You first have to figure out if the contract is governed by common law or the UCC.
Under common law, new consideration is required to modify an existing contract. The preexisting duty rule bars modification without new and adequate consideration.
Under the UCC (goods) no considersation is required to modify a contract as long as the parties to the contract are acting in good faith.
Tuesday, July 15, 2008
Bar Exam Tip: Contract Mistake
My mistake or yours???
A mistake is either unilateral or mutual. A mutual mistake will usually prevent the formation of a contract, but a unilateral mistake will not unless the party not making the mistake knew or reasonably should have known that a mistake was made.
A clerical mistake, like a much lower price being inserted, will still be upheld unless the party not making the mistake knew or had reason to know that the bid was ridiculously low.
A mistake is either unilateral or mutual. A mutual mistake will usually prevent the formation of a contract, but a unilateral mistake will not unless the party not making the mistake knew or reasonably should have known that a mistake was made.
A clerical mistake, like a much lower price being inserted, will still be upheld unless the party not making the mistake knew or had reason to know that the bid was ridiculously low.
Bar Exam Tip: Preemption by Federal Law
To preempt state law, Congress must demonstrate an intent to do so--overlapping of legislative provisions, issues, subject matter, purpose of the legislation itself, etc.
But if the purpose for enacting a federal law is different from the purpose of enacting a state law, the state law will prevail.
But if the purpose for enacting a federal law is different from the purpose of enacting a state law, the state law will prevail.
Bar Exam Tip: Presidential Authority
Presidential authority is not unlimited.
The presidental pardoning powers only apply to federal crimes, so president cannot pardon a state official, state inmate, or a federal official who has already been impeached.
The president as commander in chief can raise and support the armed forces, but Congress controls the military rules and budget.
The presidental pardoning powers only apply to federal crimes, so president cannot pardon a state official, state inmate, or a federal official who has already been impeached.
The president as commander in chief can raise and support the armed forces, but Congress controls the military rules and budget.
Bar Exam Tip: Takings Clause
To condemn/take property through the exercise of eminent domain
1) the property must be taken for a public purpose, and
2) the land owner must be given fair compensation (fair market value)
A temporary moratorium for an environmental purpose does not equal a taking.
1) the property must be taken for a public purpose, and
2) the land owner must be given fair compensation (fair market value)
A temporary moratorium for an environmental purpose does not equal a taking.
Bar Exam Tip: Standing
In order to have standing for a suit, three requirements must be met:
1) Plaintiff must have suffered an injury in fact or a threat of immediate injury (broad category of injury).
2) The plaintiff must allege that the defendant is the cause of the plaintiff's injury
3) Redressability must be present, that there is a likelihood that a favorable decision for the plaintiff will remedy the plaintiff's injury.
1) Plaintiff must have suffered an injury in fact or a threat of immediate injury (broad category of injury).
2) The plaintiff must allege that the defendant is the cause of the plaintiff's injury
3) Redressability must be present, that there is a likelihood that a favorable decision for the plaintiff will remedy the plaintiff's injury.
Bar Exam Tip: RAMPS
In order for a suit to be tried, the justiciability doctrines must be overcome. RAMPS is a good mnenomic for this.
R=ripeness. A plaintiff's claim will be denied for the claim is premature and has not yet caused harm to the plaintiff.
A=no advisory opinions can be issued by the federal courts.
M=mootness.
P=no political questions.
S=standing.
R=ripeness. A plaintiff's claim will be denied for the claim is premature and has not yet caused harm to the plaintiff.
A=no advisory opinions can be issued by the federal courts.
M=mootness.
P=no political questions.
S=standing.
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