How to Conquer Contracts on the California Bar Exam
Here, we tell you how to conquer Contracts on the California Bar Exam.
Contracts is a subject that is regularly tested on the California Bar Exam. Fortunately, California law is virtually never tested, so you can apply the same law you learn for the MBE to the California Bar Exam essays.
Here, we give you some insight into how Contracts is tested on the California Bar Exam and how you should plan on approaching a Contracts essay if it is tested on your exam.
Contracts on the California Bar Exam
1. First, know how it is tested.
As noted above, you can apply general MBE law to Contracts essay questions. So there is no need to worry much about California distinctions.
Contracts often is tested on its own but it also appears as a crossover subject. It tends to most frequently be combined with Remedies when it is tested with another subject. And, it has been combined with Real Property.
Generally, common law applies on California Bar Exam essays. But recently, the UCC has been tested. (See Feb 2016 and Feb 2015 for examples of when the UCC applied.)
2. Use the correct introduction!
To maximize your points, it is good to have a standard introduction when you see Contracts on the California Bar Exam.
As an introduction to your Contracts essay answer, state the following:
- First, discuss whether Article 2 or common law applies. As noted above, usually common law applies. Article 2 applies to contracts for the sale of goods. Common law applies to all other contracts.
- You should also briefly discuss contract formation (offer, acceptance, and consideration) even if it is not a primary issue. Don’t spend pages on this unless it is a primary issue raised by the facts. Just a brief paragraph is fine for essays where it is not the issue being tested. This makes your answer complete.
3. Be aware of the highly tested topics.
Unsurprisingly, some topics are tested more than others. (We have a nice overview of these in our California Bar Exam One-Sheets.)
Here are a few California Bar Exam favorites for Contracts:
- Contract formation (offer, acceptance, and consideration) is heavily tested.
- Offer: An offer is a manifestation of intent to enter into a contract. An offer generally identifies the parties and contains a price and quantity.
- Acceptance: Acceptance is effective as soon as the acceptance is out of the offeree’s possession (the “mailbox rule”). Thus, an acceptance sent through the mail is effective when it is sent. There are exceptions (e.g., an acceptance of an option contract is effective upon receipt; and if a rejection is mailed and then an acceptance is mailed, whichever is received first is effective).
- Consideration: there must be a “bargained for exchange.”
- The parol evidence rule has been tested occasionally: The parol evidence rule is an issue when a party is trying to add a term from preliminary negotiations (or a contemporaneous oral term) to a final (integrated) written agreement. If the writing is a complete integration, no terms will be admitted. If it is a partial integration, consistent terms will be admitted.
- Duties under common law and the UCC: Under common law, a party is required to “substantially perform” for the other party’s duty to arise (unless there is an express condition, in which case exact performance is required). Under the UCC, pursuant to the perfect-tender rule, the seller has to deliver perfect goods. If goods fail to conform to the contract in any way, the buyer can reject all of them, accept all of them, or accept however many commercial unit(s) he wants and reject the rest. (The perfect-tender rule does not apply to every transaction under the UCC—e.g., it does not apply to installment contracts.)
- Anticipatory repudiation vs. prospective inability to perform is tested more than you might expect. See, e.g., July 2016 and Feb 2015.
- An anticipatory repudiation occurs when there is an unequivocal manifestation by one party to the other that the party cannot or will not perform its obligations under the contract and this statement is made before the repudiating party’s performance is due. If one party anticipatorily repudiates in an executory contract (meaning that there are duties left on both sides), the other can: (1) sue immediately, (2) suspend performance and wait to sue, (3) treat the contract as discharged, or (4) urge the other party to perform.
- Prospective inability to perform occurs when a party has reasonable grounds for insecurity that the other party is unable or unwilling to perform. This is merely doubts. The insecure party may demand adequate assurance of performance from the other party.
By being familiar with the most highly tested topics, you will maximize your chance to get the most points if Contracts is tested!
This is always our final piece of advice because it is so important!
The best way to get good at Contracts issues is to practice Contracts essays. This will get you acquainted with the highly tested issues and you will be able to see how they are actually tested on the California Bar Exam. You will feel more confident and comfortable walking into the California Bar Exam if you have some practice under your belt!
Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Contracts essay questions:
- July 2016 essay question and student answer (see essay question #3 on the exam)
- July 2013 essay question and student answer (see essay question #3 on the exam)
Good luck studying for the California Bar Exam!
Go to the next topic, Chapter 9: Corporations.
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