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Contracts-FL > Claims and Damages > Flashcards

Claims and Damages Flashcards

1
Q

What article of the UCC covers goods?

A

Article 2

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2
Q

How is the governing law determined when a contract contains both goods and services?

A

Courts in Florida will look to the predominant aspect of the contract to decide what law governs.

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3
Q

Under Article 2, when is specific performance available to a buyer?

A

It is available when the parties contract for a unique good and the seller fails to deliver the goods.

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4
Q

What does formation of a contract require?

A

An offer, acceptance, consideration, and no defenses.

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5
Q

What is an offer?

A

Offer is an expression of a promise, undertaking, or commitment to enter into a contract on a definite and certain terms that are communicated to the offeree.

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6
Q

What is acceptance?

A

Manifestation of assent to the terms of an offer.

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7
Q

What is consideration?

A

Bargained for exchange between the parties that constitutes a benefit to the promisor or detriment to the promisee.

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8
Q

What claim can a party raise if a good is not of the nature and quality that the Seller represented?

A

Breach of Express Warranty

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9
Q

How do you establish Breach of Express Warranty?

A

Under Article 2, a seller breaches this warranty by delivering goods that do not conform to the parties’ contract.

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10
Q

What damages can a party seek for breach of an express warranty?

A

A party can seek damage measured by the difference between the value of the goods delivered and the value the goods would have if they were provided as warranted.

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11
Q

When does an express warranty arise?

A

An express warranty arises out of any affirmation of fact or promise made by the Seller to the Buyer, any description of the goods, or any sample or model, if the promise, description or sample is part of the basis of the bargain.

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12
Q

Does a buyer need to prove that they actually relied upon an express warranty?

A

No - the warranty need only come at such a time that the buyer could have relied upon it when entering into a contract.

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13
Q

When does a latent ambiguity occur?

A

When the expression of the parties’ agreement appears perfectly clear at the time the contract is formed but because of subsequently discovered facts, the expression may be reasonably interpreted in different ways.

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14
Q

What occurs if both or neither party was aware o f the latent ambiguity?

A

No contract is formed unless both parties happen to intend the same meaning.

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15
Q

What occurs if only one party is aware of the ambiguity?

A

A contract will be enforced according to the intention of the party who was unaware.

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16
Q

Can rescission be sought for an innocent misrepresentation?

A

Yes

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17
Q

Can rescission be bought for a fraudulent misrepresentation?

A

Yes

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18
Q

When is a fraudulent misrepresentation?

A

When a party to a contract asserts information that they know to be untrue.

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19
Q

What is the effect of a fraudulent misrepresentation?

A

A contract is voidable by the innocent party who justifiably relief on the misrpresentaiton.

20
Q

What is the effect of a innocent misrepresentaiton?

A

A contract is voidable by the innocent party if she justifiable relied on the misrepresentation and the misrepresentation was material.

21
Q

What is a material misrepresentation?

A

A misrepresentation is material if:

(i) the information asserted would induce a reasonable person to agree; and
(ii) the maker of the misrepresentation knew the information would cause the particular person to agree.

22
Q

What is the perfect tender rule?

A

A buyer has the right to reject goods in a single delivery contract for any failure to comply with the terms of the contract.

23
Q

If tender is not perfect, up until when does the seller have a right to cure?

A

Up to the time performance is due.

24
Q

Can a buyer reject goods after accepting them?

A

Generally not.

25
Q

When is a buyer found to have accepted goods?

A

(i) indicating acceptance to seller
(ii) fails to reject them after a reasonable time
(iii) takes an act which is inconsistent with the Seller’s ownership

26
Q

Under the UCC, can parties modify a contract without consideration ?

A

Yes so long as the modification is made in good faith.

27
Q

If someone breaches a contract to deliver a good, what claims can you consider?

A

1) Breach of Contract
2) Specific Performance (unique goods)
3) Rescission
4) Misrepresentation
5) Breach of Express Warranty

28
Q

What are compensatory damages?

A

Direct losses and costs sustained, incidental damages (costs incurred to receive alternative performance)
MINUS
avoided losses

29
Q

What are punitive damages?

A

Rarely awarded - typically only if the breach is a tort and in some instances bad faith settlement.

30
Q

What are consequential damages?

A

Foreseeable damages resulting from consequences of a breach, i.e. lost profits on items intended for resale.

31
Q

What are nominal damages?

A

Technical injury or wrongdoing where no actual loss is sustained.

32
Q

What are liquidated damages?

A

Contractually agreed upon amounts to be paid in compensation (not a penalty) for breach if actual damages are difficult to estate.

33
Q

What is the measure of damages if Buyer does not receive goods from Seller?

A

Fair Market Value of Goods - K Price
or
Cover Price - K Price

Consequential Damages

34
Q

What is the measure of damages if Buyer receives non-conforming goods?

A

Reject in whole or part and sue for breach

Accept and sue on warranty to recover the difference in value

Consequential Damages

35
Q

What is replevin?

A

Recover specific good if paid for

36
Q

Incidental Damages

A

Cost of arranging a substitute transaction or caring for goods with respect to a breach that has occurred.

37
Q

True or False: Buyer can get rescission for non delivery or rejection of goods?

A

True

38
Q

When is specific performance available?

A

1) Unique goods
2) Inability to cover the good or work
3) Requirements or Output K - Inability to get long-term supply

39
Q

What are Seller’s remedies if Buyer accepted the good?

A

Unpaid contract price

40
Q

What are Seller’s options if Buyer repudiates before delivery?

A

1) K price - Market price
2) Resale Price: K price - resale price
3) Unique Goods - K price
4) If goods in transit, can stop delivery
5) Goods unfinished - can resell
6) Lost volume seller Lost Profit - K price - cost to Seller

41
Q

When is rescission available to Seller?

A

Non payment or repudiation of contract - cancel and sue for breach

42
Q

What are Buyer’s remedies for legal damages due to the sale of land and Seller’s breach?

A

Expectation Damages
Market price - K Price

or Reliance Damages

+ Consequential
+ Incidental

43
Q

What are Seller’s remedies for legal damages due to the sale of land and Buyer’s breach?

A

Expectation damages: K price - Market price

+ Consequential
+ Incidental

44
Q

With respect to Land, if Seller breaches, can the buyer recover the down payment?

A

Yes

45
Q

Is specific performance available for land?

A

Yes because it is unique.

Damages would be in adequate.

46
Q

If there is wrongful dismissal of an employee, can punitive damages be requested?

A

Yes because that is a tort

Contracts-FL (2 decks)

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