UCC and Restatement Provisions Flashcards
§ - Measure of Damages In General
§347 The injured party has a right to damages based on his expectation interest as measured by = loss in value + other loss (including incidental or consequential loss, caused by the breach) - any cost avoided by not having to perform
§ - Economic Waste Doctrine
§348 If a breach results in a defective or unfinished construction the non-breacher may recover damages based on : (a) the diminution, in the market price of the property, caused by the breach or (b) the reasonable cost of completing performance or of remedying the defects if the cost is not clearly disproportionate to the probably loss in value to him
§ - Unforseeability and Related Limitations on Damages
§351 (1) damages are not recoverable for loss that the party in breach did not have reason to foresee as a result of the breach WHEN THE K 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 that the party in breach has reason to know (3) a court may limit damages for foreseeable loss by allowing recovery only for loss incurred in reliance, or as justice so requires
§ Uncertainty as a limitation on damages
§352 Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty (convert into more like renders unrecoverable any portion of the π damages that evidence cannot establish with reasonable certainty)
§ Damages based on Reliance Interest
§349 Injured party has a right to damages based on their reliance interest, including expenditures made in preparation for performance or in performance (less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed.
§ Avoidability as a Limitation on Damages
§350 damages are not recoverable for loss that the injured party could have avoided without undue risk, burden, or humiliation. (2) The injured party is not precluded from recovery by the rule stated in Subsection (1) to the extent that he has made reasonable but unsuccessful efforts to avoid loss.
§ Avoidability of damages (Right to Nominal Damages)
§346 1) The injured party has a right to damages for any breach by a party against whom the contract is enforceable unless the claim for damages has been suspended or discharged. (2) If the breach caused no loss or if the amount of the loss is not proved under the rules stated in this Chapter, a small sum fixed without regard to amt. of loss will be awarded as nominal damages.
UCC § Liquidation or Limitation of Damages; Deposits
UCC §2-718 (1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.
Restatement § Liquidation or Limitation of Damages; Deposits
Restatement § 356 Damages for breach . . . may be liquidated in the agreement but only at an amount that is reasonable in 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.
UCC § Buyer’s Right to Specific Performance or Replevin
UCC § 2-716 1) Specific performance may be ordered where the goods are unique or in other proper circumstances. (2) The judgment (decree) for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just. (3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered
Rest § Offer
Rest. § 24: “An offer is the manifestation of willingness to enter into a bargain, so made as to justify another person in understanding that his assent to that bargain is invited and will conclude it.”
Rest. § Prelim. Negotiations
Rest. § 26: Not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.
Comment A: Reason to know depends not only on the words or other conduct, but also on the circumstances, including previous communications of the parties and the usages of their community or line of business.
Comment C: In determining whether an offer is made relevant factors include the terms of any previous inquiry, the completeness of the terms of the suggested bargain, and the number of persons to whom a communication is addressed.
Rest. § Certainty:
Rest. § 33: (1) Even though a manifestation of intention is intended to be understood as an offer, it cannot be accepted so as to form a contract unless the terms of the contract are reasonably certain.
(2) the terms of a contract are reasonably certain if they provide a basis for determining the existence of a breach and for giving an appropriate remedy.
(3) The fact that one or more terms of a proposed bargain are left open or uncertain may show that a manifestation of intention is not intended to be understood as an offer or as an acceptance.
Rest. § To whom an offer is addressed:
(1) the manifested intention of the offeror determines the person or persons in whom is created a power of acceptance.
(2) an offer may create a power of acceptance in a specified person or in one ore more of a specified group or class of persons, acting separately or together, or in anyone or everyon who makes a specified promise or renders a specified performance.
Rest. § : Termination of an offer
Rest. § 36(1)
Revocation by the offeror; Rejection by the offeree;
Counteroffer by the offeree;
Passage of time;
Death or Incapacitation of Offeror
Rest. § Option contracts:
Rest. § 25
A promise which meets the requirements for the formation of a contract and limits the promisor’s power to revoke an offer.
UCC § Firm Offers
Firm Offers UCC 2-205:
Offer
By a merchant
to buy or sell goods
in a signed writing
that, by its terms, cannot be revoked for a period of time
Merchant UCC
UCC 2-104
A person who deals in goods of that kind
Someone who holds themself out as having knowledge or skill peculiar to the practices or goods involved
Someone who has an agent who fits that description