Flashcards in Page 57 Deck (12):
What are the two views if a contractor breaches, for damages for the owner depending on the type of breach?
- if it would lead to serious economic waste: owner can get diminution in value (what he would've gotten minus what he actually got)
- if breach wasn't materially defective: cost of correcting the defect or the value of performance promised minus the value of performance actually gotten
Why are construction contracts not usually specifically reinforced?
Because damages are usually adequate and the courts don't want to supervise performance. Specific performance is only granted if the damages are in adequate and supervising isn't too hard
If there is a breach in a transportation/shipping contract as of late performance, what damages are given?
If it was reasonably foreseeable to the carrier that the goods were going to be sold, the super gets the reduction in market value between the time performance was due and the time it was rendered. Otherwise it is the reasonable Daily rental value of the shipped goods times the days of delay
What are the things that must be proven for restitution?
- D was unjustly enriched
- at the plaintiff's expense or by violating his rights
What is required of the defendant in a restitution action?
He must disgorge his unjust gains. Disgorge all economic value of benefits he received and return them to plaintiff if it is unjust for him to keep them. If what was given was performance, and then the money value of it is substituted
Is it possible to get damages and restitution?
What is the rationale for restitution?
Liability imposed by society for public policy that disregards the will of the defendant
Restitution damages often involve a defendant that wasn't what?
Competent: physically absent, unconscious, mentally incompetent, under age, etc.
What is another name for restitution?
What are the different views on what must be given in restitution?
- CL: P must give back all material benefits in order to commence the action and breaching parties cannot get restitution
- R2: only need to offer to make restitution, don't have to tender. Benefit to D must have been given by P
- Modern/UCC: breaching party can get restitution
How Do you determine the value of the benefit conferred for restitution?
The cost of avoided by the breacher. What he would've had to pay to get a similar benefit from someone else