Interesting Stuff....

I came across this today and thought it might be of interest...

Contract Breach Approach...

And here is the contract breach section....

Contract Breach General Approach:

A contract is a promise or a set of promises that the law will afford a remedy if breached. Here, the issue is whether ______ breached the contract.

A party will be liable for breach of a contract when 1) there is an absolute duty to perform, 2) there is a failure to perform, and 3) the breach is material. Once these elements are met, a party will have 4) remedies for breach.

1. Absolute Duty to Perform: A duty to perform under the contract arises when 1) all conditions have been excused/extinguished 2) the duty was not discharged, and 3) there are no defenses.

a. Conditions still existing?
b. Defenses to formation

i. Statute of Frauds (marriage, year, land, executor, goods>$500,surety)

1. Memorialized writing: requires

a. Identify parties
b. Subject matter
c. Terms and conditions
d. Recital of consideration
e. Signed by charged party

ii. Unconscionability: oppression and unfair surprise

c. Defenses to enforcement

d. Non-Parties: incidental or intended/creditor or donee benificiary

e. Delegation: Generally, all contract rights may be delegated freely.

i. Elements

1. Manifest intent
2. No formalities
3. Delegator remains liable on contract

ii. Exceptions:
1. Personal judgment/skill
2. If would change obligee’s expectancy (requirement/output cases)
3. Special trust
4. Contractual restriction

f. Assignment: Generally, all contract rights may be assigned.

i. Elements
1. Manifest intent
2. Adequately described
3. Consideration not required

ii. Exceptions
1. Substantially changes obligor’s duty or risk
2. Future right on future contracts
3. If it is prohibited by law

g. Excuses to performance

i. Failure to cooperate

ii. Actual breach

iii. Anticipatory Repudiation: options
1. Sue
2. Suspend and wait to sue
3. Treat contract as discharged and rescind
4. Ignore and urge performance

iv. Inability to perform

v. Substantial performance

vi. Divisibility

vii. Waiver or Estoppel

viii. Impracticability

ix. Impossibility

2. Failure to Perform: (who failed to perform? What did they do? Was the duty to perform discharged via one of the following?)

a. Illegality
b. Novation
c. Accord & Satisfaction
d. Impossibility
e. Substituted Contract
f. Modification
g. Frustration of Purpose
h. Operation of Law/Running of Statute
i. Mutual Rescission or Release
j. Condition Subsequent
k. Impracticability

3. Material Breach: A breach is material based on the following factors:
a. Amount of benefit received
b. Adequacy of compensation
c. Extent of past performance
d. Hardship
e. Negligent or willful behavior
f. Likelihood of performance

4. Remedies for Breach:
a. Damages:

i. standard measure- expectation that permit P to buy a substitute

ii. consequential- if reasonably foreseeable at time of entering the K

b. Specific performance
c. Rescission and restitution
d. Quasi-contractual relief:

i. failed contract and

ii. unjust enrichment
1. benefit conferred
2. expectation of payment
3. knowledge of expectation of payment
4. unjust to retain benefit

Contracts...

Since contracts are one of my harder subjects, I have been working diligently on them... And, for your veiwing pleasure, I have broken down the basic contract formation question into my own little approach, boilerplate, cheat sheet, memorization key, what have you. Whatever you want to call it, I found that I really need the mental image of how a basic issue will break down and where each rule or item will go in the flow of the essay. This is also so the last two weeks I can do the blank page method of memorizing, which just means I take a large stack of blank pages and start writing out issue approaches over and over until I can do each without referencing my master one. It worked well last February and took away much of my panic at the sheer quantity of memorizing there was to do, so I plan to do that again.

I make no claim of the all-encompassing perfection of this approach, but it is how I will be going about answering any contract formation question I get....

Since it comes out small when I upload it as a jpeg image, I also copied the text into the post below. However, if you would like me to email it, I will certainly do so if ya leave a comment for me.

Enjoy.

Contract Formation...

Contract Formation General Approach:

A contract is a promise or a set of promises that the law will afford a remedy if breached. Contracts are classified by how they are formed and how they may be accepted. The law governing a contract is generally common law, but for goods, UCC Article 2 will apply.

A contract requires 1) Mutual Assent, 2) Consideration, and 3) No Defenses:

1. Mutual Assent:
a. Offer: An offer creates the power of acceptance in the offeree. The elements of an effective offer are:
i. Expression of present intent to be bound
ii. Definite and certain terms
iii. Communicated to the offeree

An offer can be terminated by: 1) the act of either party (revocation, rejection, lapse) or 2) operation of law: (death or insanity, destruction of subject matter, supervening illegality).

b. Acceptance: Acceptance requires the following:
i. Power of acceptance
ii. Communicated to offeree
iii. Not assignable
iv. Must be unequivocal (Mirror Image Rule) and
v. Is effective upon dispatch (Mailbox Rule)

2. Consideration:
a. Bargained-for Exchange:
i. Bargain
ii. Legal Value
b. Substitution for Consideration:
i. Promissory Estoppel/Detrimental Reliance: (requires)
1. Promisor reasonably expect to induce act or forebearance
2. Act or forebearance actually occurs
3. Act or forebearance is of a definite and substantial character
4. Recovery is limited as justice requires
ii. Good faith modification under the UCC

3. No Defenses: Possible defenses to contract formation include:
a. Mutual mistake:
i. Both parties mistaken
ii. Material adverse effect on the contract
b. No consideration
c. Illegality
d. Incapacity:
i. Infancy
ii. Insanity
iii. Intoxication
iv. Duress/coercion

List...

OK, so I made a nice little list to keep me on track.... As time goes by, items will get checked off and I will be able to see concrete improvement as we get closer....

Also, I will post my breakdown of each topic in order to solidify them in my little mush brain and for your reading pleasure....

Inspiration...

PTs...

I hate PTs. They are stupid. I can get to the point of having all the file read and blocked out, and then I completely lose interest.... I really, really don't care if the fictional guy gets to exercise his stock options after quitting and going to work for a competitor fictional company. I'm not going to get to draft the summary judgment motion in that case, so it holds no excitement for me...

I'm just sayin'.

That being said... I know I have to get my concentration back so on Tuesday and Thursday afternoon I am not so bored I want to poke my highlighter in my eye rather than write what the examiners want to see, so I am plugging away. If I could just get done with the damn thing, I could use the nice 80 point answer on baressays to check my work and see how close I came to a failing score. ;)

Than I can go back to torts.... hmmm... a defamatory statement, of or concerning plaintiff, publication and damages... memorizing is much more concrete and therefore easier for me to sink my teeth into.

It'll get better... it has to, right?

Purple...

Painted Big J's room yesterday- now it looks like a grape threw up in there. It's definitely Hannah Montana purple.

Today it is torts... Anyone have comments on how to get and stay motivated to study?

OTH...

I am thinking One Tree Hill has jumped the shark....

Facebook...

Is the worst kind of crack I have experienced since Tetris while I was in high school. We used to sit around in the school newspaper computer room, endlessly playing Tetris and not doing work on the paper.

That was in high school...

This morning, I spent an hour on Facebook, typing in names and reading the walls of people who have confirmed me as a friend (I'm POP-ul-lar!) instead of finishing my complaint.

And high school was, er, um, a long, long time ago... but somehow nothing has really changed.

Seriously, it's as bad a crack.

No Complaints...

I have no complaints. I just found out my friend A's husband has cancer. He is the nicest man you ever met, and she's just as nice.

I wish them all the luck in the world.

So, see, I got no complaints. None. I should also delete my last whiny post that was all about me and how I didn't want to have to do stuff that it is really a privilege to be able to do.

Motivation....

Anyone else motivated to study?

Me, not so much. So, here is my list of things I'd rather do than study for the bar....

1. check facebook.
2. check Craigslist's free postings for my area (just in case there's some random gem on there.)
3. scrub the bathroom.
4. draft complaints (although I am getting tired of those right now.)
5. call witnesses.
6. clean the kitchen.
7. pay bills.
8. watch the new episode of One Tree Hill on the DVR.
9. vacuum.
10. fold laundry.


As you can see, the aversion is severe, since household chores, including bathrooms and bill paying (both of which I despise and avoid at all costs) rank above bar study.

Lovey...

Phone call to the vet's office on Friday at 10:00 a.m.

Me: Hi, how much to get a boy cat fixed?

Vet: $65.00.

Me: Ok, well, I think I need to bring my cat in. I caught him, er... um... well.... you know... with the girl cat this morning... in front of my kids.

Vet: (laughing) Well, try telling them they're wrestling.

Me: Yeah, I am not sure I want to be responsible for the therapy fees later in life because I explained the facts of life to them at age 5.

Vet: Okay, we can take him on Tuesday.

Me: Fabulous. I can mange until then... I think....

Vet: And what is the cat's name?

Me: Lovey.

Vet: (Laughing AGAIN) I'm sure he is....

Pets...

Not bar related, but I saw this and thought it was worth spreading around....

A PET'S TEN COMMANDMENTS........

1. My life is likely to last 10-15 years. Any separation from you is likely to be painful.

2. Give me time to understand what you want of me.

3. Place your trust in me. It is crucial for my well-being.

4. Don't be angry with me for long and don't lock me up as punishment. You have your work, your friends, your entertainment, but I have only you.

5. Talk to me. Even if I don't understand your words, I do understand your voice when speaking to me.

6. Be aware that however you treat me, I will never forget it.

7. Before you hit me, before you strike me, remember that I could hurt you, and yet, I choose not to bite you.

8 Before you scold me for being lazy or uncooperative, ask yourself if something might be bothering me. Perhaps I'm not getting the right food, I have been in the sun too long, or my heart might be getting old or weak.

9. Please take care of me when I grow old. You too, will grow old.

10. On the ultimate difficult journey, go with me please. Never say you can't bear to watch. Don't make me face this alone. Everything is easier for me if you are there, because I love you so.

Take a moment today to be grateful for your pets. Enjoy and take good care of them. Life would be a much duller, less joyful experience without them.

Essays...

In case anybody is starting the new year in an effort to do endless past essays, here is a link to lots and lots of old ones.... You hafta register, but hey, better than paying for the same thing from Barbri...

Click Here