Concord University School of Law Practice Essay Instructions: This is a timed practice, and you should take no more than one hour to complete this exercise. Set a timer and allow no interruptions. Before you write, be sure you have memorized all of your definitions and rule statements so that you can recite them in the appropriate place. Remember that you cannot demonstrate your best analysis unless you use the IRAC formula. If necessary, review IRAC before you begin to write. This is closed book and designed to test your ability to recognize legally significant facts, to reproduce on paper the proper rule statements and definitions, and to apply the relevant facts to the elements of the rule in order accurately to predict the legal outcome. You will need these skills to do your best on your final exams as well as on the FYLSE. The best practice is to write an outline or an "issues list" before you begin to write. Under no circumstances should you spend more than 5 or 6 minutes on this overview. Yet, under no circumstances should you ignore it. If you make an issues checklist before you begin, you can go back and check off the issues at the end. On the other hand, if you do not have a checklist, it is too easy to lose your way as your write and totally forget to include an issue you, in fact, actually identified. To lose points through inadvertent omission is a frustrating and unnecessary outcome. Getting Started: Set a timer and write your outline or issues list. Then, write the essay itself. When the timer rings, stop, draw a line across the page and keep going until completion. Note your Total Time clearly in parentheses. This will become an important diagnostic tool to help you improve your skills. Finally: 1. Make and keep clean copies of this essay so you can practice rewriting it, especially if you find you cannot complete it in the required hour allotted. Candidly, you cannot practice writing too many essays. First, you will learn to think more rapidly, a real advantage on finals as well as on the FYLSE. Second, you will begin to recognize common and recurring fact patterns, another incalculable advantage. especially under time pressure. Certainly, if your time is running well over an hour, you should practice writing the same essay several times as your exams approach until you can complete it in time. 2. When you review your answer against the model answers, pay attention to your weakest areas. Do you need to work on memorizing the Rule Statements? Organizing? Applying the Facts? Stating a conclusion without being inconsistent or unsure? Does the structure of the essay wobble from Rule to Conclusion and back to the Issue? Are the facts analyzed before the Rule Statement if provided? Have you omitted the Rule Statement altogether? Above all, remember that the tasks are familiar ones to all students everywhere. Hard work pays off. Cramming does not work. There are no short cuts to memorization. Good luck. 1
Motor-In & Décor Motor-In, Inc. (Motor-In) entered into a written contract with Décor, Inc. (Décor) in which Decor agreed to redecorate one Motor-In s motels. The contract between Motor-In and Décor was predominantly for Décor s services and expertise in interior design, but about 15% of the price was attributable to materials that Decor agreed to furnish. Included in the materials to be furnished by Decor was carpeting which was specified in the contract as carpeting manufactured by Plushmaster. Using its standard order form, Decor mailed an order for Plushmaster carpeting to Wholesale Carpet Supply, Inc. (Wholesale). Wholesale received the order the following day. It no longer sold Plushmaster products, but it did stock carpets by Softstep, a different manufacturer of equal reputation. Wholesale mailed an acknowledgement of the order to Décor. The terms of the acknowledgement were identical to the order, except for substitution of the brand name Softstep for Plushmaster. Décor received the acknowledgement but did not notice the change. The Softstep carpet was duly delivered to Décor and installed in Motor-In s motel. Décor s staff was unaware of the deviation from specifications. After the carpet was installed, the president of Motor-In inspected the motel. Discarded wrapping material alerted her to the fact that it was Softstep brand, and not Plushmaster carpet that had been installed. She was greatly distressed because the owner of Plushmaster was a relative and she had particularly wanted his carpets to be used. Decor had no prior knowledge of this relationship. Motor-In demanded that Décor remove and replace the carpeting with Plushmaster. Décor has refused to do so. 1. What rights, if any, does Motor-In have against Décor? Discuss. 2. What rights, if any, does Décor have against Wholesale? Discuss. 2
MODEL ANSWER FOLLOWS PLEASE COMPLETE ESSAY BEFORE REVIEWING MODEL ANSWERS 3
Model Answer: General Materials [This Model Answer is a different tool for Concord students. This question was taken from a recent FYLSE, and the following answer was written by a Concord student and judged a "75" by the FYLSE Examiners. This should give you a real sense of what the Examiners look for and value in a student answer. To compare, the next section collects answers written by Concord students in the CEO / CF program judged "likely to pass." This allows you to evaluate the range of answers "good enough" to pass muster.] Motor-In v. Décor Contracts A Good Concord Student Answer Score: 75 Please remember that this is a very good student answer. It is not perfect, but very good. You should use it as a guideline on style, format, and substance but only as a model to help you learn how to improve your performance and skills. Note further: The favored format requires a style of "Indent Underline Define Discuss the Relevant Facts." In demonstrating this favored format, this essay is a good model. I. Motor-In v. Décor This is a contract for goods and services with the services predominating (85%-15%) so the UCC will not apply and it will be governed by common law. II. Motor-In v. Décor Contract? A contract is a binding agreement between parties, for which a breach gives rise to damages. There must be offer acceptance, consideration and no defenses to the contract. Here there is a written contract with definite and certainty as to terms, accepted and consideration (Décor will redecorate, and Mortor In will pay for it.) Mirror Image Under common law, an acceptance of contract must mirror the offer in all terms to be valid for mutual assent or it is considered a counter offer. Both contracts listed Plushmaster Carpets. Performance All terms and conditions must be satisfied or there is a breach: A material breach gives rise to an immediate cause of action and excuses counter performance while a minor breach will not excuse counter performance but give rise to a cause of action. Fraud Fraud is the intentional misrepresentation of a material fact, giving rise to detrimental reliance. There is NO evidence Décor intentionally misrepresented any fact and only installed Softmaster instead of the Plushmaster. Given that Plushmaster and Softmaster were materially 4
similar and relative to the size of the contract, a small portion of the contract, the breach if any has to be considered small. Remedies a) Damages Damages place the parties in the position if the contract were performed. Since the difference in the carpet is minimal, Motor-In suffered minimal damages. It has more personal satisfaction or rather dissatisfaction at having the wrong carpet installed. III. 1) Foreseeability Hadley v Baxendale To recover consequential damages, it must be in the purview of both parties at the time of contracting, the nature of the damages. Here if Motor-In wanted exclusively Plushmaster and not an equal substitute, it should have been manifest to Décor at the time of contracting. b) Specific Performance Another remedy is specific performance, an equitable remedy to cause a party to perform. This is usually only available after weighing the harm and benefits and determining it is unique goods as sometimes in construction contracts. Here, however, it is not indicated. The carpeting is of equal quality and Motor-In s owner may be related to Plushmaster but in all other respects, the contract was fully performed. As such, Motor-In would have the right to recover damages for the diminution in value based on the substitution of the carpeting, a minor breach done in good faith with no foreseeability of consequential damages. II Décor v Wholesalers This contract is for the sale of goods, the carpeting and as such will be governed by the UCC. IV. Contract? Discussed Supra Mirror Image Under the UCC, offer and acceptance don t have to mirror each other as long as they 1) aren t objected to or 2) materially alter the bargain. When Wholesale mailed the confirmation in good faith with the substitution of Softstep for Plushmaster. It gave Décor the right to object in a reasonable amount of time.* (1) When they (Décor) didn t object, it ripened into a contract for the Softstep carpet. As such, the contract between Décor and Wholesale was fully performed with no breaches. In conclusion, while Décor breached its contract with Motor-In, it has a minor breach done in good faith (they didn t know they were breaching). If the installation of a certain type of carpet was as important to Motor-In, it should have been made clearer at formation so that Décor would know that a good faith substitution would not have been permissible. As it was not foreseeable and after balancing the equities Motor-In might be able to collect nominal damages for the breach given the similar quality of carpets. Finally, Wholesaler and Décor had a binding contract fully performed with no breach. * (1) - This changing of the parties could be considered a counter offer that was accepted when it wasn t rejected in a reasonable amount of time. Score: 75 5
Sample Student Model Answers This portion of the Model Answer collects several examples of "likely to pass" essays written by Concord students themselves over the last several years. As you review these Model Answers, please remember that there are often many good ways to write a passing essay "likely to pass" may be a 70 (under Concord's grading system) or it could be much higher; the collected model answers do not distinguish generally a 70 will be "good enough" to pass on the FYLSE none of these samples is presented as a perfect answer they are, however, generally "good enough" to pass you cannot earn points for issues you do not spot, so fact-identification is critical even if you see missed issues or essays that were not as thorough as necessary, please remember that the Bar Examiners will give a holistic grade: they look to the overall presentation missing core issues is generally a problem; but students who miss smaller, associated issues can still score "likely to pass" students should be reassured that perfection is not required many essays note the "time" and sometimes it exceeds the required hour; on the FYLSE, students must write a passing answer in the allotted time there are no extensions your score "likely" or "unlikely" to pass is not a prediction! It is only an indication of one single essay compares at this point in time with the expectations of the Bar Examiners you control your own future! Your scores will alert you to how much time you need to set aside in order to improve. Please use these materials carefully: They are designed to help focus and define your skills of analysis, structure (IRAC), and writing. Certainly, there are other "good" ways to craft a passing answer, so you should not be discouraged. Even the Bar Examiners publish more than one "good student answer." The best approach is to use the various samples to set your feet on the right path. Please note: Some collections of student answers are lengthy, containing many student models, but some are "thin." The differences are a result of how many students actually wrote answers. Some essays come earlier in our sequence and tend to have greater participation and, therefore, more good answers to chose from. Others produced fewer answers from which to chose. In addition, it is possible that Concord students found some essay questions harder than others. Since all of the essays are drawn from former FYLSE questions, this is a realistic experience: some administrations of the FYLSE will be more difficult than others. Over time, we hope to add to our collection. A further note: The student answers were spellchecked and "edited" lightly by adding spaces to make some of the text easier to read. That's all. The materials presented were produced by students under test conditions and are presented "as is." A final note: Often a student will post his or her "time." Clearly, a student who exceeded the time limit might not receive the same assessment if restricted to only 60 minutes. Still, it was decided to include the good answers anyhow. Be alert to this issue because, on the FYLSE, time is strictly enforced. 6
Our Best Advice: All-in-all, Concord students participating in CEO / Concord First have seen huge improvements in their skill levels and in their ability to write and organize under time pressure. Above all, our data and experience demonstrate that students who participate in Concord Essay Outreach and Concord First tend to pass the FYLSE in greater numbers than non-participants! Good luck, and keep practicing! 7
1. Motor in and Décor A- Décor vs wholesale The rights and remedies of the parties depend on whether there exists a valid contract. A contract requires offer, acceptance, legal consideration, legal capacity of the parties and legal purpose. Here there are no facts going against consideration, capacity and purpose- thus the active issues are offer and acceptance. First issue is to determine the applicable law. The UCC controls all contracts involving the sale of goods- moveable property identified to the contract. Here the carpet is a moveable property, therefore the UCC controls 2- are both parties merchants? A merchant is one who trades in the goods of the contract or otherwise holds himself out a s knowledgeable. Here wholesale obviously trades in carpets and the installer would be inferred to be knowledgeable about carpets. Therefore both parties are merchants 3-would the statute of frauds require a writing? The SOF requires and adequate writing, signed by the party against whom it is being enforced, for sale of goods greater than 500 dollars with exception that a order confirmation delivered between merchants will suffice if not objected to in 10 days- among other exceptions. Here there is satisfaction of the SOF with the order confirmation form not objected to by the seller. Therefore the contract is enforceable relative to the SOF Was the order form an Offer? Offer requires manifest objective intent to be legally bound, certain terms, communication to an offeree. There was obvious communication via the form to the offeree The issues here are Intent to be bound- requires objective appearance. Here there is an offer because the order form contains the language offer as well as other specifications indicating intent to be legally bound, being on an order form. Certain terms- UCC requires only the parties and the quantity items and it will use gap fillers for the rest if possible. Here there are certain terms because both parties are identified as is the amount and type of carpet. Therefore there has been a valid offer. Is there acceptance? IN ucc2-206 acceptance may occur in any reasonable manner including shipping conforming items, or non conforming items- although it will be acceptance and breach simultaneously unless the offeree uses express accommodation terms in which case it is a counter offer. Here a nonconforming item is shipped without express accommodation terms therefore, it is acceptance and breach. As there are no consideration issues, offer and acceptance established above, there is a legal contract. There are differing terms in the offer and acceptance. What are the terms of the contract? UCC 2-207 says that between merchants any new term that is not conditioned against by the offer, does not materially alter the contract, or that s not seasonably objected to will become part of the contract. Here the offer is not specifically conditioned against changes Here the offeror did not seasonably object because only after Motor noticed the carpet, after installation, did décor realize the carpet type 8
Here there will not be a material alteration because this is an objective test and the carpets obviously looked alike- only the wrapping giving a clue and the reason for plushmaster was nepotism only Therefore the term of this contract is for the non-plushmaster carpet. Was there material breach of contract? In the UCC perfect tender rule any non conforming delivery can be considered material breach and accepted, rejected, or accepted in part but there must be time for cure. Even after acceptance the offeror may revoke acceptance if reasonably could not have discovered the defect. Here it is my contention that there is no breach because carpet conformed to the terms of the contract. Even if term was not included, the issue would be Reasonably could not have yet discovered the defect? Objective standard. Here décor reasonably should have discovered the defect but were careless. The time to discovery is after they exert dominion over the carpet by installing it. There fore this element is not met Therefore there was not material breach. Perhaps a finding of minor breach only if one believes the contract term of plushmaster was the proper term B- motor vs décor Defenses 1- Unilateral mistake? If shown contract would be reformed to the proper terms, however this requires a palpable mistake about an affirmative assumption of a material portion of the contract. a. There is not material alteration as I have argued above b. There was not a palpable because there is no facts to show wholesale knew or should known about the importance of this brand to final customer Remedy- Compensatory damages- I believe that décor has no action against wholesale because of the contact being adhered to. However, if the plushmaster term is the proper term than expectancy interest would apply. In UCC this is difference between the market value and contract value of the goods. Here a different brand of carpet is shipped and décor could get the diff, if any. A valid written contract has been formed 1-What law applies?- see rule above- here the deal is for services predominately (85%) thus common law applies. 2- was there an express condition that plushmaster be used? If an express condition precedent than anything less than complete satisfaction will discharge any duty of motor to pay. Here the writing in the contract specified the brand and this was not the brand installed,. Thus the condition is not satisfied and motor has no duty to pay. Unless 3Will the ct excuse the condition on the grounds of forfeiture? This will be done to prevent extreme hardship if the condition does not form an essential part of the deal and no great harm would come to the other party. Here there would be hardship and unjust deprivation of décor by fully performing but with a different brand of carpet. here the alteration can be argued not to be material or essential because the change in carpet was not noticed by motor but for the wrapping. Therefore, the court will likely excuse this condition on the grounds of preventing forfeiture. 9
2- Did décor materially breach the contract? The question of material breach, if answered affirmatively, allows motor to cancel the contract and sue for damages. Among other items the willfulness of the breach and the chance the aggrieved party will get the benefit of the bargain and can be compensated with damages determining the major or minor aspect of breach. Here there was no evidence of willful behavior. Here the benefit of bargain is still available because although motor wanted to help her relative the carpet apparently looked and will function the same Here damages can compensate for any difference in carpet value THEREFORE- only minor breach will be found. motor may seek damages Defenses- 1- see mistake above 3- forfeiture- above REMEDY Motor vs décor Compensatory damages- expectancy interest in a common law contract will try to place the party in as good a position as if the contract had be fully performed. For this service that would mean the cost of fixing any defect and the cost to complete the contract. Alternatively the court can give the difference between the market value of the final work minus the contract value if the first method would operate unfairly. Here I do not think the court will allow motor to charge décor the price of ripping up and replacing carpet because of the hardship it would cause. The diff between plushmaster value and the new carpet will likely be given to motor Specific performance? Requires that remedy at law be inadequate to compensate the aggrieved party and requires unique subject matter. The court will not generally force SP on a person providing a service because it could be akin to forced labor. Here the service of fixing and replacing the carpet will not be allowed Décor vs motor Expectancy interest- since there has been substantial performance with minor breach, décor gets the value of the contract performance less any damages (above) caused to motor. Here I contend substantial performance has occurred thus décor may be compensated the contract rate of pay minus damages determined Restitution- if there was finding of major, non willful breach by décor than it may seek damages in restitution. Purpose to return the party to status quo ante by giving the benefit conveyed less any received- to prevent UNJUST enrichment. Here the benefit conveyed may be determined by quantum meruit and could exceed the contract price. Damages caused above would be subtracted 10
2. Motor In & Décor Motor In v Décor The rights and remedies of parties under Contract Law are usually hinged on whether there was a valid contract. A contract is a promise or set of promises that the law considers an obligation, and for the breach of which the law provides a remedy. Contract elements include legal subject matter, Offer, Acceptance, Consideration, legal capacity and compliance with the Statute of Frauds or UCC 2-201. Here the presence of a written contract between Motor In and Décor is explicit in the hypothetical. Governing Law - Conditions - The Uniform Commercial Code (UCC) governs transactions in goods (movable property) and the Common Law governs all other transactions. Here the subject matter is predominantly interior design which is services therefore the governing law is the Common Law. Conditions are factors in the form of legal constructs or explicit events that affect the maturation, performance or continuation of a contract. The types of conditions are express, constructive, precedent, concurrent and subsequent. Here Motor In specified that Plushmaster Carpet was to be used in their motel redecorating by Décor, therefore the use of Plushmaster Carpet is an express condition precedent. Satisfaction or excuse of a condition precedent is necessary for the maturation of the other party s contract obligations. Satisfaction by substantial performance - Satisfaction may be obtained by specific performance of a condition precedent, or by substantial performance, even if it deviates from the condition, as long as the deviating party does not cause the deviation purposely or deprive the other party of the benefit of the bargain. Here Décor does not realize that the carpet substitution has been instituted by their supplier, and Motor In does not really notice the substitution because of a difference in quality or utility, the president just noticed the discarded wrappers. When there is no difference in quality or utility it is considered a minor alteration, not a material alteration. Since Décor had substantially performed, and the utility of the bargain was maintained, they have satisfied the condition and Motor In is obligated to perform their duty to tender payment. Remedies for Minor Breach - If Motor In can demonstrate that the use of Softstep carpet should have been less costly, or there was a difference in quality, they can sue for the difference. Décor v Wholesale Governing Law - Here the subject is carpeting, which is movable goods therefore the governing law is the UCC. Merchants - 11
The UCC defines a merchant as somebody who deals in goods of the kind, or holds themselves knowledgeable in the particular subject matter. Here we have a seller of carpeting (Wholesale) and a decorating company (Décor) who routinely purchases carpeting therefore we have a transaction between two merchants. Offer - An offer is a commitment to bargain, with certain terms that is communicated to an intended party. Under the UCC the essential terms include subject matter and quantity. Here Décor sent an order form to Wholesale Carpet Supply that specified carpeting (subject matter), the type of carpeting and probably specified the square footage (quantity) as would be customary in a carpet order, therefore there was an effective offer. Substitution of non-conforming goods as Acceptance - Remedies - When a merchant substitutes non-conforming goods and does not expressly state it is being done as an accommodation, UCC 2-206 considers this an acceptance with new terms. If it is an express accommodation, then it is considered a counter-offer. If there is no objection to the nonconforming goods or "new terms" within a reasonable time, the new terms become a part of the contract. Here Wholesale Carpet Supply sent a form with new terms. Décor did not object to the terms, and did not notice or object to the delivery of non-conforming goods, therefore the new term (Softstep) was adopted into the contract. Here Décor was silent with respect to the alteration in terms by Wholesale s substitution of Softstep carpet. A merchant would be expected to be more acutely aware of forms and alterations in specification contained thereon than the average customer, therefore their silence and acceptance of the non-conforming goods implied their agreement to the new terms. They will not have a remedy for their unilateral mistake in not noticing the substitution. 12
3. Motor-In v. Décor I. What law governs? Under contract law the UCC controls contracts involving the sale of goods, moveable property identified to the contract at formation. Otherwise the common law controls. Here the agreement was not for the sale of goods, because the facts state that this was predominantly for services. Therefore, the common law determines the rights here. II. Is there a valid contract between Motor-In and Dècor? Before recovery rights may be determined it must be determined if a valid contract exists between the parties. Such a contract includes the elements offer, acceptance, and no defenses to formation. A. Offer? An offer is a manifestation of present contractual intent communicated to the offeree such that an objective person would reasonably believe assent would form a bargain. Under common law an offer must specify the parties, subject matter, quantity, price, and time of performance. Here the facts state that Motor-In and Décor entered into a written contract so these elements must have been met. B. Was there a communication of an acceptance? Acceptance is an assent to the terms of an offer in a manner invited or permitted by the offer. Here the facts state that there was a written contract so these elements must have been met. C. Consideration? Consideration is a bargained for exchange which creates a legal detriment to both parties. Here Motor-In incurred the detriment to pay for the redecoration and Décor the obligation to provide the redecoration. Therefore, valid consideration exists between Motor-In and Décor. D. Is there a need for a writing? Under the Statute of Frauds certain types of contract must be written in order to be enforced. The facts of this case state that the parties entered into a written contract. E. Defenses to formation? There are not likely any other defenses to formation other than those discussed previously and therefore it appears a valid, enforceable contract exists between Motor-In and Décor. III. Did Décor breach it s contract with Motor-In? A breach occurs when one party, who has an absolute duty to perform fails to perform when that performance is due? Here Motor-In had an express condition in the contract for the installation of Plushmaster carpeting. Strict compliance with an express condition is ordinarily required. Décor will argue that the quality is the same, and the only way the president of Motor-In knew the difference was that she saw the discarded wrapping paper. Here, the breach would be a material breach because Motor-In has been deprived of the benefit which he reasonably expected. This was a willful breach because Décor installed the incorrect carpet without knowing what carpet they were installing. Therefore, Décor is in breach of the contract. IV. Can Décor raise the defense of mistake? Under contract law, if the parties enter into a contract, each having a misunderstanding, or where one has a misunderstanding and the other knows there is a mistake, the contract is unenforceable against a mistaken party. Here Décor will argue that they had no knowledge of the relationship of Motor-In to Plushmaster, and that because of this misunderstanding they installed a carpet of like quality when the Plushmaster was not available. Décor would argue that they would not have allowed the 13
substitution had there not been this misunderstanding. Motel-In will argue that Décor was not even aware of the substitution so not knowing the relationship did not play a role in the substitution. V. What is the remedy of the non-breaching buyer? A non-breaching buyer can use specific performance to fore the seller to transfer title of unique property, such as land, but not to force performance of personal services. Where the item in dispute is not unique, the nonbreaching buyer and demand the benefit of the bargain, the difference between the item as represented (or current market value) and the value (if any) delivered. Here Motor-In would be entitled to the difference between the current market value of the Plushmaster carpet and the value of the substitute carpet. Décor v. Wholesale V. What law governs? Under contract law the UCC controls contracts involving the sale of goods, moveable property identified to the contract at formation. Otherwise the common law controls. VI. VII. Here the agreement was for the sale of goods, because carpet is a good, a moveable property. Therefore, the UCC determines the rights of the parties here. Are the parties merchants? Under the UCC a merchant is a person who trades in or otherwise holds himself out as knowledgeable about the goods of the contract. Here the buyer is a dealer in these goods because Décor works in decorating and carpet is used in decorating. Further the seller is a dealer in these goods because Wholesale sells carpet. Therefore both Décor and Wholesale are merchants. Is there a valid contract between Décor and Wholesale? Defined as above; A. Offer? Defined above. Here the facts state that Décor mailed a standard order form to Wholesale. Based on the facts given there was a valid offer. VIII. Was there an effective acceptance? Under the UCC an acceptance of an offer not otherwise conditioned may be made in any reasonable manner including a promise to ship or shipment of either conforming or non-conforming goods. But a shipment of non-conforming goods as an express accommodation is not an acceptance. Further the UCC allows an acceptance containing varying terms to be effective. Varying terms will not be include in the contract where: 1. The offer expressly limited acceptance and the offeror does not agree to the new terms 2. The parties are not both merchants, or if they are both merchants 3. The varying terms materially alter the contract or if not a material alteration 4. The party will be bound expressly and timely objects in writing to the change in contract terms Here the communication from Wholesale was an acceptance because although Softstep carpet was substituted for Plushmaster Décor received the acceptance and did not object to the substitution. Décor went on to accept the carpet (did not notice the difference), and installed the carpet. IX. Is there a need for a writing? Defined as above. Based on the facts given there is nothing to indicated that the writing required has not been met. X. Did Wholesale breach the contract with Décor? A breach occurs when one party, who has an absolute duty to perform, fails to perform when that performance is due. 14
Here Décor made and offer, Wholesale accepted the offer, and Décor did not object to the substitution of the carpet. Therefore Wholesale fulfilled its obligation under the contract when it delivered the Softstep carpet. Therefore, Wholesale did not breach the contract. VII Can Décor raise unilateral mistake? The mistaken party must show: 1. The mistake must concern a basic assumption on which the carpet was made. 2. The mistake must have a material effect on the agreed exchange of performance. 3. The adversely-affected party must not be the one on whom the contract has implicitly imposed the risk of the mistake. 4. The mistake is such that enforcement of the contract would be unconscionability. 5. The other party had reason to know of the mistake, or the other party s fault caused the mistake. Here Décor will argue that the mistake concerned a basic assumption, that Plushmaster would be delivered. The change in carpet materially altered the contract because Motor- In has specified Plushmaster in their contract with Décor. Décor would not have been the party to assume the risk because Wholesale would be the party to have access to the carpet it would ship. The contract would be unconscionable because Décor would have had no intent to enter into a contract for Softstep carpet. Lastly, Wholesale shipped a carpet that Décor had not requested in the offer. This argument will fail because Décor did not object to the substitution, accepted and installed the carpet. Additionally the staff of Décor did not even notice the difference. 15