Barbri Final Exam Questions With 100%
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A motorist, a citizen of State A, was injured when her car collided with a bakery delivery
truck. The bakery company that owns the truck is a State B corporation based in State B.
The driver of the truck is a citizen of State A and an employee of the bakery company, and
he was acting in the scope of his employment when the collision occurred. The motorist
filed an action against the bakery company in federal district court. The complaint alleges
that the bakery company is liable for the negligence of its employee, the driver. The bakery
company in turn filed a third-party claim against its driver, alleging that he, as the
primarily negligent party, is liable to the company for any sum that the motorist recovers
from it.
Can the driver, once impleaded, assert and maintain in the same action a counterclaim
against the bakery company under the federal Fair Labor Standards Act to recover $2,000
in wages that the company failed to pay the driver?
A No, because the driver's counterclaim does not arise from the same transaction or
occurrence as the motorist's original claim.
B No, because the court lacks subject matter jurisdiction over the driver's counterclaim.
Correct
C Yes, because the driver's counterclaim is permitted under the Federal Rules of Civil
Procedure.
D Yes, because if the driver does not assert the counterclaim, he will be barred from
asserting the claim as an independent action.
C
The driver may assert a counterclaim against the bakery company. Once a third-party defendant
is impleaded, he may assert permissive and compulsory counterclaims the same as any other
defendant. If a counterclaim arises out of the same transaction or occurrence as one of the
plaintiff's claims, it is a compulsory counterclaim and must be pleaded or it will be barred. Any
,other counterclaim is permissive and may be asserted even though there is no connection at all
between it and the plaintiff's claim, as long as there is subject matter jurisdiction for the
counterclaim. Here, the wage claim does not arise from the same transaction or occurrence as the
claim asserted against the driver, but it has an independent jurisdictional basis, so it is permitted
as a permissive counterclaim. Therefore (A) is incorrect. (B) is incorrect because the court has
federal question jurisdiction over the driver's federal Fair Labor Standards Act claim. (D) is
incorrect because this claim has an independent jurisdictional basis and may be asserted
independently rather than as a permissive counterclaim.
On July 26, a manufacturer of computer accessories received a purchase order form from
a retailer who ordered 2,000 ergonomic mouse pads for delivery no later than September 1
for a total price of $10,000, as quoted in the manufacturer's current catalog. Two days
later, the manufacturer faxed its own purchase order acceptance form to the retailer, who
was a first-time customer. This form stated that it was an acceptance of the specified order,
was signed by the manufacturer's shipping manager, and contained all of the terms of the
retailer's form, but it also contained an additional printed clause stating that the
manufacturer makes no express or implied warranty of fitness or of merchantability.
Assuming no further communication between the parties, which of the following is an
accurate statement of the legal relationship between the manufacturer and the retailer?
A There is an enforceable contract between the parties whose terms include an implied
warranty of merchantability.
B There is an enforceable contract between the parties whose terms do not include an
implied warranty of fitness or merchantability.
C There is no enforceable contract between the parties because the manufacturer's form
constituted a rejection of the retailer's offer and a counteroffer by the manufacturer.
Incorrect
D There is no enforceable contract between the parties because the manufacturer's form
added an additional term that materially altered the terms of the retailer's offer.
A
, The manufacturer and the retailer have a contract without the disclaimer of warranties. Thus, the
terms include the implied warranty of merchantability. In contracts for the sale of goods, a
definite expression of acceptance operates as an acceptance even if it states additional terms.
Between merchants, additional terms proposed by the offeree in an acceptance automatically
become part of the contract unless: (i) they materially alter the original terms of the offer (e.g.,
they change a party's risk or the remedies available); (ii) the offer expressly limits acceptance to
the terms of the offer; or (iii) the offeror objects to the additional terms within a reasonable time.
A disclaimer of warranties is a material alteration because such a clause affects the remedies that
the parties can pursue. Hence, the acceptance is effective to create a contract but the disclaimer
clause would not become part of the contract. (B) is therefore incorrect. (C) is incorrect because
it reflects the common law "mirror image" rule, which the UCC has rejected in sale of goods
cases. (D) is incorrect because under the UCC rule, the inclusion of a material additional term
does not prevent formation of a contract; instead, a contract is formed without the inclusion of
that additional term.
During the investigation of a large gambling operation, the police obtained a warrant to
search a bookie's home based on the affidavit of an informant. The informant was a rival
bookie who had never acted as an informant before, and much of the substance of the
rival's information came from third-party sources. During the search, the police seized a
variety of gambling evidence, including betting slips and a check from the defendant. The
bookie and the defendant were arrested for violating the state's gambling laws, and
separate trials were ordered. At a suppression hearing for the bookie, the court held that
the search warrant for the bookie's home was not supported by probable cause and
suppressed introduction of the evidence seized. The defendant moved to suppress
introduction of the betting slips and the check on the same basis.
If the court agrees that the search warrant of the bookie's home was not supported by
probable cause, should the defendant's motion be granted?
A Yes, because the rival bookie was not a reliable informant.
Incorrect
B Yes, because the evidence is the fruit of an unlawful search.
Correct
Verified Answers!!
A motorist, a citizen of State A, was injured when her car collided with a bakery delivery
truck. The bakery company that owns the truck is a State B corporation based in State B.
The driver of the truck is a citizen of State A and an employee of the bakery company, and
he was acting in the scope of his employment when the collision occurred. The motorist
filed an action against the bakery company in federal district court. The complaint alleges
that the bakery company is liable for the negligence of its employee, the driver. The bakery
company in turn filed a third-party claim against its driver, alleging that he, as the
primarily negligent party, is liable to the company for any sum that the motorist recovers
from it.
Can the driver, once impleaded, assert and maintain in the same action a counterclaim
against the bakery company under the federal Fair Labor Standards Act to recover $2,000
in wages that the company failed to pay the driver?
A No, because the driver's counterclaim does not arise from the same transaction or
occurrence as the motorist's original claim.
B No, because the court lacks subject matter jurisdiction over the driver's counterclaim.
Correct
C Yes, because the driver's counterclaim is permitted under the Federal Rules of Civil
Procedure.
D Yes, because if the driver does not assert the counterclaim, he will be barred from
asserting the claim as an independent action.
C
The driver may assert a counterclaim against the bakery company. Once a third-party defendant
is impleaded, he may assert permissive and compulsory counterclaims the same as any other
defendant. If a counterclaim arises out of the same transaction or occurrence as one of the
plaintiff's claims, it is a compulsory counterclaim and must be pleaded or it will be barred. Any
,other counterclaim is permissive and may be asserted even though there is no connection at all
between it and the plaintiff's claim, as long as there is subject matter jurisdiction for the
counterclaim. Here, the wage claim does not arise from the same transaction or occurrence as the
claim asserted against the driver, but it has an independent jurisdictional basis, so it is permitted
as a permissive counterclaim. Therefore (A) is incorrect. (B) is incorrect because the court has
federal question jurisdiction over the driver's federal Fair Labor Standards Act claim. (D) is
incorrect because this claim has an independent jurisdictional basis and may be asserted
independently rather than as a permissive counterclaim.
On July 26, a manufacturer of computer accessories received a purchase order form from
a retailer who ordered 2,000 ergonomic mouse pads for delivery no later than September 1
for a total price of $10,000, as quoted in the manufacturer's current catalog. Two days
later, the manufacturer faxed its own purchase order acceptance form to the retailer, who
was a first-time customer. This form stated that it was an acceptance of the specified order,
was signed by the manufacturer's shipping manager, and contained all of the terms of the
retailer's form, but it also contained an additional printed clause stating that the
manufacturer makes no express or implied warranty of fitness or of merchantability.
Assuming no further communication between the parties, which of the following is an
accurate statement of the legal relationship between the manufacturer and the retailer?
A There is an enforceable contract between the parties whose terms include an implied
warranty of merchantability.
B There is an enforceable contract between the parties whose terms do not include an
implied warranty of fitness or merchantability.
C There is no enforceable contract between the parties because the manufacturer's form
constituted a rejection of the retailer's offer and a counteroffer by the manufacturer.
Incorrect
D There is no enforceable contract between the parties because the manufacturer's form
added an additional term that materially altered the terms of the retailer's offer.
A
, The manufacturer and the retailer have a contract without the disclaimer of warranties. Thus, the
terms include the implied warranty of merchantability. In contracts for the sale of goods, a
definite expression of acceptance operates as an acceptance even if it states additional terms.
Between merchants, additional terms proposed by the offeree in an acceptance automatically
become part of the contract unless: (i) they materially alter the original terms of the offer (e.g.,
they change a party's risk or the remedies available); (ii) the offer expressly limits acceptance to
the terms of the offer; or (iii) the offeror objects to the additional terms within a reasonable time.
A disclaimer of warranties is a material alteration because such a clause affects the remedies that
the parties can pursue. Hence, the acceptance is effective to create a contract but the disclaimer
clause would not become part of the contract. (B) is therefore incorrect. (C) is incorrect because
it reflects the common law "mirror image" rule, which the UCC has rejected in sale of goods
cases. (D) is incorrect because under the UCC rule, the inclusion of a material additional term
does not prevent formation of a contract; instead, a contract is formed without the inclusion of
that additional term.
During the investigation of a large gambling operation, the police obtained a warrant to
search a bookie's home based on the affidavit of an informant. The informant was a rival
bookie who had never acted as an informant before, and much of the substance of the
rival's information came from third-party sources. During the search, the police seized a
variety of gambling evidence, including betting slips and a check from the defendant. The
bookie and the defendant were arrested for violating the state's gambling laws, and
separate trials were ordered. At a suppression hearing for the bookie, the court held that
the search warrant for the bookie's home was not supported by probable cause and
suppressed introduction of the evidence seized. The defendant moved to suppress
introduction of the betting slips and the check on the same basis.
If the court agrees that the search warrant of the bookie's home was not supported by
probable cause, should the defendant's motion be granted?
A Yes, because the rival bookie was not a reliable informant.
Incorrect
B Yes, because the evidence is the fruit of an unlawful search.
Correct
