Mixed PQ 14 Spoiler:
A builder contracted with an artist to construct for $200,000 a gallery and an access driveway at street level. Shortly after commencing work on the driveway, which required some excavation and removal of surface material, the builder unexpectedly encountered a large layer of mud. The builder informed the artist (accurately) that because of the mud, the driveway would cost at least $23,000 more than figured, and for that reason, the builder demanded a total contract price of $223,000. Since the artist was expecting customers immediately after the agreed completion date, she signed a writing promising to pay the additional $23,000. Following timely completion of the gallery and driveway, which conformed to the contract in all respects, the artist refused to pay the builder more than $200,000. What is the maximum amount to which the builder is entitled?
Answers $200,000, because there was no consideration for the artist's promise to pay the additional $23,000.
$200,000, because the artist's promise to pay the additional $23,000 was exacted under duress.
$223,000, because the modification was fair and was made in the light of circumstances not anticipated by the parties when the
original contract was made.
$223,000, provided that the reasonable value of the builder's total performance was that much or more.
Answer choice C is correct. While at common law modification of an existing contract must be supported by consideration, agreements to modify a contract may still be enforced if there are unforeseen difficulties, and one of the parties agrees to compensate the other when the difficulties are discovered. Here, the modification was fair because no one anticipated the unforeseen difficulties, and the additional $23,000 was the accurate cost of the unexpected change in circumstances. Answer choice A is incorrect, as even though there was no consideration for the artist's promise to pay the additional $23,000, agreements to modify a contract may still be enforced if there are unforeseen difficulties, and one of the parties agrees to compensate the other when the difficulties are discovered. Answer choice B is incorrect, as the concept of duress is not applicable here. Any wrongful act or threat that deprives a party of meaningful choice constitutes duress. There was no wrongful act or threat here, just unforeseen difficulties. Answer choice D is incorrect, as the reasonable value of the total performance does not matter, since the modified contract will be enforced under the common law. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.
Does anyone else find these non NCBE questions to be complete BS? I was almost certain that choice A was correct. Can someone explain to me how the hell isn't a large layer of mud expected under a driveway?!?!?!