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Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts

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California Bar Exam Exam

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1 Exam Format and Core Skills

California Bar Exam Blueprint: Subjects, Components, and Recent Changes Exam Format, Scoring, and the 1390 Passing Score Essay Strategy: Issue Spotting and IRAC Core Written Skills and Timing Strategy

2 Civil Procedure

Subject Matter Jurisdiction: Federal Question, Diversity, Supplemental, Removal Personal Jurisdiction, Long-Arm, Minimum Contacts, and Service of Process Venue, Transfer, and Forum Non Conveniens The Erie Doctrine and Choice of Law Pleadings, Rule 11, Amendments, and California Demurrers / Anti-SLAPP Joinder of Claims and Parties, Impleader, Intervention, Interpleader Class Actions (Rule 23 and California) Discovery: Scope, Devices, Privilege, and Sanctions Pretrial Adjudication: Dismissals, Default, and Summary Judgment Trial, Jury, Judgment as a Matter of Law, and Post-Trial Motions Appeals, the Final Judgment Rule, and Claim/Issue Preclusion

3 Constitutional Law

Judicial Review, Justiciability, Standing, Ripeness, Mootness, and Political Questions Federal Legislative Power: Commerce, Taxing & Spending, and the Tenth and Eleventh Amendments Separation of Powers: Executive, Legislative, and Judicial Authority Federalism, Supremacy, Preemption, the Dormant Commerce Clause, and Privileges & Immunities State Action and Congressional Enforcement of the Reconstruction Amendments Procedural Due Process Substantive Due Process and Fundamental Rights Equal Protection and Levels of Scrutiny First Amendment: Speech, Press, Forums, and Association First Amendment Religion Clauses and the Takings Clause

4 Contracts

Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts Mutual Assent: Offer, Acceptance, Mailbox Rule, and UCC 2-207 Consideration, Bargained-for Exchange, and Promissory Estoppel Defenses to Formation: Capacity, Mistake, Misrepresentation, Duress, Unconscionability The Statute of Frauds Parol Evidence Rule and Contract Interpretation Conditions and Performance: Express, Constructive, and Substantial Performance Breach, Anticipatory Repudiation, and the Perfect Tender Rule Excuse of Performance: Impossibility, Impracticability, and Frustration UCC Warranties and Risk of Loss Third-Party Beneficiaries, Assignment, and Delegation Contract Remedies and UCC Buyer/Seller Remedies

5 Criminal Law and Procedure

Actus Reus, Mens Rea, Concurrence, and Causation Accomplice Liability and Parties to Crime Inchoate Crimes: Attempt, Conspiracy, and Solicitation Homicide: Murder, Manslaughter, Felony Murder, and California Degrees Other Crimes Against the Person: Assault, Battery, Kidnapping, and Sex Offenses Property and Theft Crimes: Larceny, Embezzlement, Robbery, Burglary, Arson Criminal Defenses: Insanity, Intoxication, Self-Defense, Duress, Necessity, Mistake Fourth Amendment: Searches, Seizures, Warrants, and Exceptions The Exclusionary Rule, Standing, and Fruit of the Poisonous Tree Fifth Amendment: Miranda, Self-Incrimination, and Double Jeopardy Sixth Amendment: Right to Counsel, Confrontation, Speedy Trial, and Jury Pretrial Identifications, the Eighth Amendment, and Trial Rights

6 Evidence

Relevance: Logical and Legal, Rule 403, and California Proposition 8 Policy-Based Exclusions: Subsequent Remedial Measures, Settlements, Insurance, Pleas Authentication and the Best Evidence Rule Witness Competency, Personal Knowledge, and Examination Impeachment of Witnesses Lay and Expert Opinion Testimony (Daubert and California Kelly/Sargon) Character Evidence and Other Acts (MIMIC) Habit and Methods of Proving Character Hearsay: Definition, Non-Hearsay, and Exemptions Hearsay Exceptions: Availability Immaterial (FRE 803) Hearsay Exceptions Requiring Unavailability (FRE 804) and the Confrontation Clause Privileges, Judicial Notice, and Presumptions (Federal and California)

7 Real Property

1.1 Estates in Land 1.2 Future Interests 1.3 Rule Against Perpetuities 1.4 Concurrent Ownership 1.5 Landlord-Tenant Law 1.6 Easements and Servitudes 1.7 Covenants Running with Land 1.8 Recording Acts and Title 1.9 Mortgages 1.10 Land Use Regulation Adverse Possession and Rights Incident to Ownership Land Sale Contracts, Marketable Title, and Risk of Loss Deeds, Delivery, Warranties of Title, and Fixtures

8 Torts

Intentional Torts Against the Person: Battery, Assault, False Imprisonment, IIED Intentional Torts to Property and Defenses/Privileges Negligence: Duty and the Standard of Care Negligence: Breach, Res Ipsa Loquitur, and Negligence Per Se Causation: Actual and Proximate Cause Negligence Damages and Defenses: Comparative Fault and Assumption of Risk Strict Liability: Animals and Abnormally Dangerous Activities Products Liability Private and Public Nuisance Defamation Invasion of Privacy, Misrepresentation, and Economic Torts Vicarious Liability, Joint Tortfeasors, and Immunities

9 Business Associations

Agency: Formation, Actual and Apparent Authority, and Ratification Agency: Principal/Agent Duties, Respondeat Superior, and Tort Liability General Partnerships: Formation, Rights, and Partnership Property Partnership Liability, Fiduciary Duties, Dissociation, and Dissolution Limited Partnerships, LLPs, and LLCs Corporations: Formation, Promoters, and Piercing the Corporate Veil Corporate Finance: Stock, Securities, Dividends, and Distributions Directors and Officers: Fiduciary Duties, the Business Judgment Rule, and Indemnification Shareholders, Derivative Suits, Fundamental Changes, and Federal Securities (10b-5, 16(b))

10 Community Property

General Principles, the Community Estate, and Marital Economic Community Characterization: Separate vs. Community Property and Presumptions Tracing and Commingling (Exhaustion and Direct Tracing) Transmutation and Premarital/Marital Agreements Special Assets: Businesses (Pereira/Van Camp), Goodwill, Education, Pensions, Disability Management, Control, and Spousal Fiduciary Duties Debts and Creditors' Rights Distribution at Dissolution and Death; Quasi-Community Property

11 Professional Responsibility

Regulation of the Profession, Admission, and Discipline (California Rules vs. ABA Model Rules) Competence, Diligence, Communication, and Scope of Representation Confidentiality and Its Exceptions (California vs. ABA) Conflicts of Interest: Current Clients Conflicts: Former Clients, Imputation, and Business Transactions Fees, Client Trust Accounts (IOLTA), and Safekeeping Property Duties to the Court and Third Parties: Candor, Advocacy, and Fairness Forming, Declining, and Terminating the Attorney-Client Relationship Advertising, Solicitation, and the Unauthorized Practice of Law Judicial Ethics, Reporting Misconduct, and Special Prosecutor Duties

12 Remedies

Compensatory Damages: Causation, Foreseeability, Certainty, and Mitigation Punitive, Nominal, and Liquidated Damages Restitution and Unjust Enrichment Constructive Trust and Equitable Lien Injunctions: Temporary Restraining Orders, Preliminary, and Permanent Specific Performance Reformation, Rescission, and Cancellation Equitable Defenses, Declaratory Relief, and Remedy Selection

13 Trusts

Trust Creation, Required Elements, and Types of Trusts Charitable Trusts, Cy Pres, and the Rule Against Perpetuities in Trusts Trustee Powers and Trust Administration Trustee Duties: Loyalty, Prudent Investor, and Impartiality Beneficiary Rights and Principal/Income Allocation Spendthrift, Discretionary, and Support Trusts; Creditors' Rights Modification and Termination of Trusts Breach of Trust, Remedies, and Will Substitutes (Totten, POD, Revocable Trusts)

14 Wills and Succession

Intestate Succession and California Distribution Will Execution and Formalities (Attested and Holographic; California) Testamentary Capacity, Undue Influence, Fraud, Duress, and Mistake Will Components: Integration, Incorporation, Acts of Independent Significance, and Pour-Over Revocation, Revival, and Dependent Relative Revocation Lapse, Anti-Lapse, Class Gifts, Ademption, Abatement, and Exoneration Protection of the Family: Omitted Spouse and Child, Pretermitted Heirs Will Contests, Standing, and No-Contest Clauses Probate Administration, Powers of Appointment, and Will Substitutes

15 Performance Test

The Performance Test: Task Memo, File, and Library Objective PT Products: Memos, Briefs, and Client Letters Persuasive PT Products and 90-Minute Execution

Applicable Law: Common Law vs. UCC Article 2 and Mixed Contracts

Key Takeaways Explain This Topic AI

UCC Article 2 governs contracts for the SALE OF GOODS (movable, tangible personal property identifiable at the time of contracting); the common law governs contracts for services, real estate, employment, and intangibles.

For mixed goods-and-services contracts, apply the PREDOMINANT PURPOSE test: characterize the WHOLE contract by its dominant element (e.g., a restaurant meal = goods; installing a furnace = service in some courts, goods in others) — the UCC then governs the entire deal or not at all.

A MERCHANT under UCC 2-104 is one who deals in goods of the kind or holds themselves out as having special knowledge; several UCC rules (firm offers 2-205, the 2-207 'between merchants' terms, the merchant's implied warranty of merchantability 2-314) apply only to merchants.

Where the UCC is silent, common-law principles still fill gaps (UCC 1-103(b)) — so capacity, fraud, duress, and mistake doctrines apply to goods contracts too.

Always state the governing law in the FIRST line of a Contracts essay; the wrong body of law produces wrong rules on offers, modification, warranties, and remedies.

Last updated: June 2026

Why the Threshold Question Decides the Essay

The single most outcome-determinative move in any Contracts question is identifying the governing law. The Uniform Commercial Code (UCC) Article 2 governs transactions in goods (UCC 2-102), and 'goods' means all things movable and tangible that are identifiable to the contract at the time of sale (UCC 2-105). Everything that is NOT a sale of goods — services, real property, construction, employment, insurance, intangible rights, and the sale of a business's intangible assets — is governed by the common law of contracts, as refined by the Second Restatement.

The distinction is not academic. The two bodies of law diverge on core rules: the common law applies the mirror-image rule to acceptance, while the UCC applies 2-207. The common law requires new consideration to modify a contract (the preexisting-duty rule), while the UCC enforces good-faith modifications without new consideration (2-209). The common law has no implied warranty of merchantability; Article 2 does (2-314). State the governing law in your very first sentence, then carry it through every issue.

The Predominant-Purpose Test for Mixed Contracts

Many contracts mix goods and services: a contractor installs a custom furnace; a hospital supplies blood during surgery; a software firm licenses a program and provides training. Courts do NOT split the contract clause by clause. Instead, under the predominant-purpose (or 'predominant-factor') test , the court characterizes the contract as a WHOLE by its dominant element. If the predominant purpose is the sale of goods with services incidentally involved, the entire contract is governed by Article 2; if services predominate with goods incidentally involved, the common law governs the whole deal.

Courts weigh: (1) the language of the contract (does it speak of 'buyer/seller' or 'services rendered'?); (2) the nature of the business of the supplier; (3) the relative dollar value of the goods versus the labor; and (4) how the parties themselves described the transaction.

Classic Characterizations

  • Transaction Governing Law Reason
  • Restaurant meal UCC (goods) The food is the dominant element

Custom furnace installed in a home Split authority — often UCC if the unit's cost dominates Predominant-purpose test

Blood transfusion during surgery Common law (service) Medical service predominates; many states have 'blood shield' statutes

  • Off-the-shelf software on a disk UCC (goods) Tangible, movable medium
  • Custom-built software with consulting Common law (service) The programming labor predominates
  • Construction of a building Common law Real-property improvement, service-dominated
  • Sale of growing crops/timber to be severed by the seller UCC (goods) 2-107 treats them as goods

A common MBE trap pairs a goods sale with significant labor and asks which body of law applies — choose the dominant element, never both.

Merchant Status and Gap-Filling

Merchant status under UCC 2-104 matters because several rules apply ONLY to merchants or only 'between merchants.' A merchant is a person who deals in goods of the kind or who by occupation holds themselves out as having knowledge or skill peculiar to the practice or goods involved. A casual seller of a used car is NOT a merchant; a car dealer is.

Merchant-only rules to remember:

Firm offers (2-205): only a merchant can make an irrevocable offer without consideration via a signed writing.

2-207(2): additional terms become part of the contract automatically only 'between merchants' (subject to the three exceptions).

Implied warranty of merchantability (2-314): arises only when the seller is a merchant with respect to goods of that kind.

Statute of Frauds merchant confirmation (2-201(2)): a confirming memo binds the non-signing merchant who fails to object within 10 days.

Entrustment (2-403(2)): entrusting goods to a merchant who deals in goods of that kind empowers them to transfer title to a buyer in the ordinary course.

Finally, UCC 1-103(b) keeps the common law alive as a gap-filler: doctrines of capacity, fraud, duress, mistake, estoppel, and the like supplement Article 2 unless displaced. So even in a pure goods case you may need to reach for a Restatement rule when the Code is silent.

Doctrinal Divergence Cheat-Sheet

  • Issue Common Law UCC Article 2
  • Acceptance with new terms Mirror-image rule → counteroffer 2-207 → contract still forms
  • Modification Needs new consideration Good-faith change, no consideration (2-209)
  • Implied warranty of quality None Merchantability (2-314), fitness (2-315)
  • Definiteness Price, parties, subject, quantity Only quantity essential; gap-fillers supply rest (2-204, 2-305)
  • Irrevocable offer w/o consideration No Firm offer up to 3 months (2-205)
  • Tender standard Substantial performance Perfect tender for single deliveries (2-601)

Watch leases of goods (Article 2A) and the sale of a going business: the sale of inventory is goods, but the sale of goodwill, customer lists, and the business as a going concern is governed by the common law. A securities or investment sale is Article 8, not Article 2.