Contracts on the MEE: What to Know and How to Practice

Contracts questions on the MEE focus on the lifecycle of a contract: formation, performance, breach, and remedies. You should expect questions involving offer and acceptance, consideration, promissory estoppel, and the statute of frauds. The examiners frequently test your ability to identify when a contract has been formed and when it has not.

UCC Article 2 is a major testing area. MEE Contracts questions often involve the sale of goods, which means you need to know where UCC rules differ from common law. Key distinctions include the mirror image rule versus the UCC's more flexible acceptance rules, the merchant's firm offer, and the perfect tender rule.

Breach and remedies round out the typical Contracts essay. Expect questions on material versus minor breach, anticipatory repudiation, expectation damages (calculated as the benefit of the bargain), consequential damages (subject to the Hadley v. Baxendale foreseeability requirement), mitigation, and specific performance. Third-party beneficiary problems (intended versus incidental beneficiaries) and assignment or delegation issues also appear regularly. Conditions precedent, subsequent, and concurrent are common testing points that affect when performance is due.

Start by identifying whether the transaction involves goods or services. This determines whether UCC Article 2 or common law governs, which affects nearly every rule you apply. If the facts mention a sale, a shipment, or a merchant, you are likely in UCC territory.

Next, work through the issues chronologically: Was there a valid offer? Was there a valid acceptance? Was there consideration or a substitute? Then check for defenses like the statute of frauds, unconscionability, or lack of capacity. Finally, address breach and remedies. MEE graders reward thorough issue coverage. Do not spend all your time on formation and neglect remedies.

Not identifying the governing law upfront. The first analytical step in any Contracts essay is determining whether UCC Article 2 or common law applies. On the February 2018 MEE, an entire issue tested this distinction. If you apply the wrong body of law, every rule you state after that point may be incorrect. Make your first sentence identify the governing law and explain why.

Confusing the mirror image rule with UCC 2-207. Under common law, an acceptance must mirror the offer exactly or it is a counteroffer. Under the UCC, an acceptance with additional or different terms can still form a contract. This is one of the most frequently tested distinctions. If your fact pattern involves goods and the acceptance does not match the offer, you are being tested on Section 2-207.

Skipping remedies. Many examinees write a thorough formation analysis and then conclude with one sentence on damages. Remedies are often worth 25% or more of the essay. Address expectation damages, consequential damages (with foreseeability), mitigation, and specific performance where the facts support them.

Forgetting the Statute of Frauds. If the contract involves goods priced at $500 or more, real property, or a contract that cannot be performed within one year, check whether the Statute of Frauds applies and whether any exception saves the contract (part performance, specially manufactured goods, judicial admission). This is a frequently tested defense that examinees overlook.

Follow the contract lifecycle. Structure your answer chronologically: formation, then defenses, then performance, then breach, then remedies. This matches how graders expect to read the answer and ensures you cover every stage. If the fact pattern tells you a valid contract exists, do not spend time analyzing formation. Focus on what the examiners are actually testing.

Use the facts to spot what matters. If the fact pattern includes language in quotation marks ("I will sell you 100 widgets at $5 each"), the examiners are testing whether those words create a binding offer or acceptance. Quoted language is always significant. Analyze it directly.

State both rules when the law is split. When the issue could go either way, the bar examiners award full credit for either conclusion if it is well-reasoned. The July 2016 MEE on contract assignability allowed examinees to argue either side. State the rule clearly, apply it to the facts, and reach a firm conclusion. Do not hedge or argue both sides.

Distinguish substantial performance from perfect tender. Under common law, a party who substantially performs can recover on the contract minus damages for any deficiency. Under UCC Article 2, the buyer can reject goods that fail to conform in any respect (the perfect tender rule), unless it is an installment contract. Stating the correct performance standard for the governing law shows the grader you understand the distinction.