BREACH OF CONTRACT AND REMEDIES Flashcards
BREACH OF CONTRACT AND REMEDIES
ANTICIPATORY REPUDIATION–WHEN DOES THE DOCTRINE OF ANTICIPAT(ORY REPUDIATION APPLY?
THE DOCTRINE OF ANTICIPATORY REPUDIATION IS APPLICABLE WHEN A PROMISOR REPUDIATES A PROMISE BEFORE THE TIME FOR PERFORMANCE IS DUE.
THE REPUDIATION MUST BE CLEAR AND UNEQUIVOCAL (AS OPPOSED TO MERE INSECURITY)
MAY BE CONDUCT OR WORDS, AND IF A STATEMENT, IT MUST BE MADE TO THE PROMISSEE OR A THIRD PARTY BENEFICIARY OR ASSIGNEE OF THE PROMISE.
BREACH OF CONTRACT AND REMEDIES
WHEN THERE IS A VALID ANTICIPATORY REPUDIATION, WHARE ARE THE NON-BREACHING PARTY’S OPTIONS?
REPUDIATION EXCUSES OCCURRENCE OF ANY CONDITION THAT WOULD OTHERWISE PREVENT THE CONDITION THAT WOULD OTHERWISE PREVENT THE REPUDIATING PARTY’S DUTY FROM BEING ABSOLUTE. UPON REPUDIATION, THE PROMISSEE CAN GENERALLY TREAT THE REPUDATION AS A BREACH AND SUE THE PROMISOR IMMEDIATELY., OR IGNORE IT AND DEMAND PERFORMANCE.
iF THE REPUDIATION IS IGNORED, THEN CONTINUED PERFORMANCE BY THE PROMISSEE MUST BE SUSPENDED IF THE PERFORMANCE WOULD INCREASE THE DAMAGES OF THE PROMISOR.
WHEN THE DATE OF PERFORMANCE HAS NOT PASSED, AND THE PROMISSEE HAS FULLY PERFORMED, THE PROMISSEE MUST WAIT FOR THE ACTUAL BREACH BEFORE FILING SUIT.
TYPICALLY, THIS OCCURS WHEN THE PROMISOR’S OBLIGATION IS THE PAYMENT OF MONEY,.
BREACH OF CONTRACT AND DAMAGES - ANTICIPATORY REPUDIATION
WHEN CAN A REPUDIATION BE RETRACTED?
REPUDIATION MAY BE RETRACTED UNTIL SUCH TIME AS THE PROMISSEE:
- ACTS IN RELIANCE ON THE REPUDIATION;
- SIGNIFIES ACCEPTANCE OF THE REPUDIATION; OR
- COMMENCES TO ALLOW FOR THE PERFORMANCE OF THE PROMISSEE’S OBLIGATIONS.
BREACH OF CONTRACT AND REMEDIES
WHEN DOES THE DOCTRINE OF ANTICIPATORY REPUDIATION NOT APPLY?
DOCTRINE OF ANTICIPATORY REPUDIATION DOES NOT APPLY TO A UNILATERAL CONTRACT WHEN THE OFFEROR WITHDRAWS THE OFFER ONCE THE OFFEREE HAS BEGUN TO PERFORM SINCE THE OFFEREE IS NOT REQUIRED TO COMPLETE PERFORMANCE.
The goal of contract damages is to place the nonbreaching party in the same position as if the contract had been performed (i.e., expectation damages).
The buyer can also recover other losses, including consequential and incidental damages, minus any costs or losses avoided.
How are expectation damages calculated?
This loss in value is measured by the difference between the value of performance without the breach (what was promised) and with the breach (what was received). For late delivery in a real estate contract, such damages are measured by the fair market rental value of the property for the time that the buyer (here, the butcher) was denied possession (here, $2,000).
BREACH OF CONTRACT AND DAMAGES
FLORIDA OF LAW ON ANTICIPATORY REPUDIATION
IDENTORFY SITUATIONS IN WHICH A PARTY’S COMMENTS OR ACTIONS DEMONSTRATE A PROBABLE FAILURE TO PERFORM.
A REFUSAL TO PERFORM THAT IS “DISTINCT, UNEQUIVOCAL AND ABSOLUTE” IS REPUDIATION PERMITTING THE OTHER PARTY TO SEEK ASSURANCE OF PERFORMANCE, TO SEEK DAMAGES OR TO MITIGATE DAMAGES.
The parol evidence rule generally bars the admission of extrinsic evidence of prior or contemporaneous agreements that modify or contradict the terms of an integrated writing. However, the scope of this bar depends on whether the writing is:
totally integrated – sets forth the parties’ agreement about all terms, so such evidence is not admissible or
partially integrated – sets forth the parties’ agreement about some but not all terms, so such evidence is admissible if it is consistent with the written terms—but not if it contradicts them.
The UCC, which applies to contracts for the sale of goods (e.g., comic books), presumes that a contract is partially integrated. However, that presumption goes away when the writing contains a merger clause—i.e., a clause that declares the written contract to be the complete and final agreement between the parties. The written contract will instead be deemed completely integrated.
