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Bar Contracts > 7) Remedies > Flashcards

7) Remedies Flashcards

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1
Q

remedies for breach of k (CL): kinds

A

1) damages

2) equitable

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2
Q

remedies for breach of k: damages: kinds

A

1) expectation damages
2) reliance d
3) restitutionary d
4) liquidated damages

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3
Q

remedies for breach of k (CL + UCC): damages: default rule

A

expectation damages! (always start here)

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4
Q

remedies for breach of k (CL): expectation damages: how to calculate

A

Loss of value of breaching party’s performance (k price?)
+ incidental and consequential costs generated by breach
- any payments received from breacher
- any costs saved bc of breach

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5
Q

remedies for breach of k (CL): expectation damages: exceptions

A

CAN’T get expectation damages if:

1) can’t calculate them w reasonable certainty
2) damages are unforeseeable (Hadley)
3) damages could be mitigated (can’t recover for those that should’ve mitigated)

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6
Q

remedies for breach of k (CL): expectation damages: exception: Hadley rule

A

damages that are not foreseeable are not recoverable

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7
Q

remedies for breach of k (CL): expectation damages: exception: mitigation: employees

A 
don't need to accept substitute work if:
different field
significantly lower pay/worse terms
more burdensome responsibilities
damage career prospects
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8
Q

remedies for breach of k (CL): expectation damages: def

A

restore aggrieved party to the position he would’ve been in if k had been fully performed (what he expected)

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9
Q

remedies for breach of k (CL): reliance damages: def

A

restore aggrieved party to position he was in PRIOR TO K’ing

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10
Q

remedies for breach of k (CL): reliance damages: how to calculate

A

any expenses made to anyone in performing or preparing to perform
- any loss that breaching party can prove aggrieved party would have suffered even if the k HAD been fully performed

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11
Q

remedies for breach of k (CL): reliance damages: when available

A

if expectation damages not available

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12
Q

remedies for breach of k (CL): which applies?

A

argue for whichever is more $$ for my client! but generally expectation is default

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13
Q

remedies for breach of k (CL): restitutionary damages: def

A

the value of benefits conferred ON THE OTHER PARTY in the transaction

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14
Q

remedies for breach of k (CL): restitutionary damages: how to calculate

A

2 ways:

1) reasonable value or cost of benefits conferred (to the other party only, per def) OR
2) extent to which other party’s property has increased in value bc of performance

court will consider equities to decide which

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15
Q

remedies for breach of k (CL): restitutionary damages: when to use

A

argue for it if it’s more $ for client. Most common time that will happen: “losing k”

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16
Q

remedies for breach of k (CL): restitutionary damages: exception

A

restitutionary damages NOT available if other party has fully performed!! (only if partial)

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17
Q

remedies for breach of k (CL): liquidated damages: def

A

k specifies amount of damages in the event of breach

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18
Q

remedies for breach of k (CL): liquidated damages: test

A

courts will not enforce if think it’s a penalty designed to punish breach. (compensation only, not punishment) Consider:

1) forecast
2) hindsight

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19
Q

remedies for breach of k (CL): liquidated damages: test: forecast

A

was clause reasonable at the time of k, in relation to the anticipated harm? (more likely to be enforced if there was an anticipated harm that would be difficult to calculate)

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20
Q

remedies for breach of k (CL): liquidated damages: hindsight

A

was clause reasonable in relation to harm and losses that actually occurred due to the breach?

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21
Q

remedies for breach of k (CL): liquidated damages: result if court finds unenforceable

A

strikes from the k, follow default rules instead

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22
Q

remedies for breach of k (UCC): seller remedies: when use

A

if buyer breaches

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23
Q

remedies for breach of k (UCC): seller remedies: rule

A

depends on if goods were delivered and accepted by buyer

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24
Q

remedies for breach of k (UCC): seller remedies: buyer accepted goods

A

remedy = k price

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25
remedies for breach of k (UCC): seller remedies: buyer DID NOT accept: situations
buyer wrongfully rejected or repudiated
26
remedies for breach of k (UCC): seller remedies: buyer DID NOT accept: rule
1) if seller has re-sold: damages = difference btwn k price and resale price 2) if seller has not re-sold: damages = difference btwn k price and market price 3) lost volume sellers: damages = the profit would have made on lost sale
27
remedies for breach of k (UCC): lost volume seller: def
supply of goods exceeds the demand (ex. tv store)
28
remedies for breach of k (UCC): buyer remedies: when use
if seller breached (didn't send, or sends imperfect and never curse)
29
remedies for breach of k (UCC): buyer remedies: rule
depends on whether buyer covered 1) if buyer covers (in good faith): damages = difference btwn k price and cover price 2) if buyer dn cover: damages = difference btwn k price and market price
30
remedies for breach of k (UCC): cover: def
bought replacement goods
31
remedies for breach of k (UCC): buyer remedies: damages for accepted goods: when use
buyer receives and accepts nonconforming goods from the seller
32
remedies for breach of k (UCC): buyer remedies: damages for accepted goods: rule
buyer is entitled to recover difference btwn value of goods k'd for and goods received
33
remedies for breach of k (UCC): incidental damages: rule
buyer or seller can get
34
remedies for breach of k (UCC): incidental damages: Def
expenses occurred in either seller dealing w goods after buyer's breach (ex. storage) or buyer arranging for cover (ex. transportation)
35
remedies for breach of k (UCC): consequential damages: rule
ONLY BUYER CAN GET | + must be reasonably foreseeable to seller at time of entering k
36
remedies for breach of k (CL): equitable remedies: kinds
1) specific performance | 2) negative injunctions
37
remedies for breach of k (CL): equitable remedies: specific performance; def
extraordinary remedy where breaching party ordered to PERFORM
38
remedies for breach of k (CL): equitable remedies: specific performance: rule
ONLY available if monetary award is inadequate
39
remedies for breach of k (CL): equitable remedies: specific performance: usually yes available if
1) unique objects (art, heirloom) | 2) real property
40
remedies for breach of k (CL): equitable remedies: specific performance: NOT available if
1) personal services | 2) long-term relationships
41
remedies for breach of k (UCC): equitable remedies: specific performance: difference
easier to get specific performance in 2 ways: 1) uniqueness 2) capable of immediate performance
42
remedies for breach of k (UCC): equitable remedies: specific performance: uniqueness
need only adequately search and be unable to find reasonable substitutes (lower standard than CL heirloom)
43
remedies for breach of k (UCC): equitable remedies: specific performance: capable of immediate performance
specific performance IS allowed in output and requirements ks (despite the fact that these are long term, and require cooperation of the parties)
44
remedies for breach of k (CL): equitable remedies: negative injunctions: def
orders prohibiting breaching party from doing something
45
remedies for breach of k (CL): equitable remedies: negative injunctions: most common situation
employment
46
remedies for breach of k (CL): equitable remedies: negative injunctions: MID TERM employment relief
ee is k'd for specific amt of time, breaches by leaving early + services are UNIQUE AND EXTRAORDINARY --> negative injunction available! EVEN IF no noncompete agreement!
47
remedies for breach of k (CL): equitable remedies: negative injunctions: POST employment relief
post-employment noncompete MUST have express provision in k. Then consider: 1) significant business justification? 2) scope reasonable re duration, geography?
48
other remedies: when use
separate COAs where you don't have breach of k
49
other remedies: kinds
1) promissory estoppel | 2) restitution /unjust enrichment
50
other remedies: promissory estoppel: remedies available
depends on j! maybe: 1) expectation d 2) reliance d choose case by case, tailor remedy to case
51
other remedies: restitution: distinguishing
restitution CAN be recovered for breach of k. But also can be available even if no breach (or even no k)...
52
other remedies: restitution: kinds
1) benefits under failed k 2) benefits conferred by breaching party 3) general unjust enrichment (no express k)
53
other remedies: restitution: benefits under failed k: rule
if party bestows benefits on other party in connection w what turns out to be "failed k", THEN bestower can get them back in restitution
54
other remedies: restitution: benefits under failed k: "failed k" def
ex. incapacity/fraud/duress --> there was a successful defense to there being a k in the first place
55
other remedies: restitution: benefits conferred by breacher: rule
party that breaches can recover the benefits it conferred on the nonbreacher BUT offset for damages caused by the breach! this is time where breacher can counter-sue for restitution
56
other remedies: restitution: unjust enrichment: situation
no express k exists
57
other remedies: restitution: unjust enrichment: rule
party that confers benefits on another may recover their value if unjust for recipient to retain benefits w/o paying -- even where there is no k
58
other remedies: restitution: unjust enrichment: common situations
1) medical services by medical professional | 2) benefits conferred by mistake, and recipient availed self of the benefits
59
other remedies: restitution: unjust enrichment: exception
BIG EXCEPTION: "officious intermeddler" who bestows benefits WITHOUT REQUEST of benefitting party --> NO RECOVERY!! (look for request, opportunity to decline)
60
other remedies: restitution: unjust enrichment: exception: officious intermeddler: EXCEPTION
E2E: emergency med services where person can't accept bc too ill/unconscious
61
agreed-to remedies: kinds
1) liquidated damages | 2) provisions limiting or excluding damages
62
agreed-to remedies: result
changes the remedies that would've been available
63
agreed to remedies: examples
1) clause excluding consequential damages | 2) exclusive remedies
64
agreed to remedies: exclusive remedies: def
ex. for goods, you're limited to repair or replacement only
65
agreed to remedies: enforceable? (UCC)
yes, UNLESS: 1) unconscionable 2) item is failing its general purpose (lemon)
66
agreed to remedies: enforceable? (UCC): unconscionable
limiting consequential damages for personal injury for a consumer good = prima facie unconscionable
67
which remedy applies? construction k
actual cost of completing the construction minus payments that are to be made to D under the k
68
innocent misrep
rescission
69
impossibility
rescission
70
if k not performed yet, expectation damages can be
lost profits

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