answering problem questions in exams

8/3/2019 Answering Problem Questions in Exams

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Principles of Law 101

ANSWERING PROBLEM QUESTIONS IN K+ LAW EXAMS

When answering problem questions in exams it is important to realise that you aretaking the role of judge. You have to present the relevant legal arguments fortackling the problem question and then decide which argument(s) is likely to

succeed in law. For example, you will be given a problem fact situation involvinga dispute between two or more parties and then asked to advise the parties to thedispute of the likelihood of their success in taking legal action.

The focus is not so much on the conclusion you reach, but rather it is on how well

you argue the relevant law, that is, your ability to use legal reasoning.

Approach 1a

There are 5 separate steps involved in answering a problem question

They are as follows:-

STEP 1. List the sequence of key events in the case which will include the material

facts

STEP 2. State the issue(s).

STEP 3. Statethelaw and the source of that law.

STEP 4. Relate the law to the fact situation.

STEP 5. Come to a conclusion and note any consequences that follow.

A more detailed explanation of the above steps is given below. Also, the following samplequestion is used to illustrate these steps.

SAMPLE EXAM PROBLEM

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Lisa wants to sell her computer and knows that her friend, Nicole is interested inbuying it. On November 1, Lisa writes and posts a letter to Nicole (who is currentlyon holidays interstate) which she concludes as follows:-

By the way, I am selling my computer and buying a new one. I think it is

worth UGX. 700,000; without the printer which I want to keep. If you are notinterested in buying it for UGX. 700,000, let me know by November 10, as I amgoing to sell it at an auction on that day if you do not want to buy it.

Nicole receives Lisas letter on November 3. On November 5 she posts a letter toLisa which includes the following statement:-

I would buy your computer for UGX. 700,000, but would you include the printer inthe price, as I have only UGX. 700,000 left after my holiday expenses?

Lisa receives Nicoles letter on November 6, and posts a second letter to Nicole on

November 7, in which she says:-

My offer to sell you my computer for UGX. 700,000 is withdrawn. I will sell it atauction on November 10.

In the meantime, Nicole has second thoughts about the computer and realises that itis a bargain at UGX. 700,000. She accordingly writes and posts a second letter toLisa on November 7, saying:-

Ignore my earlier letter, I will buy the computer for UGX. 700,000 without theprinter. I will contact you when I return to make arrangements to pick it up and pay

you.

Lisa receives this letter on November 10, but only after she has sold the computer atan auction for $1,200. Nicole receives Lisas letter of November 7 on November 10.

Advise Nicole as to her contractual rights in this situation (10 marks)

STEP1 State the key facts of the case in a chronological order of occurrence

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STEP 2 State the issue. (ie. Which area of Law does this question deal with? )

This is perhaps the most difficult part of any question. The issue or issues the question deals

with are often disguised or difficult to pick. A student who does not know or understand thecourse very well can easily misread, misunderstand or jump to the wrong conclusion inrelation to the area of law covered by the question.

Your notes, may not assist in this regard. Too often students have indicated to me after anexam that the question looked like the issue on which they delivered their answer and in factthe question demanded an answer on another issue altogether.

There is no formula for working out the correct issue(s) for a question. I can only advisethat the better you know the course and the more effort you put in during the semester andthe more practice you do from past exam papers, the better you will become at picking the

issues as the questions often re-appear in later years with just the names of the partieschanged but the legal issue is the same.

In your examinations each problem question will usually have more than one issue.

You should deal with each issue in the problem separately, following each of the steps inthe format outlined above, in the order given.

How to write the answer in the exam using this method

As a matter of style, you could use complete sentences. However, using a combination offigures and words will not lose you any marks -

Example:- Your exam answer could look like this:-

Issue 1. - Offer and Acceptance

Whether you make an overall issue as a heading then deal with each issue separately willdepend on the question -

Example:-

Overall Issue - Offer and Acceptance

1st Issue - Offer ..................................(when you have dealt with the 1st Issue)

2nd Issue - Revocation of Offer ....................(when you have dealt with that issue)

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3rd Issue - Postal Rule etc.

STEP 3. State the law and the source of that law

This is where a well prepared set of notes is invaluable.

Once you have identified the correct issue and noted it on your exam paper, as outlinedabove, then the next step is to:

Firstly - copy out each relevant proposition(s) of law required to answer thequestion and then in brackets note the authority (source) of that rule

After each rule or proposition of law you will have to put in brackets the authority for thatrule, ie. the case in which the rule was first made.

Note that your understanding of the issues in the question will determine the quality of youranswer.

Example:

Suppose that your answer requires you to state the law relating to Revocation of Offer

At this point, your answer, would read -

2. The Law

To be effective, notice of revocation must actually reach the offeree prior to his acceptanceof the offer (Byrne v. Van Tienhoven)

Note: at this stage (if you are following this method of answering problems) you do nomore than state the law and the source. Discussing how the law relates to the problem is thenext step in the answer.

If there are several points of law relating to theissue you are dealing with you, should notethem (and their source) one after another at this time.

Example: Take Q1 which is provided above. Your exam answer at this point couldlook like this:

Q1. General Issue - Offer and Acceptance

Issue 1 - Offer or Invitation to Treat

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2. The Law -

An offer is a clear unambiguous promise to do something in exchange forsomething from the other party.

An offer must be distinguished from an Invitation to Treat which only invites anoffer (Harvey v Facey).

Issue 2 (or The second issue in the question)

1. Issue - Counter Offer

2. The Law - A counter offer revokes the first offer and substitutes a new offer(Hyde v Wrench).

Issue 3.

1. Issue - Revocation of Offer

2. The law - Revocation of offer must be communicated to finish the first offer.

And so your answer continues until you have worked through all the issues in the question.

(You may feel that this process takes a lot of exam time. However, missing a vital point

in your exam answer could seriously affect your final exam mark.)

STEP 4. Relate the law to the fact situation.

This is the most important part of your answer and where most marks are gained.

You have stated the issue(s) involved and the law(s) which are relevant to that issue. Nowyou must show how the fact situation relates to the that law.

This is achieved by looking at each situation in the given problem and

comparing every element in the rule of law and deciding if that element has been provenor has not been made out by the facts given.

Example: Look at Issue 1. in Question 1

The Issue is whether the first statement made by Lisa is an Offer or an Invitation toTreat. Two propositions of law were quoted.

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The first rule indicated - that to be an offer, the person making the statement (Lisa) mustdemonstrate that she has made a clear and unambiguous promise to do something inexchange for something from the other party

You will need to formulate the habit of looking carefully at each element of the law

quoted and see if that element has been made out.

In the stated rule the first element is that, to be an offer, the statement must indicate a clearand unambiguous promise. If you look at the wording Lisa uses you should have somedoubts that she is making a clear and unambiguous promise. She uses words such as - Bythe way; I think it is worth .....; :If you are interested ....... You would be justified inquestioning whether Lisa was actually offering to sell the computer to Nicole or just testingthe waters.

However, later Lisa actually states that if Nicole does not answer in the affirmative by aspecified date, she will sell at auction. That is clear and definite. Therefore, on balance, you

would also be justified in concluding that the statement by Lisa is an offer. (Do not besurprised if you can see both sides of an issue. The examiner intends it that way. Your taskis, given the facts, which result is more probable or reasonable.)

This process of looking at the elements of the rule of law and deciding whether each

element is made out (as a judge presiding over a case would do) and then noting your

thoughts and conclusions to that test in your answer is probably the most vital part of

your answer.

You will need to repeat this process with every part of each proposition of law andwith each issue you have raised in problem you are tackling.

STEP 5. Come to a conclusion and note any consequences that follow.

This last step is important but not crucial if you come to an answer with which the examinerdiffers. The bulk of the marks will have been obtained for selecting the correct issue,stating the appropriate law and relating the facts to that law. You will probably have beenasked to advise X if there is a contract or if s/he has a remedy etc.

Try to relate you conclusion to the exact question you have been asked.

From what perspective should I answer each problem question?

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Irrespective of who you are asked to advise you should answer every question as if you werea judge in court giving your result of the case you have just heard and the reasons for

your decision.

Example: In the question looked at earlier (see last page), you were asked to advise Nicole

as to her contractual rights. You are really being asked if Nicole had a contract, and if so,could she force Lisa to supply the computer or obtain another remedy (eg. Damages) fromthe court if Lisa has breached the contract by selling the computer at auction.

As there are usually multiple issues involved all the way through the problem, the outcome toeach issue leading to a contract existing or being breached, the final result will depend howyou argued each issue.

Your conclusion could read as follows:-

4. Conclusion

As I have shown, Lisas first letter was an offer and Nicoles reply, being merely arequest for more information, did not destroy the offer. However, Lisas purportedattempt to revoke her offer arrived after Lisa had posted her acceptance of the offer,which, according to the postal rule was effective on posting. Hence Nicole has acontract with Lisa for the sale of the computer which Lisa has breached by itssale. As Lisa will not be able to produce the goods to complete her part of thecontract, Nicole will have a remedy in damages for breach of contract.

(Look out for situations, later in the course, where there is a contractual result but wherethere may also be a remedy in Statute Law.)

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Approach 1b

It is important to apply the following format when answering a problem question:

decide what the issues are (that is, the matters over which there is or may be

some dispute); decide what rules of law are applicable to those issues; cite the authority for the rule (that is, a case or statute); apply the rule to the facts; come to a conclusion;

state the remedy.

A sample exam question:

On 15 September, Arthur offers to sell his antique desk to Harry for $5,000. Harry

subsequently inspects the desk and says to Arthur The desk is in excellentcondition and Id like to have it. Theres no doubt that I could afford to buy thisdesk if I could pay for it in three instalments. Nothing further is said concerning

the desk. On 18 September, Harry sends a letter to Arthur in which he acceptsArthurs original offer. On 19 September, Harry learns that Arthur has sold the

desk to Richard for $6,000. On 20 September, Arthur receives Harrys letter ofacceptance.

Advise Harry whether he has an action against Arthur for breach of contract.

Give detailed reasons for your answer.

To get a clear picture of related events, it is useful to draw a diagram:

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Next step:

isolate areas of dispute which may occur

these are the issues

an issue is a fact of a situation that could have more than one legalinterpretation. That is, more than one law could apply to it.

The statement: Id like to have it (one fact) could be interpreted in morethan one way legally. It could be:

o an acceptance of the offer

o a request for more informationo a counter offer

A questioning attitude is important

The issues are indicated by shaded circles in the following diagram:

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The plan the answer:

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The Answer

An offer has clearly been made by Arthur to sell his antique desk to Harry for$5000. The first question is whether Harrys reply was a counter offer or a requestfor further information. If it was a counter offer then, as was held in Hyde v

Wrench, it amounted to a rejection of Arthurs offer. Arthurs offer wouldtherefore have terminated, and hence could not be accepted, and there would have

been no contract. If it was a request for further information, as in Stevenson,Jacques v McLean, the offer was still open and could have been accepted.

To be an offer (whether an original offer or a counter offer), a statement mustcontain a promise or promises and not just a fact or information, as was indicatedin Harvey v Facey. So the question becomes did Harry intend his statement to bea promise to buy the desk on condition that he could pay for it in threeinstalments? If he did, then it was a counter offer and he could not sue for breach

of contract.

Alternatively, Harry could just have been commenting on his own ability to paythereby seeking further information from Arthur about what method of paymentwould be acceptable to him. In my opinion, Harrys statement contained no

promises. He did not promise to buy it on condition he could pay by instalments.He merely stated a fact about his financial circumstances and the method of

payment he could manage. He was talking around the offer, perhaps seeking aresponse from Arthur, before deciding how to respond to Arthurs offer. ThereforeHarry made no counter offer and Arthurs offer remained open.

It is now necessary to determine if and when Harry accepted the offer. If the PostalRule applied then acceptance occurred on the 18th (that is at the time of posting

Nunin Holdings Pty Ltd v Tullamarine Estates Pty Ltd). There is probablynot sufficient evidence to decide the issue absolutely. It is not disclosed howArthurs offer was made. Whether the Postal Rule applies depends on whether theofferor has contemplated and expressly or impliedly approved the post as a modeof acceptance. If the offer was made verbally, then probably the Postal Rule didnot apply. Therefore acceptance did not occur until the 20th, when Arthur receivedthe letter. If the offer was made by post then acceptance would probably haveoccurred on the 18th (that is when Harry posted the letter). If the latter applies thenHarry has an action for breach of contract. If the former applies then the resultdepends on whether Arthur revoked his offer prior to the 20th.

By selling the desk to Richard, Arthur clearly intended to revoke his offer.However, as decided in Byrne v Van Tienhoven, the revocation must becommunicated to the offeree. However the revocation does not have to be

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communicated by the offeror in person. It may be made by any other personprovided it is reasonable in the circumstances for the offeree to rely upon that otherperson. In Dickinson v Dodds the court decided that revocation is effective if it iscommunicated to the offeree by a reasonably reliable source. It seems clear thatthis has happened in this case, and hence, Harry cannot accept Arthurs offer

because it no longer exists.

In my opinion Harry has little chance of success because either:

1. there was a counter offer, or2. the Postal Rule does not apply and revocation occurred prior to acceptance.

This next approach to tackling exam questions is a very similar approach to the one outlined above,but it does not go into the detail of each of the steps involved in answering questions. However, itdoes emphasise the importance of planning your answer and applying a format to answering

questions. The format suggested is essentially the same as the one described inExample 1. Also, it isuseful to see how a bare pass answer compares with an answer which would gain full marks.

Approach 2

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(The Answer)

Approach 2

"Florence is a trained nurse, working and living in New York. She is

employed there on most favourable terms because of her specialised knowledgeand she also owns her own apartment in Manhattan. She receives a letter from her

parents, pleading with her to return to Melbourne as they are both ill, asking her toreturn and care for them in their old age. They assure her that they will leave to herin their respective wills, their beach house at Portsea in appreciation of herservices. She sells her Manhattan property, relinquishes her job and returns toMelbourne to look after them. After their deaths five years later, she discovers thatthe Portsea house has been left in her parents will to the Lost Dogs Home, theirfavourite charity. Can she claim the Portsea house from their Estates?"

This question is worth 5 marks. This would justify a 15 minute answer.

The question could be answered to a bare pass standard in the following way:-

Florence can sue the estates in contract if she can prove all of the elements of acontract. They are offer, acceptance, intention and consideration. They all appearto exist, the only suspect one being intention. The facts are remarkably similar tothe case of Todd v Nichol, where the Court decided that although there was adomestic relationship between the parties, there was intention to create a legalobligation, and therefore, there was a binding contract between the parties. By

using that case as a precedent, Florence would succeed if she sued the estates.

This answer could be written in 5 minutes, and would attract a mark of 2 or 2.5,but it fails to do justice to the student.

A plan for the answer, using a 6 step procedure, would be as follows:-

Issue - Intention Law and cases - Intention is component of every legal contract

o - Proof of intention?o - Presumptions - commercial Edwards v Skywayso - rebuttal Roe & Frank v Cromptono - domestic Balfour v Balfouro - rebuttal Merritt v Merritt

Application - Elements of both social and commercial (Todd v Nichol)

Conclusion - She probably wins. Consequences - Can successfully sue the estates for the house.

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A plan of this nature can be prepared in 5 minutes, leaving 10 minutes to write theanswer. A planned answer is much quicker to write than an unplanned one,follows a more logical sequence, and covers all the relevant points. Realistically,the answer would have to be limited to about a page, given the time restrictions.An answer which would attract 5 marks would be as follows:-

The issue raised by this question is whether or not the parties intended to belegally bound by their agreement. The law of contract requires that, in order for a

binding contract to exist, there must be such intention, together with offer,acceptance and consideration. The existence of intention is tested by using twoestablished presumptions. First, if the agreement is commercial in nature, there is a

presumption that they intended to be legally bound. (Edwards v Skyways Ltd.)This presumption can be rebutted by clear evidence of an opposite intention. (Rose& Frank v Crompton) Conversely, with social or domestic agreements, the

presumption is that no intention to be legally bound attaches to the arrangement(Balfour v Balfour). Again, this presumption can be rebutted by clear contraryevidence (Merritt v Merritt). By applying the law to the facts, we see that theagreement has both commercial and domestic elements, so that the presumptionsdo not really provide us with an answer. However, this dilemma arose in the caseof Todd v Nichol, when the court decided in similar facts, that, despite the fact thatthe parties were related, thus suggesting a domestic or social agreement, the factthat they relinquished property interests and jobs in Scotland was evidence thatthey intended to be legally bound. The conclusion, therefore, is that, by relying onTodd v Nichol, Florence can prove all the elements of a contract and can sue the

estates of her parents to enforce those rights as against the Lost Dogs Home. Suchan action would have excellent prospects of success.

If the same problem arose as the sole issue in a question worth 10 marks instead of5, a more detailed answer would be justified. This could be achieved in the

planning stage by going into detail about the cases referred to in the answer.

Remember that the majority of marks are achieved for a detailed and sensibleanalysis of the relevant law. Your decision is not critical - it is often a matter ofopinion anyway, and you will not lose marks for having an opinion which differs

from the examiners. You gain marks for legal knowledge, not for makingjudgements.

Write your answer as if you were speaking politely to someone who is completelyignorant of the law, and you are trying to explain to them the law which isrelevant, in order to lead to a logical conclusion.

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