CH 9

Question 1

what are the four ways that a contract can be brought to an end

Answer 1

performance
agreement
Frustration
Breach

Question 2

explain vicarious performance

Answer 2

Performance of contractual obligations through others.

Business creates the contract, but the person who actually does the work may not be privy to it.

they cannot be sued for it

Question 3

once there is termination by agreement between both parties, what four things can they do

Answer 3

end the contract all together

vary certain terms of the contract

substitute a party- transfer legal rights and obligations to another party

Novation- enter a whole new contract

Question 4

explain assignment of contract with example

Answer 4

The transfer of a right by an assignor to an assignee.

• A creditor (the assignor) may assign the right to collect to another person (the assignee) without the agreement of the debtor.
• To be effective, the debtor must have notice of the assignment so that she knows to pay the assignee rather than the creditor.

Question 5

explain frustration

Answer 5

Termination of a contract by an unexpected event or change that makes contractual performance functionally impossible or illegal.

Question 6

what four things are needed to show frustration for an event

Answer 6

• be unforeseen
• not arise do to fault of parties
• make the purpose of the contract impossible or very difficult
• not be a risk

Question 7

explain Force majeure clasue

Answer 7

• deal with risks of unforeseen events, and allow parties to delay or terminate a contract
• Events might be floods, war, strike, currency devaluation, or rationing of raw materials.

Question 8

what three things must a plaintiff show non performance of a contract to trigger a lawsuit

Answer 8

establish that there is a contract

show breach of contract

Entitlement to a remedy

Question 9

what is condition

Answer 9

An important term that, if breached, gives the innocent party the right to terminate the contract and claim damages.

Question 10

what is warranty

Answer 10

A minor term that, if breached, gives the innocent party the right to claim damages only.

Question 11

what is an innominate term

Answer 11

A term that cannot easily be classified as either a condition or a warranty.

Question 12

explain Anticipatory breach

Answer 12

A breach that occurs before the date for performance.

It is actionable, so the innocent party can sue immediately.

The innocent party is entitled to damages.

The innocent party is entitled to treat the contract as terminated

Question 13

explain Expectation damages

Answer 13

Damages that provide the plaintiff with the monetary equivalent of contractual performance.

The most common measurement

The purpose of damages in contract law is generally to compensate a plaintiff.

Question 14

explain Duty to Mitigate

Answer 14

All who suffer a breach of contract are obligated to take reasonable steps to minimize the losses resulting from a breach of contract or other wrong.

Reasonable costs associated with the mitigation are recoverable by the party in breach.

Question 15

the difference between rights and duties in assignment

Answer 15

rights can be transferred, duties cannot be transferred without agreement.

Bob can transfer his right to collect cash but he cannot transfer his duty to finish the house he is contracted to finish

Question 16

what is specific performance

Answer 16

courts makes the parties do exactly what there were intending to do in the contract instead of awarding compensation. usually in cases in sale of land

Question 17

whats an injunction

Answer 17

court orders someone not to do something

Question 18

whats an interlocutory injunction

Answer 18

requires someone to stop doing something until the whole dispute can be resolved through a trial.

an injunction for a certain amount of time

Question 19

What is unjust enrichment?

Answer 19

Unjust enrichment occurs when one party has undeservedly or unjustly secured a benefit at the other party’s expense.

Question 20

How can a plaintiff avoid the application of an exclusion of liability clause?

Answer 20

The plaintiff must establish, on the basis of Tercon, that the clause does not cover what happened, or that the clause should not be enforced for reasons going to unconscionability, or that the clause should be enforced for reasons going to public policy.

Question 21

how does The court distinguishes between a condition and warranty

Answer 21

by determining the parties’ contractual intention. This includes an assessment of all the circumstances surrounding the contract, including the language chosen by the parties in the contract itself.

Question 22

what is the privity rule

Answer 22

The privity rule states that, generally speaking, only those who are parties of a contract may enforce the rights and obligations under it.

Question 23

what two things must be shown to claim non pecuniary damages from a contract

Answer 23

(1) that the object of the contract was to secure a psychological benefit that brings mental distress upon breach within the reasonable contemplation of the parties;
(2) that the degree of mental suffering caused by the breach was of a degree sufficient to warrant compensation.

Question 24

explain statute consumer protection legislation and privity

Answer 24

lack of privity is no defence to an action brought under the act for breach of warranty brought against a manufacturer,

Question 25

explain statute insurance legislation and privity

Answer 25

beneficiary under a life insurance contract to sue the insurer even though the beneficiary is not a party to the contract (i.e., even though the beneficiary lacks privity).

Question 26

list 5 ways where a court cant order specific performance

Answer 26

improper behaviour by the plaintiff

delay. Failure by the plaintiff to bring a claim promptly can be grounds for denying the plaintiff an equitable remedy

impossibility

severe hardship. If specific performance would cause a severe hardship to the parties, or to a third party, a court may refuse to order it.

employment contracts. A court will not, ordinarily, order specific performance of an employment contract, because being forced to work for someone else against the employee’s wishes would interfere too much with the employee’s personal freedom.

Question 27

What is the legal term for a remedy in which the court utilizes its jurisdiction to order an injunction for a stated period of time?

Answer 27

interlocutory injunction

Question 28

what is the test for remoteness

Answer 28

the damages could have been anticipated, having “arisen naturally” from the breach, or

the damages—although perhaps difficult to anticipate in the ordinary case—are reasonably foreseeable because the unusual circumstances were communicated to the defendant at the time the contract was being formed.

Any claim for damages in contract must pass one of the remoteness tests set out above; otherwise, it is simply not recoverable