Introduction
Well, as I prepare for the Baby Bar
I've been listening to tapes from P-M-B-R.
I'd thought Contracts was hard, but that's really not the case;
Cuz theres just 6 issues
and Dan Fessler puts them in their place!
The first of these Issues, from the list of six,
Is whether an Agreement really does exist;
If agreement's there, then discern this fact:
Does it form that binding legal thing we call Contract?
Next you ask: Do the terms, or the subsequent acts
Of the parties to the legal thing you've termed "Contract"
Impose any duties or confer any rights
To non-traders? Do they alter any others' plights?
Then see if obligations of performance have matured;
If so, were they excused or have they endured?
"Was performance tendered?" is the last issue to seize;
If not, Breach of Contract's what you've got...
...so on to remedies!
Now lets detail all these "Issue Concepts" one by one,
So that by the time our little song is done,
You will know the Law of Contracts
with such wondrous expertise
That you'll ace that Little Baby Bar with greatest of ease!
Detailed Analysis
Regarding an Agreement, is an Offer tendered,
Is Acceptance to that Offer, without question, rendered?
Would a reasonable person's objective test
Find assent to "Offer and Accept" is clearly manifest?
Then, as to Contract, make this determination:
Is there mutual valid true consideration?
Is there benefit-slash-detriment ("the glue that binds")
On both sides that obligates the meeting of he minds?
Next, examine the facts and see if they might present
Any legal defenses that would tend to prevent
The formation of the Contract, or preclude ability
To enforce its terms? If not, go on to Issue Three!
Does the Contract affect any non-traders plights?
Are Delegates of Duties, or Assignees of Rights,
Or Third Party Beneficiaries brought into the fray?
If so make a note of who's involved,
and why, and in what way!
Now the Fourth thing to decide, if this far you have endured:
Have the obligations of the Contract's parties matured?
Are there duties in the Contract, which if not performed by each
Party, would then place their Contract at peril of a Breach?
To digress a bit, this brings us to the need
To fix a time and order for completion of each deed
That the parties must include in performance renditions.
To accomplish this, we must employ:
"The Law of Conditions".
Now, Express Conditions are clearly defined,
While Implied ones may derive from Law or Mind;
So, Implied-in-Fact means of logical import,
And Implied-at-Law's constructive and a last resort.
The other thing about Conditions that must be known
Is: They always modify a promise, never stand alone!
And depending on their timing as to liability
They're concurrent, precedent, or subsequent (rarely)!
Next ask, "Did the traders have any excuse to not perform
In the proper order and on time, per "Contract norm?"
Is it now Impossible? Impractical commercially?
Or has Purpose been Frustrated (no longer utility)?
If obligations have matured and excused they are not,
But performance, it is lacking...
then Breach is what you've got!
"Present and material," "Antic'patory repudiation,"
Or a "Volunt'ry disablement" will get you reparation.
Reimbursement, restitution (backward looking remedy),
Or if parties can't be made whole, they can sue in equity,
A specific performance or injunctive decree,
Or declaratory judgment will "suit" them to a tee!
So with Contracts cases that are on an essay test,
Look for one of these six issues,
then let IRAC do the rest!
Once you have the Issue all the rest is easy as can be:
State the Rule,
Apply it to the facts,
Conclude,
and you're "home free"!