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Contracts > Remedies > Flashcards

Remedies Flashcards

1
Q

Remedies - Gral

A
  • Needs to be specified by P on complaint
  • Most of them can be pleaded alternatively (not exclusive) - Types MRS DAISI
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2
Q

Remedies -MRS DAISI

A
  • Money dx
  • 4R’s
  • Specific Performance
  • Declaratory Judgment
  • Injunction
  • SOL
  • In quasi contract
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3
Q

Remedies - MRS DAISI -Money DX - Possible Categories (7)

A

1) Liquidated,
2) Compensatory or expectation,
3) reliance interests,
4) punitive,
5) emo distress,
6) nominal,
7) Interest award

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4
Q

Remedies - MRS DAISI - Money Dx - Recovery Limitations

A
  • Established in contract +
  • w/ foreseeable objective standard +
  • Reasonable to the amount of actual loss and that dx that would have been avoided but for breach (i.e. loss of profits for new business)
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5
Q

Remedies - MRS DAISI - Money Dx - DX Limitations

A
  • By contract - UCC prohibits limitation that fails essential purpose of contract
  • UCC allows seller to retain deposit and offset dx and exceptionally use 20% or $500 as liquidated dx
  • UCC limitation allows unless deemed unconscionable (i.e. limit to personal injury on consumer goods contracts)
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6
Q

Remedies - MRS DAISI - Money DX - Liquidated Dx

A
  • Defined by contract for future breach
  • Enforceable when amount is reasonable forecast to actual dx
  • Not only source of recovery - other dx also possible to recover
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7
Q

Remedies - MRS DAISI - Money DX - Liquidated Dx - Effect of deemed penalty

A
  • If too large can be deemed as penalty
    • court disregards and allow for recovery of actual dx
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8
Q

Remedies -MRS DAISI - Money DX - Compensatory or Expectation Dx - Concept

A
  • Compensatory: sufficient in amount to indemnify injured person for loss suffered
  • Expectation: compensation for the loss of person reasonable expectation of transaction not completed -
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9
Q

Remedies -MRS DAISI - Money DX - Compensatory or Expectation Dx - Gral application

A
  • gral: as default when liquidated deemed punitive
  • Not allowed when too speculative (i.e. when there is no previous experience on a specific tpe of business)
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10
Q

Remedies - MRS DAISI - Money DX - Compensatory or Expectation Dx - specific application - Torts

A

Dx as Victim back to same position pre-tort

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11
Q

Remedies - MRS DAISI - Money DX - Compensatory or Expectation Dx - specific application - Contracts

A

Dx as Benefit of the bargain

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12
Q

Remedies - MRS DAISI - Money DX - Compensatory or Expectation Dx - specific application - Special Contractor Rules for Owner / Contractor Breach

A
  • When owner breach: contractor entitled to full price of contract (expected profit) less costs of necessary components incurred to complete project
  • Contractor’s breach: owner collect’s difference btwn price and cost of hiring another / Paid amounts deemed as credit / Possible quasi contract as ground for recovery
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13
Q

Remedies - MRS DAISI - Money DX - Compensatory or Expectation Dx - specific application - Special Contractor Rules for Substantial and defective performance

A
  • Substantial performance: if defects minor and no bad faith possible proportional reduction of price by owner
  • Defective performance: owner collects costs to correct UNLESS showing by contractor cost is disproportionate to actual loss value caused by defect
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14
Q

Remedies - MRS DAISI - Money DX - Reliance Interest

A

Failure to MOULS OR extreme promissory estoppel.

  • DX to return party to pre-promise financial position
  • Recovery of “out of pocket” expenses when compensatory dx fail to provide the benefit of the bargain
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15
Q

Remedies - MRS DAISI - Money DX - Punitive Dx

A

Most jdx dont award them UNLESS authorized by statute (i..e for consumer protection)

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16
Q

Remedies - MRS DAISI - Money DX - Emotional distress

A

Not allowed UNLESS foreseeable to D that serious physical or emotional injury from breach

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17
Q

Remedies - MRS DAISI - Money DX - Nominal Dx

A

When breach has occurred but D cant or dont have to prove actual dx

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18
Q

Remedies - MRS DAISI - Money DX - Interest Award

A

????????

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19
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Seller

A

1) Right to cure if buyer rejects tender of goods
2) Seller stop transit and demand COD for future when buyer’s breach
3) Incidental dx related to avoiding loss, i.e. storage, insurance
4) Goods in Production can be sold as scrap or completed
5) Lost Profit
6) For buyer’s insolvency

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20
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Seller - Basic Dx measure

A
  • Measure of dx: difference btwn contract price and market price at time of tender OR price at time of resale
  • If resale of good, it has to be commercially reasonable and buyer must be notified / BFP takes free and clear
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21
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Seller - Lost Profit Remedy

A
  • Net amount seller would have realized buyer has not breached PLUS reasonable overhead
  • For sellers who routinely sell the same good at the same price
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22
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Seller - Buyer’s Insolvency

A
  • When seller discovers it he can stop/reuse delivery except for cash
  • Also can reclaim goods bought on credit but looses right to recover any dx
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23
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Gral

A
  • When seller fails to deliver/non-deliver/delivers late
  • Buyer can reject or accept all/portion bc of perfect tender rule - Buyer must have reasonable inspection right before accepting/paying - if rejects price can be recovered
  • Mx Remedies: CICS + Market price remedy + Repudiation remedy
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24
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Rejection and Implied Acceptance

A
  • Rejection has to be effective if not implied acceptance
  • Implied acceptance also if buyer re-sells goods
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25
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - CICS

A
  • Cover by purchase of substitute goods
  • Incidental Dx
  • Consequential Dx
  • Specific Performance when CIT (cover impossible from other source, ID in th econtract and not yet transfer to BFP)
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26
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - CICS - Cover by purchase of substitute goods (Cover Dx)

A
  • Buyer purchaser equivalent goods on reasonable price to satisfy his requirement
  • Dx amount = difference btwn contract price and cover market price at time buyer LEARNS from breach
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27
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - CICS -Incidental Dx

A

Buyer mitigation costs from breach - i.e cost for care of rejected goods

28
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - CICS -Consequential Dx

A
  • aka “expectancy interest”
  • Loss of economic advantage obtained have the contract not been breached
29
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Market Price Remedy

A
  • When buyer cant cover
  • Dx = difference btwn market price and contract price at time buyer LEARNS from breach [?????]
30
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Repudiation???

A

??????

31
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Specific Performance - Gral

A
  • Allowed by UCC only on specific circumstances CIT
  • Also when goods are unique AND/OR in “any other proper circumstances”
32
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Specific Performance - CIT conditions

A
  • Cover is impossible from other sources
  • Identification of good in contract was particular - Transfer to BFP not yet occurred
33
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Rejection - Gral

A
  • Rejection of tender for non-conforming goods
  • Within reasonable time
  • Must notify seller with details of non-conformity in order to give seller opp to cure - If unjustified buyer looses right to further reject or claim breach
34
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Rejection - Effect

A

Buyer has the option to reject all or part of good without loosing other possible remedies

35
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Revocation of acceptance

A
  • When discover substantial hidden effect post acceptance - Justifies rejection under perfect tender rule
36
Q

Remedies - MRS DAISI - Money DX - UCC Remedies for Buyer - Revocation of acceptance - Effective date

A

When notified to seller

  • within reasonable time after discovery + before substantial change in the conditions of goods
37
Q

Remedies - MRS DAISI - Money DX - UCC Remedies - Damage Mitigation Duty - Gral

A
  • For non-breaching party
  • To mitigate/minimize reasonably avoidable dx, losses, cover costs
38
Q

Remedies - MRS DAISI - Money DX - UCC Remedies - Damage Mitigation Duty - Duty for seller

A
  • When buyer’s breach
  • Resale has to be commercially reasonable + at highest possible price
39
Q

Remedies - MRS DAISI - Money DX - UCC Remedies - Damage Mitigation Duty - Duties for buyer (4 situations) when seller breaches and buyer rejects

A

1) Non-merchant buyer: notify seller + held w/reasonable care
2) Merchant buyer: notifiy seller + follow insructions ofr care/return
- if perishable or no instructions, make best effort to sell them on seller’s account

40
Q

Remedies - MRS DAISI - Money DX - UCC Remedies - Damage Mitigation Duty - Duties for buyer - Sale rules

A
  • On account of seller when perishable or no instruction for care/return from seller
  • Price of mitigation + expenses + 10% commission on gross proceeding = credit against seller for any prior payment
41
Q

Remedies - MRS DAISI - Money DX - UCC Remedies - Damage Mitigation Duty - Duty for buyer - Security Interests Rule in case of sale

A
  • If buyer has previous SI on seller for previous obligation
  • Charges w/priority on proceeds from sale
42
Q

Remedies - MRS DAISI - 4 R’s

A
  • Used when dx are too speculative to define OR don’t resolve dispute OR don’t adequately measure detriment
    1) Rescission
    2) Reformation
    3) Replevin of stolen goods
    4) Restitution
43
Q

Remedies - MRS DAISI - 4 R’s - Rescission - Gral

A
  • aka “complete undoing”
  • Brings parties back to position pre-contract
44
Q

Remedies - MRS DAISI - 4 R’s - Rescission - Application

A
  • Formation defects
  • Mutual mistake
  • Fraud in the inducement
  • Excusable non-performance
45
Q

Remedies - MRS DAISI - 4 R’s - Reformation

A
  • aka change of contract
  • Court ordered to conform w/parties original intent
  • Affect only mistaken or offensive part of contract
46
Q

Remedies - MRS DAISI - 4 R’s - Restitution ??????

A
  • 2 types: 1) Value to D: 2) Economic crime:
47
Q

Remedies - MRS DAISI - 4 R’s - Replevin of stolen goods

A
  • Action to recover possession of goods unlawfully taken from true owner
  • Bond might be required to indemnify officer who recover or to cover costs for custody
48
Q

Remedies - MRS DAISI - Specific Performance - gral

A
  • Disliked by courts / Can be ordered to complete performance under risk of contempt
  • Available when: dx are Inadequate OR subject of contract is unique (i.e. painting)
  • UCC: CIT reqs (cover impossible + ID to contract w/particularity + transfer not yet to BFP)
49
Q

Remedies - MRS DAISI - Specific Performance - Prohibitions (4)

A

1) For personal service contracts bc of risk of personal servitude in relation to constitutional considerations
2) For promise to pay
3) For promise to satisfy judgement
4) For promise to convey asset no longer in possession

50
Q

Remedies - MRS DAISI - Declaratory Judgement - gral

A
  • Request for court to make declaration to terminate controversy on contract provision or performance
  • i.e. meaning of ambiguous term, fund mutual mistake, lack of contract formation elements
51
Q

Remedies - MRS DAISI - Declaratory Judgement - Requirements (2)

A

1) Justiciable controversy

+ 2) Declaration will not prejudice rights of 3rd parties to the proceeding

52
Q

Remedies - MRS DAISI - Accounting [??]

A
  • Court determines amount and level of liability - i.e. order to contribute in dissolution of partnership
53
Q

Remedies - MRS DAISI - Injunction - gral

A
  • Court oder to refrain or stop action
  • Not for prevention of breach of contract UNLESS is to prevent D to perform personal service to someone else
54
Q

Remedies - MRS DAISI - Injunction - Types (3)

A

1) TRO: post lawsuit to protect person/property
2) Preliminary Injunction: pre-trial when probability of success of claim OR irreparable injury
3) Permanent Injunction: after full trial on merits

55
Q

Remedies - MRS DAISI - Injunction - Consequence if violation

A
  • Held in contempt
  • Fined
  • Jail
56
Q

Remedies - MRS DAISI - SOL - Gral

A
  • Bars actions to be commenced outside period specified in contract or statute
57
Q

Remedies - MRS DAISI - SOL - Tolling (suspension) Causes (2)

A

1) D absent from jdx (i.e. avoid service)
2) P is disabled

58
Q

Remedies - MRS DAISI - SOL - Statute of repose

A
  • aka “no claim” statute
  • Cuts off right to action after certain deadline - applied for product liability cases
59
Q

Remedies - MRS DAISI - SOL - Specific rules - CL

A
  • OK for parties to agree - If not controlled by statute of jdx
60
Q

Remedies - MRS DAISI - SOL - Specific rules - Contracts

A
  • Gral rule: Non breaching party has 6 years since execution of written contract
  • 2-3 years when contract is oral

- on date on knowledge of breach

61
Q

Remedies - MRS DAISI - SOL - Specific rules - Torts

A
  • gral rule: 3 years
  • 2 years for short-lived acts: i.e. assault, false imprisonment, libel, slander
  • Starts running on date _P discovers tor_t was committed (Discovery Rule)
62
Q

Remedies - MRS DAISI - SOL - Specific rules - UCC

A
  • Action for warranty: 4 years from date of cause of action accrued / 6 years if express warranty
  • From date breach occurs even if not known (no discovery rule)
  • Parties can modify but not reduce to less than 1 year and extend more than X years
63
Q

Remedies - MRS DAISI - In quasi Contract - Gral

A
  • Purpose is to promote fairness + avoid unjust enrichment of P by good faith benefits provided by D
  • D must have had reasonable expectation of compensation
  • Different form restitution bc there is no enforceable contract -i.e. violation of SOF, infant purchase of luxury goods
64
Q

Remedies - MRS DAISI - In quasi Contract - Amount of recovery

A

Value of benefit (similar to restitution of contract price)

65
Q

Remedies - MRS DAISI - In quasi Contract - “Laches” - concept

A

A defense to an equitable action, that bars recovery by the plaintiff because of the plaintiff’s undue delay in seeking relief

66
Q

Remedies - MRS DAISI - In quasi Contract - “Laches” - Gral

A
  • Exception to SOF not applicable for equitable actions
  • D must prove that P unreasonably delayed commencement of suit after acquiring knowledge of all material facts causing action +
  • Unfair delayed prejudiced D

Contracts (13 decks)

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