Contracts Final Exam Attack Checklist
Final exam attack checklist for contract formation, performance, breach, remedies, and UCC Article 2 issues.
Pre-Exam Preparation
- Create a side-by-side comparison of common law vs. UCC Article 2 rules for formation, modification, statute of frauds, and parol evidence
- Memorize the consideration doctrine: bargained-for exchange, adequacy irrelevant, past consideration invalid, illusory promises unenforceable
- Outline the conditions framework: conditions precedent, concurrent, and subsequent, plus excuse of conditions (waiver, estoppel, prevention, substantial performance)
- Review all defenses to formation: capacity, duress, undue influence, misrepresentation, unconscionability, illegality, mistake (mutual vs. unilateral)
- Map out the remedies hierarchy: expectation damages, reliance damages, restitution, specific performance, and when each applies
- Review third-party issues: intended vs. incidental beneficiaries, assignment of rights, delegation of duties
Issue-Spotting Checklist
- Determine whether the UCC or common law governs — UCC applies to transactions in goods, common law applies to services, real estate, and everything else
- Check for a valid offer: was there a manifestation of present contractual intent with definite terms, or merely an invitation to negotiate?
- Identify acceptance issues: mirror image rule (common law) vs. UCC 2-207 battle of the forms; method and manner of acceptance
- Look for consideration problems: past consideration, pre-existing duty rule, illusory promises, and modifications (UCC allows without consideration)
- Spot Statute of Frauds issues: MYLEGS (marriage, year, land, executor, goods over $500, surety) — and check for part performance or promissory estoppel exceptions
- Check for parol evidence rule issues: is the writing fully or partially integrated, and does the extrinsic evidence contradict or supplement?
- Identify any conditions and whether they have been satisfied, excused, or breached
- Determine whether a breach is material or minor — and the consequences for each
- Look for impossibility, impracticability, or frustration of purpose defenses
- Identify the correct measure of damages: expectation (benefit of the bargain), reliance (out-of-pocket costs), or restitution (unjust enrichment prevented)
Common Essay Structure (IRAC)
- Issue: Identify the specific contract question (e.g., 'Whether a valid contract was formed between A and B for the sale of goods')
- Rule: State the governing rule with precision (e.g., 'Under UCC 2-206, an offer to buy goods may be accepted by any reasonable manner unless otherwise unambiguously indicated')
- Application: Walk through each element systematically — formation first, then defenses, then performance/breach, then remedies
- Defenses: After establishing a prima facie contract, always check for defenses to enforceability (statute of frauds, unconscionability, mistake, misrepresentation)
- Remedies: Calculate damages with specificity — state the formula (expectation = loss in value + incidental/consequential - costs avoided) and plug in the facts
- Conclusion: State whether a contract exists, whether it was breached, and the likely remedy
Key Rules to Memorize
- UCC applies to goods; common law applies to services and real estate — for mixed contracts, apply the predominant purpose test
- Consideration requires a bargained-for exchange — past consideration is not valid consideration
- Mirror image rule (common law): acceptance must match the offer exactly; any variation is a counteroffer
- UCC 2-207: a definite expression of acceptance operates as acceptance even with additional/different terms; between merchants, additional terms become part of the contract unless they materially alter it
- Statute of Frauds requires a writing signed by the party to be charged for contracts within its scope — but part performance and promissory estoppel can take a contract out of the statute
- Parol evidence rule: a fully integrated writing cannot be contradicted or supplemented by prior or contemporaneous agreements; a partially integrated writing can be supplemented but not contradicted
- Material breach excuses the non-breaching party's duty to perform; minor breach only gives rise to damages
- Expectation damages = loss in value + other loss (incidental/consequential) - cost avoided - loss avoided
- Specific performance is available when the subject matter is unique (land, unique goods) or money damages are inadequate
- Promissory estoppel (Restatement 2d Section 90): a promise that the promisor should reasonably expect to induce reliance, which does induce reliance, is enforceable to prevent injustice
- Anticipatory repudiation: an unequivocal statement that a party will not perform allows the non-breaching party to immediately sue for breach or await performance
- Unconscionability requires both procedural (unfair surprise, unequal bargaining power) and substantive (unreasonably one-sided terms) elements at the time of formation
Last-Minute Tips
- Always state whether UCC or common law applies before analyzing — this is usually worth points and determines which rules you use throughout
- When you see a modification issue, remember: common law requires new consideration, but UCC 2-209 allows modifications in good faith without consideration
- For mixed goods-and-services contracts, apply the predominant purpose test — if the transaction is predominantly for goods, UCC governs the entire contract
- Don't forget the duty to mitigate damages — the non-breaching party cannot recover for losses they could have reasonably avoided
- When calculating expectation damages, always show your math: lost profits + incidental/consequential damages - costs saved
Time Management
- Read the full fact pattern before writing — contracts questions often embed formation issues, performance issues, and remedies questions in a single hypo
- Address formation and enforceability first; if no valid contract exists, discuss promissory estoppel and quasi-contract as alternatives
- For UCC questions, spend time on the specific UCC provisions (2-207, 2-615, 2-302) rather than general principles — professors test UCC nuances heavily
- If the essay has multiple parties or transactions, create a quick timeline of events to track offers, acceptances, modifications, and breaches