Guidance on writing answers to problem questions in contract law
- General organisation
- Introduction and conclusion
- Use of facts
- Statements about the law
- How to be successful
One important point at the start – do not treat a problem question as an invitation to write an abstract essay about the legal issues involved in the problem. The facts are all important and application to the facts is essential. Students will frequently write out all the law they consider to be raised by the facts and then, without separating the issues clearly, leave all their application to the end. The dangers of excessive repetition and irrelevant points of law are high and this is very poor legal style.
(a) Start with the facts. Read the problem carefully several times. Do not skim read. You must have a precise understanding of the facts, since facts determine the relevance of any legal points you make later. Fact identification and organisation is an important legal skill. If it helps, draw a quick diagram to explain the facts and the parties.
(b) Accept as true those facts that are given. Do not worry about how unlikely they might be.
(c) Identify any important missing facts.
(d) Do not assume facts which are not given and do not ponder on what the position would have been if the facts had been different – unless specifically requested to do so by the question itself, e.g. “would your answer have been different if...?”.
2. Let the facts guide you in identification of the relevant legal issues
I.e. what is it that the person(s) in question wishes to know? For example, they may wish to know whether there is a binding contract and the consequences of this.
Consider the order in which you wish to deal with the issues raised by the facts and bear in mind the need to present points in a coherent and logical way. For example, it is usual to find an offer first before seeking to identify whether a piece of correspondence constitutes an acceptance. Similarly, identify that the correspondence is in fact an acceptance before looking at whether it has been communicated.
The legal issue involved will determine the order in which you deal with principles and their application. The order and organisation of your lecture materials and course texts should guide you on this.
If there is more than one issue and/or if advising more than one party, you will need to deal with each separately.
3. Deal with one issue at a time
Avoid “jumping around” between issues and mixing discussion on different issues. Do not move on to a further issue until you have said all that is required to be said about the first identified issue.
4. Discuss the law relevant to the issue
State the law in the context of the issue raised by the facts. [This will ensure strict relevancy on the law and will make clear that you have identified the correct law applicable to the factual issue.]
Cite supporting authorities. Always give reasons for your views and authority for legal principles and rules.
If the legal position is unclear then explain the nature of the uncertainty and suggestions on how it might be resolved – including your own view of the most likely approach to be taken by a court. In such a case it is appropriate to argue by analogy and policy (a relevant example is the position on telephone answering machine messages). However, you must not produce an answer which is based purely on policy and which ignores the law (the sort of work you might produce if you had not studied a law course at all). This is known as “layman’s law” and must be avoided at all costs since it is likely to lead to a fail answer.
5. Apply the law to the facts
Assess what the likely decision would be on this issue.
Note that there is often no right answer in legal problem questions because examiners often use issues where there are uncertainties in applying the law. In addition, insufficient factual information may have been given to make any firm conclusion.
• Uncertainties in the law
It may be very difficult to apply the legal principle in question to the facts before you, e.g. offer or invitation to treat? Or the application of the reasonableness requirement in relation to exemption clauses under UCTA 1977.
However, you must identify:
• Any detailed factors or formulae that a court may take into account, e.g. Schedule 2 guidelines and case law factors under s.11 of UCTA 1977.
• Any details of the facts that will assist, e.g. the wording of a piece of correspondence may be indicative that there was no definite promise to be bound – “may be prepared to sell to you”.
• Insufficient facts
This is a feature in almost every problem question. If a client came to see you in person, you would ask a series of more detailed questions.
Remember that if there are major questions of fact omitted from the problem you should point these out and explain their relevance.
6. Avoid irrelevancy at all costs
Irrelevancy can detract from what you have said and it leaves you less time to say something which is relevant, important, and effective – leading to an unbalanced answer.
Remember that if something does not advance your answer to the factual scenario actually set, then do not say it.
TIP – if you are asked to advise a named person in a problem question then try to imagine that that person is sitting in front of you and is paying you for your time and advice. This should help you to focus on what it is that that person actually wants to know and then only explain, apply, and assess the law which is relevant to answering this question.
Avoid introductions that are so general that they could have been written in answer to any problem considering principles of contract law. Such introductions do not answer the question set; they are unrelated to the specific issue raised. In particular, you should avoid beginning your answer with a general summary of the law of contract.
For example: “In order to have a binding contract there must be an offer and an acceptance. To be enforceable the agreement must be supported by consideration and there must be an intention to create legal relations...”
Begin directly by considering the first issue raised and avoid general introductions of the type you may previously have employed in subjects such as English and History.
Avoid simple and obvious statements that add nothing, such as “This problem involves difficult issues of fact and law” or the introduction frequently encountered in the contract law examination paper “This is a problem concerning contract law”.
You can conclude simply by summarising the outcomes for the parties you were asked to advise – but only do this where you have not already given this type of conclusion at the end of the application for each issue – or where you want to conclude with a statement of the wider picture (i.e. all the issues taken together).
There is no need to repeat the facts of the problem in the answer unless you are making use of them to identify expressly the basis for your identification of the legal issue. In other words, they can be usefully incorporated as part of your discussion of the legal issue and application. What you need to avoid is an answer that stops and starts by returning to the facts in a manner that affects the flow of your answer.
• Case facts
There is often no need to go into the detailed facts of the cases you cite. In particular, give only the name if the case is being cited as authority for a broad general proposition of law and the facts are not particularly significant or helpful as an illustration.
You will, however, need to go into detailed facts where you are seeking to distinguish the facts of the case in question from the facts of the problem or where there are significant similarities of wording in the documents used in your problem to the words used in a specific case, e.g. Holwell Securities v Hughes – “notice in writing to Dr Hughes” was sufficient to require actual communication of an acceptance and thereby oust the operation of the postal rule.
[Of course, your knowledge of case law is used when you identify the legal issues raised by the facts so do not fall into the trap of thinking that case facts are not important.]
Avoid discussing at any length matters about which there can be no dispute, i.e. established (and unquestioned) principles of law.
However, you must fully explain the law. What you say must be complete and make sense on its own; you should not rely on the reader’s own legal knowledge to complete the meaning. You should write as if the work were intended for a lawyer who knows only a little about the area of law in question.
For example – it is unnecessary to state: “A House of Lords decision is of greater value as a precedent than a Court of Appeal decision”.
Lengthy criticisms of the law are inappropriate in problem questions unless the analysis of policy helps to determine the limits of the current rules. However, they are often specifically called for in essay style questions and you should never ignore reform proposals.
FACTS - LEGAL ISSUE - LAW - APPLY
• Appreciate the legal issues raised
Understand the legal principles so that you can explain them convincingly.
Be balanced in terms of your application and treatment of different issues, e.g. avoid spending too much time discussing one issue which is fairly non-contentious, especially where this is done to the exclusion of other more significant issues.
Avoid vague statements and unsupported generalisations since law is a precise and detailed subject.