Themis Bar Review Hangout - July 2017

champloo
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Re: Themis Bar Review Hangout - July 2017

Postby champloo » Fri Jul 21, 2017 11:35 am

SeewhathappensLarry wrote:
quirky wrote:
champloo wrote:
Law4lyf wrote:Can someone explain to me the risk of loss rules? So for example, if the parties agree in a contract FOB seller then we don't have to run the 4 part analysis correct(Terms of agreement,
breach, courier, merchant nonmerchant)?


lol im so fucked. When i see risk of loss its either shipment/destination/equitable conversion and choose whatever sounds right. I had no idea there was some sort of 4 step analysis.


Hahaha, same here. But I thought I kind of understood the rules until I read that post.


The way I understand it is the FOB k doesn't control unless 1) the parties didn't agree beforehand who will bear the risk of loss, and 2) one of the parties didn't breach. Only then does it matter if it's a shipment or delivery contract. Someone correct me if I'm wrong


number 2 makes sense but not sure about 1. triple negatives are really hard for me right now tho.

uceoledinbdnrn
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Re: Themis Bar Review Hangout - July 2017

Postby uceoledinbdnrn » Fri Jul 21, 2017 11:36 am

wiki actually looks pretty good on this: https://en.wikipedia.org/wiki/Risk_of_loss

champloo
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Re: Themis Bar Review Hangout - July 2017

Postby champloo » Fri Jul 21, 2017 11:37 am

2014applicant wrote:Can anybody explain how you would use a prior judgment against a defendant for non-impeachment purposes? I'm having trouble wrapping my head around when it wouldn't be character evidence.


not sure if im understanding you correctly but, couldn't P use D's conviction in the criminal suit as evidence for D's fault in a subsequent civil suit?

nichsull
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Re: Themis Bar Review Hangout - July 2017

Postby nichsull » Fri Jul 21, 2017 11:40 am

For conflict of law essay questions, I know it is not a stand alone topic, are we supposed to discuss all three approaches, vested, government interest, most significant relationship, to choice of law of questions or will it be obvious which to apply? Also, most of the time government interest is kind of left out of the discussion for choice of law for each legal topic, torts for example, does that mean it is less important or still something that deserves explanation in a conflict question, that does not explicitly say which approach to apply.

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SeewhathappensLarry
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Re: Themis Bar Review Hangout - July 2017

Postby SeewhathappensLarry » Fri Jul 21, 2017 11:40 am

champloo wrote:
SeewhathappensLarry wrote:
quirky wrote:
champloo wrote:
Law4lyf wrote:Can someone explain to me the risk of loss rules? So for example, if the parties agree in a contract FOB seller then we don't have to run the 4 part analysis correct(Terms of agreement,
breach, courier, merchant nonmerchant)?


lol im so fucked. When i see risk of loss its either shipment/destination/equitable conversion and choose whatever sounds right. I had no idea there was some sort of 4 step analysis.


Hahaha, same here. But I thought I kind of understood the rules until I read that post.


The way I understand it is the FOB k doesn't control unless 1) the parties didn't agree beforehand who will bear the risk of loss, and 2) one of the parties didn't breach. Only then does it matter if it's a shipment or delivery contract. Someone correct me if I'm wrong


number 2 makes sense but not sure about 1. triple negatives are really hard for me right now tho.


Bar prep makes me talk in streams of consciousness. What I mean is: 1) if parties agree beforehand who bears of the risk of loss, that controls; 2) if they didn't agree, then if a party breaches, that party bears the risk of loss. 3) if the parties didn't agree and there is no breach, then the risk of loss depends on whether the k is shipment or delivery

nichsull
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Re: Themis Bar Review Hangout - July 2017

Postby nichsull » Fri Jul 21, 2017 11:43 am

champloo wrote:
2014applicant wrote:Can anybody explain how you would use a prior judgment against a defendant for non-impeachment purposes? I'm having trouble wrapping my head around when it wouldn't be character evidence.


not sure if im understanding you correctly but, couldn't P use D's conviction in the criminal suit as evidence for D's fault in a subsequent civil suit?



Also, couldn't you use a prior conviction for MIMIC issues? I think there was a MBE question where the person was convicted of robbery three times and always spray painted a rabbit at the crime scene and this last time he was on trial for robbery there was a rabbit spray painted at the scene and the prosecution wanted to use it to prove identity.
Last edited by nichsull on Fri Jul 21, 2017 11:43 am, edited 1 time in total.

champloo
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Re: Themis Bar Review Hangout - July 2017

Postby champloo » Fri Jul 21, 2017 11:43 am

SeewhathappensLarry wrote:
champloo wrote:
SeewhathappensLarry wrote:
quirky wrote:
champloo wrote:
Law4lyf wrote:Can someone explain to me the risk of loss rules? So for example, if the parties agree in a contract FOB seller then we don't have to run the 4 part analysis correct(Terms of agreement,
breach, courier, merchant nonmerchant)?


lol im so fucked. When i see risk of loss its either shipment/destination/equitable conversion and choose whatever sounds right. I had no idea there was some sort of 4 step analysis.


Hahaha, same here. But I thought I kind of understood the rules until I read that post.


The way I understand it is the FOB k doesn't control unless 1) the parties didn't agree beforehand who will bear the risk of loss, and 2) one of the parties didn't breach. Only then does it matter if it's a shipment or delivery contract. Someone correct me if I'm wrong


number 2 makes sense but not sure about 1. triple negatives are really hard for me right now tho.


Bar prep makes me talk in streams of consciousness. What I mean is: 1) if parties agree beforehand who bears of the risk of loss, that controls; 2) if they didn't agree, then if a party breaches, that party bears the risk of loss. 3) if the parties didn't agree and there is no breach, then the risk of loss depends on whether the k is shipment or delivery


thank you, that makes a lot of sense. but how do you know if a k is shipment or delivery if parties don't agree beforehand that it is a shipment/delivery?

bmmccb223
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Re: Themis Bar Review Hangout - July 2017

Postby bmmccb223 » Fri Jul 21, 2017 11:58 am

Anyone feel like further study is futile at this point? I think I've hit the information overload point such that when I learn one thing I forget another.

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whats an updog
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Re: Themis Bar Review Hangout - July 2017

Postby whats an updog » Fri Jul 21, 2017 12:13 pm

champloo wrote:
SeewhathappensLarry wrote:
champloo wrote:
SeewhathappensLarry wrote:
quirky wrote:
champloo wrote:
Law4lyf wrote:Can someone explain to me the risk of loss rules? So for example, if the parties agree in a contract FOB seller then we don't have to run the 4 part analysis correct(Terms of agreement,
breach, courier, merchant nonmerchant)?


lol im so fucked. When i see risk of loss its either shipment/destination/equitable conversion and choose whatever sounds right. I had no idea there was some sort of 4 step analysis.


Hahaha, same here. But I thought I kind of understood the rules until I read that post.


The way I understand it is the FOB k doesn't control unless 1) the parties didn't agree beforehand who will bear the risk of loss, and 2) one of the parties didn't breach. Only then does it matter if it's a shipment or delivery contract. Someone correct me if I'm wrong


number 2 makes sense but not sure about 1. triple negatives are really hard for me right now tho.


Bar prep makes me talk in streams of consciousness. What I mean is: 1) if parties agree beforehand who bears of the risk of loss, that controls; 2) if they didn't agree, then if a party breaches, that party bears the risk of loss. 3) if the parties didn't agree and there is no breach, then the risk of loss depends on whether the k is shipment or delivery


thank you, that makes a lot of sense. but how do you know if a k is shipment or delivery if parties don't agree beforehand that it is a shipment/delivery?


To add to what the above poster said, this is the four part test:

1. Have they agreed on risk of loss in the K (beyond mere shipment/destination rules)? If so, those terms apply regardless of shipment/destination.
2. Has either party breached? If so, breaching party bears risk of loss.
3. If there are no other terms, and neither party has breached, look to see whether it's a shipment or destination contract. Shipment shifts risk to buyer after the shipper has (1) gotten the goods to a common carrier, (2) made arrangements for delivery, and (3) notified the buyer. For destination, the seller retains risk of loss until the goods actually arrive at their destination.
4. Ok, but what if the contract doesn't specify shipment or destination or is otherwise unclear? Ask whether the SELLER is a merchant. If they are a merchant, the risk stays with the seller until the buyer receives the goods. If they are not a merchant, the risk shifts to the buyer as soon as the seller tenders the goods. Tendering goods can be just telling the other person that the goods are ready for pick up.

And because someone above said they were having trouble with confusing equitable conversion and the risk of loss problem for goods, it's a little different, but I don't think equitable conversion is something that should worry you (at least in the way I think about it). This is a simple explanation of equitable conversion:

In contracts for RP, unless otherwise specified, after the contract is made but before closing, the buyer bears the risk of loss because the buyer has a form of ownership through equitable conversion.
Last edited by whats an updog on Fri Jul 21, 2017 12:44 pm, edited 1 time in total.

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Re: Themis Bar Review Hangout - July 2017

Postby whats an updog » Fri Jul 21, 2017 12:21 pm

nichsull wrote:
champloo wrote:
2014applicant wrote:Can anybody explain how you would use a prior judgment against a defendant for non-impeachment purposes? I'm having trouble wrapping my head around when it wouldn't be character evidence.


not sure if im understanding you correctly but, couldn't P use D's conviction in the criminal suit as evidence for D's fault in a subsequent civil suit?



Also, couldn't you use a prior conviction for MIMIC issues? I think there was a MBE question where the person was convicted of robbery three times and always spray painted a rabbit at the crime scene and this last time he was on trial for robbery there was a rabbit spray painted at the scene and the prosecution wanted to use it to prove identity.


Yes, you could use it for MIMIC purposes. I think that I remember some potential nuance that a court might exclude the information about there being an actual arrest or conviction due to 403 unfair prejudice problems, but regardless of that point, the facts of their previous bad act can absolutely come in for MIMIC purposes.

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Re: Themis Bar Review Hangout - July 2017

Postby whats an updog » Fri Jul 21, 2017 12:23 pm

nichsull wrote:For conflict of law essay questions, I know it is not a stand alone topic, are we supposed to discuss all three approaches, vested, government interest, most significant relationship, to choice of law of questions or will it be obvious which to apply? Also, most of the time government interest is kind of left out of the discussion for choice of law for each legal topic, torts for example, does that mean it is less important or still something that deserves explanation in a conflict question, that does not explicitly say which approach to apply.


I have not seen any essay questions that have brought up conflicts issues really, but if they do, I would bet they would tell you what each of the state's conflicts law says. That's what the MBE questions usually do anyway.

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Re: Themis Bar Review Hangout - July 2017

Postby 2014applicant » Fri Jul 21, 2017 12:32 pm

whats an updog wrote:
nichsull wrote:
champloo wrote:
2014applicant wrote:Can anybody explain how you would use a prior judgment against a defendant for non-impeachment purposes? I'm having trouble wrapping my head around when it wouldn't be character evidence.


not sure if im understanding you correctly but, couldn't P use D's conviction in the criminal suit as evidence for D's fault in a subsequent civil suit?



Also, couldn't you use a prior conviction for MIMIC issues? I think there was a MBE question where the person was convicted of robbery three times and always spray painted a rabbit at the crime scene and this last time he was on trial for robbery there was a rabbit spray painted at the scene and the prosecution wanted to use it to prove identity.


Yes, you could use it for MIMIC purposes. I think that I remember some potential nuance that a court might exclude the information about there being an actual arrest or conviction due to 403 unfair prejudice problems, but regardless of that point, the facts of their previous bad act can absolutely come in for MIMIC purposes.


Thanks for all the help! Can a prior criminal conviction be used to show fault in a civil cause per champloo's question above?

uceoledinbdnrn
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Re: Themis Bar Review Hangout - July 2017

Postby uceoledinbdnrn » Fri Jul 21, 2017 12:39 pm

2014applicant wrote:
whats an updog wrote:
nichsull wrote:
champloo wrote:
2014applicant wrote:Can anybody explain how you would use a prior judgment against a defendant for non-impeachment purposes? I'm having trouble wrapping my head around when it wouldn't be character evidence.


not sure if im understanding you correctly but, couldn't P use D's conviction in the criminal suit as evidence for D's fault in a subsequent civil suit?



Also, couldn't you use a prior conviction for MIMIC issues? I think there was a MBE question where the person was convicted of robbery three times and always spray painted a rabbit at the crime scene and this last time he was on trial for robbery there was a rabbit spray painted at the scene and the prosecution wanted to use it to prove identity.


Yes, you could use it for MIMIC purposes. I think that I remember some potential nuance that a court might exclude the information about there being an actual arrest or conviction due to 403 unfair prejudice problems, but regardless of that point, the facts of their previous bad act can absolutely come in for MIMIC purposes.


Thanks for all the help! Can a prior criminal conviction be used to show fault in a civil cause per champloo's question above?


yup. Certified copy of a judgment falls under the public records exception to hearsay and is admissible in either a criminal or civil trial to "prove any fact essential to the judgment."

So like if D punched someone and was found guilty of aggravated battery and then later that person died from their wounds and their family filed a wrongful death action and the state charged D with murder, the judgment from the aggravated battery trial would be admissible in both cases.

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whats an updog
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Re: Themis Bar Review Hangout - July 2017

Postby whats an updog » Fri Jul 21, 2017 12:41 pm

2014applicant wrote:
whats an updog wrote:
nichsull wrote:
champloo wrote:
2014applicant wrote:Can anybody explain how you would use a prior judgment against a defendant for non-impeachment purposes? I'm having trouble wrapping my head around when it wouldn't be character evidence.


not sure if im understanding you correctly but, couldn't P use D's conviction in the criminal suit as evidence for D's fault in a subsequent civil suit?



Also, couldn't you use a prior conviction for MIMIC issues? I think there was a MBE question where the person was convicted of robbery three times and always spray painted a rabbit at the crime scene and this last time he was on trial for robbery there was a rabbit spray painted at the scene and the prosecution wanted to use it to prove identity.


Yes, you could use it for MIMIC purposes. I think that I remember some potential nuance that a court might exclude the information about there being an actual arrest or conviction due to 403 unfair prejudice problems, but regardless of that point, the facts of their previous bad act can absolutely come in for MIMIC purposes.


Thanks for all the help! Can a prior criminal conviction be used to show fault in a civil cause per champloo's question above?


I am just a bar studier, so someone can correct me if I'm wrong, but I think for civil cases everything is fair game (rep, opinion, bad acts including prior judgments) so long as it meets the rather stringent test for whether character evidence is allowed at all in civil cases. The test for character evidence being admissible in civil cases: is character an essential element of a claim or defense, or otherwise "at issue"?

So, for example, in a civil child custody case, prior judgments of battery could definitely come in because they are relevant as to the person's fitness as a parent. Other examples: negligent hiring (who would hire a woman as a nanny when she had a prior child abuse conviction!) or defamation (to prove defendant was telling the truth when he called plaintiff a woman beater, because plaintiff has priors for battery).

edit: above poster also makes a good point regarding the hearsay exception

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Re: Themis Bar Review Hangout - July 2017

Postby rrwwa » Fri Jul 21, 2017 1:10 pm

whats an updog wrote:To add to what the above poster said, this is the four part test:

1. Have they agreed on risk of loss in the K (beyond mere shipment/destination rules)? If so, those terms apply regardless of shipment/destination.
2. Has either party breached? If so, breaching party bears risk of loss.
3. If there are no other terms, and neither party has breached, look to see whether it's a shipment or destination contract. Shipment shifts risk to buyer after the shipper has (1) gotten the goods to a common carrier, (2) made arrangements for delivery, and (3) notified the buyer. For destination, the seller retains risk of loss until the goods actually arrive at their destination.
4. Ok, but what if the contract doesn't specify shipment or destination or is otherwise unclear? Ask whether the SELLER is a merchant. If they are a merchant, the risk stays with the seller until the buyer receives the goods. If they are not a merchant, the risk shifts to the buyer as soon as the seller tenders the goods. Tendering goods can be just telling the other person that the goods are ready for pick up.

And because someone above said they were having trouble with confusing equitable conversion and the risk of loss problem for goods, it's a little different, but I don't think equitable conversion is something that should worry you (at least in the way I think about it). This is a simple explanation of equitable conversion:

In contracts for RP, unless otherwise specified, after the contract is made but before closing, the buyer bears the risk of loss because the buyer has a form of ownership through equitable conversion.


Any idea how to fit in the rule that if the goods are identified, and completely destroyed through no fault of either party, then the K is avoided? Because my brain can't reconcile the 4-step analysis and this rule. I messaged Themis about it, but they haven't gotten back to me.

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Re: Themis Bar Review Hangout - July 2017

Postby whats an updog » Fri Jul 21, 2017 1:15 pm

rrwwa wrote:
whats an updog wrote:To add to what the above poster said, this is the four part test:

1. Have they agreed on risk of loss in the K (beyond mere shipment/destination rules)? If so, those terms apply regardless of shipment/destination.
2. Has either party breached? If so, breaching party bears risk of loss.
3. If there are no other terms, and neither party has breached, look to see whether it's a shipment or destination contract. Shipment shifts risk to buyer after the shipper has (1) gotten the goods to a common carrier, (2) made arrangements for delivery, and (3) notified the buyer. For destination, the seller retains risk of loss until the goods actually arrive at their destination.
4. Ok, but what if the contract doesn't specify shipment or destination or is otherwise unclear? Ask whether the SELLER is a merchant. If they are a merchant, the risk stays with the seller until the buyer receives the goods. If they are not a merchant, the risk shifts to the buyer as soon as the seller tenders the goods. Tendering goods can be just telling the other person that the goods are ready for pick up.

And because someone above said they were having trouble with confusing equitable conversion and the risk of loss problem for goods, it's a little different, but I don't think equitable conversion is something that should worry you (at least in the way I think about it). This is a simple explanation of equitable conversion:

In contracts for RP, unless otherwise specified, after the contract is made but before closing, the buyer bears the risk of loss because the buyer has a form of ownership through equitable conversion.


Any idea how to fit in the rule that if the goods are identified, and completely destroyed through no fault of either party, then the K is avoided? Because my brain can't reconcile the 4-step analysis and this rule. I messaged Themis about it, but they haven't gotten back to me.


The only thing that immediately jumps to mind is if it is a contract where the buyer has sent their offer to the seller, and the seller is attempting to accept the offer by shipping (without responding). If that shipment gets destroyed, the K would be void (or nonexistent) because it was never accepted (goods never arrived). Maybe if you post a fact pattern/question example, that'd be helpful. Otherwise, let us know what Themis says!

edit: Also, I think that in a scenario where the contract is "void" someone is still accepting the loss if the goods were destroyed.

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Re: Themis Bar Review Hangout - July 2017

Postby rrwwa » Fri Jul 21, 2017 1:29 pm

whats an updog wrote:
rrwwa wrote:
whats an updog wrote:To add to what the above poster said, this is the four part test:

1. Have they agreed on risk of loss in the K (beyond mere shipment/destination rules)? If so, those terms apply regardless of shipment/destination.
2. Has either party breached? If so, breaching party bears risk of loss.
3. If there are no other terms, and neither party has breached, look to see whether it's a shipment or destination contract. Shipment shifts risk to buyer after the shipper has (1) gotten the goods to a common carrier, (2) made arrangements for delivery, and (3) notified the buyer. For destination, the seller retains risk of loss until the goods actually arrive at their destination.
4. Ok, but what if the contract doesn't specify shipment or destination or is otherwise unclear? Ask whether the SELLER is a merchant. If they are a merchant, the risk stays with the seller until the buyer receives the goods. If they are not a merchant, the risk shifts to the buyer as soon as the seller tenders the goods. Tendering goods can be just telling the other person that the goods are ready for pick up.

And because someone above said they were having trouble with confusing equitable conversion and the risk of loss problem for goods, it's a little different, but I don't think equitable conversion is something that should worry you (at least in the way I think about it). This is a simple explanation of equitable conversion:

In contracts for RP, unless otherwise specified, after the contract is made but before closing, the buyer bears the risk of loss because the buyer has a form of ownership through equitable conversion.


Any idea how to fit in the rule that if the goods are identified, and completely destroyed through no fault of either party, then the K is avoided? Because my brain can't reconcile the 4-step analysis and this rule. I messaged Themis about it, but they haven't gotten back to me.


The only thing that immediately jumps to mind is if it is a contract where the buyer has sent their offer to the seller, and the seller is attempting to accept the offer by shipping (without responding). If that shipment gets destroyed, the K would be void (or nonexistent) because it was never accepted (goods never arrived). Maybe if you post a fact pattern/question example, that'd be helpful. Otherwise, let us know what Themis says!

edit: Also, I think that in a scenario where the contract is "void" someone is still accepting the loss if the goods were destroyed.


Thanks, this helps. And speak of the devil, Themis responded while I was thinking about this again. Their explanation is that these rules "don't affect each other," which is hard for me to grasp. They said that the rule re: voiding the contract has no effect on WHEN the risk of loss passes to the buyer. They said to first apply the rules to see who bears the risk of loss, and then to do the analysis to see if the K is avoided.

I agree, I think this is hard for me because I'm thinking about the rules in a vacuum. The only example I have is Essay ID 187 (for PA, in case that's relevant). In that question, the buyer and seller enter into an agreement for the sale of goods. The contract says that the seller will hold/store the goods for the buyer, at the seller's risk, until the buyer "needed them." The buyer paid a deposit. While the seller was storing the goods, lightning burned down its factory and destroyed everything. Apparently the correct answer is that that K was avoided, the seller had no further obligations, and the buyer was entitled to get its deposit back.

So I guess I'm struggling to understand why we care about whether the risk lies with the buyer or seller, if destruction just voids the K anyway? But I must be approaching this incorrectly in some way?

Edit: other important fact in the essay question above was that the seller had put aside specific barrels of the good for the buyer, so they were "identified."

another edit: duh maybe the difference here is actual loss of the goods, i.e. when they aren't technically destroyed or damaged? I'm getting a little fried over here.

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Re: Themis Bar Review Hangout - July 2017

Postby whats an updog » Fri Jul 21, 2017 1:48 pm

rrwwa wrote:
whats an updog wrote:
rrwwa wrote:
whats an updog wrote:To add to what the above poster said, this is the four part test:

1. Have they agreed on risk of loss in the K (beyond mere shipment/destination rules)? If so, those terms apply regardless of shipment/destination.
2. Has either party breached? If so, breaching party bears risk of loss.
3. If there are no other terms, and neither party has breached, look to see whether it's a shipment or destination contract. Shipment shifts risk to buyer after the shipper has (1) gotten the goods to a common carrier, (2) made arrangements for delivery, and (3) notified the buyer. For destination, the seller retains risk of loss until the goods actually arrive at their destination.
4. Ok, but what if the contract doesn't specify shipment or destination or is otherwise unclear? Ask whether the SELLER is a merchant. If they are a merchant, the risk stays with the seller until the buyer receives the goods. If they are not a merchant, the risk shifts to the buyer as soon as the seller tenders the goods. Tendering goods can be just telling the other person that the goods are ready for pick up.

And because someone above said they were having trouble with confusing equitable conversion and the risk of loss problem for goods, it's a little different, but I don't think equitable conversion is something that should worry you (at least in the way I think about it). This is a simple explanation of equitable conversion:

In contracts for RP, unless otherwise specified, after the contract is made but before closing, the buyer bears the risk of loss because the buyer has a form of ownership through equitable conversion.


Any idea how to fit in the rule that if the goods are identified, and completely destroyed through no fault of either party, then the K is avoided? Because my brain can't reconcile the 4-step analysis and this rule. I messaged Themis about it, but they haven't gotten back to me.


The only thing that immediately jumps to mind is if it is a contract where the buyer has sent their offer to the seller, and the seller is attempting to accept the offer by shipping (without responding). If that shipment gets destroyed, the K would be void (or nonexistent) because it was never accepted (goods never arrived). Maybe if you post a fact pattern/question example, that'd be helpful. Otherwise, let us know what Themis says!

edit: Also, I think that in a scenario where the contract is "void" someone is still accepting the loss if the goods were destroyed.


Thanks, this helps. And speak of the devil, Themis responded while I was thinking about this again. Their explanation is that these rules "don't affect each other," which is hard for me to grasp. They said that the rule re: voiding the contract has no effect on WHEN the risk of loss passes to the buyer. They said to first apply the rules to see who bears the risk of loss, and then to do the analysis to see if the K is avoided.

I agree, I think this is hard for me because I'm thinking about the rules in a vacuum. The only example I have is Essay ID 187 (for PA, in case that's relevant). In that question, the buyer and seller enter into an agreement for the sale of goods. The contract says that the seller will hold/store the goods for the buyer, at the seller's risk, until the buyer "needed them." The buyer paid a deposit. While the seller was storing the goods, lightning burned down its factory and destroyed everything. Apparently the correct answer is that that K was avoided, the seller had no further obligations, and the buyer was entitled to get its deposit back.

So I guess I'm struggling to understand why we care about whether the risk lies with the buyer or seller, if destruction just voids the K anyway? But I must be approaching this incorrectly in some way?

Edit: other important fact in the essay question above was that the seller had put aside specific barrels of the good for the buyer, so they were "identified."

another edit: duh maybe the difference here is actual loss of the goods, i.e. when they aren't technically destroyed or damaged? I'm getting a little fried over here.


Ok, so I just reread the rule (bottom of page 64 of MBE Contract & Sales outline), and the answer Themis gave you seems somewhat wrong. Yes they are separate rules, but the K can only be avoided if the risk of loss has not yet shifted to the buyer. Also, the K is only voided in the case of (as you mentioned previously), identified goods. The effect of voiding the K is just to prevent the seller from having to perform an impossible task. It's really just applying the impossibility defense to performance. For example:

You want a specific painting (identified good). I tell you that I will bear the risk of loss until you come pick it up. Before you pick it up, my gallery burns down and the painting along with it. I can no longer give you that painting because it's gone and the painting was unique/identified. Therefore, it's impossible and the contract is void/performance excused. This is besides the point of risk of loss, because of course, I bore the risk of losing the painting and take the loss for it being gone.

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Re: Themis Bar Review Hangout - July 2017

Postby champloo » Fri Jul 21, 2017 1:55 pm

whats an updog wrote:
To add to what the above poster said, this is the four part test:

1. Have they agreed on risk of loss in the K (beyond mere shipment/destination rules)? If so, those terms apply regardless of shipment/destination.
2. Has either party breached? If so, breaching party bears risk of loss.
3. If there are no other terms, and neither party has breached, look to see whether it's a shipment or destination contract. Shipment shifts risk to buyer after the shipper has (1) gotten the goods to a common carrier, (2) made arrangements for delivery, and (3) notified the buyer. For destination, the seller retains risk of loss until the goods actually arrive at their destination.
4. Ok, but what if the contract doesn't specify shipment or destination or is otherwise unclear? Ask whether the SELLER is a merchant. If they are a merchant, the risk stays with the seller until the buyer receives the goods. If they are not a merchant, the risk shifts to the buyer as soon as the seller tenders the goods. Tendering goods can be just telling the other person that the goods are ready for pick up.

And because someone above said they were having trouble with confusing equitable conversion and the risk of loss problem for goods, it's a little different, but I don't think equitable conversion is something that should worry you (at least in the way I think about it). This is a simple explanation of equitable conversion:

In contracts for RP, unless otherwise specified, after the contract is made but before closing, the buyer bears the risk of loss because the buyer has a form of ownership through equitable conversion.


wow this really helpful. thank you so much

rrwwa
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Re: Themis Bar Review Hangout - July 2017

Postby rrwwa » Fri Jul 21, 2017 1:59 pm

whats an updog wrote:
rrwwa wrote:blah blah stuff


Ok, so I just reread the rule (bottom of page 64 of MBE Contract & Sales outline), and the answer Themis gave you seems somewhat wrong. Yes they are separate rules, but the K can only be avoided if the risk of loss has not yet shifted to the buyer. Also, the K is only voided in the case of (as you mentioned previously), identified goods. The effect of voiding the K is just to prevent the seller from having to perform an impossible task. It's really just applying the impossibility defense to performance. For example:

You want a specific painting (identified good). I tell you that I will bear the risk of loss until you come pick it up. Before you pick it up, my gallery burns down and the painting along with it. I can no longer give you that painting because it's gone and the painting was unique/identified. Therefore, it's impossible and the contract is void/performance excused. This is besides the point of risk of loss, because of course, I bore the risk of losing the painting and take the loss for it being gone.


Ah thank you! This is much more helpful. I had only been looking in my state-specific outlines, and the MBE outline is way more clear.

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the_pakalypse
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Re: Themis Bar Review Hangout - July 2017

Postby the_pakalypse » Fri Jul 21, 2017 2:00 pm

What's the difference between a codicil and an alteration?

Outline says "a testator cannot increase a gift to a beneficiary by canceling words in his will, but he may be able to decrease the gift as long as the alteration is made to the existing language of the will rather than through the addition of new language".

But isn't that exactly what codicils do?

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whats an updog
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Re: Themis Bar Review Hangout - July 2017

Postby whats an updog » Fri Jul 21, 2017 2:08 pm

the_pakalypse wrote:What's the difference between a codicil and an alteration?

Outline says "a testator cannot increase a gift to a beneficiary by canceling words in his will, but he may be able to decrease the gift as long as the alteration is made to the existing language of the will rather than through the addition of new language".

But isn't that exactly what codicils do?


Going off the top of my head, but maybe you can have partial revocation by physical act if you scratch out some words to decrease a gift. If that's right, it'd be less than a codicil because codicils need to meet either the formal or holographic standard. (CA)

edit: yes, that answer is correct, at least for CA (Wills Outline pg. 15). partial physical revocation is possible to decrease, but not increase. you would need a codicil to increase.

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Steve2207
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Re: Themis Bar Review Hangout - July 2017

Postby Steve2207 » Fri Jul 21, 2017 2:27 pm

Is there a way to mark the “Review” sessions completed in the flex study? I would like to replace problem set 17 with the S&T PM Session, but if I do it doesn’t appear that I would have anyway of moving forward and marking the final review sessions as completed.

Really don't want to mess up my completion rate, but some of the earlier post have me nervous about the MBE. (I will be just shy of 95% course completion by the end of the day, but my overall MBE score is only a 65%)

quirky
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Re: Themis Bar Review Hangout - July 2017

Postby quirky » Fri Jul 21, 2017 2:59 pm

bmmccb223 wrote:Anyone feel like further study is futile at this point? I think I've hit the information overload point such that when I learn one thing I forget another.


Yep. I've been at this point for a couple of days now. Having a real tough time focusing now.

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whats an updog
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Re: Themis Bar Review Hangout - July 2017

Postby whats an updog » Fri Jul 21, 2017 3:00 pm

quirky wrote:
bmmccb223 wrote:Anyone feel like further study is futile at this point? I think I've hit the information overload point such that when I learn one thing I forget another.


Yep. I've been at this point for a couple of days now. Having a real tough time focusing now.


Yeah, for MBE I feel like there is nothing more to be done. But still getting essays straight / reading model answers. Productivity definitely at a low though.




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