Consideration- Contract law
How to structure an answer to a problem question:
In writing an answer to a problem question, bear in mind, your answer should be a self-
contained account of the relevant law which could be understood by an intelligent lay person.
You must identify the legal points raised by the facts and use relevant law to address these
points.
You may find the following mnemonic, IDEA, helpful when tackling problems:
Identify (the legal point in issue)
Define (any necessary rule or principle)
Explain (any rule or principle, giving the origin of such eg the case or legislation,
and any difficulties inherent in the rule or principle)
Apply (the law to the set of facts before you)
You should use this sort of approach in relation to each point raised by a problem; so if there
are five points in a question you should use IDEA for each of the five points. You can find
further guidance on answering problem questions on the ELP site in Business 1: Contract
Assessment.
Problem Question:
Alexander Construction Limited agrees with Brown, an accountant, to undertake the
excavation work necessary for the building of Brown's swimming pool. The pool itself is to be
installed by Collins Ltd who has a separate contract with Brown. The figure fixed for the
excavation work is £2,000 which both Alexander Construction Limited and Brown realise is
much less than the true commercial rate for the job, but is fixed to reflect all that Brown has
previously done to help Alexander Construction Limited with its accounts.
Once Alexander Construction Limited commences the digging, it quickly strikes a thick layer
of rock and realises that it will have to hire digging equipment, including an excavator. It
approaches Brown, who promises an extra £500 if it will complete the work to schedule.
Alexander Construction Limited has now completed the work but Brown will only pay £2,000.
Part (a) Advise Alexander Construction Limited.
,Answering a Law Problem Question
1. General advice:
When tackling problem style questions of this type, it is important that you remember that
there may not be a positive or final answer to each or any issue. This can be frustrating at
first. What you are required to do is to analyse the arguments relating to each legal issue
raised and apply those arguments to the facts of the question before you, in so far as you can.
You are not required to invent facts to help you come to a more definitive answer, or to
rewrite the question. Apply the arguments to the facts before you.
It is a common fault among students to detail the law and then fail to apply it to the facts of
the question. To draft a successful answer it is crucial that you do both. Another common
fault is to detail relevant cases, without explaining why the case helps you answer the
question. In a given case, it is not the decision itself that helps you resolve a legal issue, but
the reason why the court reached the decision.
Challenges
You will all have written essays and exam answers before. What is new and challenging for
you is how to write an effective, legally reasoned answer. To be able to answer law questions
you must have a clear idea of what you are seeking to achieve. This goal may be reformulated
as a question: What is the examiner looking for in your answer?
The overall aim of your answer is to demonstrate to the examiner that you UNDERSTAND an
area of law.
How is this aim to be realised?
An examiner may be looking for the following features in your answer (these are the
assessment criteria):
• identification of legal issues raised by the question;
• definition of relevant legal concepts
• explanation of relevant law
• application of relevant law to the requirements of the question
• use of authority – case law
, • clarity of expression
• structure/ logical presentation
There are common challenges that many students face with this, including:
• Using authority appropriately
• Remaining relevant – avoiding unnecessary content
• Fully explaining legal issues
• Analysing the law in sufficient detail
• Showing an understanding of the law
It can be difficult to balance these at first: particularly how to fully explain and communicate
your knowledge while avoiding irrelevant or unnecessary content. This becomes easier with
practice as your skills develop and the following advice should also help:
2. Meeting these challenges AND satisfying Assessment Criteria – IDEA
You should be familiar with this mnemonic from seminars. It really does help ensure that you
cover all bases and meet these challenges. It is therefore a very useful approach to problem
style questions:
I Identify the relevant legal issue
D Define any necessary rule or principle, ie case law
E Explain the rule/ principle and any difficulty inherent in the rule or
principle (ie explain the reasons for the decision in the relevant case(s))
A Apply the law detailed, to the set of facts in the question.
a) Identify the relevant legal issues
Relevant criteria this satisfies: - identification of legal issues raised by the question
Challenge it addresses: remaining relevant and avoiding unnecessary content
,The first step in analysing a question, particularly if it is in the form of a problem, is to identify
the legal issues raised by the facts of the question. In a problem question, you will generally
be asked to advise a named party. Start by considering why the party needs legal advice –
what is the problem? What legal issues need to be addressed to resolve that problem?
b) Define applicable legal rules; and
c) Explain them
Relevant assessment criteria this satisfies: - definition of relevant legal concepts;
explanation of the relevant law
• Challenge it addresses: Using authority appropriately; remaining relevant – avoiding
unnecessary content; fully explaining legal issues; analysing the law in sufficient detail;
showing an understanding of the law
Once you have identified the issues, you need to set out the legal principles that will help you
resolve, or determine, those issues. In Contract Law, these rules will generally come from case
law, but may also come from statute. In order to do this you must have a clear idea of the
relevant law, but you must not fall into the temptation of writing all you know about that law.
Many students cannot decide what is relevant or irrelevant and therefore “play safe” by
writing at length about a particular area of law in the hope that something is right. Such an
approach does not demonstrate that you understand and is really a request to the examiner
to do the work for you. The issue of relevance is determined by the issues raised by the
question. Only consider those areas of law that relate to the issues you have identified. So,
for example, if a question only raises the issue of termination of offer by revocation, do not
discuss the law relating to other methods of termination of offer such as rejection, lapse of
time and so on.
Set out clearly what the relevant legal principle is. State the case from which it emanates. You
do not need to cite the year or full name eg Williams v Roffey will do, but you do need to have
an idea of the age of a case so that you can understand it in the context in which the relevant
principle developed. Explain any complications inherent in the rule – ie does the rule apply
here? Are there any exceptions to the rule that are operative?
Depending upon the question asked there may be opportunities to discuss problem areas of
law. If the law is unclear or there are conflicting authorities or the case law is not consistent
in approach then you will be expected to discuss the problem as a matter of law and to
indicate the problems in advising a client as to the law’s application. A good answer will
consider these difficulties, showing knowledge of judicial precedent; was the statement of
, law a ratio decidendi or merely an obiter dictum? Was the case decided by the House of
Lords/ Supreme Court and therefore binding on the courts lower in the hierarchy?
It is sometimes necessary to explain why a rule of law does not apply on the facts of a problem.
For example, if a question states that parties agree that one should only pay part of a existing
debt in full and final settlement, then the law provides that such is no discharge of the full
debt. The balance remains payable. The legal reason for this is that there is an absence of
consideration for the promise to forgo the remainder. However, the law seems to have
moved to a more flexible approach as to what constitutes consideration, as seen in Williams
v Roffey Brothers. Does this approach apply to part-payment of a debt? The answer given in
Re Selectmove is no. Thus, a negative point is explained as to why a particular rule does not
apply.
d) Apply the law to the facts of the question:
Relevant assessment criteria this satisfies: - application of relevant law to the requirements
of the question
Challenges it addresses: Showing an understanding of the law; remaining relevant – avoiding
unnecessary content. If you have difficulty applying the law to the facts before you, it is either
not relevant or you have not understood it in sufficient detail.
If you have not identified and explained the law with sufficient precision and clarity, then
applying the law to the facts of the question will be more difficult. If you have set out and
explained the relevant law clearly and precisely, then application of that law to the facts of
the question is more straightforward.
You have started the process of analysis, but what should you be committing to paper? A
explained above, in general, description and the “everything but the kitchen sink” approach
are to be avoided. Following the IDEA approach so far, you will have already indicated the
legal issue raised by the facts and have explained the law directly relevant to the issue, stating
the source of the law (ie case or legislation). Having done this you must seek to demonstrate
how the law applies to the facts of the question. This is key in illustrating and demonstrating
your understanding. Some assistance may be gained from decided cases. For example, cases
on certainty of terms seem to indicate that if an agreement is purported to be uncertain
sometimes the courts will be influenced in their conclusion that the agreement is certain by
the fact that some performance under the “agreement” has taken place. The presence or
absence of such performance in the facts of a question is worthy of comment, in the light of
