Bar Made Easy Essay Critique
John,
Thank you for the submission of your answer to the October 2012 Baby Bar contract
exam of Betty v Sam. I included my comments on your answer to help improve your
performance on future exams.
You made common mistakes that most law students make. The good news is these
mistakes can easily be corrected only if you recognize what they are. With practice, and
incorporation of my suggestions, you will continue to improve.
Betty v Sam
Contracts – Answer
#1
PRELIMINARY NEGOTIATIONS Good
Preliminary negotiations do not rise to an actual offer with definite and certain terms or
manifest into a bargain. While this is a correct statement, what is the element you want to
prove or disprove in your analysis? How about “an invitation to deal.”
Here, Sam told Betty that he would revise the purchase agreement accordingly making
this an inquiry into a possible future bargain.
When writing analysis, your job is to address each element of your rule statement. You
did include “bargain” in your analysis taken from your rule statement but where is “do
not rise to an actual offer with definite and certain terms?”
You correctly raised the appropriate facts and tied them into the element of inquiry into a
possible future bargain but where is the word “inquiry” in your rule statement? Whatever
your rule is, be sure the elements of your rule are proven or disproven back in your
analysis.
Instead of beginning your analysis with “Here” consider starting with a connecting word
of since, because, etc. Then raise the facts from the essay that either prove or disprove
the element and then end your sentence with the actual element. The element should be
coming from your rule statement. The formula for good writing is Connecting word plus
facts plus element.
With only one element in your rule statement, there should be at least one sentence of
analysis. If there are two elements, then at least two sentence of analysis should be
written with each sentence addressing one of the elements. This makes for great analysis.
There was a preliminary negotiation. Nice conclusion.
Take a look at the following sample issue and analysis for Preliminary Negotiation.
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Preliminary Negotiation
There is an invitation to deal. Notice how concise the rule statement is.
Sam decided to sell his interior design business in Town to Betty. While reviewing a
purchase agreement drafted by Sam, Betty insisted on a covenant by Sam not to compete
with her in the interior design business in Town for a period of two years. In response,
Sam drafted the following proposed language on the last page of the purchase agreement:
“Sam hereby agrees that he will not perform interior design services in Town for period
of two years ties.” Betty said: “That’s fine. I don’t want to have to compete with your
former clients in Town.” When Sam told Betty that he would revise the purchase
agreement accordingly, between Sam and Betty there was an invitation to deal.
There was a preliminary negotiation. The conclusion should also be concise.
Preliminary Negotiation is the first issue being discussed in your answer. The first two
paragraphs are filled with relevant facts so remember to be generous with the facts that
relate to the element. The last sentence of the analyses begins with the connecting word
“When,” and is then followed with key facts from the essay. At the end of this sentence
is “an invitation to deal,” which is the element of the issue.
As a general rule, assume your grader has NEVER read the exam. Can the grader get a
picture of the essay just from reading your answer? If the answer is no, then this means
you did not include enough facts in your answer. Set a goal to use 90% of the exam
facts. Facts are present to either raise new issues or to be used in the analysis of another
issue that was already identified.
CONTRACT FORMATION
A contract is an agreement to pursue future action that reasonable parties would view as
legally binding and allowing the court to provide a remedy. In order to have a valid
contract, there must be an offer, acceptance, consideration and no defense to formation.
Unless you have been asked to include this issue in your answer, it is not necessary to do
so. Time is of the essence when taking exams so consider only including issues and
analysis that will earn you points.
While the sentence is a correct statement, you only earn points for identifying the issues
the facts are testing and then by proving or disproving each of the issue’s elements with
facts from the exam. You did not prove or disprove anything except for raising issues
that should be fully analyzed in your answer. Therefore, no points have been earned for
this discussion.
OFFER
An offer is an objective manifestation of a present intent to contract with the
communication of definite and certain terms. Very good.
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Sam made an *offer when he sent Betty the original and one copy of the purchase
agreement. Betty signing the original offer showing it was communicated.
* When you introduce an issue as a headnote, that issue should never appear in the
analysis and should only reappear in the conclusion. To raise it earlier in the analysis
will make your writing conclusionary. In reading the beginning of your sentence “Sam
made an offer.” If you stop right there, can you see that you made a conclusion before
ever proving or disproving any of the elements in your rule statement?
It also appears that you only addressed one element in your analysis. You need to
address all of the elements in order to receive full credit. Consider breaking apart the rule
statement into separate elements so that each element can then be proven or disproven
with the facts from the exam? Three elements would mean you should have three
separate sentences with each sentence addressing one of the elements of:
objective manifestation of a present intent to contract
-
communication
-
definite and certain terms
With these elements, your analysis could be written as follows:
(Connecting word) When the following day Sam sent Betty the original and one copy of
the purchase agreement(+ facts), there was an outward manifestation of present
contractual intent (+ element).
Because the sale of one interior design business was the quantity, reasonableness was the
time, Betty and Sam were the identity of the parties, there was an agreed upon purchase
price and the sale of Sam’s interior design business in Town was the subject matter, the
terms were definite and certain.
By Betty signing the original purchase agreement, it was communicated to the offeree.
When Sam sent Betty the original and one copy of the purchase agreement and
signing the original offer, there was communication.
Betty
ACCEPTANCE
Acceptance under the Common law must be an unequivocal assent to the terms of the
offer.
Because Betty signed the original agreement and returned it to Sam along with the
payment of the purchase price there was unequivocal assent to the terms of the offer.
There was acceptance. You used great facts, ended your analysis with the element from
your rule statement and your conclusion was brief! Great job.
With underlining, you can do it but I find it to be time consuming and you run the risk of
over underlining in your answer. Underlining does grab the attention of the grader but
too much underlining becomes very distractive.
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