Welcome to the Deep Dive for all your future legal eagles out
there. We know you're deep in the
trenches right now grappling with just mountains of
information for the bar exam. It's it's a real marathon.
It definitely is. But today, we're here to cut
through some of that noise. We want to deliver the essential
Nuggets you need to really master 3 foundational and, let's
be honest, heavily tested subjects, business associations,
advance contracts, and UCC sales and Civil Procedure.
That's absolutely the plan. Think of this deep dive as your
direct route to understanding the really critical nuances in
these areas. Our mission today is to clarify
those key distinctions that always seem to pop up, demystify
some complex rules, and frankly, equip you with the strategic
mindset you need to nail those MBS and MB ES.
Yeah, we want to turn those moments of confusion into
genuine. Aha moments give you that edge.
Exactly. A focused high yield study
session right here. And to make sure this really
sticks, we're pulling insides directly from your core bar.
Re materials, we're looking at Lecture 7 on advanced contracts
and UCC sales, Lecture 8 on business associations, and
Lecture 9 covering Civil Procedure fundamentals.
Right. But we're not just sticking to
the lectures. We've also woven in insights
from targeted Mee analysis, key Federal Rules of Civil
Procedure, and some crucial distinctions from sources like
accounting for partnerships and goat bar prep on specific points
like UCC remedies and partnership law.
The goal here is really to connect all these dots for you,
make the information resonate just like it would if you were
hashing it out with professors or maybe seasoned lawyers.
So let's just jump right in. OK, let's kick things off with
the entities that really form the backbone of commerce
business associations. Whether you end up advising a
small startup or a huge corporation, understanding who
acts for whom, how liabilities get shared and what duties are
owed, it's absolutely critical. Couldn't agree more.
It's not just for the exam, it's for your whole career and the
absolute first building block here.
The foundation for everything else is agency law.
Right Agency. It defines that relationship
where one person, the agent, acts on behalf of and is subject
to the control of another, the principal.
Exactly. And from my experience, you
know, both studying and talking with practitioners, this
relationship underpins so much. Agents are the intermediaries in
almost every transaction, operation, contract formation,
you name it. What's always struck me as
interesting, especially for the bar exam, is how informal agency
creation can be. You know, we often think
contracts need to be in writing, right?
But for agency, you don't necessarily need a written
agreement, do you? Yeah.
Unless maybe the statute of frauds kicks in for something
specific like real estate or a contract over a year.
That's a huge point and a classic exam trap agency can
arise just through conduct, no formal paperwork needed in many
cases. So how does it actually happen?
What are the core elements you need to spot?
Yeah, what should you be looking for in a fact pattern?
OK, so lecture 8, drawing on just general agency principles,
highlights 3 core components. First, you need consent.
Both the principal and the agent have to agree and that can be
expressed like saying you're my agent or implied from how they
act. OK, consent makes.
Sense Second, the agent's actions have to be for the
benefit of the principal. Their conduct is directed
towards the principal's interests.
And 3rd, and this is often the key differentiator, the
principal has to have control over the agent's conduct.
This element of control is what really distinguishes an agent
from, say, an independent contractor.
With an independent contractor, the principal usually just
controls the result of the work, not the how.
That control element seems crucial.
So OK, once we have an agency relationship, the next big
question, especially for the exam, is about authority.
Does the agent actually have the power to bind the principal?
Right. And we generally talk about two
main types of actual authority. First is express actual
authority. This is the clearest kind.
The principal explicitly grants the agent power, maybe orally,
maybe in writing, to do a specific thing, very direct,
simple enough. Then there's implied actual
authority. This is what the agent
reasonably believes they have based on their position or
what's necessary or customary to carry out that express
authority. Think of a store manager.
They probably have implied authority to hire staff, it's
just part of running the store. That makes sense.
But then we get to a parent authority and then this, you
know, this feels like where it gets tricky for students, myself
included back in the day. It's not about internal
agreements, is it? No, exactly.
It's all about the third party's perception.
That's why it's so heavily tested.
If the principal's conduct leads a third party to reasonably
believe the agent has authority, the principal is bound, even if
internally the principal said don't do that.
So how is that apparent authority created?
What kind of principal condit are we talking about?
It can happen in a few ways. Maybe the principal gives the
agent a title like Vice president of sales, which
suggests certain powers. Or it could be through past
dealings if the principal consistently allowed the agent
to do something before the third party might reasonably assume
they still can. Or even direct statements from
the principal to the third party.
The key is always the principles, manifestations
outward to that third party. OK, so principles, actions,
creating reasonable belief in the third party.
What about ratification? It sounds like a way for the
principle to sort of clean up a mess after the fact.
That's a good way to put it. Ratification is when a principal
knowingly affirms an unauthorized act after it's
already happened. They essentially adopt the ACT
as their own. How does that affirmation
happen? It can be expressed, yes, I
agree to that contract the agent signed without permission, or it
can be implied through conduct like knowingly accepting the
benefits of that unauthorized deal.
But the principal has to know what happened, right?
Absolutely critical. The principal must know all the
material facts surrounding the unauthorized act and must have
had the capacity to authorize it at the time it occurred and at
the time of ratification. You see this pop up on exams
where an agent oversteps, but the principal gets the benefit
and doesn't repudiate it. That can be ratification.
OK, so we figured out if the agent had authority or if the
acts was ratified. Now the big question liability.
Who gets sued? Who's on the hook when dealing
with third parties? Generally, the principal is
liable to the third party if the agent acted with actual
authority, apparent authority, or if the principal ratified the
ACT. That makes sense, right?
The agent was acting for them, sure.
Now the agent's liability is usually 0 if they acted within
their authority and the principal was fully disclosed,
meaning the third party knew they were dealing with an urgent
and knew who the principal was. But here's the kicker, right The
disclosure status. What if the third party doesn't
know who the principal is? That's the crucial twist and a
classic bar exam differentiator. If the principal is undisclosed,
the third party thinks they're just dealing with the agent
directly. No idea there's a principal
behind the scenes or partially disclosed.
The third party knows there is a principal but doesn't know their
identity. Then the agent is also liable on
the contract. So the agent could be personally
on the hook. Yes, along with the principal if
they're later discovered. It's a major risk for agents.
In those situations. You absolutely need to check the
disclosure status in any agency liability question.
Beyond liability to third parties, agents also owe duties
to their principals. Fiduciary duties.
These sound serious. They are extremely serious.
The agency relationship is built on trust, so the law imposes
strict duties to protect the principal.
The big ones are the duty of loyalty, the duty of care and
the duty of obedience. OK, break those down.
Loyalty sounds pretty absolute. It is.
The agent must act solely in the principal's best interest.
That means no self dealing, no conflicts of interest, no
competing with the principal, no usurping opportunities that
should belong to the principal. It's very strict.
In care. Duty of care means the agent
must act with the reasonable diligence, competence and
prudence that someone in their position would exercise.
Basically, don't be negligent and doing the principles work.
And obedience. Follow the principles lawful
instructions and act only within the scope of the authority
given. Pretty straightforward.
There's also a duty to account. Keep the principal's money
separate. Keep accurate records.
And if the agent breaches these duties?
The principal has remedies. They might be able to recover
damages, get back any secret profits the agent made that's
called disgorgement, or even rescind contracts the agent
improperly entered into. OK, that lays a solid foundation
with agency. Let's shift gears now to
partnerships. Unlike corporations, which need
formal filings, general partnerships can sometimes just
appear. Identifying them seems key.
You've hit a critical point. A general partnership is simply
an association of two or more persons carrying on a business
for profit as Co owners and crucially, no formal agreement
or state filing is needed. It can arise informally.
But the Accounting for Partnership source strongly
recommends a written agreement. Oh, absolutely.
A written partnership agreement is vital to avoid disputes
later. It should detail things like
names, capital contributions, rights and duties, how profits
and losses are shared, what happens if someone withdraws
dispute resolution, all that stuff.
It avoids the nightmare of trying to divide up the pie
after the fact. So if there's no formal
agreement, how do you spot a partnership in an exam
hypothetical? What are the signs?
The biggest indicator, the one that creates A rebuttable
presumption of partnership, is profit sharing.
If people are sharing profits from a business, the law
presumes it's a partnership. But it's rebuttable.
Yes, it can be rebutted if the profit sharing is actually for
something else, like paying off a debt or rent or wages.
Other factors courts look at are the party's intent.
Did they mean to be partners? Joint ownership of property used
in the business and importantly, participation in the control of
the business. Co ownership and mutual control
are strong evidence. OK, the accounting source
mentioned some key characteristics.
What are the absolute must knows for law students, especially
regarding liability and how the partnership runs?
Right, four big ones. First, mutual agency.
Any partner acting in the ordinary course of business can
bind the entire partnership. One partner's actions can
obligate everyone. Wow.
OK, High stakes. Second, limited life.
Technically, the partnership dissolves legally if a partner
leaves or a new one joins. Now, the business might
continue, maybe as a new partnership, but the specific
legal entity changes. Dissolution doesn't
automatically mean termination of the business.
Got it. Distinction between dissolution
and termination. 3rd, And this is the big one, people worry
about unlimited liability. Each partner is personally and
individually liable for all partnership debts and
obligations. Your personal assets are
potentially on the line. That's huge, a major contrast to
corporations. Definitely and 4th Co ownership
of property. Partnership assets belong to the
partnership entity, not individual partners.
Partners have a claim on the total assets and profits.
Losses are shared equally unless the agreement says otherwise.
The big disadvantage pulling all this together is that unlimited
liability. So given that structure,
especially the mutual agency and unlimited liability, how do
general partners make decisions? What if there's no agreement
specifying roles? The default rule is equal rights
in management. Regardless of how much capital
someone put in, every partner gets an equal vote in managing
the business. Ordinary business decisions
require a simple majority vote. But what about major decisions?
Extraordinary acts need unanimous consent.
Things like admitting a new partner, selling off most of the
partnerships assets, fundamentally changing the
business, or amending the partnership agreement itself.
Those require everyone to agree and remember each partner is an
agent so they can bind the partnership through actual or
apparent authority when dealing with third parties.
Let's really drill down on that unlimited liability.
How does it work in practice if say the partnership owes a big
debt joint and several liability?
Yes, partners are jointly and severally liable for all
partnership obligations, contract or tort.
That means a creditor can sue anyone partner, or some or all
of them, and potentially recover the entire debt from any single
partner they choose who has assets.
Well, so one partner could end up paying everything.
Potentially yes, though that partner would typically have a
right to seek contribution from the other partners, but the
creditor doesn't have to chase everyone.
However, there is usually an exhaustion rule.
Creditors generally have to try to collect from the partnerships
assets first before they can go after the partners personal
assets. OK, that's a small protection.
What about new partners coming in?
Are they liable for old debts? That's a common bar caution.
A newly admitted partner is not personally liable for debts the
partnership incurred before they joined.
However, their capital contribution to the partnership
is at risk for those old debts. And like agents, partners owe
each other fiduciary duties, too, right?
Loyalty care. Absolutely.
Very similar duties. A strict duty of loyalty.
Act in the partnerships best interest.
No competing, no self dealing, no usurping opportunities.
A duty of care. Essentially.
Don't be grossly negligent or reckless.
Don't engage in intentional misconduct or knowing violations
of law and a duty of disclosure. Keep partners informed about
partnership matters. Can the partnership agreement
change these duties? This is key for the exam.
The agreement cannot eliminate the duty of loyalty, but it can
define specific activities that don't violate it, or set
standards for measuring the duty of care, as long as those
standards aren't manifestly unreasonable.
So you can shape the duties, but you can't get rid of the core
obligations. OK, now let's talk about the end
game dissociation and dissolution.
They sound similar but aren't the same.
Correct dissociation is when a partner leaves the partnership.
It could be voluntary withdrawal, expulsion, death,
bankruptcy, etcetera. If the dissociation breaches the
partnership agreement, it's considered wrongful dissociation
and that partner might be liable for damages caused.
And dissolution. Dissolution isn't necessarily
the end of the business, but it's the start of the winding up
process for that particular partnership entity.
It involves settling debts, liquidating assets and
distributing what's left. And that distribution order
during winding up, that's super important for exams, isn't it?
Highly tested, The order is strict first pay outside
creditors. This also includes partners who
are creditors, like if they loaned money to the partnership.
OK, creditors first. 2nd pay back partners for their capital
contributions, whatever they put in initially.
Return of capital. 3rd distribute any remaining profits
according to the partnership agreement or equally if the
agreement is silent. What if there isn't enough money
to pay pay everyone back, especially the partners capital?
What if someone's capital account is negative?
That's where the accounting details come in.
If, after selling assets and paying outside creditors, a
partner has a negative capital balance, a deficiency, they
generally owe that amount back to the partnership.
If they're insolvent and can't pay, that loss gets allocated
among the other partners who do have positive balances, usually
based on their profit loss sharing ratios.
It shows how that personal liability sticks around right to
the very end. That unlimited liability is
definitely a major drawback of general partnerships, which
naturally leads us to the special forms of partnerships
designed to limit that risk. Exactly, people wanted ways to
partner up without risking their personal assets quite so much
first. You have limited partnerships,
LP's. LP's.
What's the structure there? An LP must have at least one
general partner. They manage the business and
have full unlimited personal liability, just like in a
general partnership, but it also has one or more limited
partners. These partners contribute
capital, but they do not participate in management and in
return their liability is limited to their investment.
Lease your investment but not your house.
And these require a state filing.
Yes, absolutely. You have to file a certificate
of limited partnership with the state to form an LP properly.
No filing, no limited liability for the limited partners.
OK. Then there's the Limited
Liability Partnership LLP. This sounds different.
It is. LLPS are very popular,
especially for professional groups like law firms,
accounting firms, metal practices.
The key difference is that in an LLP, all partners get some form
of limited liability. Protection all partners, so no
general partner with unlimited liability.
Correct. As the accounting source puts
it, in an LLP all partners have limited liability.
There are no general partners. Generally, partners are not
personally liable for the partnership's debts or,
crucially, for the malpractice or torts committed by other
partners. You're responsible for your own
negligence, but not necessarily your partners.
That sounds like a huge benefit for professionals.
Do they need to file? Yes, LLP's also require
registration with the state and often they have to carry a
certain amount of liability insurance.
And finally, the really popular one these days, The Limited
Liability Company, LLC. Hugely popular and LSC offers
its owners, called members, limited personal liability for
the business's debts, similar to a corporation.
But the big draw is that members can participate in management
without losing their liability shield.
So you get the liability protection of a corporation, but
potentially the flexibility and tax treatment of a partnership.
That's the appeal. It blends those features the
source mentions. Subchapter S corporations offer
similar pass through taxation but often involve more paperwork
and complexity than LLC's, Hence LLC's gaining popularity.
The trade off for all these limited liability entities
LPLLPLLC is generally more formality and cost in setting
them up compared to a simple general partnership.
But you get that crucial protection from personal
liability. OK, that's a fantastic overview
of business associations. Let's shift gears now to the
promises that drive our economy contract.
And specifically, let's tackle that critical, often tricky
interplay between common law and the Uniform Commercial Code at
the UCC. This is always a major issue on
the ME. You are absolutely right.
This distinction is the hot topic for contracts essays.
Seriously. As any seasoned bar prepper
knows, your very first step on any contracts question has to be
figuring out which body of law applies.
Common law or UCC Article 2 get this wrong.
Your whole analysis could be off.
Completely off the rules for everything.
Formation, modification, performance remedies, they all
diverge based based on this initial determination.
So you have to do what we call the vibe check first.
OK. So let's do that vibe check.
What's the fundamental split? Common law versus UCC?
Common law governs contracts for services like legal services,
construction, real estate, employment contracts, and
contracts involving intangible assets.
Think trademarks, copyrights, software licenses.
Though software can be tricky, it's the traditional judge made
law built on precedent. And the UCC Article 2
specifically. UCC Article 2 governs
transactions in goods, and goods are defined as tangible movable
items at the time they're identified to the contract.
So think cars, computers, crops, machinery, furniture.
If you can touch it and move it, it's likely a good does.
Price matter or who the parties are?
Nope. UCC Article 2 applies whether
it's a $5 pack of screws or $1,000,000 piece of equipment,
and whether the parties are giant corporations or just
regular people. OK, but what about those messy
hybrid contracts? Contracts involving both goods
and services? Like getting a new furnace
installed, You get the furnace goods and the installation
service. Great example.
For those hybrid situations, courts apply the predominant
purpose test. You have to ask what was the
main point of this contract? Was it primarily to get the
good? The furnace or was it primarily
to get the service the installation?
How do you figure that out? You look at factors like the
language of the contract, the nature of the suppliers
business, and often quite importantly, the relative cost
of the goods versus the services.
If the furnace itself cost thousands and the installation
is a few 100, the predominant purpose is likely the sale of
goods, so UCC applies to the whole thing.
If it's a complex custom software development project
service that happens to be delivered on a disk, good common
law probably applies because the service dominates.
So you really have to analyze the core purpose.
That's why doing that vibe check first is so critical.
Absolutely. Don't even think about offer and
acceptance rules until you know which offer and acceptance rules
apply. All right, so we've done our
vibe check. Let's say there's an UCC land
dealing with goods. How did the rules for formation
and modification differ from common law offer and acceptance
first? Big difference here.
Under common law you have the rigid mirror image rule.
The acceptance must mirror the offer exactly.
Any tiny change makes it a counter offer, killing the
original offer. Right, super strict.
But under the UCC, Forget the Mirror Image rule, section 22O7,
the infamous Battle of the Forms allows a contract to be formed
even if the acceptance contains different or additional terms
compared to the offer, as long as there was a definite
expression of acceptance. The UCC recognizes that business
people often use conflicting forms and still intend to make a
deal. So more flexible reflects
commercial reality better. Exactly.
Now what happens to those different terms is a whole other
complex analysis under 2 two O 7.
But the key take away is a contract can still be formed.
What about consideration, especially for modifying an
existing contract? Another major divergent Under
common law you need new consideration for a modification
to be binding. The pre-existing duty rule
applies. Agreeing to do something you
were already obligated to do isn't valid consideration for a
promise of more money, for instance.
OK, need something new exchanged.
But under the UCC, modifications of contracts for the sale of
goods need no new consideration to be binding.
The only requirement is that the modification is made in good
faith. Wow, no consideration needed,
just good faith. Yes.
This allows businesses to adjust contracts based on changing
market conditions or unforeseen circumstances without the
formality of finding new consideration.
It's about commercial practicality.
What's fascinating is how the UCC really prioritizes that
flexibility. Let's talk Option contracts
promises to keep an offer open. These have different rules too,
and it feels like a classic exam trap involving merchants.
Definitely a trap. Under common law, to make an
offer irrevocable for a period of time an option, you need
separate consideration paid for that promise to keep the offer
open. No consideration.
The offerer can generally revoke anytime before acceptance.
So even if they promise in writing to keep it open, if you
don't pay something for that promise, it's usually not
binding under common law. Correct, but the UCC has a
special rule called the Firm Offer Rule, section 2205.
This applies only to offers to buy or sell goods.
An offer is irrevocable even without consideration if one the
offer is a merchant. Was a merchant again.
Someone who regularly deals in goods of the kind involved in
the transaction, or holds themselves out as having special
knowledge or skill regarding those goods.
OK, so offer must be a merchant. What else?
2, the offer gives an assurance that it will be held open, and
three, that assurance is contained in a signed writing
from the offer. Signed writing is key.
Absolutely. If those three conditions are
met, merchant offer signed writing assurance.
It's open. The offer is irrevocable for the
time stated or a reasonable time, but never longer than
three months even without consideration.
That Mee scenario with the amateur gardener selling
tomatoes? He's not a merchant, so even if
he promises in writing to keep the offer open, it's not a firm
offer under the UCC. You'd need consideration under
common law. That's a great illustration.
OK, and let's clarify revocation.
That word seems to pop up in different contexts.
Yes, and timing is everything. Revocation of an offer happens
before a contract is formed. The offer expect the offer
before the offeree accepts. That's generally allowed unless
it's an option contract or a UCC firm.
Offer OK pre contract. Revocation of acceptance,
however, happens after a contract is formed and after the
buyer has already accepted the goods.
Under the UCC, a buyer can sometimes revoke their
acceptance if they later discover a substantial defect
that wasn't apparent at first. So same word revocation, but
totally different stages and rules.
You've got to know where you are on the timeline.
Good distinction. The UCC also seems more
comfortable with open terms in a contract than common law.
Generally, yes. The UCC allows a contract to be
formed even if some terms, like price or delivery time are left
open. As long as the parties intended
to make a contract and there's a reasonably certain basis for
giving a remedy, the courts can often fill in these gaps with
reasonable terms based on UCC provisions.
Is there any term that usually must be there?
Quantity. Quantity is typically essential
under the UCC, although there are exceptions.
For output Contracts, seller agrees to sell all they produce,
and requirements contracts, Buyer agrees to buy all they
need as long as the quantities aren't unreasonably
disproportionate and are handled in good faith.
OK, let's move to the parole evidence rule.
This rule often causes headaches.
What's the basic idea? What is it trying to do?
The parole evidence rule isn't actually a rule of evidence,
despite the name. It's a rule of substantive
contract law. Its purpose is to give finality
to written agreements. If the parties intended their
written contract to be the final and complete expression of their
agreement, this rule prevents them from bringing in evidence
of prior or contemporaneous oral agreements, or sometimes even
prior written agreements, to contradict the terms of that
final writing. So it keeps outside stuff out if
the writing is meant to be the final word.
Pretty much. Now the key is determining how
final the writing was intended to be.
Was it fully integrated, meant to be the complete and exclusive
statement of all terms, or just partially integrated, final on
the terms included but not necessarily covering everything?
How does that distinction matter under the UCC?
If it's partially integrated, the writing can be supplemented
by evidence of consistent additional terms, but if it's
fully integrated, it generally cannot be contradicted or
supplemented by prior or contemporaneous agreements.
But are there things that always get in even if it's fully
integrated exceptions? Yes, and these are crucial.
Even a fully integrated agreement can always be
explained or supplemented, though not contradicted by
evidence of course of performance.
How these parties acted under this contract so far.
Course of dealing How these parties acted in past contracts
with each other and usage of trade standard practices in the
relevant industry or locale. So a context always matters.
Exactly. The UCC recognizes that context
is vital to understanding commercial agreements.
Parole evidence is also always admissible to show things like
fraud, duress, mistake, illegality, lack of
consideration, or to clarify an ambiguity in the writing, or to
show the existence of a condition president to the
contract. OK.
Now, for performance obligations, this feels like
another major split between common law and UCC, the standard
required. Huge difference.
Under common law, the standard is generally substantial
performance. If a party substantially
performs their obligations, meaning they don't breach in a
material way, minor defects are OK.
They're entitled to payment minus any damages for the minor
defects. Substantial performance, OK.
But under UCC Article 2, for single delivery contracts, the
general rule is the perfect tender rule.
The seller must deliver goods that conform perfectly to the
contract terms, quantity, quality, delivery method,
everything. Any deviation, however small,
allows the buyer to reject the goods.
Well, perfect Tender sounds incredibly strict for sellers.
It is a very high standard, but there are important exceptions
that soften it. Like the seller's right to cure.
Exactly. The seller's right to cure is a
big one. If the buyer rejects goods as
nonconforming, the seller might have a chance to fix the problem
or cure. They can do this if one, the
time for performance under the contract hasn't expired yet, or
two, even if time has expired, the seller had reasonable
grounds to believe the non conforming tender would be
acceptable, maybe based on prior dealings, and they promptly
notify the buyer of their intent to cure.
So it gives sellers a second chance in some situations.
Yes, it balances the harshness of perfect tender.
What about the buyer side after acceptance?
We mentioned revocation of acceptance and how do
installment contracts work? It seemed different.
Right, revocation of acceptance. Let's buyer undo their
acceptance later, but only if the nonconformity substantially
impairs the value of the goods to them and they accept it
either because the defect was hard to discover or because the
seller assured them it would be fixed.
It's a higher bar than initial rejection and installment
contracts. Contracts authorizing deliveries
and separate lots have different rejection roles.
A buyer can only reject a single installment if the nonconformity
substantially impairs the value of that installment and cannot
be cured. They can only cancel the entire
contract if the nonconformity in one or more installments
substantially impairs the value of the whole contract.
So Perfect Tender doesn't apply to individual installments in
the same way. OK, that makes sense for ongoing
relationships. Now let's talk about warranties
under the UCC. These are basically promises the
seller makes about the goods, right?
Exactly there are assurances about quality or performance.
The UCC recognizes 3 main types that you absolutely need to know
for the bar. Lay them out for us.
First, express warranties. These are created by the sellers
actual words or actions. It could be an affirmation of
fact or a promise about the goods.
This car gets 30 miles per gallon, a description of the
goods, 100% wool sweater, or even showing a sample or model.
If it becomes part of the basis of the bargain, it's an express
warranty. What about just sales?
Talk like this is a fantastic deal.
That's generally considered puffery and doesn't create an
express warranty. It has to be more concrete.
OK, Express warranties. What else?
Second, the implied warranty of merchant ability.
This is a big one. It's implied automatically by
law whenever the seller is a merchant dealing in goods of
that kind. It means the goods are fit for
their ordinary purpose. A toaster toasts bread, a chair
holds weight, etcetera. So it arises just because the
seller is a merchant. Yes, unless it's properly
disclaimed. Third, the implied warranty of
fitness for a particular purpose.
This arises when, at the time of contracting, the seller knows or
has reason to know the specific purpose for which the buyer
needs the goods, and the buyer is relying on the seller's skill
or judgment to select suitable goods.
The seller doesn't have to be a merchant for this one, but often
is. Like asking a hardware store
employee for paint specifically for a damp basement.
Perfect example, if they recommend a paint knowing your
specific need and your reliance, there's an implied warranty it's
fit for that particular purpose. Can sellers get out of these
warranties? Can they disclaim them?
Yes, but the rules are specific. To disclaim the implied warranty
of merchantability, the disclaimer generally must
actually use the word merchantability, and if in
writing must be conspicuous, like in bold print or a
different color. To disclaim the implied warranty
of fitness, the disclaimer must be in writing and conspicuous,
but specific language isn't required.
General phrases like as is or with all faults can also
effectively disclaim all implied warranties.
Express warranties are harder to disclaim once made.
OK, good to know of those disclaimer rules now.
A really practical and frequently tested issue.
Risk of loss. Who bears the loss if goods are
damaged or destroyed before the buyer gets them, and it's
nobody's fault. This is crucial, it determines
who has to deal with the insurance or take the financial
hit. The 1st place to look is always
the contract terms. Did the parties explicitly agree
on when risk passes? Maybe using terms like FoB or
CAF? FOB.
What do those mean? Again?
FoB. Stands for free on board FoB,
seller's place of business or city.
Creates A shipment contract. This is the default rule under
the UCC if the contract is silent.
In a shipment contract, the risk of loss passes to the buyer as
soon as the seller delivers the goods to the carrier, like UPS
or a trucking company. So once it's on the truck, it's
the buyer's problem. Essentially, yes, for risk of
loss purposes in a shipment contract, FoB buyer's place of
business or city creates a destination contract.
Here, the risk of loss stays with the seller until the goods
actually arrive at the specified destination and are properly
tendered to the buyer. So the seller is responsible
during transit in a destination contract, correct?
What if there's no carrier involved?
Like I buy furniture from a local store and plan to pick it
up myself. Good question.
In these non carrier cases, the rule depends on whether the
seller is a merchant. If the seller is a merchant, the
risk of loss doesn't pass to the buyer until the buyer actually
takes physical possession of the goods.
So even if I've paid, if it's still at the merchant's store,
it's their risk. Right, but if the seller is a
non merchant, like a private individual selling their used
car, the risk passes to the buyer much earlier upon tender
of delivery. That means once the seller makes
the goods available for the buyer to pick up and notifies
them, the risk shifts even if the buyer hasn't actually picked
them up yet. Interesting distinction.
And how do sale on approval and sale or return fit in?
These are specific types of sales affecting risk of loss.
In a sale on approval, the buyer takes goods mainly for their own
use, but gets to try them out first, like art for a home.
The risk of loss stays with the seller until the buyer actually
approves or accepts the goods. OK, seller keeps risk during
trial. In a sale or return, the buyer
takes goods mainly for resale, but has the right to return them
if they don't sell. Common with retailers here, the
risk of loss passes to the buyer upon delivery and stays with the
buyer until the goods are actually returned to the seller.
So the retailer bears the risk while the goods are on their
shelves. Exactly.
These rules are often tested with goods damaged in transit or
while in the buyer's possession. All right, let's wrap up
contracts with remedies for breach.
The goal here is always to put the non breaching party in the
position they would have been in if the contract had been
performed right. Make them whole.
That's the fundamental principle of contract damages, and under
the UCC remedies are generally cumulative.
The non breaching party can often pursue multiple remedies
as long as it doesn't lead to double recovery.
So what can the seller do if the buyer breaches, say, wrongfully
rejects goods or fails to pay? The seller has several options.
They can withhold delivery, cancel the contract, or stop
goods that are already in transit with a carrier.
If they still have the goods, they can resell them in a
commercially reasonable manner and recover the difference
between the resale price and the original contract price, plus
any incidental damages like costs of the resale.
What if they don't resell? Then they can sue for market
damages, the difference between the market price at the time and
place for tender and the unpaid contract price, plus
incidentals. Or in specific situations, like
if the buyer accepted the goods, or if conforming goods were lost
after risk passed to the buyer and the seller can't resell
them, the seller can sue for the full contract price.
OK, now what about the buyers remedies when the seller
breaches, fails to deliver or delivers nonconforming goods?
The buyer's main remedies revolve around getting
substitute goods or compensation.
The preferred remedy is often cover.
The buyer can, in good faith and without unreasonable delay, buy
substitute goods and recover the difference between the cost of
cover and the original contract price, plus incidental and
consequential damages. Is cover mandatory?
No cover is optional. If the buyer doesn't cover or
can't reasonably cover, they can sue for market damages.
The difference between the market price at the time the
buyer learned of the breach and the contract price, plus
incidentals and consequentials. What if damages aren't enough,
like for unique goods? Then the buyer might seek
specific performance and equitable remedy, ordering the
seller to actually deliver the specific goods.
This is usually only available for unique goods like rare art,
antiques, custom made items, or another proper circumstances
where monetary damages are inadequate.
There's also replven, allowing the buyer to recover identified
goods if they can't cover. And, as we mentioned, revocation
of acceptance is also a remedy after goods have been accepted
under certain conditions. You mentioned consequential
damages for buyers. Yeah.
What are those and when are they recoverable?
They seem potentially huge. They can be consequential
damages are losses resulting from the buyer's particular
requirements and needs that the seller had reason to know about
at the time of contracting. They go beyond the direct loss
in value of the goods themselves.
Think lost profits on resale contracts the buyer couldn't
fulfill, or damages from personal injury or property
damage caused by defective goods.
Are they always recoverable? No.
They must meet three tests. One, the loss resulted from the
seller's breach. 2 The loss was foreseeable to the seller at the
time of contracting AN D3. The buyer couldn't reasonably
have prevented the loss by cover or otherwise.
Duty to mitigate. OK, one last UCC point.
The statute of Frauds, we know it applies to sales of goods for
$500 or more requiring a writing sign by the party being charged.
But the exceptions are key, right?
Especially that merchants confirmatory memo.
Absolutely critical. The general rule sale of goods
$500 plus Nita writing showing a contract stating quantity signed
by the defendant. But the exceptions often drive
the analysis on exams. And that merchants confirmatory
memo exception UCC 2 two over 1-2.
The goat bar prep source called it a huge EE trap.
Why? What's the detail everyone
misses? It's a trap because people focus
on the recipient merchant not objecting within 10 days.
But the exception only works if the written confirmation sent by
the other merchant was it self-sufficient to bind the
sender, meaning it had to indicate a contract state of
quantity and be signed by the sender.
If the sender's memo wasn't sufficient against them, their
failure to object means nothing. So in that shopping cart me
scenario, right, if the grocer sent an unsigned note confirming
the order, even if the supplier didn't object, the contract
wouldn't be enforceable against the supplier under this
exception. Precisely.
The memo has to be good against the sender first.
That's the trap. Always check if the sender's
memo meets the Statute of Frauds requirements against the sender.
Got it. What are the other main
exceptions? Specially manufactured goods if
goods are custom made for the buyer and aren't suitable for
sale to others in the ordinary course, and the seller has made
a substantial beginning on manufacturing them or
commitments for their procurement.
Admission in court If the party being sued admit some pleadings,
testimony, or otherwise in court that a contract for sale was
made and part performance, the contract is enforceable to the
extent that payment has been made and accepted or goods have
been received and accepted. OK, those exceptions are vital.
That wraps up a deep dive into contracts and UCC.
Now let's turn to the road map of litigation itself.
Civil Procedure. This isn't just about rules.
It's about the fundamental power and limits of the courts.
Mastering this is non negotiable for the bar.
Couldn't agree more. SIF Pro is the framework for
everything else and it starts with jurisdiction, the court's
power. We need to think about power
over the case subject matter jurisdiction and power over the
person personal jurisdiction. Let's start with subject matter
jurisdiction. SMJ power over the case type.
What's the absolute number one thing students must remember
about SMJ? It cannot be waived, ever.
Parties can't agree to give a federal court SMJ if it doesn't
constitutionally or statutorily exist.
It can be raised by any party or the court itself at any stage of
the litigation, even on appeal, for the first time.
If a court enters judgment without SMJ, that judgment is
void. It's fundamental.
OK non waivable can be raised anytime.
What are the main ways a federal court gets SMJ?
Two primary ways federal question jurisdiction and
diversity jurisdiction. Federal question First, what
does arising under federal law mean?
It means the plaintiff's claim itself is based on the US
Constitution, a federal statute or a treaty.
The federal issue must be central to the plaintiff's
claim, not just a potential defense the defendant might
raise. It has to appear on the face of
the well pleaded complaint. OK, the claim itself has to
involve federal law. Yeah, diversity jurisdiction.
This one seems more complex with two parts.
It is for diversity jurisdiction under 28 USC Section 1332.
You you need two things. First, complete diversity of
citizenship between the plaintiffs and defendants, and
second, the amount in controversy must exceed $75,000,
exclusive of interest and costs. Complete diversity.
What does that mean exactly? It means no plaintiff can be a
citizen of the same state as any defendant.
If even 1 plaintiff and one defendant share state
citizenship, diversity is destroyed.
And when is this citizenship determined?
At the time the lawsuit is filed, later changes generally
don't matter for jurisdiction. How do we determine citizenship
for individuals? It's domicile, right?
Physical presence plus intent to remain indefinitely.
Correct. For individuals, it's domicile.
For corporations, it's more complicated.
They're citizens of both the state where they are
incorporated and the state where they have their principal place
of business. Principal place of business is
that the nerve center? Yes, the Supreme Court adopted
the nerve center test. It's typically the corporate
headquarters where the high level officers direct control
and coordinate the corporation's activities.
Now, what about unincorporated entities like partnerships or
LLC's? This seems to trip people up.
It does, and it's a huge deal for diversity.
For Partnerships, LLC's and other unincorporated
associations, citizenship is determined by the citizenship of
all of its members or partners. So if an LLC has members in all
50 states, it's considered a citizen of all 50 states for
diversity purposes, making it very hard to sue or be sued in
federal court based on diversity.
Wow, that's a massive difference from corporations.
It really limits diversity jurisdiction for them.
It absolutely does. What about the amount in
controversy over $75,000? How strictly is that applied?
The plaintiffs good faith claim for damages is generally
accepted unless it appears to a legal certainty that they cannot
recover the jurisdictional amount.
A single plaintiff can aggregate all claims they have against a
single defendant to meet the amount, even if unrelated.
Multiple plaintiffs usually cannot aggregate claims unless
they are seeking to enforce a single title or right in which
they have a common undivided interest.
OK, what if a case has a federal claim, but also related state
law claims? Can the Federal Court hear those
two supplemental jurisdiction? Yes.
Under 28 USC Section 1367, if a federal court has original
jurisdiction over a claim, either federal question or
diversity, it can exercise supplemental jurisdiction over
related state law claims that arise from the same common
nucleus of operative fact. Basically, if the claims are so
related, they'd ordinarily be tried together.
Does that work in diversity cases too?
Can a plaintiff use it to sue a non diverse defendant on a
related state claim? Generally, no.
There are important statutory limitations in diversity cases.
Section 1367 B typically prevents plaintiffs from using
supplemental jurisdiction to bring in claims against parties
who would destroy complete diversity, like third party
defendants and pleaded under Rule 14 or party is joined under
Rules 1920 or 24. It prevents plaintiffs from end
running the complete diversity requirement.
OK, tricky limitations there. Now, what if a case could have
been brought in federal court, but the plaintiff filed in state
court? Can the defendant move it?
Removal. Yes.
Defendants generally have the right to remove a case from
state court to the federal District Court, embracing the
place where the state action is pending if the case could have
originally been filed in federal court, IE if there's federal
question or diversity jurisdiction.
Do all defendants have to agree? Yes, generally all defendants
who have been properly joined and served must consent to
removal, and there's a strict time limit.
Notice of removal must usually be filed within 30 days of the
defendant receiving the initial pleading or summons.
Now here's that interesting exception again, the home state
defendant rule. How does that block removal?
This is a statutory limitation that applies only in diversity
cases. Even if complete diversity
exists and the amount in controversy is met, the case
cannot be removed if any. Properly joined and served
defendant is a citizen of the state where the action was
filed. The idea is if a defendant is
being sued in their home state court, there's less concern
about local bias, so they don't need the protection of a federal
forum. That's a big one to remember for
diversity removals. What if removal is improper?
Can the plaintiff send it back remand?
Yes. If the plaintiff believes
removal was defective, museum procedure wasn't followed,
deadline missed, or the federal court lacks SMJ, they can file a
motion to remand the case back to state court.
Motions based on procedural defects must be made within 30
days after the notice of removal was filed, but a motion to
remand based on lack of SMJ can be made at any time before final
judgment. OK.
That covers SMJ and removal. No personal jurisdiction.
PJ. This is about the courts power
over the defendant themselves. Fair process for the litigant.
Exactly. For a court to have PJ over a
defendant, it must satisfy both the states long arm statute,
which authorizes jurisdiction over non residents under certain
circumstances, and the due process clause of the 14th
Amendment. Due process requires that the
defendant have sufficient minimum contacts with the forum
state such that exercising jurisdiction doesn't offend
traditional notions of Fair play and substantial justice.
Minimum contacts? That sounds like the core test.
What are the different types of PGA based on those contacts?
We generally talk about two types, general jurisdiction and
specific jurisdiction. General first, when does that
apply? General jurisdiction exists when
the defendant's affiliations with the forum state are so
continuous and systematic as to render them essentially at home.
There, if a court has general jurisdiction, it can hear any
claim against the defendant, even if the claim runs totally
outside the forum state. Where is a defendant at home?
For an individual, it's their domicile.
For a corporation, it's their state of incorporation and their
principal place of business. Nerve center.
It's very high bar. General jurisdiction is rare
outside these places. OK.
So what's specific jurisdiction? Specific jurisdiction is case
specific. It exists if the defendant's
contacts with the forum state gave rise to the actual claim
being sued upon. The lawsuit must arise out of or
relate to the defendant's contacts with the forum.
And how do we determine if those contacts are sufficient for
specific jurisdiction under due process that minimum contacts
test again? Yes.
The modern test involves 3 key elements.
First, did the defendant purposefully avail themselves of
the privilege of conducting activities within the forum
state, thus invoking the benefits and protections of its
laws? This requires some deliberate
action directed towards the forum, not just random or
accidental contact. Purposeful availment.
What else? Second, does the plaintiff's
claim arise out of or relate to the defendant's contacts with
the forum? There needs to be a connection
between the form contacts and the lawsuit.
Connection between contacts and claim and 3rd. 3rd Would the
exercise of jurisdiction be reasonable and consistent with
fair play and substantial justice?
Courts sway several factors here the burden on the defendant, the
forum states, interest in the case, the plaintiff's interest
in obtaining relief, the efficiency of the Interstate
judicial system, and the shared interests of the states.
What about just putting a product into the stream of
commerce? Is that enough for purposeful of
ailment? Often, no.
The Supreme Court has suggested that merely placing a product
into the stream of commerce, even knowing it might end up in
the forum state, isn't enough. There usually needs to be some
additional conduct indicating an intent to target the forum
state, like advertising there, designing the product for that
market, or establishing customer service channels there.
OK. Finally, even if jurisdiction
exists, the defendant needs proper notice right service of
process. Absolutely essential due process
requires notice reasonably calculated under all the
circumstances to apprise interested parties of the
pendency of the action and afford them an opportunity to
present their objections. This notice is typically
achieved through service of process formally delivering the
summons and complaint to the defendant according to the
rules. And how's that done?
Federal Rule of Civil Procedure for govern service in federal
court. It allows various methods
including personal delivery, leaving copies at the
defendant's dwelling with someone of suitable age and
discretion who resides there, delivering copies to an
authorized agent, or using any method permitted by the state
law where the federal court sits or where service is made.
Proper service is crucial. Without it, the court can't
exercise its jurisdiction over the defendant.
OK, jurisdiction covered, now venue.
This isn't about power, but about location.
Which specific federal courthouse is the right place
for the lawsuit? Exactly.
Venue is primarily about convenience and location.
It's a statutory requirement, not constitutional.
So where is venue generally proper in federal court?
Under 28 USC Section 1391, venue is proper in one a judicial
district where any defendant resides, if all defense reside
in the same state, or 2A judicial district where a
substantial part of the events or omissions giving rise to the
claim occurred, or where a substantial part of the property
that is the subject of the action is situated.
What if neither of those works? Then, as a fall back, if there's
no district where the action may otherwise be brought, venue is
proper in any judicial district in which any defendant is
subject to the court's personal jurisdiction with respect to
such action. What if venue is technically
proper but it's really inconvenient?
Can the case be moved Change a venue?
Yes, under 28 USC Section 1404 A, even if venue is proper, a
District Court may transfer the case to any other district where
it might have been brought, meaning PG and venue would be
proper there too. For the convenience of parties
and witnesses and in the interest of justice, courts
weigh various public and private interest factors.
What if the more convenient forum is outside the US federal
system, like in another country? Then transfer isn't possible.
Instead, the court might dismiss the case under the common law
doctrine of forum non convenience.
This allows dismissal if there's an adequate alternative form
available elsewhere, and the balance of private and public
interest factors strongly favors dismissal, essentially finding
that the current forum is seriously inconvenient.
OK, then you sorted. Let's move into the actual start
of the lawsuit, pleadings and motions.
It all begins with the plaintiffs complaint.
What does Rule 8 require? The complaint kicks everything
off under Rule 8A. It needs three things 1A Short
and plain statement of the grounds for the court's subject
matter jurisdiction, 2A Short and plain statement of the claim
showing that the pleader is entitled to relief and three, a
demand for the relief sought. UB damages injunction.
That short and plain statement of the claim is simple.
Notice enough? What about those Trombley and
Iqbal cases? That's a critical development.
While Rule 8 technically requires only notice pleading,
Twombley and Iqbal established a higher plausibility standard.
The complaint must contain a sufficient factual matter,
except it is true to state a claim to relief that is
plausible on its face. Mere conclusory statements or a
recitation of the elements of the cause of action won't cut it
anymore. You need enough facts to nudge
the claim across the line from conceivable to plausible.
So more factual detail needed now than maybe before.
Generally, yes. And remember, Rule 9B requires
even more for claims of fraud or mistake.
Those must be pleaded with particularity detailing the
circumstances constituting fraud or mistake.
The Who? What?
When, Where? How?
OK, then the defendant responds with an answer.
What goes in there? The answer responds to the
allegations in the complaint. Under Rule 8B, the defendant
must admit, deny, or state that they lack sufficient knowledge
or information to form a belief about the truth of each
allegation. Importantly, the answer must
also state any affirmative defenses under Rule 8C, things
like statute of limitations, contributory negligence, statute
of frauds, rescue Ducata. What happens if you forget to
plead an affirmative defense? You generally waive it.
It's crucial to raise them in the answer or risk losing.
Them before answering, can the defendant file motions to
dismiss those Rule 12B motions? Yes, these are very important
pre answer motions. Rule 12 B lists 7 defenses that
can be raised by motion, including lack of SMJ, lack of
PJ, improper venue, insufficient process, insufficient service of
process, failure to state a claim, and failure to join a
required party. Now, some of these are waived if
not raised early right the waiver trap.
Big time defenses 12B2 through 5, Lack of personal
jurisdiction, improper venue, insufficient process and
insufficient service of process Process are waived if they are
not raised in the defendants first Rule 12 motion or if no
motions filed in the answer. You lose them if you don't raise
them right away. Which ones aren't waived?
Lack of subject matter jurisdiction 12B1 can never be
waived and can be raised at any time.
Failure to state a claim 12B6 and failure to join a required
party 12B7 can be raised later, even at trial.
Good to keep those waiver rules straight.
What about amendments to pleadings?
Can parties change their complaint or answer later?
Yes. Rule 15 governs amendments.
A party can amend its pleading once as a matter of course,
within 21 days after serving it, or, if the pleading requires a
response, within 21 days after the response is served or 21
days after a Rule 12 motion is served, whichever is earlier.
And after that? Otherwise, a party needs the
opposing party's written consent or the courts leave.
Rule 15 A says leave should be freely given when justice so
requires. Courts are generally liberal
about allowing amendments unless there's undue delay, bad faith,
prejudice to the opponent or futility.
What's this relation back doctrine?
It sounds important for statute to limitations issues.
It's critical relation back under Rule 15 C allows an
amended pleading to be treated as though it were filed on the
date of the original pleading. This usually applies if the
claim or defense asserted in the amended pleading arose out of
the same conduct, transaction, or current set out in the
original pleading. It can save a claim that would
otherwise be time barred. OK, pleading set the stage.
Then comes discovery, where the parties gather evidence.
This seems like a huge part of litigation.
It absolutely is, and heavily tested discovery allows parties
to obtain information to build their cases, understand the
opponent's case, and potentially facilitate settlement.
What's the basic scope of discovery?
What can you ask for? Under Rule 26 B, one parties may
obtain discovery regarding any non privileged matter that is
relevant to any party's claim or defense and proportional to the
needs of the case. Proportionality considers
factors like the importance of the issues, the amount in
controversy, the party's resources, the importance of the
discovery in resolving the issues, and whether the burden
or expense outweighs its likely benefit.
So it's broad but not unlimited. Proportionality is key.
Exactly, and certain things are automatically disclosed without
waiting for a request under Rule 26 a required disclosures.
What are those? There are three main types.
Initial disclosures early in the case require revealing names of
potential witnesses, descriptions of relevant
documents, ESI, computation of damages claimed, and insurance
agreements. Later, expert disclosures
require identifying testifying experts and providing their
detailed reports. Finally, pretrial disclosures
just before trial list the witnesses and exhibits expected
to be presented. What are the main tools parties
use to actively get information during discovery?
The workhorses are depositions. Rule 30.
Oral testimony. Underoath from parties or non
parties, recorded stenographically or by video.
Usually limited to 10 per side without court permission.
Interrogatories. Rule 33.
Written questions sent to another parter, answered in
writing. Underoath usually limited to 25
questions. Requests for production.
Rule 34. Written requests asking another
party to produce documents, electronically stored
information, ESI, or tangible things for inspection or to
permit entry onto land. Requests for admission.
Rule 36 Written requests asking another party to admit the truth
of certain facts or the genuineness of documents, which
helps narrow the issues for trial and physical or mental
examinations. Rule 35.
Only available by court order when a party's physical or
mental condition is genuinely in controversy and requires showing
good 'cause. What happens if a party refuses
to cooperate or plays games during discovery?
Rule 37 provides for sanctions. If a party fails to respond or
provides evasive answers, the other party can file a motion to
compel. If they still don't comply, the
court can impose sanctions ranging from paying other side's
expenses to preventing the disobedient party from
presenting certain evidence, preclusion striking pleadings,
dismissing the case, entering default judgment, or even
holding them in contempt. Courts do not like discovery
abuse. Failure to preserve ESI can also
lead to serious sanctions. OK, moving towards the end game,
cases don't always go to trial. What about pretrial resolution
and summary judgment? Right parties can resolve cases
themselves. A plaintiff can take a voluntary
dismissal under Rule 41 a usually once without prejudice,
meaning they can refile later before the defendant answers or
moves for summary judgment. After that, dismissal usually
requires agreement or a court order and might be with
prejudice. Barring refiling.
A court can also order an involuntary dismissal, usually
with prejudice, if the plaintiff fails to prosecute the case or
comply with rules or orders. What if the defendant just
hosts? The lawsuit doesn't show up.
That can lead to default judgement.
First, the clerk makes an entry of default on the docket.
Then the plaintiff applies for a default judgement.
If the claim is for a sum certain, the clerk can enter
judgement. Otherwise, the judge enters it,
possibly after a hearing, to determine damages.
Defaults can sometimes be set aside later under Rule 55C or
60B for good 'cause like mistake or excusable neglect.
And the big one for pretrial resolution summary judgment
under Rule 56. When is this granted?
Summary judgment is appropriate if the moving party shows that
there is no genuine dispute as to any material fact and they
are entitled to judgment as a matter of law.
It essentially argues based on the undisputed facts, we win and
there's no need for a trial. How does that work with the
burden? The moving party has the initial
burden to show the absence of a genuine factual dispute, either
by pointing to flaws in the opponent's evidence or by
presenting their own evidence. If they meet that burden, the
burden shifts to the non moving party to come forward with
specific evidence, affidavits, deposition testimony, etcetera,
showing that there is a genuine dispute over a material fact
that requires a trial. If we connect this to the bigger
picture, summary judgment is a vital tool for courts to dispose
of cases efficiently when a trial isn't necessary because
the core facts aren't truly contested.
OK. But if the case does go to
trial, are there still ways to challenge the verdict or the
sufficiency of the evidence during or after?
Absolutely. During trial, after a party has
presented all its evidence on an issue, the opposing party can
move for judgment as a matter of law.
JMOL under Rule 50A, this asks the judge to rule for the moving
party because the evidence presented by the opponent is
legally insufficient for a reasonable jury to find in their
favor. And if the judge denies that and
the jury finds against you? Then after the jury verdict you
can file a renewed JMOLO RJMLL under Rule 50B.
You generally must have made the initial JMO motion during trial
to be eligible for RJML. It makes the same argument no
reasonable jury could have reached this verdict based on
the evidence. RJML must be filed within 28
days after entry of judgment. What about asking for a whole
new trial? That's a motion for new trial
under Rule 59. It can be granted for various
reasons, errors in the trial process like wrong jury
instructions or admission of improper evidence, juror
misconduct, newly discovered evidence that couldn't have been
found earlier with due diligence, or if the verdict is
simply against the great weight of the evidence suggesting a
serious miscarriage of justice. And one last one, motion to
alter or amended judgment. Rule 59 E filed within 28 days
of the judgment. This asked the court to
reconsider and change its judgment based on things like
manifest errors of law or fact or newly discovered evidence.
These post trial motions are crucial for correcting errors at
the trial court level and preserving issues for appeal.
Wow, that was a lot. We've really covered some ground
today on three massive bar exam subjects.
We certainly have. We went deep into business
associations, agency partnerships, corporations
hitting formation liability duties.
Then we really unpacked the critical differences between
common law contracts and UCC sales that vibe check formation,
performance warranties, remedies and finally navigated the
procedural maze of Civil Procedure jurisdiction, venue
cleatings, discovery, key emotions.
Each one is a pillar for the bar.
And your ability as you study to confidently handle the details
in each is just paramount. Absolutely.
As you keep preparing, remember these areas don't exist in
isolation. They intertwine constantly.
That's often how they get tested.
Complex hypotheticals that blend these concepts.
That's a great final thought. Think about how an agent's
authority under agency law effects a contract governed by
the UCC, which then leads to a jurisdictional fight under Civil
Procedure rules. Or how piercing the corporate
veil and biz orgs might depend on facts uncovered through
discovery. Right.
The real world and the bar exam often weave these threads
together. Understanding each thread helps
you see that full tapestry of legal practice.
Exactly. Keep thinking critically.
Keep making those connections between subjects.
It's not just about memorizing rules, but understanding how
they function together to resolve disputes.
Keep putting in the work, keep connecting those dots, and you
will be well on your way to success on the exam and beyond.