Confusion Challenges Confidence                                                                                                               

This blog examines practice Multi-State Bar Exam questions and hopefully helps prospective takers learn to spot various devices used that can so easily throw anyone off balance in their 1.8 minute race to the next question.

Confusion Challenges Confidence

Here are a couple of types of MBEs I lump under the “Confusion and/or Supposition” category. Both come from a bar prep course of 2009.

One fact pattern concerns a contract for the sale of a fur coat. 

Upon delivery, a missing button prompts the buyer to reject the coat. The seller offers to have the button replaced at the earliest opportunity, the next regular work day. 

The call of the question asks for the buyer’s legal position. 

The salient point is that no matter how slight, this is an imperfect tender — a tender of nonconforming goods. So the test taker must resolve the perfect tender rule with the legal options available. 

The perfect tender rule allows a buyer to reject any nonconforming tender, even if, as here, the imperfection is not a material breach in the value of the contract goods. 

Complications to the perfect tender rule provide for allowing a seller to cure not just by time due for contract performance, but beyond that time, so long as the extension of time is within a reasonable time. What is a reasonable time extension is a contextual matter of the type and value of goods, among other factors.

The correct answer choice in this case states: “The customer may reject the coat, but she must give the salon owner an opportunity to cure.”

But the structure of this answer is inherently illogical, and therefore naturally confusing.

The concluding clause “she [buyer] must give the salon owner an opportunity to cure” logically implies that the buyer, in fact, has no immediate option to reject; rather she must provide the seller an opportunity to cure, and not just by the contractual time performance is due, but she must give seller a reasonable time beyond.

Law students have seen this often, where the rules of linguistic logic seem to muddle the principle: If the buyer must give the seller reasonable time to cure, then logically there is no immediate right for the buyer to reject the goods.

I, for one, would like to see the writers pay closer attention to their diction in both fact patterns and answer choices. Perhaps a better phrasing would have been to incorporate a qualifier, like “the customer may initially reject the goods . . . but also must give the seller time to cure.”

Try this example, also from the same bar prep course, and also another contracts fact pattern:

Farmer sent an “offer to sell to the bakery 100 bushels of wheat at $30 each.”

That was the “meat of the coconut” so to speak, and seems perfectly straightforward.

Yet, each of the answer choices introduces a novel aspect that somehow that offer was ambiguous. The reasoning in each of the answer choices presents new suppositions. In one answer choice, the farmer failed to state it was a single lot only. In another choice, “attempted formation is flawed by ambiguity so that the minds of the parties never met.” Yet another answer choice suggested that parol evidence is admissible on the question whether the offer contemplated sale of the wheat as a single lot or piecemeal.

This is not an uncommon ploy: The fact pattern is perfectly straightforward, yet new suppositions are insinuated into the answer choices, which, upon reading causes the test taker to doubt what he read to begin with.

We ask ourselves: “What did I miss?”

Basically, this style of question-answer format causes the test taker to question his own understanding of the fundamental principles involved.

This is an insidious format. It would be one thing if the language in the fact pattern had introduced some measure of ambiguity, such as “… offered to sell as many as 100 bushels” or “offered up to 100 bushels.” 

But to read a seemingly straightforward offer and then to have doubt thrust onto the test taker by the introduction of new suppositions in the answer choices is particularly confusing.

It’s a challenge not to let these types of questions chip away at one’s self-confidence. And that effect is cumulative. But self-confidence is a vital component of getting through the MBE: Be confident after having completed all the course work, and also, hopefully, either a third-party or comprehensive home-grown bar review course.

__________________________________________________________________

Disclaimer: The examples cited here are either from the National Conference of Bar Examiners or one of the private bar preparation providers, and are used here under the fair use safe harbor for nonprofit educational purposes outlined in 17 USC §107. BE ADVISED these examples are, perforce, outdated and are used only as illustrations of methodology in form and language that may be encountered on the MBE, and further be advised that the state of current law may not be accurately reflected.