This guide focuses on library and internet resources for researching or studying Contracts for the NextGen bar exam. Secondary sources, such as contracts texts & treatises are included. You will also find suggested print or online study aids. If you have any questions about locating these materials, please ask a law librarian, we are here to help.
Topics in this outline will be tested using tasks from the Foundational Skills outline. Questions may test topics from more than one subject area.
Examinees may expect that some questions will be presented with legal resources. When legal resources are provided within the test, the examinee will be expected to demonstrate their ability to efficiently analyze and apply the legal resources to answer the question or questions.
Within this outline, there are two types of topics:
Topics with a star symbol*
Topics followed by a star symbol require an examinee to rely solely on recalled knowledge and understanding of the topic; they will be tested without provision of legal resources.
Topics without a star symbol
Topics without a star symbol may be tested with or without provision of legal resources. When these topics are tested without legal resources, the examinee is expected to rely on recalled knowledge and understanding that will enable the examinee to demonstrate recognition that the topic is at issue in the fact scenario.
If a particular topic’s scope is described in this outline, that does not indicate greater importance or testing frequency of the topic.
I. Identification of governing law *
This topic includes understanding whether a transaction at issue in a test question raises issues governed by the common law or the Uniform Commercial Code Article 2 (UCC), or whether it is a hybrid transaction.
II. Formation of contracts
A. Mutual assent (offer and acceptance, and unilateral, bilateral, and implied-in-fact contracts)
This topic includes what constitutes an offer and an acceptance, how an offeror can control the manner of acceptance, when the offer and acceptance establish mutual assent, and when an offer terminates (e.g., revocation, lapse, rejection, death, counteroffer). This topic also includes the mirror image rule, limitations on the offeror’s power to revoke (e.g., option contracts, firm offers, reliance), and when an offer can be accepted only by a return promise, only by performance, or by either a promise or performance. This topic also includes sale advertisements and offers made to the public (e.g., offers of reward money).
1. Manifestation of assent *
2. Offers *
3. Limitations on the power of acceptance *
4. Acceptance *
B. Consideration (bargained-for exchange) *
This topic includes what constitutes a bargained-for exchange and adequacy of consideration, past consideration, and moral obligation. This topic also includes the preexisting duty rule and forbearance to sue as consideration.
C. Obligations enforceable without a bargained-for exchange *
D. Modification of contracts *
This topic includes requirements for modification; distinctions between modification, waiver, and course of performance; and the effect of no-oral-modification clauses.
E. Contract formation and modification under the UCC
This topic includes contract formation and modification principles under UCC Article 2 and the use of default rules to fill gaps in contract terms.
III. Defenses to enforceability
A. Incapacity to contract
This topic includes contracts entered into by minors or individuals who are impaired, under guardianship, or under the influence of drugs or alcohol.
B. Duress and undue influence
C. Mistake and misunderstanding *
This topic includes mutual mistake and unilateral mistake, including when a party bears the risk of the mistake. This topic also includes misunderstanding in meaning and scrivener’s error (leading to reformation).
D. Fraud, misrepresentation, and nondisclosure *
This topic includes fraudulent misrepresentation, material misrepresentation, concealment, and nondisclosure, as well as the different remedies available for each.
E. Illegality and public policy
F. Unconscionability under the common law
G. Unconscionability under the UCC
H. Statute of frauds
1. Contracts covered by the statute of frauds *
2. Satisfaction of the statute of frauds *
3. Exceptions to the writing requirement *
4. Statute of frauds under the UCC *
This topic includes the UCC’s statute-of-frauds requirements, including the exceptions that remove the statute of frauds as a bar to enforcement of a contract (e.g., part performance and specially manufactured goods).
5. Electronic transactions
This topic includes the scope of the Uniform Electronic Transactions Act and when an electronic signature or an electronic record is effective.
IV. Contract content and meaning
A. Parol evidence rule *
This topic includes the meaning and application of the parol evidence rule, including the effect of a partially or completely integrated agreement on the admissibility of evidence, and exceptions to the parol evidence rule (e.g., interpretation, fraud, mistake, conditions). This topic also includes differences in application of the rule depending on whether evidence is proffered to supplement, explain, or contradict a written agreement.
B . Parol evidence under the UCC
C. Interpretation *
This topic includes the basic rules of contract interpretation and their relative priority with respect to contract language and ambiguities.
D. Usage, course of dealing, and course of performance *
E. Usage, course of dealing, and course of performance under the UCC
F. Omitted and implied terms
V. Performance
A. Conditions *
This topic includes distinctions between promises and conditions. This topic also includes the nonoccurrence and excuse of conditions, as well as conditions of satisfaction.
B. Obligation of good faith and fair dealing *
C. Performance under the UCC
This topic includes tender, risk of loss, title, rejection, cure, acceptance, and revocation of acceptance.
D. Warranties and disclaimers under the UCC *
This topic includes creation and breach of express warranties, warranties of title and against infringement, implied warranties of merchantability and fitness for a particular purpose, what constitutes a breach of warranty, and sellers’ defenses to breach of warranty, including warranty disclaimers and failure to provide notice.
VI. Breach and discharge
A. Material breach, partial breach, and substantial performance *
B. Anticipatory repudiation *
This topic includes anticipatory repudiation, retraction of repudiation, and demand for adequate assurance.
C. Anticipatory repudiation under the UCC
D. Impossibility, impracticability, frustration of purpose, and risk of loss *
This topic includes the requirements for establishing impracticability or frustration of purpose, the appropriate uses of these defenses, and their effect on each party’s performance obligations. This topic also includes the effects of partial and temporary excuse and force majeure provisions.
E. Impossibility, impracticability, frustration of purpose, and risk of loss under the UCC
F. Discharge of duties: accord and satisfaction, substituted contract, novation, rescission, and release *
G. Breach of employment contracts
This topic includes the distinction between at-will contracts and contracts for a definite term.
VII. Remedies
A. Expectation interest: direct, incidental, and consequential damages *
This topic includes the standard measure of expectation damages and the categories of expectation damages (i.e., direct, incidental, consequential) and when lost profits are recoverable.
B. Causation, certainty, and foreseeability *
This topic includes causation and certainty requirements for all expectation damages, the foreseeability requirement for consequential damages, and recognition of different ways to calculate an appropriate damages award.
C. Liquidated damages and penalties *
This topic includes how to distinguish between liquidated damages clauses and penalties, as well as when the parties’ agreed-to limitation of remedies is enforceable, and when disclaimers of consequential damages are unenforceable.
D. Avoidable consequences and mitigation of damages *
E. Reformation
This topic includes the requirements for obtaining reformation of a contract (and equitable defenses) when the parties inadvertently omit an agreed-upon term from the writing.
F. Specific performance and injunction *
This topic includes when specific performance is an available remedy (e.g., land) and when a court might issue an injunction instead.
G. Reliance and restitution interests
This topic includes reliance damages and restitution as alternatives to expectation damages, restitution for the party in breach, and other circumstances where restitutionary recovery is appropriate to prevent unjust enrichment.
H. Remedies under the UCC
VIII. Third-party rights and obligations
A. Third-party beneficiaries
This topic includes distinctions between intended and incidental third-party beneficiaries, as well as defenses against claims asserted by intended beneficiaries.
B. Assignment of rights and delegation of duties
This topic includes the types of contractual rights that can be assigned and the types of contractual duties that can be delegated, requirements for assignment or delegation, and the effect of assignment or delegation on who can enforce the underlying contractual obligations against whom (including available defenses). This topic also includes the effect of clauses prohibiting assignment or delegation and the requirements for revocation of gratuitous assignments.
C. Assignment of rights and delegation of duties under the UCC