Themis Bar Review Hangout - July 2014 Exam Forum

[iLoveFruits&Veggies]

A agrees to paint B's house for $1000, payment due upon completion. The FMV of B's services is $3000. B completes 75% of the job and uses $600 of supplies and has $200 of supplies ready to be used to complete the job. A unequivocally breaches. What are B's damages?

Here's what's owed to A (the painter) and the homeowner's (B) potential damages:

$1,000 x 75% = $750 minus the $200 worth of supplies that he can use elsewhere = $550 to be paid to A. (I'm assuming that the cost of supplies was included in the original quote of 1K for completing the job - if not, add another $400 to the tab). So, B owes A $550 for work completed, and then A will have to pay whatever it costs B to get the job completed if it goes above what A had quoted him. So if it costs A more than $250 (25%) to complete the job, B is going to have to pay for it. At least that's my understanding.... (but as I always say, I'm definitely not the smartest one on here, so anyone feel free to dive in here and correct if I'm wrong ... or if there's some "unconscionable" answer that's supposed to be used here, since 1K is a heck of a lot lower than 3K - if so, would be useful to see the question in its entirety - i.e. it would be good to know if the agreement was in writing or not, etc.)

[whirledpeas86]

A agrees to paint B's house for $1000, payment due upon completion. The FMV of B's services is $3000. B completes 75% of the job and uses $600 of supplies and has $200 of supplies ready to be used to complete the job. A unequivocally breaches. What are B's damages?

I think you got A and B mixed up at some point there? Do you mean that B agreed to paint A's house and then A breaches?

[whirledpeas86]

A agrees to paint B's house for $1000, payment due upon completion. The FMV of B's services is $3000. B completes 75% of the job and uses $600 of supplies and has $200 of supplies ready to be used to complete the job. A unequivocally breaches. What are B's damages?

I think you got A and B mixed up at some point there? Do you mean that B agreed to paint A's house and then A breaches?

Anyway, if that's the case, my gut says B gets FMV, minus the $200 in supplies that can be reused, so $2800. But my gut is often pretty wrong when it comes to Ks, sooo...

[hous]

Sorry. It's late and I messed up my hypo. Here is what I meant to say:

A agrees to paint B's house for $1000, payment due upon completion. The FMV of A's services is $3000. A completes 75% of the job and uses $600 of supplies and has $200 of supplies ready to be used to complete the job. B unequivocally breaches. What are A's damages?

I'm asking whether A gets restitution damages or expectation since restitution would give him more $$$$ than he would have received had B not breached.

[Prime]

Constantly hitting between 65-70% on the mixed stuff. Just need to ratchet it up a few points. Still have some state specific garbage I need to get under my belt.

F-ing commercial paper.

[iLoveFruits&Veggies]

Sorry. It's late and I messed up my hypo. Here is what I meant to say:

A agrees to paint B's house for $1000, payment due upon completion. The FMV of A's services is $3000. A completes 75% of the job and uses $600 of supplies and has $200 of supplies ready to be used to complete the job. B unequivocally breaches. What are A's damages?

I'm asking whether A gets restitution damages or expectation since restitution would give him more $$$$ than he would have received had B not breached.

I don't see how the FMV comes in to play here... they agreed to $1,000. So he'd get $1,000 minus the $200 in supplies that he can use elsewhere. So $800 in restitution damages. (Yikes, I was wrong - see below!!)

[whirledpeas86]

Sorry. It's late and I messed up my hypo. Here is what I meant to say:

A agrees to paint B's house for $1000, payment due upon completion. The FMV of A's services is $3000. A completes 75% of the job and uses $600 of supplies and has $200 of supplies ready to be used to complete the job. B unequivocally breaches. What are A's damages?

I'm asking whether A gets restitution damages or expectation since restitution would give him more $$$$ than he would have received had B not breached.

I think he'd just get expectation damages. I don't see how the FMV comes in to play here... they agreed to $1,000. So he'd get $1,000 minus the $200 in supplies that he can use elsewhere. So $800 in expectation damages.

But the breaching party was unjustly enriched by the painters services. The value of the services that he was unjustly enriched by is the FMV, not the actual contact price. So I think the painter Could recover FMV (minus supplies).

[iLoveFruits&Veggies]

Sorry. It's late and I messed up my hypo. Here is what I meant to say:

A agrees to paint B's house for $1000, payment due upon completion. The FMV of A's services is $3000. A completes 75% of the job and uses $600 of supplies and has $200 of supplies ready to be used to complete the job. B unequivocally breaches. What are A's damages?

I'm asking whether A gets restitution damages or expectation since restitution would give him more $$$$ than he would have received had B not breached.

I think he'd just get expectation damages. I don't see how the FMV comes in to play here... they agreed to $1,000. So he'd get $1,000 minus the $200 in supplies that he can use elsewhere. So $800 in expectation damages.

But the breaching party was unjustly enriched by the painters services. The value of the services that he was unjustly enriched by is the FMV, not the actual contact price. So I think the painter Could recover FMV (minus supplies).

[dtl]

Sorry. It's late and I messed up my hypo. Here is what I meant to say:

A agrees to paint B's house for $1000, payment due upon completion. The FMV of A's services is $3000. A completes 75% of the job and uses $600 of supplies and has $200 of supplies ready to be used to complete the job. B unequivocally breaches. What are A's damages?

I'm asking whether A gets restitution damages or expectation since restitution would give him more $$$$ than he would have received had B not breached.

I think he'd just get expectation damages. I don't see how the FMV comes in to play here... they agreed to $1,000. So he'd get $1,000 minus the $200 in supplies that he can use elsewhere. So $800 in expectation damages.

But the breaching party was unjustly enriched by the painters services. The value of the services that he was unjustly enriched by is the FMV, not the actual contact price. So I think the painter Could recover FMV (minus supplies).

Edit: I was wrong!

[SisyphusHappy]

There was an MBE question about this on the practice test. If A is cutting a deal and B breaches, you base your calculations on the FMV, not the K.

Edit: Here it is.

Question Text: A paving company entered into a contract with a real estate developer to repave a large parking lot in the developer’s shopping center. Since the paving company wanted to establish a good reputation in the market, it discounted its price. The paving company expected to make $20,000 in profit on the contract. Midway through the project, the developer notified the paving company to cease work; the paving company immediately complied. At the time of the notice, the paving company had incurred costs of $200,000. The cost of hiring another contractor to perform the same work would have been $225,000. The paving work performed had increased the value of the shopping center by $100,000. The paving company filed a lawsuit against the developer. The fact finder determined that the developer’s repudiation of the contract was without justification. What is the maximum amount of damages the paving company can be awarded?
Answer Choices:
$100,000, the amount by which the value of the shopping center was increased.
$200,000, the costs incurred by the paving company.
$220,000, the developer’s expectancy damages.
$225,000, the amount that the developer would have had to pay for the portion of the paving job that was completed.
Learner Selected Answer: $220,000, the developer’s expectancy damages.
Correct:
Correct Answer: $225,000, the amount that the developer would have had to pay for the portion of the paving job that was completed.
Rationale: Answer choice D is correct. Although expectancy damages normally are awarded in a breach-of-contract action, restitutionary damages are permitted in cases where the nonbreaching party has partially performed a below-market-price contract. Otherwise, the breaching party would profit from its breach. Consequently, the paving company may recover the benefit conferred upon the developer as measured by the amount the developer would have had to pay to secure the same performance as that rendered by the paving company. Answer choice A is incorrect because, although the increase in the defendant’s property value due to the plaintiff’s performance is one measure of restitutionary damages, that amount is less than the paving company’s restitutionary damages as measured by the cost to the developer of obtaining the same performance rendered by the paving company. Answer choice B is incorrect because the paving company’s reliance damages are exceeded by both its expectancy and restitutionary damages. Answer choice C is incorrect because the paving company’s expectancy damages, based on the cost incurred by the company plus its profit on the contract, are less than the company’s restitutionary damages.

[iLoveFruits&Veggies]

There was an MBE question about this on the practice test. If A is cutting a deal and B breaches, you base your calculations on the FMV, not the K.

Edit: Here it is.

Question Text: A paving company entered into a contract with a real estate developer to repave a large parking lot in the developer’s shopping center. Since the paving company wanted to establish a good reputation in the market, it discounted its price. The paving company expected to make $20,000 in profit on the contract. Midway through the project, the developer notified the paving company to cease work; the paving company immediately complied. At the time of the notice, the paving company had incurred costs of $200,000. The cost of hiring another contractor to perform the same work would have been $225,000. The paving work performed had increased the value of the shopping center by $100,000. The paving company filed a lawsuit against the developer. The fact finder determined that the developer’s repudiation of the contract was without justification. What is the maximum amount of damages the paving company can be awarded?
Answer Choices:
$100,000, the amount by which the value of the shopping center was increased.
$200,000, the costs incurred by the paving company.
$220,000, the developer’s expectancy damages.
$225,000, the amount that the developer would have had to pay for the portion of the paving job that was completed.
Learner Selected Answer: $220,000, the developer’s expectancy damages.
Correct:
Correct Answer: $225,000, the amount that the developer would have had to pay for the portion of the paving job that was completed.
Rationale: Answer choice D is correct. Although expectancy damages normally are awarded in a breach-of-contract action, restitutionary damages are permitted in cases where the nonbreaching party has partially performed a below-market-price contract. Otherwise, the breaching party would profit from its breach. Consequently, the paving company may recover the benefit conferred upon the developer as measured by the amount the developer would have had to pay to secure the same performance as that rendered by the paving company. Answer choice A is incorrect because, although the increase in the defendant’s property value due to the plaintiff’s performance is one measure of restitutionary damages, that amount is less than the paving company’s restitutionary damages as measured by the cost to the developer of obtaining the same performance rendered by the paving company. Answer choice B is incorrect because the paving company’s reliance damages are exceeded by both its expectancy and restitutionary damages. Answer choice C is incorrect because the paving company’s expectancy damages, based on the cost incurred by the company plus its profit on the contract, are less than the company’s restitutionary damages.

Ooooh, I remember this question! Can't remember if I got it right or not, but I know I won't get it wrong on the real thing! Thanks for posting it! Well, there's ONE point we'll all get on the Bar!!! Hurray!!! I have a friend who failed by 2 points and was so frustrated that she gave up on being an attorney, so every point counts!!!

[kapital98]

on a completely random note:

1. I'm worried that I'll miss sipping on my hot coffee while taking the Bar and will get really tired.

and...

2. I'm worried that I won't be able to fall asleep the night before.

Ok, back to the books! lol

I have the same fears! I'm going to miss drinking my iced coffee while working. I'll have to drink my coffee before going to the exam.

With the sleep, I've got sleeping pills. I'm going to take like 6 the night before the exam and be out within 10 minutes. I did the same thing for the LSAT and 1L exams.

[Lasers]

How many of you have a bunch of stuff memorized???

Not me

I've accepted the fact I'll never memorize everything and that seems like the first step to feeling good.

i'd like to memorize something, though.

may not be in the cards for me.

i'm so lazy. i think this is a bad sign considering we have like 10 days left. i think it's also a sign i don't want to be a lawyer.

[bport hopeful]

Haha, got smoked on that PT I thought I did well on.. classic.

[Lilly76]

I'm at the point where I'm getting well over 70% on the mixed MBE questions, my graded essays are fine, I could probably 100% complete the course in the time we have left, but I've hit a complete wall motivation wise. A part of me kind of wants to say screw it, I'm sure I'll be fine....

How are you motivating yourself for the final push? And don't say sheer terror, haha.

Same exact situation. I've become really complacent now. If anything, that's served as my chief motivation. By now, I don't really care about stress, whatever its cause. If it's stress, it'll keep driving me, and that's all that matters.

I'm averaging in the mid to high 70s on the mixed sets and while I should be ecstatic about that, the perfectionist and the worry wart in me is keeping me motivated. On one hand I know that if I can just pick up 2-3 more points in every topic I could auto pass with the PT. On the other hand I have this irrational fear that my score will drop significantly on the real thing so I should keep going. I'm also a little worried about the essays, though, but that also may be the perfectionist in me who wants to write a perfect answer, even though its clear that a passing essay can be far from perfect. Clearly I'm motivated by (irrational) fear.

[bport hopeful]

^^ My fear. Cant stop. Gotta make sure its there on test day. Im also not in the high 70s though...

[Lasers]

holy fuck, high 70's?

i've went 100% essay the last few days and i'm afraid i'm neglecting MBE. my goal is to raise my scores from the mid 60's to the mid 70's.

[Lilly76]

holy fuck, high 70's?

i've went 100% essay the last few days and i'm afraid i'm neglecting MBE. my goal is to raise my scores from the mid 60's to the mid 70's.

To be fair, my scores in some topics, namely con law, evidence, torts and sometimes contracts (it's on the fence) are carrying me and are making up for mid 60s scores in the other topics. I'm really trying get each topic to at least 70%, save for Ks because Duffy said it's a waste of time to get caught up in Ks. I still feel like I guess a lot too.

[champ33]

I'm sure most people have already found this, but I just saw that the bar examiners release sample essay answers from prior years:

http://www.nybarexam.org/ExamQuestions/ ... stions.htm

The samples are said to be "above average" answers, and to me this makes average seem doable. The only thing I'm still really worried about is seeing an essay where I have absolutely no idea what the law is.

[Tanicius]

Is anyone here taking the MEE/UBE? I'm wondering if the 5,000 character limit on our Themis practice essays exists on the real thing, because I'm finding sample essays from years past that are much, much longer than we have ever been allowed to write on a Themis answer.

[bport hopeful]

Im finally taking the simulated MBE. So far, I think its pretty fair and has done a nice job of covering a lot of different areas.

By that, I mean I dont feel like Im doing so hot.

[Apple Tree]

Hmmm so I'm doing a MBE question I did before and got right before but I got it wrong this time and it's bugging the crap out of me... Could someone please help me on it?

Contract # 2684 ( I cut out the part I didn't think was relevant because the q is long):

On March 1, a computer programs company (CP) orally agreed with a holiday department store (HDS) to write a set of programs for the HDS's computer and to coordinate the programs with the HDS's billing methods. A subsequent memo, signed by both parties, provided in its entirety: The HDS will pay the CP $20,000 in two equal installments within one month of completion if the CP is successful in shortening by one-half the processing time for the financial transactions now handled on the HDS's Zenon 747 computer; the CP to complete by July 1.... the parties orally agreed that the HDS should deposit $20,000 in escrow, pending completion to the satisfaction of the HDS's computer systems manager. The escrow deposit was thereupon made. On July 5, the CP completed the programs.... Tests by the CP and the HDS's computer systems manager then showed that the computer programs, not being perfectly coordinated with the HDS's billing methods, cut processing time by only 47 percent. They would, however, save the HDS $12,000 a year... The HDS's computer systems manager refused in good faith to certify satisfactory completion. The HDS requested the escrow agent to return the $20,000 and asserted that nothing was owed to the CP even though the HDS continued to use the programs. Assume that the CP's delay in completion did not give the HDS the right to renounce the contract and that the parties' escrow agreement was enforceable. Is the CP entitled to recover damages for breach of the contract?


A. Yes, because the CP had substantially performed.
B. Yes, because the program would save the HDS $12,000.
C. No, because shortening the processing time by one-half was an express condition subsequent.
D. No, because the HDS's computer systems manager did not certify satisfactory completion of the program.

The correct choice is D. I understand that it's because this is an express condition that has to be satisfied. But the problem says HDS is still using the programs CP made (unless I'm mistaken), so shouldn't CP at least recover something under quasi-K? Or is it because the question asked "entitled to recover for breach of the contract" the quasi-K is not considered?

[mizunoami]

holy fuck, high 70's?

i've went 100% essay the last few days and i'm afraid i'm neglecting MBE. my goal is to raise my scores from the mid 60's to the mid 70's.

To be fair, my scores in some topics, namely con law, evidence, torts and sometimes contracts (it's on the fence) are carrying me and are making up for mid 60s scores in the other topics. I'm really trying get each topic to at least 70%, save for Ks because Duffy said it's a waste of time to get caught up in Ks. I still feel like I guess a lot too.

I don't know if Duffy is right. It bugged me when he said that.... so I studied nothing but Contracts/Sales for a single day, and my scores on the mixed practice sets w/r/t Contracts went up 20%. So, I think you could make up points there if you really wanted. Easier than making points in property.

[jigglypuffdreams]

Hmmm so I'm doing a MBE question I did before and got right before but I got it wrong this time and it's bugging the crap out of me... Could someone please help me on it?

Contract # 2684 ( I cut out the part I didn't think was relevant because the q is long):

On March 1, a computer programs company (CP) orally agreed with a holiday department store (HDS) to write a set of programs for the HDS's computer and to coordinate the programs with the HDS's billing methods. A subsequent memo, signed by both parties, provided in its entirety: The HDS will pay the CP $20,000 in two equal installments within one month of completion if the CP is successful in shortening by one-half the processing time for the financial transactions now handled on the HDS's Zenon 747 computer; the CP to complete by July 1.... the parties orally agreed that the HDS should deposit $20,000 in escrow, pending completion to the satisfaction of the HDS's computer systems manager. The escrow deposit was thereupon made. On July 5, the CP completed the programs.... Tests by the CP and the HDS's computer systems manager then showed that the computer programs, not being perfectly coordinated with the HDS's billing methods, cut processing time by only 47 percent. They would, however, save the HDS $12,000 a year... The HDS's computer systems manager refused in good faith to certify satisfactory completion. The HDS requested the escrow agent to return the $20,000 and asserted that nothing was owed to the CP even though the HDS continued to use the programs. Assume that the CP's delay in completion did not give the HDS the right to renounce the contract and that the parties' escrow agreement was enforceable. Is the CP entitled to recover damages for breach of the contract?


A. Yes, because the CP had substantially performed.
B. Yes, because the program would save the HDS $12,000.
C. No, because shortening the processing time by one-half was an express condition subsequent.
D. No, because the HDS's computer systems manager did not certify satisfactory completion of the program.

The correct choice is D. I understand that it's because this is an express condition that has to be satisfied. But the problem says HDS is still using the programs CP made (unless I'm mistaken), so shouldn't CP at least recover something under quasi-K? Or is it because the question asked "entitled to recover for breach of the contract" the quasi-K is not considered?

I guess the logic is that they didn't do a good enough job and they didn't meet the express condition and they really thought it was it didn't meet the express condition and that it was poor quality software "in good faith." I'll show you the nearly identical question where it comes out differently to see if that helps:

A software company orally agreed with a corporation to write a set of accounting programs that would be compatible with the corporation's current billing methods. A subsequent memo, signed by both parties, provided in its entirety: "The corporation will pay the software company $20,000 in two equal installments within one month of completion if the programs are successful in shortening by one-half the current processing time for the corporation's financial transactions; software company to complete by December 1." The next month, the software company demanded $10,000, saying the job was one-half done. After the corporation refused to pay, the parties orally agreed that the corporation should deposit $20,000 in escrow, pending completion to the satisfaction of the corporation's COO. The escrow deposit was thereupon made. On December 5, the software company completed the programs, having used an amount of time in which it could have earned $18,000 had it devoted that time to other jobs. Tests by the software company and the corporation's COO then showed that the computer programs, not being perfectly coordinated with the corporation's billing methods, cut processing time by only 47 percent. They would, however, save the corporation $12,000 a year. Further, if the corporation would spend $5,000 to change its invoice preparation methods, as recommended by the software company, the programs would cut processing time by a total of 58 percent, saving the corporation another $8,000 a year. The corporation's COO refused in good faith to certify satisfactory completion. The corporation requested the escrow agent to return the $20,000 and asserted that nothing was owed to the software company even though the corporation continued to use the programs. Assume that the software company was in breach of contract because of its four-day delay in completion and that an express condition precedent to the corporation's duty to pay the contract price has failed. Can the software company nevertheless recover the reasonable value of its service?

Yes, because continued use of the programs by the corporation would save at least $12,000 a year.
Yes, because the corporation was continuing to use programs created by the software company for which, as the corporation knew, the software company expected to be paid.
No, because failure of an express condition precedent excused the corporation from any duty to compensate the software company.
No, because such a recovery by the software company would be inconsistent with a claim by the corporation against the software company for breach of contract.

Answer choice B is correct. A partially performed party can generally recover for work performed, even in the event of that party's breach. Here, the corporation is unjustly enriched if the software company is unable recover the value of its services.

[Apple Tree]

Hmmm so I'm doing a MBE question I did before and got right before but I got it wrong this time and it's bugging the crap out of me... Could someone please help me on it?

Contract # 2684 ( I cut out the part I didn't think was relevant because the q is long):

On March 1, a computer programs company (CP) orally agreed with a holiday department store (HDS) to write a set of programs for the HDS's computer and to coordinate the programs with the HDS's billing methods. A subsequent memo, signed by both parties, provided in its entirety: The HDS will pay the CP $20,000 in two equal installments within one month of completion if the CP is successful in shortening by one-half the processing time for the financial transactions now handled on the HDS's Zenon 747 computer; the CP to complete by July 1.... the parties orally agreed that the HDS should deposit $20,000 in escrow, pending completion to the satisfaction of the HDS's computer systems manager. The escrow deposit was thereupon made. On July 5, the CP completed the programs.... Tests by the CP and the HDS's computer systems manager then showed that the computer programs, not being perfectly coordinated with the HDS's billing methods, cut processing time by only 47 percent. They would, however, save the HDS $12,000 a year... The HDS's computer systems manager refused in good faith to certify satisfactory completion. The HDS requested the escrow agent to return the $20,000 and asserted that nothing was owed to the CP even though the HDS continued to use the programs. Assume that the CP's delay in completion did not give the HDS the right to renounce the contract and that the parties' escrow agreement was enforceable. Is the CP entitled to recover damages for breach of the contract?


A. Yes, because the CP had substantially performed.
B. Yes, because the program would save the HDS $12,000.
C. No, because shortening the processing time by one-half was an express condition subsequent.
D. No, because the HDS's computer systems manager did not certify satisfactory completion of the program.

The correct choice is D. I understand that it's because this is an express condition that has to be satisfied. But the problem says HDS is still using the programs CP made (unless I'm mistaken), so shouldn't CP at least recover something under quasi-K? Or is it because the question asked "entitled to recover for breach of the contract" the quasi-K is not considered?

I guess the logic is that they didn't do a good enough job and they didn't meet the express condition and they really thought it was it didn't meet the express condition and that it was poor quality software "in good faith." I'll show you the nearly identical question where it comes out differently to see if that helps:

A software company orally agreed with a corporation to write a set of accounting programs that would be compatible with the corporation's current billing methods. A subsequent memo, signed by both parties, provided in its entirety: "The corporation will pay the software company $20,000 in two equal installments within one month of completion if the programs are successful in shortening by one-half the current processing time for the corporation's financial transactions; software company to complete by December 1." The next month, the software company demanded $10,000, saying the job was one-half done. After the corporation refused to pay, the parties orally agreed that the corporation should deposit $20,000 in escrow, pending completion to the satisfaction of the corporation's COO. The escrow deposit was thereupon made. On December 5, the software company completed the programs, having used an amount of time in which it could have earned $18,000 had it devoted that time to other jobs. Tests by the software company and the corporation's COO then showed that the computer programs, not being perfectly coordinated with the corporation's billing methods, cut processing time by only 47 percent. They would, however, save the corporation $12,000 a year. Further, if the corporation would spend $5,000 to change its invoice preparation methods, as recommended by the software company, the programs would cut processing time by a total of 58 percent, saving the corporation another $8,000 a year. The corporation's COO refused in good faith to certify satisfactory completion. The corporation requested the escrow agent to return the $20,000 and asserted that nothing was owed to the software company even though the corporation continued to use the programs. Assume that the software company was in breach of contract because of its four-day delay in completion and that an express condition precedent to the corporation's duty to pay the contract price has failed. Can the software company nevertheless recover the reasonable value of its service?

Yes, because continued use of the programs by the corporation would save at least $12,000 a year.
Yes, because the corporation was continuing to use programs created by the software company for which, as the corporation knew, the software company expected to be paid.
No, because failure of an express condition precedent excused the corporation from any duty to compensate the software company.
No, because such a recovery by the software company would be inconsistent with a claim by the corporation against the software company for breach of contract.

Answer choice B is correct. A partially performed party can generally recover for work performed, even in the event of that party's breach. Here, the corporation is unjustly enriched if the software company is unable recover the value of its services.

Okay I am more confused because these two questions are EXACTLY the same. I guess the only difference is there is no answer like B in the question I saw. I'm just gonna think that Themis made up the answers on the question I saw because the answers don't make sense.