Final - Remedies

Question 1

Anticipatory Repudiation (Anticipatory Breach)

1. How can it occur?
2. What does it mean?

Answer 1

1. Can be express or implied by conduct

2. Was performance still available? Then not yet a Breach

Question 2

When is an express or implied Act a Repudiation?

Answer 2

a. [EXPRESSS] = a statement by the obligor to the obligee indicating that the he will commit a breach that would of itself give the other a claim for damages for total breach
b. [IMPLIED] = a voluntary affirmative act which renders the him unable or apparently unable to perform without such a breach

Question 3

Adequate Assurance of Performance - R(2) § 251
1. When a Failure to Give Assurance May Be
Treated as a Repudiation

Answer 3

a. (1) Where reasonable grounds arise to believe that there will be a breach by non-performance
- the obligee may demand adequate assurance of due performance and MAY SUSPEND any performance for which he has not already received the agreed exchange until he receives such assurance.

b. (2) May Treat as a Repudiation the failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances

Question 4

Default measure of damages?

Answer 4

Expectation Damages

Question 5

Result of Expectation Damages is to …

Answer 5

Leave the Non-breaching party in the same position as if the contract was performed

Question 6

Three kinds of damages

Answer 6

1. Expectation
2. Reliance
3. Restitution

Question 7

Reliance damages do what?

Answer 7

Return to position before breach began (starting point)

Question 8

Restitution damages makes the breaching party

Answer 8

Disgorge the value the non-breaching party bestowed on the breaching party b/c of promise (return what has been paid so far)

Question 9

3 ways to Limit Expectation Damages

Answer 9

1. Foreseeability
2. Certainty
3. Avoidability ~ Mitigation

Question 10

Limit on damages that were Reasonably Foreseeable

** at the time the Contract was formed * *

Answer 10

i) Loss - reasonably foreseeable as a probable result of the breach because it follows from the ordinary course of events, or as a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know.

ii) The more the breaching party knows, the more it is foreseeable
iii) specifically show that breacher knew

Not recoverable for loss that the breacher did not have reason to foresee as a probable result of the breach

Question 11

Avoidability / Mitigation - damages recoverable only if …

Answer 11

loss could not reasonably be prevented by cover or otherwise

a. Not an actual Duty but reasonably prevented
b. BUT they must not pile up unnecessary damaged - EX: finishing a bridge

Question 12

Aviodbility / Mitigatiom - Generally - you can’t recover damages that you could have avoided w/o undue:

Answer 12

1) Risk
2) Burden
3) Humiliation

Question 13

Emotional Distress - generally you do NOT get it unless..

Answer 13

a. Caused bodily harm

b. ED was a particularly Likely result

Question 14

Equitable Relief - Specific Performance

- Only b/c Exceptional Circumstances to give equitable relief instead of Monetary Damages

Answer 14

2 Step Analysis:

1. Whether damages will work if money $$ works ~ then you will NOT get equitable performance
2. If not, Discrimination of judge

Question 15

3 times Money won’t work, Equitable Performance and will be used

Answer 15

1) Unfair / grossly inadequate - the difficulty of proving damages with reasonable certainty
2) Difficulty enforcing or court supervision required
3) The likelihood that an award of damages could not be collected