Breach of Contract Case Study: Seller's Email Offer and Buyer's Acceptance, Study notes of Criminal Law

Download Breach of Contract Case Study: Seller's Email Offer and Buyer's Acceptance and more Study notes Criminal Law in PDF only on Docsity! California First-Year Law Students' Examination Essay Questions and Selected Answers June 2021 ESSAY QUESTIONS AND SELECTED ANSWERS JUNE 2021 CALIFORNIA FIRST-YEAR LAW STUDENTS’ EXAMINATION This publication contains the four essay questions from the June 2021 California First-Year Law Students’ Examination and two selected answers for each question. The answers were assigned high grades and were written by applicants who passed the examination. The answers were produced as submitted by the applicant, except that minor corrections in spelling and punctuation were made for ease in reading. They are reproduced here with the consent of the authors. Question Number Subject 1. Contracts 2. Torts 3. Criminal Law 4. Contracts OFFICE OF ADMISSIONS COMMITTEE OF BAR EXAMINERS QUESTION 1: SELECTED ANSWER A Buyer will prevail in his suit against Seller for breach of contract; see infra. Buyer v. Seller Applicable Law The Uniform Commercial Code (UCC) controls agreements for the sale of tangible, movable goods. All other types of agreements are controlled by common law. Here, the agreement is for the sale of a used van. A van is a tangible, movable good. Therefore, the UCC controls this agreement. Standard of Conduct Parties will be held to "good faith" or honesty in fact. Merchants Under the UCC, a merchant is someone that presents themselves as having special knowledge or skill in the subject matter or who normally deals with the subject matter of the agreement. Here, the subject matter of the agreement is a van. The parties involved are a plumbing business owner and a lawn service company owner; neither regularly nor normally deal with vans (autos). Moreover, no facts indicate either of the parties presented themselves as having special knowledge or skill in the subject matter. Therefore, neither buyer nor seller are considered merchants under the UCC. Formation Under common law, an offer is an outward manifestation of present contractual intent, in clear & precise terms, communicate to offeree as to create in him/her a belief that offeror is willing to enter into a contract. Under common law, an offer must include quantity, time of performance, identity of the parties, price, and subject matter. Under UCC, an offer is an invitation to deal with invites’ acceptance in any reasonable means under the circumstances. Moreover, under UCC, an offer does not fail for indefinites as long as it contains the quantity amount. Here, on Monday, Seller sent an email to Buyer stating that she would sell him her old van for $15K cash. Because Seller is inviting Buyer to deal and because Seller's email contains not only the identity of the parties, subject matter, price and also the quantity term necessary under the UCC, Seller's email constitutes an offer to purchase her old van and creates the power of acceptance in Buyer. Under common law, an acceptance is an outward manifestation of unequivocal assent to the terms of an offer. Under UCC, a definite and seasonable acceptance, operates as an acceptance. Here, Buyer "immediately" responded to Seller's offer stating that he was "interested" but asking to be given until Sunday to decide. Because Buyer expressed interest, but did not express any type of acceptance, his email likely does not constitute an acceptance under UCC. UCC 2-205 Merchant's Firm Offer Under UCC, an offer in writing by a merchant stating that an offer will be held open for a certain period of time, not to exceed 3 months, does not require consideration and must be held open for such time. Otherwise, an offer to hold an offer open for a certain period of time by a non-merchant, requires additional consideration. Here, after receiving Buyer's email stating that he was interested in the van, but asking until Sunday to decide, Seller sent Buyer an email stating she would hold her offer open and that he had "until Sunday to decide". Because Seller is not a merchant (see supra under "Merchants"), UCC Merchant's Firm Offer does not apply and her offer to hold the offer open until Sunday required additional consideration to be enforceable. Therefore, Seller's statement that she would hold the offer open until Sunday is not enforceable. Possible Revocation An offer is revocable by offeror before acceptance. Here, on Tuesday evening, Seller sent an email to Buyer informing him that Jones Dry Cleaning is interested in purchasing the van for $17K. This email by Seller does not clearly state she is selling or sold the van to Jones Dry Cleaning or give any indication that she is revoking her offer to Buyer. Therefore, Buyer still holds the power of acceptance. Here, on Wednesday, Buyer mailed Seller a letter stating he agreed to buy the van for $15K and to drop off the check on Sunday. As mentioned earlier, under UCC, a definite and seasonable acceptance operates as an acceptance. Moreover, under UCC, an offer invites acceptance in any reasonable means under the circumstances. Buyer's letter to Seller clearly stating that he agrees to buy the van constitutes an acceptance under UCC. Mailbox Rule Under common law and UCC, an acceptance is effective on dispatch. Therefore, Buyer's acceptance of Seller's offer was effective the moment he placed his acceptance letter in the mail on Wednesday. Attempted Revocation Under common law and UCC, a revocation after acceptance is not valid. Here, on QUESTION 1: SELECTED ANSWER B Buyer v Seller Governing Law Contracts for the sale of goods are governed by the Uniform Commercial Code (UCC). Goods are defined as things that are movable at the time of identification to the contract. All other contracts are governed by common law. Here, the contract was for the sale of a large van. A van is a movable object and therefore a good. Therefore, the UCC governs. Merchants A person who deals in goods of the kind or who possesses the knowledge and skill to the goods involved or to whom such knowledge and skill may be attributed based on their profession. Here, Seller has a plumbing business and Buyer runs a lawn service. Both use vehicles for their jobs but neither one deals in Vans regularly. Therefore, neither party is a merchant. Contract Formation A valid contract requires: offer, acceptance, consideration and no defenses to formation. Offer An offer is the manifestation of willingness to enter into a bargain which justifies another in understanding that their assent will conclude the bargain. An offer must contain certain and definite terms including: quantity, time of performance, identity of the parties, price and subject matter. Seller’s Email Monday Here, Seller sends an email to Buyer (identity of the parties) which says Seller would sell her old van (subject matter, and quantity 1 van) to Buyer for $15,000 (price). The email does not specify a time for performance but the UCC will allow a gap filler of a reasonable time. Seller will argue that the letter is just an invitation to receive offers because it says Seller "would" sell the van to Buyer. Buyer will argue that the offer contained certain and definite terms and indicated a willingness to enter into a bargain. A court will likely agree with Buyer. Therefore, there is a valid offer. Acceptance A manifestation of assent to the terms thereof made by the offeree in a manner invited or required by the offer. Buyer’s Email Response Monday Here, Buyer responded to Sellers offer by stating they are interested but need time to think about the offer. Buyer states they want to have their mechanic look at the vehicle before they commit to buying the van. Buyer may argue that he stated he was interested which indicated assent. Seller will contend that Buyer's email did not manifest assent to the offer as it was written and that because it added that the Buyer wanted their mechanic to look at the van, there was no valid assent to the offer. Therefore, this was not a valid acceptance, it was more likely a counteroffer asking for permission for Buyer’s mechanic to look at the van. Seller's Response to Buyers Email Monday Here, Seller agrees that the mechanic can stop by and look at the van, and Buyer has until Sunday to decide, leaving acceptance open to the Buyer still. This is likely a revival of the offer with the added agreement that the Buyer can have a mechanic look at the van. Therefore, this is not a valid acceptance. Is the offer revocable? Merchant's Firm Offer Under the UCC, if a merchant sends a signed writing expressly promising to hold an offer open, the offer may not be revoked within the time period specified. Here, neither party was a merchant, so Seller's email on Monday offering to hold the offer open until Sunday is not a Merchant’s Firm Offer. Therefore, the offer is not a merchant’s firm offer and may be revocable. Detrimental Reliance When, prior to revocation, the offeree foreseeably relies on a promise to their detriment, the offer may not be revoked. Here, the Buyer's mechanic checked the van out on Tuesday and found out it was a good deal. Buyer was advised the van needed new tires. Buyer then told mechanic to order the tires needed for the van. Buyer will argue that this is detrimental reliance, since tires for a large van tend to be expensive. Seller will argue that the reliance was not foreseeable because Buyer had not agreed to buy the van yet. Buyer will argue that Here, Seller send an email to Buyer on Thursday advising Buyer that they sold the van to someone else. This unequivocally indicates that Seller will not perform if Buyer were to render payment. On Friday Seller sends another email again reiterating that the van has already been sold. Another unequivocal indication that Seller will be unable to perform. Therefore, there is an anticipatory repudiation and Seller is in Breach. Defenses to Breach Impossibility If the contract is theoretically unable to be performed by anyone due to an unexpected event occurring after the contract was made, then this defense may be used. Here, Seller will argue that, because the van was sold to someone else, it was impossible for Seller to sell the van to Buyer. Seller will argue that the van was sold before acceptance was received and the contract was already impossible. Buyer will argue that this was not an unexpected event occurring after the contract was made. Seller will contend that they were not aware of the acceptance because they believed that they had revoked the offer on Tuesday and were not aware that Buyer had detrimentally relied on the offer. Therefore, this defense will likely succeed. Impracticability When an unexpected event, which occurs after the contract is made, makes performance of the contract highly impractical, this defense may be raised. Here, the difference in price can be argued as making the sale of the van to Buyer impractical but pure economic impracticability is not valid unless Seller would be taking a large loss. Therefore, this defense is not valid. Frustration of Purpose This defense will not apply. Remedies Expectation Damages Expectation damages put the non-breaching party in the position they would have been in had the contract been fully performed. Under the UCC the buyer may obtain cover and damages will be the difference between the contract price and the cover price. If Buyer does not obtain cover, damages will be the difference between the contract price and the fair market value at the time Buyer learned of the breach. Here, Buyer did not obtain cover. Seller sold the van for $17,000 which is $2,000 above the contract price with buyer. If the defense of impossibility fails, then Buyer may be entitled to expectation damages. Therefore, Buyer may collect damages in the amount of $2,000. Reliance Damages Reliance Damages put the non-breaching party in the position they would have been in had the contract not been entered into. Here, Buyer spent money on tires for the van in reliance on the contract. Therefore, Buyer may recover money spent on the tires. Specific Performance Specific performance requires the breaching party to perform the contract. It is used when money damages are insufficient. Here, money damages are not insufficient, and the van has been sold to a bona fide purchaser so there is no way for Seller to perform. Therefore, there will be no specific performance ordered. QUESTION 2: SELECTED ANSWER A Neighbor v. Fireworks Shack In the absence of any evidence of negligence, are there any other theories that might support a claim by Neighbor against Fireworks Shack? Strict Liability - Abnormally Dangerous Activity Where the defendant engages in an activity that is abnormally dangerous - that is, there is a risk of substantial harm that cannot be mitigated even when reasonable care is exercised by all actors, and the activity is not one of common usage - defendant can be held liable in strict liability for damages that are proximately caused by the dangerous nature of the activity. Here, defendant is a seller of fireworks and maintains a large supermarket size facility that stocks a large volume and wide variety of fireworks. Fireworks are explosive and the collection of a large volume and wide variety of fireworks to a single building is an extremely dangerous activity since a malfunction of any one of the plethora of fireworks within could cause a fire that explodes the entire building. Further, defendant has chosen to locate this warehouse full of fireworks in a residential neighborhood. Even when all due care is exercised, fireworks can still explode during manufacture, transport or storage - this is why fireworks factories consist of many tiny huts separated by a considerable distance - so that if one explodes (as they sometimes do, even in the exercise of utmost care), the whole factory does not explode with it. Accordingly, since the risk of harm by explosion is substantial and cannot be mitigated even with the exercise of reasonable care, defendant is engaged in an abnormally dangerous activity. It is foreseeable that neighbors to the Fireworks Shack could be damaged if there is an explosion of the building, and indeed, plaintiff's damages (severe injury from explosion of the Fireworks Shack) were actually caused by the explosion (but for the explosion, plaintiff would not have been severely injured) and proximately caused by the explosion (since it was foreseeable that neighbors could be damaged by an explosion). Plaintiff can sustain a claim for damages under a theory of strict liability for unreasonably dangerous activity. Strict Products Liability In order to sustain a claim of strict products liability, plaintiff must show that the defendant is in the chain of commerce of a commercial product, the product was defective, and the defect was the actual and proximate cause of harm to a person. Causation Here, plaintiff was injured by an explosion of fireworks. Plaintiff will argue that a defect in some product contained in the Fireworks Shack was the actual and proximate cause of his damages because but for the fire by the defective product, the explosion would not have injured him, and further because it is foreseeable that if a firework is defective it could cause an uncontrolled fire and explosion that injures people around it. Chain of Commerce - persons and entities in the chain of commerce are the manufacturer, vendor and retailer of the product. Defendant, Fireworks Shack, is a retailer of fireworks. So, defendant is in the chain of commerce for the product. Defect A product can be defective through design, manufacture or warning. Design Defect A design defect occurs if the product is dangerous beyond the expectations of the ordinary consumer because of a defect in design or packaging, and such defect is unreasonable because the burden to resolve the defect is less than the magnitude of harm times the chance of harm. Unfortunately, there is no indication that any of the fireworks were defectively designed since they have all been destroyed. Plaintiff could present evidence that this kind of event happens frequently with a type of firework in the building, but such evidence would be difficult to gather or prove. Manufacturing Defect A manufacturing defect occurs if the product comes off of the assembly line more dangerous than other products and is dangerous beyond the expectations of the ordinary consumer. Here, since the facts state that there was not any negligence on the part of Fireworks Shack, the most likely reason for the fire and explosion is a defective product. However, as in the design defect instance, plaintiff will have a difficult time proving that one or more fireworks in the store were defective because of a manufacturing defect since they have all exploded and been destroyed. Defective Warning A product must contain sufficient warning labels to alert the consumer to any dangers that are not readily apparent. Duty Generally, all persons have a duty of reasonable care to avoid injuring all foreseeable plaintiffs. Under the majority rule, a foreseeable plaintiff is one who is within the zone of danger of the negligent act. Under the minority rule, anyone who is injured as a proximate result of the negligent act is a foreseeable plaintiff. Here, it is foreseeable that if any negligence occurs within Fireworks Shack, fireworks could catch fire and explode the building, damaging those around it. Plaintiff is a property owner whose yard is adjacent to the Fireworks Shack, so it is foreseeable that any explosions could damage him and his property. Breach via Res Ipsa Loquitur Where the instrument that caused the damage was in the sole control of the defendant, but it is not possible for the plaintiff to ascertain what exact negligence took place, and the damage would not have occurred but for some negligence on the part of the defendant, plaintiff can seek recovery under a res ipsa loquitur theory. Here, Fireworks Shack had exclusive control of the explosive fireworks. Although it is not known what negligence caused the event, a fire broke out and then an explosion. Much as barrels should not fall from a second- floor warehouse without some negligence, a fire should not break out in a fireworks building absent some negligence. Causation & Damages As discussed above, plaintiff was severely injured as an actual and proximate result of the explosion of the Fireworks Shack. Plaintiff could proceed via Res Ipsa Loquitur, but arguments submitted in support of this claim will weaken the strict liability - dangerous activity claim, so it is not preferred to proceed in this way. Damages in tort are for the purpose of making the plaintiff whole. In support of this principle, the following damages are available in a tort action: Nominal Damages - a symbolic fine levied in order to formally recognize the tort, so that the plaintiff can seek injunction to stop the activity in case it happens in the future. Plaintiff could seek nominal damages for private nuisance, so that the Fireworks Factory can be pressured to rebuild somewhere else to avoid steep penalties for damaging the plaintiff again. Special Damages - reimbursement for economic damages, such as reimbursement for medical treatment, lost wages and the like. Here, plaintiff presumably needed medical attention for his severe injuries. Plaintiff can be reimbursed for medical care already incurred and any future, projected medical care that he will need to recover from his injuries. If plaintiff's ability to work was affected, he can be reimbursed for lost wages. Special damages are independent of co-existing insurance. General Damages - these deal with non-economic losses, such as pain and suffering or loss of consortium. Plaintiff presumably has suffered serious pain from his severe injury. The prosecution can work up an estimate for the value of the pain and suffering experienced by the plaintiff. Punitive Damages - where the defendant is morally in the wrong, by committing fraud or the like, the court can also levy punitive damages to punish the bad behavior. There is no indication of foul play on the part of the defendant. Plaintiff is unlikely to be awarded punitive damages. therefore this element cannot be met. Harmful Anything connected to the plaintiff's person. The contact can be direct or indirect. Again, as stated supra, FS did not act intentionally and therefore, it will be hard for N to prevail here. Here, FS did not act intending to cause any harm. Furthermore, they have taken extensive safety measures. They will most likely not be liable for battery. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED) When a party engages in outrageous conduct that leaves the plaintiff suffering from severe emotional distress. Outrageous Conduct will be outrageous where it transcends all bounds of decency tolerated in a civil society. FS will argue that this conduct was not outrageous as they do not know what caused it. However, N is going to prevail on this argument most likely because a huge explosion in a large supermarket -sized fireworks shop in a residential area is going to be considered outrageous. Element met. Severe Emotional Distress Plaintiff must suffer severe emotional distress and cannot be merely annoyed. The facts are silent as to if N suffered severe emotional distress. However, if he can show in court that he is suffering from such distress, this element will be met. Intent Unlike other intentional torts, recklessness can be shown to prove intent under IIED. Where N can prove that FS acted recklessly, he can prevail on this element. If N can prove severe emotional distress (not stated in the facts) and also prove recklessness as to intent, N could prevail in an IIED suit. TRESPASS TO LAND An act of physical invasion onto the plaintiff's real property. Intent For a trespass to land, the person may have merely intended to be on the land. There is no intent to trespass and where the person or a physical object is on the land, the intent requirement will be met. Here, N will claim that part of the explosion (shrapnel or contents) came onto his land. N does not need to prove the FS intended to trespass, and just by the physical invasion of the explosion, this element has been met. Physical Invasion The person or a tangible object must be on the land. Sounds, smells, and vibrations will not suffice. Here, it appears that remains of the explosion, most likely shrapnel, has come onto N's land and therefore, causing injury. The court will have to show that this injury was actually caused by a physical object and the facts are silent as to what caused N's injury. An explosion will most likely lead to contents flying out into the vicinity and therefore causing injury. In that case, this element has been met. However, if the sound of the loud "boom" caused injury to N, for example, in his ears, it will depend on what type of jurisdiction we are in and whether or not that would suffice as to a physical invasion since usually sounds will not suffice. Real Property The property must be real property that belongs to the plaintiff. Here, the explosion trespassed onto N's real property (his home) causing injury. N could raise a trespass to land claim against FS and will most likely prevail. DAMAGES TO TRESPASS TO LAND N can collect general, compensatory damages to the damage to his property and for the invasion onto the property. Punitive damage may only be awarded where the conduct was wanton, willful, or reckless. If the court can prove recklessness on behalf of FS, N could collect punitive damages although it will be unlikely since the facts state the local fire marshal cannot identify the source of fire or any evidence that FS could have taken additional precautions. DEFENSES TO INTENTIONAL TORTS There are no applicable defenses that FS could raise. STRICT LIABILITY (SL) - ABNORMALLY DANGEROUS ACTIVITY In order to prevail under strict liability, there must be (1) an absolute duty on behalf of the defendant to make safe (2) a breach of that duty (3) actual and proximate causation and (4) lack of any applicable defenses. A plaintiff must show that (1) even when reasonable care is exercised, the activity still poses a foreseeable risk of harm to others and (2) the activity is not of common usage Courts take into account that people are entitled to use and/or enjoy their property in a reasonable manner and will take into consideration factors such as land value, neighborhood and whether or not other alternatives were available. The courts will take into account things like the neighborhood. N will raise the issue that there should not be such a large supermarket of fireworks in a residential area and that it is very dangerous to everyone surrounding. Courts will also look at other potential alternatives which the facts state FS use extensive safety measures. FS will argue that there were not any other alternatives as they use a lot of safety measures, post signs, have sprinkler systems, etc. However, the facts are silent as the whether or not these "Safety measures" are top tiered or whether or not there are any alternatives. This element will most likely be met by N unless FS can prove their conduct was not unreasonable. N will most likely prevail here. NUISANCE - PUBLIC An unreasonable interference with the health, safety and property rights of the community. A private individual may bring a public nuisance claim only if they have suffered some unique, special harm. Here, N will also bring a claim of public nuisance. N will have to prove that the interference unreasonably interfered with his health and safety as an explosion occurred adjacent to his property and severely injured him. It is also apparent in the facts that no other resident endured these severe injuries. If N can prove that his damages are special and no one else in the neighborhood also was injured in his way, he could prevail in public nuisance. DEFENSES TO NUISANCE Conduct of Others No one party will be liable for the full damage if other parties contributed to the damages. Here, it is evident that the explosion came from FS and there are no other parties involved. Therefore, this defense will not be applicable. Contributory Negligence Generally, not a defense unless the claim rests on a negligence theory. This defense will not be applicable here. Coming to the Nuisance One may come to the nuisance and bring a suit. However, this is not a strong defense unless the plaintiff solely came to the nuisance to bring a harassing lawsuit. This is not going to be a strong defense to FS as N did not come to the nuisance. Legislative Authority For nuisance activity (zoning ordinances), it is not a full defense, but it is persuasive. DAMAGES TO NUISANCE Damages A plaintiff will usually collect compensatory damages for the injuries that resulted. Punitive damages will be available only if the defendant's conduct was particularly egregious. N will collect compensatory damages like general and special. Injunction An injunction may be available where monetary damages are inadequate or unavailable. An injunction is a legal remedy where the court orders a party to refrain from doing something or insists that they do something. Here, it is most likely that N's monetary damages will be adequate, therefore an injunction will not be needed. PRODUCTS LIABILITY LIABILITY BASED ON NEGLIGENCE Here, the facts state that the investigation could not prove any negligence on behalf of FS. Therefore, it is unlikely N will prevail under negligence in products liability as N would have to prove there was a breach by showing (1) a manufacturing defect (2) design defect or (3) inadequate warning. N will not have a cause of action here. STRICT PRODUCTS LIABILITY (SPL) DUTY OWED BY COMMERCIAL SUPPLIER Under SPL, N has to prove that FS is a commercial supplier and not just a casual seller. A commercial supplier can be a manufacturer, wholesaler or retailer. Here, FS is a retail store that stocks large volumes of fireworks. They are a commercial supplier. Element met. BREACH OF THAT DUTY Simply putting a defective product into the stream of commerce. QUESTION 3 . Karl lived with Martha, Martha’s son Sonny, and their dog. One morning, Karl told Martha about his plan to steal from the house of Barry Rich. Karl’s plan was to go to Rich’s house with Martha and the dog. Karl planned to pretend the dog was lost and pretend he was trying to find the dog’s home. Karl planned to let the dog escape into Rich’s house. Karl asked Martha to come with him. He wanted her to chase after the dog in Rich’s house in order to distract Rich while Karl went to Rich’s bedroom to look for jewelry. At first, Martha told Karl she would not help. Karl then looked at her and said, “You’d better do what I say or Sonny is going to be badly hurt.” In response, Martha agreed to help Karl. That afternoon, Karl and Martha went to Rich’s house with the dog. When Rich opened the door, Karl let the dog run into the house. As planned, Martha ran after the dog and distracted Rich while Karl went to the bedroom. In the bedroom, Karl found a valuable diamond ring and put it in his pocket. The ring is worth $5,000. While Karl was in the bedroom, the dog ran past Rich and knocked him down. Rich hit his head on a table and died. 1. With what crimes can Karl reasonably be charged and what defenses can he reasonably raise? Discuss. 2. With what crimes can Martha reasonably be charged and what defenses can she reasonably raise? Discuss. QUESTION 3: SELECTED ANSWER A STATE v. KARL SOLICITATION Solicitation is the requesting or urging of another to commit the crime with the intent that the solicitee commit the crime. Solicitation is a specific intent crime with the specific intent being that the solicitee commit the crime. Solicitation is an inchoate offense which means it’s complete once the requesting is done. Here Karl did request another to commit the crime because the facts state that Karl asked Martha to come with him to commit the crime or burglary. Here Karl does have the specific intent that Martha (the solicitee) commit the crime because his plan was to steal from the house of Barry Rich, which Karl would gain valuable items or money. In other words, Karl has a financial stake in the crime because he will obtain money or valuable items from it. Therefore, Karl may be charged with Solicitation. MERGER Solicitation will merge into a conspiracy if and when the other party agrees. CONSPIRACY A conspiracy is an agreement between two or more parties to commit a crime with the intent that the crime be committed. Common law conspiracy requires two guilty minds; otherwise it will be considered a feigned agreement. Under the unilateral theory one party may be charged with conspiracy even though only one guilty exists. Modernly, an overt act is required in furtherance of the conspiracy. PINKERTON'S RULE Under the Pinkerton's Rule, co-conspirators are vicariously liable for all crimes committed that are foreseeable and in furtherance of the crime agreed upon. Here, the facts state that Karl requested Martha to join him on his burglary and Martha agreed, but Martha only agreed due to Karl's threat that he will hurt her son badly if she does not go. Therefore, here we only have one guilty mind and if the jurisdiction follows the unilateral theory Karl may be charged with conspiracy to commit burglary. OVERT ACT Modernly, an overt act that is in furtherance is required for the defendant to be charged with conspiracy. Here, the overt act occurred when Karl went to Rich's house and the dog was let inside his house. Therefore, we have an overt act. Therefore, Karl may be charged with conspiracy to commit burglary if the jurisdiction follows the unilateral theory. ASSAULT A criminal assault is an attempted battery or intentionally causing reasonable apprehension of receiving an immediate battery. An attempted battery is a substantial step towards the completion of a battery with the intent that the battery be completed. Both types of criminal assault are specific intent crimes with the specific intent being to cause a battery or to cause the reasonable apprehension. Here the facts state that after Karl requested Martha to commit the crime of burglarizing structures within the curtilage. Here, the facts state that Karl entered the house of Barry Rich. Therefore, this element is satisfied. IN THE NIGHTTIME In the nighttime element is satisfied if the crime occurs half hour or hour after sunset. Here the facts state that Karl entered in the morning. Therefore, this element is not satisfied. INTENT TO COMMIT A FELONY THEREIN Intent to commit a felony therein is a specific intent to enter the home to commit a felony inside. Here, Karl entered to commit a grand theft which would most likely be considered a felony. Therefore, this element is satisfied. Here, we do not have a common law burglary because the crime did not occur in the nighttime. Therefore, Karl may not be charged with common law burglary. MODERN BURGLARY Modern burglary is entry into any structure with the intent to commit a crime. Here, as proven above, Karl did enter into Rich's home and he did have the specific intent to commit a larceny. Therefore, Karl may be charged with modern burglary. MURDER Murder is a homicide with malice. HOMICIDE A homicide is the killing of human being by another. Here, Rich died; therefore, we have a homicide. BY ANOTHER The defendant must be the actual and proximate cause of the death. ACTUAL CAUSE Here, but for Karl committing a burglary, Rich would not have died when, where, and how he did. Therefore, we have actual cause. PROXIMATE CAUSE A defendant is responsible for all of the natural and probable consequences that occur as a result of his actions as long as there are no superseding events that break the causation chain. A superseding event is one that is unforeseeable and intervening. Essentially proximate cause shows that is foreseeable for the result to occur. Here, it would be foreseeable that if Karl commits a burglary, a death could result because the person living there might use force to protect his property and himself/herself. Therefore, we have proximate cause. MALICE Malice can be found by intent to kill, intent to cause serious bodily injury, wanton conduct, and felony murder. INTENT TO KILL Malice can be found through intent to kill if the defendant desired to kill the victim or knew with substantial certainty the death will occur. Here, there is no evidence that Karl intended to kill Rich. Therefore, we will not find malice through intent to kill. INTENT TO CAUSE SERIOUS BODILY INJURY Malice can be found through intent to cause serious bodily injury if the defendant intended to cause serious bodily harm to the victim. Here, there is no evidence that shows that Karl intended to cause serious bodily injury to Rich. Therefore, we will not find malice through intent to cause serious bodily injury. WANTON CONDUCT Malice may be found through wanton conduct if the act the defendant is committing has: 1. Little or no social value. 2. Has a very high risk of death 3. Defendant did the act intentionally 4. Defendant was aware of the risk Here, burglarizing another’s home does have little or no social value. Karl did in fact act intentionally. Burglarizing someone's home definitely has a very high risk of death because it would be foreseeable that the homeowner would protect his or her property and themselves from intruders. We can imply that defendant was aware of that, which is why he requested Martha to help him to be a decoy. overt act is required in furtherance of the conspiracy. Here, the facts state that Martha did in fact agree to commit the crime of burglary with Karl and she did have the specific intent to complete the crime because she did not want her son injured, but Martha will have the defense of duress. DEFENSE DURESS Duress is a valid defense if a defendant was forced to complete a due to threats of force or force to themselves or to close family members, which includes children. Here, Martha may not be charged with conspiracy to commit a burglary because Karl stated that if she does not help him, he will seriously injure her son. Therefore, Martha has a valid defense of duress. Therefore, Martha may not be charged with conspiracy. CO-CONSPIRATOR LIABILITY (PINKERTON'S RULE) Here, because it is proven above that Martha was under duress when she agreed to the conspiracy and to commit the crime of burglary, she may not be charged with any crimes that are foreseeable and in furtherance of the burglary. LARCENY Trespassory taking and carrying away of the personal property of another with the intent to permanently deprive. Here, as stated above, even though a larceny did occur, Martha may not be charged with larceny because she has the effective defense of duress. Therefore, Martha may not be charged with conspiracy. COMMON LAW BURGLARY Trespassory breaking and entering the dwelling house of another in the nighttime with the intent to commit a felony therein. As proven above, a common law burglary did not occur. MODERN BURGLARY Common law burglary is the trespassory breaking and entering of the dwelling house of another in the nighttime with the intent to commit a felony therein. Here, as stated above, even though the burglary did occur, Martha may not be charged with the burglary because she has the effective defense of duress. DEFENSE DURESS Duress is a valid defense if a defendant was forced to complete a due to threats of force or force to themselves or to close family members, which includes children. Here, Martha may not be charged with burglary because Karl stated that if she does not help him, he will seriously injure her son. Therefore, Martha has a valid defense of duress. Therefore, Martha may not be charged with burglary. MURDER Homicide with malice. Here, as explained above, even though a murder did occur, Martha may not be charged with murder because she has the effective defense of duress. DEFENSE DURESS Duress is a valid defense if a defendant was forced to complete a due to threats of force or force to themselves or to close family members, which includes children. Here, Martha may not be charged with murder because she only helped Karl commit the crime because Karl threatened to seriously injure her son if she didn't. Therefore, Martha may not be charged with murder. ACCOMPLICE LIABLITY An accomplice is one who aids, abets, or encourages another to commit a crime with the specific intent that the crime occur. Here, Martha did in fact aid Karl to commit the crime of burglary when she let her dog in, which allowed Karl entry into Rich's house. This will be considered aiding Karl to commit the crime. She did have the specific intent that the crime occur because she wanted to save her son from injury by Karl, but Martha does have the effective defense of duress. DEFENSE DURESS Duress is a valid defense if a defendant was forced to complete a due to threats of force or force to themselves or to close family members, which includes children. Here, Martha may not be charged with being an accomplice because Karl stated that if she does not help him, he will seriously injure her son. She only did the act to protect Mental State In order to be guilty of conspiracy, a person must have had the specific intent to (1) enter into the requisite agreement and (2) the achieve the unlawful act/target crime. Here, Karl possesses definite intent to enter into this agreement with Martha. He also appears to have the intent to commit the crime of stealing from the house of Barry Rich by the facts stating the specifics to his plan. This element has been met. Overt Act In most jurisdictions, an overt act is required along with the agreement. An overt act is something done (an act) in furtherance of the agreement. Modernly, this is the rule. At common law, an overt act was not needed. Here, Karl and Martha go to Rich's house with their dog. Therefore, an overt act has been taken. This element has been met. Liability - Pinkerton's Rule Under Pinkerton's Rule, a co-conspirator may be liable for foreseeable crimes committed in furtherance of the target crime by other conspirators. Here, Karl can be liable for crimes committed by Martha. Merger Conspiracy does not merge into the target crime and one can be guilty of both conspiracy and the target crime. Karl will be guilty of conspiracy. BURGLARY The unlawful breaking and entering into the dwelling of another, at nighttime, with intent to commit a felony therein. Modernly, the nighttime element has been abolished. For these purposes, the nighttime rule will not apply. Here, a major issue will be whether or not Karl is liable for burglary. A defendant must have unlawfully broken and entered into a dwelling. Constructive breaking is where the defendant uses some type of threat or language to coerce the person into letting them in. Here, the courts will have to decide if the letting the dog run into the house constitutes a breaking. It is going to appear as so since Rich does not "invite" or let Karl and Martha into the house. The dog ran into the house, which forced Karl and Martha's entry. This element will be met. Entering can be established by any body part coming into the house. Here, Karl's person was inside of the house; therefore, this element is met. The dwelling belongs to Barry; this element has been met. Lastly, there must be intent to commit a felony within at the time of breaking and entering. Here, Karl clearly had intent to steal something of Barry's; therefore, this will be met. Karl can be convicted of burglary if the jury rules that letting the dog run into the house constitutes a constructive breaking and entering. Also, modernly, where this does constitute breaking and entering, the nighttime rule will not be at play, so the afternoon will suffice for a charge of burglary. LARCENY - diamond ring The trespassory taking and carrying away of another person's property with the intent to permanently deprive the owner of their property. Here, Karl had clear intent to go into Barry's home and steal. A trespassory taking is one where the defendant does not have consent to take the property. Here, Karl had no consent to take anything from Barry. Carrying away can be met by simply moving the item ever so slightly. Karl took the diamond ring and put it in his pocket; therefore, there is asportation of the item. The item must belong to another person. Here, the ring is clearly Barry's; therefore, this element is met. Lastly, the defendant must have had intent at the time of taking to permanently deprive the owner. Karl appears to have no intention of returning this ring and went to the house to specifically steal. Therefore, this element is met. Karl will be guilty of larceny. ASSAULT Assault is an attempted battery or placing a person in reasonable apprehension of imminent bodily harm. Karl is not intending to commit a battery so the prosecution will have to prove that Barry was put in imminent bodily harm by the dog. Where he was, then Karl can be liable for assault. BATTERY Battery is defined as the unlawful application of force onto the person of another. Here, the dog knocks over Rich. The dog is in the possession of Karl and Martha. Karl does not have to be the one who directly applies the force. The force can come from something else. Battery is a general intent crime, meaning that Karl does not have specific intent to commit a battery. Karl may be liable for battery. Here, Karl did not intend to kill anyone, therefore this element will not be met. Intent to Cause Serious Bodily Harm This is when the defendant intends to cause serious bodily harm but death results. Here, Karl did not intend to cause serious bodily harm to Rich; therefore, this element will not be met. Reckless Indifference The defendant must manifest an extreme, unjustifiable indifference to the value of a human life. This is also known as depraved heart murder. The prosecution will again try to argue that coming into someone's house to distract them with a dog may be considered a reckless indifference to human life. However, they will not prevail here, as Karl was not even in possession of a deadly weapon nor was he trying to harm anyone. A dog, especially without facts to show if it was aggressive, is not a threat to human life. This element is not met. Felony Murder Rule Felony murder is defined as any killing that occurs during the commission, or attempt to commit, a felony. An inherently dangerous felony would be burglary, arson, robbery, rape or kidnapping. Here, Karl may be convicted of burglary. However, if he is not, then he cannot be liable for second-degree murder. FELONY MURDER Guilty of the Underlying Felony Supra. If Karl is guilty of burglary, then this element has been met. Distinct from Killing The killing must be distinct from the predicate felony. Here, Barry died from the dog knocking into him. Karl was in the house to steal a ring, and most likely is in the commission of a burglary. Therefore, this killing is distinct from the felony. This element has been met. Foreseeability The victim's death must have been a foreseeable cause by defendant's actions. Here, the prosecution will again have to argue that being knocked over by the dog running all over the house is foreseeable. Here, it will most likely be foreseeable since Karl brought the dog specifically to distract Rich and it would be assumed that the dog is running all over the house causing a commotion. It is also foreseeable that if a dog knocks you over, you could fall and hit your head and die. This element will most likely be met. During the commission of the Felony The death must occur during the commission, or attempt to commit, the felony and not when it is terminated. This element requires both (1) temporal and geographical proximity between the killing and the felony and also (2) a causal relationship between the killing and the felony. Here, Barry dies during burglary (if the jury deems this to be a burglary.) Furthermore, there is temporal and geographical proximity as Barry dies in his house, which is where the events are taking place. Therefore, this element will be met. If Karl is guilty of burglary, and the dog knocking Barry over is foreseeable, he is going to be liable for felony murder. VOLUNTARY MANSLAUGHTER Voluntary manslaughter is an intentional killing done in a sudden heat of passion with adequate provocation and no cooling-off period. Here, voluntary manslaughter does not apply as there was no intentional killing, no provocation, or no cooling-off period. Karl will not be guilty of voluntary manslaughter. INVOLUNTARY MANSLAUGHTER Involuntary manslaughter an unintentional killing that can occur through gross negligence on behalf of the defendant or through the misdemeanor-manslaughter rule (MMR). Criminal Negligence This is an unintentional killing that occurs from the defendant's negligence. The defendant must have been aware of the risk of harm. Where Karl is not liable for murder, he could be convicted for involuntary manslaughter for the negligence of bringing a dog into the home of another to distract and cause chaos. However, Karl will most likely be liable for felony murder but if he isn't, the prosecution will have better chance of charging him under the MMR. MMR An accidental homicide that occurs during the commission of an unlawful act that does not amount to a felony. If Karl is not liable for Felony Murder because he is not guilty of burglary, he could be convicted of involuntary manslaughter under committing larceny. Under Pinkerton's Rule, Martha can be liable. BATTERY Supra. Under Pinkerton's Rule, Martha can be liable. HOMICIDE Supra. FIRST-DEGREE MURDER (FDM) Karl will not be liable here; therefore, neither will Martha. SECOND-DEGREE/COMMON LAW MURDER Under Pinkerton's Rule, Martha can be liable. FELONY MURDER Under Pinkerton's Rule, Martha can be liable. VOLUNTARY MANSLAUGHTER Karl will not be liable here, so neither will Martha. INVOLUNTARY MANSLAUGHTER Under Pinkerton's Rule, Martha can be liable. MISPRISON OF A FELONY At common law, this is where a person does not report the commission of a felony. However, modernly, this is no longer a crime in most jurisdictions. Under a modern law jurisdiction, Martha cannot be liable for this. DEFENSES - MARTHA DURESS Duress may be raised as a defense where a person was threatened that if they do not commit the unlawful act that there will be imminent bodily harm or death onto themselves or a family member. Duress is no defense to homicide. Here, Martha will try to bring the defense of duress. However, it is not going to be strong defense since the threats must be imminent. If she can prove that Karl was going to harm Sonny (an immediate family) at that very moment, then this will be a strong defense. However, where she cannot prove that, it will be weak. Furthermore, this would not be a defense to her homicide charges. June 2021 ESSAY QUESTION 4 OF 4 Answer All 4 Questions California First-Year Law Students' Examination Your answer should demonstrate your ability to analyze the facts in the question, to tell the difference between material facts and immaterial facts, and to discern the points of law and fact upon which the case turns. Your answer should show that you know and understand the pertinent principles and theories of law, their qualifications and limitations, and their relationships to each other. Your answer should evidence your ability to apply the law to the given facts and to reason in a logical, lawyer-like manner from the premises you adopt to a sound conclusion. Do not merely show that you remember legal principles. Instead, try to demonstrate your proficiency in using and applying them. If your answer contains only a statement of your conclusions, you will receive little or no credit. State fully the reasons that support your conclusions, and discuss all points thoroughly. Your answer should be complete, but you should not volunteer information or discuss legal doctrines that are not pertinent to the solution of the problem. You should answer according to legal theories and principles of general application. Therefore, there appears to be a valid offer. Revocation A revocation is taking back an offer once it has been given. A revocation is active when it has been delivered. Here, PILS revoked its offer to Amy before Amy had accepted. In the fact pattern, it showed that PILS withdrew its offer to 15 of the students whom it already made offers since too many other students accepted. This revocation was made before Amy accepted the grant Therefore, there is likely a valid revocation. Acceptance Acceptance is a seasonable acceptance of all terms of offer. Here, Amy appears to have been interested in taking the PILS grant, but had not formally accepted when it was officially revoked. Therefore, no acceptance. Consideration Consideration is a bargained for exchange causing detriment and benefit to both parties in contract. Here, there is a bargain for five years of public service by the student for cost of tuition by PILS. Amy would have given five years of time for three years of tuition, and PILS would have given three years of tuition payment in exchange for five years of her public service. Therefore, there was consideration. Defenses to formation There was no formation, so defenses not necessary, but will mention Statute of Frauds. Statute of Frauds Statute of Frauds covers contracts that cannot be fulfilled in less than a year, those for surety, marriage, land, estate, and goods greater than 500 dollars. Here, there is a contract over three years for five years of service. Therefore, Statute of Frauds is relevant, but no contract due to lack of acceptance, so nothing to enforce. Was there breach? Breach occurs when one party of contract fails to perform. Here, since there was no acceptance, there was no contract formed. Therefore, there is no breach. Promissory estoppel When a party detrimentally relies on the promise of another, that the reliance was reasonable and justified, and that non-enforcement would be unjust. Here, there was a promise of PILS to pay for tuition. In this case, Amy justifiably relied on the offer, in that she did not plan for it to be revoked. She thought that she could only choose one law school, and therefore, lost the ability to go to the other schools. It would be unjust to not in some way reward some damages when Amy justifiably relied on the offer from PILS. However, the level of damages is debatable. Therefore, there may be grounds of damages under promissory estoppel or detrimental reliance. Damages Expectation damages Expectation damages are enforced in order to put both parties in the place the parties would have been had the contract been enforced. Here, there was no contract, so it is unlikely that there would be expectation damages. It might be tuition to another law school in exchange for service. This is unlikely a real amount of damages. Therefore, likely not expectation damages. Reliance damages Reliance damages are those awarded to put the party in the place they would have been had there been no contract. Reliance damages are more likely the best method for awarding damages. Due to detrimental reliance, or promissory estoppel, the damages might include payment for the damages of having to re-apply to law school, or the damages that are provable that would not have been met if she had not had the offer to PILS. Therefore, there will likely be reliance damages. Specific performance This is when is ordered for performance of contract. Here, since there was no contract, likely not specific performance. Therefore, no specific performance. Therefore, there is likely no valid contract, but there is a case for detrimental contract. Here, Michael did not stay at the position he was promised to stay at for 5 years. He only stayed 4.5 years, but afterwards, he was able to find a similar job. Therefore, this would likely be considered a minor breach by Michael with mitigation to actually fulfill the essence or heart of the contract. Impossibility Impossibility is a defense to breach when the circumstances at the time of contracting were not foreseeable that it would be impossible. Here, it appears that at the time of the contracting, it was thought that Michael could find a job for five years. However, after performing for 4.5 years, he was terminated by lack of funds. While money is usually not an impossibility to performance, Michael was unable to find another job when doing best efforts. It might also be seen as a temporary impossibility, which is only excused while it is impossible but does not discharge of duty. Therefore, if it were impossible to find a job with the proper title, then it would be in effect not only impractical but impossible even with his own monetary loss. He might also have to perform later when not impossible to find that type of work. Mitigation Mitigation of damages occurs when someone breaches, they do what they can to make up for the breach or make up so that they do not incur more detriment. Here, Michael, to his detriment, took another job with the interest of doing similar community center counseling for the pay of $15,500. This does not appear to be a total breach of contract. While he was not able to fully make good with his previous contract due to factors that were not under his control, he was able to mitigate by doing a similar line of work for the rest of his five years, likely at his own detriment. Therefore, there is likely going to be a considering of the mitigation of his minor breach when evaluating for damages. Damages Expectation damages In expectation damages, the awards are made in order that they place the parties in a similar position as they would already have been in had the breach not occurred. Here, it could be argued that because of Michael's minor breach, substantial performance, and mitigation efforts, there might be no expectation damages. If they wanted to be very much by the rule, they might take request that he do another 6 months of the public interest lawyer work when available. However, most would say that considering the minor amount of breach, and substantial performance, and mitigation, he clearly already performed enough. Therefore, there are likely no expectation damages due to substantial performance, minor breach and mitigation, but it could be requested that Michael work another 6 months of performance as a public interest lawyer when that becomes possible again. His defense of breach of impossibility is likely only temporary. Reliance damages Reliance damages are awarded to put parties in the place they would have been had there been no contract. Here, because there was such substantial performance by both parties, it is likely very difficult to award reliance damages and account them appropriately due to the years of investment of work and costs. Therefore, likely no reliance damages. Restitution damages Restitution damages occurs when the defendant has been enriched by plaintiff. Here, there are likely no restitution damages since both parties have substantially performed. This might have been available if there had been no performance by Michael in any way and PILS just gave him $30,000. However, their relationship is far more complicated due to the amount of performance over years by both contracting parties. Therefore, no restitution damages. Therefore, Michael is likely not to pay anything since he substantially performed, caused minor breach, and mitigated his breach. However, he might be requested to work another 6 months in public interest law when that opportunity becomes available since the defense of impossibility is likely temporary. It appears that Amy was one of the 15 students who accepted the offer but then PILS withdrew it from. Therefore, there appears to be valid acceptance. REVOCATION An offer is freely revocable unless it is an irrevocable offer (defined supra.) Here, it appears that Plan can revoke this offer unless Amy has already accepted. However, the facts do not expressly state if Amy accepted, but it appears to be as such since she was one of the 15 students. Therefore, PILS cannot revoke. There may be valid revocation, however, if Amy validly accepted, there is not. For these purposes, no valid revocation and PILS has breached. DETRIMENTAL RELIANCE (DR) Detrimental reliance is where a party reasonably, foreseeably relied to their detriment on an offer. This would make the offer irrevocable. Amy could bring up the issue of DR in stating that the offer was irrevocable, as she "rejected her offers of admission from all other schools once she received the offer from PILS" and relied on this offer to her detriment. This could be persuasive in court. Furthermore, if this offer was irrevocable then PILS cannot revoke it. Consideration Consideration is a legally sufficient bargained-for exchange of legal detriment and/or benefit. The parties must be exchanging something to their detriment in order for consideration to be valid. Here, it appears that PILS is exchanging $10,000 for a student to join their program under the Plan in exchange for that student staying in their program and agreeing to retain full-time employment... five years… following graduation. There may be valid consideration, as Amy is exchanging her promise to take on a job of public interest for 5 years after her schooling with PILS. There may be valid consideration here. However, substitutes for consideration will be discussed below. Promissory Estoppel Promissory estoppel is where a promise is given and a person foreseeably and reasonably relies on that promise to their detriment and enforcement is necessary to avoid injustice. Amy can still prevail in breach of K under promissory estoppel if she proves that she foreseeably and detrimentally relied on this offer given by PILS. Where consideration is valid, then there is a valid K. STATUTE OF FRAUDS (SOF) Certain contracts must be evidenced by a writing. These are writings that are regarding marriage, services that cannot be performed within a year, land, executorships, sale of goods over $500, and suretyships. Services that Cannot be Performed within a Year Here, the K is for $10,000 per year. Therefore, the SOF is not at issue, as these services will be completed within a year. Furthermore, it does not appear that Amy signed anything, so it would not be a strong defense for her. DEFENSES TO FORMATION Unilateral Mistake Generally, not a defense unless the non-mistaken party knew or should have known of the mistake. Amy could raise a unilateral mistake, claiming that PILS should have anticipated so many acceptances. However, facts state that PILS did not anticipate for this; therefore, this is a weak defense. DAMAGES - AMY Expectation Expectation damages put the plaintiff in the position had the K not been breached. Here, Amy is looking to collect $30,000, which is the K price. However, she is most likely not going to collect these damages. Duty to Mitigate A party must mitigate their damages to avoid economic waste. Amy will be expected to mitigate her damages. Incidental These are out-of-pocket expenses a party incurs in finding a replacement deal. Amy could collect here if she has any out-of-pocket expenses in finding a new deal. Consequential Consequential damages are special damages which are unavoidable, foreseeable, and Here, PILS is going to argue that Michael materially breached the K by not obtaining the job for 5 years. The K has a condition that must be met and where it is not, a person can be in breach. However, he has worked at his job for 4.5, which shows substantial performance; therefore, this will be a minor breach, if anything. Minor Breach Where a party substantially performs their end of the bargain, they cannot be liable for a material breach. However, the non-breaching party can still collect damages offset from the performance already given. Here, Michael is going to argue that, if anything, there is a minor breach of contract since he did not obtain his job for 5 years, only 4.5. Michael will be in minor breach. DUTY DISCHARGED? Impossibility This is where something occurs after the K is entered into and nobody can perform according to the terms of the K. Here, Michael will try to raise impossibility by stating that it is impossible for him to perform since he was terminated for lack of funds. He will also claim he looked for 8 weeks for a new job but could not find one. PILS will argue back that it is not impossible to perform, as he could have used other resources to find a new job. This will not be a strong defense. Impracticability Impracticability is where there is an (1) extreme and unreasonable difficulty or (2) a cost increase that was not anticipated. Michael can raise impracticability, as being terminated from his long-standing job of 4.5 for lack of funds, is an extreme and unreasonable difficulty. He will further argue that he was near the end of his 5-year agreement and he had no intention of leaving. Furthermore, he will argue that "lack of funds" was extremely and unreasonably unforeseeable. This could be a strong defense for Michael. Frustration of Purpose A supervening event, that was unforeseeable at the time of entering the K, that makes the K completely frustrated. Michael can also raise FOP as a defense, stating that this supervening event of lack of funds was out of his control. Furthermore, it was unforeseeable at the time of entering the K and without it, the K is frustrated entirely. This could be a strong defense for Michael. DAMAGES Duty to Mitigate A party must mitigate their damages to avoid economic waste. Here, facts clearly state Michael searched for 8 weeks to try and find a job. He could not find anything in public interest law and had to accept an offer from a community center to counsel troubled adolescents. He properly mitigated his duties. Liquidated Damages Liquidated damages are written into the K and may be available in lieu of expectation damages. These damages cannot be impermissible (shotgun clause.) Here, PILS expects any person who breaches to repay the $30,000 in full. These are going to be impermissible, as this amount is completely over the top. Michael is not going to be obligated to pay the $30,000, as the court will most likely deem it a shotgun clause and impermissible. Incidental Not applicable. Consequential Not applicable.