Signing a contract in real life is often exciting.
It can signal all sorts of joyful occasions:
New home, new job, new client.
However, Contracts essay questions might not inspire a joyful emotion.
And the reality is:
You might not avoid a Contracts essay when the California Bar Examination rolls around.
Before we explain our quick tips to help you feel more confident on Contracts, here’s some background:
Contracts has shown up on the essay portion of the bar exam more than 40 times since 1986, featuring issues relating to formation (e.g., offer, acceptance, and consideration), breach, and damages tested most often.
And take note:
Contracts is prime fodder for cross-over essays. For obvious reasons, Contracts is most frequently “crossed” with remedies. But the bar examiners have also brought real property and professional responsibility into the mix.
If you want to boost your Contracts essay-composition confidence, there’s no substitute for practice. (We recommend you fully write out at least five Contracts essays under timed, closed-book conditions, and issue–spot several more). However, we help these quick tips serve you well.
Remember the following advice as you create Contracts outlines, continue your studying—and, finally, conquer this topic on the CA Bar Exam.
Could you use help with Contracts and more? Consider enrolling in our course, Mastering CA Bar Essays.
Pre-Formation v. Post-Formation (Determine the Focus)
While it’s possible that the bar examiners will throw an essay at you that requires a thorough discussion of both pre-formation and post-formation issues, a combo tends to be the exception—rather than the rule.
For the most part, essays focus on issues relating to either:
pre-formation (prime example: Al and Dr. Betty in July 2011) or
post-formation (prime example: Ben and Carl in July 2013)
OK, you say—but why is this important to know?
Glad you asked!
This way, you can determine the focus.
And knowing that pre-formation v. post-formation is often an either/or can help you decide how to spend your (very precious) time.
Do the facts indicate that Party A and Party B have entered a written contract but don’t provide any details about the communications that led to said contract?
If so, you can assume that the bar examiners are expecting you to focus on post-formation issues. A few examples:
- defenses to enforcement
As such, it simply does not make sense to pontificate on mutual assent and consideration. A simple statement, like the following, will suffice:
“A valid contract requires mutual assent and consideration. Here, Party A and Party B have entered into a valid written contract.”
Conversely, if the question doesn’t mention a valid contract, and the facts involve a lot of back and forth, you’re probably dealing with a pre-formation-focused essay.
Pass the (Contractual) Salt and Pepper
Like salt and pepper, certain issues just go together (more on this in a future post covering Torts essays on the CA Bar Exam).
You’ll see these perfect pairings in Contracts essay questions: Certain issues are natural duos.
If you address one, you should address the other(s). Let’s run through a few examples:
Make sure to also address impracticability and frustration of purpose.
Planning to write about unilateral mistake?
Don’t forget to write misrepresentation too.
And, regardless of the type of primary monetary damages at issue (e.g., reliance, expectation)…
…don’t forget to briefly mention consequential and incidental damages as well.
Promises, Promises (or Conditions, Conditions)
Some recent essays have required bar-takers to determine whether a contractual term was a promise or a condition (prime examples: Dirt and Builder in July 2016; Ben and Carl in July 2013).
You must tease this apart carefully.
Because the remainder of any analysis hinges on the answer.
If a condition does not occur, then the other party’s duty to perform will be excused.
In contrast, if a promise is not fulfilled, the other party may still be obligated to perform.
Technically, when you’re determining whether a term is a promise or condition, the parties’ intent controls.
That said, unless the essay uses obvious language (e.g., “on the condition that”), proceed as though the term is a condition to avoid short-stopping analysis.
Polish Your Performance on Contracts + Every Essay Topic
Ready to conquer Contracts essay questions when you take the Cal Bar?
In addition to our tips here and in other BarMD blog posts, you can take advantage of our array of tools + courses. Each one is created by bar experts—and designed to help you pass.
Every essay in our database (covers 30 years of past bar essays!) includes a selected answer and an issue checklist. If you need CA Bar essays, you’re in luck; we’ve launched those essays first. (We also have a CA Essays Course for you.)
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