InterAlia1961 wrote: fear_no_evil wrote:
Hmmmmm, what right is being deprived? A right to the licence or a right to earn a living? Are you being deprived of a right when you haven't been issued the licence yet? If you do have a right to the license, is an administrative delay (made is good faith) before issuance a deprivation of that right?
The State Bar must release the scores on time. In California, a plaintiff may bring an action to enforce a primary right. A plaintiff has the primary right to enjoy the benefit of a fully performed contract. Here, should the State Bar fail to release the scores on the stated date, they will deprive all test takers of the right to full performance of the agreement between them and the State Bar. Specifically, the failure of the State Bar to release the scores on the stated date will be a failure of a condition subsequent agreed upon by the parties when they entered into the specific agreement. The applicant agrees to show up and take the test, and abide by the final score. The State Bar agrees to admit qualified candidates to the testing centers provided payment has been made. At the time of payment, and the inception of the legally binding agreement, the release date is clearly stated. In order to fulfill their duty under the contract, the State Bar must release the scores on November 17th. Failing to do so will deprive thousands of their primary right as recognized by California's pleading code.
That's some lawyering, right there!
Ok, that’s cool. But a few questions for you (since I have nothing better to do with my time).
If you approach it as a breach of contract, wouldn’t a delay in releasing results be a minor breach, if it all, without an express clause stating that time is of the essence?
In addition, Wouldn’t the court look for “bad faith” on the part of the State bar? There is no bad faith here since any delay would be due to following orders from the Supreme Court to change the cut score right before scores are released.
Wouldn’t the Supreme Ct’s decision be considered an unforeseeable act? Wouldn’t that unforeseeable act cut off liability for such a minor breach?
Wouldn’t any duty to release scores not arise until scores have been tabulated? Even if the breaching party was responsible for meeting the condition precedent (tabulating the scores), remember, there is likely no bad faith here on the part of the state bar if results are delayed.
Would a delay in releasing results really deprive test takers of the benefit of their bargain? They would still receive the results, just not at the expected time. Especially If the delay is reasonable due to an unforeseeable act, outside the control of the breaching party, and the breach can be cured in a reasonable amount of time?
Are the damages foreseeable? Is it foreseeable that an employer would pull a job offer (if that's your loss) before results are released, due to a delay from the State Bar, outside of applicants control?
Just some thoughts. I must really be bored.