1. This examination consists of four questions with related facts.
2. In answering these questions, you may consult the textbook, other published treatises, the PowerPoint slides and all posted materials provided to you by Prof Lupo, and your notes. You may not consult any Internet-based resources, nor may you consult any resources not created by you other than those specified here. Use of any generative AI tools is strictly forbidden.
3. Cutting and pasting is strongly discouraged.
4. You may not collaborate on your exam answers.
5. In answering the questions, assume you are in a jurisdiction where the legislature has adopted Article 2 of the UCC governing the sale of goods. The supreme court of this jurisdiction has recognized the Restatement Second of Contracts as persuasive but not binding authority.
6. A well-written exam answer will identify each issue presented, state the rules applicable to each issue, apply the relevant facts to the rule, and reach a conclusion. That said, avoid lengthy and abstract summaries of general legal doctrine.
7. Discuss all plausible lines of analysis. Do not ignore lines of analysis because you think a court will resolve an ambiguous question or “threshold” question (i.e., a question that would prelude other analyses) one way or another.
8. Please note the word limit indicated for each question. Any text submitted beyond the word limit for a question will not be read.
9. All answers must be contained in one Microsoft Word document; each answer must indicate the number of the question to which it responds.
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QUESTION ONE
1000 Word Limit
20 Points
Pepper LaRue (Pepper) is a rare spice expert. She studied culinary horticulture at college and ultimately earned a Ph.D in the subject of tropical herbs and spices. These food items are among the most expensive and prized ingredients by chefs around the world. After achieving her Ph.D she established a business whereby she travels the world, particularly tropical locales, in search of new and rare versions of spices. Often, she is retained by high-end chefs to assess a desired flavor profile and then seek out the appropriate spices to achieve the desired effect in the chef’s dishes.
Recently, Pepper was traveling in Indonesia and discovered a new type of orchid. She took some of its pods and realized it was an entirely new source for vanilla that the world had never before tasted. Vanilla, being one of the most expensive spices in the world, and this vanilla having a new flavor profile, Pepper know she had a rare and valuable find!
Pepper placed an advertisement in Exotic Chef Magazine:
Newly discovered! Exotic vanilla. Deep rich flavor. Like bourbon whiskey, mango, and coffee. Rich spice and savory at same time. I am a specialist in finding the world’s most exotic flavors. Asking $5000 per ounce. One ounce minimum. With the purchase of an ounce or more of these vanilla pods, I will tailor one recipe for you. Minimum $1000 deposit prior to shipment required. Refundable up to five days after receipt of pods with return of remaining shipment. Chef/restauranteurs only!
Cookie Malone (Cookie) is a chef in Chicago. He graduated from culinary school five years ago and is opening his first restaurant. He has never purchased exotic spices before but is eager to see what dishes he can build around this new vanilla, a flavor profile he loves.
Cookie emailed Pepper:
Saw your add in Exotic Chef Magazine. I would like to buy one ounce of your newly discovered vanilla pods. Am also excited to collaborate with you on building a recipe around the flavor profile of this new vanilla! Will pay $2500 for one ounce, provided it meets my expectations after tasting it.
Pepper responded:
Terrific! Please send $1000 deposit. Will ship via temperature-controlled courier upon receipt of deposit. Balance will be due within five days after your receipt of the vanilla pods.
Cookie paid a $500 deposit to Pepper via a cash payment app. The app confirmed receipt of the payment to Pepper’s account.
In anticipation of receiving the vanilla pods, Cookie purchased a special temperature controlled refrigeration unit that is calibrated with the proper humidity for storing precious spices. Cookie told his pastry chef to prepare to work with Pepper on developing a dessert around the new vanilla flavor.
Pepper never shipped the vanilla pods to Cookie and has not returned the $500 deposit. Cookie wants to sue Pepper and has asked our firm to evaluate his case. (Note, Cookie is a dear friend of the name partner of our firm otherwise we would not be handling such a small claim!).
Under these facts only, please evaluate whether there is an agreement between Pepper and Cookie that “can be” enforced as a contract, evaluating any of the topics discussed in the first section of the course that are relevant here. If there are additional facts you would like to know, please advise.