February 2015 Bar Exam Forum

[Holly Golightly]

Yeah, if you want a ton of actual real MBE Qs, barmax seems to be the way to go. I think you can also get one test at a time on the NCBE site for like $50 each.

I also keep an excel spreadsheet with separate tabs for each subject where I type up each rule I don't know when going over MBE Qs. Helps me remember things better and gives me a great resource to quickly review things I've gotten wrong. Highly recommend.

[ilovetypos]

Yeah, if you want a ton of actual real MBE Qs, barmax seems to be the way to go. I think you can also get one test at a time on the NCBE site for like $50 each.

I also keep an excel spreadsheet with separate tabs for each subject where I type up each rule I don't know when going over MBE Qs. Helps me remember things better and gives me a great resource to quickly review things I've gotten wrong. Highly recommend.

I've started doing this -- thanks for the tip! And I got a 130 on the BarBri mid-term, but just yesterday pulled a 33% on an MBE set, so I wouldn't count the low scores as necessarily indicative.

[redblueyellow]

I also keep an excel spreadsheet with separate tabs for each subject where I type up each rule I don't know when going over MBE Qs. Helps me remember things better and gives me a great resource to quickly review things I've gotten wrong. Highly recommend.

What do we need to bribe you with to get this excel document?

[Holly Golightly]

I also keep an excel spreadsheet with separate tabs for each subject where I type up each rule I don't know when going over MBE Qs. Helps me remember things better and gives me a great resource to quickly review things I've gotten wrong. Highly recommend.

What do we need to bribe you with to get this excel document?

haha I would be happy to share

[redblueyellow]

I also keep an excel spreadsheet with separate tabs for each subject where I type up each rule I don't know when going over MBE Qs. Helps me remember things better and gives me a great resource to quickly review things I've gotten wrong. Highly recommend.

What do we need to bribe you with to get this excel document?

haha I would be happy to share

Nice! How should we do this? Dropbox? Email via PM? Google Docs?

[brohaters1]

http://www.ncbex.org/assets/media_files ... stions.pdf

Anyone want to help me out with a explanation for #18 (they give answers, but not explanations)?

I think it all turns on whether Art 2 or the CL applies (bc under Art 2 you can freely modify in good faith). For some reason I thought the Art 2 requirement that it be for a "sale of goods" was narrow and would not apply when services are involved (such as here, where there is a construction of a building). Am I completely wrong on that?

Thanks for any help.

[wool]

Ermm.. I'm not using flash cards. I've never found them helpful. Instead, I read the subject outlines (generally once) and spend almost all my time doing practice questions and going over correct/sample answers.

Are you a wizard? How are you remembering everything you read in one pass of the outline? I know you're doing practice problems/answers, but that will give you answers in random chunks and not as one flowing outline (my flash cards for instance, were published to be essentially an abbreviated outline as long as I follow them numerically). I can see that MBE questions would help you learn distinctions, but I don't know how people rely on that to learn the law.
.

It doesn't matter whether you're a wizard or not haha. It just depends on the way you learn. I'm with the guy who doesn't use flash cards. I never used them during law school or really ever before and when I took the bar last summer I think I might have wasted a ton of time making flash cards that I didn't even really end up going over that much just because it seemed like everyone else was making flash cards and omg omg omg panic summer. So stupid.

[fslexcduck]

http://www.ncbex.org/assets/media_files ... stions.pdf

Anyone want to help me out with a explanation for #18 (they give answers, but not explanations)?

I think it all turns on whether Art 2 or the CL applies (bc under Art 2 you can freely modify in good faith). For some reason I thought the Art 2 requirement that it be for a "sale of goods" was narrow and would not apply when services are involved (such as here, where there is a construction of a building). Am I completely wrong on that?

Thanks for any help.

I don't think it turns on CL or UCC, I think the contract is still governed under CL because of predominant purpose rule, and the thing about the line-item is there to throw you off.

There's an exception to pre-existing duty rule of "no modification without consideration" which is that when circumstances arise that were unanticipated by both parties and they agree to a modification, then the modification is binding. I'm pretty sure it's just an exception. I don't see where I have this written down as a rule, but I remember it from another practice question where the answer was the same, and with a similar set of facts. Something happens during construction contract that makes a certain type of goods much more expensive to get, so both parties agree to use a different type of goods.

In a way, it makes sense. The pre-existing duty rule basically exists so that one party can't make it seem like they're not gonna pay the full amount or complete the work, so then a "modification" happens where the price is reduced for no good reason. In the case of unanticipated circumstances, it's almost like there is consideration for the modification - the consideration being the desire to keep a good working relationship with someone throughout the contract who asks for you to help them out when something comes up that wasn't expected by either of you so there's good reason to modify the contract. It's almost like it is similar to a good faith standard but just not articulated that way under the common law.

At least that's the way I understand it based on nothing in particular other than my own thoughts. Please someone correct me if they know better.

[brohaters1]

http://www.ncbex.org/assets/media_files ... stions.pdf

Anyone want to help me out with a explanation for #18 (they give answers, but not explanations)?

I think it all turns on whether Art 2 or the CL applies (bc under Art 2 you can freely modify in good faith). For some reason I thought the Art 2 requirement that it be for a "sale of goods" was narrow and would not apply when services are involved (such as here, where there is a construction of a building). Am I completely wrong on that?

Thanks for any help.

I don't think it turns on CL or UCC, I think the contract is still governed under CL because of predominant purpose rule, and the thing about the line-item is there to throw you off.

There's an exception to pre-existing duty rule of "no modification without consideration" which is that when circumstances arise that were unanticipated by both parties and they agree to a modification, then the modification is binding. I'm pretty sure it's just an exception. I don't see where I have this written down as a rule, but I remember it from another practice question where the answer was the same, and with a similar set of facts. Something happens during construction contract that makes a certain type of goods much more expensive to get, so both parties agree to use a different type of goods.

In a way, it makes sense. The pre-existing duty rule basically exists so that one party can't make it seem like they're not gonna pay the full amount or complete the work, so then a "modification" happens where the price is reduced for no good reason. In the case of unanticipated circumstances, it's almost like there is consideration for the modification - the consideration being the desire to keep a good working relationship with someone throughout the contract who asks for you to help them out when something comes up that wasn't expected by either of you so there's good reason to modify the contract. It's almost like it is similar to a good faith standard but just not articulated that way under the common law.

At least that's the way I understand it based on nothing in particular other than my own thoughts. Please someone correct me if they know better.

You may be right, but that explanation conflicts with a principle that is in my outline that later, unanticipated events are generally no excuses to nonperformance. Indeed, under the CL, to be an "excuse" it must affect the ABILITY to perform (not just increase the cost). Under Art 2, you just do the risk of loss analysis.

However, I am also conflicted about Art 2 because, even it applied, I think the modified K would be required to be in the SOF.

So I am still very confused by this particular problem. You may be right that they are testing some small exception, but it does not appear to bold with the general principles I have learned.

[underthirty]

.

[ilovetypos]

http://www.ncbex.org/assets/media_files ... stions.pdf

Anyone want to help me out with a explanation for #18 (they give answers, but not explanations)?

I think it all turns on whether Art 2 or the CL applies (bc under Art 2 you can freely modify in good faith). For some reason I thought the Art 2 requirement that it be for a "sale of goods" was narrow and would not apply when services are involved (such as here, where there is a construction of a building). Am I completely wrong on that?

Thanks for any help.

Your question is a good one... I would definitely have picked B. That's how BarBri taught it anyway. Which makes me think they'd probably end up giving this point to everyone (basically tossing the question) because everyone would pick B.

[sportwarrior]

http://www.ncbex.org/assets/media_files ... stions.pdf

Anyone want to help me out with a explanation for #18 (they give answers, but not explanations)?

I think it all turns on whether Art 2 or the CL applies (bc under Art 2 you can freely modify in good faith). For some reason I thought the Art 2 requirement that it be for a "sale of goods" was narrow and would not apply when services are involved (such as here, where there is a construction of a building). Am I completely wrong on that?

Thanks for any help.

Your question is a good one... I would definitely have picked B. That's how BarBri taught it anyway. Which makes me think they'd probably end up giving this point to everyone (basically tossing the question) because everyone would pick B.

When I did this problem set I was down to B or D. I went with D, but only because my gut was telling me it was a quasi-contract issue. Even now I can't go back and definitively explain what makes that true, but quasi-k is sort of based in an equitable "what's fair" zone of remedies. It just seemed that, with all things considered in this problem, the court would grant recovery based on quasi-k.

I wish I could get credit typing essay responses like the above, by the way. My memorization of law is putrid. I understand and grasp this stuff, but when it comes to actual blind recall, I'm like a deer in the headlights roughly 73% of the time.

[ilovetypos]

http://www.ncbex.org/assets/media_files ... stions.pdf

Anyone want to help me out with a explanation for #18 (they give answers, but not explanations)?

I think it all turns on whether Art 2 or the CL applies (bc under Art 2 you can freely modify in good faith). For some reason I thought the Art 2 requirement that it be for a "sale of goods" was narrow and would not apply when services are involved (such as here, where there is a construction of a building). Am I completely wrong on that?

Thanks for any help.

Your question is a good one... I would definitely have picked B. That's how BarBri taught it anyway. Which makes me think they'd probably end up giving this point to everyone (basically tossing the question) because everyone would pick B.

When I did this problem set I was down to B or D. I went with D, but only because my gut was telling me it was a quasi-contract issue. Even now I can't go back and definitively explain what makes that true, but quasi-k is sort of based in an equitable "what's fair" zone of remedies. It just seemed that, with all things considered in this problem, the court would grant recovery based on quasi-k.

I wish I could get credit typing essay responses like the above, by the way. My memorization of law is putrid. I understand and grasp this stuff, but when it comes to actual blind recall, I'm like a deer in the headlights roughly 73% of the time.

That's a good point, but even that answer choice doesn't indicate quasi-K. It says the "modification" was fair and equitable, which suggests the remedy would be available on the actual contract rather than quasi-K. Who knows. That's a super annoying question.

I know what you mean.... rote memorization is not my strong suit.

[fslexcduck]

I don't think it turns on CL or UCC, I think the contract is still governed under CL because of predominant purpose rule, and the thing about the line-item is there to throw you off.

There's an exception to pre-existing duty rule of "no modification without consideration" which is that when circumstances arise that were unanticipated by both parties and they agree to a modification, then the modification is binding. I'm pretty sure it's just an exception. I don't see where I have this written down as a rule, but I remember it from another practice question where the answer was the same, and with a similar set of facts. Something happens during construction contract that makes a certain type of goods much more expensive to get, so both parties agree to use a different type of goods.

In a way, it makes sense. The pre-existing duty rule basically exists so that one party can't make it seem like they're not gonna pay the full amount or complete the work, so then a "modification" happens where the price is reduced for no good reason. In the case of unanticipated circumstances, it's almost like there is consideration for the modification - the consideration being the desire to keep a good working relationship with someone throughout the contract who asks for you to help them out when something comes up that wasn't expected by either of you so there's good reason to modify the contract. It's almost like it is similar to a good faith standard but just not articulated that way under the common law.

At least that's the way I understand it based on nothing in particular other than my own thoughts. Please someone correct me if they know better.

You may be right, but that explanation conflicts with a principle that is in my outline that later, unanticipated events are generally no excuses to nonperformance. Indeed, under the CL, to be an "excuse" it must affect the ABILITY to perform (not just increase the cost). Under Art 2, you just do the risk of loss analysis.

However, I am also conflicted about Art 2 because, even it applied, I think the modified K would be required to be in the SOF.

So I am still very confused by this particular problem. You may be right that they are testing some small exception, but it does not appear to bold with the general principles I have learned.

I don't think the two principles do conflict. I think the principle you say is that unanticipated events don't excuse performance. Basically, the other party doesn't have to agree to modify based on unanticipated events, and if they don't agree, the other party can't breach.

The exception here is that if the party does agree to modify, it can be binding, despite the pre-existing duty rule. My assertion is that there's some sort of consideration type thing that's being read into the situation based on good faith and positive continued working relationships rather than being an asshole. You can call it future bargaining power if you want.

[fslexcduck]

I wish I could get credit typing essay responses like the above, by the way. My memorization of law is putrid. I understand and grasp this stuff, but when it comes to actual blind recall, I'm like a deer in the headlights roughly 73% of the time.

I'm with you there. I'm getting insanely high MBEs bc when I don't know the exact rule, I just think of common sense and what the law should be. And even when I know the rule, it's not like I'm going to know the wording of all of the elemtns. But the damn Themis graders are punishing me with like 40/100. I'm at my most annoyed when every single comment on every single essay says "you could have gotten more points by articulating the rule." No shit, sherlock. I'm not morally opposed to writing down the elements, I just don't fucking know them. UGHHHHHH.

[ilovetypos]

I don't think it turns on CL or UCC, I think the contract is still governed under CL because of predominant purpose rule, and the thing about the line-item is there to throw you off.

There's an exception to pre-existing duty rule of "no modification without consideration" which is that when circumstances arise that were unanticipated by both parties and they agree to a modification, then the modification is binding. I'm pretty sure it's just an exception. I don't see where I have this written down as a rule, but I remember it from another practice question where the answer was the same, and with a similar set of facts. Something happens during construction contract that makes a certain type of goods much more expensive to get, so both parties agree to use a different type of goods.

In a way, it makes sense. The pre-existing duty rule basically exists so that one party can't make it seem like they're not gonna pay the full amount or complete the work, so then a "modification" happens where the price is reduced for no good reason. In the case of unanticipated circumstances, it's almost like there is consideration for the modification - the consideration being the desire to keep a good working relationship with someone throughout the contract who asks for you to help them out when something comes up that wasn't expected by either of you so there's good reason to modify the contract. It's almost like it is similar to a good faith standard but just not articulated that way under the common law.

At least that's the way I understand it based on nothing in particular other than my own thoughts. Please someone correct me if they know better.

You may be right, but that explanation conflicts with a principle that is in my outline that later, unanticipated events are generally no excuses to nonperformance. Indeed, under the CL, to be an "excuse" it must affect the ABILITY to perform (not just increase the cost). Under Art 2, you just do the risk of loss analysis.

However, I am also conflicted about Art 2 because, even it applied, I think the modified K would be required to be in the SOF.

So I am still very confused by this particular problem. You may be right that they are testing some small exception, but it does not appear to bold with the general principles I have learned.

I don't think the two principles do conflict. I think the principle you say is that unanticipated events don't excuse performance. Basically, the other party doesn't have to agree to modify based on unanticipated events, and if they don't agree, the other party can't breach.

The exception here is that if the party does agree to modify, it can be binding, despite the pre-existing duty rule. My assertion is that there's some sort of consideration type thing that's being read into the situation based on good faith and positive continued working relationships rather than being an asshole. You can call it future bargaining power if you want.

The CMR DOES say that "unforeseen circumstances" sufficient to discharge a party is an exception to the preexisting duty rule, but I think the question is still unfair because it is a total judgment call. I wouldn't think an increase of steel prices by 20% (from $6mm to $8mm) would be rising to the level of impracticability. But it's a judgment call!

[fslexcduck]

The CMR DOES say that "unforeseen circumstances" sufficient to discharge a party is an exception to the preexisting duty rule, but I think the question is still unfair because it is a total judgment call. I wouldn't think an increase of steel prices by 20% (from $6mm to $8mm) would be rising to the level of impracticability. But it's a judgment call!

This isn't that exception they are talking about. A 20% increase in price would definitely not qualify as sufficient to discharge a party's obligations based on impracticability.

But the two situations are totally different. A court discharging an obligation after breach due to change in circumstances is totally different than a court affirming a discharge of an obligation by the party to the contract based on a change in circumstances. So it's only common sense that the standards to of which circumstances qualify would be much different.

I wish I could find a specific rule that would address the issue better - I agree that it's not very clear either way. But I think the important thing to remember for the bar is just that when parties agree based on changed circumstances, it's a low bar of what needs to have changed to overcome the pre-existing duty rule. When a party refuses to change its position and the other party breaches based on changed circumstances, a court's usually going to uphold the contract unless something crazy happened.

[redblueyellow]

The CMR DOES say that "unforeseen circumstances" sufficient to discharge a party is an exception to the preexisting duty rule, but I think the question is still unfair because it is a total judgment call. I wouldn't think an increase of steel prices by 20% (from $6mm to $8mm) would be rising to the level of impracticability. But it's a judgment call!

This isn't that exception they are talking about. A 20% increase in price would definitely not qualify as sufficient to discharge a party's obligations based on impracticability.

But the two situations are totally different. A court discharging an obligation after breach due to change in circumstances is totally different than a court affirming a discharge of an obligation by the party to the contract based on a change in circumstances. So it's only common sense that the standards to of which circumstances qualify would be much different.

I wish I could find a specific rule that would address the issue better - I agree that it's not very clear either way. But I think the important thing to remember for the bar is just that when parties agree based on changed circumstances, it's a low bar of what needs to have changed to overcome the pre-existing duty rule. When a party refuses to change its position and the other party breaches based on changed circumstances, a court's usually going to uphold the contract unless something crazy happened.

This can easily work in an essay where you can conclude one way or another and explain your reasoning, but how would one approach this in an MBE question? How do we know if the bar wants a low standard or a high standard for the question where only one answer is the "right" answer?

[ilovetypos]

The CMR DOES say that "unforeseen circumstances" sufficient to discharge a party is an exception to the preexisting duty rule, but I think the question is still unfair because it is a total judgment call. I wouldn't think an increase of steel prices by 20% (from $6mm to $8mm) would be rising to the level of impracticability. But it's a judgment call!

This isn't that exception they are talking about. A 20% increase in price would definitely not qualify as sufficient to discharge a party's obligations based on impracticability.

But the two situations are totally different. A court discharging an obligation after breach due to change in circumstances is totally different than a court affirming a discharge of an obligation by the party to the contract based on a change in circumstances. So it's only common sense that the standards to of which circumstances qualify would be much different.

I wish I could find a specific rule that would address the issue better - I agree that it's not very clear either way. But I think the important thing to remember for the bar is just that when parties agree based on changed circumstances, it's a low bar of what needs to have changed to overcome the pre-existing duty rule. When a party refuses to change its position and the other party breaches based on changed circumstances, a court's usually going to uphold the contract unless something crazy happened.

Your last paragraph might be correct, but I don't think your assessment of the situations being different is correct. The change in circumstances "affirmed" by the court is what results in the lack of breach. I think your suggestion is a good one though -- to focus on whether the parties agreed beforehand.

[sportwarrior]

http://www.ncbex.org/assets/media_files ... stions.pdf

Anyone want to help me out with a explanation for #18 (they give answers, but not explanations)?

I think it all turns on whether Art 2 or the CL applies (bc under Art 2 you can freely modify in good faith). For some reason I thought the Art 2 requirement that it be for a "sale of goods" was narrow and would not apply when services are involved (such as here, where there is a construction of a building). Am I completely wrong on that?

Thanks for any help.

Your question is a good one... I would definitely have picked B. That's how BarBri taught it anyway. Which makes me think they'd probably end up giving this point to everyone (basically tossing the question) because everyone would pick B.

When I did this problem set I was down to B or D. I went with D, but only because my gut was telling me it was a quasi-contract issue. Even now I can't go back and definitively explain what makes that true, but quasi-k is sort of based in an equitable "what's fair" zone of remedies. It just seemed that, with all things considered in this problem, the court would grant recovery based on quasi-k.

I wish I could get credit typing essay responses like the above, by the way. My memorization of law is putrid. I understand and grasp this stuff, but when it comes to actual blind recall, I'm like a deer in the headlights roughly 73% of the time.

That's a good point, but even that answer choice doesn't indicate quasi-K. It says the "modification" was fair and equitable, which suggests the remedy would be available on the actual contract rather than quasi-K. Who knows. That's a super annoying question.

I know what you mean.... rote memorization is not my strong suit.

Um... yeah, you could be right, but don't get too caught up in distinctions between modifications and general contracts. Modifications are essentially additional contracts with many of the same rules applied to them. Quasi-K (at least as I understand it) could be applied to this particular modification because, even though one was never actually formed for lack of consideration, fairness necessitates that a contract/modification be recognized and proper restitution awarded accordingly.

The only other line of reasoning (quick and dirty) is Modification requires consideration -> performance of existing legal/contractual obligations is not adequate consideration UNLESS an unforeseen occurrence discharges a duty => discharge of duties re: impracticability, the occurrence of an unforeseen incident (nonoccurrence of which was a basic presumption) makes a duty unreasonably difficult to perform.

THAT line of reasoning, for me, doesn't work because performance wasn't unreasonably difficult. The overall contract was for $100m, so a 20% cost hike in materials for an additional $1m I don't think would be enough to to constitute an unreasonable difficulty. It was only 1% of the original K price and fluctuations like that happen all the time.

As someone already mentioned, though, this probably is a question they threw out because it just isn't good enough.

[redblueyellow]

The only other line of reasoning (quick and dirty) is Modification requires consideration -> performance of existing legal/contractual obligations is not adequate consideration UNLESS an unforeseen occurrence discharges a duty => discharge of duties re: impracticability, the occurrence of an unforeseen incident (nonoccurrence of which was a basic presumption) makes a duty unreasonably difficult to perform.

THAT line of reasoning, for me, doesn't work because performance wasn't unreasonably difficult. The overall contract was for $100m, so a 20% cost hike in materials for an additional $1m I don't think would be enough to to constitute an unreasonable difficulty. It was only 1% of the original K price and fluctuations like that happen all the time.

As someone already mentioned, though, this probably is a question they threw out because it just isn't good enough.

My understanding is that the unforeseen circumstance must be "burdensome" so that the exception is that new consideration is not necessary where there is a "burdensome unforeseen circumstance," with no explanation of what constitutes "burdensome."

[sportwarrior]

The only other line of reasoning (quick and dirty) is Modification requires consideration -> performance of existing legal/contractual obligations is not adequate consideration UNLESS an unforeseen occurrence discharges a duty => discharge of duties re: impracticability, the occurrence of an unforeseen incident (nonoccurrence of which was a basic presumption) makes a duty unreasonably difficult to perform.

THAT line of reasoning, for me, doesn't work because performance wasn't unreasonably difficult. The overall contract was for $100m, so a 20% cost hike in materials for an additional $1m I don't think would be enough to to constitute an unreasonable difficulty. It was only 1% of the original K price and fluctuations like that happen all the time.

As someone already mentioned, though, this probably is a question they threw out because it just isn't good enough.

My understanding is that the unforeseen circumstance must be "burdensome" so that the exception is that new consideration is not necessary where there is a "burdensome unforeseen circumstance," with no explanation of what constitutes "burdensome."

Interesting. I just went back to my Barbri book, and it indeed says "unforeseen circumstances sufficient to discharge a duty." Just gonna have to chalk this one up to WTF and move on I guess.

[fslexcduck]

I feel like no one is understanding the distinction I'm making and so maybe I'm not making sense. Sorry.

It's like the difference between "void" and "voidable" - extremely burdensome unforeseen circumstances rising to the level of impracticability only will make a contract duty void, whereas less serious but still burdensome unforeseen circumstances will make the duty voidable by the party receiving the benefit.

Like I said, I don't know where to find the specific rule, but for me, that's good enough for the MBE.

[numbertwo88]

How many simulated MBE exams have you all done?

I ask because I can't decide if time would be well spent taking another one or just sticking to 50 (or 100) question sets.

I'm literally having the hardest time trying to allocate my time for this last week - so much yet so little time.

[ilovetypos]

How many simulated MBE exams have you all done?

I ask because I can't decide if time would be well spent taking another one or just sticking to 50 (or 100) question sets.

I'm literally having the hardest time trying to allocate my time for this last week - so much yet so little time.

I did BarBri's midterm and I *might* do the simulated final tomorrow. I think it's more than fine to stick to 50 or 100 question sets if you're able to finish them in time. I think the full simulated tests are more tests of endurance.