8/8/2019 Exam Writing Formula and Issue Checklist

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CONTRACTS EXAM WRITING FORMULA

Step 1: State the issue.

Step 2: Identify the rule, but don't waste time stating the rule.

Step 3: Summarize the elements of the rule that are easily satisfied by the facts.

(WARNING: avoid conclusory statements provide analysis even for the obvious answers)

Step 4: State the sticking point on which this issue turns - i.e., the ambiguity in the facts that makes it a

difficult question.

Step 5: Apply one or more of the four types of Analysis to the problem.

(1) Reasoning by analogy (cases weve read)(2)Balancing of factors test

(a) Consider all of the facts and circumstances(b) No one factor determines the outcome(c) Equity. This is the moralistic argument that we want to cure harms to an injured party and

deter bad behavior.

(3) Judicial tests (IF-THEN tests)(4) Public policy argument

(a) Sometimes, you will be presented with a set of facts that on the surface are identical orsimilar to case law. However, if you applied the rule in these circumstances, the result

would somehow be unjust. If that is the case, then look to the policy of the rule. Why is the

rule in existence? Have judges used this rule for equity's sake, economic efficiency or

because it lends certainty to the process.

(b) Policy arguments are particularly useful in balancingtests.(c) Common public policies:

i. Equity: this is the moralistic argument that we want to cure harms to an injuredparty and deter bad behavior

ii. Economic Efficiency: this policy suggests that all rules be based on a cost-benefitanalysis. Society has to have some losses in order to make gains. (e.g., efficient

breach: breaching a K because it would be more economically efficient to pay

damages than to carry out the K)

iii. Predictability:Is the rule fashioned in such a way that lends certainty to the judicialprocess. Everyone knows that there is a bright line rule. Cross over it and youve

violated the rule. This sort of rule also lends administrative efficiency (fewer

litigations).

Step 6: Contrast conflicting authority.

Step 7: What are the defenses?

Step 8: Make a conclusion.

Step 9: Go to the next issue.

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COMMON LAW Ks - ISSUE CHECKLIST

IS K FOR SALE OF GOODS? If yes see UCC outline

TYPE OF CONTRACT?

(a) Express? (oral or written)(b) Implied by conduct?(c) Quasi-K? (remember, not really a K)

IS THERE AN ENFORCEABLE CONTRACT?

(a) MUTUAL ASSENT? (objective under the circumstances)i. Offer?

y Manifestation of intent?y Reasonably certain terms?y Manner of acceptance specified? (bilateral vs. unilateral)y Did offer create an option K?

ii. Acceptance? (power of acceptance; mirror image; communication)y Did offeree have the P/A?y Acceptance before termination by revocation, rejection, counter-offer,

expiration, death/incapacity?y Did offeree return a mirror image of the offer?y Communicated to offeror?y Does mailbox rule apply?

(b) CONSIDERATION?i. Bargained-for exchange?ii. Benefit/detriment?iii. Gratuitous promise?iv. Nominal/sham consideration?v. Past performance?vi. Pre-existing legal duty?

y Exception: duty is doubtful or subject of honest dispute - R2 73vii.K modification?

y Exception: unforeseen difficulties - R2 89viii.Illusory promise?ix. Discretionary/Satisfaction clause? (implied obligation of good faith)x. Conditional promise?xi. Implied obligation?

(c) DEFENSES TO FORMATION OF A CONTRACT?i. Absence of mutual assent?ii. Absence of consideration?iii. Did one party act in bad faith?iv. Lack of capacity?

y Party under 18?y Intoxicated party?y Duress/coercion?

(d) DEFENSES TO ENFORCEMENT OF A CONTRACT?i. Statute of fraudsii. Unconscionability? (tested at the time the K was made)

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PAROL EVIDENCE ISSUE?

(a) Is a party attempting to admit extrinsic evidence?(b) Is it the parties final written agreement? (four corners/contextual)

UNCLEAR TERMS?

(a) Indefiniteness? (no K if incurable uncertainty about material aspect)(b) Vague, ambiguous, or omitted terms? (four corners/contextual)

i. If yes Does parol evidence rule bar admission?(c) If admissible court will interpret, imply, or construe terms

i. Source of meaning (UCC 2-208/R2 203)1. Express terms2. Course of performance3. Course of dealing4. Usage of trade

CONDITION?

(a) WAS THERE A CONDITION TO A PARTYS PERFORMANCE?i. Express (construed strictly)ii. Implied (inferred from evidence of parties intention)iii. Constructive (read into the K by the court w/o regard to parties intention)

(b) WAS THE CONDITION EXCUSED?i. Waived?ii. Breach of duty/party caused nonoccurence of condition?

WAS THERE A BREACH?

(a) Material breach? (see R2 241)(b) Substantial performance?(c) Divisible K?(d) Anticipatory repudiation?

IF NO K CAN PARTY RECOVER UNDER ONE OF THE FOLLOWING THEORIES?

(a) Promissory estoppel? (promise induced reliance action/forbearance)i. Option K?ii. Non-commercial or commercial promise?

(b) Promise for past benefits?i. Moral obligation doctrineii. Material benefit rule (rarely applied)

(c) Unjust enrichment?REMEDIES AVAILABLE

(a) Money Damagesi. Expectation Damages: benefit of the bargainii. Reliance Damages: reimburse for loss caused by reliance on the K

y Where expectation is not recoverable (e.g., promissory estoppel)y Losing K?

iii. Restitution: restore to the injured party benefit he/she conferred on breaching partyy Unjust enrichment

(b) Limitations on recovery?i. Reasonable certaintyii. Foreseeability?iii. Avoidability?

(c) Specific Performance? (inadequacy of money damages & discretionary considerations)