final

Question 1

Parol Evidence Rule

Answer 1

Absent fraud or mistake, extrinsic evidence is not admissible to add or contradict the terms of a completely integrated writing or to contradict a partially integrated writing. In a partially integrated writing, parol evidence can supplement written terms. However, where the terms or meaning of the contract are ambiguous, parol evidence is admissible to determine theparties’ intent or to intepret the meaning of an ambiguous term.

Question 2

Parol Evidence Rule writing

Answer 2

Here, the term”__” is ambiguous, as “__” is not defined. I can mean ___ or ___. Given that ambiguity, PER is admissible.

Question 3

Conditions - Express or Constructive

Answer 3

A condition is an event, not certain to occur, which must occur, unless its non-occurrence is excused, before performance [duty] under a contract becomes due.

Question 4

Express conditions

Answer 4

Courts construe contract language as an express condition only if the language shows the unequivocal intent of the parties that one party had no duty to perform unless a specified event occurs. An express condition has linking language such as “if” which creates an unmistakable link between the duty and event. Where time is of the essence, it may be expressly stated int eh contract OR may be implied from the surrounding factors and circumstances demonstrates that the parties intended that time was of the essence. Where there is an expressed condition, there has to be strict compliance and perfect performance, making forfeiture likely. Courts prefer to avoid forfeiture, if linking language is ambiguous, courts interpret it as a duty.

Question 5

Constructive Conditions

Answer 5

In order for a court to determine whether a contract provision describes a condition rather than a duty, the court looks to the surrounding facts and circumstances to determine whether the parties intended that such an event be a condition. Constructive conditions requires substantial performance. Where performance of one party takes time, that party’s performance is due first.

Question 6

Divisibility

Answer 6

Where a K consits of multiple parts or is separated into component parts, we look to see whether the contract is divisible. In order for a K to be divisible, there must be paired prices and performances and each performance can be enjoyed by the recipient of the performance independent of all the other performances. Additionally, the parties must have had the INTENT AT THE TIME THE CONTRACT WAS ENTERED INTO THAT THE RECIPIENT WOULD BE ABLE TO ENJOY EACH PERFORMANCE INDEPENDENTLY.

Question 7

Paired Prices and performances

Answer 7

if the part to be performed by one part consists of several and distinct items, and the price to be paid the the other (1) is apportioned to each item to be performed or (2) is left to be implied by law, such a contract will generally be held to be severable.

Question 8

Enjoyment and utilization of individual pairs

Answer 8

discuss whether the recipient of the performances can have independent utilization and enjoyment

Question 9

Have conditions occurred?

Answer 9

Rule: [Insert facts] to determine if A substantially performed, we consider the Restatement 241 factors

Question 10

Restatment 241 factors

Answer 10

1. the extent to which the injury party will be deprived of the benefit which he reasonably expected (major/minor deviation)
2. the extent to which the injured party ccan be adequately compensated for the part of that benefit of which he will be deprived (discuss economic waste doctrine)
3. extent to which the party failing to perform or to offer to perform will suffer forfeiture
4. the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances
5. the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing
   Summary Because 4 out of 5 factors favor A, A has substantially performed.

Question 11

Waiver/Estoppel

Answer 11

A waiver is the excuse of a non-occurrence of a condition. Waiver occurs BEFORE the condition is set to be due, a waiver can be retracted any time before the other party has relied upon the waiver. Estoppel = waiver + reliance. Where a party has waived and the other party has relied, estoppel will preclude retraction of a waiver.

Question 12

Impracticability

Answer 12

Rule: the issue arises after the contract is made. Party’s duty is discharged/contract is rescinded if all of the following elements are met:
1. event after contract entered makes performance impracticable
2. non-occurrence of event was a basic assumption of K
3. not fault of party claiming excuse/defense
4. Party did NOT assume Grater obligation (risk)

Question 13

quantum meruit

Answer 13

the materials and labor and your expenses, you would break even and don’t get your profit. based on the theory of unjus enrichment

Question 14

quantum meruit (substantially performed) BMW

Answer 14

Because ____ has substantially performed with respect to ____ he can recover in quantum meruit, less the damages for the breach, if he conferred a benefit on the other party, or if the other party will be unjustly enriched by ____ unless BMW (1) the work was of no benefit to the other party, (2) the work was materially different from what he was contracted to do, or (3) he abandoned the work willfully.

Question 15

Quantum meruit (not substantially performed)

Answer 15

Even if ___ did not subsantially perform, ___ could recover, in quantum meriut for the value of ____’s services (Cost), less the damages for the breach, if he conferred a benefit on the other party, or if the other party will be unjustly enriched by ___ unless (1) the work was of no benefit to the other party, (2) the work was materially different from what he was contracted to do, or (3) he abandoned the work willfully.

Question 16

Restitution = benefit - unjust enrichment

Answer 16

Restitution compensates a party for the benefit conferred on the other party, which is measured by the reasonable value of the benefit received. The aim of restitution is to prevent unjust enrichment of the other party. The damages awarded in restitution may be calculated based on what it would have cost to obtain such benefit from another source and the extent to which the value of the party’s property has been increased or their other interests have been advanced.

Question 17

Third Party beneficiary

Answer 17

1. Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
   a. the performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or
   b. the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
2. An incidental beneficiary is a beneficiary who is not an intended beneficiary.

Question 18

Third party IBIG

Answer 18

An Intended Beneficiary is an IBIG Deal:

IBIG stands for “Intention of the parties,” “Benefit to the third party beneficiary,” and “Indicated by the circumstances.”
An intended beneficiary is someone who is specifically named in the contract or whose recognition as a beneficiary is necessary to carry out the parties’ intent.
There are two ways a beneficiary can be intended: if the promisee owes money to the beneficiary and the promise satisfies that obligation, or if the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
An Incidental Beneficiary is Just Along for the Ride:

An incidental beneficiary is someone who is not named in the contract and who does not have any rights under it.
Unlike an intended beneficiary, an incidental beneficiary cannot sue to enforce the contract.
To remember the key points, think of “IBIG” for intended beneficiaries and “Just Along for the Ride” for incidental beneficiaries. This should help you remember the conditions that need to be met for someone to be an intended beneficiary, as well as the key difference between an intended beneficiary and an incidental beneficiary.

Question 19

3 party blurb

Answer 19

Even though ___ and ___ are not in privity because ___ is not a party to the K, ___ will have standing to enforce the K if he can show that he was an intended beneficiary of the K between __ and ___. Therefore, we must discuss whether the promisee (1) intend to give ___ the benefit of the promised performance, or (3) the performance of the promise will satisfy an obligation of the promisee to pay the beneficiary. The focus is on the promisee’s intent although the majority rule looks at the intent of both parties. Therefore, we will discuss both.

Question 20

Delegation of duties (Discuss under major/minor deviation in subs perf)

Answer 20

generally, duties are freely delegable unless the performance is against public policy or the obligee has a substantial interest in having the performance completed by a specific person. An exemption exists when a contract is so personal that we will not require the obligee to accept the delegated performance. Personal contracts are created when a substantial interest is created, where the obligor has special skill or the obligor and the obligee have a special trust relationship, like a fiduciary relationship.

Question 21

Assignment of rights (major/minor deviation in subs perf)

Answer 21

An assignment of a right is a creation of hte assignor’s intention to transfer his right in which the assignors right to performance by hte obligator is extinguished in whole or part and the assignee acquires a right to performance.

Question 22

Assignment of rights can be done unless

Answer 22

1. the substitution of a right of the assignee for the right of the assignor would materially change the duty of the obligator, or materially increase the burden or risk imposed on him by his contract, or materially impair his chance of obtaining return performance, or materially reduce its value to him, OR
2. the assignment is forbidden by statute or is otherwise inoperative on the grounds of public policy OR
3. the assignment is validly precluded by the contract

Question 23

Recovery of Damages

Answer 23

Basic principles in contract, remedies are intended to compensate or redress the non-breaching party rather than punish the breaching party. Substitutional remedy is a measure of damages that is available when the non-breaching party can obtain a substitute to perform the obligations that the breaching party failed to fulfill. Where damages may be inadequate, the extraordinary remedy of specific performance may be appropriate.

Question 24

Specific Performance “Is A entitled to Specific performance where failure to enforce contract will…?”

Answer 24

Specific performance is an extraordinary equitable remedy where the court will require the party to perform the contract’s exact terms and no one else will perform the contract except for the breaching party. Because courts do not like to supervise when forcing a person to perform exact terms, the courts will grant specific performance under special and appropriate circumstances. Special circumstances occur when the damages are inadequate and will not compensate the injured party or if the subject matter is unique (irreplaceable), such as goods under proper circumstances, or real property

Question 25

expectation damages “is A entitled to Expectation damages where failure to enforce contract will…?”

Answer 25

Expectation damages is the usual measure where the injured party is placed at the same position it would have been if the contract had been performed

Question 26

Reliance damages “Is A entitled to Reliance where failure to enforce contract will…?”

Answer 26

Reliance Damages place the injured party at the same position it would have been i there had been no contract in the first place

Question 27

Restitution damages “Is A entitled to restitution where failure to enforce contract will…?”

Answer 27

Resitution compensates a party for the benefit conferred on the other party as a result of partial performance or reliance, and is aimed at preventing unjust enrichment. Restitution damages may be measured by the reasonable value of the benefit received in terms of what it would have cost to obtain such benefit from another source and the extent to which the value of the party’s property has been increased or his other interests advanced.

Question 28

Damages (general formula)

Answer 28

([loss in value] + [other loss] - ([Cost avoided] + [other loss avoided])

Question 29

damages (recipient breach - supplier = injured party])

Answer 29

[contract price] + [incidental (cost of mitigating loss) and/or consequential D’s] - [savings in not performing] + [mitigation]

Question 30

damages (supplier breach - recipient = injured party])

Answer 30

[cost of substitute performance or denied promised benefit] + [incidental (cost of finding substitute) and/or consequential damages] - [contract price]

Question 31

damages limitation

Answer 31

foreseeability, ascertainable, mitigation

Question 32

foreseeability

Answer 32

At the time the contract was entered into, the breaching party was either aware or should have been aware based on surrounding facts and circumstances the kinds of damages to which the breaching party might be exposed (this enables the person to assess the risk and decide whether they really want to enter into the contract

Question 33

Direct (general) damages

Answer 33

those that flow directly and necessarily from a breach of contract, or that are a natural result of a breach. Typically within the contemplation of the parties, parties don’t need to have actually contemplated but they would have supposed such a consequence was likely to follow a breach

Question 34

Consequential (special damages)

Answer 34

loss that do not arise directly and inevitably from any similar agreement. They are secondary/derivative losses arising from circumstances that are particular to the contract or to the parties. Special damages are recoverable if the special or particular circumstances from which they arise were actually communicated to or known by the breaching party or were matters of which the breaching party should have been aware at the time of contracting

Question 35

Ascertainable

Answer 35

Restatement 352 - uncertainty as limitation on damages:
damages are not recoverable for loss beyond an amount hat the evidence permits to be established with reasonable certainty. HAve to be susceptible to measurement with reasonable certainty, not mathematical precision. But have to be certain as to the amount and the occurrence

Question 36

Mitigation

Answer 36

there is NO Duty to mitigate, BUT if you do not mitigate your damages as a plaintiff, you will not be entitled to the damages that the breaching party could show that you have reasonably avoided by mitigating losses in good faith (seeking substitute performances w/o delay, avoiding increasing damages once the breach was learned). Under Rest Section 350, all that’s required is reasonable effort. Here, it appears A reasonably mitigated…

Question 37

Stipulated remedies and liquidated and punitive damages

Answer 37

parties may stipute to agree to limit their remedies to specific actions, such as receiving a refund or a right of repair/replacement, or also stipuate an amount or means of calculating money damages (“liquidated damages”). However, parties may not stipulate a “‘punishment” for breach (penalty clauses) which are unenforceable

Question 38

liquidated damages

Answer 38

1. at the time of the contract, actual damages were incapable oor very difficult to determine
2. the parties made a reasonable attempt to fix fair compensation for a breach; and
3. the amount stipulated bears a reasonable relation to probable damages