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Sub: Contract - modification
Author: ok [21302]
05 Feb 2010 11:15 PM
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ok

Structo contracted with bailey to construct for $500,000 a warehouse and an access driveway at highway level. Shortly after commencing work on the driveway, which required for the specified level some excavation and removal of surface material, Structo unexpectedly encountered a large mass of solid rock.

Structo informed Bailey (accurately) that because of the rock the driveway as specified would cost atleast $20,000 more than figured, and demanded for that reason a total contract price of $520,000. Since bailey was exepecting warehousing customers immediately after the agreed completion date, he signed a writing promising to pay the additional $20,000. Following timely completion of the warehouse and drivewat, which confirmed to the contract in all repects, Bailey refused to pay Structo more than $500,000.

What is the maximum amount to which Structo is entitled?

(A) $500,000 because there was no consideration for Bailey's promise to pay the additional $20,000.

(B) $500,000 because Bailey promise to pay the additional $20,000 was exacted under duress.

(C) $520,000 because the modificatiob was fair and was made in light of circumstances not anticipated by the parties when the original contract was made.

(D) $520,000 provided that the reasonable value of Structo's total performance was that much or more.

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Author: ThomCA [21302]
06 Feb 2010 12:26 AM
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ThomCA

C is correct

A fails because both parties were required to suffer additional detriments not known at the time of the original contract

B fails because structo request for additional money is not improper. The rock was unexpected at the time of contracting

D fails because price would be undeterminable at the time of contacting if it was based on a subjective measure such as reasonable efforts of one party.

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Author: belandrei [300] Send Private Message
06 Feb 2010 01:20 AM
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belandrei


Be mechanical

Step1. it is CL , not UCC, since it was K for services
Strep2.  Eliminate wrong answers:
What is the maximum amount to which Structo is entitled?

(A) $500,000 because there was no consideration for Bailey's promise to pay the additional $20,000.

Well,  it is true so far, cause there was no consideration, give it +/-

(B) $500,000 because Bailey promise to pay the additional $20,000 was exacted under duress. Nope, builder did nothing to cause duress, Indeed, did builder plant the rock to jack up the price, No, he did not.

(C) $520,000 because the modificatiob was fair and was made in light of circumstances not anticipated by the parties when the original contract was made. 

Look for words " not anticipated".  Wrong, builder is pro he should have anticipated and allocated risk. those rocks are in all the time. it was not stray stone from the moon. Builder is guilty of poor buz judgment , hence just swallow the loss. All he had to do is make a K with contingency built in
K= $500 for normal ground or K=  $520 if we encounter rocks, etc

(D) $520,000 provided that the reasonable value of Structo's total performance was that much or more.

Bunch of nonsense, exam writer tries to get you into "fairness" , lets be fair. Yah, right, but not on MBE. Typical answer for suckers " reasonable value...much or more" Bunch of crap

Looks like under CL builder screwed up and owner does not have to pay new K price b/c of want of consideration
Go with  "A" answer
P.S.
As much previous MBEs were "property"exams. the very last one (July 2009) was heavily " contract"  exam


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Author: seabee [17] Send Private Message
06 Feb 2010 11:01 AM
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seabee

Since A is perfect law and a perfect answer, and this is the mbe,  I'll go with C.

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Author: me [21302]
06 Feb 2010 12:10 PM
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me

Saebee, we know you are trying to be sarcastic. You meant that because this is MBE, and "A" is a perfect law, it is hence a perfect answer. That's a wrong assumption because, perfect statement of law or not, the facts must support your answer.

25029
Author: ok [21302]
06 Feb 2010 08:12 PM
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ok

The answer is C and I have no idea why. Please explain!! I also think the answer is A and I guess there is a similar question in PMBR, but this one is from released MBE's question.

25041
Author: Guessing :) [21302]
06 Feb 2010 09:51 PM
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Guessing :)

Its C, this is what I would call a mutual mistake solution to the problem. Structo didn't know about the rock, says unexpected, had they known there was rocks in the soil... this argument would fail, but since they didn't... its a fair result for the additional $20k to be added to the bill. This isn't pre-existing, because this was a mistake that neither party expected... so you could say the $20k was additional consideration outside the scope of the original agreement.

25046
Author: unilateral mistake [21302]
06 Feb 2010 10:19 PM
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unilateral mistake

there is no mutual mistake, but rather unilateral mistake by professional builder, K price is not to be adj

25047
Author: RichLitvin [21302]
08 Feb 2010 07:39 PM
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RichLitvin

Sorry, but I cannot resist commenting. This Q illustrates that you need to read the actual Q carefully. It asks: What is the Maximum amount .... This approach has been used on MBE where there is a split of authority. So Under general Common law pre-existing duty Rule, A would be answer. Need consideration for modification.
However,Restatement 2nd Contracts says Modifications are enforcable
IF "fair and equitable ....." just like in Choice C.
So I would say, A is correct if asked most likely outcome. But C is best when asked "most" that P can collect.
This type of Q was fairly common way of dealing with such splits of authority in past. WHether NCBEX will continue with this, only they know.
But I use this and similar Q's to illustrate importance of reading actual Call of Q. Often makes big difference, but is easy to overlook.
Rich Litvin

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Author: ok [21302]
08 Feb 2010 07:45 PM
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ok

Rich,

Thank you for the explaination. By the way why do u want to resist commenting, we post the question here so that people comment and not resist commenting. Its only when we share we learn new things. Anyhow thanks again, I got your point and please keep commenting on logical points so that we all learn from each other and not do the mistake on actual bar.

25119
Author: belandrei [300] Send Private Message
08 Feb 2010 09:26 PM
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belandrei

Prof. Litvin, you are a great tutor , but for more precise law:
http://www.lexinter.net/LOTWVers4/modification_of_executory_contract.htm

Indeed, paragraph cited deals with bargains which are without consideration only because of the rule that performance of a legal duty to the promisor is not consideration. See §73.

The rule of §73 finds its modern justification in cases of promises made by mistake or induced by unfair pressure.  "fair and equitable" requires an objectively demonstrable reason for seeking a modification. Compare Uniform Commercial Code §2-209 Comment. The reason for modification must rest in circumstances not "anticipated" as part of the context in which the contract was made, but a frustrating event may be unanticipated for this purpose if it was not adequately covered, even though it was foreseen as a remote possibility.

please take a look at following illustration. all of showing gross impact (either one time or over periods of time for "mistaken" party"

Illustrations:

1. By a written contract A agrees to excavate a cellar for B for a stated price. Solid rock is unexpectedly encountered and A so notifies B. A and B then orally agree that A will remove the rock at a unit price which is reasonable but nine times that used in computing the original price, and A completes the job. B is bound to pay the increased amount.

Is it fair and equitable in the hypo with original price 500K ---> 520K????

5% of K price.

So I hire a remodel contractor for $20K , he rips my kitchen and comes back to me asking for $21K b/c  piping price miscalculation, I agree, and I am bound?

I will rather show him Rest2, and the max of the recovery would be $20K.

because if we follow fair and equitable, he would be jacking up the price every day.


2. A contracts with B to supply for $300 a laundry chute for a building B has contracted to build for the Government for $150,000. Later A discovers that he made an error as to the type of material to be used and should have bid $1,200. A offers to supply the chute for $1000, eliminating overhead and profit. After ascertaining that other suppliers would charge more, B agrees. The new agreement is binding.

3. A is employed by B as a designer of coats at $90 a week for a year beginning November 1 under a written contract executed September 1. A is offered $115 a week by another employer and so informs B. A and B then agree that A will be paid $100 a week and in October execute a new written contract to that effect, simultaneously tearing up the prior contract. The new contract is binding.

4. A contracts to manufacture and sell to B 2,000 steel roofs for corn cribs at $60. Before A begins manufacture a threat of a nationwide steel strike raises the cost of steel about $10 per roof, and A and B agree orally to increase the price to $70 per roof. A thereafter manufactures and delivers 1700 of the roofs, and B pays for 1,500 of them at the increased price without protest, increasing the selling price of the corn cribs by $10. The new agreement is binding.

5. A contracts to manufacture and sell to B 100,000 castings for lawn mowers at 50 cents each. After partial delivery and after B has contracted to sell a substantial number of lawn mowers at a fixed price, A notifies B that increased metal costs require that the price be increased to 75 cents.

Substitute castings are available at 55 cents, but only after several months delay. B protests but is forced to agree to the new price to keep its plant in operation. The modification is not binding.



25120
Author: Prof Litvin [21302]
09 Feb 2010 11:06 PM
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Prof Litvin

Not sure what your criticism is. The problem with looking at the details of restatement is that no one has time to read and learn it all. So have to rely on understanding of general principals.
That is why I would think we have to cut to the simpler explanation.
Rich

25201
Author: udem [2] Send Private Message
11 Feb 2010 05:10 PM
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udem

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