Article 2 or Common Law? Make the Right Call on Contracts Essays

One of the most overlooked ways to lose points on a Contracts or Sales essay is failing to identify the correct applicable law—whether the common law or Article 2 of the Uniform Commercial Code (U.C.C.).

Based on my review of every MEE Contracts and Sales essay question and NCBE Analysis since 2008, multiple questions require examinees to explicitly determine and apply the correct body of law. Sometimes the call of the question asks you directly to identify the governing law. Other times, a proper analysis of another issue depends on whether the common law or U.C.C. governs.

Here’s the key takeaway: If you ignore the applicable law—or apply the wrong one—you miss out on easy points. And on bar essays, missing points adds up quickly.

Even when the call doesn’t directly ask for it, you should always consider:

• What’s the applicable law?

• Is it necessary to state and apply it to resolve the issue?

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Since 2017, here are eight essay questions where the NCBE Analysis shows that a discussion of the applicable law was required—and how much it was worth:

• July 2024 – 5%

• February 2024 – 10%

• February 2022 – 5%

• February 2020 – 15%

• September 2020 – 10%

• July 2018 – 20%

• February 2018 – 25%

• February 2017 – 10%

  
  

That’s up to one-quarter of available points for a single issue. Don’t leave those on the table.

So, what is the applicable law?

Article 2 of the U.C.C. applies to the sale of goods. (It doesn't matter what the value of the goods sold is, and it doesn't matter whether one of both of the parties are merchants or non-merchants. If you're dealing with a sale of goods, then Article 2 of the U.C.C. applies. Full stop.)

The common law applies to most other contracts (usually services, real estate, and construction contracts on the bar exam).

If a sale involves both goods and services (e.g., a contract to paint a portrait), a court will determine which aspect is dominant and apply the law governing that aspect to the whole contract. This is known as the "predominant factor test." This test requires examining the contract's language, the relative value of the goods versus the services, and the parties' intentions to ascertain whether the contract is fundamentally about the sale of goods (thus applying Article 2 ) or the provision of services (therefore governed by the common law).