remedies

Question 1

when is specific PF granted as a remedy?

Answer 1

if it’s difficult to prove damages

Question 2

when is specific PF favored as a remedy?

Answer 2

more likely in real estate deals, where it’s harder to value damages

Question 3

who has the burden of proof related to obtaining specific PF as a remedy?

Answer 3

the party seeking specific performance

Question 4

how do uniqueness and uncertainty relate to each other in establishing value of damages?

Answer 4

UCC - uniqueness wins, CL - uncertainty wins

Question 5

when is a breach “efficient”?

Answer 5

breaching party will get more money from new K party than it has to pay in damages to first K party, third party can perform better than the first

Question 6

what’s the purpose of an efficient breach?

Answer 6

allows resources to be moved into a more valuable use

Question 7

when is an injunction awarded as a remedy?

Answer 7

awarded if damages are inadequate and benefits of injunction outweigh costs of supervision

Question 8

what is a liquidated damages clause for?

Answer 8

pre-defined reasonable amount for breach of K (agree in advance)

Question 9

what makes a LD clause valid?

Answer 9

actual damages are uncertain at time of K and LD’s are proportional to actual loss

Question 10

how can you show an LD clause is invalid?

Answer 10

must show (1) damages are certain or (2) LD amount is grossly disproportionate to actual harm

Question 11

if an LD clause is determined to be invalid, what can you get?

Answer 11

actual damages only

Question 12

what are the three UCC criteria for measuring reasonableness of LD clauses?

Answer 12

(1) antic/actual harm caused by breach, (2) difficulty of proving loss, (3) difficulty of obtaining an adequate remedy (#3 UCC only)

Question 13

what are the three overall types of damages alternatives?

Answer 13

expectation, reliance, and restitution damages

Question 14

what’s the purpose of expectation damages?

Answer 14

put the non-breaching party in the same position as if K had been performed

Question 15

what’s the basic formula for calculation of damages?

Answer 15

loss of value or cost of repair/substitute PF+ consequential damages + incidental damages, minus costs saved/avoided, minus amounts not foreseeable, certain or mitigated

Question 16

what’s the normal type of damages awarded in construction K’s as a remedy?

Answer 16

cost of repair - if not grossly disproportionate to loss in value or if difficult to show loss in value with reasonable certainty

Question 17

when is substitute PF more likely to be awarded as an expectation damage?

Answer 17

if (1) willful breach, (2) no economic waste, or (3) construction K

Question 18

when is loss in value more likely to be awarded as an expectation damage?

Answer 18

loss in value used if breach merely incidental to a main purpose of K, and economic benefit of PF is grossly disproportionate to cost of PF

Question 19

what’s the purpose of reliance damages?

Answer 19

reimburse non-breach party for expenses incurred in reliance on K

Question 20

what’s the purpose of restitution damages?

Answer 20

interest of non-B in recovering any benefit to other party

Question 21

when is the UCC money damage of resale used?

Answer 21

if B breaches (won’t take goods), S may resell goods and gets damages

Question 22

what’s awarded as UCC money damages if buyer breaches and seller resells?

Answer 22

K price minus resale price plus incidentals and consequentials, minus costs saved (i.e., price expected minus price received)

Question 23

what’s awarded as money damages if buyer breaches and seller elects not to resell?

Answer 23

market price minus unpaid K price

Question 24

what’s awarded as UCC money damages if seller breaches and buyer covers?

Answer 24

cover price minus K price, plus incidentals and consequentials, minus costs saved (i.e., price paid minus price expected)

Question 25

what’s awarded as UCC money damages if seller breaches and buyer doesn’t cover?

Answer 25

unpaid K price minus market price

Question 26

are consequential damages recoverable?

Answer 26

not always

Question 27

when are consequential damages NOT recoverable?

Answer 27

if they could have been prevented by cover

Question 28

how do you recover lost profits as consequential damages?

Answer 28

recoverable if you show that they’re foreseeable and the potential of lost profits was communicated to other party

Question 29

are incidental damages recoverable?

Answer 29

always

Question 30

what are incidental damages?

Answer 30

costs incurred in a reaosnable effort to avoid loss

Question 31

what’s the benefit of being designated a lost volume seller?

Answer 31

can recover lost profits as actual damages

Question 32

explain the “lost volume” part of lost volume seller

Answer 32

if seller would have entered into both transactions but for the breach, then S lost volume

Question 33

how do you show that you’re a lost volume seller?

Answer 33

(1) capacity to make an add’l sale, (2) would have been profitable for party to make another sale, and (3) probably would have made the add’l sale anyway

Question 34

what are the four main types of limitations on damages?

Answer 34

costs saved, mitigation, foreseeability, certainty

Question 35

explain the “costs saved” limitiation of damages

Answer 35

costs which would not have been incurred BUT FOR the breach of K - payments not made

Question 36

what’s the definition of “mitigation” as related to limitations of damages?

Answer 36

offset adverse consequences -

Question 37

how is “mitigation” a limitiation on damages?

Answer 37

damages can be reduced if you don’t mitigate

Question 38

how are employee damages calculated?

Answer 38

amt owed in K minus amt employee earns or could have earned from other job

Question 39

what’s the requirement of mitigation situations as limitation on damages?

Answer 39

other offer must be substantially similar, not inferior

Question 40

how does foreseeability relate to limitations on damages?

Answer 40

damages awarded for lost profits only if foreseeable at time of K and communicated to other party

Question 41

what makes lost profits foreseeable as related to limitations on damages?

Answer 41

if (1) follow in ordinary course of events, and (2) breaching party knew or had RTK

Question 42

how does certainty relate to limitiations on damages?

Answer 42

amt of loss mus tbe proven with sufficient certainty

Question 43

how is certainty assured as related to limitations on damages?

Answer 43

must be directly traceable to breach, not remote, and supported by evidence