Big Issues in Contracts - for CA Bar Exa,

Question 1

What’s difference between Anticipatory Repudiation v. Prospective Inability to Perform?

Answer 1

Prospective inability or unwillingness to perform differs from anticipatory repudiation because repudiation must be unequivocal, whereas prospective failure to perform involves conduct or words that merely raise doubts that the party will perform. Repudiation must be unequivocal.
However, a prospective failure to perform is not based on the subjective beliefs of the other party, but rather is judged on a reasonable person standard.
Both repudiation and prospective failure to perform may be retracted, provided the other party has not yet changed position in reliance on the repudiation or prospective failure. The effect of a prospective failure is to allow the innocent party to suspend performance until she receives adequate assurances. She may treat this situation as a breach only if the assurances are not given. If a defaulting party regains his ability or willingness to perform, he must communicate that to the other party.

Question 2

What are 11 Defenses to Formation?

Answer 2

S - Statute of Frauds
U - Unconscionability
A - Adhesion contracts
I - Incapacity
M - Mistake
I - Illegality
M - Misrepresentation
A - Ambiguity
D - Duress
F - Fraud
P - Parol Evidence Rule

Question 3

What is the outer checklist of issues in Contract Law?

Answer 3

F - Formation
T - Third party rights
P - Performance
C - Conditions/ Covenants (SWAP DIVE)
D - DISCHARGE (IM FOR SANDI)
B - BREACH
R - REMEDIES

Question 4

STATUTE OF FRAUDS
How do you take RP out of the statute of frauds?

Answer 4

by Part Performance.
Examples:
1. Take possession
2. Make payments
3. Act in manner consistent with owner