How to Keep Track of Ambiguity

We’ve talked previously about factual and legal ambiguity, but let’s see how this plays out on an exam, and how you could prepare — in advance — for the sort of questions you’re likely to get.

First things first. Let’s say you’re preparing for your Contracts exam, and you want to identify some areas of likely ambiguity. Where would you start?

Identify Likely Areas of Ambiguity

Now, I don’t remember much from Contracts, but I do remember one critical thing: The U.C.C. applies in many situations, and it changed certain aspects of the common law of Contracts.

So…what can I do with that knowledge?

Make a Chart of Important Changes

One very useful option is to make a chart that shows important changes introduced by the U.C.C. Why? Because that gives you a checklist for issue spotting on the exam!

If all of the major changes are in one location, you’re much more likely to remember to look for them when you read through an exam fact pattern.

For example:

Common Law	U.C.C.	Notes
Applies to contracts of real estate, insurance, service, employment contracts, sale of intangible assets	Applies to sale of goods, sale of securities	Look out for situations where something could be classified as a “good” OR could be classified as a “service” –> Argue whether U.C.C. applies
Acceptance by mirror image rule. Any changes leads to counter-offer or rejection of offer.	Acceptance with minor changes does not cancel the offer as original terms are still enforceable. Acceptance with minor changes in a contract between merchants is enforceable.	Look for minor changes & consider whether there’s a contract. Is result different under common law/U.C.C.? Which applies?

 

Not too hard, right?

How to Use Your Chart

Once you have the chart, it’s easy to see how an exam question might play out.

Say your professor wanted to test the mirror image rule, and the applicability of the U.C.C. Easy enough!

She could construct a question where the fact pattern has minor changes in the “acceptance” — making it ambiguous whether a contract has even been created — and where there’s ambiguity about whether the contract is for goods or services — making it unclear whether the U.C.C. or the common law rule applies.

Bingo! Nested layers of ambiguity, which will confuse and misdirect a good portion of the class.

But, with your chart, this question wouldn’t be that hard. What would you do?

1. Consider whether the U.C.C. applies. Analyze the facts to determine whether this is a contract for goods, or a contract for services. Draw a conclusion about whether the U.C.C. applies.
2. Next, analyze the result, using the mirror image rule, under both the U.C.C. and the common law. Wait? Didn’t we just determine which one applies? Yes, but what if you’re wrong? Even if you think you got the “right” answer in step one, do the analysis both ways and cover your bases. (The exception being if it’s totally obvious which one applies. In that case, you shouldn’t have wasted time on step one anyway, so just draw a conclusion and move on.)

As you can see, having thought thorough areas of ambiguity in advance can really help on an exam.

If you take the time to chart out topics that are likely to show up on the exam, your analysis will be much more focused and efficient, you’ll see more issues, and things will make a lot more sense. Try it!

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If you missed our prior post on ambiguity: How to Write a Law School Exam: Deal With the Ambiguity, check it out and get up to speed.

Got questions? Leave them in the comments and we’ll get back to you!

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