Category: Legal Concepts

  • Common Contracts Law Questions on the Bar Exam: How contract formation defenses show up on the MBE and Essays

    Contract formation requires mutual assent: a valid offer, acceptance, and consideration. However, even where those elements appear on the surface, a contract may still be legally ineffective. A void contract has no legal effect and is treated as though it was never formed. A voidable contract is legally operative unless and until the injured party elects to rescind it. 

    Defenses to formation challenge whether a valid contract was ever created. 

    • Misrepresentation requires a material false statement, intent to induce reliance, and justifiable reliance causing damages. 
    • Fraudulent misrepresentation adds scienter — the defendant knew the statement was false. 
    • Mutual mistake renders a contract voidable where both parties share an erroneous assumption about a material term, provided the adversely affected party did not assume the risk. 
    • Unilateral mistake requires the additional showing that the non-mistaken party knew or should have known of the error, or that enforcement would be unconscionable.
    • Unconscionability is found when a contract is so oppressive or one-sided that it shocks the conscience. It is also a formation defense and courts decline to enforce the contract.
    • Duress and incapacity defenses follow a consistent pattern: physical duress renders a contract void; improper threat, undue influence, mental incapacity, and intoxication render it voidable.
    • Economic duress is narrowly construed. Mere financial hardship is insufficient. It applies only where a pre-existing contractual relationship exists, the opposing party threatens breach to extract new terms, and the threatened party has no reasonable means of avoidance.

    How these issues appear on the bar exam

    On the MBE, these concepts are tested through answer choices that turn on a single element. The correct answer almost always rests on one missing or defective element. For example, no consideration, a false pre-contractual statement, a shared mistaken assumption about a material fact. The distractor choices typically misidentify the defense category (e.g., selecting mutual mistake when only one party was mistaken) or misapply the void/voidable distinction to reach the incorrect remedy.

    On essays, contract formation questions often present multiple issues. A fact pattern may establish a contract, introduce facts suggesting a defect in formation, and then ask whether the contract is enforceable or what remedies are available. The well-organized answer addresses formation first, identifies the applicable defense, states whether the result is void or voidable, and then addresses remedies.

    When a fact pattern raises more than one potential defense, address each in turn and specify whether the result is void or voidable. The available remedy, whether rescission, restitution, or enforcement, follows directly from that.

    Master contract formation at BarTaker

    Accurate knowledge of black letter law is the foundation of every contracts analysis. BarTaker‘s quizzes and flashcards cover the full scope of formation rules and every major defense organized for fast retention and direct application to MBE questions and essay fact patterns.

  • Understanding the Rule Against Perpetuities (RAP)

    Whether one is studying for their property law exam in 1L or studying for the bar exam, the Rule Against Perpetuities (RAP) has frustrated many law students. The truth is that RAP it’s complex. Let us help to break it down for you for the bar exam.

    • The Rule: No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
    • Context: RAP was created by courts at common law to prevent landowners from controlling their estates from the grave for centuries. Prior to the creation of the RAP, a curmudgeon landowner could create elaborate conditions through a will causing contingent ownership based on uncertain events, effectively tying up land infinitely. RAP voids vague and uncertain transfers of interest and promotes certainty in land ownership.
    • Why RAP is hard: RAP requires a four-dimensional brain to calculate the creation of an interest, determining whose life is to be measured, and whether the interest has vested by the end of that life + 21 years. One must evaluate every possible scenario at the moment the interest is created to determine if it’s void or not.

    Breaking Down the Rule Against Perpetuities

    To break down RAP, let’s understand it in a simpler language.

    RAP prevents remote vesting of property interests by requiring that (1) any future contingent interest must vest no later than (2) 21 years after the death of (3) a measuring life (some life in being) which existed at the creation of the interest.

    • Step 1: Identify the future interest. RAP only applies to contingent remainders, executory interests, and vested remainders subject to open (class gifts). It does not apply to vested remainders, reversions, or possibilities of reverter.
      • Note: A remainder can go to either an ascertainable person (vested) or an unascertainable person (contingent).
    • Step 2: Find the measuring life. Look for a “life in being” at the time the interest was created, someone whose life or death affects when the interest will vest. This is often the grantor, a beneficiary, or someone named in the condition.
    • Step 3: Speculate death of the measuring life, and add 21 years. RAP does not require the interest to vest within someone’s lifetime + 21 years after death. It only requires certainty that either the interest will vest or fail within this period. If there is any possible scenario, no matter how remote, that the interest might fail to vest 21 years after the death of the measuring life then the interest is void from the start.
    • Apply the “what if” test ruthlessly. Courts assume absurd possibilities: a 60-year-old woman could have more children, a person could marry someone not yet born, etc. These hypotheticals often fail otherwise reasonable transfers of interest in land.
    • Consequences: When RAP is violated the offending language is deleted.

    Examples of RAP

    Compare (1) “To A for life, then to A’s children who reach age 18”, and (2) “To A for life, then to A’s children who reach age 25”.

    Step 1: Here, the future interest is a contingent remainder. We don’t know if A has children who would meet the condition precedent (reaching age 18 or 25) to get the estate. If A has at least one child then we have a vested remainder subject to open.

    Step 2: Here, A is the measuring life.

    Step 3:

    • In Scenario 1 (Age 18): The interest is valid. Let’s say A has a child one day before dying. 21 years after A dies, A’s child will have reached age 18. If the child dies before age 18, the interest fails but within the timeframe of RAP.
    • In Scenario 2 (Age 25): The interest is void. Let’s say A has a child one day before dying. RAP requires measuring life + 21 years. A’s child cannot turn 25 within 21 years of A’s death. Therefore, the condition violates RAP and the interest is void.

    Consequences: When RAP is violated the offending language is deleted. Here, in scenario 2, the grant will become, “To A for life”. A holds a life estate, and because the remainder fails, the grantor retains a reversion in fee simple absolute upon A’s death.

  • Real Covenants, Equitable Servitudes, and Implied Reciprocal Schemes

    Real covenants overlap with equitable servitudes and its related concept of implied reciprocal schemes, often causing a lot of confusion for bar exam takers.

    We created the tables below to help clarify rules around these concepts.

    REAL COVENANTS

    Definition: Real covenants are written promises that impose restrictions on the use of land and run with the land.

    Common law requirements for real covenants:

    Burdened LandBenefitted Land
    Writing
    – Between original parties    		Writing
    – Between original parties
    Intent 
    – To bind successors     		Intent 
    – To benefit successors 
    Touch & Concern
    – Burden the land
    – Restrict use or enjoyment of land    		Touch & Concern
    – Benefit the land
    – Increase use or enjoyment of land
    Vertical privity
    – Relationship between the previous and current owners    		Vertical privity
    – Relationship between the previous and current owners
    Horizontal privity
    – Relationship between the original parties of the burdened and benefited land
    Notice
    – Actual, inquiry, or record (constructive)
    Remedy: Legal DamagesRemedy: Legal Damages

    Modernly, real covenants have fewer requirements.

    • Burdened Land: Writing, Intent and Notice only.
      • Touch & Concern, and Privity (Horizontal and Vertical) are no longer required.
    • Benefited Land: Writing and Intent only.
      • Touch & Concern, and Privity are no longer required.

    EQUITABLE SERVITUDE

    Definition: Equitable servitudes are restrictions on how land may be used. Servitudes run with the land. Equitable servitudes were developed in the courts of equity. Remedies for breach are injunctions only.-

    IMPLIED RECIPROCAL SERVITUDE / SCHEME

    Definition: A common plan or development that creates an implied reciprocal servitude or scheme among multiple lots where each lot is bound by the restrictions and can enforce them against others, even if the restrictions are not stated in every deed.

    Equitable ServitudeImplied Reciprocal Scheme
    Writing requiredNo Writing Required
    – SOF does not apply
    Intent to bind successors Intent to bind/benefit successors
    (original owner’s common plan)
    Touch & Concern Land
    – Benefit dominant land
    – Burden servient land    		Touch & Concern Land
    – oral words
    – evidence, or
    – recorded notice
    Noticed RequiredNotice Required
    Privity Not RequiredPrivity Not equired

    Remedy: Injunction (Equity)

    Remedy: Injunction (Equity)

    Did you know that writing down answers from memory doubles retention compared to passive reading?

    Using our SmartCards, you can write down your answers from memory and test yourself in real time on real covenants, equitable servitudes and other legal rules tested on the bar. No more looking at flashcards and thinking, “I knew that”. Don’t leave memorization to chance. Try our free content at BarTaker.com to see if it fits your learning style.

  • Private Nuisance in Tort Law

    Nuisance is a frequently tested topic on the MBE and essay portions of the bar exam. Nuisance can be public or private. This blog post covers private nuisance.

    Private Nuisance

    Definition: Private nuisance is a substantial and unreasonable interference with another person’s use and enjoyment of their land.

    Substantial interference is something that is annoying, offensive, or inconvenient to an average person. Unreasonable interference is when the harm caused by the activity is greater than the benefit from the activity. For private nuisance claims, the plaintiff must have a possessory interest in the land. Ownership of land is not required.

    Note that private nuisance is analyzed using an objective standard.

    Consider an example: A landlord rents their home to a tenant. The home across the street plays extremely loud music at night. The tenant is deaf and cannot hear the music. However, on one occasion the landlord is visiting the tenant and hears the loud music. The landlord wants to bring an injunction to stop the nuisance. The homeowner argues that since the tenant is deaf and the landlord does not live there, the music is not a nuisance to the landowner. Therefore, they should be allowed to play it at the desired volume.

    Here, the landlord would prevail. Subjectively speaking, the tenant is not experiencing the nuisance from the loud music because they are deaf. However, private nuisance claims are evaluated using an objective standard. Loud music at night is annoying, offensive and inconvenient to an average person. It is unreasonable interference in the use and enjoyment of one’s land. The landlord has a possessory interest in land as owner of the property.

    Remedies for private nuisance included damages and injunctive relief. Here, the landlord can obtain an injunction.

  • A Guide to Subject Matter Jurisdiction (SMJ) and Personal Jurisdiction (PJ) for the Bar Exam

    Jurisdiction is a core concept for Civil Procedure on the bar exam. The two frequently tested concepts to know are: Subject Matter Jurisdiction and Personal Jurisdiction.

    The Fundamental Distinction: What vs. Who

    • Subject Matter Jurisdiction (SMJ) is about whether the court havs proper jurisdiction over the subject matter of the case.
    • Personal Jurisdiction (PJ) is about whether the court has proper jurisdiction over the parties to the action, especially the defendant.

    Constitutional Limits

    • Subject Matter Jurisdiction: Federal courts have limited jurisdiction under the constitution. They can only hear cases that clearly meet constitutional requirements.
    • Personal Jurisdiction: Before a forum state can exercise jurisdiction over non-resident individuals, it must meet the constitutional requirement of sufficient minimum contacts. This protects individuals from being hauled into courts where they have no meaningful connection.

    Two Ways to Subject Matter Jurisdiction

    A federal court can only exercise SMJ if the case falls into one of two categories:

    1. Federal Question: If the plaintiff’s claim “arises under” any one of the below federal law, the federal court has SMJ.

    • US Constitution
    • Federal Statutes
    • Executive Actions
    • Treaties

    2. Diversity of Citizenship: The case must meet both of the below two requirements:

    • Complete Diversity: No plaintiff can be from the same state as any defendant,
      AND,
    • Amount in Controversy: The amount of damages must exceed $75,000, not including interests or costs.

    Personal Jurisdiction: State Residents vs. Non-Residents

    For State Residents: Jurisdiction can be established through any one of the three traditional bases:

    1. Consent (Express or Implied), OR
    2. Presence and Service: Defendant present and served within the forum state, OR
    3. Domicile: Defendant is domiciled in the forum state

    For Non-Residents: The Two-Step Analysis

    1. Long-Arm Statute: The state must have a law allowing jurisdiction over the non-resident.
    2. Sufficient Minimum Contacts: This is a constitutional test. The defendant must have sufficient minimum contact with the forum state such that asserting PJ over him does not offend traditional notions of fair play and substantial justice. This constitutional test includes four key elements:
      • Purposeful Availment: The defendant deliberately availed benefits and protections of forum state
      • Foreseeability: It was reasonably foreseeable that the defendant’s activities in the forum state could subject the defendant to being haled into court there.
      • Relatedness of Claim: The claim arises from the defendant’s conduct or contact with the forum state.
        • General Jurisdiction: Systematic and continuous contacts with the forum state such that the defendant is essentially “at home” there.
        • Specific Jurisdiction: The claim arises from the defendant’s specific activity in the forum state.
      • Fairness Factors Even if the above elements are met, the court must consider whether exercising jurisdiction is fair and does not offend “traditional notions of fair play and substantial justice”.
        • Convenience of forum to parties
        • State’s interest in adjudicating the dispute
        • Other interests including interstate efficiency and plaintiff’s interest in the forum.

    Conclusion

    • SMJ focuses on the case; PJ focuses on the parties.
    • Both have constitutional limits protecting different interests.
    • SMJ requires either federal question OR diversity + amount to exceed 75K
    • PJ uses traditional bases for state residents. For non-residents, PJ requires long-arm statute + “sufficient minimum contacts” test.

  • Should Bar Exam takers apply the Lemon test or Historical Practices and Understandings standard for Freedom of Religion’s Establishment Clause?

    The First Amendment’s Establishment Clause prohibits the government from making any law that respects the establishment of religion. The Establishment Clause applies to the states through the Fourteenth Amendment.

    In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court created a three-part analysis to determine whether a law violated the Establishment Clause.

    Under the Lemon test, the Court held that for a government action to be constitutional:

    1. It must have a secular purpose
    2. Its principal or primary effect must be one that neither advances nor inhibits religion, and
    3. It must not foster an excessive government entanglement with religion.

    The Historical Practices and Understandings Test

    In Kennedy v. Bremerton School District, 597 U.S. 507 (2022), the Supreme Court stated it had “long ago abandoned” the Lemon test which had “invited chaos” in lower courts and led to “differing results” in materially identical cases. Id. The Court said that in place of Lemon and the endorsement test, it has instructed lower courts to interpret the Establishment Clause by reference to historical practices and understandings based on the founders’ understanding. Id. The Court also said that the Establishment Clause analysis should focus on “original meaning and history”. Id. However, the Court did not expand on the application of this analysis, nor provide a substitute test that could be easily applicable to a factual situation.

    In Kennedy , the thrust of the Court’s focus lied in evaluating whether there was any kind of coercion in joining a religious activity.

    Whereas the Lemon test focused on the secular purpose/effect of a law, the new test focuses on the historical acceptance of a practice.

    Bar Exam Implications

    Generally, Establishment Clause would be more relevant for essay questions that require showcasing one’s knowledge of the rule and the application of it. On bar exam essay questions, explicitly acknowledge the decision in Kennedy v. Bremerton . Explain that the Court has moved away from the Lemon test and towards an analysis of “historical practices and understanding” which has a focus on the founders’ understanding, and on original meaning and history. When you are analyzing the fact pattern, evaluate whether there is any kind of coercion in joining a religious activity, or refraining from it. Finally, consider applying the Lemon test to show your understanding of it, and the doctrinal shift and philosophical differences between the two approaches. In conclusion, prioritize explaining the new standard developed by the Court in Kennedy, but acknowledge the older Lemon test.

    Our Constitutional Law flashcards offer a concise summary of the doctrinal shift and the new three-part Historical Practices Test.

  • Tenancy-in-common on the Bar Exam

    Tenancy-in-common is a frequently tested essay topic on the bar exam.

    When studying this topic, focus on four key issues: 

    • how to create a tenancy-in-common,
    • different ways to destroy a tenancy-in-common (whether intentionally or accidentally),
    • rights and duties of co-tenants, and, 
    • consequences of breaching a tenancy-in-common.

    Definition

    Tenancy-in-common is a form of ownership where two or more individuals hold undivided interest with equal right to possession in the same property.

    Key Characteristics

    Tenancy-in-common has several distinguishing features that set it apart from other forms of ownership. 

    First, there is no right of survivorship – each co-tenant’s interest passes through a will or intestacy to their beneficiary upon death, not to the other co-tenant(s). 

    Second, co-tenants enjoy the right to freely transfer interest, meaning each co-tenant can convey, sell, devise in will, or gift their interest without restriction. 

    Third, non-equal shares of interest in property are permissible allowing co-tenants to hold different percentages of ownership. 

    Fourth, all co-tenants have equal right to occupy or possess the land, even if their share of interest in the property is less than half.

    Under modern law, when there is more than one owner of property, tenancy in common is presumed by default. When two or more owners try to create a joint tenancy but any one of the four unities are not present, tenancy-in-common results.

    Common issues that arise in Tenancy-in-Common

    When preparing for the MBE and Essays, these areas of conflict are commonly tested:

    1. Possession issues: Ouster and constructive eviction scenarios, as well as splitting rent from subtenants.
    2. Accounting: Each co-tenant’s right of reimbursement for repairs, improvements, and mortgage payments.
    3. Partition: Analyzing voluntary and judicial partition situations.

    A suggested essay for practice on this topic is the July 2015 California Bar Exam which tests creation, conveyance, accounting and contribution issues arising in a tenancy-in-common.

  • Contract Formation: Offers under the UCC vs. Common Law

    Contract formation occurs when parties move from preliminary negotiations to a mutually agreed-upon set of obligations. Contract formation requires an offer, acceptance, and consideration. The Uniform Commercial Code (UCC) and common law approach contract offers with some nuances. On the bar exam, identifying an offer is essential since it can impact whether there is a contract formation and available remedies. Additionally, if the question involves remedies, it may influence the correct answer.

    Offer: 

    An offer is a manifestation of willingness to enter into a bargain. 

    First, the person making the offer (the offeror) must demonstrate intent, or present willingness, to enter into a contract. However, not every communication qualifies as an offer. Courts analyze offers using an objective, reasonable person standard.  Advertisements, preliminary negotiations, solicitation bids, catalogs, and auction bids are generally not considered offers because they either lack a specific offeree or fail to demonstrate present willingness to enter into a contract. Instead, these are considered invitations for an offer.

    Second, an offer must contain definite and certain terms. These include ascertainable quantity, time (which courts may supply if reasonable), identity of the parties, price (which is required for property transactions but may be determined by courts in other cases), and subject matter, which must be clear enough for courts to determine the content of the bargain. A common acronym is QTIPS.

    Third, an offer must be communicated to the offeree. The offeree must have knowledge of the offer before acceptance can occur.

    UCC Offer: A Broader Perspective

    The UCC, which governs contracts for the sale of goods, takes a broader, more flexible approach to offers. See UCC § 2-206(1)(a): an offer to make a contract shall be construed as inviting acceptance in any manner and by any medium reasonable in the circumstances.

    Thus, under the UCC’s broad interpretation, an offer can be made in any reasonable manner and medium, unless the offeror explicitly states otherwise. The UCC is more concerned with facilitating a contract and upholding the parties’ intentions, even if some terms are left open. For instance, the UCC only requires quantity and subject matter to be definite, while the other terms—time, identity of parties, and price—can be supplied by the courts based on what is reasonable at the time of delivery. (only Q & S out of QTIPS) 

    Note: contracts involving the sale of real property always require the parties to state the price. That is because property is unique and courts do not supplement parties’ intentions on the value of property. UCC does not govern real property contracts. They are governed by the common law.

    Common Law Offer: Stricter Requirements

    Common law, which governs contracts for services and real estate, adheres to a stricter rule for offers. This stricter approach reflects the common law’s emphasis on certainty and preventing courts from having to “create” a contract where the parties’ intentions are unclear. 

    Examples

    • UCC: A merchant offers to sell “a certain quantity” of widgets. Even if the price isn’t stated, a court may imply a reasonable price based on market value.
    • Common Law: A homeowner offers to sell their house. The offer must include the price to be valid.

    Conclusion

    Understanding the differences between UCC and common law contract formation is crucial for issue spotting on the bar exam.

    To learn more about offers, take our quiz on “Contract Formation“.