logical seasoning wrote:FLASH MBE QUESTION!
If I fail the bar exam by one point, could I succeed in an action against Barbri for having their website down for at least 4 hours, thereby forcing me to be behind in their program? What would be my cause of action?
a. Detrimental reliance
b. quasi contract
c. estoppel
d. nothing would work
Hmmm. I like a breach of implied warranty action. This contract falls under the UCC because it is a contract for the sale of goods--a bar prep course. Of course, there is a solid argument that it is a contract for services, and therefore not governed by the UCC, and we'll discuss that in a moment.
Under the UCC, where the seller is a merchant who deals in goods of the kind, there is an implied warranty of merchantability, meaning that the goods are fit for the ordinary purpose for which they are intended. It also includes a warranty that they are properly packaged, and if fungible, are of fair average quality within the description. In addition, an implied warranty can arise from industry standards as well as prior course of dealings. Here, if you have previously used the course and there was no down-time preventing access to online materials, then you can argue that the previous course of dealing set the warranty expectation for this particular deal.
Of course, you could go with breach of an implied warranty that the product was fit for a particular purpose. Under the UCC, where a buyer relies on the recommendation of a seller, merchant or not, when purchasing the goods, and the seller knows or reasonably should know that the buyer is relying on the seller's assurance that the product will work for the buyer's particular purpose, an implied warranty is created and the seller can be liable for damages arising from the failure of the goods to meet expectations. Here, if the bar prep company knew you were relying on it's product in order to get online at the exact time that the website was unavailable, and they sold it to you anyway, you could recover.
However, Barbri would likely argue that this is not a contract for goods at all, but a contract for services. In determining whether a contract that involves both the transfer of goods and the providing of services is within the UCC, a court will look to see what the main purpose of the contract was and the nature of the bulk of the performance owed. Barbri will argue that even if there are some books involved, it is nonethless a service provider, not a seller of goods. If a court found that the contract was one for services, then, unlike a contract under the UCC which requires perfect tender, all that Barbri must show is substantial performance. Once that has happened, you might be able to recover compensatory damages for the time the site was down, but probably not reliance damages. Generally, reliance damages are awarded where the compensatory damages are too speculative or uncertain.
(Guess what I was studying today?)
