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Saturday, July 23, 2005
Either BarBri or the MBE or both do not know the meaning of the words "only if."
(A) Stone will prevail.
(B) Stone will prevail only if he can prove a mutual mistake.
The question wanted to know what would happen if Stone wanted to rescind or reform his contract. The grounds for rescission include: mutual mistake of material fact, unilateral mistake if the other party knew or should have known of hte mistake, reliance on a misrepresentation, coercion, undue influence, lack of capacity, illegality, and failure of consideration. The grounds for reformation include mutual mistake in writing, unilateral mistake in writing if the other party knew of the mistake, and fraudulent misrepresentation of terms, either intentional or innocent). Stone will prevail, but not only if he can prove a mutual mistake. He will also prevail if he proves any of the other myriad of grounds.
I could see how this might be the answer if the problem made it explicitly clear that none of the other grounds applied, but it simply didn't come close. You can see why. The fact pattern would be a long list of stuff that Quinn didn't do wrong, which would give away the answer.
I've seen this type of thing several times and it worries me.
UPDATE: The second part of that question was rescission based on misrepresentation. Ha ha. Joke's on me.
Worse yet, the third part was a misused "if":
(B) Would not be barred by the parol evidence rule.
(C) Would be admitted if the lease was proved to be an incomplete agreement of the parties.
There are five parol evidence rule exceptions: partial integration (answer C), mistake in transcription, defense to enforcement, clarification of terms, and addition of terms.
See, here you are supposed to consider the other four possibiliities. I kid you not, these were back-to-back-to-back. What have I learned from studying? Umm, I guess I know rescission, reformation, and parol evidence a little better. The problem is that it does not help me at all. I was bound to miss either the first or third question here because of the poor wording.
Adding even more insult, the very next question was another messed up "if." I'm going to shoot this book. I don't know if that would be negligent or reckless.
Other things I learned from reviewing my wrong answers:
I need to better distinguish anger (murder) from passion (manslaughter).
I need to better distinguish negligence (manslaughter) from recklessness (murder).
I need to better distinguish when the "if" is valid or invalid based on ridiculousness. That is, usually everything after an "if" is taken as fact, no matter how improbable. Usually.
I need to learn the rules and nuances about eminent domain takings' effect on leaseholds.
A corporation cannot be found guilty of a crime with a mens rea.
I need to learn the extent of a car search when incident to a lawful arrest. You can search packages for contraband, but not purses. Lesson: Put open containers in your lady's purse.
There is an implied duty to get the consent of a co-owner when selling the goods. Sometimes.
A warrant to look for weapons allows the seizure of drugs. Scope apparently does not matter.
The admissibility of prior crimes: when, by whom, for what purpose. This seriously seems to change every time I look it up.
Formation of a license versus an easement. I know their effects, but not how to create a license.
Survey controls in a disagreement wtih a plat. If the survey's stakes are misplaced, who knows.
I need to better distinguish between a government contract and mere government employment.
I need to better distinguish intent to scare someone by making them think they were going to be shot and intent to scare someone by making them think they were going to be touched by a bullet.
I need to learn the difference between parent's responsibility for a child's actions and a parent's responsibility for failure to supervise their child.
A prior identification is only admissible as non-hearsay if the identifier testifies.
I need to think ULTRA when there is an ultrahazardous activity. Playing with fireworks near someone' garage and leaving an open ditch are not ultrahazardous.
There is a tort of reckless conduct. This is different than negligence. Again, I need to better distinguish between negligence and recklessness.
Sure, there were lots of other questions that I just misread, misunderstood, or couldn't understand even after reading the answer five times, but I don't think I would have done much better if I did these questions open-book. Conclusion: Don't study for the MBE anymore. All essays from here on out.
Posted by Gel 5:32 PM Post a Comment
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