Themis Bar Review Hangout - July 2015 Exam

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hadisious
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby hadisious » Fri Jul 24, 2015 8:51 am

lilypad144 wrote:I always thought that if an original contracting party assigns his rights under a contract, that he is no longer liable on the contract because he transferred his full obligation and duties under the contract and that for a delegation, he is still liable. Is that incorrect?? I just got a super confusing MBE question -

[+] Spoiler
An exterminator, who has been in the exterminating business for fifteen years and has a fine reputation, contracts to provide services to a clothing shop with a moth infestation. The contract has no provision regarding assignment.

If the exterminator assigns the contract to the contractor and thereafter the contractor does not meet the contract specifications in providing services to the clothing shop, the shop owner

A. has a cause of action against the exterminator for damages.

B. has a cause of action only against the contractor for damages.

C. has a cause of action against the exterminator for damages only after he has first exhausted his remedies against the contractor.

D. does not have a cause of action against the exterminator for damages, because he waived his rights against the exterminator by permitting the contractor to perform the work.

Answer choice A is correct. In either an assignment or a delegation, the assignor or delegator is not released from liability and recovery can be had against him if performance is not made. Here, the exterminator is not released from liability.


Can someone explain this to me?


My understanding is that the only way to original contracting party can remove their liability is through a novation. In this case, meaning the exterminator and the clothing shop agree that the contractor will do the work. Anything less than a novation (assignment/delegation) leaves both the exterminator, and the actor that ends up performing the work as potentially liable.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby lilypad144 » Fri Jul 24, 2015 8:52 am

BelugaWhale wrote:
lilypad144 wrote:I always thought that if an original contracting party assigns his rights under a contract, that he is no longer liable on the contract because he transferred his full obligation and duties under the contract and that for a delegation, he is still liable. Is that incorrect?? I just got a super confusing MBE question -

[+] Spoiler
An exterminator, who has been in the exterminating business for fifteen years and has a fine reputation, contracts to provide services to a clothing shop with a moth infestation. The contract has no provision regarding assignment.

If the exterminator assigns the contract to the contractor and thereafter the contractor does not meet the contract specifications in providing services to the clothing shop, the shop owner

A. has a cause of action against the exterminator for damages.

B. has a cause of action only against the contractor for damages.

C. has a cause of action against the exterminator for damages only after he has first exhausted his remedies against the contractor.

D. does not have a cause of action against the exterminator for damages, because he waived his rights against the exterminator by permitting the contractor to perform the work.

Answer choice A is correct. In either an assignment or a delegation, the assignor or delegator is not released from liability and recovery can be had against him if performance is not made. Here, the exterminator is not released from liability.


Can someone explain this to me?

Yeah, assignment doesnt get rid of your obligation unless you get a novation. So I think you just got the rule wrong


ahh okay. I thought a novation only applied to delegation. Got it! Thank you!

lilypad144
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby lilypad144 » Fri Jul 24, 2015 8:53 am

hadisious wrote:
lilypad144 wrote:I always thought that if an original contracting party assigns his rights under a contract, that he is no longer liable on the contract because he transferred his full obligation and duties under the contract and that for a delegation, he is still liable. Is that incorrect?? I just got a super confusing MBE question -

[+] Spoiler
An exterminator, who has been in the exterminating business for fifteen years and has a fine reputation, contracts to provide services to a clothing shop with a moth infestation. The contract has no provision regarding assignment.

If the exterminator assigns the contract to the contractor and thereafter the contractor does not meet the contract specifications in providing services to the clothing shop, the shop owner

A. has a cause of action against the exterminator for damages.

B. has a cause of action only against the contractor for damages.

C. has a cause of action against the exterminator for damages only after he has first exhausted his remedies against the contractor.

D. does not have a cause of action against the exterminator for damages, because he waived his rights against the exterminator by permitting the contractor to perform the work.

Answer choice A is correct. In either an assignment or a delegation, the assignor or delegator is not released from liability and recovery can be had against him if performance is not made. Here, the exterminator is not released from liability.


Can someone explain this to me?


My understanding is that the only way to original contracting party can remove their liability is through a novation. In this case, meaning the exterminator and the clothing shop agree that the contractor will do the work. Anything less than a novation (assignment/delegation) leaves both the exterminator, and the actor that ends up performing the work as potentially liable.


Great, thank you!

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BelugaWhale
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby BelugaWhale » Fri Jul 24, 2015 8:54 am

lilypad144 wrote:
BelugaWhale wrote:
lilypad144 wrote:I always thought that if an original contracting party assigns his rights under a contract, that he is no longer liable on the contract because he transferred his full obligation and duties under the contract and that for a delegation, he is still liable. Is that incorrect?? I just got a super confusing MBE question -

[+] Spoiler
An exterminator, who has been in the exterminating business for fifteen years and has a fine reputation, contracts to provide services to a clothing shop with a moth infestation. The contract has no provision regarding assignment.

If the exterminator assigns the contract to the contractor and thereafter the contractor does not meet the contract specifications in providing services to the clothing shop, the shop owner

A. has a cause of action against the exterminator for damages.

B. has a cause of action only against the contractor for damages.

C. has a cause of action against the exterminator for damages only after he has first exhausted his remedies against the contractor.

D. does not have a cause of action against the exterminator for damages, because he waived his rights against the exterminator by permitting the contractor to perform the work.

Answer choice A is correct. In either an assignment or a delegation, the assignor or delegator is not released from liability and recovery can be had against him if performance is not made. Here, the exterminator is not released from liability.


Can someone explain this to me?

Yeah, assignment doesnt get rid of your obligation unless you get a novation. So I think you just got the rule wrong


ahh okay. I thought a novation only applied to delegation. Got it! Thank you!

In real life there is a distinction between assignment and delegation, but for MBE purposes they mean the same thing. So don't fret over which term the questions uses.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby lilypad144 » Fri Jul 24, 2015 8:58 am

BelugaWhale wrote:
lilypad144 wrote:
BelugaWhale wrote:
lilypad144 wrote:I always thought that if an original contracting party assigns his rights under a contract, that he is no longer liable on the contract because he transferred his full obligation and duties under the contract and that for a delegation, he is still liable. Is that incorrect?? I just got a super confusing MBE question -

[+] Spoiler
An exterminator, who has been in the exterminating business for fifteen years and has a fine reputation, contracts to provide services to a clothing shop with a moth infestation. The contract has no provision regarding assignment.

If the exterminator assigns the contract to the contractor and thereafter the contractor does not meet the contract specifications in providing services to the clothing shop, the shop owner

A. has a cause of action against the exterminator for damages.

B. has a cause of action only against the contractor for damages.

C. has a cause of action against the exterminator for damages only after he has first exhausted his remedies against the contractor.

D. does not have a cause of action against the exterminator for damages, because he waived his rights against the exterminator by permitting the contractor to perform the work.

Answer choice A is correct. In either an assignment or a delegation, the assignor or delegator is not released from liability and recovery can be had against him if performance is not made. Here, the exterminator is not released from liability.


Can someone explain this to me?

Yeah, assignment doesnt get rid of your obligation unless you get a novation. So I think you just got the rule wrong


ahh okay. I thought a novation only applied to delegation. Got it! Thank you!

In real life there is a distinction between assignment and delegation, but for MBE purposes they mean the same thing. So don't fret over which term the questions uses.


Thank you!

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anon sequitur
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby anon sequitur » Fri Jul 24, 2015 9:29 am

Finally hit 50% complete, suggested pace for the day is 12.4%. Lol at directed study, just lol.

lilypad144
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby lilypad144 » Fri Jul 24, 2015 10:30 am

anon sequitur wrote:Finally hit 50% complete, suggested pace for the day is 12.4%. Lol at directed study, just lol.


Holy shit! You think Themis would place a cap on the amount or something. I know the system just shifts the stuff but DAMN. What if some poor fool actually attempted that?

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby milesdavisjd » Fri Jul 24, 2015 10:35 am

kgus22 wrote:Does anyone have just a list of date deadlines for FRCP?


Bumping this up, that would be hella helpful.

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sd5289
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby sd5289 » Fri Jul 24, 2015 10:36 am

anon sequitur wrote:Finally hit 50% complete, suggested pace for the day is 12.4%. Lol at directed study, just lol.


HAHAHAHA that is amazing. My suggested pace has been going up, but is at 4.1% right now and the list of things I'm supposed to do today is just laughably ridiculous. I'm guessing your list is 5 pages long.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby eloise16 » Fri Jul 24, 2015 10:43 am

sd5289 wrote:
anon sequitur wrote:Finally hit 50% complete, suggested pace for the day is 12.4%. Lol at directed study, just lol.


HAHAHAHA that is amazing. My suggested pace has been going up, but is at 4.1% right now and the list of things I'm supposed to do today is just laughably ridiculous. I'm guessing your list is 5 pages long.


Mine is at 5.3. What bothers me most is that in the middle of all of the assignments for today is a bunch (like 3 or 4) of "review this and that subject" WHICH I HAVE ALREADY DONE but cannot check off because I have't done the assignments before that. :evil:

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hadisious
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby hadisious » Fri Jul 24, 2015 10:46 am

eloise16 wrote:
sd5289 wrote:
anon sequitur wrote:Finally hit 50% complete, suggested pace for the day is 12.4%. Lol at directed study, just lol.


HAHAHAHA that is amazing. My suggested pace has been going up, but is at 4.1% right now and the list of things I'm supposed to do today is just laughably ridiculous. I'm guessing your list is 5 pages long.


Mine is at 5.3. What bothers me most is that in the middle of all of the assignments for today is a bunch (like 3 or 4) of "review this and that subject" WHICH I HAVE ALREADY DONE but cannot check off because I have't done the assignments before that. :evil:


Haha I thought this all summer long. How many % points am I losing each day because I can't check off those damn review things I don't get to.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby sd5289 » Fri Jul 24, 2015 10:50 am

milesdavisjd wrote:
kgus22 wrote:Does anyone have just a list of date deadlines for FRCP?


Bumping this up, that would be hella helpful.


Do you mean timelines for filings, serving, etc?

The ones I remember off the top of my head (meaning they've come up quite a bit) are (I try to remember them in chronological order of a trial, starting from pleadings all the way through to appeals):

- Deadline to serve complaint = 120 days

- To file an answer = 21 days
- UNLESS D serves a 12(b) motion, then it's 14 days after court denies motion
- ALSO if D "waives" service, time to file answer/motion = 60 days

- if P wants to respond to the D's answer, that must be within 21 days after being served with D's answer

- if P wants to amend pleading 1x as of right, they may do so (1) if no responsive pleading is required OR (2) after being served with D's answer or 12(b) motion, then P must amend within 21 days (after this, must obtain leave from the court)

- if served with a counterclaim OR a cross claim, a party must answer within 21 days

- if party wants to implead a non-party for liability on the original claim, generally must do so within 14 days after P's complaint (otherwise need court's permission)

- initial disclosures (names, documents, etc.) = 14 days after discovery conference
- disclosure of testifying experts (as well as the data they relied on, reports, etc) = no less than 90 days before trial OR 30 days after disclosure of opposing party's expert
- pretrial disclosures (testifying witnesses, exhibits, etc.) = at least 30 days before trial
- time to respond to interrogatories and requests to produce documents = 30 days

- motion to file for SJ = any time until 30 days after close of discovery

- demand for a jury trial = 14 days after service of last pleading

- renewed motion for judgment as a matter of law (NOTE: must have raised it during trial as well) = no more than 28 days after entry of judgment
- motion for a new trial = no more than 28 days after entry of judgment

- notice of appeal = no more than 30 days after entry of judgment

I think that's everything. Thanks. That was good for me to type out as a way of "reviewing" Civ Pro. Don't ask me to do the same for NY Practice though because ¯\_(ツ)_/¯
Last edited by sd5289 on Fri Jul 24, 2015 10:54 am, edited 1 time in total.

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Nelson
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Nelson » Fri Jul 24, 2015 10:53 am

sd5289 wrote:The ones I remember off the top of my head (meaning they've come up quite a bit) are (I try to remember them in chronological order of a trial, starting from pleadings all the way through to appeals):

- Deadline to serve complaint = 120 days

- To file an answer = 21 days
- UNLESS D serves a 12(b) motion, then it's 14 days after court denies motion
- ALSO if D "waives" service, time to file answer/motion = 60 days

- if P wants to respond to the D's answer, that must be within 21 days after being served by D's answer

- if P wants to amend pleading 1x as of right, they may do so if no responsive pleading is required OR after being served with D's answer or 12(b) motion then P must do so within 21 days (after this, must obtain leave from the court)

- if served with a counterclaim OR a cross claim, a party must answer within 21 days

- if party wants to implead a non-party for liability on the original claim, generally must do so within 14 days after P's complaint (otherwise need court's permission)

- initial disclosures (names, documents, etc.) = 14 days after discovery conference
- disclosure of testifying experts (as well as the data they relied on, reports, etc) = no less than 90 days before trial OR 30 days after disclosure of opposing party's expert
- pretrial disclosures (testifying witnesses, exhibits, etc.) = at least 30 days before trial
- time to respond to interrogatories and requests to produce documents = 30 days

- motion to file for SJ = any time until 30 days after close of discovery

- demand for a jury trial = 14 days after service of last pleading

- renewed motion for judgment as a matter of law (NOTE: must have raised it during trial as well) = no more than 28 days after entry of judgment
- motion for a new trial = no more than 28 days after entry of judgment

- notice of appeal = no more than 30 days after entry of judgment

I think that's everything. Thanks. That was good for me to type out as a way of "reviewing" Civ Pro. Don't ask me to do the same for NY Practice though because ¯\_(ツ)_/¯

This is actually fucking awesome. Why the hell this isn't just a chart in the Themis final outline is beyond me.

That 90 day deadline for expert disclosure is apparently waivable under a harmless error standard as I learned on a completely obscure MBE question the other day.
Last edited by Nelson on Fri Jul 24, 2015 10:55 am, edited 1 time in total.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby anon sequitur » Fri Jul 24, 2015 10:54 am

epic post, sd5289, much appreciated. already copy/pasted to my bar review folder

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby sd5289 » Fri Jul 24, 2015 10:55 am

Nelson wrote:This is actually fucking awesome. Why the hell this isn't just a chart in the Themis final outline is beyond me.


Agreed. I've been charting everything out and it's made it a hell of a lot easier to remember.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby hephaestus » Fri Jul 24, 2015 11:17 am

Directed study's list of tasks for today:
350 mixed MBE questions
5 NY Essays
Write Out an MPT
Review half the MBE subjects

Sure Themis, I'll get right on that.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby GULCPerson » Fri Jul 24, 2015 11:18 am

Nelson wrote:
BelugaWhale wrote:
UnamSanctam wrote:
BelugaWhale wrote:Can anyone help me with personal property and theif conveying good title?

Themis states that a truly genuine bona fide purchaser for value can prevail over the true owner of a chattel and thus, my understanding, have superior title.

Yet I just did an essay where the answer came out exactly the opposite, the answer stated that "It is irrelevant that subsequent transferees were acting in good faith" and that purchasing in good faith is not a good defense where the property is stolen property.

So I'm confused


Uh. I double checked my outline and where "iii) The bona fide purchaser truly believed that the owner who was selling the goods had the authority to do so," the owner shouldn't be able to get that property back.

That's what I thought, it's question 2 from an old Virginia Exam

http://law.wm.edu/academics/howto/prepa ... Answer.pdf

It's because of the way that title was originally obtained. In that exam, the thief got the property through larceny. So he had void title and cannot transfer good title to anyone subsequent in the chain (even BFPs) and therefore replevin is still available until eventually adverse possession would kick in. This might be throwing you off because you can transfer voidable title to a BFP in a case where there's a contract defense--fraud or duress for example. Then a subsequent transfer to a BFP will cut off the original owners replevin right.

Edit: Unam's example is slightly off because another way to acquire voidable title is to purchase from an agent who has legal possession but only apparent, not actual, authority to transfer. If a BFP buys from an agent with lawful possession, this transfer of title cuts off the owners replevin right.

It's helpful to think of the policy: if you just straight up steal something, without any semblance of a legal transfer, you've got void title and can never cut off the original owner's replevin right because we don't want to encourage people to steal shit and then sell it and cut off the owner's rights. If you instead illegally transfer property you have a present right to possession of, you've got voidable title and we're OK cutting off the owner's replevin because it's usually a situation where the original owner should have been more careful in its contracting or selection of agents.


Going back to this for a minute... I thought that the distinction Nelson was making was that you can never cut off the original owner's rights from a chain that starts with larceny (bolded above). But I just had a Themis practice essay where someone directly stole a piece of furniture, sold it to an unknowing furniture merchant, who then sold it to an unknowing buyer. The model answer says that the original owner loses, because "the bona fide purchaser truly believed that the owner who was selling the goods had the authority to do so." How is that consistent with the stolen sword example?

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby sd5289 » Fri Jul 24, 2015 11:26 am

Question for you NY folks who are good at Wills/Trusts (I'm decent with Wills, at least enough to get through an essay, but Trusts not so much...):

I'm reviewing the Trusts FRO, and I know that NY doesn't recognize incorporation by reference in wills except with pour over trusts. I understand pour over trusts to be a provision in the will that distributes part of the estate into a trust, and must be executed either before or with the will. Other than that, my understanding is there is NO other document or trust that can be incorporated by reference into the will.

So the Themis FRO says testamentary trusts "occur when terms of trust are contained in writing in a will or document incorporated by reference into a will. Hmmm? HALP.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Nelson » Fri Jul 24, 2015 11:33 am

Edit: see my post below.
Last edited by Nelson on Fri Jul 24, 2015 11:41 am, edited 1 time in total.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Nelson » Fri Jul 24, 2015 11:40 am

Re: void vs. voidable title:

So I think my prior explanation was mostly right, but not totally right.

This article is more nuanced: http://www.rakowerlupkin.com/pdf/Yang-N ... tracts.pdf

UCC 2-403(2) protects the buyer if the seller is a merchant and both parties know it. So that would cover the most recent example. But not if the buyer has any reason to have doubts about the title, even if they don't specifically know what. So that covers the VA exam, where the seller said there were "title problems" but didn't specify what. But I still don't think that this applies to theft which should at least in NY and VA and PA, cut off any right of any subsequent purchaser, good faith or not, to assert title.

None of this would apply if nobody's a merchant. Then you don't get the protection and my original void vs. voidable title distinction would apply.
Last edited by Nelson on Fri Jul 24, 2015 11:44 am, edited 1 time in total.

Lekal
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Lekal » Fri Jul 24, 2015 11:44 am

Mad Hatter wrote:IL peeps: anyone do the administrative law PQ Essay? wtf? I couldn't even find the answer material in the long outline. If the real essays are like this, I'm fukt.


I just attempted that one this morning - yeah, I have no idea what's going on with that. It was all Illinois-specific stuff, which I don't remember studying at all, and I can't find anything covering it in the Themis materials. Unsure what to do with that.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby GULCPerson » Fri Jul 24, 2015 11:48 am

Nelson wrote:Re: void vs. voidable title:

So I think my prior explanation was mostly right, but not totally right.

This article is more nuanced: http://www.rakowerlupkin.com/pdf/Yang-N ... tracts.pdf

UCC 2-403(2) protects the buyer if the seller is a merchant and both parties know it. So that would cover the most recent example. But not if the buyer has any reason to have doubts about the title, even if they don't specifically know what. So that covers the VA exam, where the seller said there were "title problems" but didn't specify what.

None of this would apply if nobody's a merchant. Then you don't get the protection and my original void vs. voidable title distinction would apply.


Thanks. The Themis essay I was referring to was also a VA essay, for what it's worth. There's basically no way I'm going to keep this straight, but I appreciate that there at least is a right answer, other than just throwing my hands in the air and cursing.

I still think that as a factual rather than a legal matter, in the Sword example when the seller says "there had been a 'claim against the Sword, but that it had been resolved and was, thus, fully saleable'” that doesn't seem like the sort of thing that should count as notice of a defect in title, but that's a question of ambiguous essay prompts, not law.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby kateebee » Fri Jul 24, 2015 11:51 am

hadisious wrote:
eloise16 wrote:
sd5289 wrote:
anon sequitur wrote:
Mine is at 5.3. What bothers me most is that in the middle of all of the assignments for today is a bunch (like 3 or 4) of "review this and that subject" WHICH I HAVE ALREADY DONE but cannot check off because I have't done the assignments before that. :evil:


Haha I thought this all summer long. How many % points am I losing each day because I can't check off those damn review things I don't get to.


YES. THIS!!!!!!!!!!! I would be well over 75% if I could check off review tests without doing the Simulated MPT and 100 tasks that are a waste of my time right now.

Also, I don't know if it's because I've done so many freaking MBEs that they are running out of good questions, but I look at these questions right now, and they are all completely awful. I feel like I know a pretty good amount of stuff right now, and I am bombing these sets because the questions are just freaking ridiculously worded and the answers make no sense. Is it possible that I'm getting all the crappy bottom-of-the-barrel questions now or am I losing my mind?

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Nelson
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Re: Themis Bar Review Hangout - July 2015 Exam

Postby Nelson » Fri Jul 24, 2015 11:52 am

GULCPerson wrote:
Nelson wrote:Re: void vs. voidable title:

So I think my prior explanation was mostly right, but not totally right.

This article is more nuanced: http://www.rakowerlupkin.com/pdf/Yang-N ... tracts.pdf

UCC 2-403(2) protects the buyer if the seller is a merchant and both parties know it. So that would cover the most recent example. But not if the buyer has any reason to have doubts about the title, even if they don't specifically know what. So that covers the VA exam, where the seller said there were "title problems" but didn't specify what.

None of this would apply if nobody's a merchant. Then you don't get the protection and my original void vs. voidable title distinction would apply.


Thanks. The Themis essay I was referring to was also a VA essay, for what it's worth. There's basically no way I'm going to keep this straight, but I appreciate that there at least is a right answer, other than just throwing my hands in the air and cursing.

I still think that as a factual rather than a legal matter, in the Sword example when the seller says "there had been a 'claim against the Sword, but that it had been resolved and was, thus, fully saleable'” that doesn't seem like the sort of thing that should count as notice of a defect in title, but that's a question of ambiguous essay prompts, not law.

Yeah it's a really confusing area. Because none of this is defined in the UCC, I think it may also vary by state, which doesn't help. That article is helpful, but it's NY specific and it makes it pretty clear that, in NY at least, no one gets good title through theft until adverse possession.

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Re: Themis Bar Review Hangout - July 2015 Exam

Postby refinedwarrior » Fri Jul 24, 2015 12:19 pm

eloise16 wrote:
sd5289 wrote:
anon sequitur wrote:Finally hit 50% complete, suggested pace for the day is 12.4%. Lol at directed study, just lol.


HAHAHAHA that is amazing. My suggested pace has been going up, but is at 4.1% right now and the list of things I'm supposed to do today is just laughably ridiculous. I'm guessing your list is 5 pages long.


Mine is at 5.3. What bothers me most is that in the middle of all of the assignments for today is a bunch (like 3 or 4) of "review this and that subject" WHICH I HAVE ALREADY DONE but cannot check off because I have't done the assignments before that. :evil:


Hate that shit so I quit going through it.




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