Governing Law and the Anatomy of a Contract

ธรรมนูญ

UCC § 2-102

Scope of Article 2 (pre-2022 Official Text)

Unless the context otherwise requires, this Article applies to transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction nor does this Article impair or repeal any statute regulating sales to consumers, farmers or other specified classes of buyers.

องค์ประกอบ

Goods or not goods?

Use this list when the subject of the contract is unusual.

1. 1.Goods: A used car, a printer, 1,000 tons of steel, a custom-built boat, a pedigree puppy, a restaurant meal.
2. 2.Goods by statute: Growing crops and timber, and minerals or a building that the seller will remove from the land (UCC § 2-107).
3. 3.Not goods: Land and buildings, services, employment, money used as the price, stocks and bonds, patents and copyrights, insurance policies.
4. 4.Watch: Software: courts split. Many treat a sale of packaged software as goods; a pure license or custom programming service is usually common law.

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ช่วยในการจำ

The 4 merchant rules most tested in formation and warranty. Others exist. Example: if the seller is a merchant, risk of loss passes on the buyer’s receipt of the goods; otherwise it passes on tender (§ 2-509(3); Chapter 7).

เคล็ดลับการสอบ

After choosing Article 2, state each party’s merchant status in one sentence, then name the merchant rule you use. Frequency: § 2-207 and merchantability on 4 of the last 50 exams each; firm offer once. Model: “Seller is a car dealer, so Seller is a merchant.”

บันทึกสำคัญ

1. 1.A contract is a promise the law will enforce (Rest. § 1); no writing or formality is needed in general.
2. 2.UCC Article 2 governs sales of goods: things movable at the time of identification (§ 2-105).
3. 3.The common law (Restatement) governs services, land, employment, construction and intangibles.
4. 4.A merchant deals in goods of the kind or has special skill (§ 2-104); consumers are not merchants.
5. 5.The 4 merchant rules most tested: firm offer, additional terms, merchantability, confirmatory memo.
6. 6.Main differences: mirror image vs § 2-207, option vs firm offer, modification, gap fillers, perfect tender.

องค์ประกอบ

Factors that show the predominant purpose

No single factor controls. Courts weigh:

1. 1.Language: Does the document call the parties buyer and seller, or owner and contractor? Does it speak of a price or a fee?
2. 2.Price: How much of the total price is for the goods, and how much for labor or skill?
3. 3.Business: Is the supplier a seller of products, or a provider of skilled services who also supplies materials?
4. 4.Goods: Are the goods stock items or made to order? Custom-made items are still goods (§ 2-105); this factor only helps weigh the service element.
5. 5.Purpose: What did the buyer mainly want: the thing, or the work?

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กรณี

Bonebrake v. Cox, 499 F.2d 951 (8th Cir. 1974) (U.S. Court of Appeals, Eighth Circuit 1974)

สมมุติ

Carpet and a bad installation

A homeowner buys carpet from a flooring store for $4,000, with installation by the store’s crew for $600. The written order calls her the buyer and the store the seller. The carpet itself is perfect. The crew installs it badly, and it wrinkles within a month. The store refuses to fix it. The homeowner wants to know which body of law governs her claim.

Which law governs the homeowner’s claim against the store under each test?

เคล็ดลับการสอบ

On the MBE, use the predominant purpose test to choose the law. When goods predominate, the wrong answer applies the UCC only to the goods part. Do not use the gravamen test unless the question tells you to.

จุดสำคัญ

Predominant purpose decides whether Article 2 governs, by what the buyer mainly bought. Under § 2-102(b) and Com. Code § 2102(b), other law may still reach the non-goods parts. Gravamen follows what the complaint is about.

บันทึกสำคัญ

1. 1.A mixed contract combines goods with services or another element outside Article 2.
2. 2.Majority and MBE rule: the predominant purpose test decides whether Article 2 governs the transaction.
3. 3.Weigh the contract language, the price split, the supplier’s business, whether the goods are stock items, and the buyer’s purpose.
4. 4.Minority rule, listed in the California Content Map: the gravamen test asks whether the complaint concerns goods or services.
5. 5.On a California essay, state predominant purpose first; then add § 2102(b) and gravamen when the dispute concerns one component.
6. 6.Under the 2022 UCC text and Com. Code § 2102(b), other law may still govern the non-goods parts.

กรณี

Carlill v. Carbolic Smoke Ball Co., [1893] 1 QB 256 (Court of Appeal (England) 1893)

สมมุติ

The weekly gardener

For 2 years a gardener has mowed a homeowner’s lawn every Friday. At the end of each month the homeowner has paid $200 without comment. In June the gardener mows every Friday as usual. On July 1 the homeowner refuses to pay for June. She says there was never a contract because nothing was said.

Can the gardener recover $200 for June, and on what theory?

กรณี

Cotnam v. Wisdom, 104 S.W. 164 (Ark. 1907) (Supreme Court of Arkansas 1907)

เคล็ดลับการสอบ

If the offer says a reward, a prize, or “only by doing the act,” treat it as unilateral. Otherwise presume the offeree may accept by promise. The wrong answer says no contract formed because the offeree only promised.

จุดสำคัญ

An offer is presumed to invite acceptance by a promise or by performance. It is unilateral only when it clearly requires performance, as a reward does (Rest. § 32; UCC § 2-206).

บันทึกสำคัญ

1. 1.Bilateral: promise for a promise; both bound at acceptance. Unilateral: promise for complete performance.
2. 2.In doubt, the offeree may accept by promising or by performing (Rest. § 32; UCC § 2-206).
3. 3.Beginning performance of a unilateral offer makes it irrevocable, but payment waits for completion (Rest. § 45).
4. 4.Implied-in-fact contracts arise from conduct and are enforced like express contracts.
5. 5.Quasi-contract is restitution for unjust enrichment, not a contract; recovery is reasonable value.
6. 6.Void: no contract for anyone. Voidable: the protected party may avoid or ratify. Unenforceable: valid, but not enforced against the protected party.

องค์ประกอบ

The 3 formation questions

Ask them in this order. If any answer is no, there is no enforceable contract, and you move to promissory estoppel or quasi-contract.

1. 1.Mutual assent: Was there an offer, and was it accepted before it ended? (Chapters 2 and 3.)
2. 2.Consideration or a substitute: Was there a bargained-for exchange, or a substitute such as promissory estoppel (Restatement (Second) of Contracts § 90) or a UCC rule? (Chapter 4.)
3. 3.No defense: Is there a defense to formation or enforcement: capacity, statute of frauds, mistake, misrepresentation, duress, illegality, unconscionability? (Chapter 5.)

องค์ประกอบทั้งหมดที่จำเป็น

กรณี

Lucy v. Zehmer, 84 S.E.2d 516 (Va. 1954) (Supreme Court of Appeals of Virginia 1954)

องค์ประกอบ

The attack order, with what to write at each step

Use the same 8 headings in every essay. Skip a step only when the facts give it nothing.

1. 1.1 Applicable law: One sentence: goods or not; merchant or not. Predominant purpose for mixed contracts.
2. 2.2 Formation: Offer, acceptance (mirror image or § 2-207, mailbox rule), consideration or a substitute.
3. 3.3 Defenses: Statute of frauds first, then mistake, misrepresentation, duress, capacity, illegality, unconscionability.
4. 4.4 Terms: Parol evidence rule, interpretation, course of dealing and usage, implied terms, good faith.
5. 5.5 Performance and conditions: Express and constructive conditions; substantial performance (common law) or perfect tender (UCC); waiver.
6. 6.6 Breach and excuse: Material or minor breach; anticipatory repudiation and assurances; impossibility, impracticability, frustration.
7. 7.7 Remedies: Expectation, consequential and incidental damages; mitigation; reliance; restitution; UCC remedies; specific performance.
8. 8.8 Third parties: Intended beneficiaries and vesting; assignment of rights; delegation of duties; novation.

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IRAC

ปัญหา

The issue is whether the common law or UCC Article 2 governs the contract between [Buyer] and [Seller].

กฎ

UCC Article 2 governs contracts for the sale of goods, meaning things that are movable at the time of identification to the contract (UCC § 2-105). The common law governs contracts for services, land and intangibles. For a mixed contract, the predominant purpose decides whether Article 2 governs. A merchant is a person who deals in goods of the kind or holds itself out as having special skill (UCC § 2-104).

แอปพลิเคชัน

Here, the contract is for [describe the subject matter]. [It is a movable thing, so it is goods. / It is a service, so it is not goods.] [If mixed: the goods are $X of the $Y price, the document calls the parties buyer and seller, and the labor is incidental, so the predominant purpose is a sale of goods.] [Seller] [deals in goods of this kind / does not deal in goods of this kind], so [Seller] [is / is not] a merchant.

บทสรุป

Therefore, [UCC Article 2 / the common law] governs, and [Seller] [is / is not] a merchant.

สมมุติ

Software plus training

A hospital buys a patient-records program from a software company for a flat fee of $120,000. The written agreement grants a license to use the program on the hospital’s computers and promises 40 hours of on-site staff training. The company estimates the training at about $8,000 of the fee. The program is delivered and works. The company never delivers the training. The hospital wants to sue and asks which law applies to its claim.

Which body of law governs, and how would you write the applicable-law paragraph?

เคล็ดลับการสอบ

About one-fourth of MBE Contracts questions turn on UCC Articles 1 and 2. Read the first sentence of every question for a physical product or the word goods. If you find one, switch to Article 2 rules before you read the options.

จุดสำคัญ

Assent is judged by what a reasonable person would understand from words and conduct. Never argue what a party secretly meant; argue what the other party reasonably saw.

บันทึกสำคัญ

1. 1.Formation needs mutual assent (offer and acceptance), consideration or a substitute, and no defense.
2. 2.Assent is objective: outward words and conduct control, not secret intent (Lucy v. Zehmer).
3. 3.If formation fails, move to promissory estoppel or quasi-contract; do not stop the analysis.
4. 4.Write every Contracts answer in the same order: law, formation, defenses, terms, performance, breach and excuse, remedies, third parties.
5. 5.The applicable-law paragraph is a fixed template: rule, subject matter, predominant purpose, merchant status, conclusion.

ธรรมนูญCA

Cal. Civ. Code § 1550

Civ. Code § 1550 (essential elements of a contract)

It is essential to the existence of a contract that there should be: 1. Parties capable of contracting; 2. Their consent; 3. A lawful object; and, 4. A sufficient cause or consideration.

องค์ประกอบ

The 4 Civil Code elements and their general-law names

1. 1.Parties capable of contracting: Capacity. Everyone can contract except minors, persons of unsound mind and persons deprived of civil rights (Civ. Code § 1556; Cal. Fam. Code § 6701).
2. 2.Consent: Mutual assent. Consent must be free, mutual and communicated by each party to the other (Civ. Code § 1565).
3. 3.Lawful object: Legality. An agreement with an unlawful object is void; this is the illegality defense of general law.
4. 4.Sufficient cause or consideration: Consideration: a benefit to the promisor or prejudice to the promisee that induces the promise (Civ. Code § 1605); a writing presumes it (§ 1614).

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บันทึก

After July 2028: NextGen

In July 2028 California moves to the NextGen bar exam. Contracts is a foundational NextGen subject tested under general law and the UCC, so everything in this chapter carries over. The California Civil Code sections in this section would matter only for a separate California component, which is proposed for July 2029 and not yet approved.

เคล็ดลับการสอบ

When the call is silent, apply general law and the UCC; do not cite the Civil Code. When the call names California, keep the same analysis and add the section numbers. Use § 1550 for elements, § 1621 for implied contracts and Com. Code § 2101 and following for goods.

จุดสำคัญ

California mostly renames the general rules. Know 3 real differences: Com. Code § 2102(b) (hybrid transactions), Fam. Code § 6701 (some minors’ contracts are void) and Civ. Code § 1614 (a writing presumes consideration).

บันทึกสำคัญ

1. 1.Cal. Civ. Code § 1550: capable parties, consent, lawful object, sufficient consideration.
2. 2.Capacity (§ 1556), consent (§ 1565) and consideration (§ 1605) map onto the general-law elements and defenses.
3. 3.California enacted UCC Article 2 as Com. Code § 2101 and following; drop the hyphen from the UCC number.
4. 4.Implied-in-fact contracts are enforced in California (Civ. Code § 1621; Marvin; Foley).
5. 5.Cite California sections only when the call names California law; the analysis rarely changes.
6. 6.Real differences: Com. Code § 2102(b) on hybrid transactions, Fam. Code § 6701 on minors, Civ. Code § 1614 on consideration.

ฝึกซ้อม · MBE

ฝึกซ้อม · MBE

ฝึกซ้อม · MBE

ฝึกซ้อม · MBE

ฝึกซ้อม · MBE

จุดสำคัญ

Every Contracts answer starts the same way: which law, which parties are merchants, and then formation in order. Practice that opening until it takes 2 minutes.

บันทึกสำคัญ

Chapter summary

1. 1.First question in every Contracts problem: goods (UCC Article 2) or not (common law)? Second: merchant or not?
2. 2.Predominant purpose decides whether Article 2 governs a mixed contract; the California Content Map also lists the minority gravamen test.
3. 3.Bilateral: promise for promise. Unilateral: promise for performance; part performance makes it irrevocable.
4. 4.Implied-in-fact contracts are real contracts; quasi-contract is restitution for unjust enrichment, not a contract.
5. 5.Void binds nobody; voidable binds until the protected party avoids; unenforceable is valid but not enforced against the protected party.
6. 6.Formation is mutual assent plus consideration plus no defense, judged objectively; then follow the 8-step attack order.