If there was inexcusable non-performance, what are the non-breaching party's remedies?

Question 1

Breach

Answer 1

any deviation from promised performance, no matter how slight

Question 2

How does a party repudiate?

Answer 2

Unambiguous indication that breach will result when it becomes time to perform

Question 3

When is retraction of repudiation allowed?

Answer 3

Until contract is due or

Until is relied upon

Question 4

Effect of retraction of repudiation

Answer 4

Reimposes duty to perform

Question 5

Types of nonmonetary remedies

Answer 5

1. Specific performance
2. Reformation
3. Reclamation (UCC)

Question 6

Specific performance

Answer 6

Courts force parties to complete contract

Question 7

What kind of remedy is specific performance?

Answer 7

Equitable

Question 8

What must be proven for specific performance to be used?

Answer 8

1. Legal remedy is inadequate
2. Courts will not be unduly burdens by enforcement of specific performance
3. Contract must be certain and definite

Question 9

Can specific performance be used in land sales?

Answer 9

Yes, often will be

Question 10

Can specific performance be used in sale of goods?

Answer 10

Not usually

Question 11

When can specific performance be used in a sale of goods?

Answer 11

Goods are unique or no cover contract is available

Question 12

Can specific performance be used in personal services contracts?

Answer 12

No, violates 13th amendment and difficult burden for courts to enforce

Question 13

Reformation

Answer 13

court will change/rewrite a contract so it says what parties thought it said

Question 14

Uses of reformation

Answer 14

1. Issues in writing (clerical errors, omissions)

2. Fraudulent misrepresentation about what was in contract upon which seller relied

Question 15

Reclamation

Answer 15

right of unpaid seller to get her goods back (UCC)

Question 16

Elements of reclamation

Answer 16

1. credit sale
2. buyer insolvent at time of delivery
3. seller must demand goods back within 10 days of delivery
4. buyer must still be in possession of goods

Question 17

What damage is available when buyer has goods and buyer breaches? Measured?

Answer 17

Reclamation
Damages for defective goods
= contract price plus incidental damages minus expenses saved because of breach

Question 18

What damages are available when buyer has goods and seller breaches? Measured?

Answer 18

Reclamation
Damages for repudiation, wrongful rejection/revocation
= value of promised goods minus value of accepted goods plus incidental and consequential damages

Question 19

What are damages for lost volume seller?

Answer 19

Profit

Question 20

What are damages for specialized goods?

Answer 20

Contract price

Question 21

Types of monetary damages

Answer 21

1. UCC (seller has goods)
2. Expectation
3. Reliance
4. Nominal
5. Liquidated
6. Restitution

Question 22

UCC damages when seller has goods and seller breaches

Answer 22

1. Buyer covers: cover price minus contract price plus incidental and consequential damages minus expenses saved because of breach
2. Buyer doesn’t cover: market value minus value of accepted goods plus incidental and consequential damages
3. Equitable relief: specific performance for unique goods only

Question 23

When is equitable relief available for seller with goods, and seller breaches?

Answer 23

Specific performance for unique goods only

Question 24

Expectation damages

Answer 24

Put aggrieved party in position if contract had been performed

Question 25

Expectation damages equation

Answer 25

= loss in value of bargain expected + other incidental/consequential loss - loss avoided in not performing contract

Question 26

What three factors are necessary for expectation damages?

Answer 26

1. Reasonably certain 2. Foreseeable 3. Unavoidable

Question 27

New business's expectation damages (traditional/minority view)

Answer 27

Lost profits not recoverable

Question 28

New business' expectation damages (majority view)

Answer 28

Lost profits recoverable if proved with reasonable certainty

Question 29

Incidental

Answer 29

Naturally arising = damages incurred in ascertaining and trying to prevent breach

Question 30

What do incidental damages never include?

Answer 30

Attorney's fees

Question 31

What is required to recover consequential damages?

Answer 31

Damages were made foreseeable/known at time of contracting

Question 32

Unavoidable

Answer 32

Duty to mitigate = damages are not collectable if could have been avoided without undue burden, risk or humiliation

Question 33

Reliance damages

Answer 33

reimbursing for detriment incurred before contract was made

Question 34

When are reliance damages used?

Answer 34

1. Expectation measure is uncertain/speculative | 2. Promissory estoppel (gift promise)

Question 35

When are punitive damages allowed?

Answer 35

Only when conduct constituting breach is also a tort for which punitive damages are recoverable

Question 36

Are punitive damages capped?

Answer 36

Yes, generally capped at single digit ratio

Question 37

When are nominal damages used?

Answer 37

Definite breach caused uncertain or minimal economic loss

Question 38

Liquidated damages

Answer 38

Parties remedy themselves in contract

Question 39

When are liquidated damages not enforced?

Answer 39

When it's actually a penalty

Question 40

Test for whether clause is for liquidated damages (not penalty)

Answer 40

1. Reasonable forecast of just compensation in light of anticipated or actual loss 2. For harm that is difficult to measure

Question 41

Restitution

Answer 41

quasi-contractual relief/quantum meruit

Question 42

What is the purpose of restitution?

Answer 42

Prevents unjust relief

Question 43

Elements of restitution

Answer 43

1. Benefit conferred upon other party (not detrimental reliance) 2. At express/implied request of party receiving benefit 3. With reasonable expectation of compensation 4. Where unjust enrichment results (core element)

Question 44

What is the core element of restitution?

Answer 44

Unjust enrichment results

Question 45

How is restitution measured?

Answer 45

Value of benefit conferred = value saved by not having to perform

Question 46

UCC damages when seller has goods and buyer breaches

Answer 46

1. If resold by seller: contract minus resale price plus incidental damages minus expenses saved because of breach 2. If not resold by seller: contract price minus market value plus incidental damages minus expense saved because of breach 3. Lost volume seller: lost profits because of breach plus incidental damages minus expenses saved because of breach 4. Specialized goods: contract price