Law School Stuff

Before I started this CALI.org hosted blog, I had a tumblr where I collected legal stuff as both a law student and later as a practicing attorney. Some of the entries are likely helpful to students.

Law School Stuff

https://rds-pcl-outlines.tumblr.com

Q: Does California use the Predominant Factor Test?

A: Yes

See C9 Ventures v. SVC-West, L.P. (2012) 202 Cal.App.4th 1483, 1494 [136 Cal.Rptr.3d 550, 559][“We find no legal test to determine whether a hybrid transaction involving lease of a vessel and sale of its contents is a lease or transaction for the sale of goods. However, in deciding the somewhat analogous question whether a hybrid transaction for goods and services is predominantly a sale of goods governed by the Uniform Commercial Code, or predominantly a transaction for services governed by common law, courts have looked to the essence of the transaction. (Filmservice Laboratories, Inc. v. Harvey Bernhard Enterprises, Inc. (1989) 208 Cal.App.3d 1297, 1305, 256 Cal.Rptr. 735; Bonebrake v. Cox (8th Cir.1974) 499 F.2d 951, 960.) The court may compare the relative cost of the goods and services in the transaction and the purpose of the agreement in order to determine whether it is predominantly a sale of goods or transaction for services. (See Pittsley v. Houser (1994) 125 Idaho 820, 823, 875 P.2d 232, 235 [transaction for purchase and installation of carpet predominantly transaction for sale of goods].) “The test for inclusion or exclusion is not whether [goods and services] are mixed, but, granting that they are mixed, whether their predominant factor, their thrust, their purpose, reasonably stated, is the rendition of service, with goods incidentally involved (e.g., contract with artist for painting) or is a transaction of sale, with labor incidentally involved (e.g., installation of a water heater in a bathroom).” (Bonebrake v. Cox, supra, 499 F.2d at p. 960, fns. omitted.)]

Assignments for Credit

Fall Assignments for Credit

You’ll note that your syllabi allow 15% for assignments. They are required and part of your overall grade.

Did poorly on the midterm? Worried that you might underperform on the final? Here’s how you can earn some points to offset the exams.

1) 10 point assignments (1a or 1b)

a) If you did poorly on the midterm, write a document explaining what you would do differently now. Which issues did you miss? Which rules were sketchy? Was your analysis light on, well, analysis? What would you do better if you could take the same exam again. I don’t want a rewrite of the essay. I want you to go through your own work as if you were grading someone else. This exercise is intended to help you think from the standpoint of a bar exam grader.

or

b) Did well on the midterm? Pick two issues of contract law that you’ve learned so far this year and find a case for each from our assigned case readings that you feel best illustrates the rule in the way that it’s addressed on bar exam type essays. Discuss how you feel the court addresses the issue, and how you could use similar analysis if you ran into a comparable fact pattern in an essay. Do not recount the facts of the cases. This is an assignment to identify holdings within the case that you could use for IRAC of your own.

2) 5 point assignment

Pick two different issues of contract law that you’ve learned so far this year and write out an MBE-style fact pattern and four answer choices for each. Use existing MBEs as a guide for the length and complexity, but DO NOT copy someone else’s MBE and then claim it’s  yours. That’s plagiarism. Moreover, this exercise is very beneficial in that it really forces you to understand and think though an issue of law carefully. If you do this right, you’ll have a better understanding of the two issues you pick.

Requirements and Due Date

Assignments are due the day of your final examination—November 14, 2019. I require a printed copy of the assignment be turned into me. You can send a digital copy as well, but I will only grade physical, printed copies turned in by the deadline.

You may turn in both assignments 1 and 2. A maximum score of 15 points will be awarded to work that fits the criteria supra. Please submit assignments that are a reasonable length. Be concise, but turn in something substantive. Sophomoric efforts will be graded accordingly.

Winter assignments for credit

You’ll note that your syllabus allows 15% for assignments. Last quarter I didn’t make it clear that this is something I expect every student to work on. This quarter, I want everyone to know that they must turn in work for this credit that goes towards 15% of their grade. The due date and other information are on the bottom, I’m sending it out now in case it’s easier for some of you to work on over the holidays, instead of waiting to the end of the quarter.

1) 10 point assignments (1a or 1b or 1c)

a) Is there an issue or issues that you keep missing or still misunderstand? Come up with a comprehensive project that helps you master that issue. Explain your approach in the beginning of the project and then show your work. Maybe a lesson plan that you would use to teach it to others, or an essay or two that features your problem issue, or a short paper on the issue that increases your understanding of it. If you have an idea, but want to double-check it, send it to me via email.

– or –

b) Pick two issues of contract law that you’re struggling with and find essays on CalBar’s website. Try to write the essays and then do the three-column method of checking the issues you spotted to the two student answers supplied by the Committee of Bar Examiners. After you complete your columns, write up an analysis of what you got right, what you missed, and what you need to improve on. Turn the whole thing in, your essay, the column comparison, and your analysis.

– or –

c) Pick two issues of contract law that you’ve learned so far this year and find a case for each from our assigned case readings that you feel best illustrates the rule in the way that it’s addressed on bar exam type essays. Discuss how you feel the court addresses the issue, and how you could use similar analysis if you ran into a comparable fact pattern in an essay. Do not recount the facts of the cases. This is an assignment to identify holdings within the case that you could use for IRAC of your own.

2) 5 point assignment

Pick two different issues of contract law that you’ve learned so far this year and write out an MBE-style fact pattern and four answer choices for each. Use existing MBEs as a guide for the length and complexity, but DO NOT copy someone else’s MBE and then claim it’s  yours. That’s plagiarism. Moreover, this exercise is very beneficial in that it really forces you to understand and think though an issue of law carefully. If you do this right, you’ll have a better understanding of the two issues you pick.

Requirements and Due Date

Assignments are due the day of your final examination—February 20, 2020. I’ll except items earlier. I require a printed copy of the assignment be turned into me. You can send a digital copy as well, but I will only grade physical, printed copies turned in by the deadline.

You may turn in both assignments 1 and 2. A maximum score of 15 points will be awarded to work that fits the criteria supra. Please submit assignments that are a reasonable length. Be concise, but turn in something substantive. Sophomoric efforts will be graded accordingly.

Spring assignments for credit

You’ll note that your syllabus allows 15% for assignments. Like with every other quarter, I want everyone to know that they must turn in work for this credit that goes towards 15% of their grade. The due date and other information is on the bottom.

1) 10 point assignments (1a or 1b or 1c)

a) Is there an issue or issues that you keep missing or still misunderstand? Come up with a comprehensive project that helps you master that issue. Explain your approach in the beginning of the project and then show your work. Maybe a lesson plan that you would use to teach it to others, or an essay or two that features your problem issue, or a short paper on the issue that increases your understanding of it. If you have an idea, but want to double-check it, send it to me via email.

– or –

b) Pick two issues of contract law that you’re struggling with and find essays on CalBar’s website. Try to write the essays and then do the three-column method of checking the issues you spotted to the two student answers supplied by the Committee of Bar Examiners. After you complete your columns, write up an analysis of what you got right, what you missed, and what you need to improve on. Turn the whole thing in, your essay, the column comparison, and your analysis.

– or –

c) Pick two issues of contract law that you’ve learned so far this year and find a case for each from our assigned case readings that you feel best illustrates the rule in the way that it’s addressed on bar exam type essays. Discuss how you feel the court addresses the issue, and how you could use similar analysis if you ran into a comparable fact pattern in an essay. Do not recount the facts of the cases. This is an assignment to identify holdings within the case that you could use for IRAC of your own.

2) 5 point assignment

Pick two different issues of contract law that you’ve learned so far this year and write out an MBE-style fact pattern and four answer choices for each. Use existing MBEs as a guide for the length and complexity, but DO NOT copy someone else’s MBE and then claim it’s  yours. That’s plagiarism. Moreover, this exercise is very beneficial in that it really forces you to understand and think though an issue of law carefully. If you do this right, you’ll have a better understanding of the two issues you pick.

Requirements and Due Date

Assignments are due the day of your final examination—May 14, 2020. I’ll except items earlier. I require a printed copy of the assignment be turned into me. You can send a digital copy as well, but I will only grade physical, printed copies turned in by the deadline. We may have to change the physical copy requirement, depending on whether we’re able to return to the classroom by that time.

You may (read should) turn in both assignments 1 and 2. A maximum score of 15 points will be awarded to work that fits the criteria supra. Please submit assignments that are a reasonable length. Be concise, but turn in something substantive. Sophomoric efforts will be graded accordingly.

Lesson Link Titles

Quarter – Fall

Overview and Sources of Contract Law
History of Equity

Invitations to Negotiate and other Expressions that are not Offers
Express and Implied Contracts
Bilateral and Unilateral Contracts

Offer
Indefiniteness
Duration of Offers

Option Contracts and Firm Offers

Acceptance
The Mailbox Rule
Formation of Contracts under UCC Article 2

Battle of the Forms (UCC 2-207)

Consideration: The Basics of Consideration and the Bargain Theory
Agreements Lacking Consideration: Gift Promises
Agreements Lacking Consideration: Past Consideration and Moral Obligation
Satisfaction Clauses

Reliance Damages
Mutuality of Obligation
Consideration: Advanced Issues

The Statute of Frauds

Quarter – Winter

Void, Voidable and Unenforceable Contracts
Illegal Promises
Defenses
Duress and Undue Influence
Misunderstanding and Mistake
Unjust Terms (Unconscionability)

Lack of Capacity
Fraud and Misrepresentation

The Parol Evidence Rule

Interpretation of Contracts
Implied Terms
Good Faith
Promises, Conditions, Warranties, and Representations

Conditions

Contract Tutorials on Remedies – Excuse of Performance

Anticipatory Repudiation and Assurances of Performance

Installment Contracts

ITT v LTX. An Interactive Exploration of UCC Article 2

Accord and Satisfaction
The Pre-Existing Duty Rule, Contract Modification, and Accord & Satisfaction

Quarter – Spring

Installment Contracts

Risk of Loss
Substantial Performance
Contract Tutorials on Remedies – Substantial Performance/Breach
Warranties

An Introduction to Contract Remedies
Expectation Damages
Liquidated Damages
Certainty
Foreseeability
Mitigation
Contract Tutorials on Remedies – Overhead and Profit
Contract Tutorials on Remedies – Liquidated Damages
Contract Tutorials on Remedies – Proving Damages
Contract Tutorials on Remedies – Reliance Damages
Contract Tutorials on Remedies – Foreseeability
Contract Tutorials on Remedies – Cost of Completion

UCC Remedies: Seller’s Remedies When Buyer is in Breach
UCC Remedies: Buyer’s Remedies When the Seller is in Breach
Contract Tutorials on Remedies – UCC Damage Rules
Contract Tutorials on Remedies – Expectation Damages in Sale of Goods
Contract Tutorials on Remedies – UCC Damage Rules for Buyers
Contract Tutorials on Remedies – Expectation Damages in Sale of Goods – Buyer does not cover

Equitable Remedies – An Overview
Reliance Damages
Restitution
Specific Performance
Contract Tutorials on Remedies – Restitution
Contract Tutorials on Remedies – Specific Performance

Third Party Beneficiaries
Exploring Article 2

Assignment and Delegation

Damages and Remedies

Damages and Remedies

Listing of damages and remedies discussions in recent FLYSX essays. Not every rule and analysis below is correct, this is just to give you an idea of how often these issues are raised and the approaches that candidates use to answer.

2019 October

Q2

A2: Expectancy (brief mention)

2019 June

Q2

A1: Reformation (brief mention)

Q4

A1: Mitigation, Expectation. Also raises Consequential, Liquidated, and Nominal, but none of those are applicable to the facts.

A2: Expectation, Mitigation. Also raises Consequential, Specific Performance, and Incidental, but none of those are applicable to the facts.

2018 October

Q1

A1: Expectation, Mitigation (Avoidable Consequence), Liquidated

A2: Liquidated, Expectation, Reliance, Incidental

2018 June

Q1

A1: Expectation, Reliance, Consequential, Specific Performance

A2: Expectation, Reliance, Consequential, Mitigation, Specific Performance

Q3

A1: Quasi Contract, Reliance, Restitution, Expectation

A2: Unjust Enrichment, Expectation (no breach/breach), Incidental, Restitution

2017 October

Q3

A1: Expectation, Specific Performance

A2: Expectation, Specific Performance

2017 June

Q1

A1: Expectancy

A2: Expectation, Specific Performance, Consequential

2016 October

Q2

A1: Specific Performance, Expectation,

A2: Specific Performance

Q4

A1: Expectation, Cover, Mitigation, Consequential, Reliance

A2: Specific Performance, Expectation, Cover, Consequential, Reliance

2016 June

Q2

A1: Expectation, Consequential, Incidental

A2: Specific Performance, Expectation

2016 October

Q1

A1: Expectation, Consequential, Reliance, Quantum Meruit

A2: Consequential, Expectation, Mitigatation,

Q4

A1: Liquidated

A2: Liquidated, Expectation

2016 June

Q2

A1: Expectation, Consequential, Incidental

A2: Specific Performance, Expectation

2015 October

Q1

A1: Expectation, Consequential, Reliance, Quantum Meruit

A2: Consequential, Expectation, Mitigation

Q4

A1: Liquidated

A2: Liquidated, Expectation

2015 June

Q2

A1: Reliance

A2: Expectation, Reliance

2014 October

Q1

A1: Expectation

A2: Reformation, Rescission,

Q4

A1: Damages

A2: Consequential, Expectation

2014 June

Q4

A1: Expectation, Consequential, Consequential, Cover, Incidental, Specific Performance

A2: Expectation, restitution, Reliance

2013 October

Q1

A1: Expectation, Cover, Lost Volume Seller,

A2: Mitigation, Incidental, Expectation,

Q3

A2: Expectation, Consequential

2013 June

Q3

A1: Specific Performance, Restitution, Expectation

A2: Damages, Specific Performance

Impossibility, Impracticability, Frustration of Purpose

Listing of the “discharge triplets”. Bear in mind that they are generally exclusive of each other, but students tend to cluster them on the exams. Moreover, not every rule and analysis below is correct, this is just to give you an idea of how often these issues are raised and the approaches that candidates use to answer.

FYLSX

October 2013

Q1

Answer A: Impossibility, Impracticability, Frustration of Purpose

Answer B: Impracticability

June 2014

Q4

Answer A: Impossibility, Impracticability, Frustration of Purpose

October 2014

Q4

Answer B: Impossibility, Impracticability, Frustration of Purpose

October 2015

Q4

Answer A: Impracticability

Answer B: Impossibility, Impracticability

October 2016

Q2

Answer B: Impossibility, Impracticability

Q4

Answer A: Impossibility, Impracticability, Frustration of Purpose

Answer B: Impossibility, Impracticability, Frustration of Purpose

June 2017

Q1

Answer A: Frustration of Purpose

October 2017

Q3

Answer A: Impossibility, Impracticability

Answer B: Impossibility, Impracticability, Frustration of Purpose

June 2018

Q1

Answer A: Impossibility, Impracticability

Answer B: Impossibility, Impracticability, Frustration of Purpose

Q3

Answer B: Impossibility, Impracticability, Frustration of Purpose

October 2018

Q1

Answer A: Impossibility, Impracticability, Frustration of Purpose

Answer B: Impossibility, Impracticability, Frustration of Purpose

June 2019

Q4

Answer A: Frustration of Purpose

CBX

July 2013

Q4

Answer A: Impossibility, Impracticability

Answer B: Impossibility, Frustration of Purpose

July 2016

Q3

Answer A: Impossibility, Impracticability, Frustration of Purpose

Answer B: Impossibility, Impracticability

July 2018

Q1

Answer A: Impracticability

Answer B: Impossibility, Impracticability

Additional Predominant Factor Test resources

From The ABCs of the UCC (Revised) Article 2: Sales.

Excerpt from: SCOPE OF ARTICLE 2

This ambiguity concerning the meaning of “transactions in goods” leads to a problem under current law in another respect: whether Article 2 should be applied in a so-called “mixed” transaction. Contracts often involve both the sale of goods and the service or installation of the goods sold. When the transaction is mixed, the courts apply one of two tests: the predominate purpose test (majority view) or the gravamen test (minority view).

Under the predominate purpose test, the court determines whether the predominate purpose of the transaction is to sell the goods or to provide the service. If the predominate purpose is to sell the goods, Article 2 applies. If the predominate purpose is to provide the service, Article 2 does not apply. To determine whether the predominate purpose is to provide the goods or the service, courts generally look at the predominate component in the transaction. To determine what is the predominate component, courts examine many factors including the terminology of the contract, the objective of the parties in entering the contract, the ratio of the price of the goods to the whole price of the contract, the nature of the business of the supplier, and the intrinsic value of the goods without the service.

In contrast, under the gravamen test, the court looks at the basis of the complaint rather than the overall nature of the transaction. If the plaintiff is complaining about the goods component, Article 2 applies. If the plaintiff is complaining about the service component,Article 2 is inapplicable.


Introduction to UCC Article 2

A good discussion of predominant factor test versus gravamen.


Paper discussing the problems posed by software transactions

Installation Failure: How the Predominant Purpose Test Has Perpetuated Software’s Uncertain Legal Status Under the Uniform Commercial Code