Themis Bar Review Hangout - July 2017 Forum

[Puffman1234]

This is probably a dumb question, but do you guys understand the word "creditor" to mean any person/entity to whom the "debtor" owes money, even if the so-called creditor never gave anything of value to the so-called debtor?

I've noticed in the Corporations outline references to a successful tort claimant as a "creditor." I've now learned that someone who gets a judgment against another is often called a "judgment creditor" even where the claim had nothing to do with debt or credit.

So is a creditor just anyone who has a claim for money against you?

[star fox]

This is probably a dumb question, but do you guys understand the word "creditor" to mean any person/entity to whom the "debtor" owes money, even if the so-called creditor never gave anything of value to the so-called debtor?

I've noticed in the Corporations outline references to a successful tort claimant as a "creditor." I've now learned that someone who gets a judgment against another is often called a "judgment creditor" even where the claim had nothing to do with debt or credit.

So is a creditor just anyone who has a claim for money against you?

Yeah that's just what creditor means

[2014applicant]

Regarding question 138 on the MBE practice exam...

[+] Spoiler

Police arrest a guy and put him in the police car. After the arrest, they seize cocaine in a closed bag in the back seat. The correct answer states that this is invalid because the defendant was in the police car at the time of the search.

However, even if he were still in the car when the cocaine was seized, wouldn't the seizure still be invalid because the cocaine wasn't within defendant's reach? I thought that, absent probable cause, the police can only search the passenger compartment while the suspect is still in the car. That's what Karlan made it seem like in her lecture at least.

[Puffman1234]

Regarding question 138 on the MBE practice exam...

[+] Spoiler

Police arrest a guy and put him in the police car. After the arrest, they seize cocaine in a closed bag in the back seat. The correct answer states that this is invalid because the defendant was in the police car at the time of the search.

However, even if he were still in the car when the cocaine was seized, wouldn't the seizure still be invalid because the cocaine wasn't within defendant's reach? I thought that, absent probable cause, the police can only search the passenger compartment while the suspect is still in the car. That's what Karlan made it seem like in her lecture at least.

Passenger compartment means the entire inside of the car in SCOTUS opinions.

Also, my take is that for purposes of the bar, I would assume that "within reach" is very, very liberal. There are debates about like, can police smash open a padlocked box within reach incident to arrest where courts split, because in a literal sense the arrestee probably can't get the padlock open and destroy evidence or get a weapon in any reasonable amount of time that would justify the search. And anyways most of the time arestees are in handcuffs with their hands behind their backs when the cops are searching shit within their "reach" so in real life 99% of the time the rationale doesn't make much sense. Just assume that "within reach" covers pretty much anything that they can "lunge" at unless the facts in the question really strongly stress that there's no way the arrestee could get at the bag or box or whatever it is.

[robin600]

[quote="2014applicant"]Regarding question 138 on the MBE practice exam...

Dude was arrested not for cocaine right? There's why.

[jennifer_42]

Regarding question 138 on the MBE practice exam...

Dude was arrested not for cocaine right? There's why.

The Simulated MBE Analysis seems kind of useless to me. Does anyone have an argument as for why I should watch it when the explanations in the answers seem perfectly adequate?

[whats an updog]

Regarding question 138 on the MBE practice exam...

Dude was arrested not for cocaine right? There's why.

The Simulated MBE Analysis seems kind of useless to me. Does anyone have an argument as for why I should watch it when the explanations in the answers seem perfectly adequate?

I don't think there is much point if you're actually going to read through the answers. The guy has some insight sometimes, but the time sink outweighs whatever minimal usefulness it provides. If they had timestamps for every answer it would be much more useful.

Some of the MBE exam questions and written answers are horrible though, for example:

[+] Spoiler

A farmer was diagnosed by his doctor with a terminal illness. Upon arriving home immediately after having received the news, the farmer wrote the following, “I, farmer, now transfer my farm, Blackacre, to my son.” The farmer, who owned Blackacre in fee simple absolute, then signed and dated the document. The farmer neither discussed the document nor its contents with anyone else, but simply placed it with his personal papers. Soon thereafter, the farmer died. Among the farmer’s personal papers, in addition to the document, was a will. The farmer had executed the will in compliance with the required formalities 10 years prior to his death. Under the terms of the will, the farm was devised to the farmer’s daughter. The daughter and son were the farmer’s only heirs. After learning of the document and the will, the son and daughter each claimed ownership of Blackacre outright. In an appropriate action to determine ownership of the farm filed by the personal representative of the farmer’s estate after admission of the will to probate, who is entitled to ownership of the farm?

Answer Choices:
A. The daughter, because the unwitnessed document is not a valid deed and therefore the farm passed to her by the terms of the will.
B. The daughter, because the document, which was neither delivered to nor accepted by the son prior to the farmer’s death, was not a valid deed and therefore the farm passed to her by the terms of the will.
C. The son, because the document was a deed that took effect during the farmer’s lifetime.
D. The son, because the document was executed after the will and therefore superseded the will.

Correct:
Correct Answer:
The daughter, because the document, which was neither delivered to nor accepted by the son prior to the farmer’s death, was not a valid deed and therefore the farm passed to her by the terms of the will.

Rationale:
Answer choice B is correct. The document, although valid as a deed, did not operate to transfer the farm to the son because there was no delivery. By keeping the deed in his possession until his death, the farmer retained the right to revoke it. Answer choice A is incorrect because, unlike a will, a deed need not be witnessed in order to be valid. Answer choice C is incorrect because, as noted with regard to answer choice B, the document did not operate as a deed to transfer title to the farm to the son because of the lack of delivery. Answer choice D is incorrect because the fact that the deed was executed after the will does not give it priority over the will. In addition, as noted with regard to answer choice B, mere execution of a deed is not sufficient to transfer title; delivery and acceptance are also required.

[star fox]

Regarding question 138 on the MBE practice exam...

Dude was arrested not for cocaine right? There's why.

The Simulated MBE Analysis seems kind of useless to me. Does anyone have an argument as for why I should watch it when the explanations in the answers seem perfectly adequate?

I'm watching and reading along at the same time. It's not really useful but I think it's there for people who are more audio learners.

[helpappreciated]

What's the difference between offering a document up as an exhibit versus reading it into evidence? This relates to hearsay exception FRE 803(5).

[bmmccb223]

What's the difference between offering a document up as an exhibit versus reading it into evidence? This relates to hearsay exception FRE 803(5).

The jury cannot review a document that is merely read into evidence. They can, however, review an exhibit during deliberations.

[jennifer_42]

Some of the MBE exam questions and written answers are horrible though

Yep. Here's another example. I hope I'm doing the spoiler thing correctly.

[+] Spoiler

A recluse successfully pursued a libel action in federal district court against a newspaper publisher. Fifteen months after the entry of the judgment, the publisher discovered evidence that clearly established the truthfulness of the statements that the publisher had made about the recluse. This evidence, although it existed at the time of the trial, could not have been discovered earlier despite reasonable diligence by both parties. Promptly upon learning of this evidence, the publisher filed a motion for relief from the judgment with the court.

Should the court grant the publisher’s motion?
AYes, because the publisher filed the motion promptly upon learning of the evidence.
BYes, because the evidence would have altered the result of the action.
CNo, because the motion was not timely.
DNo, because the evidence existed at the time of the trial.

The answer you selected is not the best choice in this situation.

Answer choice C is correct. A motion for relief from a judgment under Rule 60(b) that is based on newly discovered evidence must be filed within a reasonable time and no later than one year from the entry of the judgment. Because the publisher did not file this motion until 15 months after the judgment had been entered, the motion is therefore not timely. Answer choice A is incorrect. Although the publisher did act promptly upon discovering the evidence, a motion for relief from a judgment sought on the basis of newly discovered evidence must be filed no later than one year from the entry of the judgment. Answer choice B is incorrect. While truth is a complete defense to a libel action and thus the evidence would have altered the result, relief from a judgment due to newly discovered evidence cannot be granted if the motion for such relief is filed more than one year from the entry of the judgment. Answer choice D is incorrect. In order to qualify for relief from a judgment on the basis of newly discovered evidence, the evidence must have existed at the time of the trial and could not have been discovered earlier with reasonable diligence. Therefore, the fact that the evidence existed at the time of the trial supports the court granting the publisher’s motion for relief from judgment.

Ugh.

[Bass]

Question ID: 3464 (5 of 6) of Afternoon session MEE

I don't get why it is necessary in the sample answer to discuss the differences between an independent contractor and an employee in order to analyse vicarious liability? Isn't it possible to impute vicarious liability to all principals? If so, arent employees and independent contractors both agents?

For ease of reference:

[+] Spoiler

For many years, a furniture store employed drivers to deliver furniture to its customers in vans it owned.

Several months ago, however, the store decided to terminate the employment of all its drivers. At the same time, the store offered each driver the opportunity to enter into a contract to deliver furniture for the store as an independent contractor. The proposed contract, labeled “Independent-Contractor Agreement,” provided that each driver would

(1) provide a van for making deliveries;

(2) use the van only to deliver furniture for the store during normal business hours and according to the store’s delivery schedule; and

(3) receive a flat hourly payment based upon 40 work hours per week, without employee benefits.

The proposed Independent-Contractor Agreement also specified that the store would not withhold income taxes or Social Security contributions from payments to the driver.

The store also offered each driver the opportunity to lease a delivery van from the store at a below-market rate. The proposed lease required the driver to procure vehicle liability insurance. It also specified that the store would reimburse the driver for fuel and liability insurance and that the lease would terminate immediately upon termination of the driver’s contract to deliver furniture for the store.

All the drivers who had been employed by the store agreed to continue their relationships with the store and executed both an Independent-Contractor Agreement and a lease agreement for a van.

Three months ago, a driver delivered furniture to a longtime customer of the store during normal business hours. The customer asked the driver to take a television to her sister’s home, located six blocks from the driver’s next delivery, and offered him a $10 tip to do so. The driver agreed, anticipating that this delivery would add no more than half an hour to his workday.

In violation of a local traffic ordinance, the driver double-parked the delivery van in front of the sister’s house to unload the television. A few minutes later, while the driver was in the sister’s house, a car swerved to avoid the delivery van and skidded into oncoming traffic. The car was struck by a garbage truck, and a passenger in the car was seriously injured.

The passenger has brought a tort action against the store to recover damages for injuries resulting from the driver’s conduct. Pretrial discovery has revealed that delivery vans routinely double-park; survey evidence suggests that, in urban areas like this one, 80% of deliveries are made while the delivery van is double-parked.

In this jurisdiction, there is no law that imposes liability on a vehicle owner for the tortious acts of a driver of that vehicle solely on the basis of vehicle ownership.

The store argues that it is not liable for the passenger’s injuries because (a) the driver is an independent contractor; (b) even if the driver is not an independent contractor, the driver was not making a delivery for the store when the accident occurred; and (c) the driver himself could not be found liable for the passenger’s injuries.

1. Evaluate each of the store’s three arguments against liability.

2. Assuming that the store is liable to the passenger for the passenger’s injuries, what rights, if any, does the store have against the driver? Explain.

SAMPLE ANSWER

1. The issue is whether the store can be held vicariously liable for the driver’s tort.

Under the doctrine of respondeat superior, a principal may be vicariously liable for a tort committed by an employee acting within the scope of his employment. But, if the agent is not liable, the principal cannot be vicariously liable.

1.(a) The issue is whether the driver is an employee or an independent contractor. (30%)

An employee is an agent whose principal controls the manner and means of the employee’s performance of work. Generally, employees are paid hourly or by time periods. Their work is an integral part of the work of the employer, tasks are generally completed under the employer’s direction, and employees are employed for long periods of time with the same employer. The more control an employer exerts over an agent’s day-to-day activities, the more likely the agent qualifies as an employee.

Here, although the drivers are called “Independent Contractors” under the agreement, the store has much control over the manner and means of the drivers’ performance of the work. The store owned and leased the vans to be used, reimbursed the drivers for fuel and insurance, paid the drivers at an hourly rate, directed the delivery schedule during normal business hours, and had employed the drivers for many years prior to the agreement. Based on the degree of control exerted over the driver’s day-to-day activities, it is more likely the driver qualifies as an employee than an independent contractor.

1.(b) The issue is whether the driver was acting within the scope of employment or was engaged in a frolic. (30%)

Under the doctrine of respondeat superior, an employer may be vicariously liable for a tort committed by an employee acting within the scope of his employment. Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer. Travel required to perform work, such as travel between job sites, is generally within the scope of employment. Additionally, travel by an employee during the workday that involves a personal errand may be within the scope of employment when the errand is merely a de minimis departure from an assigned route (also called a detour). However, when the employee’s personal errand involves a significant deviation from the path that would otherwise be taken for the purpose of the work, the errand is a frolic and is outside the scope of employment.

Here, the driver was instructed that he only make deliveries for the store during business hours and according to the store’s delivery schedule. When the accident occurred, the driver had parked the van and was making deliveries, which was the type of conduct that the driver was hired to perform. The driver did deviate from the assigned route when he agreed to deliver the television for a longtime customer. However, this deviation was likely minor because it was only six blocks from the driver’s next delivery and would take a mere 30 minutes out of his delivery schedule. Even if the driver’s conduct amounted to a frolic, he may have intended his conduct to benefit the furniture store because the delivery was for a longtime customer of the store. Thus, the driver was likely acting within his scope of employment as a delivery driver when the tort occurred.

1.(c) The issue is whether the driver is liable for the plaintiff’s injuries under negligence per se. (25%)

If the defendant has violated a statute that results in an injury proximately caused by the violation, the defendant is liable in negligence to anyone in the class of people the statute was intended to protect for any accidents or harms of the type the statute was intended to protect against.

Here, the double-parking ban was likely intended to protect against the type of accident that occurred here: swerving into oncoming traffic. The passenger of the swerving car was clearly within the class of people the statute intended to protect. The driver’s violation of the statute was the proximate cause of the injury because the van was blocking traffic. Accordingly, a jury could reasonably find that the driver was negligent per se and therefore liable for the plaintiff’s injuries.

2. Assuming that the store is liable for the passenger’s injuries, the issue is what rights the store has against the driver. (15%)

Indemnification generally applies when one tortfeasor is vicariously liable for the other’s wrongdoing. The tortfeasor who has discharged the liability is entitled to indemnity from the actual wrongdoer who was primarily responsible for the harm. Here, if the store must pay a judgment for the driver’s tort because of the store’s vicarious liability, it can seek indemnity (complete reimbursement) from the driver. Equity requires a shifting of the loss to the more blameworthy defendant when there is a significant difference between the blameworthiness of the two.

[ThisMan]

Question ID: 3464 (5 of 6) of Afternoon session MEE

I don't get why it is necessary in the sample answer to discuss the differences between an independent contractor and an employee in order to analyse vicarious liability? Isn't it possible to impute vicarious liability to all principals? If so, arent employees and independent contractors both agents?

For ease of reference:

[+] Spoiler

For many years, a furniture store employed drivers to deliver furniture to its customers in vans it owned.

Several months ago, however, the store decided to terminate the employment of all its drivers. At the same time, the store offered each driver the opportunity to enter into a contract to deliver furniture for the store as an independent contractor. The proposed contract, labeled “Independent-Contractor Agreement,” provided that each driver would

(1) provide a van for making deliveries;

(2) use the van only to deliver furniture for the store during normal business hours and according to the store’s delivery schedule; and

(3) receive a flat hourly payment based upon 40 work hours per week, without employee benefits.

The proposed Independent-Contractor Agreement also specified that the store would not withhold income taxes or Social Security contributions from payments to the driver.

The store also offered each driver the opportunity to lease a delivery van from the store at a below-market rate. The proposed lease required the driver to procure vehicle liability insurance. It also specified that the store would reimburse the driver for fuel and liability insurance and that the lease would terminate immediately upon termination of the driver’s contract to deliver furniture for the store.

All the drivers who had been employed by the store agreed to continue their relationships with the store and executed both an Independent-Contractor Agreement and a lease agreement for a van.

Three months ago, a driver delivered furniture to a longtime customer of the store during normal business hours. The customer asked the driver to take a television to her sister’s home, located six blocks from the driver’s next delivery, and offered him a $10 tip to do so. The driver agreed, anticipating that this delivery would add no more than half an hour to his workday.

In violation of a local traffic ordinance, the driver double-parked the delivery van in front of the sister’s house to unload the television. A few minutes later, while the driver was in the sister’s house, a car swerved to avoid the delivery van and skidded into oncoming traffic. The car was struck by a garbage truck, and a passenger in the car was seriously injured.

The passenger has brought a tort action against the store to recover damages for injuries resulting from the driver’s conduct. Pretrial discovery has revealed that delivery vans routinely double-park; survey evidence suggests that, in urban areas like this one, 80% of deliveries are made while the delivery van is double-parked.

In this jurisdiction, there is no law that imposes liability on a vehicle owner for the tortious acts of a driver of that vehicle solely on the basis of vehicle ownership.

The store argues that it is not liable for the passenger’s injuries because (a) the driver is an independent contractor; (b) even if the driver is not an independent contractor, the driver was not making a delivery for the store when the accident occurred; and (c) the driver himself could not be found liable for the passenger’s injuries.

1. Evaluate each of the store’s three arguments against liability.

2. Assuming that the store is liable to the passenger for the passenger’s injuries, what rights, if any, does the store have against the driver? Explain.

SAMPLE ANSWER

1. The issue is whether the store can be held vicariously liable for the driver’s tort.

Under the doctrine of respondeat superior, a principal may be vicariously liable for a tort committed by an employee acting within the scope of his employment. But, if the agent is not liable, the principal cannot be vicariously liable.

1.(a) The issue is whether the driver is an employee or an independent contractor. (30%)

An employee is an agent whose principal controls the manner and means of the employee’s performance of work. Generally, employees are paid hourly or by time periods. Their work is an integral part of the work of the employer, tasks are generally completed under the employer’s direction, and employees are employed for long periods of time with the same employer. The more control an employer exerts over an agent’s day-to-day activities, the more likely the agent qualifies as an employee.

Here, although the drivers are called “Independent Contractors” under the agreement, the store has much control over the manner and means of the drivers’ performance of the work. The store owned and leased the vans to be used, reimbursed the drivers for fuel and insurance, paid the drivers at an hourly rate, directed the delivery schedule during normal business hours, and had employed the drivers for many years prior to the agreement. Based on the degree of control exerted over the driver’s day-to-day activities, it is more likely the driver qualifies as an employee than an independent contractor.

1.(b) The issue is whether the driver was acting within the scope of employment or was engaged in a frolic. (30%)

Under the doctrine of respondeat superior, an employer may be vicariously liable for a tort committed by an employee acting within the scope of his employment. Conduct within the scope of employment includes acts that the employee is employed to perform or that are intended to profit or benefit the employer. Travel required to perform work, such as travel between job sites, is generally within the scope of employment. Additionally, travel by an employee during the workday that involves a personal errand may be within the scope of employment when the errand is merely a de minimis departure from an assigned route (also called a detour). However, when the employee’s personal errand involves a significant deviation from the path that would otherwise be taken for the purpose of the work, the errand is a frolic and is outside the scope of employment.

Here, the driver was instructed that he only make deliveries for the store during business hours and according to the store’s delivery schedule. When the accident occurred, the driver had parked the van and was making deliveries, which was the type of conduct that the driver was hired to perform. The driver did deviate from the assigned route when he agreed to deliver the television for a longtime customer. However, this deviation was likely minor because it was only six blocks from the driver’s next delivery and would take a mere 30 minutes out of his delivery schedule. Even if the driver’s conduct amounted to a frolic, he may have intended his conduct to benefit the furniture store because the delivery was for a longtime customer of the store. Thus, the driver was likely acting within his scope of employment as a delivery driver when the tort occurred.

1.(c) The issue is whether the driver is liable for the plaintiff’s injuries under negligence per se. (25%)

If the defendant has violated a statute that results in an injury proximately caused by the violation, the defendant is liable in negligence to anyone in the class of people the statute was intended to protect for any accidents or harms of the type the statute was intended to protect against.

Here, the double-parking ban was likely intended to protect against the type of accident that occurred here: swerving into oncoming traffic. The passenger of the swerving car was clearly within the class of people the statute intended to protect. The driver’s violation of the statute was the proximate cause of the injury because the van was blocking traffic. Accordingly, a jury could reasonably find that the driver was negligent per se and therefore liable for the plaintiff’s injuries.

2. Assuming that the store is liable for the passenger’s injuries, the issue is what rights the store has against the driver. (15%)

Indemnification generally applies when one tortfeasor is vicariously liable for the other’s wrongdoing. The tortfeasor who has discharged the liability is entitled to indemnity from the actual wrongdoer who was primarily responsible for the harm. Here, if the store must pay a judgment for the driver’s tort because of the store’s vicarious liability, it can seek indemnity (complete reimbursement) from the driver. Equity requires a shifting of the loss to the more blameworthy defendant when there is a significant difference between the blameworthiness of the two.

Generally, an employer is not vicariously liable for the actions of an independent contractor since an employer has less control over an IC than they would with an employee. There are some big exceptions though (i.e. ultrahazardous activity, non-delegable duties).

[Puffman1234]

Anyone else noticed that they have repeating practice essays?

Like I have 7x commercial paper practice essays, but #s 5, 6, and 7 are all the same (same question, same sample answer).

Same thing for other topics; there are 5 Community Property practice essays, but 2 are duplicates so there are really only 4. There are 5 Corporations essays, but 2 are duplicates. There are probably more duplicates in the subjects I haven't done yet.

Also, although the questions and answers are duplicates, the "Question ID #s" at the top are different. So that makes me think maybe this is a display bug or something?

edit: nm, I figured out what happened. I was saving the essays at the same time and accidentally bypassing some sort of dynamic essay selection process (i.e. by opening 5 essays at the same time, the system just gave me the same 5 essays; if I had marked each complete before opening the next the system would have given me a new one). Fuck now I've lost access to a bunch of essays, I gotta email Themis.

[bmmccb223]

Anyone else noticed that they have repeating practice essays?

Like I have 7x commercial paper practice essays, but #s 5, 6, and 7 are all the same (same question, same sample answer).

Same thing for other topics; there are 5 Community Property practice essays, but 2 are duplicates so there are really only 4. There are 5 Corporations essays, but 2 are duplicates. There are probably more duplicates in the subjects I haven't done yet.

Also, although the questions and answers are duplicates, the "Question ID #s" at the top are different. So that makes me think maybe this is a display bug or something?

I have a feeling that for non-MBE subjects (e.g. Corporations) the essays test fairly predictable topics, so the repetition might just be reflecting that.

[thelaw2.0]

Anyone else getting an error for video 5 of the civil procedure MBE practice exam review?

[2014applicant]

Anyone else getting an error for video 5 of the civil procedure MBE practice exam review?

Same thing happened to me.

[the_pakalypse]

Anyone else sketched out by the progress bar? It jumped 0.3 points today after I finished my last AQ2 (conflict-of-laws), which had a grand total of 11 questions

[J-english]

Anyone else getting an error for video 5 of the civil procedure MBE practice exam review?

Same thing happened to me.

I can't get it to work either

[star fox]

There's a video 5?

[gatorfan163287]

There's a video 5?

It's probably an empty video hence the error. He finished up civpro in video 4 but there is a video 5 as well that just pulls up an error. Sent them an email this morning about it and haven't heard anything back and hasn't been fixed. Annoying because now have to go into flex study to do everything.

[bmmccb223]

I love how several of Themis' criminal procedure essays ask about death penalty related issues, even though the death penalty in my state was abolished 4 years ago...

[robin600]

According to the rec study schedule I'm like way behind, but my progress bar says I'm at 68.7%. Not sure what that means.

[Law4lyf]

Regarding question 138 on the MBE practice exam...

Dude was arrested not for cocaine right? There's why.

The Simulated MBE Analysis seems kind of useless to me. Does anyone have an argument as for why I should watch it when the explanations in the answers seem perfectly adequate?

I don't think there is much point if you're actually going to read through the answers. The guy has some insight sometimes, but the time sink outweighs whatever minimal usefulness it provides. If they had timestamps for every answer it would be much more useful.

Some of the MBE exam questions and written answers are horrible though, for example:

[+] Spoiler

A farmer was diagnosed by his doctor with a terminal illness. Upon arriving home immediately after having received the news, the farmer wrote the following, “I, farmer, now transfer my farm, Blackacre, to my son.” The farmer, who owned Blackacre in fee simple absolute, then signed and dated the document. The farmer neither discussed the document nor its contents with anyone else, but simply placed it with his personal papers. Soon thereafter, the farmer died. Among the farmer’s personal papers, in addition to the document, was a will. The farmer had executed the will in compliance with the required formalities 10 years prior to his death. Under the terms of the will, the farm was devised to the farmer’s daughter. The daughter and son were the farmer’s only heirs. After learning of the document and the will, the son and daughter each claimed ownership of Blackacre outright. In an appropriate action to determine ownership of the farm filed by the personal representative of the farmer’s estate after admission of the will to probate, who is entitled to ownership of the farm?

Answer Choices:
A. The daughter, because the unwitnessed document is not a valid deed and therefore the farm passed to her by the terms of the will.
B. The daughter, because the document, which was neither delivered to nor accepted by the son prior to the farmer’s death, was not a valid deed and therefore the farm passed to her by the terms of the will.
C. The son, because the document was a deed that took effect during the farmer’s lifetime.
D. The son, because the document was executed after the will and therefore superseded the will.

Correct:
Correct Answer:
The daughter, because the document, which was neither delivered to nor accepted by the son prior to the farmer’s death, was not a valid deed and therefore the farm passed to her by the terms of the will.

Rationale:
Answer choice B is correct. The document, although valid as a deed, did not operate to transfer the farm to the son because there was no delivery. By keeping the deed in his possession until his death, the farmer retained the right to revoke it. Answer choice A is incorrect because, unlike a will, a deed need not be witnessed in order to be valid. Answer choice C is incorrect because, as noted with regard to answer choice B, the document did not operate as a deed to transfer title to the farm to the son because of the lack of delivery. Answer choice D is incorrect because the fact that the deed was executed after the will does not give it priority over the will. In addition, as noted with regard to answer choice B, mere execution of a deed is not sufficient to transfer title; delivery and acceptance are also required.

I agree, but the one on evidence was quite helpful on how to approach evidence questions. The rest of them the Professor would just say if you didn't memorize the rule, then there's no way you would get this one right.

[droit]

Can someone explain the answer to question 110 of the simulated MBE to me?

[+] Spoiler

Why is there no supplemental jurisdiction for mom? In Question 83, he said that if one P's claim was over $75k, then the court could exercise SJ over a second P's claim if it arose out of the same transaction. But then for question 110 he said there could be no SJ for mom even though the son's claim was over $200,000. Can someone explain the difference?