Themis Bar Review Hangout - July 2014 Exam Forum

[dtl]

...

Does that help?

It does. Very much appreciated!

I got that the idea was each type of harm was bring-able separately, but not really how it applied. The examples helped a lot.

[numbertwo88]

In flex study mode, if you opt to do (1) of the (2) essays when the essay practice bullet point in question is for 2 essays, is there a way to get the 1 you didn't opt to do the first time?

I'm going to be annoyed if I cannot get the 1 I didn't do without contacting Themis.

[Tanicius]

In flex study mode, if you opt to do (1) of the (2) essays when the essay practice bullet point in question is for 2 essays, is there a way to get the 1 you didn't opt to do the first time?

I'm going to be annoyed if I cannot get the 1 I didn't do without contacting Themis.

You should be able, in any case, to review the essay prompts and model answers after the fact, even if you didn't submit anything for the second essay.

[blue920]

Alright, now that we're getting down to the wire here, a practical question about test day(s).

What are you planning to do for lunch? I'm at Empire State Plaza in Albany and while there are lots of restaurants, they're half a mile away and I'm not familiar with the area. I'd like to bring lunch, but the bar committee has been sending out these ominous warnings about how long the line for the personal belongings room will be (which I assume is where we have to store lunch, right?). I'm thinking I'll bring lunch and keep it in a cooler in my car - hopefully it won't get too hot.

I've been reading bar exam day advice and seperac had a good suggestion for lunch - go back to your car, get your notes, and study the subjects you think will be coming up in the afternoon. Since NY basically guarantees wills, torts, family law, and contracts (and to a lesser extent corporations, real property, and civ pro), I'm going to do some skimming on whatever hasn't come up in the morning session.

[kapital98]

Alright, now that we're getting down to the wire here, a practical question about test day(s).

What are you planning to do for lunch? I'm at Empire State Plaza in Albany and while there are lots of restaurants, they're half a mile away and I'm not familiar with the area. I'd like to bring lunch, but the bar committee has been sending out these ominous warnings about how long the line for the personal belongings room will be (which I assume is where we have to store lunch, right?). I'm thinking I'll bring lunch and keep it in a cooler in my car - hopefully it won't get too hot.

I've been reading bar exam day advice and seperac had a good suggestion for lunch - go back to your car, get your notes, and study the subjects you think will be coming up in the afternoon. Since NY basically guarantees wills, torts, family law, and contracts (and to a lesser extent corporations, real property, and civ pro), I'm going to do some skimming on whatever hasn't come up in the morning session.

Thanks for advice on brushing up on topics to be tested. I'll have to read that Seperac article.

I'm going to have a sub saved in my hotel room. It's not far from the testing center (Buffalo) and I'd like to get away from the rest of the students during the break. This should give me about an hour to eat lunch, relax, and skim my notes.

[Bobo1]

Alright, now that we're getting down to the wire here, a practical question about test day(s).

What are you planning to do for lunch? I'm at Empire State Plaza in Albany and while there are lots of restaurants, they're half a mile away and I'm not familiar with the area. I'd like to bring lunch, but the bar committee has been sending out these ominous warnings about how long the line for the personal belongings room will be (which I assume is where we have to store lunch, right?). I'm thinking I'll bring lunch and keep it in a cooler in my car - hopefully it won't get too hot.

I've been reading bar exam day advice and seperac had a good suggestion for lunch - go back to your car, get your notes, and study the subjects you think will be coming up in the afternoon. Since NY basically guarantees wills, torts, family law, and contracts (and to a lesser extent corporations, real property, and civ pro), I'm going to do some skimming on whatever hasn't come up in the morning session.

I took the NY bar in 2009 - passed. My location was at a funky hotel in Albany. I brought a cooler in my car with some sandwiches and a bottle of water. I sat and listened to calm music in the car while I ate my lunch. It worked very well. I'm taking in Florida this time and plan on doing something similar, haven't worked out the logistics yet. But the key is to avoid any unnecessary stress so that you only have to deal with the necessary stress (the actual exam).

[nog]

In flex study mode, if you opt to do (1) of the (2) essays when the essay practice bullet point in question is for 2 essays, is there a way to get the 1 you didn't opt to do the first time?

I'm going to be annoyed if I cannot get the 1 I didn't do without contacting Themis.

This happened to me so I e-mailed Themis and was told:

"If you use the number selector to limit the questions to less than the maximum amount, you are telling the system that is how many questions you want to do before the task is locked. So, when you chose 1 question and completed it, the system locked the remaining question."

The technical support person unlocked it for me within 24 hours of my e-mail but warned me it was "a one time exception." Slightly annoying!

[numbertwo88]

In flex study mode, if you opt to do (1) of the (2) essays when the essay practice bullet point in question is for 2 essays, is there a way to get the 1 you didn't opt to do the first time?

I'm going to be annoyed if I cannot get the 1 I didn't do without contacting Themis.

This happened to me so I e-mailed Themis and was told:

"If you use the number selector to limit the questions to less than the maximum amount, you are telling the system that is how many questions you want to do before the task is locked. So, when you chose 1 question and completed it, the system locked the remaining question."

The technical support person unlocked it for me within 24 hours of my e-mail but warned me it was "a one time exception." Slightly annoying!

That literally pisses me off; I was telling the system I want to do one problem now, and one problem later.

Ugh.

[simonesa]

In flex study mode, if you opt to do (1) of the (2) essays when the essay practice bullet point in question is for 2 essays, is there a way to get the 1 you didn't opt to do the first time?

I'm going to be annoyed if I cannot get the 1 I didn't do without contacting Themis.

This happened to me so I e-mailed Themis and was told:

"If you use the number selector to limit the questions to less than the maximum amount, you are telling the system that is how many questions you want to do before the task is locked. So, when you chose 1 question and completed it, the system locked the remaining question."

The technical support person unlocked it for me within 24 hours of my e-mail but warned me it was "a one time exception." Slightly annoying!

That literally pisses me off; I was telling the system I want to do one problem now, and one problem later.

Ugh.

If you don't change the number you can access them later on, even if you sign out, close the window/tab, etc. Never reduce the number. Just go back later.

[TooManyLoans]

Can anybody explain to me why there are any damages awarded in the following question. I thought, for there to be a breach there had to be a time is of the essence clause.

A seller contracted in a signed writing to sell Whiteacre, a 250-acre tract of farmland, to a buyer. The contract provided for exchange of the deed and a purchase price of $500,000 in cash on October 15. Possession was to be given to the buyer on the same date. On October 15, the seller notified the buyer that because the tenant on Whiteacre wrongfully refused to quit the premises until October 30, the seller would be unable to deliver possession of Whiteacre until then, but he assured the buyer that he would tender the deed and possession on that date. Throughout the month of October, the market value of Whiteacre was $510,000, and its fair monthly rental value was $5,000. On October 30, the buyer accepted a conveyance and possession of Whiteacre and paid the $500,000 purchase price, but notified the seller that he was reserving any rights he might have to damages caused by the seller's breach. The buyer intended to use the land for raising cattle and had entered into a contract for the purchase of 500 head of cattle to be delivered to Whiteacre on October 15. Because he did not have possession of Whiteacre on that date, he had to rent another pasture at a cost of $2,000 to graze the cattle for 15 days. The seller had no reason to know that the buyer intended to use Whiteacre for raising cattle or that he was purchasing cattle to be grazed on Whiteacre. In an action by the buyer against the seller for damages, the buyer is entitled to recover


Answer: $2500, the fair rental value of Whiteacre.

[northwood]

Can anybody explain to me why there are any damages awarded in the following question. I thought, for there to be a breach there had to be a time is of the essence clause.

A seller contracted in a signed writing to sell Whiteacre, a 250-acre tract of farmland, to a buyer. The contract provided for exchange of the deed and a purchase price of $500,000 in cash on October 15. Possession was to be given to the buyer on the same date. On October 15, the seller notified the buyer that because the tenant on Whiteacre wrongfully refused to quit the premises until October 30, the seller would be unable to deliver possession of Whiteacre until then, but he assured the buyer that he would tender the deed and possession on that date. Throughout the month of October, the market value of Whiteacre was $510,000, and its fair monthly rental value was $5,000. On October 30, the buyer accepted a conveyance and possession of Whiteacre and paid the $500,000 purchase price, but notified the seller that he was reserving any rights he might have to damages caused by the seller's breach. The buyer intended to use the land for raising cattle and had entered into a contract for the purchase of 500 head of cattle to be delivered to Whiteacre on October 15. Because he did not have possession of Whiteacre on that date, he had to rent another pasture at a cost of $2,000 to graze the cattle for 15 days. The seller had no reason to know that the buyer intended to use Whiteacre for raising cattle or that he was purchasing cattle to be grazed on Whiteacre. In an action by the buyer against the seller for damages, the buyer is entitled to recover


Answer: $2500, the fair rental value of Whiteacre.

there is a breach because the tenant has not left Whiteare and the buyer is collecting rent for the entire month of October. Normally you are correct this is not a breach because time is not of the essence. however, because the buyer could not deliver a the agreed upon closing time, and he was being compensated ( he got paid rent for the entire month) to prevent unjust compensation, the buyer gets to split the monthly rental amount ( nice for them to make it easily divisible in half). Thus the seller may be entitled to $2,500. The fact that he had to rent land to store the cattle is not important in this question because the seller was unaware of his intended use, and his prior use of the land did nto give constructive notice, but if the fact pattern and question were slightly diferent then it may be relevant


that is my thought process however- it may be incorrect

[numbertwo88]

In flex study mode, if you opt to do (1) of the (2) essays when the essay practice bullet point in question is for 2 essays, is there a way to get the 1 you didn't opt to do the first time?

I'm going to be annoyed if I cannot get the 1 I didn't do without contacting Themis.

This happened to me so I e-mailed Themis and was told:

"If you use the number selector to limit the questions to less than the maximum amount, you are telling the system that is how many questions you want to do before the task is locked. So, when you chose 1 question and completed it, the system locked the remaining question."

The technical support person unlocked it for me within 24 hours of my e-mail but warned me it was "a one time exception." Slightly annoying!

That literally pisses me off; I was telling the system I want to do one problem now, and one problem later.

Ugh.

If you don't change the number you can access them later on, even if you sign out, close the window/tab, etc. Never reduce the number. Just go back later.

That's definitely what I'll be doing from now on -- I had no idea they locked it

[lilyorchid]

Have any of you bought SmartBarPrep to complement Themis for NY bar essays, and if so, what do you think of it? Thanks in advance for any thoughts. (I'm actually a BARBRI person, but I figured there may be people in here as worried about essays as I am...)

[iLoveFruits&Veggies]

Have any of you bought SmartBarPrep to complement Themis for NY bar essays, and if so, what do you think of it? Thanks in advance for any thoughts. (I'm actually a BARBRI person, but I figured there may be people in here as worried about essays as I am...)

That's funny.... I'm REALLY worried about the essays so I bought Barbri's CA Essay Practice Workbook lol I guess we're always wondering if there's a better/easier approach out there somewhere!

[Gotti]

In flex study mode, if you opt to do (1) of the (2) essays when the essay practice bullet point in question is for 2 essays, is there a way to get the 1 you didn't opt to do the first time?

I'm going to be annoyed if I cannot get the 1 I didn't do without contacting Themis.

This happened to me so I e-mailed Themis and was told:

"If you use the number selector to limit the questions to less than the maximum amount, you are telling the system that is how many questions you want to do before the task is locked. So, when you chose 1 question and completed it, the system locked the remaining question."

The technical support person unlocked it for me within 24 hours of my e-mail but warned me it was "a one time exception." Slightly annoying!

That literally pisses me off; I was telling the system I want to do one problem now, and one problem later.

Ugh.

I did this exact thing and emailed them last night, except i wasted 20/25 state MCQs because I wanted to see the difficulty of the questions. so annoyed.

[Gotti]

Can someone help me with this question:

In a written contract, a designer agreed to deliver to a buyer 25 described fur coats at $1,000 each F.O.B. the designer's place of business. The contract provided that "neither party will assign this contract without the written consent of the other." The designer placed the coats onboard a carrier on January 30 and properly notified the buyer of the shipment. On February 1 the designer said in a signed writing, "I hereby assign to [a friend] all my rights under the [designer-buyer] contract." The designer did not request and did not get the buyer's consent to this transaction. On February 2 the coats, while in transit, were destroyed in a derailment of the carrier's railroad car. In an action by the friend against the buyer, the friend probably will recover

A. $25,000, the contract price.
B. the difference between the contract price and the market value of the coats.
C. nothing, because the coats had not been delivered.
D. nothing, because the designer-buyer contract forbade an assignment.

The answer is A because the friend "steps into the shoes" of the assignor and therefore is entitled to the K price.

My issue is this: since there is an express no-assignment clause, the designer breached the K when he assigned, even though assignment was effective. Under the UCC and in the context of a shipment K, the risk of loss is normally on the buyer during transit, BUT if the goods are destroyed during transit, the risk of loss is actually on the party that breached the K, regardless of whether the breach is related to the goods. So shouldn't the risk of loss be on the seller in this case?

I'm not sure how the rule works in terms of timing though--does the fact that designer shipped on 1/30 and then breached on 2/1 keep the risk of loss on the buyer because it had already shifted to the buyer?

[blue920]

So I'm looking over the exam instructions...I love how I can bring highlighters to NJ but not NY.

[northwood]

Can someone help me with this question:

In a written contract, a designer agreed to deliver to a buyer 25 described fur coats at $1,000 each F.O.B. the designer's place of business. The contract provided that "neither party will assign this contract without the written consent of the other." The designer placed the coats onboard a carrier on January 30 and properly notified the buyer of the shipment. On February 1 the designer said in a signed writing, "I hereby assign to [a friend] all my rights under the [designer-buyer] contract." The designer did not request and did not get the buyer's consent to this transaction. On February 2 the coats, while in transit, were destroyed in a derailment of the carrier's railroad car. In an action by the friend against the buyer, the friend probably will recover

A. $25,000, the contract price.
B. the difference between the contract price and the market value of the coats.
C. nothing, because the coats had not been delivered.
D. nothing, because the designer-buyer contract forbade an assignment.

The answer is A because the friend "steps into the shoes" of the assignor and therefore is entitled to the K price.

My issue is this: since there is an express no-assignment clause, the designer breached the K when he assigned, even though assignment was effective. Under the UCC and in the context of a shipment K, the risk of loss is normally on the buyer during transit, BUT if the goods are destroyed during transit, the risk of loss is actually on the party that breached the K, regardless of whether the breach is related to the goods. So shouldn't the risk of loss be on the seller in this case?

I'm not sure how the rule works in terms of timing though--does the fact that designer shipped on 1/30 and then breached on 2/1 keep the risk of loss on the buyer because it had already shifted to the buyer?

I think you are correct because the Risk of Loss shifted the moment the carrier's doors were closed and the delivery left the station. so even if the buyer did not breach the K, and the K went about as planned, the buyer would be the one bearing the loss. Besides the action is between the friend and the buyer- to receive the benefit of the shipment. So by not having the goods, the buyer breached this contract with the friend and is liable to the friend for $25,000- the value of the original assignment

[kapital98]

So I'm looking over the exam instructions...I love how I can bring highlighters to NJ but not NY.

[yips]

Can someone help me with this question:

In a written contract, a designer agreed to deliver to a buyer 25 described fur coats at $1,000 each F.O.B. the designer's place of business. The contract provided that "neither party will assign this contract without the written consent of the other." The designer placed the coats onboard a carrier on January 30 and properly notified the buyer of the shipment. On February 1 the designer said in a signed writing, "I hereby assign to [a friend] all my rights under the [designer-buyer] contract." The designer did not request and did not get the buyer's consent to this transaction. On February 2 the coats, while in transit, were destroyed in a derailment of the carrier's railroad car. In an action by the friend against the buyer, the friend probably will recover

A. $25,000, the contract price.
B. the difference between the contract price and the market value of the coats.
C. nothing, because the coats had not been delivered.
D. nothing, because the designer-buyer contract forbade an assignment.

The answer is A because the friend "steps into the shoes" of the assignor and therefore is entitled to the K price.

My issue is this: since there is an express no-assignment clause, the designer breached the K when he assigned, even though assignment was effective. Under the UCC and in the context of a shipment K, the risk of loss is normally on the buyer during transit, BUT if the goods are destroyed during transit, the risk of loss is actually on the party that breached the K, regardless of whether the breach is related to the goods. So shouldn't the risk of loss be on the seller in this case?

I'm not sure how the rule works in terms of timing though--does the fact that designer shipped on 1/30 and then breached on 2/1 keep the risk of loss on the buyer because it had already shifted to the buyer?

Related question: what, in practical terms, is the difference between a contract provision prohibiting assignments and a contract provision invalidating assignments? Or I guess my real question is, why on earth is there such a thing as a provision that "prohibits" assignments if the assignee can still enforce the assignment anyway?

[SilverE2]

Can someone help me with this question:

In a written contract, a designer agreed to deliver to a buyer 25 described fur coats at $1,000 each F.O.B. the designer's place of business. The contract provided that "neither party will assign this contract without the written consent of the other." The designer placed the coats onboard a carrier on January 30 and properly notified the buyer of the shipment. On February 1 the designer said in a signed writing, "I hereby assign to [a friend] all my rights under the [designer-buyer] contract." The designer did not request and did not get the buyer's consent to this transaction. On February 2 the coats, while in transit, were destroyed in a derailment of the carrier's railroad car. In an action by the friend against the buyer, the friend probably will recover

A. $25,000, the contract price.
B. the difference between the contract price and the market value of the coats.
C. nothing, because the coats had not been delivered.
D. nothing, because the designer-buyer contract forbade an assignment.

The answer is A because the friend "steps into the shoes" of the assignor and therefore is entitled to the K price.

My issue is this: since there is an express no-assignment clause, the designer breached the K when he assigned, even though assignment was effective. Under the UCC and in the context of a shipment K, the risk of loss is normally on the buyer during transit, BUT if the goods are destroyed during transit, the risk of loss is actually on the party that breached the K, regardless of whether the breach is related to the goods. So shouldn't the risk of loss be on the seller in this case?

I'm not sure how the rule works in terms of timing though--does the fact that designer shipped on 1/30 and then breached on 2/1 keep the risk of loss on the buyer because it had already shifted to the buyer?

Related question: what, in practical terms, is the difference between a contract provision prohibiting assignments and a contract provision invalidating assignments? Or I guess my real question is, why on earth is there such a thing as a provision that "prohibits" assignments if the assignee can still enforce the assignment anyway?

If the contract prohibits assignments, "rights under this contract are not assignable," contract can still be assigned but other party can sue for damages. If contract states that "all contract assignments are void," the contract cannot be assigned.

As to why? I don't know why, does any of this really make much sense?

[bport hopeful]

NY takers, when Corporation B buys Corporation A and essentially is just renaming the corporation, what is required for Corporation B to assume Corporation A's tortious debts?

Corporation A sold a 10,000-pound sawmill to a company located in Jeffersonville, New York. One of the Jeffersonville company's employees, Plaintiff, caught his right hand and fingers in the machine, causing partial amputation of several fingers. Thereafter, Corporation A sold most of its assets, including real property, goodwill, trade names, and inventory, to Corporation B. The purchase contract documents expressly stated that Corporation B assumed none of Corporation A's liabilities except for the receipt of and payment for ordered, but undelivered, inventory. Corporation B paid Corporation A's outstanding corporate debts in the months after the closing. In addition, Corporation B manufactured the same type of sawmills at the same plant where Corporation A had formerly produced them and retained at least some of Corporation A's former employees. Its advertising described Corporation B as "formerly Corporation A." Thereafter, Plaintiff commenced an action for damages, naming Corporation B as a defendant in the action alleging strict products liability. Corporation B moved to have the action dismissed on the grounds that it was not liable for Corporation A's torts.
How should the court rule?

[Tanicius]

These open-ended "What are the rights of the parties?" questions can seriously go to hell. I just did an essay where it was impossible to figure out whether the issues were contract or real property. I know those areas of law well enough to pass them on the MBE, but I really didn't spot any issues throughout the entire fact pattern.

[blue920]

NY takers, when Corporation B buys Corporation A and essentially is just renaming the corporation, what is required for Corporation B to assume Corporation A's tortious debts?

Corporation A sold a 10,000-pound sawmill to a company located in Jeffersonville, New York. One of the Jeffersonville company's employees, Plaintiff, caught his right hand and fingers in the machine, causing partial amputation of several fingers. Thereafter, Corporation A sold most of its assets, including real property, goodwill, trade names, and inventory, to Corporation B. The purchase contract documents expressly stated that Corporation B assumed none of Corporation A's liabilities except for the receipt of and payment for ordered, but undelivered, inventory. Corporation B paid Corporation A's outstanding corporate debts in the months after the closing. In addition, Corporation B manufactured the same type of sawmills at the same plant where Corporation A had formerly produced them and retained at least some of Corporation A's former employees. Its advertising described Corporation B as "formerly Corporation A." Thereafter, Plaintiff commenced an action for damages, naming Corporation B as a defendant in the action alleging strict products liability. Corporation B moved to have the action dismissed on the grounds that it was not liable for Corporation A's torts.
How should the court rule?

From the outline:

Generally, a corporation that acquires the assets of another is not liable for the torts of the predecessor corporation. Exceptions arise, however, when (i) a successor corporation expressly or impliedly assumes its predecessor's tort liability, (ii) there is a consolidation or merger, or (iii) the purchasing corporation is a mere continuation of the selling corporation.

[bport hopeful]

What constitutes a "mere continuation"? I figured doing the same thing, advertising yourself as the old corporation, assuming all other responsibilities, using the same machinery and employees would constitute such a continuation.