Damages Flashcards by Delany Davis

What are the 5 types of damages?

AERRS

Agreed remedies
Expectation
Reliance
Restitution
Specific Performance

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What is the general measure of expectation damages?

(Loss in value + other losses) MINUS (costs avoided) MINUS (Loss avoided)

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What is the loss in value when calculating damages?

What the party would have received under the contract
Basically,
The unpaid contract price

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Define impractibility and the 4 requirements

Where a supervening event makes performance impossible or impracticable, the party seeking relief must show:

event made performance as agreed upon, impracticable
nonoccurrence of the event was a basic assumption on which the K was made
Party seeking to be excused is not at fault
Party did not assume greater obligation than that imposed by law.

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Define modification

Consideration is required for the modification of a contract. Under the pre-existing duty rule, a promise to do what one is already legally obligated to do is not consideration.

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A party is in ___ __ if they have not substantially performed and is not entitled to performance

material breach

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What are the factors of material breach?

E/E/H/B/L

Extent to which injured party will obtain the benefit of the bargain or may be adequately compensated in damages
Extent of the breaching party’s performance
Hardship on the breaching party
Breaching party’s willful or negligent conduct
Likelihood the breaching party will complete performance

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Define total breach

If a material breach is not cured within a reasonable time, it becomes a total breach. In that case, the injured party’s performance is discharged.

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define Anticipitory repudiation

Anticipatory repudiation is present where a party, by words or conduct, repudiates before the contract before the performance is due.

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Can repurdiation can be retracted?

Repudiation can be retraced unless injured party has changed position in reliance on the repudiation or she notified the repudiating party that she is treating the repudiation as final.

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What is the GR for demand for adeuqate assurances?

A party with reasonable grounds for insecurity/doubt, can make a demand for adequate assurances in writing

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What is the GR for the timing of the demand for adequate assurances?

Once a demand has been made, a failure to provide adequate assurances within a reasonable time not to exceed 30 days, is considered repudiation

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Steps for essay analysis

SOF > interpertation > enforcement of the K > avoiding enforcement? > damages > rights & oligations

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When asking “is the K enforceable?” what analysis would you do?

SOF

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Under the SOF, what are the 4 types of K that fall w/n the SOF?

Suretyship
1-yr
Sale or transfer of interest in land
Sale of goods $500+`

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What is the writing req/ for SOF?

Signed by party to be charged w/ essential terms, memo sufficient to indicate K

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What are the exceptions to each of the 4 types of K that fall w/n the SOF?

suretyship (main purpose rule)
1yr (promissory estoppel)
k for interest in land (part performance, taken possession + made improvements or payment)
K for sale of goods 500+ (merchants exception, specially manufactured goods, admission, part perf)

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When asking “what are the terms of the K?” what analysis will you do?

Interpretation

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What question is asked when analyzing the modified objective approach of interpertation?

Did either party know or have reason to know what the other meant?

If no, there is no K. If yes, K based on innocent party’s terms

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What does the doctrine of reasonable expectations usually apply to?

Insurance Ks

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What are the factors when analyzing the doctrine of reasonable expectations?

(UorO/DP/FT)

is the term unusual or oppressive?
Does the term eliminate the dominant purpose of K?
Would the insured party reasonably expect to find the term?

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What will the court do when invoking the plain meaning rule?

Courts will look to the 4 corners of the doc to determine if the term is ambigious

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If a term in the K is ambigious, the court will admit ____ for the parties to explain what the term means

extrinsic evidence

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What does the PER exclude?

Prior/contemporaneuous agreements/negotiations

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Under the PER, partially integrated wrting can be ___ but not ____

supplemented | contradicted

Under the PER, totally integrated writing cannot be ___ or ___

supplemented | contradicted

When determing if the integration is complete or partial, what are the 2 views the court may use?

Williston/Traditional | Corbin/Modern

Under the Williston/Traditional, the writing will be ___ if there is a merger clause

totally integrated

If there is no merger clause, the court will use the 4 corners rule to see if the writing is ___ and _____ on its face

final | complete

Under the Williston/Traditional, a K is totally integrated unless the term that the other party is trying to admit ____

is naturally not included in the K

Describe the subject matter test

If the subject matter is dealt with in the writing, it is totally integrated because the parties said all they had to say about the term

If the subject matter is not dealt with in the writing, then the writing is ____ ____

partially integrated

Under the Corbin/Modern, what is the GR about evidence?

Any evidence is admissible to prove intent

For the sale of goods under the UCC 2-202, a final expression cannot be contradicted by ____

prior oral or written agreement OR contemporaneous agreement

For the sale of goods under the UCC 2-202, how can the final expression be explained or supplemented?

It can be explained or supplemented by trade usage Course of dealing/performance Consistent additional terms

What are the 4 ways to supplement the K?

Best efforts Good faith Termination Warranties

If one party is totally dependent on the other party, that partie's performance will have a higher bar and must make their ___ ___ to meet the standard

best effort

When will "best efforts" arise?

In exclusive dealing or exclusive distributorship Ks

__ ___ is implied in ALL K's involving the sale of goods

good faith

T/F: Good faith is implied in employment at will Ks

False

When will termination arise?

When a K is for an indefinite duration and can be terminated at any time

What is the GR for termination under the Code?

Under the Code, there must be reasonable notice of terminate in a K of indefinite duration

What are the 3 types of implied warranties?

Express Implied Warranty of Merchantability Implied warranty of fitness for a particular purpose

Express warranties covers ___ ___ ___

statements, models, statements

Once determing a K is enforceable and the courts determine which terms to use, what is the next question in your analysis?

Is non-performance excused

Failure to perform the K amounts to a ___ unless the failure to perform is ___

breach | excused

What are the Doctrines we covered to determine if non-performance of a K can be excused?

Minors/Mentally Incapacitated Duress, Undue Influence, Misrepresentation, Unconscionability Public Policy Mistake (mutual/unilateral) Impracticability/impossibility/ frustration of purpose, modification material breach/substantial performance/divisibility/anticipatory repudation express condtion

What are the Doctrines we covered to determine if non-performance of a K can be excused?

What are the 2 prongs to determine unconscionability?

Procedure and Substantive

What do you look for in the procedural prong of unconscionability?

Standard form K/boiler plate/Fine print "take it or leave it" education/financial status of the party

What do you look for in the substantive prong of unconscionability?

the terms such as excessive price, dragnet clause

What is the 2 part test when there is an arbitration clause at the heart of the dispute?

1. is the party asserting that the clause itself is unconscionable OR 2. is the party asserting that the K its self is unconscionable?

What is the 2 part test when there is an arbitration clause at the heart of the dispute?

1. is the party asserting that the clause itself is unconscionable OR 2. is the party asserting that the K its self is unconscionable?

When the courts is determining if the arbritation clause is unconscionable, they apply what test?

The two prong procedural/substantive test

When engaging in an analysis of impossi/imprac, analyze using the elements for impract, which are:

The event makes performance as agreed upon impossible/imprac (if there is an alternative way, they are not relieved of duty to perform) AND Non-occurence of that event was a basic assumption upon which the K was made.

Under the doctrine of frustration of purpose, the event ___ frustrated the ___ ___ of K

substantially | principal purpose

Impract. vs. FOP

If the party had to provide a service of good, its IMPRACT. because an event occured such that they couldnt render the service or deliver the good. If the party was supposed to $$$ for the service or good, the party is still capable to perform, BUT the party's reason for performing has been substantially frustrated by the event

Courts will enforce the no oral modification clause if its for a contract for the sale of ____

goods

What is the 4th question in your analysis of the K?

What are the parties remedies?

What is the objective of expectation damages?

to put the injured party in the position they would have been in but for the breach

When analyzing expectation damages you have to do the following:

- identify the type of K - identify the injured party - what would the injured party (owner,buyer,employer) have paid if the K WAS NOT BREACHED? - what would the injured party have received? (builder, seller, employee) - focus on the UNpaid K price

What is the objective of reliance damages?

Put the injured party in position BEFORE they entered the K

What is the objective of restitution damages? (3 applications)

1. injured parties 2. breaching parties 3. either or both parties excused

When is specific performance available?

When a remedy at law is inadequate

When is specific performance NOT available?

For personal services

What are the 4 limitation principles on damages?

foreseeability certainty (new biz, public whim, entertainment) causation (intervening event) mitigation

Which damages are nonrecoverable?

Attys fees $$ for emotional distress Punitive $$ (insurance Ks)

What are the 3 parties in a TPB K?

Promisor Promisee TBP

Generally the cause of action in a TBP case, who sues who?

The TPB sues the promisor

If a TPB is incidental, they ___ sue the promisor

Cannot

What are the 4 defenses a promisor will raise in a TPB case?

1. if there is an incidental beneficiary involved 2. TPB's rights discharged or modified before vesting 3. defenses promisor has against promisor 4. defenses promisee has against TPB

Since the beneficiary is not a party, they cannot have rights ___ than the parties of the K

greater

What constitutes an assignment?

When a party is transferring their rights to someone else

In an assignment, what are the parties called?

Assignor/Assignee

___ is liable to the assignee upon notice of the assignment

Obligor

T/F: an obligor must assent to the assignment

False

What defenses are avilable in an assignee v. obligor case?

The obligor would argue that there was a 1. non assignable right 2. non assignment clause in K 3. material change in obligors duties 4. Any K defenses obligor has against assignor

In delegation, what are the parties called?

delegator - gives duties delegate- received duties obligee- the party who is owed the duty by the delegate

T/F: An obligee must consent to the delegates performannce

False

In a delegation, the ___ remains liable on K until performance

delegator

Damages Flashcards

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