Themis Bar Review Hangout - July 2014 Exam Forum

[Tanicius]

The questions are not exactly the same. Question 1 is about whether there has been a breach giving rise to damages. Question 2 is asking whether a good-faith breaching party in a failed satisfaction contract can still recover something for the quasi benefit it has bestowed on the unsatisfied party. Two different concepts.

[mizunoami]

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.

The difference is what the bar examiners are asking for. In the first question, they're asking if they can recover for breach of contract (no, failure of express condition), and in the second they're asking if they can recover the reasonable value of the services and tell you to ignore the express condition. They add way too much information in to distract us from the right answer.

You've just got to remember to answer what they've asked for and not anything else.

[lawyerwannabe]

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.

I am gunning to know 3-4 of the MBE subjects inside out and as well as four of the main essay subjects. I will pretty much know nothing about the smaller subjects because, when I try to study them, I feel like it is a waste of time due to information overload. There is only so much we can take!

[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.

The difference is what the bar examiners are asking for. In the first question, they're asking if they can recover for breach of contract (no, failure of express condition), and in the second they're asking if they can recover the reasonable value of the services and tell you to ignore the express condition. They add way too much information in to distract us from the right answer.

You've just got to remember to answer what they've asked for and not anything else.

Ah okay. I was wondering about that when I was doing the question because I didn't see an answer related to quasi-K but I felt like they should recover something lo. Thanks!!

[Apple Tree]

The questions are not exactly the same. Question 1 is about whether there has been a breach giving rise to damages. Question 2 is asking whether a good-faith breaching party in a failed satisfaction contract can still recover something for the quasi benefit it has bestowed on the unsatisfied party. Two different concepts.

Yeah you are right. Thanks!!

[Tanicius]

What I've started doing to improve my score is attempting to predict, as I'm reading the question, what issue of law is being tested. I can usually narrow it down to 2-3 issues, sometimes 1-2 if it's a short question. With that in mind, I try to come up with the correct answer before looking at any choices. I then read the answer choices and dismiss any out of hand that do not involve the relevant rules, find the answer that matches, and make sure it's worded correct. If my predicted answer misstates the law or a fact in the hypo, or if my predicted answer is no where in the answer choices, then I review the question and the facts to see what issue I missed. This usually helps narrow it down a 50-50 shot, and I've gotten a lot of answers correct where I would have been confused by close-but-not-close-enough answer choices that are only there to distract you.

Once you know the law well enough, the main battle becomes one of confidence: You think you know the right answer, but you're not sure. Coming up with the correct answer in your head before you look at the answer choices will go a long way in not allowing the plausible but incorrect options distract you into thinking you're overlooking something.

[bport hopeful]

I wonder how standardized these practice sections are. My scores are indicating that they are fairly standardized. If thats the case, I wonder how that correlates to the actual test.

[whirledpeas86]

Just officially hit 75% complete. Does that mean I get to stop studying now?


*cries and does infinity practice essays in a fruitless effort to not completely bomb the essay section*

[Apple Tree]

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.

So I found something like this in the Themis outline that's related to restitution vs. expectation damages (Contract p.59): Restitution can result in a recovery for the nonbreaching party in a losing contract, even if recovery exceeds the contract price. However, the nonbreaching party cannot seek restitution if he has performed all of his contractual duties and the only performance left from the other side is the payment of a definite sum of money. The remedy is limited to expectation damages.

I didn't know if everyone already knew this, but I didn't so I thought I'd share.

[champ33]

A friend doing BarBri told me that they released a video the other day explaining what to do if you have absolutely no idea what the law is on an essay. Essentially, they tell you to make up the law, and then apply it to the facts, because points for analysis are granted separately from knowing the law. Can anyone confirm this? If true, this seems like it would apply when you kinda know the law but not entirely - put something close to the law down and then apply it.

[Tanicius]

A friend doing BarBri told me that they released a video the other day explaining what to do if you have absolutely no idea what the law is on an essay. Essentially, they tell you to make up the law, and then apply it to the facts, because points for analysis are granted separately from knowing the law. Can anyone confirm this? If true, this seems like it would apply when you kinda know the law but not entirely - put something close to the law down and then apply it.

This is consistent with everything I've heard. A friend of mine passed NY after not knowing any single rule about Commercial Paper and making up his entire answer. Reasonability! Fair notice! He gave value!

[champ33]

Two embarrassing questions:

Does equity matter (there was not lecture or short online provided)? And what larger topic is commercial paper included within? Thanks!

I found it useful to read the equity outline because it touches on some of the NY procedure stuff (TROs, preliminary injunctions, etc.) and some specific stuff for torts, contracts, and property. Then again, if you study those topics individually you will pick up most of it.

[Genuine4ps]

Anyone have any tips for improving on property? It's my worst section.

[jigglypuffdreams]

Anyone have any tips for improving on property? It's my worst section.

Try to memorize the parts in the long outline that you're having trouble with so that you can quickly spot which issues are or aren't there. The hardest thing for me was learning to spot what wasn't there that needed to be... if the facts don't mention something was recorded, assume it wasn't recorded. If the deed was never delivered, it wasn't delivered. Once I started seeing what wasn't there, my property scores went up a lot.

[iLoveFruits&Veggies]

A friend doing BarBri told me that they released a video the other day explaining what to do if you have absolutely no idea what the law is on an essay. Essentially, they tell you to make up the law, and then apply it to the facts, because points for analysis are granted separately from knowing the law. Can anyone confirm this? If true, this seems like it would apply when you kinda know the law but not entirely - put something close to the law down and then apply it.

This is consistent with everything I've heard. A friend of mine passed NY after not knowing any single rule about Commercial Paper and making up his entire answer. Reasonability! Fair notice! He gave value!

Haven't heard about that video, but my friend passed with Barbri and she told me the same thing. The only thing is I assume you'll have to at least know the issues in order to make up the laws, and it's issue spotting that I have the most difficulty with. The model answers always "see" more issues than I do. Not sure why I have so much trouble with that. SO frustrating. On a bright note, I'm trying out my new coffee tumbler today! lol!

[Tanicius]

A friend doing BarBri told me that they released a video the other day explaining what to do if you have absolutely no idea what the law is on an essay. Essentially, they tell you to make up the law, and then apply it to the facts, because points for analysis are granted separately from knowing the law. Can anyone confirm this? If true, this seems like it would apply when you kinda know the law but not entirely - put something close to the law down and then apply it.

This is consistent with everything I've heard. A friend of mine passed NY after not knowing any single rule about Commercial Paper and making up his entire answer. Reasonability! Fair notice! He gave value!

Haven't heard about that video, but my friend passed with Barbri and she told me the same thing. The only thing is I assume you'll have to at least know the issues in order to make up the laws, and it's issue spotting that I have the most difficulty with. The model answers always "see" more issues than I do. Not sure why I have so much trouble with that. SO frustrating. On a bright note, I'm trying out my new coffee tumbler today! lol!

The essays often ask very shitty questions, though, where it's legitimately unclear exactly what they're looking for -- or worse, clear they're asking for something specific that doesn't lend itself to many issues. The model answer will sometimes act like it was super obvious that a contract question about damages only hinges on three separate formation/acceptance issues, without addressing damages at all. I imagine most people answering the question talk about damages and get points for that.

[puttycake]

Haven't heard about that video, but my friend passed with Barbri and she told me the same thing. The only thing is I assume you'll have to at least know the issues in order to make up the laws, and it's issue spotting that I have the most difficulty with. The model answers always "see" more issues than I do. Not sure why I have so much trouble with that. SO frustrating. On a bright note, I'm trying out my new coffee tumbler today! lol!

For each essay subject, memorize a checklist of potential issues for the topic. You can even just dash that down on the answer before doing anything else, then go over the checklist to see if you missed anything.

For example, my checklist for wills looks like this:

Intestacy
Spousal community estate
Will execution
Formal wills
Writing
Witnesses
Interested Witnesses
Testamentary Intent
Substantial compliance
Capacity
Holographic wills
Codicils
Revocation
By physical act
By subsequent instrument
Revival/republication
DRR
Legacies
incorporation by reference
Act of independent legal significance
Lapse/anti-lapse
ademption
Securities
abatement order
omitted spouse
elective share
lifetime gifts to children
omitted child
will contests

I've memorized it as a list rather than as a set of items, so for each topic I know how many things are on the list and roughly where things fall on the list, then I can reconstruct the list pretty quickly.

The point is just to have something you can go back over to say, "Hey, does omitted spouse work in this scenario at all? Nah, there's no spouse involved. Moving on."

[hous]

Life estate in real property, subject to SoF?

[bport hopeful]

Life estate in real property, subject to SoF?

Transferring real property interests are subject to SOF

[Genuine4ps]

Anyone have any tips for improving on property? It's my worst section.

Try to memorize the parts in the long outline that you're having trouble with so that you can quickly spot which issues are or aren't there. The hardest thing for me was learning to spot what wasn't there that needed to be... if the facts don't mention something was recorded, assume it wasn't recorded. If the deed was never delivered, it wasn't delivered. Once I started seeing what wasn't there, my property scores went up a lot.

Thanks. I was dreading having to go through the long outline, but it looks like that's what has to happen.

[iLoveFruits&Veggies]

Haven't heard about that video, but my friend passed with Barbri and she told me the same thing. The only thing is I assume you'll have to at least know the issues in order to make up the laws, and it's issue spotting that I have the most difficulty with. The model answers always "see" more issues than I do. Not sure why I have so much trouble with that. SO frustrating. On a bright note, I'm trying out my new coffee tumbler today! lol!

For each essay subject, memorize a checklist of potential issues for the topic. You can even just dash that down on the answer before doing anything else, then go over the checklist to see if you missed anything.

I've memorized it as a list rather than as a set of items, so for each topic I know how many things are on the list and roughly where things fall on the list, then I can reconstruct the list pretty quickly.

The point is just to have something you can go back over to say, "Hey, does omitted spouse work in this scenario at all? Nah, there's no spouse involved. Moving on."

Thank you! That's a great list. WOW. I think I need to expand my issue lists (they only have about 6-10 items on them right now so maybe that's the problem), and then hope for clear questions that don't make us go off in the wrong direction as Tanicius mentioned.

[mizunoami]

Once you know the law well enough, the main battle becomes one of confidence: You think you know the right answer, but you're not sure. Coming up with the correct answer in your head before you look at the answer choices will go a long way in not allowing the plausible but incorrect options distract you into thinking you're overlooking something.

Exactly this. I also do this while reviewing every MBE question I've gotten wrong for each subject when I do my MBE subject reviews. I answer the question in my head before I clicked on the question to see which answers were even offered.

You guys will do great. I think it's probably pretty hard to fail if you are actually trying and studying. Remember, there's a kid out there that's studying maybe 2 hours a day.

[mmmnnn]

Just ran through all of Themis's Secured Transactions Essays. Less than half of the issues could be answered by the information contained in the lecture handout. Ugh. I really don't want to spend two days attempting to memorize the long outline....

[puttycake]

Thank you! That's a great list. WOW. I think I need to expand my issue lists (they only have about 6-10 items on them right now so maybe that's the problem), and then hope for clear questions that don't make us go off in the wrong direction as Tanicius mentioned.

My lists are taken directly from the essay workshop handouts (I think you are in CA) then anything added if I struggle to account for it.

As a suggestion for memorizing: Make a list for each topic. Number the list. Memorize them in order and know either what number each item is or at least have signposts like "Holographic wills is #10" or something like that. That way, there are clues along the way to issues you might be missing. So don't just say you have some things memorized for K and try to rattle them off. Say, "I have a 20 issue list for K and number 1 is..." (My list for K is actually only 15, by the way.) That way, if you can think of 1-9 and 12-20, you have a good chance of figuring out the missing parts because they will often be related, and even if you don't you're only missing a fraction of the potential issues.

[hous]

Life estate in real property, subject to SoF?

Transferring real property interests are subject to SOF

A lease isn't unless it is for longer than a year. A LE is an interest in real property but a lease isn't?