Quiz 13 Flashcards
R2 351 Unforeseeability and related limitations on damages.
(1)Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made.
(2)Loss may be foreseeable as a probable result of a breach because it follows from the breach
(a)in the ordinary course of events, or
(b)as a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know.
(3)A court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation.
R2 352 Uncertainty as a limitation on damages.
Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.
R2 353 Loss Due to Emotional disturbance.
Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result.
356 Liquidated damages and penalties.
(1)Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.
(2) A term in a bond providing for an amount of money as a penalty for non-occurrence of the condition of the bond is unenforceable on grounds of public policy to the extent that the amount exceeds the loss caused by such non-occurrence.
R2 357 Availability of specific performance and injunction.
(1) Subject to the rules stated in §§ 359–69, specific performance of a contract duty will be granted in the discretion of the court against a party who has committed or is threatening to commit a breach of the duty.
R2 359 Effect of adequacy of damages.
(1) Specific performance or an injunction will not be ordered if damages would be adequate to protect the expectation interest of the injured party.
R2 360 Factors affecting adequacy of damages.
In determining whether the remedy in damages would be adequate, the following circumstances are significant:
(a)the difficulty of proving damages with reasonable certainty,
(b)the difficulty of procuring a suitable substitute performance by means of money awarded as damages, and
(c)the likelihood that an award of damages could not be collected.
R2 362 Effect of uncertainty of terms.
Specific performance or an injunction will not be granted unless the terms of the contract are sufficiently certain to provide a basis for an appropriate order.
R2 364 Effect of Unfairness.
(1) Specific performance or an injunction will be refused if such relief would be unfair because
(a) the contract was induced by mistake or by unfair practices,
(b) the relief would cause unreasonable hardship or loss to the party in breach or to third persons, or
(c) the exchange is grossly inadequate or the terms of the contract are otherwise unfair.
(2) Specific performance or an injunction will be granted in spite of a term of the agreement if denial of such relief would be unfair because it would cause unreasonable hardship or loss to the party seeking relief or to third persons.
R2 366 Effect of difficulty in enforcement of supervision.
A promise will not be specifically enforced if the character and magnitude of the performance would impose on the court burdens in enforcement or supervision that are disproportionate to the advantages to be gained from enforcement and to the harm to be suffered from its denial.
R2 367 Contracts for personal service or supervision.
(1) A promise to render personal service will not be specifically enforced.
(2) A promise to render personal service exclusively for one employer will not be enforced by an injunction against serving another if its probable result will be to compel a performance involving personal relations the enforced continuance of which is undesirable or will be to leave the employee without other reasonable means of making a living.
R2 373 Restitution when other party is in breach.
(1) Subject to the rule stated in Subsection (2), on a breach by non-performance that gives rise to a claim for damages for total breach or on a repudiation, the injured party is entitled to restitution for any benefit that he has conferred on the other party by way of part performance or reliance.
(2) The injured party has no right to restitution if he has performed all of his duties under the contract and no performance by the other party remains due other than payment of a definite sum of money for that performance.
R2 374 Restitution in favor of party in breach.
(1) Subject to the rule stated in Subsection (2), if a party justifiably refuses to perform on the ground that his remaining duties of performance have been discharged by the other party’s breach, the party in breach is entitled to restitution for any benefit that he has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach.
(2) To the extent that, under the manifested assent of the parties, a party’s performance is to be retained in the case of breach, that party is not entitled to restitution if the value of the performance as liquidated damages is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss.
