General Info Flashcards
(1) Is there an enforceable contract (2) If so, what are the terms and obligations (3) Has anyone breached (4) What remedies / recourse is available?
Define Contracts
legally enforceable promises
Three elements that form a K
Offer, Acceptance, Consideration
Specific Performance
Order the parties perform the contract
Expectation Damages
Put non- breaching party in the position they would expect to be in had the breaching party performed
Reliance Damages
Put non-breaching party in position they were in immediately before they entered into contract
Restitution Damages
Make breaching party return the value of benefits they received (as if a contract were never made)
Expectation Damages can be measured either by
Cost of Completion or Diminution of market value
Why are expectation damages typically the largest awarded?
The damages are typically going to be larger if we are putting someone in the position as if the contract was completed.
Three Limitations on Recoverable Damages
foreseeability certainty avoidability
Courts uphold liquidated damage clauses when
They are not penalty clauses.
Policy Arguments for Specific Performance
Where goods, land, or personal services are unique, we have no way to compensate the person adequately with monetary damages.
Recision (Definition)
Cancellation of a K
When can recession be used ?
What are the reasons that a party may ask for restitution in a K breach?
Expectation damages are unforeseeable, Restitution is the greatest amount of damages available
Three types of specific performance
land, goods, personal services
Quasi-Contracts
Implied K that allows for one party to be compensated by the other if the judge sees fit
Unjust Enrichment
A party profiting from wrongdoing or
one party confers a benefit onto another and receives nothing in return.
Tacit Agreement Test
Requires the ∆ was given notice of special circumstances and assented to bearing the risk of those damages
Tacit Agreement Test Validity
Minority Rule; Rejected Almost everywhere & by UCC (but not Arkansas, see Morrow)
Damages are foreseeable if
they follow from the breach (a) in the ordinary course of events or (b) as a result of special circumstances that the breacher had reasons to know §351
Default Rule on Attorney’s Fee
Not recoverable
Proves lost profits with reasonable certainty
testimony of experts, analysis of similar/comparable, market price
Avoidability Doctrine / Duty to Mitigate
Rest. 350 requires reasonable efforts to mitigate [Luten bridge]
Ads are
are usually not offers (Harsh, but see Lefkowitz)
policy considerations in Contract Law.
Economic Efficiency, Retributive Justice, Corrective Justice, Distributive Justice
* Policy is important, especially if the law is unclear or conflicting, but not a free pass to ignore the rules.
NGUYEN V. BARNES AND NOBLE
Courts will apply the Embry Case in ECommerce Contracts
What are the questions you ask when you approach an Issue Spotter?
A. This a sale of goods
—> UCC only (unless silent, then go to restatement/ common law)
B. This is another type of K
(1) Is there an enforceable contract
(2) If so, what are the terms and obligations
(3) Has anyone breached
(4) What remedies / recourse is available?
What do you do with mixed contracts (bits like a good bits like personal service?)
What is the thing at issue primarily concerned with
Is the issue about the goods or about the persons services.
Case: J.O. Hooker & Sons [Cabinets]
