09 Aug Contract Outline
If you take any outline and break it down to brass tacks they all contain the same things. What makes an outline special is what you add to it. That small piece of your soul that you sweat bleed and etch onto the page. I think the concept of the outline is often poorly explained and often one of THE most misunderstood tools in 1L.
You know you are ready for the FYLSE when you dream Governing Law, Goods, Merchants, Formation, Offer, Acceptance, Consideration, Defenses to Enforcement, Performance, Breach, and Remedies. These are the main headings and the “brass tacks”. These are your “main headings”, the place where all your discussable issues will be discussed; the low hanging fruit. You want to know these by heart, you want to dream about these, you want this so ingrained in your memory that you can recite them at the drop of a hat in a tornado juggling a chainsaw.
Everyone has to start somewhere and everyone in 1L starts here. You have to have the 5,000 mile view before you can begin investigating what lurks deeper in the woods. But don’t let the “simplicity” of it all fool you. One of the most common missteps in essay writing is getting enmeshed in the smaller sub issues and details and completely forgetting the road map.
It is easy to read the fact pattern and see an issue immediately pop out at you; thus closing your eyes to all the other discussable issues. Its great when you read a fact pattern and can easily spot an issue but if you don’t remember your road-map it may be the only issue you see and this can cost you dearly.
Its great when you read a fact pattern and can easily spot an issue but if you don’t remember your road-map it may be the only issue you see and this can cost you dearly!
Anytime I write a contract essay I start by writing down my “brass tacks”. Writing down your outline will help you stay focused, properly write analysis on the issues you easily spot in the correct place, and also force you to look for applicable issues that you may not have seen or even would have thought to look for.
Practice makes perfect and at first your “brass tacks” wont come naturally. Your contracts outline, just like every new thing you have ever learned, has to be memorized. The best way to burn this into your memory is to use all your tactile senses to write it, use your vocalization to say it, use your hearing to listen to it be said, then use your brain and teach it to someone! One thing I always say is, “We all learn differently”, so use whatever method works for you to get this one down ASAP!
Just like any good road map you have to start somewhere. Before you can get to where you are going you have to know where you are! In a contract outline you begin by figuring out where you are; UCC or Common Law. Is the contract you are beginning to complete an analysis on formed for goods or services? If the contract has both goods and services this is similar to identifying if you live in an apartment, condo, unit, etc. What is the predominate factor, what is the main intent of the contract, why are the parties really contracting?
This first part of your outline will include your Governing Law and possibly hybrid contract, goods, and merchants. Remember, if you don’t need to bring up a particular part of the road map then don’t. If the contract is clearly a contract for services then there is no point into getting into the rule statement for hybrid contract. Doing this is like taking the graders on a Mr. Toad Wild Ride. If they are trying to get to Wendy’s don’t take them to Taco Bell for reference first; they don’t want to go to Taco Bell!
Performance is part of your outline that you are going to want to personalize based on what you remember and what you don’t. If you are one of those people who struggle with conditions then this is exactly where you are going to want to add “Conditions” into your outline. Depending on how much you don’t remember you may want to even add “Condition Precedent”, “Condition Subsequent”, etc.
Remember, your outline is your road map. Not everyone needs the same directions to get to the same location. Anticipatory repudiation is one of those markers that I always personally added under my Performance heading; I needed a reminder of where to discuss it!
Breach is generally one of the shortest if not totally ignored pats of an essay but it is a vital part of the outline. The essay should discuss whether there was or was not a breach and whether that breach was partial or substantial!
Once again, based on what you need cue’s on this is where you will note your remedies. Personally, I stuck with the overview: General, Liquidated, and Specific Performance as my marker points. I never needed any more than this in my remedies outline. Many other people find that they need much more detail in theirs, including things like market price minus contract price, elements for specific performance, etc. This is entirely up to you and what you have memorized. Often times all we need is a nudge to turn on that light bulb and send us on our merry way!