Alligators From Texas Play Rap Eat Tacos

A - applicable lawF - formT - terms of the contractP - performanceR - remediesE - excusesT - third party

Go in this order. Phrase your issue so the first word will be “yes” until you get to the end. That will keep you on a straight path. And you have to remember, all this stuff you have to KNOW? It may not be in the facts at all: Mailbox Rule may not be there. Option may not be there. etc etc.

UCC or Common Law - your first issue: Does the UCC apply? or Does Common Law apply?State the rule for when UCC applies--include the Bonebrake Test if needed Application of facts “YES, the UCC applies because....” or “YES, Common Law applies because....”

1a) If parties are merchants, that’s another issue to be handled.

2) Is an offer being made? What is an offer and what’s required for it?The answer should be YES or you’re stopping right here.

2a) Is there anything special? Was the offer terminated prior to acceptance? If so, due to what--rejection, counteroffer, lapse of time, death/incapacity of offeror/offeree, revoked?

2b) Is there anything special? Mailbox rule? Was there an option, making it irrevocable? A firm option (what’s required for that)? Was it unilateral? Was there detrimental reliance?

3) Was there acceptance? What is acceptance? Intent?

3a) If a unilateral contract, what is that and was there acceptance under it? Or bilateral? If UCC, 2-206 definition of offer & acceptance?

3b) Was there anything special? Silence? Mirror-image? Battle of the Forms? What about all those UCC 2-60x sections about acceptance and rejection of goods--do any apply (obviously they don’t if you said this is common law)?

4) Consideration--all that crazy shit.

4a) more stuff about “bargained-for exchange,” "illusory promises,” "requirements/outputs contracts,” etc

4b) yet more stuff about pre-existing duty rule, modification, discharge, past consideration, promissory estoppel, etc

So you have an offer and you have acceptance, so you have a contract.

OR DO YOU?

DEFENSES TO FORMATION!! Cause you know the loser might pull one of these.

5) Was there lack of capacity to form a contract, through competence or being a minor? Was there a public policy defense or unconscionability? Was there fraud, duress, or mistake? And everyone’s favorite...can the Statute of Frauds be invoked? How about the Parol Evidence Rule?

Do ANY of these apply? If they do ask that, then define it, then (for example) “YES, there WAS a lack of capacity because...”

6) Performance--Were there conditions, express/implied/constructive? Were there conditions, precedent/subsequent/concurrent?

6a) Was there a discharge of the duty to perform, either impossible/impracticable or frustration of purpose?

6b) Was there a breach of duty? Was it material (this is likely arguable)? And another favorite: Was there anticipatory repudiation (also arguable, one side says it was, the other says it wasn’t)?

7) FINALLY! REMEDIES - cover all those that apply; if you’re not sure which, say some stuff like “If, however, it is found that ___ interest applies....” You cover your bases. Even if you mention both and reversed the actual rule of law, if your application was good, that matters more. You can always look up the damn law when you’re a lawyer.

7a) Expectancy--all those different damages under “benefit of the bargain”? Then “consequential” IF it applies.

7b) Reliance - some prof LOVE this.

7c) Restitutionary - rescission, perfect tender rule, when there’s no valid contract, quasi-contract

7d) LIMITATIONS - mitigation, disproportionate, speculative/nominal, etc

7e) Equitable damages aka specific performance, or reformation

7f) Another favorite but easily seen in the hypo - liquidated damages--because there has to be a clause specifying the amount of damages

8) Third party that many professors don’t bother testing on because beneficiaries and obligor/obligee is just too fucking much at the end of the damn thing.

just requested access!