Comments on: MBE Question of the Day #34 http://barexambrief.com/2010/02/01/mbe-question-of-the-day-34/ All things related to studying for and passing the bar exam, brought to you by the staff of MicroMash Bar Review Sat, 07 Apr 2012 13:23:54 +0000 hourly 1 http://wordpress.org/?v=3.2 By: Cory http://barexambrief.com/2010/02/01/mbe-question-of-the-day-34/comment-page-1/#comment-887 Cory Fri, 12 Feb 2010 07:35:26 +0000 http://barexambrief.com/?p=843#comment-887 How is changing the date of delivery an "additional" term? It seems like a different term to me and thus would not become part of the K? How is changing the date of delivery an “additional” term? It seems like a different term to me and thus would not become part of the K?

]]> By: Maryann Herman http://barexambrief.com/2010/02/01/mbe-question-of-the-day-34/comment-page-1/#comment-740 Maryann Herman Tue, 02 Feb 2010 12:43:56 +0000 http://barexambrief.com/?p=843#comment-740 Answer D is correct. This question deals with a transaction for the sale of goods between merchants, and is governed by Article 2 of the U.C.C., specifically by section 2-207. Section 2-207 allows a definite and seasonable expression of acceptance to operate as an acceptance even though it states additional or different terms to the original offer. Since both parties here are merchants, the additional terms become part of the contract unless the offer limits acceptance to the terms of the offer, the additional terms materially alter the offer, or unless notification of objection to the additional terms is seasonably given. Since none of the foregoing conditions are indicated by the facts of this question, the additional delivery terms become part of the contract, and D is the correct answer because it incorporates the feather merchant's shipping dates. Answer A is incorrect. The feather merchant made a definite and seasonable expression of acceptance by stating that he would be happy to fill the order at the usual price. Although the feather merchant's acceptance did vary the delivery terms, it did not expressly state that it was conditional upon the pillow manufacturer's assent to the different or additional delivery terms. Therefore, the pillow manufacturer's assent was not required for contract formation to occur, contrary to the statement made in this choice. Also, this is not a sufficiently different term to be deemed a material alteration. Since both parties are merchants, the additional terms would become part of the contract unless the pillow manufacturer objected to them. Compare the result if this transaction were not governed by the U.C.C.: under the common law, the feather merchant's acceptance varying the terms of the offer would operate as a rejection of the pillow manufacturer's offer and a counteroffer thereto, and no contract would be formed unless the pillow manufacturer accepted the counteroffer. Answer B is incorrect. If this transaction were not governed by the U.C.C., under the common law, the feather merchant's acceptance varying the terms of the offer would operate as a rejection of the pillow manufacturer's offer and a counteroffer thereto, and no contract would be formed unless the pillow manufacturer accepted the counteroffer. Since this transaction is governed by the U.C.C. and not by the common-law rule, contract formation does occur without the pillow manufacturer's acceptance, and B is incorrect. Answer C is incorrect. Since both parties are merchants, the new delivery terms become part of the contract because the pillow manufacturer has not objected to them, they do not materially alter the contract, and the offer does not limit acceptance to the terms of the offer. Therefore, C is incorrect because it does not recognize the new delivery terms. Answer D is correct. This question deals with a transaction for the sale of goods between merchants, and is governed by Article 2 of the U.C.C., specifically by section 2-207. Section 2-207 allows a definite and seasonable expression of acceptance to operate as an acceptance even though it states additional or different terms to the original offer. Since both parties here are merchants, the additional terms become part of the contract unless the offer limits acceptance to the terms of the offer, the additional terms materially alter the offer, or unless notification of objection to the additional terms is seasonably given. Since none of the foregoing conditions are indicated by the facts of this question, the additional delivery terms become part of the contract, and D is the correct answer because it incorporates the feather merchant’s shipping dates.

Answer A is incorrect. The feather merchant made a definite and seasonable expression of acceptance by stating that he would be happy to fill the order at the usual price. Although the feather merchant’s acceptance did vary the delivery terms, it did not expressly state that it was conditional upon the pillow manufacturer’s assent to the different or additional delivery terms. Therefore, the pillow manufacturer’s assent was not required for contract formation to occur, contrary to the statement made in this choice. Also, this is not a sufficiently different term to be deemed a material alteration. Since both parties are merchants, the additional terms would become part of the contract unless the pillow manufacturer objected to them. Compare the result if this transaction were not governed by the U.C.C.: under the common law, the feather merchant’s acceptance varying the terms of the offer would operate as a rejection of the pillow manufacturer’s offer and a counteroffer thereto, and no contract would be formed unless the pillow manufacturer accepted the counteroffer.

Answer B is incorrect. If this transaction were not governed by the U.C.C., under the common law, the feather merchant’s acceptance varying the terms of the offer would operate as a rejection of the pillow manufacturer’s offer and a counteroffer thereto, and no contract would be formed unless the pillow manufacturer accepted the counteroffer. Since this transaction is governed by the U.C.C. and not by the common-law rule, contract formation does occur without the pillow manufacturer’s acceptance, and B is incorrect.

Answer C is incorrect. Since both parties are merchants, the new delivery terms become part of the contract because the pillow manufacturer has not objected to them, they do not materially alter the contract, and the offer does not limit acceptance to the terms of the offer. Therefore, C is incorrect because it does not recognize the new delivery terms.

]]> By: mimi http://barexambrief.com/2010/02/01/mbe-question-of-the-day-34/comment-page-1/#comment-735 mimi Mon, 01 Feb 2010 22:28:12 +0000 http://barexambrief.com/?p=843#comment-735 answer d. answer d.

]]> By: shahin http://barexambrief.com/2010/02/01/mbe-question-of-the-day-34/comment-page-1/#comment-734 shahin Mon, 01 Feb 2010 21:27:54 +0000 http://barexambrief.com/?p=843#comment-734 Answer D Answer D

]]> By: gmevans http://barexambrief.com/2010/02/01/mbe-question-of-the-day-34/comment-page-1/#comment-733 gmevans Mon, 01 Feb 2010 20:33:20 +0000 http://barexambrief.com/?p=843#comment-733 I believe the best answer is D b/c of the UCC rule that a valid contract is formed between merchants even if there are different or additional terms if they don't materially alter the offer and the offeree doesn't object. I believe the best answer is D b/c of the UCC rule that a valid contract is formed between merchants even if there are different or additional terms if they don’t materially alter the offer and the offeree doesn’t object.

]]> By: Ken http://barexambrief.com/2010/02/01/mbe-question-of-the-day-34/comment-page-1/#comment-732 Ken Mon, 01 Feb 2010 18:20:25 +0000 http://barexambrief.com/?p=843#comment-732 D Additional modification of a commercial contract under UCC is accepted as long as it is reasonable, offeror does not onject and acceptance not expressly limited to the offer. Here, a change from June 1st to June 8 --- is a week's difference (fairly reasonable in a contract where time is not of the essence); offeror is silent on the additional terms added; and offeor has not expressed that he will only accept a mirror of his offer. Thus, UCC 2-207 will find a contract on the terms of the counter-offer. D

Additional modification of a commercial contract under UCC is accepted as long as it is reasonable, offeror does not onject and acceptance not expressly limited to the offer.

Here, a change from June 1st to June 8 — is a week’s difference (fairly reasonable in a contract where time is not of the essence); offeror is silent on the additional terms added; and offeor has not expressed that he will only accept a mirror of his offer. Thus, UCC 2-207 will find a contract on the terms of the counter-offer.

]]> By: BV http://barexambrief.com/2010/02/01/mbe-question-of-the-day-34/comment-page-1/#comment-730 BV Mon, 01 Feb 2010 17:19:52 +0000 http://barexambrief.com/?p=843#comment-730 D is the best answer. Although the date of delivery makes the terms different, the terms will become part of the contract (between merchants) as long as they do not materially alter and the delivery is made within a reasonable time. Here, nothing in the facts suggests a material alteration as to the time of delivery; thus, one week (June 8 as opposed to June 1) appears to be a reasonable under the U.C.C. Further, the offer did not expressly limit acceptance to the terms of the offer; nor has the offeror objected to the particular terms. D is the best answer. Although the date of delivery makes the terms different, the terms will become part of the contract (between merchants) as long as they do not materially alter and the delivery is made within a reasonable time. Here, nothing in the facts suggests a material alteration as to the time of delivery; thus, one week (June 8 as opposed to June 1) appears to be a reasonable under the U.C.C. Further, the offer did not expressly limit acceptance to the terms of the offer; nor has the offeror objected to the particular terms.

]]> By: RK http://barexambrief.com/2010/02/01/mbe-question-of-the-day-34/comment-page-1/#comment-729 RK Mon, 01 Feb 2010 16:47:50 +0000 http://barexambrief.com/?p=843#comment-729 D is the best answer. This is a contract governed by article 2. Both of the parties involved are merchants, therefore under 2-207, where there are different or additional terms, the agreement will include the additional terms, because this term does not materially alter the contract. D is the best answer. This is a contract governed by article 2. Both of the parties involved are merchants, therefore under 2-207, where there are different or additional terms, the agreement will include the additional terms, because this term does not materially alter the contract.

]]> By: Cheese http://barexambrief.com/2010/02/01/mbe-question-of-the-day-34/comment-page-1/#comment-728 Cheese Mon, 01 Feb 2010 16:30:42 +0000 http://barexambrief.com/?p=843#comment-728 D - Good faith modifications here will be made without need for consideration - UCC sale between merchants. Modification will be invalid if 'time is of the essence', bc it would make that term material to the K. Here, this modification will not materially alter the contract, therefore they will have to wait till June 8 to get their feathers. D – Good faith modifications here will be made without need for consideration – UCC sale between merchants. Modification will be invalid if ‘time is of the essence’, bc it would make that term material to the K. Here, this modification will not materially alter the contract, therefore they will have to wait till June 8 to get their feathers.

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