One could argue that contracts are the “necessary evil” in the legal profession because they are anything but a fun read. You know how sophisticated legal jargon can be if you’ve read any legally binding agreement (think of your lease contract or any generic Terms of Service). Still, that not-so-easy-to-decipher technical language (believe it or not, it’s English) is critical to protecting the interests of all parties involved in a binding agreement.
|Topic||Percent Tested||# of Questions|
|Formation of Contracts||25%||6-7|
|Performance, Breach, and Discharge||25%||6-7|
|Defenses to Enforceability||12.5%||3-4|
|Contract Content and Meaning||12.5%||3-4|
Now we’ll navigate through a few tips to dissect Contracts questions asked on the MBE toward arriving at the correct answer:
1. Identifying the Modern Predominant-Purpose
Part of what makes Contracts a tricky subject is distinguishing between the purpose of contracts. For example, it would be difficult to determine whether a catering contract would be a contract for services or goods.
Here’s a good rule of thumb: Ask yourself what the main purpose of the contract is, and you’ll be on the right track. It would be a contract for services if the agreement’s primary purpose was for the caterer to work an event for the other party. On the other hand, it would be a contract for goods if the primary purpose was to drop off or deliver food.
Your ability to make such a distinction is critical to approaching MBE Contracts questions correctly. Success depends on identifying whether a contract is governed by common law or the Uniform Commercial Code (UCC) as it can have implications on contract formation and interpretation.
2. Understanding the Mailbox Rule
Consider this scenario: You mailed a rejection, then changed your mind and mailed an acceptance. In so doing, did you form a contract?
Like with most legal questions, the answer is “it depends.” The chart below depicting the Mailbox Rule should help you answer the question:
The Mailbox Rule, which governs the effectiveness of acceptances and rejections transmitted by mail (or email), is anything but straightforward. Since it applies to contracts under the common law and UCC, there’s no escaping it on the MBE.
Upon careful review of the flowchart, you should see the legal reasoning to apply in the above scenario. If you send an acceptance first, then you’ve likely formed a contract, but if you send a rejection first, then the letter (or email) first received by the offeror wins. So, the correct answer depends on which one (rejection or acceptance) was received first.
3. Applying the Firm-Offer Rule
When facing a firm-offer Contracts question on the MBE, you should apply the Firm-Offer Rule. The UCC defines a firm offer as “an offer that cannot be revoked despite a lack of consideration from the offeree if it is made and signed by a merchant.” To answer a firm-offer question right, you must also know the meaning of “merchant” in this context.
According to the UCC, a merchant is “one who regularly deals in goods of the kind involved or who, by occupation, holds oneself out as having knowledge of skills unique to the goods involved.” But there’s more; in defining merchant, the UCC also states, “But for purposes of the firm-offer rule, a merchant also includes any businessperson if the transaction is commercial in nature.”
When approaching firm-offer Contracts questions, it’s critical to remember that there’s yet another definition of merchant that applies to the implied warranty of merchantability: a seller is a merchant if they deal in goods of the kind sold.
Now let’s put your Contracts knowledge to the test with a sample UWorld Contracts question:
We recognize that this appears to be a predominant-purpose question—“Was the landscaper hired to provide a service, or was the contract for the sale of goods?” Before you answer, recall our advice from Tip #1 above and ask yourself, “What’s the main purpose of the contract?”
A careful reading of the question stem reveals that the primary purpose of this contract was to have the landscaper perform a service for the owner, meaning Choice B would be the correct answer.
Now let’s review UWorld’s famous detailed explanations to see why that answer is correct and the other choices incorrect:
Even the layperson will deal with contracts at some point, so Contracts is a vital MBE topic for law students and graduates to master. We hope that the tips and in-depth explanation of the sample question in this article will give you some helpful insight into the right approach to answering Contracts questions correctly on the MBE.
Sign up for a free trial of the UWorld MBE QBank to help you study for the MBE. For more in-depth practice questions written by the NCBE®, prepare with the complete UWorld MBE QBank. With customizable exams, digital flashcards, vivid images, and a dedicated mobile app, we are confident our active-learning approach will help you pass the first time.