Contracts on the Multistate Essay Exam: Highly Tested Topics and Tips
Here, we give you an overview of Contracts on the Multistate Essay Exam (MEE). We will reveal some of the highly tested topics and give you tips for approaching a Contracts MEE question.
Note that Contracts is regularly tested on the Multistate Essay Exam. It is tested, on average, a little more than once a year.
In this post, we tell you tips for approaching Contracts on the Multistate Essay Exam and we reveal some of the highly tested issues in Contracts questions.
Contracts on the Multistate Essay Exam
1. First, be aware of how Contracts is tested
Contracts is tested, on average, more than once a year (see frequency chart). Common law principles tended to be tested more than Article 2 sales of goods issues, but Article 2 has been tested more recently. So, either is fair game on the Multistate Essay Exam.
Contracts tends to be tested by itself. (It has been tested with Negotiable Instruments in the past, but Negotiable Instruments is no longer tested on the Multistate Essay Exam.)
2. Be aware of the highly tested Contracts issues
The Examiners tend to test several of the same issues repeatedly in Contracts Multistate Essay Exam questions. You can maximize your score by being aware of these highly tested issues. (We have a nice summary of these in our MEE One-Sheets if you want to see all of them and have them all in one place.)
Some of the highly tested Contracts Multistate Essay Exam issues include:
Article 2 vs. common law
Since Article 2 has appeared more recently, it is good to know when Article 2 applies. Article 2 of the Uniform Commercial Code (UCC) applies to transactions in goods. Goods are “things moveable” at the time of identification to the contract. An entire issue in the February 2018 exam was whether Article 2 or common law applied, so if you have trouble with Article 2 vs. common law, review that essay.
Contract formation is heavily tested on the Multistate Essay Exam. Here are some principles that are tested:
- Offer and acceptance of offer: A person makes an offer when the person communicates to another a statement of “willingness to enter into a bargain” so that the other understands that “his assent to the bargain is invited and will conclude it.” The terms of an offer need to be reasonably certain (e.g., as to parties, subject matter, price, etc.). Note that the mirror-image rule applies at common law so any acceptance must mirror the offer. Look out for an acceptance that is actually a counteroffer (e.g., it does not mirror the terms of the offer), or an acceptance that is sent after the offer is already lapsed or revoked.
- Consideration: Consideration is a “bargained-for exchange.” Generally, consideration is needed to modify a contract. Under the UCC, only good faith is needed to modify a contract.
Here, it is key to know the difference between common law and UCC Article 2. The general rule is that under common law, a party must “substantially perform” its contractual obligations in order to demand performance (usually payment) from the other party. Note that this is different from UCC Article 2, which requires perfect tender for “one-shot” deals (i.e., anything that is not an installment contract.) Some other UCC vs. common law issues are detailed in the chart below.
Be familiar with damages principles. This is one of the most heavily tested topics in Contracts Multistate Essay Exam questions.
- Expectation damages: “[t]he normal measure of damages for breach of contract is expectation damages, which aim to give the non-breaching party the benefit of his bargain.”
- Contracts principles: Make sure you are aware of basic Contracts principles. For example, punitive damages are not recoverable under Contract law. (A plaintiff should file a tort action if he seeks punitive damages.) Damages must also be foreseeable and proved with reasonable certainty. Mitigation of damages is important. A party must try to mitigate damages when possible and cannot collect damages that he could have otherwise reasonably mitigated.
3. Make a visual timeline of when important Contracts events happen
Contracts is a tricky subject. It is nuanced. The vocabulary can be difficult and confuse students. If you struggle with Contracts, make a visual timeline of when you see certain concepts tested. We recommend you start with the basics and keep adding to it. One thing that makes Contracts slightly easier for examinees than subjects like Constitutional Law is that it is very “linear.” So, events occur along a timeline. It is easy to organize events along this timeline to make sense of when issues will appear in MEE questions. This can make issue-spotting, comprehension, and memorization easier.
Start with a very basic outline
- Which law applies
- Contract formation (offer, acceptance, consideration) and defenses to formation (e.g., incapacity)
- Performance obligations (under Article 2 vs. UCC) and defenses (e.g., impossibility)
- Issues involving assignment, delegation, and third-party beneficiaries
Add to it, using appropriate vocabulary
Then, flesh out each section. Make sure to use appropriate vocabulary terms so that you can bold and emphasize these terms in your MEE answer. Some terms you want to be able to use are:
- Consideration (bargained-for exchange)
- Revocation of offer
- Firm offer
- Option contract
- Expectation damages, restitution, mitigation
- Rejection of goods vs. revocation of acceptance of goods
- Perfect tender rule
- Express condition vs. constructive condition
- Anticipatory repudiation vs. prospective inability to perform
A timeline of when a contract is formed, how it must be performed, and what happened if it is breached is helpful when trying to understand this vocabulary. For example, you will see the event “revocation” twice. One occurs at the “Contract formation” stage when an offeror revokes his offer. (An offeror can generally revoke his offer any time before acceptance, absent some exceptions.) The other occurs at the time performance is rendered under Article 2—a buyer can revoke his acceptance of goods in certain circumstances (e.g., the defect substantially impairs the value to him, among other requirements). So one occurs before a contract is even formed (the offer had not even been accepted). The other occurs well after contract formation—not only has the offer been accepted, but performance has been completed and there is a problem with the goods sent.
Further, it is helpful to know that some issues will only come up in certain circumstances. For example, the parol evidence rule is only going to be a true issue if you have a final written agreement (or something that is arguably a final written agreement). So there is no point in discussing it unless you see an arguably final written agreement.
4. Be familiar with the UCC rules vs. common law rules
The UCC rules are very different than the common law rules and application of one body of rules often will lead to a different result than an application of the other. Since both the UCC and the common law are regularly tested, you need to be very aware of these distinctions. Luckily, we have compiled the primary differences into this convenient chart:
Practice is critical if you want to master Contracts on the Multistate Essay Exam. As an added bonus, you may also see your Multistate Bar Exam (MBE) score improve if you practice writing answers to Contracts essays.
Here are some links to (free) Contracts Multistate Essay Exam questions and National Conference of Bar Examiners (NCBE) point sheets. (If you would like to purchase a book of Contracts MEE questions and NCBE point sheets, check out our MEE books here. You can also see some additional exams on the NCBE website for free here.)
- Feb 2013 MEE: this covers Article 2 performance issues
- Feb 2012 MEE: this covers common law performance issues
- Feb 2011 MEE: this covers contract formation and damages issues
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