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Flashcards in PowerPoint 8 Deck (41):
1

Forward Looking Damages

Plaintiff monetarily placed as if contract performed.

2

Calculation of Expectation Damages

Expected benefits minus expected costs. You were going to sell for 20, you sold for 15 to mitigate damages, you sue to get 5 back.

3

Difficulty of Calculation

Awarded even if calculation is imprecise. Not awarded if calculation is totally speculative. Highly speculative to say that I would've won race had the mechanics shown up.

4

When the cost of cure to reclaim after an oil and gas project is worth more than the value of the land itself (even after reclaimed), what is the remedy?

If the landowner has a reason to want to keep using the land (wants to keep farming), the oil and gas company has to pay to reclaim. If the landowner has no reason, then only the value of the land has to be paid out.

5

Intangible Loss

No apparent economic value. Disappointment, anger, sadness, distress.

6

Why were damages for intangible losses traditionally denied?

Difficulty assessing value of loss. Loss falls outside commercial paradigm.

7

Can you ask for intangible losses in tort law?

Yes.

8

Can you ask for intangible losses in contract law?

No.

9

In what cases are damages allowed for intangible losses?

- If peace of mind was expected benefit.
- If reasonably foreseeable.

10

Notice Period

Employer has to give advance notice of termination. Usually get severance instead, give payment in lieu of severance.

11

Wallace case allowed for...

Extended notice period because of dismissal that was humiliating.

12

Remoteness

- Loss mut in fact be caused by breach.
- Loss must not be legally remote from breach.

13

When is loss not remote?

- When the defendant should have known of risk of loss.
- Defendant actually knew of risk of loss.

14

Hadley vs Backsindale

Hadley runs a mill. Shaft breaks. Hires Backsindale. Has 2 days. Backsindale does not deliver in time. Hadley was able to prove that Backsindale cost him lots of money. Backsindale did not know this. You can sue for consequential damages, but need to make sure O/P is aware of them.

15

Liquidation Damage Cost

If you breach, this is what it will cost you. This cost needs to reflect what you would actually lose.

16

Mitigation

Minimization of losses.

17

Duty to Mitigate

Plaintiff encouraged to minimize losses. For example, arranging alternate supply of materials after breach. Plaintiff merely needs to take reasonable steps. Plaintiff entitled to expenses incurred in mitigation.

18

What is the effect of failure to mitigate?

Damages reduced to extent losses not avoided.

19

Reliance Damages

Value of resources wasted under contract. What money did you put on the table relying on the fact that the contract would be created.

20

Backward-Looking Damages

Plaintiff placed as if contract never created.

21

Availability of Reliance Damages

Plaintiff usually has option: expectation or reliance.

22

Account of Profits

Damages traditionally limited to losses. However, relief now available for wrongful gains, even without the presence of a loss. Only available in exceptional circumstances.

23

Nominal Damages

Symbolize wrongdoing without loss. Symbolic gesture saying they did commit a tort.

24

Liquidated Damages

Parties' genuine pre-estimate of possible losses. Avoid complication of litigation, provide incentive to perform.

25

Effect of liquidated damages:

Recovery of agreed amount if breach. Actual size of loss (larger or smaller) irrelevant.

26

Do liquidated damages need to be reasonable?

Yes. If they are not, they are unenforceable. Cannot be used as a penalty.

27

Penalty Clause

No genuine attempt to estimate possible losses. Unenforceable: damages limited to actual loss.

28

Punitive Damages

Intended to punish outrageous conduct. Awarded in addition to compensatory damages.

29

General requirements for punitive damages:

- Harsh, vindictive, or reprehensible breach.
- Commission of independently actionable wrong.

30

2 forms of equitable relief:

- Specific performance.
- Injunction.

31

Specific Performance

Court order to perform contractual action.

32

Discretionary nature of equitable remedies:

- Awarded only if appropriate in circumstances.
- Denied if plaintiff does not have "clean hands."

33

Requirements for Specific Performance:

- Damages inadequate.
- Judicial supervision.
- Personal services.

34

Injunction

Court order to obey contractual prohibition.

35

Injunction generally has a ___ scope of availability.

Wider.

36

Specific performance has a ___ limit on freedom, as you cannot do anything other than the required act.

Large.

37

Injunction has a ___ limit on freedom, as you can do anything other than prohibited act.

Small.

38

Exclusion Clause

Contractual term limiting liability.

39

Enforcement of exclusion clause:

- Allowed by freedom of contract.
- Court protects consumer through narrow reading against drafter, must be drawn to consumer's attention, and clause inapplicable if unfair.

40

Unjust Enrichment

Independent cause of action. Unavailable if enforceable contract on point.

41

Requirements for unjust enrichment:

- Enrichment to defendant.
- Corresponding deprivation to plaintiff.
- Absence of juristic reason for enrichment.