Contract Damages

Question 1

purpose of k damages?

Answer 1

put the aggrieved party in the position that they would have been in had breach not occurred

Question 2

what are the 3 remedies for contract damages?

Answer 2

expectation damages, reliance damages, restitution (UE)

Question 3

damages must be plead with specificity, including the use of experts, etc. Case?

Answer 3

Freund. Book publishing case.

Question 4

to recover for lost profits, p must prove (1) the amount of damages with a reasonable degree of certainty, (2) that the wrongful acts of the defendant caused the loss of profit, and (3) that the profits were reasonably within the contemplation of the parties at the time the contract was entered into. Case?

Answer 4

PFI Inc. v. Kulis, gas station

Question 5

what 3 things must a plaintiff prove in order to recover for lost profits?

Answer 5

(1)amount of damages with reasonable degree of certainty, (2)the wrongful acts of the d caused the loss of profit, and (3)the profits were reasonably within contemplation of parties at the time k was entered into.

triple c. certainty, causation, contemplation

Question 6

where the terms of an agreement are clear, the court will ordinarily not make a better deal for a party than that party voluntarily made for itself, particularly in a commercial, arms-length setting. case?

Answer 6

PFI Inc. v. Kulis, gas station

Question 7

are incidental and consequential damages a part of the expectation damages umbrella?

Answer 7

yes

Question 8

says the injured party has a right to damages based on his expectation interest measured by 3 things according to RST 347, which are?

Answer 8

(a) the loss in the value to him of either party’s performance caused by its failure or deficiency, plus (b) any other loss, including incidental or consequential loss, caused by the breach, then (c) any cost or other loss that he has avoided by not having to perform.

Question 9

expectation damages must be ______

Answer 9

foreseeable

Question 10

incidental damages definition

Answer 10

Costs that are directly related to/arose because of the breach of contract, the breaching party owes costs to fulfill the k in a different way. things the breaching party may have to pay for as incident of the breach.

Question 11

breaching party was on direct notice of the consequences that would occur if their performance was not up to par

Answer 11

consequential damages definition

Question 12

difference between incidental and consequential damages?

Answer 12

Incidental damages are always available, but consequential are barred unless they are in the contemplation of the parties, which must be proved by the parties.

Question 13

reliance damages can be recovered when

Answer 13

non-breaching party materially changed its position in anticipation of the performance of the k by the other party.

Question 14

With reliance damages the plaintiff just has to show that they made an expenditure in anticipation of the fulfillment of the k. Case?

Answer 14

Agam v. Gavra, real estate

Question 15

an aggrieved party in a breach of employment k has a duty to ____ damages

Answer 15

mitigate

Question 16

The measure of recovery by a wrongfully discharged employee is…

Answer 16

amount of salary agreed upon for the period of service, minus amount that employer affirmatively proves employee has earned or with reasonable effort might have earned from other employment.

Question 17

before applying the mitigating formula, the employer must show that…

Answer 17

other employment was comparable or substantially similar, to the old job

Question 18

may an employee’s rejection of other available employment be used to mitigate damages?

Answer 18

no

Question 19

may an employee’s failure to seek other employment of a different or inferior job be used to mitigate damages?

Answer 19

no

Question 20

to assert failure to mitigate in employment k action, employer must show the second job was sufficiently similar to first job. Could be shown by salary, performance, if the duties of the second job match the first one, etc. Reasonableness is not an element. Case?

Answer 20

Parker v. Twentieth Century Fox, shirley maclaine musical western

Question 21

liquidated damages can only be ___ not ___

Answer 21

compensatory, not punitive

Question 22

liquidated damages are

Answer 22

a provision for damages in a k that tries to compute the reasonable or actionable damages that may flow from a breach. Can only be compensatory, not punitive. Only in an amount reasonable as a result of the action caused by the breach. Too big a reward is unenforceable bc pub policy.

Question 23

a static and consistent fee for breach is a sign that the damages are truly…

Answer 23

punitive in nature, not liquidated

Question 24

when there is no injury to any person and no damage to any property, and the only claim a party can make is of pure economic loss, the party cannot recover tort damages, only contract damages (potentially). case?

Answer 24

Maeda v. GMP Hawaii, construction project

Question 25

Rule from KA v. CO (riparian rights)?

Answer 25

Prejudgment interest is available for a breach of contract even where damages are unliquidated.

Question 26

2 pathways lost profits calculations

Answer 26

(1) for established businesses, Based on reasonable certainty. Look to the company’s sales figures. Their data. Must be able to get on the stand and explain the numbers. (2) unestablished businesses are too uncertain so they cannot recover

Question 27

For lost profits, can we get money damages and recission at the same time?

Answer 27

No. It’s one or the other.

Question 28

what is the collateral source rule?

Answer 28

If an injured party receives compensation for his injuries from a source wholly independent of the tortfeasor, such payment should not be deducted from the damages which the p would otherwise collect from the tortfeasor. tortfeasor should not benefit from the victim’s providence

Question 29

what are the 2 remedies for BOC fraud?

Answer 29

(1) disaffirm/rescind, and recover damages resulting from rescission. (2) affirm k, treating it as repudiated, and recover damages for bok or fraud.

Question 30

what are the requirements for recission of a k, AND the exception?

Answer 30

A party must (1) give notice of rescission to the party as to whom he rescinds, and (2) restore to the other party everything of value which he has received from him under the k or offer to restore the same upon condition the other party do likewise, UNLESS the latter is unable or refuses to do so.

Question 31

what’s the case for the 2 remedies for bok fraud and recission requirements?

Answer 31

Wong v. Stoller

Question 32

what is the purpose of a constructive trust and when can one be established?

Answer 32

Someone has something that they should not. So, a constructive trust is formed to protect the res (the res is the “thing” the other party should not have). Then the court has to come along and say it’s UE, so disgorge it and give it to whoever is entitled to it.

Question 33

A person who has been unjustly enriched at the expense of another is required to make restitution to the other. Case?

Answer 33

CTC v. Lepe, identity theft. Lepe had an interest in the surplus funds accumulated because of the wrongdoer’s identity theft

Question 34

difference between equitable lien and constructive trust?

Answer 34

constructive trust transfers ownership of a specific property from the holder of legal title to a person with a paramount equitable claim. By contrast, equitable lien gives the claimant a security interest in property held by the defendant, rather than ownership.

Question 35

case establishing the difference between an equitable lien and a constructive trust?

Answer 35

Verity v. Verity, married farmers

Question 36

what is specific performance?

Answer 36

means you have to act on the obligations set out in the k

Question 37

is specific performance an equitable or legal remedy?

Answer 37

equitable

Question 38

why is specific performance not allowed as a remedy for breach of a service k?

Answer 38

13th amendment, indentured servitude

Question 39

mutuality of obligations does not equate to mutuality of remedies (just because one party has to do SP does not mean the other party has to). case?

Answer 39

Syntax homes, condo

Question 40

the presumption in a k is against the ___. Why?

Answer 40

against the drafter because the drafter chooses what to put in the k.

Question 41

what is recission?

Answer 41

essentially taking the k back

Question 42

can a p get recission and k damages at the same time?

Answer 42

No

Question 43

what are the two elements of reformation?

Answer 43

(1) an original agreement, and (2) a mutual mistake, made after the original agreement, in reducing the original agreement to writing.

Question 44

unilateral mistake by one party and knowledge of that mistake by the other party counts as ___

Answer 44

mutual mistake

Question 45

what is the burden of proof in a reformation action? is it high or low? why?

Answer 45

clear and convincing evidence. a high standard. meant to ensure that the parties’ intentions are reflected in the reformed k

Question 46

elements of unjust enrichment

Answer 46

(1) plaintiff conferred a benefit on the defendant (2) defendant knew of the benefit and reasonably should have expected to repay (3) defendant accepted or retained the value without paying for it

Question 47

specific performance may be awarded when? case?

Answer 47

there’s a valid k and no other adequate remedy, especially when goods are unique (Royal Buick)