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contracts > Remedies > Flashcards

Remedies Flashcards

0
Q

Expectation Damages

A

Default award
an amount that restores party to position they would be
had the contract been fully performed.

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1
Q

Monetary Damages available at Common Law - Interests Protected

List

A

Expectation Interests

Reliance Interests

Restitutionary Interests

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2
Q

Calculation of Expectation Damages

A 
Loss of Value for Breach
\+
incidental and consequential costs from breach
-
Payments from breaching party
-
Costs saved from breach
=
Expectation Damages
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3
Q

Situations limiting the recovery of expectation damages

A
  1. cost of performance greatly exceeds the value of performance. Peevyhouse v. Garland Coal & Mining Co
  2. Cannot calculate ED with reasonable certainty - Lost profits new business.
  3. Unforeseeable damages
  4. mitigation of damages
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4
Q

Reliance Damages

A

Damages that restore party to position prior to contract.

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5
Q

Measure of Reliance Damages

A

Actual out of pocket expense in preparation or actual performance.
LESS
provable losses non-breaching party will suffer if fully performed.

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6
Q

Where Reliance Damages are available

A

If expectation damages not available

because they are uncertain or speculative.

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7
Q

Restitutionary Damage Interest

A

value of benefits conferred on the other party.

not benefits conferred on other parties.

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8
Q

Measure of Restitutionary Damages

A

Reasonable value of benefit conferred
OR
increased in value of property from the performance rendered.

Court may award either in its discretion and as justice requires

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9
Q

When will a party elect to recover Restitutionary damages

A

When it exceeds amount recoverable from expectation interest

such as the loss of a contract.

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10
Q

Limits on Restitutionary damages

A

available for partial performance

NOT if party has fully performed.

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11
Q

Liquidated Damages Clause

A

Parties can provide for damages in the event of a breach.

enforceable if provision is to compensate for breach
not a penalty or punishment for breach.

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12
Q

3 Prong Test for Liquidated Damages Provisions

A
  1. intend to act as liquidated damages provision or a penalty?
  2. reasonable at the time of contract relative to anticipated harm?
    Key - will anticipated harm be difficult to prove?
  3. reasonable in relation to harm Actually caused by breach?
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13
Q

LD provision passes anticipated harm prong,
but fails the actual harm prong.
What result?

Majority-Minority Rule

A

Majority - clause is enforceable, if not a penalty.

Minority will not enforce the clause and deem it a penalty.

A clause that is a penalty, is stricken.
damages recoverable will follow default rules of remedies/damages

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14
Q

sellers right to recover will depend, under the UCC, on…

A

Are goods are delivered and accepted

If so, sellers remedy is to the contract price.

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15
Q

Remedy for Seller
goods not delivered and accepted
because buyer has wrongfully rejected or repudiated.

A

Seller Resold:
damages = difference between selling price and contract price.

Not Resold
damages = difference between contract price and market price.

16
Q

Lost Volume Sellers - Defined

A

One whose supply of goods exceeds demand.

17
Q

Recovery available to Volume Seller

A

profit they would have made on lost sale.

18
Q

to recover lost profits a volume seller must show

A
  1. could make sale to both the breaching buyer and resale buyer.
  2. Would profit from both sales
  3. Would make additional sale regardless of buyers breach.
19
Q

Incidental Damages available to seller under the UCC

A

costs associated with getting stuck and trying to resell goods
LESS
expenses AVOIDED as a result of the breach.

regardless whether he actually resells the goods

20
Q

What determines availability of BUYERS remedies under the UCC.

A

Whether buyer has covered - purchased replacement goods.

buyer covered -
DAMAGES = COVER PRICE - CONTRACT PRICE

If not -
DAMAGES = COVER PRICE - MARKET PRICE

21
Q

additional damages a BUYER can recover under UCC

A

Incidental and consequential damages

Incidental damages = cost of securing cover

Consequential damages = peculiar costs to buyer because of a need or use for goods including lost profits.
Foreseeability REQUIRED

Damages are reduced by expenses avoided because of breach.

22
Q

Specific Performance

A

Extraordinary remedy where breaching party is ordered to perform. available where damages is considered inadequate.

available for unique objects, works of art, heirlooms, and real property.

not available in contract for services

23
Q

Equity Considerations for Specific Performance

A
  1. Aggrieved party’s clean hands?
  2. are terms fair?
  3. are they sufficiently definite?
  4. Can performance be reasonably assured.
  5. Is specific performance is in the public interest
24
Q

When is Specific Performance NOT available

A
  1. Personal services contracts

2. Contracts involving ongoing cooperation between the parties

25
Q

Specific Performance under the UCC

A

Liberalized Uniqueness Requirement -
SP for buyer who has adequately searched but cant find reasonable substitutes and is unable to cover sellers breach

Liberalized ‘capable of immediate performance’ -
SP allowed in output and requirements contracts involving ongoing relationships and cooperation.

26
Q

Negative Injunctions

A

party seeks to prohibit some particular action.

often found in the employment setting.

27
Q

Availability of Negative Injunction in a mid-term employment contract

A

available for a breach for departing prior to completion where

Services are Unique or extraordinary.

contractual provision establishing exclusive employment during the period will be implied by most courts

28
Q

Negative Injunction Factors in non compete agreements

A
  1. significant business justification for post employment restraint.
  2. Scope is reasonable in duration and geographical reach.
  3. is express provision in the contract. It WILL NOT be implied.
29
Q

Interests recoverable in promissory estoppel.

A
  1. Expectation damages
  2. Reliance Damages
  3. Courts may tailor remedy to the injustice at issue
30
Q

Recovery of Benefits conferred under a failed contract

A

restitution damages if contract failed, short of breach,

for value of benefits conferred.

31
Q

General Rule - person conferring benefits without request

A

officious intermeddler - no recovery because no opportunity to decline

Doctors and healthcare providers are excepted when providing emergency medical care

32
Q

Factors:

restitution for benefits conferred by mistake

A
  1. Blameworthiness of the error
  2. Was recipient was aware of error in time to prevent it.
  3. Did recipient avail himself of benefits at issue.
33
Q

Agreed to Remedies - List 2

A

Liquidation Damages

Provisions limiting or excluding damages

34
Q

Types of exclusive remedy provisions

A
  1. Provisions that limit the measure of damages available
  2. Provide exclusive remedies - to repair or replace goods

Provisions are enforceable unless unconsionable or
fail their essential purpose.

Provisions purporting to limit consequential damages for personal injury are prima facie unconsionable.

35
Q

Categories where specific performance is available

A

Unique objects

Real property

36
Q

Situations where specific performance is not available

A

Personal services contract

Contracts requiring ongoing cooperation

37
Q

Restitution damages a breaching party is entitled to

A

value of the benefits conferred

less offset for damages caused by breach

38
Q

Limits on consequential damages for personal injury on consumer goods are…

A

Prima facie unconscionable

contracts (8 decks)

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