Identify Dispositive Language in a Provided Resource - Next Generation Bar Exam

1. A contract states that the seller's obligation arises 'only if the buyer obtains financing by June 1.' The buyer obtained financing on June 10. What language is dispositive?

   The condition 'only if the buyer obtains financing by June 1'. The express condition was not satisfied, so the seller's duty did not arise.

2. What is the effect of the word 'notwithstanding' in a provision?

   The provision controls over the conflicting provisions it references. Drafters use it to establish priority among provisions.

3. What is the expressio unius canon?

   Expressing one item of an associated group implies the exclusion of others not mentioned. It applies where the listed items suggest the list is exclusive.

4. What is the effect of the phrase 'provided that' following a rule in a statute or contract?

   It introduces a condition or exception to the rule. The proviso often determines whether the rule applies to particular facts.

5. What is the distinction between elements and factors in a legal standard?

   All elements must be satisfied; factors are weighed together and none is necessarily required. Identifying whether a test uses elements or factors is central to applying it.

6. What does a statutory definition section do?

   It supplies the binding meaning of defined terms used elsewhere in the statute. A defined term may differ from its ordinary meaning.

7. What is dispositive language in a statute or contract?

   Language that determines the outcome of the issue when applied to the facts. Identifying it focuses analysis on the terms that control the result.

8. What is the ejusdem generis canon?

   A general term following specific terms is limited to things of the same kind. For example, 'cars, trucks, and other vehicles' may not include airplanes.

9. In a judicial opinion, what is the holding?

   The rule of law necessary to the court's decision on the facts before it. Statements unnecessary to the decision are dicta.

10. What is the effect of the phrase 'subject to' in a provision?

    The provision is limited by the referenced provision. 'Subject to' makes the referenced provision controlling.

11. What is the effect of the word 'including' before a list in a statute or contract?

    It ordinarily introduces illustrative, not exhaustive, examples. Drafters who intend an exclusive list typically use words such as 'means' or 'limited to' instead.

12. A statute grants a remedy to persons injured 'by a knowing violation.' The client's injury came from a negligent violation. What is the dispositive language?

    The word 'knowing'. The mental-state requirement determines whether the client is covered.

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