Friday, July 27, 2007

Ahoy, ya' Salty Sea Dogs!

Maybe that's where the term "Salty Language" came from. I'm no longer in "research" mode so it matters not.

I didn't golf today because I'm too tired, Blah. I was really looking forward to it too. I'll probably just hit the range later. In the middle of the day. When it's the hottest. Good Idea! Who cares, at this point.

I'm letting my memories of Thursday's exam coagulate as I consume many cups of coffee (I don't appreciate my own personal concoction until I've been forced to drink something else for a few days.)

The Salty Sea Dog title is in reference to the salty nature of some of the comments recently. Now lemme' assure you, I understand that there's a time and place for colorful language. But wherever that time and place is, it's not here. You may have noticed that I refrain (for the most part) from the use of colorful adjectives in my posts and that's a personal choice. I don't impose that standard on anyone else and it's primarily because this record is written, (sort of.) I appreciate that others use it on their blogs and it bothers me not a whit. After all, my virgin ears were deflowered many (many) moons ago. It's simply an editorial decision that I made at the start and it seems to have served me adequately so far, although I reserve the right to violate that self-imposed prohibition come November 16th.

Anyway, the point of this is to say that I'm not disabling the ability to make Anonymous comments to posts, but I am going to spontaneously combust any comments that are foul and/or abusive to anyone.

Alrighty then... Let me get another Cup-O-Joe and I'll try to describe my very own personal take on Thursday.

And if there's one thing I've discovered between Thursday at 5:00 p.m. and now, it's that there can be 50 different interpretations of a particular fact pattern, and each one of them can be passing answers.

And now for the pause that refreshes....

14 comments:

Anonymous said...

Well, I might as well break the silence, I was half way out to lunch on the 4th essay, I had no idea where to start or even go, so I cut short on that one and tried to rally back on 5 and 6 by taking a few minutes off of 4, I was so desperate that I looked for PR in 6 and went after it when I found the agreement to be invalid - discuss

Anonymous said...

OK - I dont think we needed to discuss agency - b/c the call of the question asked if PAULA could enforce the agreement against SALLY. IF it was SALLY who was suing and trying to enforce the agreement against the MUSEUM (the principle) - then I would see the need to discuss agency as it would be appropriate to say the agent (Paula) could bind the principle. However, why would Paula want to use agency? She personally entered into a binding agreement with Sally and was trying to enforce it on that basis. I said the agreement was enforceable b/c the SOF was satisfied throught the certified refund check (signed w/ description) Sally gave to Paula the next day. PLEASE DISCUSS - DID we really need to discuss agency - I dont think we did

Anonymous said...

The equal dignities rule was an issue. because the K was required to be in writing, the agent/principal agreement needed to be in writing.

There was also the undisclosed principal issue.

andrew said...

Okay - on 5,

yes you are right - analytically agency in practice is not something we would assert - the agent wants to bind a third party.

BUT BUT BUT ... as we all know (taking Barbri) you get points by raising issues and disposing of them.

Clearly they wanted us to talk about Agency and explain how it wouldnt make a difference in this particular fact pattern.

In otherwords, everything you explained above should have been in your essay; it was a solid analysis.

I mean they called the Museum "the principal."

And, they fully wanted you to discuss the equal dignities, and hella defenses to enforcement.

There was also a legal recission issue (but performance wasnt executory on both sides).

5 frustrated us because misrepresentation (or concealment) was either or.

Was it just me, or did they spare us on Thursday?

calbar blondie said...

No, they did not call Museum the principal. I think you got bonus points for defining P's role as an agent, but you had to go through the full contract formation, SOF anticipatory repudiation, accord and satisfaction, and then the suit for specific performance. That was the call; not if Museum could be bound. They obviously were; they wired the money(the part performance).

Anonymous said...

The agency issue had to be raised in the inadequacy of remedy element because p could receive damages it was M that would want to assert specific performance and had an inadequate remedy. As such it had to be determined if she was an agent of M.

Anonymous said...

I agree with last comment. Agency WAS a major issue. P was trying to get specific performance from Sally, but she can only do so if there is a mutuality of remedy, that is, if S could enforce the contract against her. Ordinarily an agent is not liable for the authorized contracts of a principle, but if the principle is "undisclosed", as the museum was, then the agent can be liable, thus satisfying the mutuality element.

andrew said...

Blondie,

accord and satisfaction???????

No substitute performance to discharge a prior obligation in 5.

They called the museum the principal.

I may have been delirious but I wasnt hallucinating. Everyone I have spoke with read that word too. Maybe we got a different fact pattern?

calbar blondie said...

Yes, Andrew. An a and c will discharge a duty; mainly Sally's duty to perform because she gave Paula the refund, with the notation. I doubt they would have spent three sentences spelling that out if they didn't want us to give it a mention.
The Barbri staff atty said agency was a possible bonus issue but that the essay from all accounts she heard was contracts/rems/specific performance. That was the call; can P obtain Specific Performance under the CONTRACT.
I'm sure you could have argued it either way, but if you only gave contracts a cursory glance on this essay I doubt you could have passed it.
BTW, I think you are very argumentative and would probably find better company over on Jd underground.

Anonymous said...

Actually, the call said can she get SP under the *agreement*. Didn't say K. So we had to discuss whether there was a K.

And the facts did call the museum the principal.

andrew said...

Thanks for your kind words blondie.

But I have to break it to you.

You said it yourself - the question asked whether SP was available which means like you said, that we had to discuss whether there was an EFORCEABLE CONTRACT.

See, an accord and satisfaction is not a mere refund. Not even a Barbri non-issue to be raised and disposed of.

An accord is a new agreement AFTER A VALID CONTRACT HAS ALREADY BEEN FORMED, where the parties agree to a new, and DIFFERENT PERFORMANCE, that which is satisfied (i.e. performed - hence "satisfaction") will discharge prior duties under an existing ENFORCEABLE CONTRACT.

I guess if you concluded that there was an enforceable contract, then maybe, MAYbe, you could raise the non issue that Sally tried to create an accord with Paula. But, an accord is a substitute agreement for a DIFFERENT performance than that under an already existing contract.

But, I can see where you are coming from. Seriously. No sarcasm.

Also, yes I apologize if I came across argumentative. Sorry.

But, please read your response - it symmetrical to mine. See you on the JD underground.

Im sure you passed. You sound like an intelligent and well-reasoned lawyer (again, with respect, and no sarcasm).

We are all in this together and I hope everyone who really studied hard passes. All those who busted their balls or lack there of should pass.

andrew said...

blondie, you meant to discuss recission.

Frankie said...

in the crim/con law crossover, what about symbolic speech? wasnt the act of trying to burn the constitution a symbolic speech issue?

if not i guess i messed that up.

The Grand Poobah said...

I think the symbolic speech aspect of the act could have been addressed in different ways. As long as you talked about the act in the context of speech you're probably fine.

But I obviously won't know for certain until Nov. 16th. And even then I'll not likely remember what it was I actually wrote on the exam. At least that's my hope.