BARBRI MBE EXAM SCRIPT UPDATED QUESTIONS AND
ANSWERS RATED A+
✔✔Formation of Contract — Termination of Offers (Lapse of Time) - ✔✔If offer fails to
state how long will stay open, it's open for a reasonable time (e.g., 30 days, not 5 years)
✔✔Formation of Contract — Termination of Offers (Revocation): How, Effective,
Irrevocable (4) - ✔✔How:
1. Unambiguous statement by offeror to offeree of unwillingness or inability to contract
OR
2. Unambiguous conduct by offeror indicating unwillingness or inability to contract that
OFFEREE IS AWARE OF.
When effective:
1. Revocation sent through mail is not effective UNTIL RECEIVED
2. Offer cannot be revoked once it has been accepted.
Offers that cannot be revoked:
1. Option K: Promise to keep open AND promise supported by consideration
2. Merchant Firm Offer: Cannot be revoked for 3 months if: i. offer to buy or sell goods;
ii. signed written promise to keep offer open; iii. party is a merchant (merchant generally
a person in business)
3. Reliance: Offer cannot be revoked if detrimental reliance by offeree that is reasonably
foreseeable
4. Start of performance to unilateral offer open for reasonable time to complete.
Performance not mere prep.
✔✔Formation of Contract — Termination of Offers (Rejection): Indirect - ✔✔1.
Counteroffer. Not a counteroffer if mere bargaining. Look at form of response. If
declarative = counteroffer. If question = bargaining.
2. Conditional Acceptance: "if" "but" "provided" "so long as" "on condition that"
3. CL Additional Terms: Mirror image rule = must mirror exactly. Treated like a
counteroffer
✔✔Formation of Contract — Termination of Offers ***UCC Exception for Additional
Terms - ✔✔If offer to buy or sell goods and a response with additional terms, two
questions:
1. Is there a contract:
Under UCC if new terms are not a condition of acceptance treated as a "seasonable
expression of acceptance."
2. Additional term part of contract:
a. Both parties merchants? Yes, generally rule = part of the contract EXCEPT IF
i. it materially changes the offer
ii. if offeror object to the change
, b. One or both parties not merchants? = Merely a proposal that must be accepted or
rejected separately
✔✔Formation of Contract — Termination of Offers (Death) - ✔✔General rule = death or
incapacity of either party kills offer
Exceptions: Option and Part performance of offer to enter into unilateral contract
✔✔Formation of Contract — Acceptance (Who Can Accept) - ✔✔Generally: A person
who knows of offer, who is the person to whom it was made.
***Offers cannot be assigned.
***Options can be assigned unless stated otherwise
✔✔Formation of Contract — Acceptance (6 Methods of Accepting) - ✔✔1. Offeree fully
performs: Notice of performance required if offer requires it and offeree has reason to
believe offeror will not learn of the acceptance
2. Offere starts to perform:
a. Bilateral—If offer open to method of acceptance start of performance = acceptance
b. Unilateral—No acceptance, must complete performance
3. Offeree promises to perform: Most offers can be accepted by promise to perform.
Exceptions = unilateral and reward offers.
4. Offeree and offeror at different places with conflicting communications: Mailbox Rule:
a. Generally, communications are effective only when received
b. Generally, acceptance is effective when SENT
c. If rejection is sent first, ignore Rule 2
5. Seller of goods sends wrong goods:
a. General rule: Acceptance and Breach
b. Accommodation Exception: Counteroffer and no breach
6. Offeree silent
a. General rule: Silence is not acceptance
b. Exception if custom indicates slient acceptance is reasonable or offeree says silence
will be acceptance
✔✔Formation of Contract — Consideration or Consideration Substitute (Def. of
Consideration) - ✔✔Bargained for Legal Detriment
Identify promisor (D) and ask what did he bargain for. Identify the promisee (P) and ask
what detriment did she incur.
✔✔Formation of Contract — Consideration or Consideration Substitute (Forms of
Consideration) - ✔✔1. Performance, i.e. doing something not legally obligated to do.
ANSWERS RATED A+
✔✔Formation of Contract — Termination of Offers (Lapse of Time) - ✔✔If offer fails to
state how long will stay open, it's open for a reasonable time (e.g., 30 days, not 5 years)
✔✔Formation of Contract — Termination of Offers (Revocation): How, Effective,
Irrevocable (4) - ✔✔How:
1. Unambiguous statement by offeror to offeree of unwillingness or inability to contract
OR
2. Unambiguous conduct by offeror indicating unwillingness or inability to contract that
OFFEREE IS AWARE OF.
When effective:
1. Revocation sent through mail is not effective UNTIL RECEIVED
2. Offer cannot be revoked once it has been accepted.
Offers that cannot be revoked:
1. Option K: Promise to keep open AND promise supported by consideration
2. Merchant Firm Offer: Cannot be revoked for 3 months if: i. offer to buy or sell goods;
ii. signed written promise to keep offer open; iii. party is a merchant (merchant generally
a person in business)
3. Reliance: Offer cannot be revoked if detrimental reliance by offeree that is reasonably
foreseeable
4. Start of performance to unilateral offer open for reasonable time to complete.
Performance not mere prep.
✔✔Formation of Contract — Termination of Offers (Rejection): Indirect - ✔✔1.
Counteroffer. Not a counteroffer if mere bargaining. Look at form of response. If
declarative = counteroffer. If question = bargaining.
2. Conditional Acceptance: "if" "but" "provided" "so long as" "on condition that"
3. CL Additional Terms: Mirror image rule = must mirror exactly. Treated like a
counteroffer
✔✔Formation of Contract — Termination of Offers ***UCC Exception for Additional
Terms - ✔✔If offer to buy or sell goods and a response with additional terms, two
questions:
1. Is there a contract:
Under UCC if new terms are not a condition of acceptance treated as a "seasonable
expression of acceptance."
2. Additional term part of contract:
a. Both parties merchants? Yes, generally rule = part of the contract EXCEPT IF
i. it materially changes the offer
ii. if offeror object to the change
, b. One or both parties not merchants? = Merely a proposal that must be accepted or
rejected separately
✔✔Formation of Contract — Termination of Offers (Death) - ✔✔General rule = death or
incapacity of either party kills offer
Exceptions: Option and Part performance of offer to enter into unilateral contract
✔✔Formation of Contract — Acceptance (Who Can Accept) - ✔✔Generally: A person
who knows of offer, who is the person to whom it was made.
***Offers cannot be assigned.
***Options can be assigned unless stated otherwise
✔✔Formation of Contract — Acceptance (6 Methods of Accepting) - ✔✔1. Offeree fully
performs: Notice of performance required if offer requires it and offeree has reason to
believe offeror will not learn of the acceptance
2. Offere starts to perform:
a. Bilateral—If offer open to method of acceptance start of performance = acceptance
b. Unilateral—No acceptance, must complete performance
3. Offeree promises to perform: Most offers can be accepted by promise to perform.
Exceptions = unilateral and reward offers.
4. Offeree and offeror at different places with conflicting communications: Mailbox Rule:
a. Generally, communications are effective only when received
b. Generally, acceptance is effective when SENT
c. If rejection is sent first, ignore Rule 2
5. Seller of goods sends wrong goods:
a. General rule: Acceptance and Breach
b. Accommodation Exception: Counteroffer and no breach
6. Offeree silent
a. General rule: Silence is not acceptance
b. Exception if custom indicates slient acceptance is reasonable or offeree says silence
will be acceptance
✔✔Formation of Contract — Consideration or Consideration Substitute (Def. of
Consideration) - ✔✔Bargained for Legal Detriment
Identify promisor (D) and ask what did he bargain for. Identify the promisee (P) and ask
what detriment did she incur.
✔✔Formation of Contract — Consideration or Consideration Substitute (Forms of
Consideration) - ✔✔1. Performance, i.e. doing something not legally obligated to do.
