California Bar Exam Contracts Overview And Short Outline

Posted in BarBri with tags , on May 30, 2012 by George

Overview Contracts Checklist

‒        “Armadillos From Texas Produce Bad Rally Towels”

  • Applicable Law
  • Formation of Contract
  • Terms
  • Performance/Excuse thereof
  • Breach
  • Remedies
  • Third Party Rights

Contract Essay Strategy

‒        1) Read Call of the Question FIRST.

‒        2) Write Down Checklist

‒        3) For Ks, be prepared to argue alternatives!

  • Define all legal terms

I. DOES THE UCC APPLY?

‒        UCC or Common Law? Which law applies?

  • UCC governs Ks for the sale of goods. (Because “goods” is a legal term, you should define it). Good are moveable tangible items
  •  Common law governs contracts for services.
  • Mixed goods/services- apply predominate factor test.

‒        Merchants?

  • If UCC problem, then in a separate paragraph determine if the parties are merchants if facts give rise to the issue.

II. IS THERE A VALID CONTRACT?

‒        A. Offer: An offer is a manifestation of a present intent to contract demonstrated by a promise, undertaking or commitment, stated in definite and certain terms, and communicated to an identifiable offeree.

‒        B. Merchant’s Firm Offer or Option Contract?

  • Tip: Only raise if an issue and you should raise it before you discuss termination of the offer issues.

‒        C. Has the offer been terminated? (note- “Termination of Offer” should not be your head note. Your head note should be of the issue, for example: Revocation.)

  • Lapse of time
  • Revocation: A revocation is evidence by words or conduct of the offeror terminating the offer. It’s effective upon receipt except when it’s irrevocable due to an option contract, merchant’s firm offer, or when there’s detrimental reliance.
  • Rejection: Words or conduct of the offeree rejecting the offer. It’s effective when received. Counteroffer acts as rejection
  • Termination by operation of law
  • Death or insanity of either party
  • Destruction of subject matter of the contract
  • Supervening illegality
  • D- Death / Destruction of subject matter / Disability
    I- Illegality / Insanity
    R- Rejection by offeree
    T- Time, lapse of
    C- Counteroffer
    A- Acceptance
    R- Revocation by offeror

‒        D. Acceptance: An acceptance is an unequivocal assent to the terms of the offer made by one with the power of acceptance.

  • Method of acceptance: promise to perform, starting to perform, or complete performance
  • Mode of acceptance: manner authorized by offer or any reasonable manner
  • Effective upon dispatch
    • mailbox rule
    • limits on mailbox rule

‒        E. Consideration: Consideration is a bargained for exchange of legal detriment or legal benefit

  • Things to consider:
    • adequacy generally irrelevant
    •  past consideration
    • “pre-existing” duty rule
    • part payment to settle existing debt
    •  payment to settle legal claim
    • payment of debt barred by statute of limitations
    • Promissory estoppel or detrimental reliance as a substitute for consideration

‒        F. Defenses to formation

  • 1. Statute of frauds
    • Applies to MY LEGS (marriage, Ks that cannot be performed within 1 year, land, executor, goods worth $500 or more, and surety)
    • Tip 1: Always raise if K formation is an issue.
    • Tip 2: If an exception applies, then for best organization you should first conclude K fails for SOF and then separately head note and IRAC the applicable exception(s).
    • Exceptions for Goods rule: remember SWAP: Specially made goods, Written confirmation (Merchant’s Confirmatory Memorandum), Admission in court, and Performance)
    • 2. Mistake
    • 3. Illegality
    • 4. Lack of capacity
    • 5. Unconscionability
    • 6. Duress
    • 7. Fraud

III. TERMS OF THE CONTRACT

‒        Additional Terms

  • Under common law, acceptance must mirror the offer.
  • Under the UCC, an acceptance which adds terms to the offer is valid. Between merchants, the additional terms become part of the contract unless they materially alter the contract, unless the offeror objects, or unless the offer is limited to its terms. UCC § 2-207

‒         Ambiguous Terms

  • Court will apply ordinary meaning per K rules of construction
  • Custom and usage in the industry
  • Course of dealing between the parties

‒        Parol Evidence Rule

  • Evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or vary contractual terms is inadmissible if the written contract is intended as a complete and final expression of the parties.

‒        Modification

  • Additional consideration needed under the common law
  • Under UCC, no consideration needed so long as in good faith
  • Modification may need to satisfy Statute of Frauds
    • Oral modifications?

IV. THIRD PARTIES RIGHTS OR OBLIGATIONS

‒        Third Party Beneficiaries

  • 1. Intended or Incidental TPB?
  • 2. Creditor or Donee TPB?
  • 3. Have rights vested?
  • 4. Who can sue whom?
    • TBP v. promisor
    • promisee v. promisor
    • TBP v. promise

‒        Assignment of Rights

  • Assignments are generally valid unless they materially alter the obligor’s duty or risk, or unless they are prohibited by law
  • Does obligor have defenses against assignee?
  • What happens when there is more than one assignment of the same right?

‒        Delegation of Duties

  • Delegation of duties is permitted except where prohibited by the contract, where the duties involve personal judgment and skill or where the delegation would change the obligee’s obligations. Obligee may sue delegator and delegatee.

V. Anticipatory Repudiation

A. Rule

In cases where the other party’s words, actions, or circumstances make it clear that he is unwilling or unable to perform, the aggrieved party may: (i) sue immediately, (ii) suspend his own performance and wait and see until the due date, (iii) treat the repudiation as an offer to rescind and treat the contract as discharged, or (iv) ignore the repudiation and urge performance.

B. Adequate Written Assurances

If reasonable grounds for insecurity arise regarding the other party’s performance then you may in writing demand adequate assurance of due performance. Until you receive this, you may suspend your own performance. If none is given within a reasonable amount of time (not over 30 days), you may treat the contract as repudiated.

VI. PERFORMANCE

‒        Conditions

  • Types of conditions
    • Express, implied, or constructive
    • Precedent, concurrent, subsequent

‒        Satisfaction of conditions

‒        Defenses to Nonperformance

  • Excuse of conditions
    • Wrongful prevention
    • Voluntary disablement
    • Anticipatory repudiation
    • Waiver
    • Estoppel
  • Discharge of duties
    • Impossibility
      • death or physical incapacity
      •  illegality
      • destruction of subject matter
      • objective standard.
      • Impracticability
        • extreme and unreasonable difficulty that was unanticipated
        • subjective test
        • Frustration of purpose
        • Rescission
        • Novation
        • Accord and satisfaction

VII. BREACH

‒        Is the breach major or minor? Note: If minor, then the non-breaching party is still obligated to perform. His/her performance is not excused.

VI. DAMAGES & REMEDIES

‒        Expectation Damages- benefit of the bargain.

  • If UCC, then consider Cover

‒        Consequential Damages

  • Must be foreseeable, certain, i.e. not speculative, and unavoidable. Look for the words “loss revenues”, “new business” to raise issue.

‒         Incidental Damages

‒        Liquidated damages

  • actual damages difficult to calculate at the time the contract was formed and amount is a reasonable forecast of damages

‒        Punitive damages

‒        Duty to Mitigate

‒        Restitution- Quasi-K

  • Tip: Make sure to raise Quasi-K anytime K formation is questionable.

‒         Specific Performance

  • Tip: Mini-IRAC the elements if it is specifically asked for in the call or fact pattern or if it is jumping off the page as a major issue. If it is not a major issue, then just raise and discuss in one paragraph.

‒        Recission

‒        Reformation

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Battle Shots Review

Posted in BatteShots, Random with tags , , on May 9, 2012 by George

I recently was able to get my hands on the new and exciting Battle Shots drinking game developed by the official Battle Shots company. Since playing the game a few times, I’d like to provide my personal review of the drinking game using several factors: ease of use, durability, drinkability, and overall level of fun that the game provides on a scale of 1 to 5. Here goes nothing:

1. EASE OF USE = 5 out of 5.

  • As you can see below the game comes fully equipped with shot glasses, pens for keeping track of hits and misses and two battleship-like looking board pieces that we had to put together to create the drinking game.
  • The board’s easily set into place above where the shot glasses without a problem and the shot glasses easily fit within their designated areas as well.
  • As for the game’s instructions, they were pretty clear and straightforward. It should be noted:
    • 3 shot glasses together = Carrier
    • 2 shot glasses together = Destroyer (you had two of these)
    • 1 shot glass = Submarine
  • See the picture below for everything included:

2. DURABILITY = 4 out 5.

  • The shots glasses were made of plastic and were fairly sturdy. However, during a party these could easily get lost or even broken, especially for the sloppy frat boy. However, the best part about the game board is that regular shot glasses or even dixie cups actually FIT in the designated places on the grid. Pretty Cool Stuff.
  • The part that you record your score was made of a shiny/eraser-friendly cardboard. I would have preferred something more sturdy, but it got the job done.
  • Cleaning and washing everything wasn’t a problem either.

3. DRINKABILITY = 10 of 5

  • During each game, each player is given 8 shots to drink. I also measured each shot glass, it is exactly 1 oz. So if you were using hard alcohol, this game is a pretty intense pre-game since it takes only between 15 and 20 minutes to play one game. However, if you were drinking a mixed beverage of sorts, or a beer (as seen in the picture below), you can drink and play many more games without falling over.
BattleShots with Beer

BattleShots with Beer

4. OVERALL RECOMMENDATION = 4.5 out of 5.

For the amount of money that the game costs and the amount of fun that you could potentially have while playing this game it is worth every penny. Here are some pros and cons I thought of to playing BattleShots:

  • PROS
    • Great pre-game! Playing two games and losing is 16 shots in roughly less than a hour.
    • It’s like Battleship with booze.  What can be better?
  • CONS
    • If you play with hard liquor, don’t plan on doing anything afterwards.

Where Can You Buy This Game?

  • Check out BattleShots.com and you can purchase it directly from that site.

Game Suggestions For the Future

  • Play with more people, obviously.  It helps to not only have more friends in general, but in this game it would be nice to play on teams such as beer pong.
  • A bigger board that allowed for boats, or possibly to just play with solo cups of beer such as beer pong.

Comments Welcome!

Law So Hard

Posted in Law, Law School, Video on April 25, 2012 by George

One of the best law school video’s I’ve seen in a while.

Law School Is Hell

Posted in Law, Law School, University of San Francisco on April 25, 2012 by George

Dubstep Breakdancing

Posted in Video on April 25, 2012 by George

Hooray for Beer & How to Enjoy It

Posted in Random on April 17, 2012 by George

H/T: http://frugaldad.com/beer/

Meme of the Week: Lawyer Dog

Posted in Law, Law School, Pictures on April 17, 2012 by George

He didn’t go to law school but he still passed his state bark exam with flying colors. Keep him in mind next time you need beagle representation. Check out more of Lawyer Dog’s sayings HERE.