Breach of contract Flashcards

You may prefer our related Brainscape-certified flashcards:
1
Q

how can you breach a contract?

A

if there is non-performance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

possible causes of non-performance

A

no performance at all
delayed performance
defective performance
partial performance

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

how can liabilities can be divided between parties

A

extended, limited, excluded

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

main remedies of the obligee/ creditor

A
  1. damages
  2. equitable remedies- termination, specific performance
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

damages

A
  1. is there a breach of contract?
  2. is there damage
  3. attributability
  4. notice
  5. causation/ foreseeability
  6. contributory negligence/ the duty to mitigate
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

what are damages

A

a remedy for the breach of the contract. the purpose is to compensate the injured party for loss or damage arising from the breach.
main rule: monetary compensation. the causation determines the amount

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

attributability in civil law

A

breach must be attributable to the promisor

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

attributability in English law

A

strict liability= no requirement of attributability

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

mistakes arising from the third person used by the obligor

A

the obligor is liable for mistakes made by persons used by him or her to execute the agreement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

mistakes arising from the use of goods

A

by the obligor are also for his account

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

attributability in German law

A

The obligee may demand damages for the damage caused thereby. This does not apply if the obligor is not responsible for the breach of duty

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

attributability in French law

A

The debtor is ordered to pay damages unless he shows that his performance was prevented by force majeure.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Force majeure (civil law) 2 possibilites

A

performance still possible- the obligee can still demand performance, so the obligation can be postponed
performance impossible- the obligee can terminate immediately the agreement

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

force majeure French Law

A

renegotiate the contract or terminate or ask the court by common agreement to adapt it

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

force majeure German Law

A

adaptation of the contract or revocation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Frustration (English law)

A

automatically results in the discharge of all parties from their obligations.
1. Destruction or unavailability of the subject matter
2. Death or illness of one of the parties
3. Supervening illegality
4. Government intervention
5. The event on which the contract is based fails to occur
6. Delay in performance (caused by supervening event!)

17
Q

notice

A

civil law- a notice is required; no notice if the promisor refuses to perform
English law- no notice

18
Q

causation/ foreseeability

A

a promisor is bound only to damages which were foreseen or could have been foreseeable at the time of conclusion of the contract
EXCEPT where non-performance was due to a gross and dishonest fault

19
Q

contributory negligence/ duty to mitigate

A

the injured party has to mitigate any losses
contributory negligence may reduce the amount of damages

20
Q

termination

A

if the promisor does not perform, the promisee can terminate the contract.
damage can be claimed

21
Q

termination and agreed remedies

A
  1. agreed damages:
    - liquidated clauses= calculated then, all countries
    - penalty clauses= already stated in the contract, only civil law (in extreme cases the court may reduce the amount)
  2. termination clauses= states when it is allowed and what consequences there will be if you terminate the contract
22
Q

specific performance- civil law

A
  1. you claim specific performance
  2. damages

not granted when:
- it is impossible
- disproportion between expense and effort needed to perform on the one hand, and the interest that the promisee has in the performance on the other
- personal services

23
Q

specific performance- common law

A
  1. damages
  2. specific performance

claim when:
- it is at the court’s discretion
- damages are inadequate:
- unique item
- cannot buy substitute performance on the market
- makes a more just result