difficult terms

Question 1

whether damages are an adequate remedy (factors)

Answer 1

1. difficulty of proving damages with reasonable certainty
2. difficulty of procuring a suitable substitute performance with money damages
3. likelihood damage award could not be collected

Question 2

arguments for and against SP

Answer 2

for:
1. don’t have to prove damages
2. saves ct time and resources
3. damages too uncertain/inadequate
4. goods/services are unique

against
1. damages are adequate
2. too much ct supervision
3. K terms too uncertain
4. involuntary servitude concerns
5. K unfair
6. efficient breach

Question 3

market price, seller’s rights

Answer 3

market price is market price at time and place for tender

Question 4

What is repudiation (CL)

Answer 4

express–> where one party makes a statement indicating an intent to breach that itself would give the other party a claim for damages

implied–> a voluntary act or omissision which renders obligor unable or apparently unable to perform without breach

Question 5

mere expression of doubt

Answer 5

not enough for repudiation, could be enough if party demands adequate assurance

Question 6

UCC impracticability

Answer 6

delay in delivery or nondelivery by the seller not a breach of his duty if performance has been made impracticable by an occurrence, the nonoccurrence of which was a basic assumption on which K was made

Question 6

UCC Breach rules

Answer 6

UCC requires perfect tender. Buyer not required to pay if seller doesn’t deliver exactly what was K for.

If seller delivers nonconforming goods, the buyer may
1. accept the whole
2. reject the whole
3. or accept any commercially acceptable unit and reject the rest

Question 7

Preferences of interpretation

Answer 7

1. cts give great weight to intent of parties
2. all writings interpreted as a whole
3. general terms=generally accepted meaning, technical terms given technical meaning if used in technical field
4. course of performance accepted without objection given great weight, if ascertainable
5. manifestations of intention of the parties are interpreted as consistent with eachother, and COP, COD, or UOT, if applicable

Question 8

UCC PER

Answer 8

terms with respect to which the confirmatory memoranda of the parties agree or where the parties otherwise intend their agreement to be a final expression of the terms cannot be altered by evidence of prior or contemporaneous agreements, but may be explained or supplemented:
1. By COP, COD, UOT
2. consistent additional terms, if the writing not completely integrated

Question 9

PP factors

Answer 9

enforcing K term
1. parties justified expectations
2. extent of forfeiture if term not enforced
3. special public interest

Not enforcing term
1. strength of the policy as manifested by legislation or judicial decisions
2. likelihood nonenforcement would further policy
3. seriousness of misconduct, to extent it was deliberate
4. directness between misconduct and term

Question 10

UCC unconscionable

Answer 10

if it appears to the ct that a term is unconscionable, each side will be afforded a reasonable opportunity to furnish evidence as to its commercial setting, purpose, and effect, to aid ct in making its determination

Question 11

if a breach results in defective or unfinished construction and the loss in value to the injured party not proved with sufficient certainty, he may recover damages based on

Answer 11

(a) reasonable cost of completing performance or of remedying the defects if that cost is not clearly disproportionate to probable loss in value to him
(b) diminution in market price of the property caused by breach
- whether cost of completion grossly disproportionate
- whether nonconformity accidental or willful
- subjective/objective value–> if important to owner, cts may lean towards cost of completion
- centrality of omission/breach to og agreement

Question 12

impracticability

Answer 12

events after K formation so different than the assumptions on which K were based, it would be unfair to hold adversely affected party to K