Tuesday, March 19, 2019

Installment Contracts

Probably the best way to think about installment contracts for purposes of the MBE is that they act an an exception to the perfect tender rule. The perfect tender rule states that if goods or their delivery fail to conform to the contract in any way,  the buyer may reject all, accept all, or reject some and accept the rest.

If the contract, however, is an installment contract (one that authorizes the goods to be delivered in separate lots and to be separately accepted), then an installment can be rejected only if the nonconformity substantially impairs the value of that installment and if the nonconformity cannot be cured.  In other words, the right to reject a nonconformity in an installment contract is quite limited.  In addition, the entire installment contract (as opposed to just an individual installment within the contract) is breached only if the nonconformity substantially impairs the value of the entire contract.

The standard for curing a nonconformity in an installment contract also differs from the standard in a non-installment contract. In a non-installment contract, the seller may cure a nonconformity but generally only within the time originally provided for performance. The seller must give reasonable notice of the intent to cure and then make a new tender of conforming goods. Under limited circumstances the seller can cure even beyond the time for performance if the seller reasonably believed that the nonconforming goods would have been acceptable to the buyer and if the seller provides reasonable notification to the buyer as to the intent to cure beyond the time for performance.

But under an installment contract, it is far simpler. A defective installment within an installment contract cannot be reject if the defect can be cured.

Tuesday, March 12, 2019

Perpetuating Testimony

One thing about the MBE: If there is an exception that occurs rarely it's likely to be tested.

Generally to conduct discovery (for example, depositions) a suit must already have been filed. The federal rules recognize only one exception to this general rule. A person may seek a court order to perpetuate testimony about a matter in federal court even before suit has been filed but only if a verified petition is filed showing the subject matter of the expected action and the petitioner's interest. The petition also must state that the petitioner expects to be a party in a federal court action but cannot presently bring the action or cause it to be brought. Further, petitioner must include the facts that petitioner wants to establish by the proposed testimony and the reasons to perpetuate it. Finally, included must be the names or a description of the persons whom petitioner expects to be adverse witnesses and their addresses (if known) as well as the the names, addresses, and expected substance of testimony of any deponent.

Because allowing the petitioner to perpetuate testimony before suit has been filed is an exception to the rule, it's important to understand the limits. It'll be allowable only where a delay in discovery is likely to result in loss of evidence. An example might be if a party to the lawsuit is very ill or is planning to leave the country or if there is evidence that a party might later destroy or conceal evidence.

As always, know the general rule, but also note that the writers of the MBE prefer to test the exceptions.


Wednesday, February 20, 2019

Good Luck!!

All best to those who are finishing up preparation for the February exam!  Posting to resume shortly to assist those preparing for July.

Tuesday, February 19, 2019

Mortgage Modifications

Assume a situation in which  bank 1 lends money and secures repayment with a mortgage on the borrower's home.  Later the borrower borrows more money, this time from bank 2, and also secures that loan with a mortgage on the same home.

First, because bank 1was first it time and there is no reason to adjust the priority rules, bank 1 would be senior to bank 2. But what if after bank 2 secures a mortgage, bank 1 modifies its mortgage? If we treat bank 1's mortgage as of the date of the modification then bank 2 would have priority over bank 1 since bank 2's mortgage was prior to bank 1's modification. But if we treat bank 1's mortgage as of the date that it first secured its mortgage then bank 1 would be senior to bank 2.

It depends. You'll want to focus carefully on the modification. If the modification of the senior mortgage makes the senior mortgage more burdensome, then the junior mortgage will take priority over the senior mortgage because the law will treat the senior mortgage as existing as of the date of the burdensome modification. This would be true if, for example, the interest rate or the principal amount of the loan is modified by the senior mortgage.

Not all modifications will lead to this result, though. If the modification of the senior mortgage is not detrimental to the junior mortgage, then priority will remain as is. An example here could be decreasing the amount of money that the borrower has to pay each month but not increasing the interest rate or the principal amount of the loan.

And so the result here will differ depending upon the nature of the modification.

Thursday, February 14, 2019

Competency of Witnesses

With all the complicated content tested within Evidence questions, the question as to what makes a witness competent to testify may seem simple, but the issue shows up and it's important to know how to address it. It might first be noted that witnesses are presumed competent until the contrary is established. But to determine whether the contrary has been established, the rules for competency are important.

There are two basic requirements here: witnesses must have personal knowledge of the matter that is the subject of the testimony, and the witness must declare he/she will testify truthfully.

If the witness requires an interpreter, the interpreter must be qualified and must take an oath to make a true translation.

A few situations occur often enough that it's helpful to note them. The competency of an infant will depend only upon the infant's capacity to testify and the trial judge can make this determination. A person who has been adjudicated insane may testify provided the person understands the obligation to speak truthfully and has the capacity to testify accurately. A presiding judge may not testify as a witness nor may jurors testify before the jury in which they are sitting.

The Dead Man Act never seems to die. These acts generally provide that a party who stands to gain or lose by a judgment is incompetent to testify to a personal transaction or communication with a deceased person when such testimony is offered against the representative or successors in interest of the deceased. There is advice often given that the Dead Man Act is always a wrong answer on the MBE. This isn't far from the truth, but it should be noted that although there is no Dead Man Act in the Federal Rules, a state Dead Man Act can still apply where state law, under the Erie Doctrine, provides the rule of decision (for example, when a case is in federal court based only on diversity of jurisdiction).

Thursday, February 7, 2019

Jury Trials

Lots to know about jury trials in civil cases for Civil Procedure questions on the MBE. Below is a list of facts, all of which are fair game on the exam:

~ To avoid waiver, a jury trial must be demanded in a writing within 14 days after the filing of the last pleading directed to the jury-triable issues. Some practice MBE questions have indicated that the court has discretion to extend the time limit.

~ If legal and equitable claims are joined in one action, the legal claims should be tried first to the jury and then the equitable claims should be tried to the court.

~ A federal court must permit a jury trial in a diversity suit even though the state court would deny a jury trial. The jury must have at least 6 jurors and not more than 12.

~ For purposes of jury selection, the venire (the potential jurors) must represent a reasonable cross-section of the community. The potential jurors will be questioned ("voir dire") to determine potential bias. Bias may be express in which case the potential juror may be excused for cause, or implied in which case bias is not expressly admitted but it is unlikely that an average person in the juror's position would not be biased. A potential juror with an implied bias must be excused for cause.

~ Objections to giving or failing to give jury instructions prior to the jury deliberating must be made before the jury retires to consider the verdict.

~ If a juror wants to view property or places involved in the case, the juror may do so but only upon court order. Jurors must not communicate with non-jurors about the case.

~ Jury verdicts must be unanimous unless the parties agree otherwise. The court may instruct the jury to decide by a general verdict (the jury finds for the plaintiff or defendant) or by a special verdict (the jury makes findings of fact and the court applies the law). In addition, a combination of the two is allowable in which case the jury enters a general verdict but the court guides the jury with special interrogatories.

~ If a verdict shows on its face that the jury failed to follow the court's instructions, the jury will either be asked to re-deliberate or a new trial will be ordered. A new trial is appropriate if the juror gave false testimony or concealed a material fact relating to the juror's qualifications to serve. A juror may not testify as to any matter occurring during deliberation, except as to outside influences on the jury or on the question of whether extraneous prejudicial information was improperly brought to the jury's attention.

Friday, February 1, 2019

Third-Party Complaints (Impleader)

In explaining third-party complaints it's probably first best to understand the characters.  Imagine that X sues Y.  X would be the plaintiff, and Y the defendant. If Y then wants to bring Z into the lawsuit, Y would be known as a third-party plaintiff, and Z would be known as a third-party defendant.  And so the question becomes when is it allowable for Y to file a complaint against Z.

There's a specific rule that addresses this.  A defending party (Y) may serve a summons and complaint on a non-party ( Z) who is or may be liable to the defending party (Y) for all or part of the claim brought by the plaintiff (X) against the defending party (Y).  This is known as impleader, and it shows up with frequency on the MBE.

It's important to note the limitations of the impleader rule. It only applies if a third-party plaintiff is alleging that the third-party defendant is or may be liable to the third-party plaintiff for all or part of the claim originally brought against the third-party plaintiff. In other words, the third-party complaint must assert some sort of derivative liability. The third-party plaintiff cannot implead a third-party defendant if the reason for doing so is not for the reason stated above.

Put a bit more simply, a third-party claim may be asserted only when the third party defendant's liability is in some way dependent on the outcome of the main claim made by plaintiff against defendant or when the third party defendant is secondarily liable and not primarily liable to the original plaintiff.  So, if the third-party plaintiff wants to claim that the third-party defendant alone is liable to the original plaintiff, that would not be a proper basis for impleading the third-party defendant. That would be claiming direct liability, and the nature of third-party claims is derivative.

Friday, January 25, 2019

Free Sample Chapters

Below are free sample chapters for all of the Essentials books available here on the blog:

MBE Essentials: Free Sample (Contracts):



UBE Essentials: Free Sample (Partnerships):



Florida Bar Exam Essentials: Free Sample (Trusts):









Thursday, January 24, 2019

Shareholders' Appraisal Rights

There are certain fundamental changes that a corporation might approve for which a shareholder might dissent. When that happens, a shareholder will not necessarily be required to abide by the change; instead, shareholders are given rights known as appraisal rights which could require the corporation to purchase the shares of the shareholder. Not all shareholders are provided this right, however. The following have such a right: shareholders entitled to vote on a plan of merger (and shareholders of the subsidiary in a short-term merger); shareholders of a corporation whose shares are being acquired in a share exchange; and shareholders who are entitled to vote on a disposition of all or substantially all of the corporation's property.

If this issue shows up on a Corporations essay, there is a procedure with which to analyze it. The first step is for the corporation to note when providing notice of a shareholders' meeting that shareholders will be entitled to exercise their appraisal rights at the meeting. And before any vote is taken at the meeting, a shareholder who plans to exercise that right must deliver written notice of the intent to demand payment for the shareholder's shares should the corporation choose to move forward with a proposed action at the meeting. The shareholder, in issuing that intent, cannot vote in favor of the proposed action.

If the corporation moves forward with the proposed action, the corporation must notify within 10 days of approval of the action all shareholders who filed an intent to demand payment. The corporation must then pay to the shareholder the amount that the corporation estimates to be the fair value of the shareholder's shares, plus accrued interest.

It's of course possible that the shareholder will not agree with that estimate. If so, the shareholder then has 30 days in which to send the corporation the shareholder's own estimate of value and demand payment for that new amount. (Generally, this will amount to the difference between the corporation's estimate and the shareholder's estimate.)

When the corporation does not agree with the shareholder's estimate, the decision goes to court. The corporation must file an action in court within 60 days of receiving the shareholder's estimate with a request that the court decide on a fair valuation of the shareholder's shares. If the corporation does not satisfy the filing requirement, the shareholder's estimate governs.

Thursday, January 17, 2019

Zoning Regulations

A recent essay on the Uniform Bar Exam dealt heavily with zoning, and the topic has been showing up with more frequency on the MBE. This isn't too surprising because when the NCBE updated its Real Property content recently, a heavier focus on zoning was noted. As such, the following are all important points to note:

When the state enacts a zoning statute, the purpose is to control the use of land for the health, safety and welfare of its citizens. Importantly, this power is limited by the Due Process Clause, the Equal Protection Clause (look out for racial discrimination) as well as the Fifth Amendment's provision preventing taking private property for public use without providing just compensation to the property owner. It should be noted that if there is a valid restrictive covenant on the use of land, the fact that a zoning ordinance would allow that use will not generally prevent the covenant from being enforced.

A cumulative zoning ordinance creates a hierarchy of uses of land. Under such an ordinance, land that is zoned for a particular use may be used for the stated purpose or for any higher use. For example, if a single-family home is a higher use than an apartment building, then the land may be used for a single family home even if it is zoned for apartment buildings. But in such a case, use of an apartment building would not be allowable if zoned for single-family homes. Noncumulative zoning, in contrast, is simpler; land may be used only for the purpose for which it is zoned.

A nonconforming use is a use that exists at the time that a zoning ordinance is passed but also does not conform to the ordinance. The use itself is allowable, but any changes that take place after the ordinance is in effect must comply with the ordinance. One way to analyze whether a change to a nonconforming use is allowable is to ask whether the change is substantial or insubstantial; if substantial it is likely that the change will not be allowable. It's safe to assume for the exam that any doubts should be resolved against the change.

A special use permit relates to uses that are allowed in specific zoning districts provided they meet certain conditions set out in the ordinance. The conditions are generally intended to prevent adverse impacts on the neighboring areas. For example, special use permits might be granted to hospitals, funeral homes, etc.

A variance allows for uses that would otherwise be prohibited by a zoning ordinance. Since a variance violates a zoning ordinance, to obtain a variance, an applicant must ordinarily show hardship which might be shown by providing that without the variance the applicant will not be able to make reasonable use of the land.




Thursday, January 10, 2019

Dangerous Wild Animals

Animals show up in a variety of contexts in Torts on the MBE. Many of the strict liability questions that show up in Torts will involve dangerous defects in products, but you'll also be questioned on strict liability due to harm caused by animals. And the liability due to animals often turns on whether the animal is deemed to be wild or domestic. On the MBE it's safe to assume that domestic animals are common household pets and livestock.  Other animals are wild.  The distinction is, admittedly, not always easy.

Wild Animals: 

First to note is that an owner is strictly liable for reasonably foreseeable damage caused by trespass of the owner's wild animals. An owner is likewise liable to both licensees and invitees for injuries caused by wild animals, even if that wild animals is kept as a pet. The harm that results from the wild animal must, however, result from the kind of danger that is to be anticipated from the animal, which can include harm that results from fleeing from the perceived danger. In other words, the harm must result directly from the dangerous propensities of the wild animal.

Domestic Animals:

An owner is not strictly liable for injuries caused by domestic animals. An important exception to note is that an owner can be held strictly liable for injuries caused by domestic animals if the owner has knowledge of the dangerous propensities of the domestic animal and if those dangerous propensities are not common to the species. You should always ensure before finding liability for harm caused by a domestic animal that whatever dangerous propensities that animal has is not one that is common to the species.

It's important to note that strict liability will generally not be imposed in favor of trespassers who trespass on the land and are then injured by an animal (wild or domestic). But always consider liability based on intentional tort, which might be available even to trespassers.

Thursday, January 3, 2019

Examining Witnesses

The examination of witnesses will show up frequently in Evidence questions on the MBE. It's difficult to narrow down this topic in a post but here I'll focus on a few of the issues that could show up on the exam:

Leading Questions:  Leading questions (those questions that suggest the desired answer) are generally improper on direct examination. Such questions, however, are permitted on cross examination. They are also permitted to elicit preliminary or introductory matters and when necessary to assist a witness who might need help due to loss of memory, immaturity, or physical/mental weakness. An attorney is also permitted to ask leading questions of a hostile witness.

Improper Questions & Answers:  Questions are improper if they are misleading, compound (requiring a single answer to more than one question), argumentative, conclusionary, cumulative, or unduly harassing. Also improper are questions that call for a narrative answer or call for speculation. Questions must also not assume facts that are not in evidence. As to answers, they must not lack foundation (for example, if the witness has insufficient knowledge but answers regardless), and must not be unresponsive to the question asked. All of the above will allow for sustained objections.

Cross Examination:  There's an art to cross examination, but on the MBE, we need only know the basics. Cross examination of adverse witnesses is a matter of right but is limited to the scope of direct examination (including all reasonable inferences that may be drawn from the direct examination) as well as testing the credibility of witnesses (through the use of impeachment). The cross examiner is generally bound by the answers of the witness to questions concerning collateral matters. In other words, if a question concerning a collateral matter is asked, the cross examiner generally must accept the answer and may not refute the answer by other extrinsic evidence. An important exception applies to impeachment: certain recognized avenues for impeaching a witness such as bias, convictions of crimes, etc., may be developed through extrinsic evidence beyond cross examination.

Monday, December 31, 2018

Available Tutoring Options (July 2019)

I work one-on-one with students through phone and video (Skype) tutoring for both the MBE and the essays on the uniform bar exam ("UBE") and the Florida bar exam. Here is a bit about how each component of the tutoring works:

The MBE:

The MBE tutoring consists of assigning an MBE subject to review throughout the week. The lesson provides you the opportunity to thoroughly review with me any of the substantive law in that subject. We'll also spend the lesson reviewing practice questions that I've assigned prior to our meeting.

To perform well on the MBE requires a deep understanding both of the law and of the test. A misconception is that one can score very well merely by memorizing the law. Rather, in addition to that foundation, you also must develop skills both for issue spotting and for eliminating wrong answers. As such, the lesson is geared towards two components: building a solid knowledge base, and learning the skills required to perform well.

Specifically, there are two purposes to the MBE tutoring. The first is to fully understand the legal rule tested in any question you answered incorrectly so that you can later apply that rule to a new fact pattern. And the second is to examine the questions I've assigned to determine where you could have improved in your legal analysis and to develop strategies for more effectively answering questions correctly. We work extensively on eliminating the distractors so that you’ll have a better understanding of the patterns used by the test makers to create incorrect answers.

The Essays:

The intent of the essay tutoring is to learn how to apply the law to the types of essay questions likely to show up on the exam.

I assign essays and we review your responses to these essays in detail throughout the lesson. We work together on maximizing the number of points you can score on any given essay through rigorous and effective legal analysis and I teach my theory on how best to IRAC in order to score those points.

So much of effective essay writing on a bar exam revolves around the difficult skill of analyzing legal issues and so our goal throughout is to fine tune those skills before you sit for the exam. After the lesson, I send to you a model answer written by a candidate who had written the essay while taking the bar exam as well as my own answer to the question which incorporates my blueprint for essay writing that I'll be sending to you as well.

Final Thoughts:

I've taught the bar exam for a number of years now. It would be difficult for me to summarize in such a short post exactly what is required to excel. But I do strongly believe that at its core there are two components to doing well.

Imagine you set out to learn the game of chess. Before practicing, you'd want to know the rules of the game because without knowing those rules your progress would be hindered regardless of how much you’ve practiced. But you wouldn't want to play in a chess tournament if you had only read the rulebook. Because to learn the game would require practicing and applying all those rules you had learned. Memorizing rules is not the same as developing skills.

In short, that's the bar exam. You can not score well if you don't know the law. But to excel on the exam requires far more than legal knowledge. You must learn the skill of applying the law to a given set of facts both on multiple choice questions and on essays.

You're welcome to reach out to me @ silvermanbarprep@gmail.com to learn more about the tutoring!



Friday, December 28, 2018

Imperfect Self Defense

This post will mainly be about a concept called imperfect self-defense, but to understand it requires an understanding of traditional self-defense.  And to understand self-defense requires an understanding of the differences when one is confronted with deadly force and nondeadly force.

A person not at fault may use such force as the person reasonably believes is necessary to protect himself from the imminent use of unlawful force against that person. If the person is not threatened with deadly force, then deadly force cannot be used as a means of protection. There is no duty to attempt to retreat prior to using nondeadly force for self defense.

In contrast, a person can use deadly force if the person without fault is confronted with unlawful force and reasonably believes that there is an imminent threat of death or great bodily harm. Generally, there is no duty to retreat before using deadly force to protect yourself. A minority view does require an attempt to retreat before using deadly force but not if the attack occurs in the home or if the attack occurs while making an arrest or during the commission of a robbery.

To be clear, traditional self defense using deadly force requires a reasonable belief that death or great bodily harm is imminent. And so what should result if you have an honest belief that such a threat exists, but objectively that belief is not reasonable?

Imperfect self defense is recognized in some states. Under this doctrine, a defense can exist even if the belief as to the threat is not deemed objectively reasonable or if the person claiming the defense was the original aggressor.  Specifically, imperfect self defense is allowable if the defendant was at fault in starting the altercation or if the defendant unreasonably but honestly believed in the necessity of responding with deadly force.

The practical differences between self defense and imperfect self defense are important as well. If one proves self defense, then that will be a complete defense to the crime charged. In other words, the person will be deemed not guilty. But imperfect self-defense doesn't reach so far.  Imperfect self defense could lead to a conviction of voluntary manslaughter rather than murder, but it will not completely exonerate someone.

Thursday, December 20, 2018

The Statute of Frauds Under the UCC

It seems to me that generally those preparing for the bar exam have a pretty good feel for the Statute of Frauds. In most instances, oral contracts are valid, but there are some types of contracts that require a writing to be enforceable. One type of contract that requires a writing is a contract for the sale of goods for a price of $500 or more.

A contract for the sale of goods for a price of $500 or more generally requires a writing to evidence that the agreement actually took place. The writing will be sufficient even if it omits terms or incorrectly states terms, but if quantity is incorrectly stated then the contract will only be enforceable as to the quantity stated. As a general point, it should be noted that quantity is an essential term under the UCC.

But it's not the rule itself that trips people up on these questions. There are times when even though a contract for the sale of goods is for a price of $500 or more, a writing is not required. The MBE is often a test of exceptions, and so knowing these exceptions may be more important than knowing the rule.

The first exception is for specially manufactured goods. If goods are to be specially manufactured for the buyer and are not suitable for sale to others by the seller in the ordinary course of business, the contract is enforceable even without a writing but only if the seller has made a substantial beginning in the manufacturer of the goods or commits for their purchase prior to the buyer repudiating.

Next, a party might claim that the contract should not be enforced because there is no writing but that party has already admitted in the pleading, testimony, or otherwise, that the contract for sale was made. Here, the contract will be enforceable without a writing but only for an amount that was previously admitted.

It's also possible that a buyer might accept and pay for goods, but then later claim that the contract for those goods is not enforceable because it wasn't in writing. The contract will be enforceable, but not beyond the quantity of goods accepted and paid for.

Lastly, and an exception that shows up often on the MBE, is the merchant's confirmatory memo rule. In contracts between merchants, if one party within a reasonable time after an oral agreement sends to the other party a written confirmation of the oral agreement and if the written confirmation satisfies the Statute of Frauds, then the contract will be enforceable even though the original agreement between the parties was not in writing. The party receiving the memo will now be bound by the contract if that party has reason to know of the confirmation's contents, and does not object to it within 10 days of receipt.