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Topic 8: How is Contracts tested on the baby bar exam (FYLSE)?

You can expect to see Contracts and/or Sales (Article 2) tested on the baby bar exam. One or both subjects will be tested.

Here are some key points to keep in mind about how Contracts is tested on the Baby Bar Exam.

How is Contracts tested on the baby bar exam (FYLSE)?

First, start your essay by discussing whether Article 2 or common law applies. 

Article 2 applies to contracts for the sale of goods. Common law applies to all other contracts. It is good to make a habit of discussing this at the beginning of your baby bar exam essay answer for two reasons:

  • First, it will remind you to apply the proper law!
  • Second, you will pick up points for identifying the law that applies.

Occasionally an essay will test both common law and Article 2, but it is more common that one or the other is tested.

Second, in general, discuss contract formation. 

The State Bar of California is checking to see if you know the law. Even if contract formation is not a primary issue raised by the question posed, you should still briefly discuss the elements of contract formation (offer, acceptance, and consideration) unless the question clearly states that a contract was formed.

Remember the key differences between common law and Article 2.

It might be helpful for you to make a chart of some of the critical differences between the common law and Article 2 (UCC).

For example:

  • Common law generally requires “substantial performance” in order for the other party’s duty to arise. The UCC generally requires the perfect-tender rule rather than substantial performance (however, there are exceptions).
  • Common law follows the mirror-image rule (and requires that a written acceptance mirror a written offer in order for a contract to be formed) versus the UCC follows the battle of the forms.
  • Common law grants a party expectation damages. The UCC follows this same general principle but you should memorize specific damage formulas to apply to UCC contracts.

Making a chart of the differences between the common law and Article 2 can be very beneficial in your understanding and memorization of some of these highly tested principles.

Be aware of highly tested defenses. 

Some highly tested defenses include:

  • The Statute of Frauds (You should consider mentioning this in most of your FYLSE answers, even if only to explain it is not an issue!)
  • Impossibility or impracticability
  • Frustration of purpose (This is tested less than the above but has been tested more recently.)

Practice makes perfect! 

The key to scoring high on a Contracts or Sales baby bar exam essay question is to practice and closely compare your answers to the sample answers offered by The State Bar of California. This will give you insight as to what is highly tested and the best way to connect all of the dots for the grader to show that you know what you are talking about. Wondering which essays to start with? These essays provide a good example of how Contracts is tested on the baby bar exam. (Note: do not limit your practice to just these questions!)

  • October 2019 (UCC, contract formation, defenses)
  • October 2018 (common law, defenses, damages)
  • June 2018 (UCC, performance issues, defenses, damages under the UCC)
  • June 2018, second question (common law, contract formation, performance obligations, defenses, damages)

For a more detailed overview of The State Bar of California’s favorite ways to test Contracts and Sales, check out our Baby Bar Exam One-Sheets here.

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