Chapter Eleven - Remedies Flashcards
Cover
Good faith, reasonable effort to obtain goods from another source
Substituted Performance
Use of commercially reasonable substitute facility (code 2-614)
Alternative Dispute Resolution
To settle a dispute other than by litigation, including arbitration and mediation; called ADR
Mediation
Neutral helps parties understand each others’ positions and may suggest solutions, but agreement ultimately comes form the parties
Neutral
A third party in ADR, mediator or arbitrator
Arbitration
A neutral hears both positions and imposes a decision
Court-annexed ADR
Use of the court system’s own mediators or arbitrators before going to trial
Binding Arbitraiton
Parties give up the right to challenge arbitration result in court
Jurisdition
Area within which judicial authority may be exercised
Choice of Law
Contracts language that defines which state’s law will apply in case of litigation
Parallel Litigation
Single dispute results in cases in more than one state or in both states and federal courts
Notice of Claims Provision
Contract language requiring one party to give the other party written notice a specified time before filing suit
Discovery
Pretrial investigation of facts by questioning, inspection, and so on
E-discovery
Electronic recovery of e-mail and documents from computers, servers, and handheld PDAs
Legal Remedy
Award of money; also called damages
Damages
Award of money; also called legal remedy
Case at Law
A case requesting damages (money)
Equitable Remedy
Award that is nonmonetary and involves court orders
Case in Equity
Courts can issue orders based on fairness
Chancery
A chancery court can order acts performed
Election of Remedies
Injured party’s choice between remedies available for a single actionable occurrence
Compensatory Damages
Damages intended to put nonbreaching parties in the position they would have occupied if the contract had been fully performed; also called expectation damages
Expectation Damages
Damages intended to put nonbreaching parties in the position they would have occupied if the contract had been fully performed; also called compensatory damages
Incidental Damages
Losses reasonably associated with or related to actual damages; indirect damages
Costs Avoided
Expenses nonbreaching party will not incure
Consequential Damages
Losses that do not flow directly and immediately from an injurious act
Foreseeable
That which is reasonable person would anticipate
Special Damages
Losses that do not flow directly and immediately from an injurious act but are indirect; also called consequential damages
Reliance Damages
Damages awarded for losses incurred by plaintiff in reliance on the contract; puts party in position that would have been occupied if the contract had not been made
Present Worth Doctrine
The value in “today’s money,” of payments to be made in the future
Liquidated Damages
Damages agreed to in advance of breach, in the contract itself
Nominal Damages
Minimal amount of damages awarded, even if no financial loss resulted from the breach or if the loss cannot be proven with reasonable certainty
Costs
Examples include filing fees, fees for service of process and similar charges incurred in litigation
Attorney’s Fees
Payment to attorney for services
Fee Recovery or Fee Reversal
An award of attorney’s fees
Mitigation of Damages
An attempt to reduce the harm
Laches
Injured party delays in seeking remedy in a way that is unfair to the other party
Specific Performance
Court order requiring a party to perform contract obligations
Unique Property
An item that is not readily available from other sources
Injunction
Court order requiring or prohibiting specific actions
Restitution
To return property or its value
Replevin
Recovery of property from one who is wrongfully in possession
Reformation
Rewriting contact; also called blue-penciling
Privity
The relationship between the parties to the contract
Strict Liability
Liability regardless of fault
Franchise
Contract granting the right to operate under a brand name
