(Test Bank) Barbri - Practice Set Questions - MBE

Barbri, 1

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Barbri - Practice Set Questions - MBE A fee simple owner of a restaurant provided in his will that the property should go on his death "in fee simple to my friend, but if during my friend's lifetime my son has children and those children are alive when my friend dies, then to said living child ren." When the owner died, the friend took over the restaurant. If the son has children and one or more of them are alive when the friend dies, who will take title to the restaurant at that time? A The friend's heirs, because the attempted gift to the so n's children is invalid under the Rule Against Perpetuities. B The son's children, because their interest is not contingent, being a possibility of reverter. C The son's children, because their interest is vested, subject to defeasance. D The son's chil dren, because their interest will vest, if at all, within a life in being plus 21 years. - ANS - D The son's children, because their interest will vest, if at all, within a life in being plus 21 years. The interest given to the son's children does not vio late the Rule Against Perpetuities because the interest will vest, if at all, within 21 years after the life of the friend. Pursuant to the Rule Against Perpetuities, no interest in property is valid unless it must vest, if at all, not later than 21 years after one or more lives in being at the creation of the interest. In the case of a will, the perpetuities period begins to run on the date of the testator's death, and measuring lives used to show the validity of an interest must be in existence at that ti me. Here, the interest given to any of the son's children who are born during the friend's lifetime and who survive the friend must vest, if at all, on the death of the friend (who is a life in being at the time of the owner's death). Thus, this interest w ill vest, if it does vest, within 21 years after the friend's life, and is therefore not in violation of the Rule Against Perpetuities. (A) is therefore incorrect; if one or more of the son's children is alive at the time of the friend's death, the friend' s heirs will get nothing because their fee simple will be divested. (B) incorrectly characterizes the interest of the son's children as a possibility of reverter. A possibility of reverter is the future interest left in a grantor who conveys a fee simple d eterminable estate. Although under different circumstances the son's children could acquire a possibility of reverter as heirs of the grantor (the owner), their interest in this case was conveyed directly to them in the owner's will. (C) is incorrect becau se the interest of the son's children is not vested. Their interest is a shifting executory interest rather than a remainder because it divests the fee simple estate of the friend and his heirs. The friend has a fee simple subject to an executory interest because the estate will remain with his heirs if none of the son's children are alive when the friend dies. The friend's death while the son's children are alive divests the interest of the friend's heirs; it is therefore a shifting executory interest rath er than a remainder. A pedestrian walking on the sidewalk was struck by a car backing out of a driveway. The driver did not see the pedestrian because her neighbor's bushes obscured her view of the sidewalk. The pedestrian was seriously injured and brough t suit against the driver and the neighbor. The pedestrian also included the city in his lawsuit, alleging that the city failed to enforce its ordinance requiring homeowners to provide a clear view of sidewalks where they intersect with driveways. The trie r of fact determined that the driver was 60% at fault, the neighbor was 30% at fault, and the city was 10% at fault. The jurisdiction has adopted comparative contribution in cases applying joint and several liability. Which of the following is a correct s tatement regarding liability? A The city is liable to the pedestrian for the full amount of the damage award. B Both the driver and the neighbor are liable to the pedestrian for 90% of the damage award. C Each of the three defendants are liable to the p edestrian for one -third of the damage award. D The driver is liable to the pedestrian for 60% of the damage award, the neighbor is liable for 30% of the damage award, and the city is liable for 10% of the damage award. - ANS - The city is liable to the pe destrian for the full amount of the damage award. A city council passed an ordinance providing: "No person may contribute more than $100 annually to any group organized for the specific purpose of supporting or opposing referenda to be voted on by the cit y electorate or regularly engaging in such activities." If the ordinance is challenged in federal court, how should the court rule on the constitutionality of this ordinance? A Strike it down, because it violates First Amendment rights of free speech and freedom of association. B Strike it down as a violation of due process, because no hearing mechanism has been provided for. C Uphold it, because the city council has a legiti mate interest in controlling such contributions. D Dismiss the case, because it involves a political question and is thus a nonjusticiable matter. - ANS - Strike it down, because it violates First Amendment rights of free speech and freedom of association . A state Occupational Health and Safety Board recently issued regulations valid under its statutory mandate requiring that all employers in the state provide ionizing air purification systems for all employee work areas. These regulations replaced previo us guidelines for employee air quality that were generally not mandatory and did not specify the method of air purification used. The requirements regarding air purification systems are likely to be unconstitutional as applied to which of the following em ployers? A A wholly owned subsidiary of a Japanese corporation with seven retail outlets within the state. B The state supreme court, which recently completed construction of its new courthouse with a non-ionizing air purification system which the builde r is contractually bound to maintain for the next three years. C A United States Armed Forces Recruiting Center located adjacent to the state capitol building. D A privately operated community service center funded by donations and constructed through use of a loan provided by the United States Veterans Administration and repayable to that agency. - ANS - A United States Armed Forces Recruiting Center located adjacent to the state capitol building. The armed forces recruiting center is least likely to be required to comply with the new state law. A state has no power to regulate activities of the federal government unless Congress consents to the regulation. Accordingly, agents and instrumentalities of the federal government, such as the armed forces recr uiting center, are immune from state regulations relating to performance of their federal functions. (D) is incorrect because, although the recreation center's construction was funded by a loan from the Veterans Administration, the center itself is private ly operated and funded by donations. As a result, the center has only a tenuous connection with the federal government, so that it cannot claim the immunity afforded to a federal agency or instrumentality. Accordingly, in the same sense as is employed in t he federal tax immunity cases, the agency does not "stand in the shoes" of the federal government. Thus, the application of the state regulations to the recreation center would not present constitutional problems. (A) apparently refers to the principle tha t the power to regulate foreign commerce lies exclusively with Congress. However, the mere fact that the regulated outlets are part of a wholly owned subsidiary of a Japanese corporation does not mean that the state regulations affect foreign commerce. The subsidiary's activities are conducted entirely within the state, and do not touch upon foreign commerce in any way. Therefore, application of the regulations so as to require the subsidiary to provide an ionizing air purification system for its employee w ork areas will not constitute a proscribed state regulation of foreign commerce. Thus, (A) is incorrect. (B) is more troubling, but does not offer as compelling an argument as (C). The Contract Clause limits the ability of states to enact laws that substan tially impair contract rights (i.e., destroy most or all of a party's rights under an existing contract). Under the Clause, the Supreme Court will subject state actions that impair their own contracts to strict scrutiny. In any case, even if state action substantially impairs rights under an existing contract, the action still may be upheld if it: (i) serves an important and legitimate public interest; and (ii) is a reasonable and narrowly tailored means of promoting that interest. Here, the state supreme c ourt, as an instrumentality of the state, would probably not have grounds for complaining that its rights under the contract have been impaired, but the builder might have grounds (e.g., the builder might have future economic interests during the three -year service period that will be substantially impaired if the court is required to install an ionizing system). Nevertheless, the regulation still may be valid if the state can prove that it truly serves the important public interest of protecting the health and safety of workers in the state and is narrowly tailored to promoting that interest. In any case, because it is uncertain whether the vendor's rights have been substantially impaired and, if so, whether the state can prove the worth of the regulation, (C) is a better choice. A plaintiff read of the success of a box -office hit movie about aardvarks in various entertainment journals. The movie was enormously popular among young children, and cartoon figures from the movie began appearing on T -shirts, sof t drink mugs, and other novelties. The plaintiff filed suit against the studio alleging that the production company unlawfully used his ideas for the movie. The studio admitted that it had received a clay model of a cartoon animal from the plaintiff, but d enied that the model had any substantial similarity to the now -famous aardvarks. The studio had returned the model to the plaintiff, but he had destroyed it. For the plaintiff to testify at trial as to the appearance of the model, which of the following i s true? A The plaintiff can testify as to the appearance of the model because he has personal knowledge of it. B The plaintiff must show that the destruction of the model was not committed in bad faith. C The plaintiff must introduce a photograph of the model, if one exists. D The plaintiff must give advance notice to the opposing party that he plans to use such oral testimony in his case. - ANS - The plaintiff can testify as to the appearance of the mod el because he has personal knowledge of it. The plaintiff can testify as to the appearance of the model because he has personal knowledge of it. A witness must be competent to testify, which includes the requirement that he have personal knowledge of the matter he is to testify about. Here, the plaintiff has personal knowledge of the model, as he is the person that had submitted it to the studio. Thus, he is competent to testify as to the model's appearance. (B) is wrong because it states the foundation re quirement for the admissibility of secondary evidence under the best evidence rule (also called the original document rule), which does not apply under these circumstances. The best evidence rule covers writings and recordings, which are defined as "letter s, words, numbers, or their equivalent, set down in any form." A clay model clearly does not fit within that definition. Similarly, (C) states an acceptable form of secondary evidence under the best evidence rule, which does not apply here. Note, however, that under the Federal Rules (unlike most states), there are no degrees of secondary evidence. Therefore, this choice would be wrong even if the best evidence rule were applicable, because the plaintiff would not be limited to photographic evidence. (D) is wrong because it incorrectly assumes that notice must be given. This type of notice is not a prerequisite for the plaintiff's testimony even had the best evidence rule been applicable. While at a party, the defendant ran into an acquaintance. The acquain tance proceeded to ridicule the defendant about his looks. After an hour of verbal abuse by the acquaintance, the defendant suddenly took a champagne bottle that was on a nearby table and struck the acquaintance over the head, killing him instantly. At his arrest, the defendant told the police that voices inside his head told him to shut the acquaintance up, permanently. The defendant was tried in a jurisdiction that follows the Model Penal Code test for insanity. At trial, the defendant's lawyer introduce d psychiatric testimony indicating that the defendant suffered from a mental illness. Which of the following, if proved by the defense, would most likely relieve the defendant of criminal responsibility? A The defendant's actions were a product of his m ental illness. B The defendant could not appreciate the criminality of killing the acquaintance, or he could not conform his conduct to the requirements of the law. C The defendant did not know that killing the acquaintance was wrong, or he could not understand the nature and quality of his actions. D The defendant was unable to control himself or conform his conduct to the law. - ANS - The defendant could not appreciate the criminality of killing the acquaintance, or he could not conform his conduct to the requirements of the law. The defendant was on trial for murder. The defendant called a witness to testify to an alibi. On cross -examination of the witness, the prosecutor asked, "Weren't you on the jury that acquitted the defendant of another criminal charge?" What is the best reason for sustaining an objection to this question? A The question goes beyond the scope of direct examination. B The probative value of the answer would be substantially outweighed by its tendency to mislead. C The question is a leading question. D Prior jury service in a case involving a party renders the witness incompetent. - ANS - The probative value of the answer would be substantially outweighed by its tendency to mislead. This question raises several d ifferent issues: competency of witnesses, use of leading questions on cross -examination, the proper scope of cross -examination, and the probative value/prejudicial impact balancing test. Through a process of elimination, (B) emerges as the correct answer. (D) is incorrect. Under the Federal Rules, virtually all witnesses with personal knowledge are competent to testify. [Fed. R. Evid. 601] A witness is not rendered incompetent simply by having served on a jury in a prior case involving a party to the curren t suit. Such prior jury service might render the witness's testimony unpersuasive, but it would not make it inadmissible. (C) is incorrect because ordinarily, leading questions are permitted on cross -examination. [Fed. R. Evid. 611(c)] The prosecutor's que stion is a leading question, but that is perfectly permissible, especially in a case like this, where the alibi witness is not "friendly" toward the prosecution. (A) is incorrect because cross -examination is generally limited in scope to the subject matter of the direct examination and matters affecting the credibility of the witness [Fed. R. Evid. 611(b)], and the prosecutor's question is, in a roundabout way, an attempt to impeach the witness's credibility. The implication behind the question is that if t he witness had served on a jury that acquitted the defendant of another criminal charge, the witness would be inclined to think the defendant innocent of the pending charge. Alternatively, the implication behind the question could be that the witness is th e kind of person who is "soft on crime" and for that reason is not a credible witness. In either event, because the question is an attempt to impeach the witness's testimony, it is within the proper scope of cross -examination. This leaves (B) as the remain ing correct answer. (B) is not unquestionably correct, because the probative value/prejudicial impact balancing test found in Rule 403 is weighted heavily toward admission of evidence. For evidence to be excluded under this balancing test, its probative va lue must be substantially outweighed by its prejudicial impact. Nevertheless, in this case, a plausible reason for sustaining an objection to the prosecutor's question is that the probative value of the answer would be substantially outweighed by its tende ncy to mislead. The question and answer would inevitably let the jury know that the defendant had been previously charged with a crime. This information could be highly prejudicial to his defense. Because the question and answer have little probative value (the negative inferences pertaining to the witness's credibility being very weak), it is reasonable to sustain an objection to the question on the basis that its probative value is substantially outweighed by its prejudicial impact. A backgammon player w as upset after losing a match against the club champion. Rushing out of the club, he inadvertently grabbed the champion's board, which looked very much like his own but which was much more expensive. The player left the backgammon board in the trunk of his car, as was his usual practice. During the night, the car was stolen and along with it, the champion's expensive backgammon board. In an action by the champion against the player to recover the value of the backgammon board, is the champion likely to rec over? A Yes, because when the player took the backgammon board he committed a trespass to the champion's chattel. B Yes, because when the backgammon board was stolen along with the car, the player became liable for conversion of the champion's chattel. C No, because the player believed in good faith that the board was his when he took it from the backgammon club. D No, because the backgammon board was lost through no fault of the player's. - ANS - Yes, because when the backgammon board was stolen along with the car, the player became liable for conversion of the champion's chattel. To secure a loan of $100,000 from a bank, the owner in fee simple of a parcel of land conveyed a deed of trust for the land to the bank. The deed of trust contained a "power of sale" clause, permitted by the jurisdiction, which allowed the bank to sell the property in the event of default without the necessity of a judicial foreclosure action. After several years, the owner defaulted on his loan payments to the bank. The bank informed the owner that it was exercising its power of sale. After appropriate notices, the bank conducted a public sale of the land. The bank was the sole bidder and obtained the property for $80,000, which was $10,000 less than the outstanding balance o n the loan plus the expenses of the sale. One month later, the owner notified the bank that he wanted to pay off the loan and extinguish the deed of trust, and was prepared to tender $80,000 to do so. The bank insisted that the owner must tender $90,000 to pay off the loan. If a court in the jurisdiction will require the bank to accept only $80,000 under the circumstances above, what is the likely reason? A The owner had the power to revoke the trust as long as he was alive. B The bank did not have the authority to bid on the property at other than a judicial foreclosure sale. C The owner was exercising a statutory power rather than an equitable power. D The bank does not have the power to clog the equity of redemption. - ANS - The owner was exercising a statutory power rather than an equitable power. If the owner can compel the bank to accept his offer, it will be because he has a statutory power to redeem the property after the foreclosure sale has occurred. In all states, the equity of redemption provides the borrower with an equitable right, at any time prior to the foreclosure sale, to redeem the land or free it of the mortgage or lien by paying off the amount due or, if an acceleration clause applies, the full balance d ue. Only about half the states, however, give the borrower a statutory right to redeem for some fixed period after the foreclosure sale has occurred; the amount to be paid is generally the foreclosure sale price, rather than the amount of the original debt . Thus, if the owner can redeem the land for $80,000, it will be based on the jurisdiction's statutory power of redemption. (A) is wrong because the deed of trust is a security interest (similar to a mortgage) to which the revocation rules for trusts do no t apply. The deed of trust was created in part to allow the lender to foreclose on the property without going through a judicial foreclosure proceeding. (B) is wrong because, in states that permit a nonjudicial sale with deeds of trust containing a power o f sale, the lender may bid at the sale, and in many cases the lender is the sole bidder. (D) is wrong because the prohibition against "clogging the equity of redemption" refers to the rule that a borrower's right to redeem his own mortgage cannot be waived in the instrument itself. Here, there is nothing to indicate that the owner's deed of trust prohibited him from redeeming the property prior to foreclosure. However, it is only through a statutory right of redemption that the owner would be able to redeem the property for $80,000 after the foreclosure sale had occurred. A state bans the use of disposable diapers to reduce the volume of nonbiodegradable material in its landfills. The ban was a boon for diaper services within the state, but many parents of young children were displeased with the use of conventional diapers. With support from retail establishments that lost business from the disposable diaper ban, a grass roots coalition formed to fight the ban funded a study showing that the trucks and clean ing supplies used by diaper services within the state harmed the environment more than disposable diapers. The coalition and retailers then filed suit seeking to have the ban on disposable diapers declared unconstitutional. If the court strikes down the s tatute, on which of the following constitutional provisions would its decision most likely be based? A The Equal Protection Clause of the Fourteenth Amendment. B The Due Process Clause. C The Impairment of Contracts Clause. D The Privileges or Immuniti es Clause of the Fourteenth Amendment. - ANS - B The Due Process Clause. Of the choices presented, the only likely basis to strike down the statute is under the Due Process Clause as a violation of substantive due process. Substantive due process tests th e reasonableness of a statute; it prohibits arbitrary governmental action. Under substantive due process, when government action limits a fundamental right, the government must prove that the action is necessary to promote a compelling interest. If a funda mental right is not involved, the challenging party must prove that the act is not rationally related to any legitimate government interest. The retail sale of diapers is not a fundamental right, and so a challenger must prove that there is no rational bas is for the statute. Almost any law can be justified under the rational basis standard. The law need not be the best law for accomplishing the government's goal. Thus, even if it is true that the disposable diaper ban causes more pollution than it prevents, because the ban is rationally related to reducing the volume of trash in landfills, the challenge is unlikely to succeed. Nevertheless, none of the other choices states a viable ground for invalidating the statute, and so (B) is the best choice. (A) is wr ong because equal protection applies where a statute or governmental action treats similar people in a dissimilar manner (i.e., classifies people), and here there is no classification —under the statute no one can sell disposable diapers for use within the state. Thus, an equal protection argument is not applicable. (C) is wrong because the Impairment of Contracts Clause prohibits only the substantial impairment of existing contracts (and there are exceptions even where there is substantial impairment), and nothing in the facts indicates that forbidding the retail sale of disposable diapers would substantially impair any existing contract. (D) is wrong because the privileges and immunities covered by the Fourteenth Amendment are those attributes peculiar to U nited States citizenship (e.g., the right to petition Congress for redress or the right to vote for federal officers). The statute here does not affect such rights. An attorney came to work on a Saturday. When he signed in, he was advised by the morning security guard employed by the building management that he must be out of the building by 5 p.m., when it closes. However, he stayed past 5 p.m. to complete a brief that had to be filed on Monday morning. At 5:15 p.m., the afternoon security guard set the l ocks on all the doors of the building and left. Because she was in a hurry, she did not check the sign -in sheet to make sure that everyone had signed out, contrary to mandatory procedures. When the attorney tried to exit 15 minutes later, he discovered tha t the doors were all locked and could not be opened from the inside. He used his cell phone to call for help, and a supervisor from the building arrived and let him out shortly thereafter. If the attorney sues the building management for false imprisonmen t, is he likely to win? A Yes, because the guard acted recklessly by locking the doors and leaving without checking that everyone was out of the building. B No, because the attorney became a trespasser by staying in the building past 5 p.m. C No, because the guard did not know that the attorney was locked in the building. D No, because the attorney suffered no harm from the confinement. - ANS - C No, because the guard did not know that the attorney was locked in the building. The attorney w ill lose because the guard did not know that he was still in the building. For false imprisonment, the plaintiff must show (i) an act or omission on the part of the defendant that confines or restrains the plaintiff to a bounded area, (ii) intent on the pa rt of the defendant to confine or restrain the plaintiff, and (iii) causation. Here, because the guard apparently did not know that the attorney was still in the building, she had no intent to confine him when she locked the doors. (A) is incorrect because recklessness is not enough; while the attorney likely has a cause of action for negligence against the guard, and through respondeat superior, the building, his claim is for false imprisonment. For liability for false imprisonment, there must be an intent to confine. (B) is incorrect because his status as a trespasser, while it may otherwise make him liable to the building for trespass, does not preclude him from recovering for false imprisonment. (D) is incorrect because the attorney need not show harm fr om the confinement to recover for false imprisonment, as long as he was aware of the confinement. A town in a rural state facing financial difficulties passed a variety of "sin taxes," including one aimed at electronic game arcades frequented by local juv eniles. The tax is a one cent per game tax imposed on the manufacturers of the games based on the estimated number of plays over a machine's lifetime. There are no electronic game manufacturers in the state. Which of the following constitutional provision s would support the best argument against enforcement of the tax? A The Equal Protection Clause. B Substantive due process. C The Privileges and Immunities Clause of Article IV. D The Commerce Clause. - ANS - D The Commerce Clause. The best argument against enforcement of the tax is that it violates the Commerce Clause. If Congress has not adopted laws regarding a subject, local governments are free to tax or regulate local aspects of the subject area as long as the tax or regulation does not discrim inate against interstate commerce or unduly burden it. Here, the tax does not discriminate against interstate commerce, since it does not single out interstate commerce for taxation in order to benefit the local economy. However, it could be argued that th e tax unduly burdens interstate commerce. A local tax will be held to unduly burden interstate commerce if the locality's need for the revenue does not outweigh the burden on interstate commerce. The Supreme Court will consider whether there is a substanti al nexus between the activity or property taxed and the taxing state, whether the tax is fairly apportioned, and whether there is a fair relationship between the tax and the benefit the taxed party receives from the state. Here, there is little nexus betwe en the manufacturer and the town. The facts indicate that out -of-state manufacturers' machines are used in the town, but do not indicate whether the manufacturers conduct any selling activity in the town. Similarly, nothing indicates that there is a relati onship between the tax and any benefit that the manufacturers derive from the town. Thus, the tax would probably be unconstitutional under the Commerce Clause. (A) is not as good an argument as (D) because the Equal Protection Clause prohibits the states f rom treating similarly situated persons differently without sufficient justification. Where a classification does not involve a suspect or quasi -suspect class or a fundamental right, the classification will be upheld as long as it is rationally related to a legitimate government interest. While the tax here singles out arcade game manufacturers for special tax treatment, no suspect or quasi -suspect class is involved, nor is a fundamental right affected. Thus, the tax will be valid under the Equal Protection Clause because it is rationally related to the legitimate government interest of raising revenue. (B) is not a good argument because substantive due process requires that laws not be arbitrary. When laws do not involve a fundamental right, they will be he ld valid under the Due Process Clause as long as they are rationally related to a legitimate government interest. As established above, no fundamental right is involved and the tax is rationally related to a legitimate government interest. Thus, under the Due Process Clause the tax may be enforced. (C) is not a good argument because the Privileges and Immunities Clause of Article IV prohibits states from discriminating against out -of-state residents when a fundamental right is involved, and the tax here doe s not differentiate between residents and nonresidents. The defendant is charged with the battery of a bouncer at a local tavern. At the trial, the prosecutor introduces evidence that while the bouncer was attempting to question the defendant about her in toxicated demeanor, the defendant committed a battery on the bouncer. The defendant attempts to defend against the charge on the basis of self -defense, insisting that the bouncer used excessive force in stopping her from entering the tavern. The defendant attempts to introduce into evidence an authenticated copy of the tavern records that show that three patrons had written complaints against the bouncer within the past six months for the use of excessive force. The prosecutor objects on the grounds that th e records are inadmissible character evidence. Should the court sustain the objection? A Yes, because the character of a victim can be established only by reputation or opinion evidence. B Yes, because there is no evidence that the incidents involving the three patrons were based on the same facts as the defendant's claim. C No, because the records were authenticated. D No, because the character trait of a victim may be established by op inion evidence, reputation evidence, or specific acts of misconduct. - ANS - A Yes, because the character of a victim can be established only by reputation or opinion evidence. The court should sustain the objection because the records are evidence of spe cific bad acts. The Federal Rules permit a defendant to introduce evidence of a bad character trait of the alleged victim if it is relevant to the charge or the defense, but limit it to reputation and opinion evidence. Evidence of specific acts of the pers on in question that demonstrates that person's character is permitted only in a few instances, such as if the acts are relevant to some issue other than disposition to commit the crime charged. Here, no issue is raised by this evidence other than the bounc er's propensity to use excessive force. (A) is therefore correct and (D) is wrong. (B) is wrong because the facts do not have to be identical if evidence of bad acts were otherwise admissible. (C) is wrong; documentary evidence, even if fully authenticated and relevant, may be excluded if it violates a rule of competency, such as the rule for character evidence. Here, the objection should be sustained because the document is improper evidence of a specific bad act. A homeowner and a local builder entered i nto a written contract that called for the builder to build a second story onto the top of the homeowner's one -story residence. When scheduling conflicts arose, the builder asked the homeowner if they could substitute his buddy, an out -of- town builder who had comparable experience and skills, to perform the local builder's part of the contract. All of the parties agreed to the substitution. Unfortunately, the out -of-town builder made a major blunder that will be quite expensive to correct. Is the local bui lder liable to the homeowner for the cost of correcting the defect? A Yes, because the substitution in and of itself does not relieve the local builder of liability on the underlying contract. B Yes, because the local builder did not give any considerat ion on which to base a release. C No, because the local builder transferred his duties to the out -of-town builder. D No, because the local builder was discharged through a novation. - ANS - D No, because the local builder was discharged through a novatio n. The agreement among all of the parties to substitute the out -of-town builder for the local builder operates as a novation which immediately discharged the local builder from any duties he had under the original contract. A novation arises when the part ies enter into an agreement to substitute a third party for one of the parties in a contract, releasing the party who was substituted. All parties must agree to the substitution. Here, the facts say that all of the parties agreed that the out -of-town build er would substitute for the local builder. Thus, there was a novation and the local builder was released immediately and is not liable for the out -of-town builder's blunder. (A) states incorrectly that the substitution does not relieve the local builder of liability. If the parties had not all agreed to substitute the out -of-town builder for the local builder, or the facts said that there was merely an assignment of rights and delegation of duties, (A) would reflect the correct result. However, where the pa rties agree to substitute a new party for an old party, there is a novation that does release the old party. (B) is incorrect because there was consideration to support the release —the local builder implicitly agreed to give up his rights under the origina l contract, the homeowner implicitly agreed to give up his right to look to the local builder for performance, and the out -of-town builder agreed to perform. (C) is not as good an answer as (D). The mere fact that a contractual duty was transferred does no t release the transferor from a duty under the contract. It is only the agreement among the parties to substitute the new party for the old that released the local builder here. A landowner was the owner in fee simple of a tract of land. The landowner con veyed the tract to her neighbor, "for life and then to the first child of my neighbor's only sister who shall reach the age of 21." The sister was unmarried and childless at the time of the conveyance. Five years later, the sister married, and she gave bir th to a son the following year. When the son reached the age of 21, he brought an action in ejectment against the neighbor, who is still alive and living on the tract of land. Which of these is the neighbor's best defense against the son's attempt to ejec t her? A The neighbor's life estate was not subject to termination during her lifetime.