Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York. For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com. And while there, feel free to submit a question. If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com
In a comment to my previous article concerning character evidence, I was asked to write about the distinction concerning buyer and seller remedies under the UCC. This is quite a bit of information, so I will divide the content into two separate articles. This article will focus on buyer’s remedies, and the next article will focus on seller’s remedies.
Let’s first discuss buyer’s right to reject non-conforming goods. When the buyer receives goods from the seller, if those goods do not conform to the specifications as set forth in the contract, buyer can, under some circumstances, reject the goods, and then either cancel the contract or sue the seller.
Let’s assume buyer has rejected non-conforming goods tendered by the seller. The seller is then given the option within the time originally provided for performance, to cure the defect by giving reasonable notice of intention to cure, and making a new tender of conforming goods. If the buyer had accepted the goods, rather than rejected, and those goods turn out to be non-conforming, the buyer is not entirely out of luck. The buyer can still revoke his acceptance if the defect in the goods substantially impair their value, and buyer accepted the goods on the reasonable belief that the defect would be cured (and it was not cured); or if the buyer accepted the goods because of the difficulty of discovering the defects or because the seller assured buyer that the goods conformed to the contract. So, remember to consider both options that buyer has in regards to non-conforming goods: rejecting the goods, or revoking the acceptance of those goods.
Another option for buyer is to replevy identified goods. All this means is that if the buyer has already tendered full payment and the seller becomes insolvent within 10 days after receiving the buyer’s first payment, or if the goods were purchased for personal, family, or household purposes, then the buyer will be able to obtain those goods from seller, provided that those goods have been identified (ie, specific and ascertained goods currently existing).
Finally, the court may order specific performance, which will again allow the buyer to obtain the goods from seller, but in such a case, it will not be a requirement that the goods be identified; it will instead suffice if the goods are unique.
Now, let’s move on to damages. Let’s assume that the buyer has properly rejected non-conforming goods, or has revoked his acceptance of non-conforming goods. The buyer will be entitled to the difference between the contract price, and the market price or cost of buying replacement goods. The purpose here is to put the buyer in the position he would have been in had the seller tendered conforming goods. Buyer is also entitled to incidental and consequential damages, less expenses saved as a result of seller’s breach.
Another possibility is that the buyer has decided to accept goods, even though those goods do not conform to the contract. In such a situation, the buyer is entitled to the difference between the value of the goods accepted, and the value they would have had if they had conformed to the contract, plus incidental and consequential damages. Buyer must remember to notify seller as to the non-conforming nature of the accepted goods, otherwise buyer will lose his ability to collect damages for the accepted goods.
As always, should you have any questions at all, or comments about any of the information in the article, feel free to leave them in the comments section of this post, so that I can address them.
Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York. For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com. And while there, feel free to submit a question. If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com.
In a previous post, I offered my advice regarding a general approach to studying for the MBE. In this post, I will review a specific concept that many students find to be difficult when preparing for the exam. The topic is character evidence in criminal cases, and the rule to consult is in article IV of the Federal Rules of Evidence.
When studying evidence, you should first ensure that you have a clear understanding of the general rules before tackling the exceptions. As such, let’s review rule 404. That rule states that evidence of a person’s character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion.
Now, for the exceptions in criminal cases: The defendant (or accused) can present evidence of his/her own good character (provided that it is a pertinent character trait), in an effort to prove that he acted in conformity with that trait on a particular occasion. The defendant also can introduce evidence of a pertinent character trait of the alleged victim in an effort to prove that the alleged victim acted in conformity with that trait on a particular occasion. In either of these two situations, the door is open for the prosecution to offer evidence rebutting the evidence offered by the defense.
The prosecution is also able to offer character evidence of peacefulness of the alleged victim in a homicide case to rebut evidence that the alleged victim was the first aggressor.
Evidence of the character of a witness can also be introduced for impeachment purposes, but when studying these rules, it is best to keep these topics separated for practical purposes. Rules regarding impeachment can be found in Article VI of the code.
Finally, you should note that although the general rule (see above) prevents evidence from being offered for the purpose of proving that a person acted in conformity with a particular character trait, that same evidence may be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake/accident. This rule exemplifies the importance of focusing not only upon what evidence is being presented, but WHY or for what purpose) the evidence is being presented.
I hope you’ve found this short summary to be helpful. I intend on posting further “breakdowns” in the future; so please feel free to post requests in the comments!
Copyright 2010 Sean Silverman and http://www.mbetutorial.blogspot.com. Reprinted by permission.
Sean Silverman is an attorney and teacher who has prepared numerous students for the MBE, both in person in New York, as well as over Skype for those located outside of New York. For an indication as to his teaching style, visit his website at http://www.mbetutorial.blogspot.com. And while there, feel free to submit a question. If interested in receiving tutoring, feel free to contact him at ssilver0210@hotmail.com.
The MBE is an overwhelming test. It’s overwhelming both physically, and psychologically. Discovering the proper approach to taking in, and learning, the large amount of information necessary to do well on the exam, is essential for success. When tutoring my students for the exam, I always begin by providing the advice that I’m about to set forth in this essay. In my view it’s the first building block, and foundation, to the months ahead of intense studying. To begin, let’s discuss the two components of studying for the MBE, each of which alone will not ensure mastery of the material, but taken together provide a very strong basis for learning the material, and ultimately succeeding on the exam.
The first component is mastery of the substantive material that could potentially be covered on the exam. Thankfully, we’re not left in the dark as to the scope of this information. The National Conference of Bar Examiners (“NCBE”) has provided an outline that all test-takers should print out before beginning their studying.[1] Though the outline is vague, it does provide the test-taker with a convenient checklist to use as a guideline as to whether the information that needs to be learned has been covered while studying. As you learn an area, check off that area on your subject matter outline. This will not only help to keep you organized in your studying, but will also alleviate some of the psychological stress that accumulates when studying the large amount of information covered on this test. You’ll have a direct visual as to the information that you know, and the information that you still need to learn. This is a confidence builder, and the importance of such a mental advantage is paramount. At times, you’ll feel as though you haven’t grasped a certain area of the subject matter outline well enough. Make a note of that on your subject matter outline, so that you can review the material once again in your substantive outlines.
Component two consists of applying the law that you’ve learned through your outlines to the types of questions that consistently show up on the MBE. Although the scope of the MBE is quite broad, after sufficient practice, you will begin to recognize patterns as to how each area of law (from your subject matter outline) is most often tested in the multiple choice format. This recognition of patterns is a skill that all test-takers should strive for, and in reaching this level, you can be confident that you are gaining an adequate understanding not only of the substantive law, but also of the mindset of the test-makers.
In summary, to do well on this exam, you must learn the law on a deep level, and then not only learn how to apply the law, but learn how the law has been applied on previous questions, so that you can use that knowledge as a means of understanding how you will likely need to apply it on your exam. It’s a time-consuming approach, and will often require numerous readings of your substantive outlines, as well as thousands of practice multiple choice questions. But it’s time well spent! You’ll enter the test with the knowledge you need to succeed, and with a confidence to provide you with the means of doing so.
Copyright 2010 Sean Silverman and http://www.mbetutorial.blogspot.com. Reprinted by permission.
[1] http://www.ncbex.org/fileadmin/mediafiles/downloads/Test_PDFs/MBE_PDFs/MBE_2010.pdf#page=10
