Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Contracts > 7) Remedies > Flashcards

7) Remedies Flashcards

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

remedies for breach of k (CL): kinds

A

1) damages

2) equitable

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

remedies for breach of k: damages: kinds

A

1) expectation damages
2) reliance d
3) restitutionary d
4) liquidated damages

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

remedies for breach of k (CL + UCC): damages: default rule

A

expectation damages! (always start here)

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

remedies for breach of k (CL): expectation damages: how to calculate

A

Loss of value of breaching party’s performance (k price?)
+ incidental and consequential costs generated by breach
- any payments received from breacher
- any costs saved bc of breach

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

remedies for breach of k (CL): expectation damages: exceptions

A

CAN’T get expectation damages if:

1) can’t calculate them w reasonable certainty
2) damages are unforeseeable (Hadley)
3) damages could be mitigated (can’t recover for those that should’ve mitigated)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

remedies for breach of k (CL): expectation damages: exception: Hadley rule

A

damages that are not foreseeable are not recoverable

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

remedies for breach of k (CL): expectation damages: exception: mitigation: employees

A 
don't need to accept substitute work if:
different field
significantly lower pay/worse terms
more burdensome responsibilities
damage career prospects
How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

remedies for breach of k (CL): expectation damages: def

A

restore aggrieved party to the position he would’ve been in if k had been fully performed (what he expected)

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

remedies for breach of k (CL): reliance damages: def

A

restore aggrieved party to position he was in PRIOR TO K’ing

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

remedies for breach of k (CL): reliance damages: how to calculate

A

any expenses made to anyone in performing or preparing to perform
- any loss that breaching party can prove aggrieved party would have suffered even if the k HAD been fully performed

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

remedies for breach of k (CL): reliance damages: when available

A

if expectation damages not available

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

remedies for breach of k (CL): which applies?

A

argue for whichever is more $$ for my client! but generally expectation is default

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

remedies for breach of k (CL): restitutionary damages: def

A

the value of benefits conferred ON THE OTHER PARTY in the transaction

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

remedies for breach of k (CL): restitutionary damages: how to calculate

A

2 ways:

1) reasonable value or cost of benefits conferred (to the other party only, per def) OR
2) extent to which other party’s property has increased in value bc of performance

court will consider equities to decide which

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

remedies for breach of k (CL): restitutionary damages: when to use

A

argue for it if it’s more $ for client. Most common time that will happen: “losing k”

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

remedies for breach of k (CL): restitutionary damages: exception

A

restitutionary damages NOT available if other party has fully performed!! (only if partial)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

remedies for breach of k (CL): liquidated damages: def

A

k specifies amount of damages in the event of breach

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

remedies for breach of k (CL): liquidated damages: test

A

courts will not enforce if think it’s a penalty designed to punish breach. (compensation only, not punishment) Consider:

1) forecast
2) hindsight

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

remedies for breach of k (CL): liquidated damages: test: forecast

A

was clause reasonable at the time of k, in relation to the anticipated harm? (more likely to be enforced if there was an anticipated harm that would be difficult to calculate)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

remedies for breach of k (CL): liquidated damages: hindsight

A

was clause reasonable in relation to harm and losses that actually occurred due to the breach?

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

remedies for breach of k (CL): liquidated damages: result if court finds unenforceable

A

strikes from the k, follow default rules instead

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

remedies for breach of k (UCC): seller remedies: when use

A

if buyer breaches

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

remedies for breach of k (UCC): seller remedies: rule

A

depends on if goods were delivered and accepted by buyer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

remedies for breach of k (UCC): seller remedies: buyer accepted goods

A

remedy = k price

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

remedies for breach of k (UCC): seller remedies: buyer DID NOT accept: situations

A

buyer wrongfully rejected or repudiated

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

remedies for breach of k (UCC): seller remedies: buyer DID NOT accept: rule

A

1) if seller has re-sold: damages = difference btwn k price and resale price
2) if seller has not re-sold: damages = difference btwn k price and market price
3) lost volume sellers: damages = the profit would have made on lost sale

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

remedies for breach of k (UCC): lost volume seller: def

A

supply of goods exceeds the demand (ex. tv store)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

remedies for breach of k (UCC): buyer remedies: when use

A

if seller breached (didn’t send, or sends imperfect and never curse)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

remedies for breach of k (UCC): buyer remedies: rule

A

depends on whether buyer covered

1) if buyer covers (in good faith): damages = difference btwn k price and cover price
2) if buyer dn cover: damages = difference btwn k price and market price

30
Q

remedies for breach of k (UCC): cover: def

A

bought replacement goods

31
Q

remedies for breach of k (UCC): buyer remedies: damages for accepted goods: when use

A

buyer receives and accepts nonconforming goods from the seller

32
Q

remedies for breach of k (UCC): buyer remedies: damages for accepted goods: rule

A

buyer is entitled to recover difference btwn value of goods k’d for and goods received

33
Q

remedies for breach of k (UCC): incidental damages: rule

A

buyer or seller can get

34
Q

remedies for breach of k (UCC): incidental damages: Def

A

expenses occurred in either seller dealing w goods after buyer’s breach (ex. storage) or buyer arranging for cover (ex. transportation)

35
Q

remedies for breach of k (UCC): consequential damages: rule

A

ONLY BUYER CAN GET

+ must be reasonably foreseeable to seller at time of entering k

36
Q

remedies for breach of k (CL): equitable remedies: kinds

A

1) specific performance

2) negative injunctions

37
Q

remedies for breach of k (CL): equitable remedies: specific performance; def

A

extraordinary remedy where breaching party ordered to PERFORM

38
Q

remedies for breach of k (CL): equitable remedies: specific performance: rule

A

ONLY available if monetary award is inadequate

39
Q

remedies for breach of k (CL): equitable remedies: specific performance: usually yes available if

A

1) unique objects (art, heirloom)

2) real property

40
Q

remedies for breach of k (CL): equitable remedies: specific performance: NOT available if

A

1) personal services

2) long-term relationships

41
Q

remedies for breach of k (UCC): equitable remedies: specific performance: difference

A

easier to get specific performance in 2 ways:

1) uniqueness
2) capable of immediate performance

42
Q

remedies for breach of k (UCC): equitable remedies: specific performance: uniqueness

A

need only adequately search and be unable to find reasonable substitutes (lower standard than CL heirloom)

43
Q

remedies for breach of k (UCC): equitable remedies: specific performance: capable of immediate performance

A

specific performance IS allowed in output and requirements ks (despite the fact that these are long term, and require cooperation of the parties)

44
Q

remedies for breach of k (CL): equitable remedies: negative injunctions: def

A

orders prohibiting breaching party from doing something

45
Q

remedies for breach of k (CL): equitable remedies: negative injunctions: most common situation

A

employment

46
Q

remedies for breach of k (CL): equitable remedies: negative injunctions: MID TERM employment relief

A

ee is k’d for specific amt of time, breaches by leaving early +
services are UNIQUE AND EXTRAORDINARY –> negative injunction available!

EVEN IF no noncompete agreement!

47
Q

remedies for breach of k (CL): equitable remedies: negative injunctions: POST employment relief

A

post-employment noncompete MUST have express provision in k. Then consider:

1) significant business justification?
2) scope reasonable re duration, geography?

48
Q

other remedies: when use

A

separate COAs where you don’t have breach of k

49
Q

other remedies: kinds

A

1) promissory estoppel

2) restitution /unjust enrichment

50
Q

other remedies: promissory estoppel: remedies available

A

depends on j! maybe:

1) expectation d
2) reliance d

choose case by case, tailor remedy to case

51
Q

other remedies: restitution: distinguishing

A

restitution CAN be recovered for breach of k. But also can be available even if no breach (or even no k)…

52
Q

other remedies: restitution: kinds

A

1) benefits under failed k
2) benefits conferred by breaching party
3) general unjust enrichment (no express k)

53
Q

other remedies: restitution: benefits under failed k: rule

A

if party bestows benefits on other party in connection w what turns out to be “failed k”, THEN bestower can get them back in restitution

54
Q

other remedies: restitution: benefits under failed k: “failed k” def

A

ex. incapacity/fraud/duress –> there was a successful defense to there being a k in the first place

55
Q

other remedies: restitution: benefits conferred by breacher: rule

A

party that breaches can recover the benefits it conferred on the nonbreacher

BUT offset for damages caused by the breach!

this is time where breacher can counter-sue for restitution

56
Q

other remedies: restitution: unjust enrichment: situation

A

no express k exists

57
Q

other remedies: restitution: unjust enrichment: rule

A

party that confers benefits on another may recover their value if unjust for recipient to retain benefits w/o paying – even where there is no k

58
Q

other remedies: restitution: unjust enrichment: common situations

A

1) medical services by medical professional

2) benefits conferred by mistake, and recipient availed self of the benefits

59
Q

other remedies: restitution: unjust enrichment: exception

A

BIG EXCEPTION: “officious intermeddler” who bestows benefits WITHOUT REQUEST of benefitting party –> NO RECOVERY!!

(look for request, opportunity to decline)

60
Q

other remedies: restitution: unjust enrichment: exception: officious intermeddler: EXCEPTION

A

E2E: emergency med services where person can’t accept bc too ill/unconscious

61
Q

agreed-to remedies: kinds

A

1) liquidated damages

2) provisions limiting or excluding damages

62
Q

agreed-to remedies: result

A

changes the remedies that would’ve been available

63
Q

agreed to remedies: examples

A

1) clause excluding consequential damages

2) exclusive remedies

64
Q

agreed to remedies: exclusive remedies: def

A

ex. for goods, you’re limited to repair or replacement only

65
Q

agreed to remedies: enforceable? (UCC)

A

yes, UNLESS:

1) unconscionable
2) item is failing its general purpose (lemon)

66
Q

agreed to remedies: enforceable? (UCC): unconscionable

A

limiting consequential damages for personal injury for a consumer good = prima facie unconscionable

67
Q

which remedy applies? construction k

A

actual cost of completing the construction minus payments that are to be made to D under the k

68
Q

innocent misrep

A

rescission

69
Q

impossibility

A

rescission

70
Q

if k not performed yet, expectation damages can be

A

lost profits

Bar Contracts (9 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions