Comments on: MBE Question of the Day #42 http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/ All things related to studying for and passing the bar exam, brought to you by the staff of MicroMash Bar Review Sun, 01 Aug 2010 09:54:39 +0000 http://wordpress.org/?v=2.9 hourly 1 By: Cheese http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/comment-page-1/#comment-870 Cheese Thu, 11 Feb 2010 06:51:25 +0000 http://barexambrief.com/?p=889#comment-870 Wrelyea, the section this question is UCC 2-207. It has to do with materially changing a K. Since the nature of this good is perishable, the question is whether the modification is material or not goes to the perishable nature of the good. Wrelyea, the section this question is UCC 2-207. It has to do with materially changing a K. Since the nature of this good is perishable, the question is whether the modification is material or not goes to the perishable nature of the good.

]]> By: Wrelyea http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/comment-page-1/#comment-863 Wrelyea Wed, 10 Feb 2010 19:23:55 +0000 http://barexambrief.com/?p=889#comment-863 Can somone clarify where the requirement for perishable goods is discussed in the formation of a contract. I understand it to be referenced under UCC 2-603 Merchant Buyer's Duties as to Rightfully Rejected Goods. Can somone clarify where the requirement for perishable goods is discussed in the formation of a contract. I understand it to be referenced under UCC 2-603 Merchant Buyer’s Duties as to Rightfully Rejected Goods.

]]> By: Maryann Herman http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/comment-page-1/#comment-858 Maryann Herman Wed, 10 Feb 2010 16:41:31 +0000 http://barexambrief.com/?p=889#comment-858 Answer C is correct. Since the wholesaler merely stated that he would appreciate delivery of half of the agreed amount on each of two different dates, this statement of preference does not become part of the contract and does not alter the fact of acceptance of the seller's offer. Moreover, even if the wholesaler intended these new terms to become part of the contract, they would probably be considered to materially alter it because this contract involves perishable fruit. If that were the case, the new terms would again not become part of the contract. Answer A is incorrect. The offer of the farmer is a firm offer from a merchant and is irrevocable under U.C.C. section 2-205. Section 2-205 provides that a written offer by a merchant (here, the farmer) containing an assurance that the offer will not be revoked is an irrevocable firm offer, and no consideration is required to support the promise that the offer will remain open, so long as the period of irrevocability does not exceed 90 days. The farmer's written offer complies with all of these requirements, and thus cannot be revoked, notwithstanding the rise in prices or the farmer's subsequent attempt to revoke his offer. In essence, having made the offer in a form that is irrevocable, the farmer bears the risk that prices may go up during the time that the offer is open. The wholesaler's acceptance of the farmer's offer is effective upon proper mailing, which was July 12 under the facts of this question, and a contract between the parties was formed as of that time. Answer B is incorrect. The reply of the wholesaler operates as an acceptance under U.C.C. section 2-207. Since the buyer merely stated that he would appreciate delivery of half of the agreed amount on two different dates, this statement of preference does not become part of the contract, and clearly does not alter the fact of the wholesaler's acceptance of the farmer's offer. If the wholesaler intended the new terms to become part of the contract, they would probably be considered to materially alter it because this contract involves perishable goods. If this is the case, then the new terms would simply not become part of the contract. Answer D is incorrect. Since the wholesaler merely stated that he would appreciate delivery of half the agreed amount on two different dates, this statement of preference does not become part of the contract. Anyway, if the wholesaler intended the new terms to become part of the contract, they would probably be considered to materially alter it because the contract involves perishable goods. If that were the case, the new terms would still not become part of the contract, and the farmer would only be obligated to deliver the entire order on August 15. Answer C is correct. Since the wholesaler merely stated that he would appreciate delivery of half of the agreed amount on each of two different dates, this statement of preference does not become part of the contract and does not alter the fact of acceptance of the seller’s offer. Moreover, even if the wholesaler intended these new terms to become part of the contract, they would probably be considered to materially alter it because this contract involves perishable fruit. If that were the case, the new terms would again not become part of the contract.

Answer A is incorrect. The offer of the farmer is a firm offer from a merchant and is irrevocable under U.C.C. section 2-205. Section 2-205 provides that a written offer by a merchant (here, the farmer) containing an assurance that the offer will not be revoked is an irrevocable firm offer, and no consideration is required to support the promise that the offer will remain open, so long as the period of irrevocability does not exceed 90 days. The farmer’s written offer complies with all of these requirements, and thus cannot be revoked, notwithstanding the rise in prices or the farmer’s subsequent attempt to revoke his offer. In essence, having made the offer in a form that is irrevocable, the farmer bears the risk that prices may go up during the time that the offer is open. The wholesaler’s acceptance of the farmer’s offer is effective upon proper mailing, which was July 12 under the facts of this question, and a contract between the parties was formed as of that time.

Answer B is incorrect. The reply of the wholesaler operates as an acceptance under U.C.C. section 2-207. Since the buyer merely stated that he would appreciate delivery of half of the agreed amount on two different dates, this statement of preference does not become part of the contract, and clearly does not alter the fact of the wholesaler’s acceptance of the farmer’s offer. If the wholesaler intended the new terms to become part of the contract, they would probably be considered to materially alter it because this contract involves perishable goods. If this is the case, then the new terms would simply not become part of the contract.

Answer D is incorrect. Since the wholesaler merely stated that he would appreciate delivery of half the agreed amount on two different dates, this statement of preference does not become part of the contract. Anyway, if the wholesaler intended the new terms to become part of the contract, they would probably be considered to materially alter it because the contract involves perishable goods. If that were the case, the new terms would still not become part of the contract, and the farmer would only be obligated to deliver the entire order on August 15.

]]> By: Steve http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/comment-page-1/#comment-856 Steve Wed, 10 Feb 2010 15:20:35 +0000 http://barexambrief.com/?p=889#comment-856 D. the offeror is the master of the contract. A contract is irrevocable if part performance (or detrimental reliance), merchants firm offer, or an option contract. The contract is a Merchant's Firm Offer, which does not need consideration. However, the contract can be modified if done in Good Faith which is present here. D. the offeror is the master of the contract. A contract is irrevocable if part performance (or detrimental reliance), merchants firm offer, or an option contract. The contract is a Merchant’s Firm Offer, which does not need consideration. However, the contract can be modified if done in Good Faith which is present here.

]]> By: Ken http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/comment-page-1/#comment-853 Ken Wed, 10 Feb 2010 05:33:19 +0000 http://barexambrief.com/?p=889#comment-853 D, firm offer is valid for 90 days btwn merchants, ucc 2-205 D, firm offer is valid for 90 days btwn merchants, ucc 2-205

]]> By: Me http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/comment-page-1/#comment-852 Me Wed, 10 Feb 2010 01:22:22 +0000 http://barexambrief.com/?p=889#comment-852 D. On the principles of firm offer and UCC merchant additional offer rules D. On the principles of firm offer and UCC merchant additional offer rules

]]> By: Donna http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/comment-page-1/#comment-851 Donna Wed, 10 Feb 2010 00:46:08 +0000 http://barexambrief.com/?p=889#comment-851 I think the answer is C. The orignal contract was to be left open for 30 days because it was between merchants, firm offer. The farmer could not revoke until after 30 days. The wholesaler accepted the offer before the July 15 deadline. I think the answer is C.
The orignal contract was to be left open for 30 days because it was between merchants, firm offer. The farmer could not revoke until after 30 days. The wholesaler accepted the offer before the July 15 deadline.

]]> By: Wrelyea http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/comment-page-1/#comment-850 Wrelyea Tue, 09 Feb 2010 23:02:59 +0000 http://barexambrief.com/?p=889#comment-850 My only angst with this question is that it uses the term farmer. There is a split in authority as to whether farmers are merchants. When both parties are not merchants any new or additional terms will be construed as proposals for addition, which unless the offeror assents to the new terms, will not become part of the contract. So it is possible that C, could be the best answer... My only angst with this question is that it uses the term farmer. There is a split in authority as to whether farmers are merchants. When both parties are not merchants any new or additional terms will be construed as proposals for addition, which unless the offeror assents to the new terms, will not become part of the contract.

So it is possible that C, could be the best answer…

]]> By: Wrelyea http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/comment-page-1/#comment-849 Wrelyea Tue, 09 Feb 2010 22:56:02 +0000 http://barexambrief.com/?p=889#comment-849 A Merchants Firm offer is open for the stated time period, but in no case greater than three months. The merchant accepted the terms of the offer and only requested a minor change affecting the delivery date. Thus, a valid acceptance occurred for one thousand bushels on August 15 and the remaining 1000 bushels on August 31 for the following reasons: The Merchants Firm Offer Rule: UCC 2-205 provides that where a promise not to revoke an offer for a stated period for the purchase or sale of goods is made, (A) by a merchant, (B) in a signed writing, the offer is irrevocable for the time period stated, or if not time is stated, for a reasonable time, but in no event will the period of irrevocability exceed three months. No consideration is required to keep the offer open. Note: That when the period of irrevocability expires, the offer may still remain open until revoked or rejected according to the general rules regarding termination of an offer. UCC Abandoned Mirror Image Rule: Under UCC 2-207 (1) a definite and seasonable expression of acceptance o a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from the terms of the offer, unless the acceptance is expressly made conditional on assent to the additional or new terms. Whether the additional or different terms in the acceptance or confirmation become part of the contract will depend upon whether the parties are both merchants. When both parties are merchants the additional or new terms in the acceptance or confirmation will be part of the contract unless: (1) the offer expressly limits acceptance to the terms of the offer, or (2) the new additional terms materially alter the offer, or (3) within a reasonable time after learning of the new additional terms, the offeror notifies the offeree that she/he objects to them. Here, the acceptance is still 2,000 bushels of tomatoes, but delivery is requested on different dates, this does not materially alter the contract, the farmer is still selling to the merchant 2,000 bushels of tomatoes. Furthermore, the farmer did not object within a reasonable time period after learning of the new terms. Therefore Answer (D). Provides the solution… A Merchants Firm offer is open for the stated time period, but in no case greater than three months. The merchant accepted the terms of the offer and only requested a minor change affecting the delivery date. Thus, a valid acceptance occurred for one thousand bushels on August 15 and the remaining 1000 bushels on August 31 for the following reasons:

The Merchants Firm Offer Rule: UCC 2-205 provides that where a promise not to revoke an offer for a stated period for the purchase or sale of goods is made, (A) by a merchant, (B) in a signed writing, the offer is irrevocable for the time period stated, or if not time is stated, for a reasonable time, but in no event will the period of irrevocability exceed three months. No consideration is required to keep the offer open.

Note: That when the period of irrevocability expires, the offer may still remain open until revoked or rejected according to the general rules regarding termination of an offer.

UCC Abandoned Mirror Image Rule: Under UCC 2-207 (1) a definite and seasonable expression of acceptance o a written confirmation which is sent within a reasonable time operates as an acceptance even though it states terms additional to or different from the terms of the offer, unless the acceptance is expressly made conditional on assent to the additional or new terms. Whether the additional or different terms in the acceptance or confirmation become part of the contract will depend upon whether the parties are both merchants.

When both parties are merchants the additional or new terms in the acceptance or confirmation will be part of the contract unless: (1) the offer expressly limits acceptance to the terms of the offer, or (2) the new additional terms materially alter the offer, or (3) within a reasonable time after learning of the new additional terms, the offeror notifies the offeree that she/he objects to them.

Here, the acceptance is still 2,000 bushels of tomatoes, but delivery is requested on different dates, this does not materially alter the contract, the farmer is still selling to the merchant 2,000 bushels of tomatoes.

Furthermore, the farmer did not object within a reasonable time period after learning of the new terms.

Therefore Answer (D). Provides the solution…

]]> By: Mona http://barexambrief.com/2010/02/09/mbe-question-of-the-day-42/comment-page-1/#comment-847 Mona Tue, 09 Feb 2010 20:54:57 +0000 http://barexambrief.com/?p=889#comment-847 D because the acceptance does not materially alter the contract and therefore becomes part of the contract . I am still thinking about C especially after reading the "perishable goods" answer, but going with D because thats what I thought in 1.8 minutes. D because the acceptance does not materially alter the contract and therefore becomes part of the contract . I am still thinking about C especially after reading the “perishable goods” answer, but going with D because thats what I thought in 1.8 minutes.

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