Strategic Plan for Contracts Essay

 Questions:

1. Is a contract involved, or is it only there to set up another question (e.g. on real property, negotiable instruments, secured transactions)? This determines whether and the level of coverage of contract law for a good answer.
2. If contract, is it about common law, sale-of-goods, or a hybrid? Map out laws to apply.
3. Does it significantly involve formation (offer, acceptance, consideration, mutuality, including ads and rewards, mere inquiries, mirror-image vs. responsive test, adequacy and sufficiency, gap-filling possibilities, consideration substitutes, meeting of the minds in early phase of negotiations – after significant performance, perhaps treat as a defense to enforcement).
4. Does it involve amounts or indications of damage? Common law forms + limitations; U.C.C. Art. 2 forms (+ limitations – UCC §1-103(b); amounts of losses, limitations, exclusions.
5. Is there any argument over meaning/interpretation? (interpretation: parol evidence rule & term interpretation/construction rules) + incl. the three main exceptions to the parol evidence rule).
6. Does it involve any conditions? (precedent, subsequent, concurrent and the time they take effect, alternatives e.g. promissory conditions, dependent promises, and other ways avoid a forfeiture such as quasi contract, waiver, etc.)
7. Are there facts of assignment (rights) or delegation (duties) or both? Is an assignment revocable, and if so, when? (compare to Art. 3 negotiable instrument, where rights are automatically separated from duties under a contract if done properly/HIDC)
8. If a contract is formed, are there facts justifying a defense to enforcement? During formation(innocent) including mental incapacity/infancy, unilateral or mutual mistake; or during formation (fault) including duress (economic or common law), undue influence, fraudulent or negligent misrepresentation; or post-formation including unconscionable contract or provision (which can be excised, leaving the remainder of the contract intact), Acts of God (force majeure), and impossibility (aka in the Code “commercial impracticability). Each have specific elements, some have overlap or common elements.

The above basically tracks the common organizational logic of basic contract law casebooks. Essay questions sometimes note contracts but they are not at issue; other times a question calls for significant treatment of one or more of the above; still other times there are some contracts issues as well as other issues that need to be addressed. The applicability and weight depends on the facts and question calls of each fact pattern.

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