Bar Exam Tip: Aiding and Abetting

An individual aids and abets who counsels, commands or encourages another in the commission of a crime and is present during the crime. Minors can be guilty of aiding and abetting, but an individual cannot be guilty of aiding and abetting if they are a member of the class that is protected in the statute.

Bar Exam Tip: FOB

A seller bears the risk of loss until the goods reach the city (FOB City) and the seller makes reasonable arrangements to get the goods to the buyer. After this is met by the seller, the risk shifts to the buyer. If something happens to the goods enroute, the buyer can recover the amount necessary to replace the destroyed goods over the contract price.

Bar Exam Tip: Non Conforming Goods

If a buyer rejects goods because of defects in the shipment (non-conforming goods) the seller has an opportunity to cure the defects and send conforming goods up until the day of contract performance. But if the seller reasonably believed the shipment conformed to terms of the contract, even though they did not, the seller will be given a commercially reasonable time to cure the defect.

A shipment of non-conforming goods in addition to an accommodation notice is a counteroffer, which the buyer can either accept or reject.

Without the simultaneous accommodation notice, the seller is liable for breach of contract by sending non-conforming goods.

Bar Exam Tip: Volume Sellers

Say I go buy a SeaDoo and then decide I don't want it?

I may have to pay Mr. SeaDoo dealer some damages. The measure of damages for a contract with a volume seller of goods is the difference between the contract price and the wholesale price. Because if I return it, he will be out a sale. He could have made two sales if I hadn't returned mine, and then he had to resell it to someone else.

If I put a down payment on the SeaDoo, the dealer could get the difference between the measure of damages and the downpayment.

Bar Exam Tip: Commercial Impracticability

Commercial Impracticability occurs under 3 conditions:

1) the impracticality is attributed to an unforeseen problem that existed at the time the contract wa executed.

2) the risk of the unforeseen problem was not assumed by the defaulting party

3) undue hardship will occur if performance is not excused.

Bar Exam Tip: Anticipatory Breach

Just because you express doubt as to your ability to perform under a contract doesn't amount to anticipatory breach. You much make a clear and definite statement as to this effect and it has to be in writing.

The non breaching party can file a lawsuit immediately, make alternate plans, or both.

Something I see on practice questions a lot:

When a contractor fails to perform under the contract, and the other party has to bring in another contractor to finish the project, the non breaching party can recover the amount over the contract price that it cost to complete the building.

Bar Exam Tip: Accord and Satisfaction

Have you ever heard of accord and satisfaction and didn't know what it meant? I didn't until recently.

An accord is a substituted new or different obligation in place of the original obligation. It suspends the obligation under the original contract until the obligation under the accord is fulfilled (satisfaction.)

But if the obligation in the accord is not fulfilled, the non breaching party can seek a remedy under either the original contract or the accord.