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Here is an example of a recent, timely, practice MBE question.
Early Bar Prep: Practice MBE Question
A bride ordered $200 worth of makeup from a beauty supply store in preparation for her upcoming wedding. She ordered it for herself and her bridesmaids. She otherwise had no contact with the beauty supply store.
However, due to an unforeseen widespread viral pandemic, whereby the state limited the number of people that could gather in one place, the bride’s wedding had to be postponed. The bride wished to rescind the contract with the beauty supply store under a theory of frustration of purpose.
Will the bride be successful in a rescission action?
(A) No, because the purpose was not known to both parties at the time of contracting.
(B) No, because the pandemic was unforeseeable.
(C) Yes, because the primary purpose of the contract was frustrated by the pandemic.
(D) Yes, because the contract was impossible to perform due to the pandemic.
Answer to Practice MBE Question
(A) is the correct answer. The elements of frustration of purpose are:
- (1) the primary purpose of the contract
- (2) known by both parties at the time of contracting
- (3) was substantially frustrated by an unforeseeable event
- (4) that occurred after the contract was entered into.
Here, the primary purpose of the contract was not known by both parties. The facts state that the bride merely ordered the makeup online and otherwise had no contact with the beauty supply store. Thus, the beauty supply store would not know she was ordering it for her wedding. So, the very first element of frustration of purpose is not met. Further, one could argue that the purpose was not frustrated. The bride’s wedding was not canceled, it was just postponed. She could still use the makeup at a later date.
(B) is incorrect. The fact that the pandemic was unforeseeable would actually help the bride’s case. One of the elements of frustration of purpose is that an unforeseeable event must occur after the time the contract was entered into.
(C) is incorrect. It is true that the primary purpose of the contract was frustrated but the bride would have to show that the primary purpose of the contract was known to both parties. Here, the primary purpose was not known to both parties. Rather, only the woman knew of the purpose of the contract.
(D) is incorrect. The contract was not impossible to perform. The beauty supply store could still ship the makeup and the woman could still pay for it. Further, impossibility is not an element of frustration of purpose. (It is an element of the defense of “impossibility”, which is not being asked about in this question.) Thus, this answer choice is incorrect for two reasons. Tip: If you picked this answer choice, make sure to pay close attention to the call of the question. Also, when you practice, try to write down all the elements of the applicable claim (in this case, frustration of purpose) prior to answering the question. That way, you will not get tricked by answers that sound good!
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