california bar contracts essay

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Chapter 14: How to Conquer Remedies on the California Bar Exam

Remedies on the california bar exam.

Remedies is regularly tested on the California Bar Exam and is often combined with other subjects. The California Bar Exam often tests Remedies in the same way. In fact, some Remedies essay questions are nearly identical to one another!

Here, we tell you how to approach Remedies on the California Bar Exam, including some of the highly tested issues in Remedies questions.

1. First, know how Remedies is tested. 

California has virtually always tested general law (rather than California law) on Remedies questions.

When answering Remedies essay, it is helpful to determine the claim that might be raised as well as any remedies that the party might seek. Discuss legal, restitutionary, and equitable remedies. Be sure to analyze legal remedies prior to analyzing equitable remedies. Note that Remedies fact patterns often will specifically ask about the remedy, remedies, or relief that could be granted. Those are your cues that a Remedies issue is being tested.

Remedies is often tested on its own but is sometimes combined with another subject, such as Contracts, Constitutional Law, Torts, Evidence, and/or Professional Responsibility. Note that sometimes Remedies issues appear in Torts and Contracts questions even though the examiners do not classify the question as a Remedies question.

2. Be aware of the highly tested issues. 

The State Bar of California tests certain issues repeatedly on Remedies questions. (We have a nice summary of these in our  California Bar Exam One-Sheets!)

Some of the most highly tested Remedies issues on the essay portion of the California Bar Exam include the following:

• Compensatory damages, punitive damages, and restitutionary damages in tort: Compensatory damages look to the harm done to the plaintiff and seek to put the plaintiff in the position they would have been in had the tort not occurred . Putative damages seek to punish the defendant and deter future conduct by the defendant or others. Restitutionary damages seek to avoid unjust enrichment by the defendant by allowing the plaintiff to recover the value of the benefit conferred on the defendant.

• Temporary restraining orders (TROs) and preliminary injunctions: (These are tested together so, if you see one, discuss the other!) TROs are emergency orders issued before a preliminary injunction to maintain the status quo until a hearing for a preliminary injunction can be held. The moving party must show that they will suffer an irreparable injury before a preliminary injunction can be obtained and a likelihood that they will prevail on the merits of the underlying claim.

• A preliminary injunction is granted before a full trial on the merits takes place. Courts consider four factors when deciding whether to grant a preliminary injunction: (1) h arm (the danger that the party seeking the injunction will suffer irreparable injury if the injunction is not granted); (2) courts will e valuate the risk if the injunction is not granted ; (3) l ikelihood that the party seeking the injunction will prevail on the merits; and (4) p ublic interest harm if the injunction is granted (mnemonic = HELP).

• Compensatory damages in contracts: Expectation damages are calculated as the loss of the value of the breaching party’s performance + incidental damages + consequential damages – expenses saved as a result of the breach.

• Incidental damages are those that relate to avoiding the loss from the breach. Consequential damages are those that a reasonable party would have foreseen at the time of entry into the contract.
• Specific performance in contracts: Instead of receiving money damages, the buyer will receive what they contracted for . Specific performance may be available for land or unique goods .
• Equitable defenses: Unclean hands is a defense if the plaintiff is acting in bad faith with respect to the same transaction and the defendant has been harmed by the plaintiff’s wrongful conduct. Laches is an equitable version of a statute of limitations defense that is available if the plaintiff unreasonably delays in pursuing a claim and prejudice to the defendant results. These two defenses are tested repeatedly on Remedies essays.

3. Be aware of how to approach highly tested Remedies topics.  

If you look over past Remedies essays questions, you will notice some patterns.

For example:

• When specific performance is tested, the examiners are looking for the following information: Plaintiff must first show (1) a valid contract , (2) all conditions have been met and plaintiff has performed (or is ready to perform) under the contract, (3) the legal remedy is inadequate , (4) it is feasible for a court to enter a decree for specific performance, and (5) the defendant does not have any defenses . Examinees should briefly discuss each of these five things.
• When a constructive trust is tested, an equitable lien is virtually always mentioned with it (even if a constructive trust is the more appropriate remedy). Look at the July 2003 essay and February 2013 essay to see how similar some of these Remedies fact patterns are!
• Certain damages principles are tested repeatedly. For example, damages must be foreseeable and not speculative . The plaintiff must mitigate damages. And punitive damages are not appropriate in negligence cases.

Getting a general approach for what the examiners expect to see when certain issues are tested will help you maximize your score on a Remedies question.

4. Practice!

The best way to get good at Remedies essay questions is to practice writing answers to essay questions. This will help you become acquainted with how Remedies is tested and help you to master the highly tested issues.

Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Remedies essay questions:

• February 2021 Remedies essay (combined with Contracts): this essay applies the UCC and covers contract formation, the Statute of Frauds, the perfect-tender rule, warranties, revocation of acceptance, expectations, compensatory damages, and rescission (see essay question #2 on the exam).
• July 2017 Remedies essay: this essay applies general law and covers TROs, preliminary injunctions, specific performance, unclean hands, misrepresentation, and unilateral and mutual mistakes (see essay question #3 on the exam).
• February 2017 Remedies essay (combined with Torts): this essay applies general law and covers fraudulent misrepresentation, expectation damages, consequential damages, incidental damages, rescission, restitution, and punitive damages (see essay question #2 on the exam).
• February 2016 Remedies essay: this essay applies general law and covers rescission, mutual and unilateral mistake, unclean hands, laches, and reformation of contract (see essay question #4 on the exam).

Good luck studying for the California Bar Exam!

Go to the next topic, Chapter 15: Torts .

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Contracts Essay Questions on the CA Bar Exam: 3 Quick Tips

• Maureen MacManus
• CA Bar Exam , Essays

Signing a contract in real life is often exciting.

It can signal all sorts of joyful occasions:

New home, new job, new client.

However, Contracts essay questions might not inspire a joyful emotion.

And the reality is:

You might not avoid a Contracts essay when the California Bar Examination rolls around.

Before we explain our quick tips to help you feel more confident on Contracts, here’s some background:

Contracts has shown up on the essay portion of the bar exam more than 40 times since 1986, featuring issues relating to formation (e.g., offer, acceptance, and consideration), breach, and damages tested most often.

And take note:

Contracts is prime fodder for cross-over essays. For obvious reasons, Contracts is most frequently “crossed” with remedies. But the bar examiners have also brought real property and professional responsibility into the mix.

If you want to boost your Contracts essay-composition confidence, there’s no substitute for practice. (We recommend you fully write out at least five Contracts essays under timed, closed-book conditions, and issue–spot several more). However, we help these quick tips serve you well.

Remember the following advice as you create Contracts outlines, continue your studying—and, finally, conquer this topic on the CA Bar Exam.

Could you use help with Contracts and more? Consider enrolling in our course, Mastering CA Bar Essays .

Pre-Formation v. Post-Formation (Determine the Focus)

While it’s possible that the bar examiners will throw an essay at you that requires a thorough discussion of both pre-formation and post-formation issues, a combo tends to be the exception—rather than the rule.

For the most part, essays focus on issues relating to either:

pre-formation (prime example: Al and Dr. Betty in July 2011) or

post-formation (prime example: Ben and Carl in July 2013)

OK, you say—but why is this important to know?

Glad you asked!

This way, you can determine the focus.

And knowing that pre-formation v. post-formation is often an either/or can help you decide how to spend your (very precious) time.

Post-Formation

Do the facts indicate that Party A and Party B have entered a written contract but don’t provide any details about the communications that led to said contract?

If so, you can assume that the bar examiners are expecting you to focus on post-formation issues. A few examples:

• defenses to enforcement

As such, it simply does not make sense to pontificate on mutual assent and consideration. A simple statement, like the following, will suffice:

“A valid contract requires mutual assent and consideration. Here, Party A and Party B have entered into a valid written contract.”

Pre-Formation

Conversely, if the question doesn’t mention a valid contract, and the facts involve a lot of back and forth, you’re probably dealing with a pre-formation-focused essay.

Pass the (Contractual) Salt and Pepper

Like salt and pepper, certain issues just go together (more on this in a future post covering Torts essays on the CA Bar Exam).

You’ll see these perfect pairings in Contracts essay questions: Certain issues are natural duos.

If you address one, you should address the other(s). Let’s run through a few examples:

Raising impossibility?

Make sure to also address impracticability and frustration of purpose.

Planning to write about unilateral mistake?

Don’t forget to write misrepresentation too.

And, regardless of the type of primary monetary damages at issue (e.g., reliance, expectation)…

…don’t forget to briefly mention consequential and incidental damages as well.

Promises, Promises (or Conditions, Conditions)

Some recent essays have required bar-takers to determine whether a contractual term was a promise or a condition (prime examples: Dirt and Builder in July 2016; Ben and Carl in July 2013).

You must tease this apart carefully.

Because the remainder of any analysis hinges on the answer.

If a condition does not occur, then the other party’s duty to perform will be excused.

In contrast, if a promise is not fulfilled, the other party may still be obligated to perform.

Technically, when you’re determining whether a term is a promise or condition, the parties’ intent controls.

That said, unless the essay uses obvious language (e.g., “on the condition that”), proceed as though the term is a condition to avoid short-stopping analysis.

Polish Your Performance on Contracts + Every Essay Topic

Ready to conquer Contracts essay questions when you take the Cal Bar?

In addition to our tips here and in other BarMD blog posts , you can take advantage of our array of tools + courses. Each one is created by bar experts—and designed to help you pass.

One of our new additions to the BarMD Shop  is an issue-spotting + essay-practice tool: EssayRx.

Every essay in our database (covers 30 years of past bar essays!) includes a selected answer and an issue checklist. If you need CA Bar essays, you’re in luck; we’ve launched those essays first. (We also have a CA Essays Course for you.)

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