Contracts
Contracts
The NextGen bar exam tests formation, consideration, defenses, interpretation, performance, breach, remedies, and UCC Article 2. Questions often combine common-law rules with sale-of-goods rules, so classify the contract before choosing the doctrine.
Core rules
- Offer: manifestation of present intent and definite terms; acceptance: mirror image at common law; UCC 2-207 governs additional or different terms.
- Consideration: bargained-for exchange; promissory estoppel can enforce a promise without consideration; moral obligation generally is insufficient.
- Defenses: statute of frauds, fraud, duress, unconscionability, and incapacity.
- Performance: substantial performance at common law; perfect tender under the UCC; cure, rejection, and revocation.
- Remedies: expectation, reliance, and restitution; consequential damages; liquidated damages must be reasonable.
Worked example
Buyer sends a purchase order for 500 widgets at $10 each. Seller responds: 'We accept, but all disputes must be arbitrated.' Under UCC 2-207, the additional term is a proposal. Between merchants it becomes part of the contract unless it materially alters the deal, is objected to, or the offer expressly limits acceptance. Arbitration may materially alter the agreement, so it likely does not become part of the contract. A contract for 500 widgets at $10 exists.
Traps
Do not apply the mirror-image rule to a UCC sale of goods. The statute of frauds requires a writing for certain contracts, but not every contract. Distinguish material breach from minor breach. Expectation damages aim to put the plaintiff in the position of performance, not to punish.