OA Bar Prep With Heather! T3BE37

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:46 Thomas: Hello and Welcome to Opening Arguments. Is our weekly Thomas Takes The Bar Exam episode. That is where, with the help of Heather, a highly trained bar tutor professional, professional, I take on a bar question using nothing but my wits, good looks, and solid B plus comedy chops. Being T3BE37, that means we're getting the answer to question 36, as well as that new question 37. Going to this question, I am 20 of 31. That is 64.52%. Pretty solid.

To get up to, I think, 65 is the ultimate goal. Well, I mean, 100 is the Ultimate Goal, but it's unrealistic. If you're one of the people playing along at reddit.com/r/openargs, you can keep track of your score too. Super fun. Oh, before we get to it, announcements, the Alec Baldwin fiasco is on Gavel Gavel. That is at patreon.com/gavelpod. was a very interesting thing. I'm sure you saw the news.

Well, hey, no spoilers if you didn't, but it's the Alec Baldwin trial over the fatal accidental shooting on the set of Rust, the movie Rust. Sad, but legally, this was very interesting, what happened. And Matt takes us through it. It's a nice long one. It was about episodes worth. That's over on patreon.com/gavelpod. Right, with that said, let's get over to the answer to question 36. If I can keep this streak alive. Get on with Heather after this break. All

0:02:12 Thomas: Right, Heather, it is time for the answer to question 36. Is Larry Landlord a loser, or is Terry Tenant? Oh, Tommy Tenant. Oh, I had, I had a week to think of something and I didn't, is, is Tommy Tenant tapped out, that's something, because water tap, tapping, tapping out, now anyway, I need, I need Matt for this, I can't, let's find out the answer to question 36.

0:02:44 Heather: This Was about our Tommy Tenant and Larry Landlord in the hot water heater that was pumping out cold water, and we're trying to figure out whether after our friend Tommy notified his landlord of the cold water, whether then Tommy stopped paying rent, about whether that's something that Tommy can do and whether Larry's going to be successful in his work to evict Tommy. So, um, start here, what, uh, topic do we think that this question was testing you on this week?

0:03:08 Thomas: No, uh, let's see what, I, I will confess that I do have to look at these, I never, oh well, well, the question says that it's a 1L in property, so I guess this is real, well, or is this contract, it's real property, okay.

0:03:21 Heather: Right. It's real property. And not only does it say that the first year was taking a property class, but a lot of times when you have a question that's talking about a landlord and a tenant, it's a really big tip off. That's a property question. Yeah, and property, one, the main topics that get tested on the bar exam, both in essays and on the multiple choice questions, actually landlord tenant, is a huge part of property law that comes up both in in law school and on the bar exam. So that's a really good tip off to say, hey, I think we're in that part. You don't mind, I'm just going to make a quick note here.

It's something that comes up that students talk to me about all the time is how am I going to memorize all this information and property? And I always tell them a really good tip for that is organization. And that's part of too, why I always talk about let's like walk through, where are we at?

And the question, how can we narrow it down, is because again, memorization, the really important part of memorization is being able to identify, um, you're at and how things are connected, that organization piece, I

0:03:30 Thomas: Right. Right, you're A real flowchart-er

0:04:15 Heather: Really am, um

0:04:17 Thomas: Which just seems cool, I've actually never tried to like organize my thinking that way for studying for anything, and I'm wondering if I missed out, because that might be the way to go. It's pretty, it's pretty interesting.

0:04:27 Heather: And it's, it's helps people to visualize that, when people talk about that mind palace, part of what they're trying to talk about, it's really a fancy way of just saying keeping things organized.

0:04:36 Thomas: Yeah. I've got a mind garage, beat down garage for the broken door. I don't have a pallet. I Don't have you people working with a palace. What the hell? Where did you get that? Check your palace privilege, everybody.

0:04:36 Heather: Um Mine's A junk drawer, I Know

0:04:52 Thomas: Yeah, Mine's, mine's a vast junkyard. It's, it's like pretty, pretty cool. I got a lot of weird stuff. It's not a palace though, I don't know, that is fancy.

0:05:01 Heather: Right, I always think of like those, that you talked about David Tennant, but I was thinking about the Sherlock And the Benedict Cumberbatch, that's What I always Thing of

0:05:05 Thomas: Yeah Yeah, yeah, that's did He did They Invent that, or is it just referencing something, they must not have invented it

0:05:12 Heather: That's a good question, I don't remember

0:05:13 Thomas: Remember hearing it before then, but who knows, yeah

0:05:15 Heather: That's way back in the junk drawer I'll do with this one, is with the landlord tenant, is I'm actually going to split it up the way that I work through this, because it's such a big even portion of property, is I split this up into to the two people, the landlord and the tenant. And I like to think of that in terms of their duties, what each is responsible for, right?

0:05:17 Thomas: Exactly right

0:05:33 Heather: A couple of things that tip me off to the fact that this question is talking about the landlord's duties, and I'll tell you what they are. One is talking About there's a couple of things. Got the water heater, that was a big tip off. Then we also got this housing code. And then if I wasn't sure, as I got through the rest of the question, some of the the answer choices were a good tip off too. And so sometimes if you're walking through a question and you're like, I have no idea what this is testing me on, sometimes having a peek at the answer choices is a good one too.

0:05:32 Thomas: Heather Your sometimes is my always, if

0:06:03 Heather: Well, that's good to know.

0:06:04 Thomas: There weren't four answer choices, I'd be zero percent, like if I had to just say the words of what the answer was, was roughly even if you gave me Some wiggle room, zero percent, there's no way, oh

0:06:12 Heather: These Questions are really hard. Kind of hit on it almost immediately when you're going through. So it was good to hear that. So the answer choice is talk about implied warranty of habitability, constructive eviction, duty to repair, and then implied warranty of habitability, and all of those things are topics that come up under the duties of the landlord, so that if I wasn't sure before, that definitely put me squarely in the landlord's duty, so I'll talk about that really briefly. So if you're wondering what duties do a landlord have, well, uh, in law school and on the bar exam, they have a couple, when it comes to residential properties, because today we're talking about someone renting a house, uh And Yeah Yeah Because, uh, versus commercial leases, no

0:06:51 Thomas: God That Matters Crap Okay, I thought you were gonna say like there's an apartment or something, I was like, is it that level of detail, okay, no Commercially, got you, that makes more sense, the

0:07:00 Heather: Yeah Versus him being like, you know what, I'm gonna go rent out, um This sell To my widgets Which is, they love widgets on the bar, um, that's just for him to stay, and so there's generally four that come up, one of which is to provide actual possession of the premises, the Know what it used to, and not be.

0:07:05 Thomas: Office building, yeah, whatever Something Seems Key seems Key, get it, haha, no

0:07:22 Heather: Love the dad jokes.

0:07:24 Thomas: Was accidental, I really didn't even mean to do that, but I love the idea that you like that, you've signed the lease, the house is theirs, can I go in it? No, you can't. But it looks great. You can look at it and that's it.

0:07:26 Heather: Just happened.

0:07:35 Heather: You can wave at it. In some it even used to be they didn't have to provide actual possession. It used to just be that you show up and there might be somebody else there.

0:07:46 Thomas: Oh, wow. Really? That's awesome. I love the, that is such a like the people with the wealth making the rules, you know, like, hey, fight amongst yourselves, plebes. All I know is somebody's paying me. That's all I know. See you later.

0:08:05 Heather: And then Exactly. I'm so glad that that's not generally the modern way, because that sounds terrible. Then modernly, we've also got the duty to repair and maintain the premises. So they've also got to do that too. Now, modernly we like modern rules. Then we have the implied warranty of habitability, which is really about health and safety. We'll talk about that more in a second. Then we've got this implied covenant of quiet enjoyment, which really is a little bit about no one else really being able to use the property. And again, we'll talk about that in a little bit. Those are general landlord duties when it comes to residential properties. So we'll go from there. So let's start with D. because Tommy knowingly waived the implied warranty of habitability. So you talked a little about waiving this warranty. Remind me again, if you don't mind, why would this be a bad idea to waive it?

0:08:30 Thomas: Right.

0:08:53 Thomas: Oh, man. I hope this is not a thing I just made up because like that was the first thing that occurred to me. It just seemed like there's some things where you shouldn't be able to waive it. Even if you think like, I'm going to agree to enter a Mortal Kombat to the death. All the entries to the tournament have agreed. We've all signed the waiver. The law is like, sorry, we're not going to let you fight to the dead. That's not how things work around here. Similarly, I just think that habitability is such a baseline important thing for, you know, a house that I think that ought to be one of those things you can't waive. I just Think it should. And I hope I'm right. But I don't know.

0:09:01 Heather: Yeah. Happy to find out that you're correct. Yay. All is not lost. And I think for the reasons that you identified, we don't want people to waive their ability to live in a habitable space, Right? And we don't want this, what can be oftentimes an inequitable relationship, especially when it comes to something as basic and important as housing, and right? I'll talk a little bit about what implied warranty of habitability is. It kind of is what it sounds like. So generally for most residential leases, an implied warranty of habitable is imposed on the landlord and their failure to comply with housing codes constitutes a breach, right? Especially for violations that substantially threaten a tenant's health and safety.

So if you're wondering why is it that it said something about housing codes and why might that have been a tip off for me or the hot water heater? It's because these are are the factual scenarios that kind of give rise on these questions to implied warranty of habitability issues.

So know that when there's usually housing codes in a fact pattern like this, what it's trying to do is trying to get you to think about implied warranty or habitability because the housing codes and these questions will spell out what the landlord needs to do or what breach might look like, right?

And then so when there is breach, the tenant has to notify the landlord and then give them an opportunity to fix it right here um we have that scenario uh which here got that local housing code and then here we have to ask ourselves there a scenario in which uh there was a breach right there housing code that told us yes um have landlords have to provide hot water was there breach yes we've got um a hot water heater that's only pumping out cold water and we know that that's breach reach.

The next thing we have to ask is whether or not our friend, Tommy, the tenant, did he notify Larry landlord of the problem here, right? Do you remember from the fact pattern whether or not Tommy told Larry?

0:09:29 Thomas: Yay.

0:09:41 Thomas: Good.

0:11:12 Thomas: We've got this industrious first year law student who's like, I've notified you and I'm giving you a reasonable amount of time, which I would think for a habitability thing should be like zero time. That should be almost no time. It doesn't mention anything about that. But yeah, it seems like Tommy crossed all the T's there. That one was on purpose.

0:11:32 Heather: Exactly. And that's exactly what he told him. And then here in our fact pattern just says he waited a reasonable amount of time. Did Larry fix it?

0:11:39 Thomas: We see we wouldn't even be here if he if he didn't. Why we're here. That's why he became a question.

0:11:42 Heather: Right, that's Exactly right. So with that in mind, we do, we have a breach and, like you said earlier, um, no waiver here, and that's part of why D is wrong, right? Tommy can't waive the implied warranty of habitability, right? So D is a wrong answer choice for that reason. So you're right to think this is not something that we should waive, it's not something we can waive, and so D is out. Yeah.

0:12:03 Thomas: In addition to the second chance bar exam thing, I guess I got to start tracking a first instinct right or wrong thing. Because, like, I really thought that was kind of just a myth and a question of, you know, you remember your wins and don't count your losses kind of thing. But so far, that's been pretty right on since I've started consciously it the last, I don't know, three questions.

0:12:17 Heather: Yeah. Well, and it's great too, too. I always like listening to you be like, "This is my first instinct, and here's why." I'm like, yes, I guess.

0:12:29 Thomas: One of these days, it's going to be so wrong. You're going to go, oh, that was stupid. I

0:12:33 Heather: No, not at all. Looking at C. Yes, because Tommy accepted the duty to repair the house. So looking little bit back, we know that landlords generally have a duty to prepare. So what do you think when we're talking talking about duty to repair here. We see that it was in the lease and that Tommy accepted the duty to prepare. Do we think that's something that he can do?

0:12:54 Thomas: Probably.

0:12:55 Heather: You'd be interested to find out. Speaking, modernly, landlords have the duty to repay, and residential leases that place the burden of repair on the tenant are generally void. Means that they're unenforceable. Although that this is a factually true statement that Tommy knowingly accepted the a duty to repair. A wrong answer choice because our friend Larry here, he can't enforce this provision. He can't force Tommy to fix the hot water heater himself.

0:13:06 Thomas: Oh, OK, nice. Mm hmm. Right. OK, so I didn't go with that, but I do think let's say that wasn't the case. Let's say you could knowingly accept that duty to repair. I still think the fact that the wasn't habitable to begin with was the key there. Or maybe, yeah, I don't know. In the alternate universe, still I think, in should still be responsible because it needed to be habitable when Tommy moved in. And I think it was a timing issue as well there. Whereas if it had broken while on Tommy's watch and, again, in the alternate universe where he could accept that duty to repair, then I think maybe he would have to repair it, but I don't know. Never know.

0:13:35 Heather: Yes, we're

0:13:55 Thomas: Yeah.

0:13:55 Heather: Going to find out.

0:13:56 Thomas: If

0:13:57 Heather: Well, you're certainly right that Tommy is going to win here and Larry is going to lose because now since C and D are both wrong, we are now into the A and B area where Larry is is definitely going to lose, and Tommy's definitely going to win. Now we've just got to find out why it is that Tommy's going to win is Tommy going to win because Larry violated the implied warranty of habitability, or is he going towin because Larry's actions constituted constructive eviction saying that B was an attractive distractor, but you were thinking that it wasn't quite quite the main issue, right? You were talking about going back and really focusing on the implied warranty of habitability issue.

0:14:31 Thomas: Yeah.

0:14:32 Heather: Your mind is in the right place, but we'll talk a little bit about the constructive eviction issue first. To get constructive evection, you might have noticed that as we walked through the landlord's duties, constructive evction didn't come up at all, right? Wasn't in the list. However, it's a sub issue within the list, so that's, you can see where I keep so, or you can, You know, I keep really organized, right, because there's so much stuff that comes. So I mentioned the implied covenant of quiet enjoyment. It's a little bit of a mouthful. It's implied in every lease that nobody can interfere with a tenant's use and enjoyment of the property. Occurs via eviction, and there's different types of eviction, and one type is constructive. It comes up when the landlord's conduct causes the premises to be uninhabitable because the premises are substantially unsuitable for their intended purposes.

So this might look like unlawful entry by the landlord, maybe without notice or justification or without emergency. Maybe the landlord has harassing, there might be vermin or pests in the wall or ongoing construction that's really disruptive or takes longer than anticipated. So in this scenario, although the landlord didn't actually evict the tenant, the behavior or circumstances forces the tenant to leave or to make part or all of the residential premises uninhabitable.

So although the tenant here, we just are in that scenario where the landlord doesn't actually force the tenant out, it's usually what happens is something occurs that essentially forces the talent out. Again, that's related to the implied covenant of quiet enjoyment, and that's part of the landlord duty. So hopefully that makes a little bit of sense how I'm connecting the dots there. We don't have the scenario in which something happens and then our tenant leaves or sort of forced out. We're not quite in that scenario, which is how we know that there's no constructive eviction. And that's not our main issue.

0:14:48 Thomas: Fault the list, everyone. It's there somewhere. Oh, So there's no constructive eviction. Oh,

0:16:18 Heather: There's no consecutive eviction, it would mean that our friend Tommy would to have had have left the premises.

0:16:19 Thomas: It Does. Oh, okay, okay, gotcha. The constructive part was that, okay, so the constructive part is that the you or or a landlord with a probably an L name wouldn't have, wouldn't, didn't say like, "You're being evicted," uh, but whatever's happening is kind of, okay, gotcha. I...

0:16:39 Heather: It kind of forces them out, but he's not in that kind of scenario. Or

0:16:41 Thomas: I always thought, like, whenever I come across constructive eviction, I always felt like the person could still be there. But is that not true? Uh,

0:16:48 Heather: Things. So first, he he, there is a scenario in which they could still be on the premises, but usually when that happens, it's usually, let's say, it would be a scenario which maybe they couldn't use part of their residential lease. So maybe, for example, that would be the whole living room is uninhabitable.

0:16:59 Thomas: -huh. Yeah. Gotcha.

0:17:04 Heather: Yeah, in order for them to be successful on that, they would have to actually leave the premises, and these kind of scenarios, if that makes sense, and are scenarios in which, to your point, they can stay. In the sense, what the part of the, uh, area is uninhabitable, and then they would just not be able to use it. So an example, I guess, if I could give an example, terrible, was my husband and I lived, uh, in an apartment in this, in San Francisco, uh, we had an agreement. So you can hear me sighing as I'm like telling you this.

0:17:15 Thomas: Mm -hmm. Yeah, this sounds like not a great story.

0:17:32 Heather: It's not, um, mean, it turns out okay in the end, but, um, of our agreement was that, so we lived on a house, uh, was two separate parts, there was an upstairs and then we lived downstairs, and the downstairs was connected to a backyard. We hadn't, a part, as part of our rental agreement, we had exclusive use of the backyard. When the landlord went to re -rent the upstairs apartment, he started to bring people into the backyard and tell them that they could use it. We had to stop him.

0:17:58 Thomas: Jeez.

0:17:58 Heather: Because, yeah, had he done that, had we a situation in which it was the part of our agreement that allowed us to use the backyard would no longer have really been usable, because all of a sudden there would have been people. You know what I mean. Like, yeah. So who

0:18:08 Thomas: Yeah, totally, yeah. If Lydia invites someone over to the house, I'm being evicted! All right, this is unacceptable!

0:18:19 Heather: Are these strangers in my house. I'm big on the no strangers thing. Anyway, but B is incorrect because it's talking about a separate, um, essentially, um, it doesn't apply to this scenario.

0:18:20 Thomas: Yeah.

0:18:30 Thomas: To know that I didn't fall for that one. Oh,

0:18:32 Heather: Did not, you did that, fall for this distractor answer? So then we're at, A, no because Larry has violated the implied warranty of habitability. So you did a great job narrowing in on this issue and staying with it and keeping focus on it, because A is the best answer choice, and it is correct. Yes.

0:18:47 Thomas: Thanks for giving me that clean winner there. I appreciate it. Always fun. A is the correct answer, everybody. I win. You lose. No, you probably got it right, too. But, like, we all win if you chose A. Yeah.

0:18:56 Heather: Well except for Larry. Well, Larry

0:18:59 Thomas: Screw Larry.

0:18:59 Heather: Loser. He loses, as he should. Oh,

0:19:03 Thomas: Did it come down to, uh, what I said, where it's like, this wasn't fixed well? Okay, now, knowing that you can't accept the duty to repair, that's also very interesting knowledge, I need to keep in my back pocket. But this, uh, needed to be habitable before moving in, right? You can't waive that, you can't, you know, you can shift that duty over to Tommy, Larry just needed to have a house with hot water before you rent it to somebody. All right. Oh, yeah, uh, woman I've ever known loves to have their skin melted off by a lava shower. And it's, uh, it's I, I do too. I thought I did. I thought I liked a hot shower. And then it turns out I die like a few degrees less hot than Lydia. It's just, that's every, I don't know why that is. It's very weird. Pretty, it could be anecdotal. It could be just a, you know, coincidence, but that's every woman I've ever known.

0:19:25 Heather: Let, listen, as a girl who loves a hot shower, this is a non-starter. That's

0:19:57 Thomas: All right. Well, uh, it right. Jeez. Another little streak going when I'm a three for the last three. I have my score now at 65.63%, 21 out of 32. Wow. Feels good. Right. Well now we'll have to find out who this week's big big winner is. Let's first go to the big winner on reddit.com/r/OpenArgs. this week I'm going to go with user Shartweek on DVD.

0:20:11 Heather: Great. That's

0:20:27 Thomas: And not just because of their incredible name, they actually have a really good answer. They say, "I believe the answer is A. The warranty of habitability, as Thomas suspected, cannot be waived. And landlords can't try to get around this by including a disclaimer in the lease. While withholding rent without taking the proper steps can still get you evicted, that doesn't apply for C or D. While B might be true, feels like the most correct answer, as the question makes a point to note that Tommy communicated the issue to Larry, waited a reasonable time, and Larry failed to fix it, which are the steps needed to breach warranty of implied habitability." You nailed it, Shart Week on DVD. I anymore. More. Oh, and maybe the PS5, I think, can do it. It's going to be hard to watch Shart Week on DVD, but we'll make it happen. No, amazing name and amazing answer.

Well done. Now it's time to hop on over to the real major winners, the best winners, over on patreon.com/law. Out to Corey Helwig for trying to essentially game the system. Not really game the system, but for trying to negatron it, said, "I like the answer to B, A, I like Thomas. I'm inclined to believe that the implied warranty of habitability is something that can't be waived.

However, because it's 2024 and the Supreme Court is determined to make this country as unjust as possible, the answer will probably be D. I don't know. I guess that's a correct answer. I'm not sure," but I want to give you a little shout out for the negativity, but the negativity proved to be incorrect this time.

And instead I'm gonna go with Todd the Odd, who in both places, and so, uh, that's a kind of a, here, because all the answers were great on patreon.com/law, but Todd had a very simple, short, to the point, one answer: "A is correct in my book. It seems to me that the right to habitable place to live couldn't be something a landlord could just be, be like, 'Eh, I'm going to write that out in the lease.'"

0:22:15 Thomas: Todd the Odd. You nailed it. In both fora of the T3BE. And so, I wanted to award the winner to you in. Well done, Todd the Odd and Shart Week, and thanks so much for playing, this is so much fun, I love it each and every week, and be right back at it, because after this break, we're going to get back on with Heather for question 37. All Episode is brought to you by Quince. Do you ever open your closet and think, why did I buy that? Definitely do that. Don't I know what it is. Just everything, once it's in my closet, once it's in the store, you know what it is? It's those mannequins. It's these hot mannequ- - They're just too hot. Everything looks good on those manneaquins. But when I go home and then it's just in my closet, it's like that's not as good.

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0:24:24 Thomas: Right, Heather. It's time for another question. I'm on a three win streak, as I said. Looking I'm to continue the good times. What alliteration do you have for us in question 37?

0:24:35 Heather: Know me so well. Well, homeowner Homer contracted with local builder Bob

0:24:40 Thomas: It Should be Homer, Home, homeowner, come, Homer, Homer. Now I think his name is actually homeowner and he's a, and he's a real homer. Yeah, because it's Builder Bob, tenant, tenant, right. It's broken the pattern, I already beat the question right there, so I get this one right. I defeated the, you know what, the last one we have the implied warrant of habitability, this question has violated the implied warrant of alliteration pattern, and so I don't even have to answer. Okay, I'll, of my nonsense.

0:25:13 Heather: Build a set of six raised beds in his backyard, as Homer was an avid gardener. Agreement called for half of the contract price of $5,000 to be paid to Bob before he can work, and the other half to be paid to him when the job was finished. Bob began to work, but partway through the job he got an offer for another job that paid much better, and he quit abruptly. Homer sues Builder Bob for specific performance. Will Homer prevail? B, yes, because the contract between the parties was valid and Bob had no legal justification for abruptly quitting. C, no, because by not paying Bob for the second half of the job, Homer has not satisfied all of his conditions under the contract, or D, no, because the contract is for personal services. Yeah.

0:25:56 Thomas: Almost sounded like it was going to be another real property, because a homeowner, home or homeowner, that is harder to to say for some reason. That's very weird. Homer, homeowner, uh, Bob the builder here. But, um, think this is probably just contracts, it seems like, which is always fun. So Bob the builder, six raised beds in his backyard, sure.

Half the contract price of five thousand to be paid to Bob before he began the work, and the other half to be paid him when the job was finished. So Bob began the work. It's agnostic as to whether Homer paid that 5, 000. I guess we'll assume he did because it says the agreement called for half of the contracted, or I guess 2 ,500 it would be.

Half of the contract price of 5, 00 be paid to Bob before he began work and the other half to be paid when the job was finished. Pretty common. Bob began the work, but partway through the job, he got an offer for another job that paid much better. I love that. It's like mid flower bed. What's that? A better job. Okay. Be right there. See you later. Just make the, I mean, it doesn't, how long does it take to make six raised bed?

The builder, just do both jobs. Probably doable. Homer sues Bob the builder. And I'm saying Bob the builder because let's be real, that's who it is. It's not Builder Bob. That's not how that works. For a specific performance, will Homer prevail? Because there's been a novation. Crap. Novation. I feel like we talked about that recently -ish.

Addled mind, my junkyard of a mind is saying, I think it was in the context of a question where it was like, um, don't know if it was actually the answer, but it was, like, a contract and a novation. Novation question was if you, oh, maybe this was a Matt question. So it may, it may have been longer ago, but anyway, I I think innovation might be, you're have a contract.

I'm going to, you know, I'm gonna sell you five fish, five, I don't know, tons of fish. And then there's some, there's something like modification that has to happen. And I think if it's like reasonable, oh, is that it? Crap. Now I'm blending too many things. I think that's what innovation is. Long story short, I don't think that's what this is. I have the bulletproof logic of that was my first instinct.

So I think innovation is some, I it's when the contract gets like modified in way that like, it's still the same contract. I think, I think that was the key. I don't know. Yes, because the contract between the parties was valid and Bob had no legal justification for abruptly quitting. Seems pretty strong. I mean, if that's the answer, I don't know what, why, what are we even doing here? It seems so obvious, but like that does seem to be what's happened here.

C, no, because by not paying Bob for the second half of the job, Homer has not satisfied all his conditions under the contract. No, because the contract is for personal service. Oh, oh, oh, oh yeah. Okay. No, we've had, um, okay. One of the later questions of Matt, I don't know if this was the novation one, I, it was the violinist, and the whole thing was like, hey, virtuoso violinist, famous, whatever, uh, sick, can't make it, here's a substitute one.

And from that, I learned that like regular contract law that actually does work, it's not personal services, um, is this, would you consider this personal service? Actually? No, this, I don't think this is personal services. I don't think. Ooh, interesting. So there's nothing in, okay, let me, I guess, explain in case I, that didn't say everything that was going on in my junkyard brain.

The whole issue there was if I agree, if I'm famous violinist, Thomas Smith, and I agree to play a concert, and that's the contract we have. And I'm like, oh, I'm sick. My wife's the same level of violinist, though. Even if she's like exactly as good and exactly as good looking, uh, then, but it still can't be done, you can't just sub in, because it's a personal thing.

You, if you book Sting and the Police to play a show, and even though they're not even together anymore, and then they sign the contract for some reason, and then seeing the Police are like, oh, we're not even together anymore, here, why don't you have Hollow Notes will sub in, you can't just do that. I mean, I would probably accept that contract just because it'd be interesting, but you can't just do that.

Whereas if it is something like, I, or I guess not personal services, where it's like, well, for example, I will build you a flower bed, and then someone is, you can't make it, or you, or yeah, you break your hand or something, and you're like, all right, the, another builder that I know is going to fill in for me, I think that's fine. I think it's not just fine. I think homeowner Homer can't have a problem.

I think it's kind of weird and it's counterintuitive, but I think Homer has to just accept it. It's not even like a change of the contract. I think that Homer's just like, okay, the contract was for this service, and doesn't matter who does it, just has to get done. I do remember that personal services was kind of, I think that's the phrase, but here's the thing.

I think this is personal services, you can almost make an argument that's like, well, if the fact pattern of the question was like local builder and artist Bob was gonna like you, this fancy, uh, and something something that was like more based on who Bob is, like, but something that was more like, it's important that specifically Bob the builder does this, then we might have a thing there, but because this is just generic work, and now I'm realizing I just glanced over the call of the question, which is why this is a question and not just easily answer B, because Homer is suing for specific performance, which means Homer wants Bob to get his ass over here and do it.

That being said, we might still be in the very simple, this is is just answer B territory. I don't know, but it was, I missed that stuff in my first glance. And now I see what's going on here. So Bob began the work, but partway through the job, got an offer, quit abruptly. Performance means the judge needs to make them do it. So that's the other complication is often, do think I remember that judges or the law is more hesitant to make people do stuff.

Like it doesn't often want to be like, well, you are now the Homer's butler for, you know, for a length of time until whatever. It's more like the law usually just wants to pay money, or like it just wants to make things right with money because it's faster. And it's not like controlling people and what they do. So the law is usually like, well, Bob's in the wrong. What Bob should do is refund the money or something like that, or maybe even pay some damages sometimes.

I don't know. But I think that's usually what the law wants. Now, this does seem like it could be a specific performance one, though. This actually might make sense. You've started the job, you've given the money, you agree to do a thing. Can you get specific performance in this instance? It might be that the answer is yes. Okay. So all that, in this very simple question, which might still be simple, I remembered all that.

Now throwing all that spaghetti at the wall, let's see what happens if I read it again. Hires a builder. Doesn't say, I don't think it matters, but it doesn't say if he paid the $2 ,500 first, but it says that was what the contract said. But I guess we'll assume that he did. Bob starts to work. Then he quits because he has a better job. Now Homer is suing for a judge to basically make Bob finish the work. That's the key. I think I got everything.

So, so will Homer prevail? Because there's been a novation. I still don't think that's anything. I still think think that's just kind of like, forget what vocabulary is. I I don't perfectly remember what a novation is. It's when you modify the contract in a way, but I think I remember enough about novation that that's not what is happening here. B, yes, because the contract between the parties was valid and Bob had no legal justification for abruptly quitting.

Now, it still seems far and away the most obvious answer. No, because by not paying Bob for for the second half of the job, Homer has not satisfied all his conditions under the contract. Okay, I think C at second chance answer, because I could see the argument being, okay, I am taking you to court because you didn't do your contract. Part, I could see a requirement being, okay, but did you do your part of the contract?

Like, I paid you this $10,000, you were supposed to give me a car, I paid you the $10,000, you didn't give me a car, I'm going to sue you for that. But if it's like, well, I agreed that I would pay you $10k if you would give me car, and like nobody's really done either, then maybe there's something there, maybe that's not like quite what you do.

So I think that's maybe what I would worry about with C, like maybe Bob to have paid of the contract, contract, otherwise it's not done yet. That's possible. Okay, so C is possible. So B, B is the strong first instinct, C is impossible. D, no, because the contract is for personal services.

Okay, so that also, I'm a little concerned that that might also be true, but I don't think so because, like, you're just building flower, like anybody could do that, that's not, it's like, but is this, but is this technically personal services? Would you call that a personal services contract? T think so, because that's not how any building. Now, I' m going to say no. I think D is attractive distractor territory because I think any contractor, that's just literally in the name.

Like, you hire somebody, hey, build this, and then God knows who shows up. You know, like, that's kind of weird. Like, if you have a house, and if you had anybody do anything for the house, that's, it's just how it works. And it is kind of odd, at first where you, you talk to somebody and they might either be more of a salesperson or they might be like in charge of, you know, they might be like the head, whatever.

And they're like, oh yeah, we'll do this, we'll do that. And you're like, cool. Then you stupidly expect like that person will show up again. You never see him again. What you see is like laborers who are, you know, hired to contracted, they do it. You don't have any say over who that is. You know, it doesn't really matter, but like, I think that's how pretty much this stuff works. So I think D is wrong.

I think, I think D is an attractive distractor, but D is wrong, so I'm between B and C. So, I'm, okay, worried it could be C. Think for comedy purposes, I should choose C and get it wrong, but I think because my first instinct has been right like three times in a row now, and we're on, this could be fourth here, I think it's B, but, you know, I don't, I'm going to just reconsider C one more time.

Guess, here's my question, the idea that like, no, in order to sue for specific performance, you have to, like, if you're the one suing, you have to have done everything on your end, which I think is like, I think that's plausible. Like, I'm worried that that's part of it. However, here's what I wonder. If that's what we're looking at here, is Homer supposed to do? Because, like, I actually don't think that makes sense. Like, contract, well, yeah, actually, no, you could look at it another way.

Homer has done everything in the contract because the contract says half up front and the other half when the job is finished, and the job's not finished, so, yeah, no, okay, so I think C, under that logic, okay, no, C seems bad then, but I don't know, B just seems too easy, like it's too plain, I, maybe then D is my second chance answer, but I don't think that's it either. Okay, maybe A is my 2nd chance answer because I don't remember exactly what novation is.

Nah, that one's terrible. Think it's just B. I gotta be real. There's no, I don't see anything in the other answers. Like, Homer isn't required to pay before the job's finished. But no, I'm still gonna go with 2nd chance answer C just in case there's something weird there, like some weird part of the rule. But I don't know what Homer would do otherwise.

Wise, like Bob is just totally effed off into oblivion, what Homer supposed to, like, okay, I'll Venmo you the 2500 first, to even though you didn't finish the job, and then I will sue you for specific performance. I guess, I don't know. All right, so final answer B. I think second chance answer, I'm gonna still go with C because I just in case there's something weird there, uh, final, I'll answer B. And, if you're going to play along, you know how to do it.

Can go to reddit.com/r/openargs. Cool place to talk about episodes, to post, to interact with listeners. That Reddit, that subreddit is really cool. And if you play T3B there, tracks your score, it's super duper awesome. And it there's like these no spoiler tags, it's a really fun place to do it. So that's the best place if you're not a patron. But if you're a patron, go to patreon.com/law, go to the post for this episode and put your answer in the comments.

And if you're a patron, do both because you'll have a better chance of winning on patreon.com/law. But the Reddit will track your score. All right, Heather, I'm curious to see if this was as easy as it seemed, or if I missed something. We'll find out next week, huh? Yeah.

0:37:51 Heather: I'm really curious to see what happens with Homer's uh flower beds. We

0:37:54 Thomas: Like, what's he, what's gonna grow on those things? Did he get any of them? I don't know. It says Bob began the work. Did he finish like some of them, or no, we don't know. We'll Find out, no, we won't, but either way, we'll see you next week. Okay.

0:38:02 Heather: Don't know.

0:38:10 Clip: Thank you for being, say we started from the bottom, now we're here, girl.

0:38:20 Thomas: Right, and now it's time to thank our new patrons at patreon.com/law. And it is with a heavy heart that I say that we are almost caught up? So sad, I don't want to be caught up, I would never, like, me to be awesome to to have infinite patrons, but, you know, not it's even mathematically close to that at all, if there is such a concept, but we're going to be catching up through almost the end of June, and week we'll be in like current times, but that's okay, we can still enjoy what was, and I can still thank some amazing patrons through uh the end to May and through June here who pledged at patreon.com/law. So thank you to Matthew Mitchell, Samovar, Liz, Mens Rea Podcast, oh cool, Rebecca, Laura, Hannah, Laura, Marokna, Nielsen, On the Backs of Gods, a Norse themed 5e adventure, Mondays at 7 CDT on Twitch slash The Dice Cult.

Oh, cool shout out there for a, sounds like a D&D thing. Twitch slash The Dice Cult. Cool. Slurpy Kaye, mother effer, weird, Celeste De La Cabra, Bain, Nicholas Altman, A.Log. invented being fast a text, Goldschmidt, Patreon it, Pam, Trilea Duvain, Peltz, Country for Old Ben, Audrey Arnett.

Hey, Audrey, haven't seen you on the SIO Hangouts in a while, I don't know if you're still on over there, but would love to see you, so shout out to Audrey. Mike Prince Fu, Dave Sheehan, Paul Londino, Liz Skeen, love Liz, Mark Daniel, Lisa Galvin, Endros, and James H. Thank you so much to last new patrons, week we'll be all caught up, so happened so fast, also not really.

Alright, now it's all time to thank our Hall of Famers, our all time greats at patreon.com/law, these are the folks that pledge at that five dollar tier and above of for at least a month. We're the third or four shout outs here, know, I'm just realizing there's plenty of time on these new T3BE episodes, sad as it is, we don't have like quite the number of Hall of Famers that we maybe used to have prior to certain things happening to the show.

So, you know, I almost could do the Hall of Famers every week. Fun, I like hearing the name changes, really wouldn't add that much time, know, I think I want to do that.

I think starting next month, unless I get any massive outcry, but like, honestly, it's to, it's like a minute, it's really not going to add much, now that I think about it, I've been doing this whole quartile thing cause that's what we did for so long, but I'm realizing like, we've got got the time real estate here with the new format, it might be fun to hear the name changes every time, so I think I might do that.

But let's finish out the month with this method for the third and fourth quartiles here. So all thanking that third quartyle of start with one of my favorites, Fraud Fishy hates everything, Chris Simpson, love the extra episodes, I love the goddamn cranberries, and Matt and Tom at the same time and not in that order, but the cranberries are not my favorite, probably banned, check out the Queer and Cryptography Conference at cryptography.lgbt. Zone Guns 2, support root cause mitigation, not ineffective gun control, and it's been a longstanding disagreement that I feel like we should have gun control, and this person is still a Hall of Fame patron after all this time, so appreciate it. A lawyer, but I play one in court. Delighted, you call whatever you're using now, Swipe, even though the original is defunct, I had the good fortune to work on Swipe.

Huh, I don't know what that is, but it sounds interesting, is that the method of text? I don't know. Stormy Decisus says, visit sharebandbooks.com, definitely do that. Thomas Smith says that too, this isn't a Patreon name, and I'm not reading anything right now, I just personally think Legal Eagle is so handsome. Mark Schultz, the Cincinnati Kid, Bob Law Podcast. Podcast, Philly Basement Bar is in need of a very strong drink, and Edgy Veggie.

So much, Hall of Famers, next week will be the final quartile, and then I'm really thinking we should just start doing all of them, we'd add so little time, and we have the time, so, can change their name each week and get a little bit more of the fun interaction there, which always used to be so fun in the classic OA, getting the relevant name changes or not, there's also the longstanding classics that I always love too. Right.

Well, that's the show, thanks so much for listening, thanks so much to the patrons, love being able to do the bar exam question and give the proper shout out to the supporters who really do make this show happen, can join the ranks at patreon.com/law. Reminder to go also to Gavel Gavel, patreon.com/gavelpod, and grab the Alec Baldwin fiasco episode, it's really, it's really cool, really interesting, fun said, I'll see everyone for a rapid response Friday, we'll see you then.

0:42:58 Clip: This podcast is a production of Opening Arguments Media, LLC, All Rights Reserved. It is produced and edited by Thomas Smith, who also provided the fabulous intro and outro music used with permission.

0:43:15 Thomas: Sorry, we're not going to let you fight to the dead. That's just signed me out. Literally as I'm on the spreadsheet, the Google sheet that I have, it's like, no, not you. Get out of here.

0:43:27 Thomas: Yeah. Weird. All it's, like, I wish, do you, okay. Wish with Google and other things that I could just say, this is my computer. It lives at my home. Never make me sign into any, no one else uses it. Do that, where it's a home -based computer mode, where I don't want to have to sign into anything on this computer. It should just be one time done. And then I'll let you know if that changes.