- Which issue is most likely to determine whether the plaintiff may enforce the agreement or use the expert's testimony?
Answer: Whether the agreement is illegal because it gives the expert a financial stake in the litigation's outcome,creating an incentive to testify favorably rather than truthfully.
Whenever you see a lawyer paying an expert witness, pause: a witness's job is to assist the trier of fact, not to profit from a particular outcome. The key issue here is the contingency-fee arrangement. The expert receives 10 percent only if she testifies and wins damages, with nothing if the case settles or is dismissed. That gives her a direct financial stake in the litigation's result, creating an incentive to shape testimony toward victory rather than truth. Such agreements are against public policy, so the expert's testimony can be excluded, and the agreement is unenforceable.
The "cumulative evidence" choice is not the central issue; even if expert testimony is cumulative, a court may exclude it under evidence rules, but that does not address the illegality of the payment arrangement. The "properly disclosed and made available for deposition" choice is also a discovery-compliance concern, not the fundamental barrier—though disclosure matters, excluding testimony here turns on the illegal incentive. The "supported by consideration" choice is a trap: there is consideration (promise to testify in exchange for payment), but the consideration is illegal because it makes the witness a financial partisan. The agreement isn't unenforceable for lack of a bargained-for exchange.
Study tip: on the bar exam, an expert may be paid a reasonable fee, but never a contingent fee tied to winning or the amount recovered. Flag any percentage-of-recovery expert arrangement immediately.
- Will Vertex recover?
Answer: No, because Vertex was engaged in the home improvement business without a license, and Section 3(b) makes the contract void.
When you see a licensing statute, your first move is to identify the exact statutory consequences for noncompliance and any exceptions. Section 3(b) is the key: it makes the contract void and explicitly bars an unlicensed contractor from maintaining "any action, in law or equity." That phrase is an absolute bar—it kills both breach of contract claims and quantum meruit (reasonable value) claims. Vertex clearly falls under the Act because its owner held out as a professional and ran online ads, so Section 4's casual/isolated exception doesn't apply. Therefore, Vertex cannot recover because it was engaged in the home improvement business without a license and the contract is void.
Now, examine the distractors. The choice saying "Yes, because Marta accepted the completed renovation and an unlicensed contractor may recover for the reasonable value of work performed" is a trap—acceptance doesn't cure a statutory void, and the "reasonable value" argument is defeated by the "in law or equity" bar. The choice saying "Yes, because Vertex's five kitchen jobs in a single year were casual and isolated transactions" misreads the exception—five jobs, combined with advertising and a claim of professionalism, indicate a regular business, not a casual or isolated transaction. Finally, the choice saying "No, because unlicensed contracting is a crime and a party who commits a crime can never recover on any contract" is overbroad—the statute doesn't declare it a crime, and even if it did, not every crime bars contract recovery; the specific statutory bar here controls.
Study tip: Always look for statutory language like "void" or "may not maintain any action"—those are absolute bars that override common-law equitable remedies. When a statute has an exception, apply it strictly to the facts, not the labels.
- The manufacturer sues the city for breach of the equipment supply contract. Which legal issue is most likely to determine whether the manufacturer can enforce that contract?
Answer: Whether the consulting agreement was a sham to corrupt the council member's official action, making the supply contract unenforceable as contrary to public policy.
When a contractor sues a government entity and the facts suggest corruption, the central contract-law issue is enforceability of a contract tainted by illegal official action. Courts will not help a party profit from bribing or corrupting a public official; such contracts are void as contrary to public policy.
Here, the consulting agreement promised a huge annual fee to the council member who chaired the review committee, for "advice" wholly outside his experience. If that arrangement was a sham to buy favorable action, the supply contract is unenforceable, even if the manufacturer's bid was low and the city received equipment. That is the issue most likely to decide the case.
The argument that the consulting agreement lacked consideration misses the point: the problem is not that the advice was worthless, but that the payment was corrupt. The claim about the council member's conflict of interest under municipal rules may show a rules violation, but this contract lawsuit turns on public policy, not on internal rules alone. The suggestion about reasonable reliance on assurances is a distraction: no facts show such assurances, and reliance would not overcome corruption.
Study tip: whenever you see a government contract plus payments to officials, think "public policy/illegality" before getting distracted by consideration or internal procedural rules. Courts prioritize preventing corruption over enforcing bargains.
- Which issue is most likely to determine whether the Club's motion to dismiss should be granted?
Answer: Whether the Club's waiver, which would release it from liability for its own future negligence,is unenforceable as contrary to public policy.
When you see a waiver of liability in a personal-injury context, your first instinct should be to examine its enforceability—specifically, whether it attempts to shield a party from its own future negligence, which is heavily disfavored as a matter of public policy. Here, the waiver expressly covers the Club's own negligence, defective equipment, and failure to maintain the premises. The decisive issue is whether such a clause is unenforceable as contrary to public policy. In most jurisdictions, gyms and health clubs cannot fully waive liability for their own negligence because of the public interest in safe premises and the unequal bargaining power between the club and a member. If the clause is void, the motion fails.
The choice about whether the treadmill's defect caused the injury is a red herring—that defect is the alleged negligence. Even if causation is clear, an enforceable waiver would bar the claim. The choice about Marcus knowingly and voluntarily signing the agreement is also a trap; the terms were in bold capitals and he clicked "I agree," so his assent appears knowing. But even knowing assent doesn't save a waiver that violates public policy. Finally, the choice about online contract validity is irrelevant—clicking "I agree" generally creates a valid electronic contract under e-commerce laws, but that only addresses formation, not the substance of the waiver.
Study tip: Whenever a waiver explicitly mentions "own negligence," immediately test it against public policy. Ask whether the service is essential or involves a strong public interest (like gyms, hospitals, or utilities). That's the key battleground on bar exam questions.
- Under the Act, what should the court do?
Answer: Modify the covenant to a reasonable duration and geographic scope and enforce it as modified, because Gomez acted in good faith.
Whenever you see a restrictive covenant question under Fenwick's Act, break it into steps: Is it in writing and tied to the sale? Does it protect a legitimate business interest? Is it reasonable? And if some restrictions are unreasonable, ask whether the party seeking enforcement acted in good faith — that determines whether the court may modify.
Here, the covenant is in writing and connected to the sale of Patel's dental practice, and Gomez has a legitimate interest in protecting the practice's goodwill. But the twenty-five-year duration and statewide scope are excessive for what appears to be a local dental practice, and the "former patient anywhere in the world" ban is overbroad. The Act says a court shall not enforce an unreasonable covenant, but it also expressly allows modification when the party acted in good faith. Since there is no evidence of bad faith, the court should modify the covenant to a reasonable duration and geographic scope and enforce it as modified.
"Enforce the covenant as written" is wrong because it ignores the reasonableness requirement. "Enforce the twenty-five-year and statewide restrictions, but strike the former-patient restriction" is also wrong: those remaining restrictions are themselves unreasonable, so partial blue-penciling is insufficient. "Refuse to enforce any part" ignores the statute's modification provision, which applies precisely because Gomez acted in good faith.
Study tip: on restrictive covenant questions, don't assume an unreasonable covenant is automatically void. If the statute authorizes modification and good faith is present, modification is the likely result.
- Under § 1602, will Rafe recover?
Answer: Yes, because Rafe withdrew before the fire was set and his withdrawal was not prompted by an imminent threat of prosecution.
Whenever you see a statute with a specific remedy attached to an illegal agreement, resist the urge to apply the general common-law rule automatically. Read the statute's elements exactly: Rafe must show (1) he withdrew before the illegal objective was accomplished, and (2) the withdrawal wasn't prompted by an imminent threat of prosecution. Both are met. Nico bought gas and drove near the restaurant, but the fire was never set, so the illegal objective—arson—had not been accomplished. Rafe texted "Stop. Return my money" before any fire, and there is no indication he acted because prosecutors were closing in. Therfore, §1602 gives him recovervy.
The wrong answers each miss this statutory focus. "Yes, because the agreement was illegal and void, so Nico holds the money in a constructive trust" confuses general invalidity with statutory recovery. The statute does not create a trust; it creates a restitution right in narrow circumstances. "No, because Rafe and Nico are in pari delicto" states the normal rule for illegal contracts, but §1602 is an exception that permits the withdrawing party to recover despite the illegality. "No, because Rafe paid the money and Nico had already taken substantial steps" invents a requirement. Substantial steps may be relevant to attempt in criminal law, butt the statute asks only whether the illegal objective was "accomplished," not whethero preparatory steps were taken. When a statute defines an exception, apply its words literally—do not import common-law doctrines or criminal-law concepts that the statute does not mention.
- Which issue is most likely to determine whether Apex can recover on either its contract claim or its quantum meruit claim?
Answer: Whether Apex's failure to hold the required plumbing license makes its contract illegal and unenforceable because the licensing requirement protects public health and safety.
Whenever you see a licensing requirement in a contracts question, first ask: does the licensing statute protect the public, or is it just a revenue measure? That distinction decides whether the contract is enforceable. Here, the state plumbing license is required for sewer work, and sewer work directly implicates public health and safety. A contract made in violation of such a licensing statute is illegal and unenforceable — and because the statute protects the public, the homeowner's acceptance cannot waive the illegality.
That is why the decisive issue is whether Apex's lack of a required plumbing license makes the contract illegal and unenforceable. It does, and it also bars recovery in quantum meruit. Courts generally will not allow an unlicensed contractor to recover the reasonable value of services when the licensing law exists to protect the public from unqualified work.
The "workmanlike manner" choice misses the point: good workmanship cannot cure the absence of legal authority to do the work. The "services versus materials" choice is a statute-of-frauds red herring; this dispute is about an illegal contract, not whether it had to be in writing. The "knowingly accepted and waived" choice is the trap: a homeowner cannot waive a statutory protection meant for the public, so acceptance does not validate the illegal contract. Even if the work met local building codes, the license requirement is independent of code compliance.
On exam day, treat unlicensed practice cases as illegality issues: if the license protects health and safety, neither contract nor quantum meruit recovery is available.
- Is Draper required to indemnify Vestco?
Answer: Yes, because Clause 14 clearly covers claims caused by Vestco's negligence, and failing to notice the rot was ordinary negligence, not gross negligence.
When you see an indemnity clause that would shift a loss to someone else even for the landlord's own negligence, the key question is whether the clause clearly says that. Public policy does not forbid ordinary-negligence indemnity—it only forbids indemnifying gross negligence or intentional misconduct.
Here, Clause 14 could not be clearer: it covers claims "regardless of whether such claims are caused in whole or in part by the negligence of Landlord." That express language satisfies the enforceability test from Loomis. The rotted railing collapsed because Vestco's manager failed to notice the rot during inspection; that is ordinary negligence, not gross negligence or intentional misconduct. So the clause applies, and Draper must indemnify Vestco.
The tempting but wrong "yes" reason—that the "regardless of whether" language conclusively waives all public policy limits—overstates it. Even clear language cannot indemnify gross negligence or intentional misconduct, so public policy limits still exist. The "no" answer claiming public policy always prohibits indemnifying a party for its own negligence is wrong because ordinary negligence is exactly what such clauses may cover. And the other "no" answer—that Draper was not at fault—misses the point: indemnity can require one party to pay for another party's negligence, as long as the clause clearly says so.
Study tip: on bar-exam questions, always separate ordinary negligence from gross negligence—that line determines whether a clear indemnity clause is enforceable.
- Which issue is most likely to determine whetherthe sales director can enforce the competitor's promise to pay $75,000?
Answer: Whetherthe sales director's promised performance would require breaching fiduciary duties owed to the software company, making the competitor's contract unenforceable because it is contrary to public policy.
Whenever you see a question about whether a contract can be enforced, check first whether its subject matter or promised performance violates a law, a duty, or public policy. Here, the sales director is an employee who owes the software company a fiduciary duty of loyalty. His agreement to sell the company's customer lists, pricing algorithms, and marketing plans to a competitor would require him to breach that duty while still employed. A contract whose performance requires wrongdoing is void as contrary to public policy, so the competitor's promise to pay $75,000 is unenforceable by the sales director.
The other choices miss the central issue. The nondisclosure agreement's reasonableness in scope and duration would matter if the company were enforcing that agreement later, but it does not determine whether the competitor's contract is enforceable. The consideration argument also fails: the competitor's promise of payment and the director's promise to deliver information were bargained-for exchange, so consideration likely exists; the problem is the illegality of the performance, not a failure to transfer files. And the sales director's final compensation being earned before the copying is a separate employment dispute with the company—it has no bearing on the contract with the competitor.
Study tip: on contract enforceability questions, ask "What was the promised act?" If the act itself is illegal or disloyal, no amount of consideration can save the deal.
- How should the court rule on Summit's motion?
Answer: Deny the motion, because the guide's decision to proceed despite the posted warnings and missing safety cable was reckless disregard for safety, which cannot be released.
Whenever you see an exculpatory clause in a torts question, separate ordinary negligence from reckless or willful misconduct. A valid release can waive claims for ordinary negligence and inherent risks of an activity, but public policy generally forbids waiving liability for gross negligence, reckless disregard, or intentional harm.
Here, the release clearly covered negligence, and whitewater rafting has inherent risks. But the guide ignored flood-stage warnings and a missing required safety cable, then steered into the most dangerous rapids. That is not merely negligent; it is reckless disregard for Alex's safety. Under the rule from Reyes, Summit cannot escape liability for that conduct, so the motion to dismiss should be denied.
The choice saying the release should be enforced because it expressly covers negligence and Alex assumed inherent risks is tempting, but it ignores the key fact: the guide's conduct crossed from ordinary negligence into recklessness. Similarly, the answer that a clear and unambiguous release signed before the trip is enough misses the same public-policy limit — clarity cannot make an unenforceable waiver valid. Finally, the claim that a recreational provider may never enforce an exculpatory clause against a paying participant goes too far; providers often can enforce such clauses for ordinary negligence, just not for reckless or willful misconduct.
Study tip: when a fact pattern includes deliberate ignoring of warnings or safety equipment, flag it as recklessness — then look for whether the release covers only ordinary negligence.
- How should the court rule on the motion to compel arbitration?
Answer: Deny the motion, because the absence of meaningful choice from the take-it-or-leave-it English-only form, combined with the one-sided arbitration terms, makes the clause unconscionable.
Whenever you see an arbitration clause challenged as unconscionable, remember the statute requires two things together: an absence of meaningful choice (procedural unconscionability) and a term that unreasonably favors the other party (substantive unconscionability). The facts here supply both. Consuelo, a Spanish-speaking day laborer, faced a take-it-or-leave-it English-only form, so she had no real opportunity to negotiate or understand the arbitration term. That is an absence of meaningful choice. The arbitration clause then unreasonably favors the company: the company picks the arbitrator, Consuelo must pay a $12,000 filing fee, and she owes the company's attorney fees if she loses. These one-sided terms make the clause substantively unconscionable. Therefore the court should deny the motion to compel arbitration.
The reasonable repair prices and work terms do not save the clause. Substantive unconscionability cans be based on an arbitration clause itself when its terms are unfairly one-sided, so granting merely because the prices were reasonable ignores the arbitration-specific unfairness. Nor does voluntary signing defeat unconscionability; the statute asks whether meaningful choice existed at formation, and a signed form does not prove meaningful choice where the company dictated terms. Finally, do not overread the language-barrier fact: a contract term in a language the party cannot read is not automatically unconscionable, but it is strong evidence of no meaningful choice when combined with unfair terms.
On the exam, spot unconscionability by asking two questions separately: was there a real choice, and does the challenged term unfairly favor the drafter? Both must be present, and procedural barriers like language or take-it-or-leave-it pressure can combine with harsh arbitration terms to invalidate an arbitration clause.
- Which issue is most likely to determine whether Dental Partners can enforce the covenant not to compete?
Answer: Whether the covenant is an unreasonable restraint on trade and therefore unenforceable despite being part of a business sale.
Whenever you see a covenant not to compete, first ask whether it is ancillary to a valid transaction and whether its scope is reasonable. In the sale of a business, a noncompete can protect the buyer's purchased goodwill, but it is still a restraint on trade. Here, the key issue is not whether Dr. Patel literally violated the covenant—she did, by opening 55 miles away—but whether a 15-year, 60-mile ban is broader than necessary to protect Dental Partners' legitimate interest. That is the core reasonableness question; an overly broad covenant is unenforceable even when it was part of a business sale.
The choice focusing on whether Dr. Patel's new office is within the geographic area misses this threshold inquiry: conduct can fall within the literal terms, yet the terms themselves may be unreasonable. The choice about separate consideration is also wrong because a noncompete accompanying a business sale is normally part of the purchase bargain and needs no separate payment. Finally, the choice about Dental Partners' withholding the final payment raises contract-performance issues, but it does not determine whether the covenant is valid; enforceability comes first, and if the covenant is unreasonable, the withholding question is secondary.
For the exam, always test time, area, and scope against the goodwill sold—if the restraint exceeds what is needed, the covenant fails.
