Here is a tip that I’ve learned with contracts: there is more of an element of fairness with MBE contracts questions than some of the other subjects. In property for example, adverse possession has never seemed that fair to me (at the end of the day aren’t you just kind of stealing someone else’s property?). However with contracts questions the answer that seems fair and just tends to be correct the majority of the time. Here are a few examples:
- Unilateral mistake is generally not a defense. But if one party knows or has reason to know about the mistake, the mistaken party can void the contract. In other words you can’t knowingly take advantage of the other party when you know (or should know) that they’ve made a mistake. This seems fair to me.
- If one party’s intentional misrepresentation causes the other party to agree to a contract, that party (the innocent one) can void the contract. Again, this seems fair to me.
- If a person can’t perform a contract because they’ve become incapacitated, their performance will be excused. Imagine if a person was involved in a terrible accident that rendered them paralyzed, and they consequently couldn’t perform a contract. It would seem terribly unfair to hold them in breach of contract. That their performance will be excused under these circumstances seems fair to me.
- A party that breaches a contract is only responsible for damages that were foreseeable at the time the contract was made. It seems fair to me that the breaching party not be held liable for consequences of their breach that they could not have known about or predicted. It also seems fair to me that the breaching party be held liable for consequences of their breach that they did know or should have known would occur.
Note:
This approach will not work all of the time. Knowing the rules inside and out and being able to identify exactly what each question is asking you are absolutely the most important skills to develop (just like every other MBE subject). However, if you do find yourself struggling with a contracts question (as we all do from time to time), relax, take a deep breath, and simply ask yourself which outcome would be the most fair. This will often lead you to the correct answer. Please feel free, as always, to leave a comment if you have any thoughts or questions, and best of luck.