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Sean Silverman

Homicide on the MBE

Jul

Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York. For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com. And while there, feel free to submit a question. If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com.

The first thing you’ll want to do when analyzing either an essay question, or an MBE question dealing with homicide is to realize that there are 3 types of homicide. Understanding the “big picture” concepts is essential before attempting to learn the details of each of those concepts.

The three types of homicide are (1): Murder; (2): Voluntary Manslaughter; and (3): Involuntary Manslaughter. Let’s examine each.

Murder is the unlawful killing of a human being with malice aforethought. When analyzing murder, you should immediately break the crime down into four distinct categories: A: Intent to kill; B: Intent to inflict great bodily injury; C: Reckless indifference to an unjustifiable high risk to human life; and D: Intent to commit a felony. All four of these categories have one thing in common: they all satisfy the malice aforethought requirement essential for a finding of murder.

The first two are pretty straightforward, if you intend to kill someone, and you succeed, you can be guilty of murder. In addition, if you intend to inflict serious bodily harm on someone, and the person dies in the process, you can be guilty of murder. The third is a situation in which even though you might not have had the intent to kill, or the intent to seriously injure, your actions were extremely reckless, and that recklessness posed such a high risk to human life, that it, too, satisfies the requirement of malice aforethought.

Lastly, we have felony murder. You’ll want to look for a situation in which a death occurs during the commission of an inherently dangerous felony (ie,, burglary, rape, robbery kidnapping, etc.). Although the traditional concept of malice is not satisfied (the killing might not have risen to the level or either recklessness or intent to kill/injure); malice is implied from the intent to commit the underlying felony.

Next, let’s discuss voluntary manslaughter. All that is stated above in regards to the requirements for murder apply to voluntary manslaughter, with one additional element: adequate provocation. In other words, voluntary manslaughter is murder + adequate provocation. In analyzing adequate provocation, certain elements require a subjective mindset, and others, an objective mindset. Provocation is adequate only if an intense passion is aroused in the mind of an ordinary person (objective); the defendant was in fact provoked (subjective); there was not sufficient time for an ordinary person to calm down from the provocation (objective), and defendant did not, in fact, calm down (subjective). If all 4 of these elements are satisfied, a charge of murder might be reduced to voluntary manslaughter.

Lastly, let’s look at involuntary manslaughter. Involuntary manslaughter occurs when a killing results from criminal negligence on the part of defendant. Criminal negligence need not rise to the level of fault as discussed in our discussion of murder requiring recklessness. This is a fine distinction, but one that you should note carefully. Reckless indifference to the lives of others can result in murder, while criminal negligence can result in involuntary manslaughter.

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Contract Defenses

by Dina Allam

Jun

The defenses of impossibility, impracticability, and frustration of purpose are sometimes confusing in that they seem rather similar, and can be difficult to differentiate. The following explains some key differences between these defenses to enforcement of a contract.

Before getting into the differences, let’s discuss one important similarity among these ideas. Your analysis as to these issues should only begin once you’ve determined that a party to the contract is under an immediate duty to perform. If a party is under an immediate duty to perform, the duty to perform might be discharged by impossibility, impracticability, or frustration of purpose. To claim impossibility, impracticability, or frustration of purchase, you must first ensure that the non-occurrence of the event that caused the impossibility, impracticability, or frustration of purpose was a basic assumption of the parties in making the contract, and that neither party has expressly or impliedly assumed the risk of the event occurring.

In regards to impossibility, contractual duties will be discharged if it has become impossible to perform them. Note that the impossibility must be objective (it’s not enough that the duties could not be performed by a given individual, it has to be true that the duties could not be performed by anyone). The impossibility must arise after the contract has been entered into. If, in fact, the impossibility existed prior to the contract being entered into, then you would have a formation problem (most likely mutual or unilateral mistake), and you would analyze in that respect. If you do use impossibility within your analysis of a contracts question, note that if a contract is discharged because of impossibility, each party is excused from duties arising under the contract that are yet to be performed. There is, however, a problem if a party has already performed some duties prior to the impossibility. To resolve this problem, each party may sue for rescission and receive restitution.

With impracticability, it has not become impossible for a party to perform his/her duties under a contract, but instead the party to perform has encountered extreme and unreasonable difficulty and/or expenses. You would analyze impracticability in the same manner as impossibility, allowing those who have already partially performed to rescind the contract and receive restitution. Note that impracticability often comes up in UCC Sales questions when contingencies such as war, strike, embargo, or other unforeseen circumstances can excuse the seller’s duty to perform. But also note that mere increases in cost are rarely sufficient to discharge a seller’s duty to perform; this was a risk that the seller assumed.

Frustration of purpose exists if the purpose of the contract has become valueless due to some event not the fault of the party seeking discharge. Note the difference between frustration of purpose, and impossibility/impracticability. With the latter two, performance of the duties to the contract could not be performed (perhaps because the subject matter of the contract had been completely destroyed, or one of the parties had died), but here, although the contract could still be performed, contractual duties will be discharged if the purpose of the contract has been frustrated. You’ll have to ensure that an act after formation of the contract has destroyed the purpose of the contract, neither parties could have reasonably foreseen the event that destroyed the purpose, and that the purpose of the contract was realized by both parties at the time of making the contract.

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The Rule Against Perpetuities

by Dina Allam

Jun

The following is my advice regarding how to systematically approach a question on the MBE that requires you to apply the rule against perpetuities.

The first thing you’ll want to do is memorize the rule: No interest is valid unless it must vest within 21 years of some life in being at the creation of the interest. What this means is that certain future interests are void if there is any possibility that the interest may vest more than 21 years after the death of a relevant life. If a future interest violates the rule, generally the life estate that was created at the same time remains valid but the future interest is voided. The interest that would have passed to the future interest holder instead is usually received as a future interest of the grantor in the form of a reversion (reversions are not subject to the rule against perpetuities).

On the MBE, your mindset should be as follows:

Determine the type of future interest that is being created. This is essential because the rule against perpetuities only applies to some interests. The rule applies to contingent remainders, executory interests, and certain vested remainders subject to open. Along with reversions, the rule does not apply to vested remainders other than those subject to open.

Once you’ve determined that you’re dealing with an interest that is subject to the rule, find the measuring lives. The measuring lives are those who are alive at the time of conveyance whose life or death is relevant to the conditions occurring.

Finally, see if there is any possibility that the conditions will only be satisfied more than 21 years after the death of all the measuring lives. Remember, all that is necessary is a possibility.

As an example, assume a grant to A for life, then to the first child of A to reach 25 years old. Assume that at the time of the grant, A has a child who is 23 years old. A has a life estate, and the first child of A to reach 25 has a vested remainder. Vested remainders are subject to the rule, so you’ll need to consider it. Is it possible that the first child of A to reach 25 might reach that age more than 21 years after the measuring lives?

The measuring lives here are A, and A’s 23 year old child. What if the day after this grant, A’s child dies. A has another child, and then A dies the day after that child is born. That child (let’s call him B) will reach the age of 25 more than 21 years after any of the measuring lives (because B will reach age 25 more than 21 years of after the death of A, and A’s child). Because it’s possible for this to occur, the grant to A’s child is voided by the rule against perpetuities, and instead A is given a life estate, and the grantor is given a future interest in the form of a reversion.

If you have any follow-up questions, as always, feel free to ask them in the comments.

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Sean Silverman

Homicide on the MBE

Contract Defenses

The Rule Against Perpetuities

The Differences Between Negligence and Strict Liability in Torts

Recording Statutes as They Apply to Real Property on the MBE

Breaking Down Buyer’s Remedies Under the UCC

Character Evidence: Breaking It Down!

Studying for the MBE: A Practical Approach

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