Themis Bar Review Hangout - July 2015 Exam Forum

[Lawbro]

I'm doing the 5th contracts MBE PQ, seems like every other question is "modified to reflect..." I can't help but think several of the answers to those have flat out been wrong.

[+] Spoiler

On January 2, a builder and a luxury fashion designer entered into a written contract in which the builder agreed to build a boutique storefront for the designer, according to plans and specifications furnished by the designer's architects, at a contract price of $200,000. The contract provided for specified progress payments and a final payment of $40,000 upon the designer's acceptance of the boutique space and issuance of a certificate of final approval by the architect. Further, under a "liquidated damages" clause in the agreement, the builder promised to pay the designer $500 for each day's delay in completing the boutique after the following October 1. The designer, however, told the builder on January 2, before the contract was signed, that the designer would be out of town in Paris most of the summer and fall and would not return to open the boutique until November 1. Because the builder was overextended on other construction jobs, the builder did not complete the boutique until October 15. The designer returned on November 1 as planned and opened the boutique. Ten days later, after making the $40,000 final payment to the builder, the designer learned for the first time that the boutique had not been completed until October 15.

If the designer sues the builder for breach of contract on account of the fifteen-day delay in completion, which of the following will the court probably decide?

The answer was...

[+] Spoiler

Answer choice A is correct. Once a duty to perform exists, nonperformance is a breach of contract unless the duty is discharged. Here the date of completion was an express condition, by which the builder is subject to a measure of damages, if any, by the designer. Answer choice B is incorrect because the parties included a liquidated damages clause in the contract; so long as the liquidated damages do not constitute a penalty, they will be awarded over other contractual remedies. Answer choice C is incorrect because the designer did not waive rights to liquidated damages by opening the boutique and making the final payment. Answer choice D is incorrect because the liquidated damages provision is applicable regardless of whether the builder knew of the designer's trip or not. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

Themis outline says...

[+] Spoiler

Liquidated damages are an amount contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty. A provision for liquidated damages is enforceable and not construed as a penalty if the amount of damages stipulated in the contract is reasonable in relation to either the actual damages suffered or the damages that might be anticipated at the time the contract was made. However, if the provision is construed as a penalty, then it is unenforceable.

Maybe I'm tired, but something's not adding up here

[BearLaw]

I'm doing the 5th contracts MBE PQ, seems like every other question is "modified to reflect..." I can't help but think several of the answers to those have flat out been wrong.

[+] Spoiler

On January 2, a builder and a luxury fashion designer entered into a written contract in which the builder agreed to build a boutique storefront for the designer, according to plans and specifications furnished by the designer's architects, at a contract price of $200,000. The contract provided for specified progress payments and a final payment of $40,000 upon the designer's acceptance of the boutique space and issuance of a certificate of final approval by the architect. Further, under a "liquidated damages" clause in the agreement, the builder promised to pay the designer $500 for each day's delay in completing the boutique after the following October 1. The designer, however, told the builder on January 2, before the contract was signed, that the designer would be out of town in Paris most of the summer and fall and would not return to open the boutique until November 1. Because the builder was overextended on other construction jobs, the builder did not complete the boutique until October 15. The designer returned on November 1 as planned and opened the boutique. Ten days later, after making the $40,000 final payment to the builder, the designer learned for the first time that the boutique had not been completed until October 15.

If the designer sues the builder for breach of contract on account of the fifteen-day delay in completion, which of the following will the court probably decide?

The answer was...

[+] Spoiler

Answer choice A is correct. Once a duty to perform exists, nonperformance is a breach of contract unless the duty is discharged. Here the date of completion was an express condition, by which the builder is subject to a measure of damages, if any, by the designer. Answer choice B is incorrect because the parties included a liquidated damages clause in the contract; so long as the liquidated damages do not constitute a penalty, they will be awarded over other contractual remedies. Answer choice C is incorrect because the designer did not waive rights to liquidated damages by opening the boutique and making the final payment. Answer choice D is incorrect because the liquidated damages provision is applicable regardless of whether the builder knew of the designer's trip or not. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

Themis outline says...

[+] Spoiler

Liquidated damages are an amount contractually stipulated as a reasonable estimation of actual damages to be recovered by one party if the other party breaches. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty. A provision for liquidated damages is enforceable and not construed as a penalty if the amount of damages stipulated in the contract is reasonable in relation to either the actual damages suffered or the damages that might be anticipated at the time the contract was made. However, if the provision is construed as a penalty, then it is unenforceable.

Maybe I'm tired, but something's not adding up here

What were the answer choices? The explanation doesnt seem wrong, the completion date was an express condition, and the liquidated damages are not unreasonable to the point of a penalty at only 500 a day on a 200k contract.

[lacrossebrother]

That's 100% incorrect. Check out rst 2d k's 356 illustration 4. would you mind emailing themis anyways though and asking them to double check all of their problems?

[Confused7]

Some help please on a civ pro Q (shocker)

[+] Spoiler

An employer brought suit against a former employee for damages due to breach of fiduciary duty. The complaint, which was properly filed in federal district court, alleged that the claim arose out of the former employee’s management of a competing business while he was an employee of the employer. The former employee, in his timely filed answer, admitted the employer’s allegations but alleged that the employer failed to pay the former employee commissions earned while an employee of the employer. The former employee then asserted that this allegation constituted an affirmative defense to the employer’s action. The former employee’s answer also contained a counterclaim for the unpaid commissions and unreimbursed expenses. Ten days after service of the answer, the employer responded to the counterclaim with a denial that the former employee had not been paid commissions owed. Twenty days after service of the answer, the employer moved to strike the former employee’s affirmative defense. An employer’s failure to compensate an employee does not constitute an affirmative defense to a breach of fiduciary duty action by the employer under the applicable jurisdiction’s law.

How should the court rule on the employer’s motion to strike?
A Grant the motion, because the employer denied the former employee’s allegation that he had not been paid commissions earned while an employee.
B Grant the motion, because the affirmative defense is insufficient as a matter of law.
C Deny the motion, because the employer could have filed a motion for judgment on the pleadings.
D Deny the motion, because it was not timely filed.

Answer choice B is correct. If a pleading contains an insufficient defense, a party must move to strike the defense from the pleading either before responding to the pleading or, if a responsive pleading is not permitted, within 21 days after being served with the pleading. Here, the defense is insufficient as a matter of the applicable jurisdiction’s law, so the motion to strike should be granted.

Didn't the employer respond to the answer thereby waiving their ability to strike the defense...you know as the answer explanation says.

I think (and someone jump in if I am misunderstanding) that the waiver would only apply if the court ordered a reply to the answer outside of a response/answer to the countercliam. Since employer only responded to the counterclaim, and there would not otherwise be a reply required to the answer/defenses, the 21 day rule would still apply? That seems attenuated, but its the best I can come up with.

I had asked Themis about this Q before. Their answer was: "This fact pattern turns on the fact that the affirmative defense was insufficient as a matter of law in this jurisdiction. As it was insufficient, the employer did not have the legal ability to respond to the affirmative defense (the reply to the counter claim) so his motion to strike the affirmative defense was timely filed."

[Lawbro]

What were the answer choices? The explanation doesnt seem wrong, the completion date was an express condition, and the liquidated damages are not unreasonable to the point of a penalty at only 500 a day on a 200k contract.

Here are the answers

[+] Spoiler

Answers:

A. The designer will recover damages as specified in the contract, i.e., $500 multiplied by fifteen.
B: The designer will recover the actual damages, if any, caused by the delay in completion.
C. Having waived the delay by opening the boutique and making the final payment, the designer will recover nothing.
D. The designer will recover nothing because the contractual completion date was impliedly modified to November 1 when the designer advised the builder on January 2 about the designer's Paris trip and return date.

I feel like it's wrong because the designer knew prior to signing the contract that she would not have any damages until November 1st. Therefore, she could not anticipate any damages before November 1st, meaning that it was punitive.

[somuchbooty]

I think due to the $500 a day being reasonable in the face of a $200,000 contract, it makes sense that the liquidated damages should be imposed. The contract gives the designer at least the opportunity to return earlier from a season long trip and start early on the shop* if they so choose, thinking about this more real world.

And I think the question is trying to test your knowledge of implied waivers to contract clauses. Just being out of town won't count.

[BearLaw]

What were the answer choices? The explanation doesnt seem wrong, the completion date was an express condition, and the liquidated damages are not unreasonable to the point of a penalty at only 500 a day on a 200k contract.

Here are the answers

[+] Spoiler

Answers:

A. The designer will recover damages as specified in the contract, i.e., $500 multiplied by fifteen.
B: The designer will recover the actual damages, if any, caused by the delay in completion.
C. Having waived the delay by opening the boutique and making the final payment, the designer will recover nothing.
D. The designer will recover nothing because the contractual completion date was impliedly modified to November 1 when the designer advised the builder on January 2 about the designer's Paris trip and return date.

I feel like it's wrong because the designer knew prior to signing the contract that she would not have any damages until November 1st. Therefore, she could not anticipate any damages before November 1st, meaning that it was punitive.

I think the "correct" answer is the best of those. The completion was a condition to the contract, so damages for breach of a condition precedent is warranted. And the damages aren't exorbitant, and are reasonable if you consider an expected daily taking from a boutique store.

As for the restatement, that isn't binding law, so while yes, under the restatement, presumably the inability to show any damages would prevent recovery, there is no indication that the restatement applies.

[Lawbro]

Interesting, thanks!

[kjartan]

I just read a Civ Pro model answer that concludes both: (1) that the court doesn't have SMJ to hear p's claim and that (2) the court nonetheless erred in granting p's motion to dismiss d's counterclaim for lack of supplemental jurisdiction. If the court doesn't have SMJ to decide the original claim, how can it have supplemental jurisdiction to decide the counterclaim?

[lacrossebrother]

Interesting, thanks!

Dude check out illustration 4 of the restatement on contracts (second) section 356. The answer here is absolutely B. I'd love for someone to differentiate the situations but I just don't see it.

[lacrossebrother]

[kjartan]

What were the answer choices? The explanation doesnt seem wrong, the completion date was an express condition, and the liquidated damages are not unreasonable to the point of a penalty at only 500 a day on a 200k contract.

Here are the answers

[+] Spoiler

Answers:

A. The designer will recover damages as specified in the contract, i.e., $500 multiplied by fifteen.
B: The designer will recover the actual damages, if any, caused by the delay in completion.
C. Having waived the delay by opening the boutique and making the final payment, the designer will recover nothing.
D. The designer will recover nothing because the contractual completion date was impliedly modified to November 1 when the designer advised the builder on January 2 about the designer's Paris trip and return date.

I feel like it's wrong because the designer knew prior to signing the contract that she would not have any damages until November 1st. Therefore, she could not anticipate any damages before November 1st, meaning that it was punitive.

I think the "correct" answer is the best of those. The completion was a condition to the contract, so damages for breach of a condition precedent is warranted. And the damages aren't exorbitant, and are reasonable if you consider an expected daily taking from a boutique store.

As for the restatement, that isn't binding law, so while yes, under the restatement, presumably the inability to show any damages would prevent recovery, there is no indication that the restatement applies.

I don't know what you mean by the bolded.
I think the clause is a penalty because the amount of liquidated damages was unreasonable at the time of contracting because the designer didn't expect to return until November 1. The actual and foreseeable loss to the designer of the delay was $0.

[anon sequitur]

Has the Wharton rule ever been a correct answer for any MBE question that has come up for you all? The outline only gives adultery as an example, and it seems it would be really obvious. Seems the MBE likes to put these proper-name rules in and they're almost always wrong. Pain the ass.

[Lawbro]

Interesting, thanks!

Dude check out illustration 4 of the restatement on contracts (second) section 356. The answer here is absolutely B. I'd love for someone to differentiate the situations but I just don't see it.

Yeah no, I totally agree with you. Bearlaw says there's no indication the restatement applies, but I was kind of working under the assumption that the restatement always applies for the Bar exam, unless stated otherwise.

[soj]

.

[lacrossebrother]

Interesting, thanks!

Dude check out illustration 4 of the restatement on contracts (second) section 356. The answer here is absolutely B. I'd love for someone to differentiate the situations but I just don't see it.

Yeah no, I totally agree with you. Bearlaw says there's no indication the restatement applies, but I was kind of working under the assumption that the restatement always applies for the Bar exam, unless stated otherwise.

I mean no shit it's not "binding law" but I'm not sure where Im Supposed to get my federal contracts law from then?

Just check to see how many jurisdictions adopted the rst 2 § 356 to see if it's the majority?

[Misnomer]

Checking in from CA! Thanks for putting this forum together as reading through it has calmed my nerves significantly. Hasn't really helped in memorizing anything though but a welcome and productive distraction.

That said, I just completed the Con Law graded essay and am incredibly worried now. Anyone else like WTF? I know they caution that any Con Law question won't likely be like that, but how did anyone finish that in time, let alone pass?! Sorry, just venting. Misery would love some company.

[adevine39]

I channeled my heart palpitations this morning into 2.8% completion and two sets of MBE's in the high 70's. Maybe a little anxiety is just a good motivator?

On a related note, is anyone else finding that the right answer is jumping out at them a lot more quickly on the MBE PQ's? Maybe it really is just repetition, but lately when I scan the answers I have been seeing one answer and saying to myself "it's that one" without knowing why, and then actually doing the analysis to see how to get to that answer. After almost 1000 PQs it is nice to get the answers more quickly, but it is also somewhat alarming that my brain is trying to be so cavalier about it. Does that make sense?

[soj]

.

[Pleasye]

Checking in from CA! Thanks for putting this forum together as reading through it has calmed my nerves significantly. Hasn't really helped in memorizing anything though but a welcome and productive distraction.

That said, I just completed the Con Law graded essay and am incredibly worried now. Anyone else like WTF? I know they caution that any Con Law question won't likely be like that, but how did anyone finish that in time, let alone pass?! Sorry, just venting. Misery would love some company.

I wanted to cry when I finished that essay. So annoying that they picked that to be the graded one, but at least my grader had mercy on me. I wouldn't worry about it too much, it's unlikely we'll get one like that and if we do at least now we know how it feels so we won't flip out on the real thing.

[sd5289]

Checking back in after an amazing Pride weekend in NYC (cause of course), and getting my wedding photos back.

So, I did a wills practice essay yesterday. Didn't really know what a will was at that point, but I guess I got 2 of the 4 model answers correct? Whatevs.

I need to do the graded MPT still and Milestone #2 tomorrow. Am I hopelessly behind? I just felt like I needed to enjoy the moment with my marriage being recognized across all 50 states and whatnot before I dive into the hopeless abyss that is this fucking bar exam. I don't feel terribly far behind. And then a friend of mine left the goddamn party that was on 5th avenue today in order to study and that nagging "oh shit, am I doing this wrong" set in...

[soj]

.

[MrMustache]

Did Milestone #2 and ended up with 58%. Will go over the answers tomorrow, but seeing hardly any improvement since milestone #1 (57%) is a bit demoralizing.

[lost in translation]

Hi folks

Lurking for a while. Foreign student here trying desperately to catch up to your curve;) Feeling alone (hence posting on a Sunday instead of studying). While I am really excited and feel privileged to be able to go to the US to sit this test (never been before!), I also feel I'm on the brink of madness.

Anyway I wanted to share this amazing hearsay lecture on you tube. I know you all have so much at stake and the lectures weren't terribly helpful (to me anyway). It's a well spent hour (if you don't get hearsay). Don't let the guitar at the beginning put you off. This guy should have taught the whole MBE. I think I love him.

https://www.youtube.com/watch?v=rNeFsjTfs2s

May I ask you guys for any advice:

1. re NY materials - I'm watching/reading family, wills, NY prac, Corps, and just going to read the rest. Did you find it worthwhile watchig all the lectures? It's been a bit hit and miss so far.

2. PRACTICAL tactics for handwriting an MPT (or just practical tactics for outlining an answer effectively, full stop?) I watched the lectures - seems like a clever guy - but freaked out because by the time I would have finished crafting his structure (and I just got confused honestly by the handout) I would run out of time to write the thing - would seem to be very difficult even with a computer. Anyway, now I have a big ole case of MPT analysis - paralysis and I panic when I try to start one.

ps - I am finding a lot of comfort in this board, so thanks to all

Cheers peeps

I found the MPT videos really confusing as well but a friend who was farther along told me to stick with it and use the method. I distilled his method into own document:
How to Write a MPT Answer:

1. Read Task Memo
a. What is the POV? Objective OR Persuasive
b. Who is the audience? Legal OR Laypeople
c. What type of assignment is it?
2. Read the Library (UNLESS the question is a problem-solving question)
a. Read the oldest cases first
b. Read shorter factual things first (like police statements)
c. Note jurisdiction and chronology as you read—controlling or not?
d. Pay attention to footnotes and quotes
e. Pay attention to relationship between cases
f. Note policy concerns
g. Note which cases are good and bad—note whether you want to be similar or different.
h. Note whether a policy will apply to you.
i. Note where it is important to differentiate your situation from controlling law.
3. Make Rules and Tests (Note: have found this step not always necessary--sometimes it means re-writing a test from materials you receive)
a. Focus on grey areas of law
b. Read cases with an eye to determining why the case is included
c. Craft a test that addresses those grey areas and the materials
d. Add the elements of the test under a heading
4. Read the File
a. Focus on finding relevant facts that prove or disprove the elements in your working outline
b. Characterize relationships and insert into your outline
c. Some facts will be irrelevant
d. Add facts into your working outline under the headings
e. Create an ATTACK outline that determines the order of arguments
5. Write
a. IRAC for objective writing
b. CRAC for persuasive writing

Sorry formatting is weird.

Keep this list by you on practice MPTs and religiously follow it. By the time you get to 5, you should be able to do it in about 20-30 minutes if you type reasonably fast. Good luck!

Thats awesome, thanks so much

[adevine39]

Did Milestone #2 and ended up with 58%. Will go over the answers tomorrow, but seeing hardly any improvement since milestone #1 (57%) is a bit demoralizing.

The two milestones tested different subjects, so a lack of improvement doesn't necessarily indicate much. You've got time.