On the MBE exam there are concepts that are counterintuitive to me, and applying what I think is common sense will not necessarily lead me to the correct answer. However, you will also sometimes encounter scenarios on the MBE where simply using a little bit of common sense will help lead you to the correct answer, and here are a couple of them:
1) Evidence: Whether the judge or jury decides that a piece of evidence is admissible
On an MBE question about whether a piece of evidence is admissible, there will sometimes be an answer choice that states that it is up to the jury to decide whether to admit a piece of evidence. This answer choice is always incorrect.
Why you can apply a little common sense: let’s think this through for a moment: The court is deciding whether the jury should be allowed to see (or hear) a piece of evidence. However for the jury to decide whether a piece of evidence is admissible, the jury would have to know what the piece of evidence is. Therefore if the jury decided that the piece of evidence is inadmissible, it still would have already seen the evidence (which would defeat the purpose). If you were deciding whether a movie was appropriate for your six year old child to view, you wouldn’t ask your child to view the movie and then make that decision. Even if your child says, “Hey, after watching Pulp Fiction I’ve decided that it’s inappropriate for me,” it’s too late because they have already seen the movie. It simply doesn’t make sense for the jury to decide whether a piece of evidence is admissible. This bit of common sense will help you remember that the judge decides whether evidence is admissible, and the jury decides what to do with that evidence if it’s deemed admissible.
2) Conditions (Contracts)
A condition requires something to occur or not occur in order for the parties to be obligated to perform the contract. One of the parties has to do something, or some event has to occur or not occur for the contract to be enforceable. If the condition is not met, the party that the condition was designed to protect (the party who would have benefited from the condition) has the option to waive the condition and perform the contract anyways if she chooses.
Sometimes on an MBE question there will be a scenario where a condition is not met and the party who is protected by the condition chooses to waive the condition and go through with the contract. However, the other party (who wasn’t benefiting from the condition) claims that since the condition was not met there is no contract and he has no obligation to perform. This argument will not work.
Example: Suppose you enter into a contract with a local car dealer to purchase a new car, provided that you can secure an interest rate of under 4 percent on a bank loan to finance the purchase of the car. This is a condition to the contract, and if it does not occur the parties to the contract will not be obligated to perform. You do your best to try to secure a loan with an interest rate of under 4 percent but the best you can do is 5 percent, so the condition has not been met. You like the car so much though that you choose to waive the condition and go through with the purchase anyways. However the car dealer refuses to sell you the car, claiming that since the condition was not met he is not obligated to honor the contract. Will the car dealer be obligated to perform and sell you the car? YES.
Where you can use a little common sense: After the dealer told you he will not perform his end of the contract, you would likely think, “I’m the one who has to pay 5 percent interest on the bank loan, and that’s my problem since you’re getting paid for the car anyway. What does the interest rate have to do with you, and why would that allow you to not perform your end of the deal?” And your thinking would be correct. Obviously the condition was for your benefit and not the car dealer’s, so a little common sense tells us that he cannot use this as an excuse to refuse to sell you the car if you still want to buy it. You have the right to not go through with the sale because the condition (you securing an interest rate of under 4 percent) was not met, but you also have the right to waive the condition and go through with the purchase as well. Either way, it’s your decision and not the car dealer’s decision, because the condition was designed to protect you. You can use this basic logic to help you remember that if the party that the condition is protecting decides to waive the condition and go through with the contract, the other party must also perform the contract.