Flashcards in Page 48 Deck (19):
What is required for restitution?
Prior breach, and certainty of damages (although UCC allows approximation when certainty can't be had)
What is needed for certainty of damages for restitution?
They must be certain in their nature and must show the breach caused the injury. Approximation and reasonable certainty is enough
Are Lost profits from a sports event or performance certain enough for recovery in restitution?
No, and new businesses can't show what their profits will be with certainty either
What are alternatives to certainty that is necessary for restitution?
- Reliance interests
- value of a chance of opportunity
- rental value of property
What is involved in the reliance interests alternative to certainty that is required for restitution?
Person can recover costs, preparation expenses, part performance, and foreseeable expenses in reliance on the contract
If a farmer buys defective seeds, he likely can't prove what the value of a good crop would be to show certainty for restitution, but he can usually recover what?
What he paid for the seed, the rental value of his land, the cost of prepping and sowing the seeds, etc.
If damages are uncertain, but there was a chance of making a profit, what is given in restitution?
The law of averages is used for things that aren't in the control of the parties, like contest, drilling explorations, etc. Lost opportunity is based on the price a reasonable person would pay for the opportunity
If a breach prevents the use and operation of property that profits could've been made from, what are damages in restitution?
The rental value of the property or interest on the value of the property
What Is market value?
The sum of money a reasonable buyer would pay
How can you prove value of an item?
Through publications that report prices in an established market, prevailing prices around the same time, expert opinion, original cost less depreciation, reproduction cost less depreciation, sale of comparable items, etc.
Is an offer to buy property considered proof of value?
No, but an offer to sell can be used as evidence
If an item has different values depending on its use, which one is used in restitution?
The most profitable one (if the item is a cow that can be milked, bred, or eaten)
What is the reasoning for a duty to mitigate damages?
A party that has been wronged by a breach can't sit idly by and allow damages to accumulate, because those aren't proximately caused by the breach
What is the exception to duty to mitigate damages?
If continuing performance will cut down damages, the party can continue without jeopardizing recovery
Under the duty to mitigate, must mitigation be successful?
No, you just have to use reasonable efforts to mitigate
Must you mitigate if it involves unreasonable expense, committing a wrong, or jeopardizing your credit?
Who has the burden of proof to show duty to mitigate wasn't met?
What are the differences in duty to mitigate between exclusive and nonexclusive contracts?
- exclusive: includes employment contracts and unique items or limited space. Ie:party has duty to devote working hours to employer, so if wrongly discharged, his damages a reduced by the employment/could get with reasonable diligence during the contract.
- nonexclusive: if the agreement allows employees to freely enter similar contacts with others, and one party breaches, doesn't matter that party could make similar contracts with others, that party is free to get as many customers as he wants.