Remedies Flashcards
What are your remedy options when the other side says they are not going to perform on the contract before performance is due?
Anticipatory repudiation
Does the non- breaching party still have to perform and see if the breaching party really does breach?
No as long as the repudiation is clear &; unequivocal.
What time options does the non-breaching party have?
- Treat the repudiation as a beach and sue immediately.
• if you have completed the entire performance and Are only waiting for payment, you cannot sue early.
- Ignore the repudiation, demand performance, and see what happens.
Can a breaching party retract its repudiation?
Yes as long as the side has. It commenced a lawsuit for breach or acted in reliance on the repudiation.
What if you are unsure if the other side has repudiated?
The UCC- reasonable grounds for insecurity about the other side’s performance allows a party to demand adequate assurance of performance.
• if the questionable party fails to respond within a reasonable time, the other party can treat it as an repudiation.
What is the goal of expectation damages?
The goal is to put the party in the same economic position that it would be in if the contract had been performed as promised.
How are expectation damages measured?
By comparing the value of the performance without the breach to the value of the performance with the breach.
What are three major limits on the calculation of expectation damages?
- ED must be proven with reasonable certainty.
- Unforeseeable consequential damages are not recoverable unless the breaching party has some reason to know about the possibility of these on unforseeable consequential damages.
- Must take reasonable steps to mitigate.
What are consequential damages?
- General damages: the type of losses that almost everyone would suffer from a breach.
• these include incidental damages, such as the cost of storing rejected good, or finding a new buyer, or finding a replacement vendor.
- Consequential damages: losses that are unique or special to this plaintiff.
What are lost volume profit?
• that the seller should be awarded the full lost value profits from the first sale and not treat that second sale as mitigation.
If the seller is a merchant who is in the business of selling this type of product all the time and they have lots of the product available, then if they take the good from the breach and sell it to someone else, it is not fair to treat that resale as a mitigation because they would have tried to make that incremental sale anyway.
What are the goals reliance damages?
The goal is to put a party in the same economic position that it would be in if the contract had never been created.
- reliance damages = ground hog day damages
- A party cannot recover both expectation and reliance damage this. You
What are the goals of restitution damages?
The go is to give the plaintiff an amount equal to the economic benefit that the plaintive has conferred on the defendant.
- this can sometimes equal reliance damages, but it need not.
- damages are just the amount of the benefit conferred no additional amount considered.
What are liquidated damages?
These are set out in the contract as an explicitly negotiated amount due upon breach.
When are liquidated damages valid?
- The amount of liquidated damages was reasonable at the time of contracting and
- Actual damages from the breach will be uncertain and amount would be difficult to prove.
Are punitive damage awarded in contract breaches?
No unless you see a breach that also seems like a tort.
