ebook - CANNOT BE PRINTED Contracts & UCC Tim Tyler, Ph.D., Attorney at Law

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1 NAILING THE BAR TM ebook - CANNOT BE PRINTED Contracts & UCC Essay Questions from California Bar Exams Tim Tyler, Ph.D., Attorney at Law

2 Overview Overview Here are 39 essay questions about Contracts and the UCC (sales) posed by the California Bar over the 12 year period from June, 2002 to October Six of these are from the California General Bar Exam (GBX) and 33 are from the California First-Year Law Student Exam (FYLSX). This represents about half of the Contracts / UCC questions posed by the Bar over this period on the GBX and almost all that were posed on the FYLSX. Following each question is an analysis of the issues the Bar was testing, an explanation of how to answer them, and references to sections in Nailing the Bar's "Simple Contracts & UCC Outline (O-1)" where explanation of the dispositive rules of law may be quickly found. At the foot of the explanation page is an indicator of which exam the question came from, and the question number on that exam. For example [Jun 2002 FYLSX - 2] indicates the question was asked in June, 2002 on the FYLSX, and on that exam it was posed as question #2. The benefit of going through these questions is three-fold. First, you will see how the question writers suggested the issues they wanted students to discuss. Second, you will see the questions often presented irrelevant or misleading facts to mislead students into discussing "non-issues". And third, your law school professors may very well pattern their own exam questions after these to test you in their classes! As you read through these 39 essay questions you will initially think of other issues that turn out to be unimportant. And if you look at the "exemplary answers" released by the Bar you will see those also elaborated on other, irrelevant issues. But with some thinking you will realize some of the "issues" that quickly jump to mind are simply "non-issues" and red herrings. It is especially important to READ THE CALL, read through the fact pattern more than once, spend time thinking about the real issues presented, and avoid leaping to conclusions based on your first reading of the facts. Looking at the explanations here you will also discover that the California Bar tested some issues repeatedly, some only occasionally, and some legal issues you study at length in your classes were hardly ever tested. Of the 39 questions asked, 21 (54%) involved the UCC and required discussion of the UCC. So over half of the questions asked on the California Bar tested knowledge of the UCC. This is probably much more than you thought. Ten of the questions (26%) required discussion of the "mailbox rules". That also is more than you probably thought. And of the 39 questions, 6 (about 15%) required discussion of the Parol Evidence Rule. Formation, express material conditions, and "assignment and delegation" were also often tested. So what was never tested? Maybe the most surprising thing is that the Statute of Frauds was never tested at all! This is surprising, but true. iii

3 NAILING THE BAR Contracts & UCC Essay Questions from California Bar Exams Hyperlinking this ebook This ebook references Nailing the Bar s Simple Contracts & UCC Outline (O-1). But it is also hyperlinked to the ebook version of that document, Simple Contracts & UCC Outline (O-1e). This can be a tremendous time-saver that allows you to immediately research areas of law where you are may be confused or uncertain. Just put this ebook (BQ1e) and the linked Outline ebook (O-1e) in the same folder. If you link from this ebook (BQ1e) to the Outline ebook (O-1e), this ebook may close. But you can return to this ebook from the Outline ebook (O-1e) by using: Alt + on a PC (hold down Alt and hit left arrow) or Command + on a Mac (hold down the key and hit left arrow). If you move about within the Outline ebook (O-1e) and want to return to this ebook (BQ1e) you may have to enter this keystroke combination more than once to get back to where you started. iv

4 Question K39 Essay Questions On March 1, Ben, a property owner, and Carl, a licensed contractor, executed a written agreement containing the following provisions: Carl agrees to construct a residence using solar panels and related electrical equipment manufactured by Sun Company ( Sun ) and to complete construction before Thanksgiving. Ben agrees to pay Carl $200,000 upon completion of construction. Ben and Carl agree that this written agreement contains the full statement of their agreement. Ben and Carl agree that this written agreement may not be modified except upon written consent of both of them. Prior to execution of the written agreement, Ben told Carl that Carl had to use Sun solar panels and related electrical equipment because Sun was owned by Ben s brother, and that Carl had to complete construction prior to Thanksgiving. Carl assured Ben that he would comply. In August, Ben began to doubt whether Carl would complete construction prior to Thanksgiving; Ben offered Carl a $25,000 bonus if Carl would assure completion, and Carl accepted and gave his assurance. To complete construction prior to Thanksgiving, Carl had to use solar panels and related electrical equipment of equal grade manufactured by one of Sun s competitors because Sun was temporarily out of stock. Carl completed construction prior to Thanksgiving. Ben, however, has refused to pay Carl anything. What are Carl s rights and remedies against Ben? Discuss. 77

5 NAILING THE BAR Contracts & UCC Essay Questions from California Bar Exams Question K39 Not UCC so don't discuss that. And this is not a "formation" issue b/c clearly there was a contract. So don't waste time discussing offer, acceptance, etc. Were completion by Thanksgiving and use of Sun solar panels and equipment EXPRESS MATERIAL CONDITIONS or just "COVENANTS"?. (Simple Contracts & UCC Outline, p. 43, Distinguishing Express Conditions from Covenants.) The use of Sun solar panels and equipment is an express (material) condition. But the promise to complete performance by Thanksgiving will be seen as a "covenant" because the contract does not say "time is of the essence" and construction contracts often run late. So UNLESS the court hears additional evidence that the parties intended for timely performance to be an express material condition, it will be treated as a covenant. If B tries to introduce evidence C agreed timely performance was an express condition he will be barred by the PAROL EVIDENCE RULE because the contract has INTEGRATION CLAUSE. (Simple Contracts & UCC Outline, pp , The Parol Evidence Rule.) B has to plead one of the DAM FOIL exceptions to get this evidence in. Unfortunately for B none of those DAM FOIL exceptions seems to apply. Discuss this. An ORAL MODIFICATION to pay C $25,000 more is not legal because the contract required all modifications to be in writing. (Simple Contracts & UCC Outline, p. 55, Written Modification may be Required.) If the modification agreement was in writing, and signed by both B and C, it still would not be legally enforceable because it is not supported by CONSIDERATION. (Simple Contracts & UCC Outline, p. 6, Offeree must Give at Legal Detriment.) C already had a legal duty to complete work by Thanksgiving, so he is not promising to do anything he did not already have to do. The contract said C had to use Sun solar panels and that was an express condition. Using other brand products is a MAJOR BREACH. If C had not breached the contract, he would have a right to be paid the contract price of $200,000. He would have no legal right to the additional $25,000 because the modification was not legally enforceable. But C committed a major breach so he must plead for EQUITABLE RESTITUTION in equity on an implied-in-law contract basis. (Simple Contracts & UCC Outline, p. 95, Implied-in-Law Contract.) The court would have discretion to award him the contract price ($200,000) less damages B proves he suffered from not using Sun solar panels and equipment to prevent frustration of reasonable expectations. [Jul 2013 GBX 4] 78

6 This ebook contains ALMOST ALL Contracts & UCC Questions on California First- Year Law Student Exams (FYLSX) 2002 through 2013; About HALF the Contracts & UCC Questions on California General Bar Exams (GBX) 2002 through 2013; Analysis of the Issues that were Tested and Hyperlinked References to Nailing the Bar s Simple Contracts & UCC Outline. WHY TO BUY IT HISTORY REPEATS ITSELF. The California Bar tends to test the SAME ISSUES over and over. The UCC, for example, is tested over half the time. Learn the issues frequently tested and the issues that are not. IDENTIFY INTENDED ISSUES. See how the California Bar presents facts to indicate the INTENDED ISSUES it wants students to discuss. IGNORE MISLEADING FACTS. See how IRRELEVANT and MISLEADING FACTS and should be identified and ignored. SAVE TIME. You can learn the law you need to know for law school exams AND Bar exams FASTER and EASIER with this hyperlinked format. BE PREPARED FOR YOUR SCHOOL EXAMS. Your professors are preparing you to take this exam or at least exams just like it. After all, these are in the public domain. So their exam questions will be patterned after THESE SAME QUESTIONS. Published by Practical Step Press BQ1