SkarpChapter 5 of 12
MBE Doctrine Essentials II: Contracts, Criminal Law & Procedure, Evidence, and Real Property
Complete your MBE doctrinal core with tight, repeatable rule sets for four dense subjects, focusing on what the NCBE actually tests rather than every nuance from casebooks.
Step 1: High-Yield MBE Approach for These 4 Subjects
Module Goal
You will tighten rule sets for Contracts, Criminal Law & Procedure, Evidence, and Real Property using fast, repeatable frameworks aimed at MBE-style questions.
What NCBE Actually Tests
Expect recurring patterns: Contracts (formation, breach, remedies, UCC vs common law), Crim/Crim Pro (homicide, inchoate, search, confessions), Evidence (relevance, hearsay, impeachment), Property (estates, future interests, mortgages, landlord–tenant).
Your Job on the MBE
Memorize short rules, plug them into facts, and avoid traps like mixing UCC with common law or confusing hearsay exceptions. We will use step-by-step mini-frameworks to practice this.
Step 2: Contracts Core Framework (Common Law vs UCC)
3 Moves in Contracts
Always think: (1) Is there a contract and which law applies? (2) Has there been performance or breach? (3) What remedy is available? Keep this order on every question.
Which Law?
Goods → UCC Article 2. Services, land, employment → common law. Mixed contracts → predominant purpose (which dominates, goods or services?).
Formation Checklist
Offer (intent, definite terms, communication) + Acceptance (mirror image vs flexible UCC) + Consideration (bargained-for, watch pre-existing duty vs UCC good-faith modification).
Breach Rules
Common law: material vs minor breach. UCC: perfect tender for single deliveries; substantial impairment standard for installment contracts, plus seller’s right to cure.
Remedies Snapshot
Expectation damages, foreseeable consequential damages, duty to mitigate, and specific performance mainly for land and unique goods (not personal services).
MBE Micro-Framework
Ask: (1) Law? (2) Stage? (3) Applicable rule? (4) Result (who can cancel, who recovers, and what damages or remedy)?
Step 3: Contracts Example – Perfect Tender vs Material Breach
UCC Example
Buyer orders 100 blue widgets; Seller delivers 90 blue, 10 green. Goods → UCC. Stage → performance. Rule → perfect tender plus seller’s right to cure if time remains.
UCC Result
Buyer may initially reject the whole shipment. If Seller seasonably notifies intent to cure and time remains, Seller can tender conforming goods; if not, Buyer can cover and claim damages.
Common Law Example
Owner hires Builder to construct a house. Builder uses equivalent but different-brand pipes. Services → common law. Stage → performance. Issue → material vs minor breach.
Common Law Result
Substantial performance: minor deviations are not material breach. Owner must pay contract price minus any small difference in value; cannot refuse all payment.
Step 4: Criminal Law – Homicide and Inchoate Crimes
Homicide Big Picture
Ask: (1) Did D cause the death? (2) What was D’s mental state? (3) How does that classify as murder, voluntary manslaughter, or involuntary manslaughter?
Homicide Mental States
Malice aforethought includes: intent to kill, intent to cause serious bodily harm, depraved heart (extreme recklessness), and felony murder (killing during an inherently dangerous felony).
Felony Murder Tips
Underlying felony must be inherently dangerous; death must be foreseeable and occur during the felony or flight. Watch who caused the death and if it was in furtherance of the felony.
Attempt
Attempt requires specific intent to commit the target crime plus a substantial step beyond preparation. Legal impossibility is a defense; factual impossibility is not.
Solicitation
Solicitation is asking or encouraging another to commit a crime with intent they do so. It is complete upon asking; withdrawal does not undo the solicitation offense.
Conspiracy
Conspiracy requires agreement, intent, and usually an overt act. Under Pinkerton, a conspirator is liable for foreseeable crimes by co-conspirators in furtherance of the conspiracy.
Step 5: Criminal Procedure – Search & Seizure and Confessions
4A Flowchart
Ask: (1) Government action? (2) Search or seizure? (3) Valid warrant? (4) If no warrant, does an exception apply (SILA, auto, plain view, consent, exigency, Terry)?
What Is a Search or Seizure?
Search: invasion of a reasonable expectation of privacy or physical trespass to get information. Seizure: person not free to leave, or significant interference with property.
Warrants & Exceptions
Valid warrant needs probable cause, particularity, and neutral magistrate. Without a warrant, rely on exceptions like search incident to arrest, auto, plain view, consent, exigency, or Terry frisk.
Miranda Basics
Miranda applies to custodial interrogation by known law enforcement. Custody = not free to leave; interrogation = words or acts likely to elicit an incriminating response.
Sixth Amendment Counsel
Right to counsel attaches after formal charges for that offense. Once invoked, police cannot deliberately elicit statements about that charged offense without counsel, unless validly waived.
Step 6: Evidence – Relevance, Hearsay, and Impeachment
Relevance
Evidence is logically relevant if it makes a fact of consequence more or less probable. It may still be excluded if its probative value is substantially outweighed by unfair prejudice or confusion.
Is It Hearsay?
Hearsay is an out-of-court statement offered for its truth. If it is offered for another purpose (effect on listener, impeachment, verbal act), it is not hearsay.
Non-Hearsay Categories
Treat as non-hearsay: certain prior statements by witnesses (inconsistent under oath, consistent to rebut fabrication, prior ID) and opposing party’s statements and related admissions.
Common Hearsay Exceptions
High-yield exceptions: present sense impression, excited utterance, then-existing state of mind, statements for medical diagnosis, business records, public records, and some unavailability-based exceptions.
Impeachment Methods
Impeach by showing bias, prior inconsistent statements, character for truthfulness, or certain criminal convictions. Always ask: is it being used to attack credibility or as substantive proof?
Step 7: Real Property – Estates, Future Interests, Mortgages, Landlord–Tenant
Present Estates
Fee simple absolute lasts forever. Life estate lasts for a life. Fee simple determinable ends automatically on condition; fee simple subject to condition subsequent ends only if grantor reenters.
Future Interests
Grantor can hold reversion, possibility of reverter, or right of entry. Grantees can hold remainders and executory interests. If it waits, it’s a remainder; if it cuts short, it’s executory.
Mortgages & Priority
Mortgage is a lien on property to secure a loan. Under lien theory, borrower keeps title. Priority is usually first in time, first in right, modified by the recording statute given in the problem.
Foreclosure Effects
Foreclosure sale wipes out junior interests that are properly joined but not senior interests. Buyers at foreclosure take subject to senior liens.
Landlord–Tenant Basics
Tenant must pay rent and avoid waste. Landlord must deliver possession, respect implied warranty of habitability (residential), and not interfere with quiet enjoyment.
Constructive Eviction
Substantial interference by landlord, tenant gives notice and vacates; then tenant is relieved of the duty to pay rent because they were constructively evicted.
Step 8: Quick Contract vs UCC Check
Use this question to practice identifying the governing law and the key rule.
Seller agrees in writing to sell Buyer 'all installation services needed to set up the machinery' for $10,000. The machinery itself is provided free by a third party. Seller later refuses to perform. Which law governs Buyer’s breach of contract claim against Seller?
- UCC Article 2, because the transaction involves machinery
- Common law, because the contract is primarily for services
- UCC Article 2, because any contract relating to goods is covered
- Either UCC or common law, at Buyer’s election
Show Answer
Answer: B) Common law, because the contract is primarily for services
The only contract between Buyer and Seller is for installation services; the machinery is provided by a third party. This is a pure services contract, so **common law** governs. UCC Article 2 applies to contracts for the sale of goods, not merely to transactions that happen to involve goods supplied by someone else.
Step 9: Crim Pro and Evidence Spotting Drill
Decide which doctrine is being tested and what the best rule application is.
Police, without a warrant, secretly record a suspect’s conversation with an undercover officer in a public restaurant. At trial, the suspect moves to suppress the recording as a Fourth Amendment violation. How should the court rule?
- Grant the motion, because the suspect had a reasonable expectation of privacy in the conversation
- Grant the motion, because the recording was obtained without a warrant
- Deny the motion, because there was no reasonable expectation of privacy in a public restaurant conversation
- Deny the motion, because undercover officers are exempt from the Fourth Amendment
Show Answer
Answer: C) Deny the motion, because there was no reasonable expectation of privacy in a public restaurant conversation
There is no reasonable expectation of privacy in a conversation voluntarily held in a public place with another person who could reveal its contents. The undercover officer’s recording does not constitute a Fourth Amendment search, so the motion should be denied. The lack of a warrant alone is not enough without a protected privacy interest.
Step 10: Rapid Rule Review Flashcards
Use these flashcards to reinforce the most testable rules from this module.
- UCC vs Common Law: When does UCC Article 2 apply?
- UCC Article 2 governs contracts for the **sale of goods** (movable, tangible items). Services, land, and employment contracts are governed by the **common law**. Mixed contracts use the predominant purpose test.
- Perfect Tender Rule (UCC)
- In a single-delivery sale of goods, the buyer may reject if the goods or tender **fail in any respect** to conform to the contract, subject to the seller’s right to **cure** if time remains and cure is seasonably notified.
- Material Breach (Common Law)
- A **material breach** deprives the non-breaching party of the substantial benefit of the bargain and allows them to suspend performance and sue for damages. Minor breach requires continued performance plus damages.
- Felony Murder – Core Requirements
- A killing during the commission or attempted commission of an **inherently dangerous felony** where the death is **foreseeable** and occurs during the felony or immediate flight. Watch who caused the death and whether it was in furtherance of the felony.
- Attempt – Elements
- **Specific intent** to commit the target offense plus a **substantial step** beyond mere preparation. Legal impossibility is a defense; factual impossibility is not.
- Fourth Amendment – Warrant Requirement
- A valid warrant needs **probable cause**, **particularity**, and a **neutral and detached magistrate**. Without a warrant, the search must fit a recognized exception (SILA, auto, plain view, consent, exigency, Terry, etc.).
- Miranda – When Required
- Miranda warnings are required before **custodial interrogation** by known law enforcement. Custody means a reasonable person would not feel free to leave; interrogation means words or actions likely to elicit an incriminating response.
- Hearsay Definition
- An **out-of-court statement** offered to prove the **truth of the matter asserted**. If offered for another purpose (effect on listener, impeachment, verbal act), it is not hearsay.
- Business Records Exception
- A record made at or near the time by someone with knowledge, kept in the regular course of business, as part of a regular practice, and authenticated by a custodian or qualified witness, unless circumstances indicate untrustworthiness.
- Fee Simple Determinable vs Condition Subsequent
- Fee simple determinable: "so long as" condition; estate ends automatically and grantor has a **possibility of reverter**. Fee simple subject to condition subsequent: "but if" condition; grantor must **exercise right of entry** to terminate.
- Constructive Eviction
- Occurs when landlord’s substantial interference with tenant’s use and enjoyment causes tenant to **(1) give notice, (2) allow reasonable time to cure, and (3) vacate**. Tenant is then relieved of the duty to pay rent.
Key Terms
- Hearsay
- An out-of-court statement offered to prove the truth of the matter asserted in the statement.
- Felony murder
- A form of murder where a killing occurs during the commission or attempted commission of certain inherently dangerous felonies.
- UCC Article 2
- Uniform Commercial Code provision that governs contracts for the sale of goods (movable, tangible items).
- Material breach
- A breach serious enough to deprive the non-breaching party of the substantial benefit of the bargain, allowing suspension of performance and damages.
- Substantial step
- An act that strongly corroborates the defendant’s criminal intent and goes beyond mere preparation for an attempt crime.
- Perfect tender rule
- UCC rule allowing a buyer to reject goods if they fail in any respect to conform to the contract, subject to the seller’s right to cure.
- Constructive eviction
- A situation where the landlord’s wrongful conduct substantially interferes with the tenant’s use and enjoyment, effectively forcing the tenant to leave.
- Custodial interrogation
- Questioning by law enforcement after a person has been taken into custody or otherwise deprived of freedom in a significant way.
- Fee simple determinable
- A defeasible fee estate that automatically ends upon the occurrence of a stated condition, returning to the grantor via possibility of reverter.
- Business records exception
- Hearsay exception for records kept in the regular course of business, made at or near the time by someone with knowledge, as part of a regular practice.