contracts approach

Question 1

steps to answer a K question

Answer 1

(1) what law applies?

– CL - land, services

– UCC - sale of goods

(2) ask whether a K was formed

K = (O + A) + C - D
Contract = offer+ acceptance/mutual assent + Consideration - Absence of defenses

defenses
– lack of capacity
– ambiguous language
– mistake
– unconscionability (unfair surprise, oppressive terms, tested at time of the K)
– economic duress
– statute of frauds UCC [MY LEGS] [and exceptions]

(3) what does K mean? interpret terms
— does parol evidence apply?
— UCC supply terms?

(4) is performance excused?

(5) was K breached?

(6) remedies

(7) are there third-party beneficiaries, assignments or delegations?

Question 2

what are ads?

Answer 2

not offers

Question 3

offers are generally revocable unless

Answer 3

paid for option K

foreseeable detrimental reliance

started performance under unilateral K

or

merchant’s firm offer

Question 4

termination of offer methods

= no acceptance

Answer 4

lapse of time — not accepted in reasonable time

revocation – offeror retracts offer

rejection — counteroffer, conditional acceptance

death

Question 5

what to analyze with offer

Answer 5

whether offer was accepted or not [offeree action]

whether offer was revoked [offeror action]

Question 6

what to analyze with acceptance

Answer 6

mailbox rule

mirror image rule - common law
— acceptance must mirror offer terms

UCC - no mirror image - battle of the forms applies

Question 7

what to know about consideration

Answer 7

bargained for exchange

OR if not, is there promissory estoppel claim to get the promise enforced?

Question 8

breakdown of questions

Answer 8

1/2 contract formation, performance, breach, and discharge

1/2 defenses, parol evidence, remedies and third party rights

Question 9

barbri approach

Answer 9

(1) what MBE subject is being tested
[read the call of the question, and, if necessary, skim answer choices]

(2) what are the broad and narrow topics being tested?
[ex: contract formation … offer, acceptance … mailbox rule, etc.]

(3) pinpoint the rule
—- find legally significant facts

JOT NOTES

Question 10

what are legally significant facts in K questions

Answer 10

[1] Dates [contract formation, etc.]

[2] Dollar amounts [statute of frauds, damages, mistakes, etc.]

[3] Contract formation words of offer, acceptance, consideration

[4] Words of condition such as “if,” “when,” etc. – condition precedent, conditional acceptance etc. [find out if they impact the outcome]

Question 11

5 fundamental questions that you need to be able to answer for every contract question

and write in the margins the answer

Answer 11

(1) Is the K for goods, land, or services, and, if for goods are there any merchants involved?

movable things = UCC
land or services = CL

Frequently tested differences:
[a] mirror image rule [acceptance must be identical to terms of offer, otherwise it is a counteroffer] vs. UCC battle of the forms [acceptance to terms may differ from offer]

[b] UCC does not care about unilateral vs. bilateral K …
——-under UCC, all contracts allow for acceptance by promise to ship OR shipment … ———–under CL, unilateral K only allow acceptance by performance; and bilateral K can only be acceptance by promise [I DONT THINKS THIS IS RIGHT?]

[c] modifications
—– at CL, modification needs consideration to be enforceable
—— for UCC modifications, only need good faith reason to modify

(2) Is the K written or oral?

“phone” = oral
“in person” = could be either
“writing” = written
subsequent writing can be significant

IMPLICATIONS
- Statute of frauds, Parol evidence
———————————————————————-
(3) Does the hypo involve any third party rights?

[a] third party beneficiary
— look for at least 3 parties and where performance is owed to someone not a party to the K

3 issues tested
(i) whether party is intended or incidental
(ii) whether 3PB can sue and what defenses can be raised
(iii) whether K can be modified or cancelled without 3PB’s permission

3PB’s rights vest when she:
- assets to K
- detrimentally relies on K
- brings lawsuit to enforce K

[b] assignment of rights
- one party seeks to transfer his right to third party

[c] delegation of duties
- transfer of obligation
- note exceptions
———————————————————————-
(4) Are there any applicable defenses, such as the statute of frauds?

[a] Statute of Frauds and exceptions - oral agreements as trigger

[b] mistake or misunderstanding - mutual and unilateral

[c] incapacity to contract

OTHER DEFENSES:
duress
undue influences
fraud
misrepresentation
nondisclosure
illegality
unconscionability
violation of public policy

[d] discharge of contract
— impracticability and frustration of purpose
— breach by anticipatory repudiation (needs clear expression of non-performance
— accord and satisfaction

(5) What is the remedy?

[a] at law or equity?

[b] calculate damages if at law

[c] note lost volume sellers

[d] equitable remedies etc. – keep quasi contract in mind when someone performed but there was no contract

Question 12

study tips

Answer 12

chart out differences between CL and UCC transactions – note that UCC is made to make commercial transfers of goods among sellers of goods easier