Enforcing the Deal Flashcards
Specific Performance
Proper if:
(1) money damages inadequate;
(2) subject matter is unique (no established market value)
(3) CL -> not for personal service
Liquidated Damages
Proper where:
(1) difficult to ascertain actual damages
(2) liquidated amount = reasonable forecast of likely damages
Limitation of remedies (UCC)
(1) parties may limit recoverable damages
(2) if exclusive/limited remedy fails for essential purpose, normal damages apply
(3) consequential damages may be limited or excluded unless unconscionable
Expectation Interest (Common Law)
(loss in value + any other loss) - loss avoided
Construction => Expectation Interest (Common Law)
defective/unfinished construction AND loss of value not proved with certainty = recover damages by cost to complete/fix
Buyer’s Remedies (UCC)
buyer may cancel and recover price paid &
(1) cover OR
(2) recover damages
Cover = Buyer’s Remedies (UCC)
good faith & w/o delay makes purchase for substitute
- recover as damages difference b/w “cover” and K price
Damages = Buyer’s Remedies (UCC)
difference b/w market price & K price \+ incidental/consequential damages - expenses saved
Seller’s Remedies (UCC)
if breach seller may withhold OR stop delivery
Seller’s Resale (UCC)
may resale if good faith & commercially reasonable
- difference b/w resale & K price
- with any incidental damages
- less mitigated damages
Must give notice to buyer
Damages for Repudiation (Seller) (UCC)
difference b/w market & K price
with any incidental damages - mitigated savings
if damages not enough = damages can be expected profit
Does the seller get consequential damages?
No, only the buyer gets consequential damages
Avoidable Cost (Common Law)
breach can result in saving a loss
- cost avoided is subtracted from loss in value
Avoidable Loss (Mitigation) (Common Law)
damages not loss that could’ve been avoided without undue risk, burden, humiliation
- not precluded if made reasonable but unsuccessful efforts
Foreseeability (Damages)
(1) damages received should be fairly and reasonably considered
(2) arising natural from due course, OR
(3) reasonably in contemplation of both parties
Certainty (Damages)
P seeking damages has burden of proof & must present basis for ascertaining
Reliance Interest (Common Law)
any loss injured party would’ve suffered if K had been performed
Right t damages based on reliance
(1) expenditures made; LESS
(2) amount breaching party can prove injured party would’ve suffered had K been performed
Restitution Interest (Common Law)
(1) reasonable value of what was received, OR
(2) extent to other party’s increase value
Restitution Interest in Breach (Common Law)
entitled to restitution for any benefit conferred
- no right if performed all duties & no performance remains other than payment
