09 Aug Contract Road Map
Its not every day that we stop everything to appreciate the fact that we have just experienced a valid offer or that we have validly accepted an offer. “Why thank you gracious drive through attendant for accepting my offer to purchase the Number 2 Value Meal with a large coke! I am hereby tendering you my $7.95 as payment in full concurrently with the delivery of these goods.”
The words used in contracts, the formatting, and even the subject matter of the contracts can be highly confusing; especially for those of us who have had absolutely no experience in the legal field. Before entering into law school the extent of my legal expertise, knowledge, and understanding came from Judge Judy!
When preparing for the FYLSE you have to be prepared for everything; including contracts! The October 2016 FYLSE contained not just one terrifying contract essay but two! The key to contracts is evidenced in the saying “How do you eat an elephant?” “One bite at a time!”
If you don’t go into a contract essay analysis with a clear road map in your head and a systematic process you will get lost in the words. Let’s take a look at one of those October FYLSE fact patterns and apply our road map.
This fact pattern can send your head reeling but remember your training; start at the beginning and work your analysis all the way to the end: Governing Law, Formation, Performance, Breach, Remedies. If you remember where to start and use your road map, you will be fine.
Here is the October FYLSE fact pattern:
Dealer operates an antique shop. While traveling, she buys a Union cavalry officer’s
handgun for $1,500 from Seller. Dealer takes several photos of the handgun and Seller
agrees to ship it to Dealer’s shop. When Dealer arrives home, she immediately shows
the photos of the handgun to Buyer. The parties shake hands on a deal to sell the
handgun to Buyer for $2,000, payment upon delivery.
The next day, Buyer regrets agreeing to the deal without first having an opportunity to
actually examine the handgun. Buyer tells Dealer that he will not pay the $2,000 unless
she first allows him to have the handgun examined by an expert appraiser. Dealer
becomes angry and tells Buyer, “A deal’s a deal. I’ll expect my money when the
handgun is delivered to you.”
When the handgun arrives at Dealer’s shop, she does some internet research and
discovers that the handgun was issued to a general who played a prominent role at the
Battle of Gettysburg, which increases the value of the handgun by a factor of ten. The
next day, Dealer receives a letter from Buyer stating, “Sorry. You’re right. A deal’s a
deal.” The envelope contains a check for $2,000. Dealer sends the check back to
Buyer with a note stating, “Buyer: Because you backed out of our deal, I will not sell
you the handgun. //Signed// Dealer.”
A few weeks later, Buyer learns that Dealer is offering the handgun for sale at her shop
for $20,000 because of its connection to the Civil War general. Buyer brings suit
against Dealer for breach of contract, requesting specific performance.
1. Is Buyer likely to prevail against Dealer in his suit for breach of contract? Discuss.
2. If so, is the court likely to grant Buyer’s request for specific performance? Discuss
Where Did You Start?
I hope you started at the call of the question. The call of the question will direct and guide you. More often than not the call of a contract question (although worded differently every time) will basically direct you to find a valid enforceable agreement and to do that you have to start at the beginning in formation.
There have been a handful of FYLSE contrast fact patterns where the call has specifically asked you to discuss the validity of consideration or specifically if there was a valid offer and/or acceptance made. These fact patterns don’t show all that often but you have to be on your toes and prepared for everything.
The October 2005 FYLSE contained two contract questions and one of the questions was definitely one of those you have to read the call to get right. The call stated: “Does Ed have an enforceable obligation to Alice, Officer Brown, or Charlie? Discuss”. At first gland it looks just like the call of every other contract questions but there is a big difference here, the call asks about enforceable obligations; not valid enforceable contracts. Let’s take a look at the fact pattern:
“Ed is the owner of the newly opened Ed’s Custom Car Wash, where car washes cost $25.
While he was grocery shopping in his home town, which is located 20 miles from Ed’s
Custom Car Wash, he was greeted by his friend Alice. After they chatted for a moment,
Ed said, “Come by my new car wash and I’ll give you a free car wash tomorrow.” Alice
replied, “Thanks. By the way, we’ve got a few extra tickets for the game tonight. If you
want them, they’re yours.”
A few minutes later, Ed ran into police officer Brown, who worked in Ed’s home town. Ed
said, “Officer Brown, if you will drive by my house soon and make sure everything is OK,
I’ll give you a free car wash tomorrow.” Officer Brown, who was about to begin his job of
patrolling Ed’s neighborhood, replied, “I accept your kind offer.” Officer Brown then left the
store and began his routine patrol, which, as always, promptly took him by Ed’s house,
where everything was in order.
When Ed returned home from shopping, he saw his next door neighbor, Charlie. Ed said,
“Charlie, I’ll give you a free car wash tomorrow at my new car wash.” Charlie replied,
“Thanks, I’ll take you up on that.”
As soon as Ed arrived at work the next day, he found a long line of cars at the car wash.
He phoned Alice and Officer Brown, and told them that he would not give them free car
washes. Then he saw Charlie, who had left work and driven for one-half hour to get to the
car wash and was waiting in line. Ed immediately told Charlie, “I am not going to give you
a free car wash.”
Does Ed have an enforceable obligation to Alice, Officer Brown, or Charlie? Discuss.”
Tell me everything you know about formation!
The call of this question and the fact pattern are basically saying “Tell me everything you know about formation”. Sometimes, the easiest fact patterns are also the hardest. This fact pattern appears pretty straight forward and many of you would automatically think this would be a great essay to get on the FYLSE but remember this is a perfect example of low lying fruit.
The easier the fact pattern and the more “obvious” the issues means the more you have to dig and the more elements, restatements, majority rules v. minority rules you will have to remember. Everyone will remember the basics but you will need more to be in that 18 – 20% who pass!
Once you have read the call of the question and know the location you need to get to; now you pull out your road map. This means that you need to quickly throw down your outline on a piece of scratch paper, in the margins, or wherever you are used to writing it.
This road map should be something you have molded and sculpted over time. It should hold the secrets of all your past failures. Like I said, you have the basics: Governing Law, Formation, Performance, Breach, Remedies. Your outline should be personal because it should be filled with all the things that you need to be reminded or of that you have issues with.
Your outline should begin to form based on you. For example under Formation most people have offer, acceptance and consideration. This may be all some people need but for me I needed more. Under my section in Formation I have offer, offer still open, acceptance, consideration, defenses to enforcement, statute of frauds, and parol evidence.
Yes, these are the issues that I need to have in my outline to remind me to search for them. Not every issue in a fact pattern is screaming through a bullhorn to be discussed, some sit quietly in the background sneaking in the shadows.
By placing additional rule statements, theories, etc. into my outline I know to not just acknowledge those loud mouthed issues but to search the shadows; this is the fruit you want!
Now with that being said, DO NOT THROW THE KITCHEN SINK AT IT. I am sure we have all heard this but we have all heard others say they did throw the kitchen sink. I think its important to clarify what this statement means.
If you are doing a contract analysis and you finish covering Statute of Frauds (because it is applicable) do not automatically go into Parol Evidence if it is not applicable. If you find elements in the fact pattern that COULD be discussable under parol evidence then bring it up but under no circumstances should you bring it up if you cant argue it.
Many issues can be argued and often times I will see issues on a FYLSE fact pattern that are not in the model answer. This does not mean they are not issues it just means that many did not see it or others couldn’t argue it. Remember, in law the answer is it always depends. If you see something that needs to be brought up and you see elements and you can argue it, then argue it.
Your essay outline should be yours and your contract outline should be your guide. With other theories you may have to jump around from torts against people to negligence; in contracts you follow the map and don’t jump.
Try these things to help you flesh out your outline:
- Write practice essays and identify areas you commonly miss; those should go in your outline
- Practice writing your outline on its own (without a fact pattern) and identify where you mess up
- Look at other outlines to see if you are on the right track; there are many great ones available
- Work with a study group; this will help you to make sure you are keeping up with the group
Not all online schools are created equal. Some of our schools will emphasize the outline more than others but overall your outline will save your rear in the end (hahaha, I made a pun).