THEMIS JULY 2018 - DISCUSSION Forum

[Lili8]

Can one use slashes, dashes, parentheses in MEE/MPT?

no punctuation of any kind allowed, just pure stream of consciousness baby

LOL that's too funny.



Funnily, my laptop's apostrophe key stopped working right at the beginning of the written day, and so I had to start writing in the passive style ("the plaintiff's liability" becomes "the liability of the plaintiff"), and I also had to write a message to the bar examiners along the lines of [My apologies, but my apostrophe key has stopped working. Please excuse any punctuation errors]. It seemed to work out...

This is honestly my worst fear. Going to bring an external keyboard just in case.

Check your jurisdiction to make sure that's ok. I know at least one prohibits external keyboard (found this out after my space bar stopped working).

[smile0751]

Check your jurisdiction to make sure that's ok. I know at least one prohibits external keyboard (found this out after my space bar stopped working).

You're kidding. This is the stuff of nightmares. What did you do?

[dabigchina]

Can one use slashes, dashes, parentheses in MEE/MPT?

no punctuation of any kind allowed, just pure stream of consciousness baby

LOL that's too funny.



Funnily, my laptop's apostrophe key stopped working right at the beginning of the written day, and so I had to start writing in the passive style ("the plaintiff's liability" becomes "the liability of the plaintiff"), and I also had to write a message to the bar examiners along the lines of [My apologies, but my apostrophe key has stopped working. Please excuse any punctuation errors]. It seemed to work out...

This is honestly my worst fear. Going to bring an external keyboard just in case.

Check your jurisdiction to make sure that's ok. I know at least one prohibits external keyboard (found this out after my space bar stopped working).

Yep, I checked. mine allows them.

[2015_Splitter]

I'm struggling with what I think is a fairly easy question:

"A company contracted with a builder to construct a new corporate headquarters for a fixed price of $100 million. At the time of the contract, structural steel was widely available and was included in the contract as a $6 million item. Before work began on the project, tornado damage shut down the production facility of the biggest structural steel supplier in the country, and the price of structural steel increased by 20% as a result. The builder informed the company of the steel price increase, and the parties then orally agreed to increase the project price to $101 million. The builder proceeded with construction and delivered the project on time. The company paid the builder $100 million but refused to pay the additional $1 million. If the builder sues the company for $1 million, is the builder likely to prevail?

(A) No, because the modification was never reduced to a writing signed by the party to be charged.
(B) No, because there was no consideration for the modification of the contract.
(C) Yes, because the company’s promise was supported by consideration.
(D) Yes, because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel."


Going through this problem - I determined that this was a services contract and the common law applied. Thus, I immediately eliminated answer A. However, since UCC uses the "good-faith standard" for contract modifications, I also eliminated answer D. Finally, I chose answer B because of the pre-existing duty and the fact that there didn't seem to be any consideration for the modification.

Can anyone explain why the answer is D? Is there an exception in the common law that allows for no consideration modification for unexpected changes in underlying economy or something?

[l18]

I'm struggling with what I think is a fairly easy question:

Can anyone explain why the answer is D? Is there an exception in the common law that allows for no consideration modification for unexpected changes in underlying economy or something?

Also had issues with this one and my friend, who is taking Barbri, told me that there is an exception but I can't remember it. Tripped me up because so many of the Themis questions in the past seemed just like this and I thought B would be correct. If anyone knows the exact exception please let us know!

[Pajsa18]

I'm struggling with what I think is a fairly easy question:

"A company contracted with a builder to construct a new corporate headquarters for a fixed price of $100 million. At the time of the contract, structural steel was widely available and was included in the contract as a $6 million item. Before work began on the project, tornado damage shut down the production facility of the biggest structural steel supplier in the country, and the price of structural steel increased by 20% as a result. The builder informed the company of the steel price increase, and the parties then orally agreed to increase the project price to $101 million. The builder proceeded with construction and delivered the project on time. The company paid the builder $100 million but refused to pay the additional $1 million. If the builder sues the company for $1 million, is the builder likely to prevail?

(A) No, because the modification was never reduced to a writing signed by the party to be charged.
(B) No, because there was no consideration for the modification of the contract.
(C) Yes, because the company’s promise was supported by consideration.
(D) Yes, because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel."


Going through this problem - I determined that this was a services contract and the common law applied. Thus, I immediately eliminated answer A. However, since UCC uses the "good-faith standard" for contract modifications, I also eliminated answer D. Finally, I chose answer B because of the pre-existing duty and the fact that there didn't seem to be any consideration for the modification.

Can anyone explain why the answer is D? Is there an exception in the common law that allows for no consideration modification for unexpected changes in underlying economy or something?

I think (ii) would apply in this situation?

Modification
1) Common law

At common law, modification of an existing contract must be supported by consideration. Agreements to modify a contract may still be enforced if:

i) There is a rescission of the existing contract by tearing it up or by some other outward sign, and then the entering into of a new contract, whereby one of the parties must perform more than she was to perform under the original contract;

ii) There are unforeseen difficulties, and one of the parties agrees to compensate the other when the difficulties are discovered if those difficulties would make performance impracticable (see § II.A. Impracticability, infra); or

iii) There are new obligations on both sides.

I think because at the time of contracting steel was readily available, and the unforeseen difficulties caused a 20% increase in the price of steel (which is arguably a pretty substantial increase likely rendering the K impractical if left as is) and the company orally agreed to the modification. I think the oral modification is OK because these seem to be different terms, not additional terms, and different terms are OK as long as they are not conditional, which I don't think it is here?

Contracts is definitely not my best subject, and I'm not sure if the above analysis is correct, but that's why I would have selected D.

[l18]

I think (ii) would apply in this situation?

Modification
1) Common law

At common law, modification of an existing contract must be supported by consideration. Agreements to modify a contract may still be enforced if:

i) There is a rescission of the existing contract by tearing it up or by some other outward sign, and then the entering into of a new contract, whereby one of the parties must perform more than she was to perform under the original contract;

ii) There are unforeseen difficulties, and one of the parties agrees to compensate the other when the difficulties are discovered if those difficulties would make performance impracticable (see § II.A. Impracticability, infra); or

iii) There are new obligations on BOTH SIDES.

I think because at the time of contracting steel was readily available, and the unforeseen difficulties caused a 20% increase in the price of steel (which is arguably a pretty substantial increase likely rendering the K impractical if left as is) and the company orally agreed to the modification. I think the oral modification is OK because these seem to be different terms, not additional terms, and different terms are OK as long as they are not conditional, which I don't think it is here?

Contracts is definitely not my best subject, and I'm not sure if the above analysis is correct, but that's why I would have selected D.

I think you are right, but I also remember that an increase in the price is not a basis to sue for breach because the party to perform is already required under the contract to perform. Makes this confusing. Here it was only 1 million in K worth 100 million so I don't see how it became impracticable.

[qqqqqqq]

I'm struggling with what I think is a fairly easy question:

"A company contracted with a builder to construct a new corporate headquarters for a fixed price of $100 million. At the time of the contract, structural steel was widely available and was included in the contract as a $6 million item. Before work began on the project, tornado damage shut down the production facility of the biggest structural steel supplier in the country, and the price of structural steel increased by 20% as a result. The builder informed the company of the steel price increase, and the parties then orally agreed to increase the project price to $101 million. The builder proceeded with construction and delivered the project on time. The company paid the builder $100 million but refused to pay the additional $1 million. If the builder sues the company for $1 million, is the builder likely to prevail?

(A) No, because the modification was never reduced to a writing signed by the party to be charged.
(B) No, because there was no consideration for the modification of the contract.
(C) Yes, because the company’s promise was supported by consideration.
(D) Yes, because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel."


Going through this problem - I determined that this was a services contract and the common law applied. Thus, I immediately eliminated answer A. However, since UCC uses the "good-faith standard" for contract modifications, I also eliminated answer D. Finally, I chose answer B because of the pre-existing duty and the fact that there didn't seem to be any consideration for the modification.

Can anyone explain why the answer is D? Is there an exception in the common law that allows for no consideration modification for unexpected changes in underlying economy or something?

I think (ii) would apply in this situation?

Modification
1) Common law

At common law, modification of an existing contract must be supported by consideration. Agreements to modify a contract may still be enforced if:

i) There is a rescission of the existing contract by tearing it up or by some other outward sign, and then the entering into of a new contract, whereby one of the parties must perform more than she was to perform under the original contract;

ii) There are unforeseen difficulties, and one of the parties agrees to compensate the other when the difficulties are discovered if those difficulties would make performance impracticable (see § II.A. Impracticability, infra); or

iii) There are new obligations on BOTH SIDES.

I think because at the time of contracting steel was readily available, and the unforeseen difficulties caused a 20% increase in the price of steel (which is arguably a pretty substantial increase likely rendering the K impractical if left as is) and the company orally agreed to the modification. I think the oral modification is OK because these seem to be different terms, not additional terms, and different terms are OK as long as they are not conditional, which I don't think it is here?

Contracts is definitely not my best subject, and I'm not sure if the above analysis is correct, but that's why I would have selected D.

This is what I was going to chime in with (after having looked it up in the Themis outline - I definitely did NOT get it right when I did the questions). I don't know where we draw the "impracticability" line, since 1 million out of 100 million doesn't seem like that much in the grand scheme of things. Maybe we're supposed to consider the steel separately, so it's in relation to 6 million dollars?

[qqqqqqq]

Has anyone here done the NCBE practice exams? Specifically OPE 4? I'm doing decently well on the Themis mixed MBE, but I've done some problems in the Emanuel's S&T and they feel pretty different to me, and I was wondering if the NCBE questions feel like the Themis ones, the Emanuel ones or something different entirely. I'm worried about going in to take the MBE and encountering questions written in a way I'm not prepared for.

[Pajsa18]

I'm struggling with what I think is a fairly easy question:

"A company contracted with a builder to construct a new corporate headquarters for a fixed price of $100 million. At the time of the contract, structural steel was widely available and was included in the contract as a $6 million item. Before work began on the project, tornado damage shut down the production facility of the biggest structural steel supplier in the country, and the price of structural steel increased by 20% as a result. The builder informed the company of the steel price increase, and the parties then orally agreed to increase the project price to $101 million. The builder proceeded with construction and delivered the project on time. The company paid the builder $100 million but refused to pay the additional $1 million. If the builder sues the company for $1 million, is the builder likely to prevail?

(A) No, because the modification was never reduced to a writing signed by the party to be charged.
(B) No, because there was no consideration for the modification of the contract.
(C) Yes, because the company’s promise was supported by consideration.
(D) Yes, because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel."


Going through this problem - I determined that this was a services contract and the common law applied. Thus, I immediately eliminated answer A. However, since UCC uses the "good-faith standard" for contract modifications, I also eliminated answer D. Finally, I chose answer B because of the pre-existing duty and the fact that there didn't seem to be any consideration for the modification.

Can anyone explain why the answer is D? Is there an exception in the common law that allows for no consideration modification for unexpected changes in underlying economy or something?

I think (ii) would apply in this situation?

Modification
1) Common law

At common law, modification of an existing contract must be supported by consideration. Agreements to modify a contract may still be enforced if:

i) There is a rescission of the existing contract by tearing it up or by some other outward sign, and then the entering into of a new contract, whereby one of the parties must perform more than she was to perform under the original contract;

ii) There are unforeseen difficulties, and one of the parties agrees to compensate the other when the difficulties are discovered if those difficulties would make performance impracticable (see § II.A. Impracticability, infra); or

iii) There are new obligations on BOTH SIDES.

I think because at the time of contracting steel was readily available, and the unforeseen difficulties caused a 20% increase in the price of steel (which is arguably a pretty substantial increase likely rendering the K impractical if left as is) and the company orally agreed to the modification. I think the oral modification is OK because these seem to be different terms, not additional terms, and different terms are OK as long as they are not conditional, which I don't think it is here?

Contracts is definitely not my best subject, and I'm not sure if the above analysis is correct, but that's why I would have selected D.

This is what I was going to chime in with (after having looked it up in the Themis outline - I definitely did NOT get it right when I did the questions). I don't know where we draw the "impracticability" line, since 1 million out of 100 million doesn't seem like that much in the grand scheme of things. Maybe we're supposed to consider the steel separately, so it's in relation to 6 million dollars?

I considered the steel separately, but our family is in commercial real estate development so whenever building / construction questions come up and I don't immediately know the correct answer, I default to how things would typically be considered in our industry.

[2015_Splitter]

I'm struggling with what I think is a fairly easy question:

"A company contracted with a builder to construct a new corporate headquarters for a fixed price of $100 million. At the time of the contract, structural steel was widely available and was included in the contract as a $6 million item. Before work began on the project, tornado damage shut down the production facility of the biggest structural steel supplier in the country, and the price of structural steel increased by 20% as a result. The builder informed the company of the steel price increase, and the parties then orally agreed to increase the project price to $101 million. The builder proceeded with construction and delivered the project on time. The company paid the builder $100 million but refused to pay the additional $1 million. If the builder sues the company for $1 million, is the builder likely to prevail?

(A) No, because the modification was never reduced to a writing signed by the party to be charged.
(B) No, because there was no consideration for the modification of the contract.
(C) Yes, because the company’s promise was supported by consideration.
(D) Yes, because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel."


Going through this problem - I determined that this was a services contract and the common law applied. Thus, I immediately eliminated answer A. However, since UCC uses the "good-faith standard" for contract modifications, I also eliminated answer D. Finally, I chose answer B because of the pre-existing duty and the fact that there didn't seem to be any consideration for the modification.

Can anyone explain why the answer is D? Is there an exception in the common law that allows for no consideration modification for unexpected changes in underlying economy or something?

I think (ii) would apply in this situation?

Modification
1) Common law

At common law, modification of an existing contract must be supported by consideration. Agreements to modify a contract may still be enforced if:

i) There is a rescission of the existing contract by tearing it up or by some other outward sign, and then the entering into of a new contract, whereby one of the parties must perform more than she was to perform under the original contract;

ii) There are unforeseen difficulties, and one of the parties agrees to compensate the other when the difficulties are discovered if those difficulties would make performance impracticable (see § II.A. Impracticability, infra); or

iii) There are new obligations on BOTH SIDES.

I think because at the time of contracting steel was readily available, and the unforeseen difficulties caused a 20% increase in the price of steel (which is arguably a pretty substantial increase likely rendering the K impractical if left as is) and the company orally agreed to the modification. I think the oral modification is OK because these seem to be different terms, not additional terms, and different terms are OK as long as they are not conditional, which I don't think it is here?

Contracts is definitely not my best subject, and I'm not sure if the above analysis is correct, but that's why I would have selected D.

This is what I was going to chime in with (after having looked it up in the Themis outline - I definitely did NOT get it right when I did the questions). I don't know where we draw the "impracticability" line, since 1 million out of 100 million doesn't seem like that much in the grand scheme of things. Maybe we're supposed to consider the steel separately, so it's in relation to 6 million dollars?

I considered the steel separately, but our family is in commercial real estate development so whenever building / construction questions come up and I don't immediately know the correct answer, I default to how things would typically be considered in our industry.

Yes - I remember this exception now. Specifically, I remembered that I thought $1M wouldn't be enough to justify a modification. However, you could take the view that 20% increase in the steel price is the factor to be considered. So I guess the nuance here is that you should look at the individual component to see if the economic increase makes the contract impracticable rather than the effect on the overall cost of the construction?

[kmn]

Ok, can someone tell me what the essay workshop handouts are? I know where to find the final review outlines, but confused about the essay workshop stuff- is that what Ide-Don was going over in his lectures?

[EncyclopediaOrange]

Has anyone asked or have insider info on how many, if any, of the practice test 4 questions are real NCBE questions?

[Wendelsr]

Three percent of us themisers got this right hahahah.


Question 7588
The owner of a boat contracted with a sail maker to make a replacement sail for the boat at a price of $1,500. Under the terms of their written contract, which did not contain a liquidated damages clause, the owner made a deposit of $750. The owner sold the boat before the sail maker finished making the sail. Despite the unusual configuration of the sail, the sail maker was able to sell the finished sail to another boat owner for $1,500. The owner has sued the sail maker in restitution for the return of his deposit. How much of his deposit is the boat owner entitled to receive?
Answers:
$0
Correct Answer: $450
$500
You Selected: $750
Rationale:
Answer choice B is correct. For contracts for the sale of goods, a defaulting buyer is entitled to a refund of any payments made on the contract less damages provable by the seller and either (i) the amount to which the seller is entitled by virtue of an enforceable liquidated-damages provision or (ii) a penalty of “20 percent of the value of the total performance for which the buyer is obligated under the contract, or $500, whichever is smaller.” Here, because the contract between the boat owner and the sail maker did not contain a liquidated damages clause, the boat owner is entitled to a refund of his $750 deposit less the smaller of $500 or 20 percent of the price of the sail ($1,500), which is $300. The boat owner, therefore, is entitled to recover $450 ($750 - $300) of his deposit. Answer choice A is incorrect because, even though the boat owner breached the contract, the boat owner is nevertheless entitled to recover a portion of his deposit in restitution. Answer choice C is incorrect because, although $500 is the maximum that a seller who is not otherwise entitled to damages may retain of a buyer’s deposit, it is in this case neither the amount that the sail maker may retain, which is $300, nor the amount that is due to the boat owner, which is $450 ($750 - $300). Answer choice D is incorrect because the boat owner, despite breaching the contract, is entitled to a recovery with respect to his deposit, but that recovery is limited in this case.

I almost slipped a disc when I got that wrong. I have never heard that rule with the 20% calculation.

[jetsetter2000]

Ok, can someone tell me what the essay workshop handouts are? I know where to find the final review outlines, but confused about the essay workshop stuff- is that what Ide-Don was going over in his lectures?

in MEE lecture handout book and also in "document library" on the portal

[Pajsa18]

Has anyone asked or have insider info on how many, if any, of the practice test 4 questions are real NCBE questions?

I asked today - my rep said 1000 of the 3000 questions are taken directly from the NCBE and are integrated throughout our practice - I did not get an exact percentage per practice exam with the answer.

[radio1nowhere]

The family law lecture/handout says "The 'innocent spouse' is entitled to a greater degree of property [upon fault-based divorce]" but the answer to Practice Essay #288 says "In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property."

???

[gotCentred]

The family law lecture/handout says "The 'innocent spouse' is entitled to a greater degree of property [upon fault-based divorce]" but the answer to Practice Essay #288 says "In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property."

???

This tripped me up as well, when I looked back through the handout I came to the conclusion that fault can be taken into account for spousal support, but not the initial property distribution upon divorce.

[EncyclopediaOrange]

Has anyone asked or have insider info on how many, if any, of the practice test 4 questions are real NCBE questions?

I asked today - my rep said 1000 of the 3000 questions are taken directly from the NCBE and are integrated throughout our practice - I did not get an exact percentage per practice exam with the answer.

Thank you!

[MRSP]

So what is everyone focusing on for the last five days? Memorizing and doing the mixed sets?

[JustBrowsing123]

I'm struggling with what I think is a fairly easy question:

"A company contracted with a builder to construct a new corporate headquarters for a fixed price of $100 million. At the time of the contract, structural steel was widely available and was included in the contract as a $6 million item. Before work began on the project, tornado damage shut down the production facility of the biggest structural steel supplier in the country, and the price of structural steel increased by 20% as a result. The builder informed the company of the steel price increase, and the parties then orally agreed to increase the project price to $101 million. The builder proceeded with construction and delivered the project on time. The company paid the builder $100 million but refused to pay the additional $1 million. If the builder sues the company for $1 million, is the builder likely to prevail?

(A) No, because the modification was never reduced to a writing signed by the party to be charged.
(B) No, because there was no consideration for the modification of the contract.
(C) Yes, because the company’s promise was supported by consideration.
(D) Yes, because the modification was fair and equitable in view of the unanticipated increase in the price of structural steel."


Going through this problem - I determined that this was a services contract and the common law applied. Thus, I immediately eliminated answer A. However, since UCC uses the "good-faith standard" for contract modifications, I also eliminated answer D. Finally, I chose answer B because of the pre-existing duty and the fact that there didn't seem to be any consideration for the modification.

Can anyone explain why the answer is D? Is there an exception in the common law that allows for no consideration modification for unexpected changes in underlying economy or something?

Made an account just to give my take on this. The question states, "structural steel was widely available and was included in the contract as a $6 million item." This line is the basis for my reasoning. Contracts for mixed goods and services adhere to the predominant purpose test unless such goods and services are divisible. Because the steel had its own line item, it is divisible, and thus, is covered by the UCC. Modifications in good faith under the UCC are valid.

[Lawworld19]

So what is everyone focusing on for the last five days? Memorizing and doing the mixed sets?

I am going to try to get as many real NCBE questions done as possible. I have done around 1900 Themis questions. Will work back from OPE 4 just for safe measure.

Going over as many prompts and model answers as I can. Breadth, not depth I think at this point, just in case there is a topic I don't know now, if I see it on the test and I saw it on a model answer I can bs something to pick up a point here or there. Sat/Sun I will hit critical pass one more full in depth review. Then Monday, state outlines once more then test time baby. Either way this shit is almost over.

[jetsetter2000]

The family law lecture/handout says "The 'innocent spouse' is entitled to a greater degree of property [upon fault-based divorce]" but the answer to Practice Essay #288 says "In most states, the fact that a divorce is granted on a fault ground, such as adultery, is not a factor in the distribution of property."

???

I thought they meant most states are no fault states, so it'd be tech. true.

[abogado2018]

So what is everyone focusing on for the last five days? Memorizing and doing the mixed sets?

I am going to try to get as many real NCBE questions done as possible. I have done around 1900 Themis questions. Will work back from OPE 4 just for safe measure.

Going over as many prompts and model answers as I can. Breadth, not depth I think at this point, just in case there is a topic I don't know now, if I see it on the test and I saw it on a model answer I can bs something to pick up a point here or there. Sat/Sun I will hit critical pass one more full in depth review. Then Monday, state outlines once more then test time baby. Either way this shit is almost over.

Similar. I did OPE 4 today. Got an 80%, which was WAY higher than my average on Themis PQs. I think that was due in large part to 1) no civ pro, which has been dragging down my Themis average, 2) overall the questions are easier than Themis's, 3) I recognized a few questions I had seen before in Themis that Themis must have licensed and recycled.

I'm just writing out essays (or outlining), and reviewing the issues I didn't spot in my attack outlines.

[qqqqqqq]

So what is everyone focusing on for the last five days? Memorizing and doing the mixed sets?

Essays, essays, essays. And short answers. Texas has 12 essays and 40 short answer questions - the MBE is kind of on the back-burner. I really want to get through NCBE OPE 4 before Tuesday, though, even if I have to slice it up into 3 or 4 pieces.

Oh yeah, and occasional screaming into the abyss, staring into the void, etc.