California Bar Exam (July 2013) thread Forum

[lorraina42]

but yet the first PT on the actual exam was the worst thing I have ever written (I will be lucky if I get a 50).

God dammit I get so pissed when I read this. EVERYONE THOUGHT IT WAS HARD. That's the beauty of a curve. jesus. The only way in which you should worry is if CA comes out and says they've decided to lower the pass rate from 70% to 50% or something like that.

Sorry I wasn't more clear. I realize that the first PT was difficult for everyone, and I understand the nature of the exam scaling. I just meant that it was ironic that what was supposed to be my strongest subject will be my weakest. My comment was meant to be self-deprecating, not panicked.

[mrpickles]

Yeah, I threw it in saying if so and so argued 3PB, but no. Raised and dismissed shortly

This.

I heard some people saying they analyzed it as a hybrid K?! I saw the issue, but I laid up a slightly longer issue to the law up front (2-3 sentences) just saying that while specific goods used is a provision, the whole point of the contract was to build a house, so services.
Most of my Ks essay was oral>SOF>PER = doesn't come in, then since imposs/imprac>substantial compliance. And also obviously no consideration for the 25k.

[a male human]

but yet the first PT on the actual exam was the worst thing I have ever written (I will be lucky if I get a 50).

God dammit I get so pissed when I read this. EVERYONE THOUGHT IT WAS HARD. That's the beauty of a curve. jesus. The only way in which you should worry is if CA comes out and says they've decided to lower the pass rate from 70% to 50% or something like that.

it's already 50% tho

[huckabees]

I did the same but hardly anyone else I know did imprac or imposs

[a male human]

Yeah, I threw it in saying if so and so argued 3PB, but no. Raised and dismissed shortly

This.

I heard some people saying they analyzed it as a hybrid K?! I saw the issue, but I laid up a slightly longer issue to the law up front (2-3 sentences) just saying that while specific goods used is a provision, the whole point of the contract was to build a house, so services.
Most of my Ks essay was oral>SOF>PER = doesn't come in, then since imposs/imprac>substantial compliance. And also obviously no consideration for the 25k.

i said the oral comm'n comes in despite PER because it was a condition precedent.
also i put that the consideration for the 25k was for the assurance (seems flimsy but oh well).

[Old Gregg]

but yet the first PT on the actual exam was the worst thing I have ever written (I will be lucky if I get a 50).

God dammit I get so pissed when I read this. EVERYONE THOUGHT IT WAS HARD. That's the beauty of a curve. jesus. The only way in which you should worry is if CA comes out and says they've decided to lower the pass rate from 70% to 50% or something like that.

it's already 50% tho

50% in feb (or even lower right?). 70%ish for july i think.

edit: sorry, 68% for first time takers.

[autarkh]

Yeah, I threw it in saying if so and so argued 3PB, but no. Raised and dismissed shortly

This.

I heard some people saying they analyzed it as a hybrid K?! I saw the issue, but I laid up a slightly longer issue to the law up front (2-3 sentences) just saying that while specific goods used is a provision, the whole point of the contract was to build a house, so services.
Most of my Ks essay was oral>SOF>PER = doesn't come in, then since imposs/imprac>substantial compliance. And also obviously no consideration for the 25k.

I didn't mention SoF because the K was written and it didn't even occur to me. As for hybrid K, I did what you did. Even if specific goods were included, the primary objective (and most of the value) related to the house's construction. So CL not UCC.

As for no new consideration... I didn't see any, but courts can find consideration in weird places when they want to. And equity seemed to be on the contractor's side. Also, there were no specific grounds for buyer to demand assurances. So I mentioned that to avoid forfeiture, consideration might be found in additional burdens, if any, that the contractor undertook to expedite construction.

[mrpickles]

Yeah, I threw it in saying if so and so argued 3PB, but no. Raised and dismissed shortly

This.

I heard some people saying they analyzed it as a hybrid K?! I saw the issue, but I laid up a slightly longer issue to the law up front (2-3 sentences) just saying that while specific goods used is a provision, the whole point of the contract was to build a house, so services.
Most of my Ks essay was oral>SOF>PER = doesn't come in, then since imposs/imprac>substantial compliance. And also obviously no consideration for the 25k.

i said the oral comm'n comes in despite PER because it was a condition precedent.
also i put that the consideration for the 25k was for the assurance (seems flimsy but oh well).

NVM I had a shitty explanation that also looked wrong. I basically argued that it was him explaining terms already in K, and wouldn't come in.

[Tangerine Gleam]

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[autarkh]

Was impossibility relevant? He literally was unable to use the Sun equipment because the company was out of stock.

The shortage was "temporary".

[Emma.]

This thread has become poison for me (no offense to anyone, I just need to forget the bar ASAP and not think about it til Nov). Peacing out until results come out. Good luck everyone.

[Another]

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[a male human]

Was impossibility relevant? He literally was unable to use the Sun equipment because the company was out of stock.

Could be a small issue, now that I think about it. Not objectively impossible because you could have acquired the Sun panels and equipment from someone who already owns them.

[autarkh]

Was impossibility relevant? He literally was unable to use the Sun equipment because the company was out of stock.

Could be a small issue, now that I think about it. Not objectively impossible because you could have acquired the Sun panels and equipment from someone who already owns them.

But that would change the cost of acquiring them. Contractor would have a pretty good argument that he discharged his duties under the K by installing equal grade solar panels, provided that the shortage was unforeseeable and acquiring Sun panels second-hand would either have cost a lot more (a basic assumption of the K was that they would be available from the manufacturer--even the buyer said so, and would likely be estopped from denying it later since he refused to pay by characterizing the failure to buy the panels as a material breach) or could potentially itself have been deemed a breach (i.e., installing used panels).

EDIT: Interesting catch. Would have been worth a line or two.

[mrpickles]

I did the same but hardly anyone else I know did imprac or imposs

When I read the facts, I thought it definitely warranted an analysis - provision to use X brand, X brand out of stock, also keeps telling him to make sure its by Y time, to finish by Y time, has to use Z brand. I mean, of course there's also whether he bore the risk by not ordering soon enough, things like that. Part of the whole analysis IMO. I thought it was definitely an issue though. I could be very wrong and got a 50.

[autarkh]

I did the same but hardly anyone else I know did imprac or imposs

When I read the facts, I thought it definitely warranted an analysis - provision to use X brand, X brand out of stock, also keeps telling him to make sure its by Y time, to finish by Y time, has to use Z brand. I mean, of course there's also whether he bore the risk by not ordering soon enough, things like that. Part of the whole analysis IMO. I thought it was definitely an issue though. I could be very wrong and got a 50.

I think you're right that it was an issue, maybe even a major one.

I talked about contractor ordering soon enough vs. having time to order it after it was back in stock. But I didn't label that discussion impossibility/impracticability -- probably should have, in retrospect.

[Regionality]

Contracts essay:

I said that time is of the essence originally not in K. However, there was a modification to the K: UCC vs Common Law (requires consideration under common law, which was the 25k) and that the subsequent 25k provided consideration to add a time is of the essence provision in the contract. I wrote Parol Evidence Rule excluded term interpretation if clear on its face, therefore the oral conversation before the fully integrated written contract was made wouldn't come in, making time not of the essence and making the requirement to use Sun equipment not a material provision. Sun Company WAS an Intended third party beneficiary, as it was specifically identified in the contract, but the rights hadn't vested through assent, reliance or suing therefore Sun could be cut out of the contract without paying them damages. I discussed material vs minor breach requiring counter performance, saying the requirement to use Sun's parts was a minor condition and that the builder hadn't materially breached since he built on time under the modified K making time of the essence. I said some other stuff too.

[SoCow]

For the contracts essay, I thought I read somewhere that oral modifications in service Ks were okay even though the contract contained a clause that requires modifications to be in writing. Did anyone else come across this? I thought I saw it in the Barbri outlines, but I don't wanna go near those books anytime soon.

[spartjdawg]

For the contracts essay, I thought I read somewhere that oral modifications in service Ks were okay even though the contract contained a clause that requires modifications to be in writing. Did anyone else come across this? I thought I saw it in the Barbri outlines, but I don't wanna go near those books anytime soon.

Generally, they will enforce oral modifications even if there is a no oral mod clause, but only if there is reliance.

[Another]

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[Veritas4evr]

Yup, barbri taught that under the CL (unlike the UCC) a contract provision stating that all modifications must be in writing is stricken--where under the UCC it is enforced as long as good faith (or something like that).

[lawdawg09]

I said hybrid K with CL governing, vald k, brief SOF, PER but conditions precedent then impossibility then made an argument that the contractor assumed the risk but I also noted he did his best under the circumstances. He could delay past thxgiving and use the preferred product or finish by thanksgiving. Given the fact that the guy said 25k (even tho not enforceable) it was reasonable for him to push forward and commit minor breach then analogy to pipe case from K class.

[Tangerine Gleam]

Yup, barbri taught that under the CL (unlike the UCC) a contract provision stating that all modifications must be in writing is stricken--where under the UCC it is enforced as long as good faith (or something like that).

I thought the same thing! I said the clause was unenforceable because I thought that was what I remembered from BarBri. I'm at least glad to know I wasn't totally making it up.

[Regionality]

For the contracts essay, I thought I read somewhere that oral modifications in service Ks were okay even though the contract contained a clause that requires modifications to be in writing. Did anyone else come across this? I thought I saw it in the Barbri outlines, but I don't wanna go near those books anytime soon.

Generally, they will enforce oral modifications even if there is a no oral mod clause, but only if there is reliance.

I wrote that if there's a clause requiring modifications be in writing, it can be waived if the parties mutually waive the provision. It would be enforceable if one party tried to modify orally and the other person did not consent. Parties can always mutually modify a contract provision...so a subsequent mutual oral modification would be considered an implied mutual waiver of the requirement.

Parties can't bind themselves forever if they both agree to change something. Mutual modification is always allowed.

[Another]

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