makes sense about the breach but later equitable claim.

About the wall mural hypo: would the artist have pay to erase (or erase it himself) the mural? My intuition says no.... but I get into a lot of trouble trusting my inuition

Nah, not unless it's in the express terms of the contract or maybe if you can show that the artist didn't act in good faith (think the garage door mural in Silicon Valley) or can establish some other form of breach of contact (like maybe fraud: if the artist presented himself as a classically trained muralist but actually the extent of his training is crayon day in pre-school).

Basically the satisfaction clause gives the purchaser an affirmative defense against breach. It does not give him a cause of action for breach (unless, again, the contract expressly places the burden on the artist to undo his work if there's not satisfaction).

[liebs378]

Does adverse possession render title unmarketable?

[InterAlia1961]

Does adverse possession render title unmarketable?

Yes.

[Puffman1234]

Can anyone flesh out embezzlement vs. larceny in this hypo? Want to make sure I have this right.

Cash register takes money from a customer.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.
If she puts it in the cash register THEN takes it out later = larceny. She didn't have legal authority to remove it.

Neither one is embezzlement.

Why? Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property.

A cashier doesn't have lawful possession of money. It's just in their temporary control.

Hmm.. It would seem that lawful temporary control is the same thing as lawful possession. I think if the cashier took the money and immediately placed it in her pocket, it would be embezzlement.

I believe this is correct. The Themis lecturer's example for embezzlement was just like this--you go to bank, give bank teller a check to cash later, he keeps it, that's embezzlement. Voluntarily giving it to someone else generally means they now have lawful possession. However, I think that obtaining consensual possession doesn't count as lawful possession when it's fraudulently induced, like in larceny by trick. But then, for common law rape, fraudulently induced consent does count as consent (i.e. no rape).

[Yugihoe]

Can someone help me with this? Got an MBE con law question that was to the tune of:

A town passed an ordinance banning non-related persons from living together. A couple sued for wrongful eviction because they argued the ordinance violated their fundamental right to live together.

A wrong answer was that the ordinance did not meet the rational basis standard of review. The reason that this answer is wrong is because a violation of a fundamental right falls under strict scrutiny and not rational basis.

The right answer said that there is no fundamental right violated because that fundamental right only applies to relatives. My question is, what level scrutiny does the court apply then? It wouldn't be SS because there is no violation of fundamental rights, but it also isn't rational basis (which is what I thought it would be). Any ideas?

[bballbb02]

I know you can oust a cotenant but cannot adversely possess them, so when do we know that there has been an ouster v. adverse possession,,or is one of those things where it will pop out?

[Yugihoe]

I know you can oust a cotenant but cannot adversely possess them, so when do we know that there has been an ouster v. adverse possession,,or is one of those things where it will pop out?

Well you'll know because there will be a CT involved or not as one of the parties. The reason there is no adverse posession with a CT is because there is no notorious, open use of the land, since as the other CT, you have a right to be on the land.

[bballbb02]

I know you can oust a cotenant but cannot adversely possess them, so when do we know that there has been an ouster v. adverse possession,,or is one of those things where it will pop out?

Well you'll know because there will be a CT involved or not as one of the parties. The reason there is no adverse posession with a CT is because there is no notorious, open use of the land, since as the other CT, you have a right to be on the land.

you mean there's no hostility...because as a cotenant you have right to be on the land---

[ConfusedL1]

I know you can oust a cotenant but cannot adversely possess them, so when do we know that there has been an ouster v. adverse possession,,or is one of those things where it will pop out?

Well you'll know because there will be a CT involved or not as one of the parties. The reason there is no adverse posession with a CT is because there is no notorious, open use of the land, since as the other CT, you have a right to be on the land.

How does this work with ouster? Or is ouster only used when the co-tenant tries to take possession of the whole?

[Puffman1234]

Does adverse possession render title unmarketable?

Yes.

Does it (adverse possession) render title unmarketable when it's ongoing but not completed or just when it's completed?

[BulletTooth]

Can anyone flesh out embezzlement vs. larceny in this hypo? Want to make sure I have this right.

Cash register takes money from a customer.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.
If she puts it in the cash register THEN takes it out later = larceny. She didn't have legal authority to remove it.

Neither one is embezzlement.

Why? Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property.

A cashier doesn't have lawful possession of money. It's just in their temporary control.

Hmm.. It would seem that lawful temporary control is the same thing as lawful possession. I think if the cashier took the money and immediately placed it in her pocket, it would be embezzlement.

Yeah, I think taking the money from the customer and then putting it in her pocket would be embezzlement. I think the key is that the cashier is authorized to take the money from the customer, so the cashier is lawfully in possession of the money at that moment. When she decides to put it in her pocket, she is in lawful possession and then misappropriates the funds.

If she puts it in the register and then takes it out later, I think it's a closer call. The cashier isn't authorized to take cash out of the cashier for personal reasons--she could obviously take cash out for other reasons, such as to give change--but that wouldn't be the case. When she takes the money, there's a trespassory taking and carrying away with the intent to permanently deprive: a larceny. Thus, I think the key is that the cashier is technically in lawful possession at any point when she takes the money out of the register.

EDIT: fixed typo.

[ConfusedL1]

Can anyone flesh out embezzlement vs. larceny in this hypo? Want to make sure I have this right.

Cash register takes money from a customer.

If she puts it in her pocket directly = embezzlement. She had legal authority to take it but then converted it.
If she puts it in the cash register THEN takes it out later = larceny. She didn't have legal authority to remove it.

Neither one is embezzlement.

Why? Embezzlement is the fraudulent conversion of personal property of another by a person in lawful possession of that property.

A cashier doesn't have lawful possession of money. It's just in their temporary control.

Hmm.. It would seem that lawful temporary control is the same thing as lawful possession. I think if the cashier took the money and immediately placed it in her pocket, it would be embezzlement.

Yeah, I think taking the money from the customer and then putting it in her pocket would be embezzlement. I think the key is that the cashier is authorized to take the money from the customer, so the cashier is lawfully in possession of the money at that moment. When she decides to put it in her pocket, she is in lawful possession and then misappropriates the funds.

If she puts it in the register and then takes it out later, I think it's a closer call. The cashier isn't authorized to take cash out of the cashier for personal reasons--she could obviously take cash out for other reasons, such as to give change--but that wouldn't be the case. When she takes the money, there's a trespassory taking and carrying away with the intent to permanently deprive: a larceny. Thus, I think the key is that the cashier is technically in lawful possession at any point when she takes the money out of the register.

EDIT: fixed typo.

Thanks all. I feel vindicated.

[TheWalrus]

If someone is in jail, does that make them unavailable?

Also, does the business record affidavit still apply? I recall something vaguely from evidence saying that it was overturned but I don't recall and can't find it.

[InterAlia1961]

If someone is in jail, does that make them unavailable?

Nope. Unless, under 804, the prisoner cannot be transported or tele-linked.

[ConfusedL1]

If someone is in jail, does that make them unavailable?

I actually don't know. It definitely counts for depositions, but for this I think it's a reasonableness test. The best argument would be under 804:

(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

[dlrbfl]

Question about liquidated damages.

Themis outline says the three-prong test has to be met in order for the liquidated damages clause to be enforceable: (1) prior agreement, (2) amount of liquidated damages was reasonable at the time of contracting, and (3) actual damages would be uncertain in amount and difficult to prove.

It also says that "if the liquidated damages are disproportionate to the actual damages, then the clause will not be enforced, and recovery will be limited to the actual damages proven."

So the clause has to be reasonable at the time of contracting, but the court will also look at what the actual damages were and retrospectively invalidate the liquidated damages clause?

Thank you!

[uceoledinbdnrn]

Question about liquidated damages.

Themis outline says the three-prong test has to be met in order for the liquidated damages clause to be enforceable: (1) prior agreement, (2) amount of liquidated damages was reasonable at the time of contracting, and (3) actual damages would be uncertain in amount and difficult to prove.

It also says that "if the liquidated damages are disproportionate to the actual damages, then the clause will not be enforced, and recovery will be limited to the actual damages proven."

So the clause has to be reasonable at the time of contracting, but the court will also look at what the actual damages were and retrospectively invalidate the liquidated damages clause?

Thank you!

Basically yes, though the comparison isn't supposed to be dispositive.

In other words, if the liquidated damages are in the ballpark of the actual damages, that's really strong evidence that they were reasonable at the time of contracting. On the other hand, if the liquidated damages are completely out of whack then that's really strong evidence they weren't reasonable and were meant to be punitive.

Also, you have to remember the third element- these types of damages are supposed to be uncertain and/or difficult to prove. So (descriptively, I wouldn't write this on the bar) courts will set a range of reasonable damages and if the liquid damages are in that range or kind of close they'll use them instead of trying to guess what the exact damages are. They're trying to make sure people don't get screwed but they also don't want to pull an arbitrary number out of their judicial ass if the parties have provided them with one.

I think the rule that it has to reasonable at the time of the contracting exists to stop big players from writing in huge liquidated damages clauses into all their contracts and then using that as a starting point in litigation. But again, not really something I'd use on the bar- just think of the actual damages as a really good indicator of whether or not the liquidated damages were reasonable at the time of contracting.

[TheWalrus]

Can someone help me with this? Got an MBE con law question that was to the tune of:

A town passed an ordinance banning non-related persons from living together. A couple sued for wrongful eviction because they argued the ordinance violated their fundamental right to live together.

A wrong answer was that the ordinance did not meet the rational basis standard of review. The reason that this answer is wrong is because a violation of a fundamental right falls under strict scrutiny and not rational basis.

The right answer said that there is no fundamental right violated because that fundamental right only applies to relatives. My question is, what level scrutiny does the court apply then? It wouldn't be SS because there is no violation of fundamental rights, but it also isn't rational basis (which is what I thought it would be). Any ideas?

Late, but I think our Barbri guy said it would be Substantial basis.

[Yazzzay]

Hey, sorry if this one has been asked before but super confused- 85% of Adaptibar users and I got it wrong:

On January 1, 2005, a woman met with a plastic surgeon for a face lift consultation. The plastic surgeon described the procedure and the woman agreed to have the surgery on a date exactly one week later. On December 25, 2007, unhappy with the results, the woman filed a single-count complaint against the plastic surgeon in federal court. The complaint asserts that the plastic surgeon failed to obtain informed consent. Applicable state law provides a three-year statute of limitations for tort claims. Three weeks after serving the complaint, the woman's attorneys amended the complaint to add a negligence claim on the theory that the plastic surgeon was intoxicated while he performed her surgery.

Can the woman amend her complaint?

A. Yes, because the negligence claim relates back to the date of the original complaint, which was filed timely, and the woman can amend the complaint as a matter of right.
B. No, because the negligence claim does not relate back to the original complaint.
C. Yes, because the plastic surgeon knew or should have known that the woman would have brought a negligence claim against him, but for a mistake.
D. No, because the three-year statute of limitations for tort claims expired on January 1, 2008, and the woman did not file the negligence claim before that date.

Correct answer was B and NOT A. How is it not from the same transaction/occurence and able to relate back?