Mitigating Doctrines 2 Flashcards
Restatement 241- Circumstances Significant in Determining Whether a Failure is Material
In determining whether a failure to render or to offer performance is material, the following circumstances are significant:
a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;
b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;
d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;
e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.
How to measure damages for something that is:
1) trivial and innocent
2) intentional occurrence
1) diminished value for innocent and trivial occurrences
2) cost to repair for intentional occurrences
Do the specifics of a contract need to be in strict compliance?
No, as long as the “essence” f the contract is fulfilled and the contract does not require strict compliance than fulfilling the essence will work.
Does the doctrine of specific performance work for implied and express conditions?
No, it only applies for implied or constructive conditions and not for express conditions.
What is the Perfect Tender Rule?
UCC 2-601
Buyers Rights on Improper Delivery
If the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may:
a) reject the whole; or
b) accept the whole; or
c) accept any commercial unit or units and reject the rest.
What does substantial performance and the perfect tender rule apply to?
Substantial Performance- common law
Perfect Tender Rule - UCC
UCC 2-508- Cure by Seller of Improper Tender or Delivery
(1) Where any tender or delivery by the seller is rejected because non-conforming and the time for performance has not yet expired, the seller may seasonably notify the buyer of his intention to cure and may then within the contract time make a conforming delivery. (2) Where the buyer rejects a non-conforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowance the seller may if he seasonably notifies the buyer have a further reasonable time to substitute a conforming tender.
Define: Severable or Divisible Contract
If the part to be performed by one party consists of several and distinct items, and the price to be paid by the other is (1) apportioned to each item to be performed, or (2) is left to be implied by law, such a contract will generally be held to be severable.
Define: Entire Contract
Consideration to be paid is single and entire the contract must be held to be entire although the subject of the contract may consist of several distinct and wholly independent items.
Does the court assume the contract to be entire or severable?
If the parties do not indicate within the contract whether it is entire or a severable contract, then the contract will be assumed to be entire.
RS 240- Part Performance as Agreed Equivalents
If the performances to be exchange under an exchange of promises can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents, a party’s performance of his part of such a pair has the same effect on the other’s duties to render performance of the agreed equivalent as it would have if only that pair of performances had been promised.
