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110 Cards in this Set

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Offer
An offer exists when a reasonalbe person would interpret the communication as having been made with the intent to create the power of acceptance in the recipient of the offer
General Rule
A valid contract exists if the parties mutally assented to the bargin, the agreement was supported by consideration, and there are no valid defenses to the enforcement of the contract.
Mutal Assent
Mutal assent is often said to be an agreement on the "same bargain at the same time--a meeting of the minds." This usually occurs during a negotiation where one party makes an offer and the other accepts.
Was There an Offer?
(1) the offer must be communicated
(2) Intent to create power of acceptance
- not expression of intent to make an offer in the future
- not an invitation for an offer
(3) Terms of the offer must be definite
- As a general rule the offer must identifiy the parties, include the subject matter, and the price.
- time for perfromance = a reasonable time
Reasonable Person Standard
(1) Course of previous performance or previous dealing
(2) Custom or usage of trade
Mistaken Offer
Offers containing errors are not capable of acceptance where the error was so obvious that the offeree should have realized that a mistake had been made.
Firm Offer
A firm offer is one which pertains to a sale of goods, is made in writing by a merchant, and assures the offeree that it will be held open. It is non-revocable - cannot exceed three months.
Offer for a Unilaeral Contract
An offer for a unilateral contract is one which can be accpeted only by performance of a specfic act, or refraining from performing an act which the offeree was otherwise entitled to undertake.
Termination of Offer by Offeror
(1) Revocation
- A revocation terminates the offeree's power of acceptance if it is communicated to him before he accepts.
- direct communication
- indirect communication: recieves correct informaiton, from a reliable source, of acts of the offeror that would indicate to a reasonable person that the offeror no longer wishes to make the offer.
(2) Limitations
- Options contracts
- recitals of consideration
- firm offers
- detrimental reliance
- part preformance (unilateral)
Termination of Offer by Offeree
(1) Rejection
- an express statement by the offeree that he does not intend to accept the offer is a rejection and terminates the offer.
(2) Counteroffer
- Is an offer made by the offeree to the offeror that contains different terms and serves as a rejection as well as a new offer.
- distinguish mere inquiry
- revival of offer
(2) Lapse of Time
Termination by Law
If either party dies or is adjudicated insane prior to acceptance, the offer is terminated
(2) Destruction of Subject Matter
- terminates power of acceptance
Acceptance
An offer is accepted when the offeree expresses assent to the terms of the offer in a manner invited or permitted by the offer.
Capacity to Accept
(1) Only the offeree can accept an offer.
- rights to accept cannot be assigned
Expression of Assent in Proper Manner
An acceptance is not effective unless communicated in a manner expressly authorized or owtherwise permitted by the offer.
Request for Prompt Shipment of Goods
An order to buy goods for prompt or current shipment will permit acceptance either by a prompt promise to ship or a prompt shipment of conforming or noncorming goods.
- nonconforming goods = acceptance and a breach of contract - if sell seasonably notifies the buyer that the shipment is offered as an accomodation, the shipment is not an acceptance and therefore no breach.
Assent to the Terms of the Offer - Mirror Image Rule
An offeree can only accept by an unconditional expression of assent to the exact terms of the offer.
UCC 2-207 (Abandons Mirror Image Rule)
Where both parties are merchants, the additional or new terms in the acceptance will be part of the contract unless:
(1) the offer expressly limits acceptance to the terms of teh offer, or
(2) the new terms materially alter the offer, or
(3) within a reasaonable time after learning of teh new terms, the offeror notifies the offeree that he objects to them.
- Where on party is not a merchant, the new terms are proposals for addtion, and unless the offeror assents will not become part of the contract.
The Mailbox Rule
An acceptance is effective upon dispatch excpet when the offer expressly states that acceptance will only be effective on receipt.
Consideration
In addition to mutual agreement (offer and acceptance), an enforcable contract requires consideration (or a consideration substitute). Two elements are necessary for consideration: there must be a bargained-for exchange between the parties; and that which is bargained for must be considered of legal value (it must constitute a benefit to the promisor or a detriment to the promisee.
Bargained for Exchange
A bargained for exchange exists when the promisor makes a promise to induce the promisee to perform and the promisee is induced to perform because of the prmise made by the promisor.
Gifts
A promise to make a gift is not enforceable becasue the promise is not supported by consideration.
Past Consideration
Generally, past consideration is not sufficent to support a promise.

Exceptions
- A promise to pay a debt barred by the statute of limitations is enforceable even when not supported by new condsideration, but only if the new promise is made in a signed writing. Part performance may substitute for signed writing.
- Promise to pay a debt discharged in bankruptcy.
- Moral consideration
Legal Detriment of Legal Benefit
For consideration to exist, the promissee must incur a legal detriment or the promisor must gain a legal benefit. Legal deteriment exists when the promisee promises to do an act that he is not already obligated to do or refrain from doing what he has a legal right to do.
Preexisting Duty Rule
A promise to perform (or an act of performance) of an already-existing legal obligation is inadequate to support a finding of consideration.

Exceptions:
- Voidable contracts: A new promise to perform a contractual duty that is voidable will be inforceable without new consideration.
- Same duty owed to third party: A promise to perform a duty already owed to another party is sufficient legal detriment to support new consideration.
- Unforeseen Difficulties: Unforeseen difficulty of performance that rises to the level of impracticability will constitute legal detriment sifficient for consideration to support a promise to pay more for the "same" performance by the other party.
Forbearance to Sue
A promise to surrender a valid legal claim or to refrain from asserting a defense to a legal action is legally sufficient consideration to suport a return promise.
Illusory Promise (Requirement of Mutuality)
Consideratoin must exist on both sides of the contract; that is, promises must be mutually obligatory. Ex. a promise to buy such ice cream as I may wish to order.
Requirements and Output Contracts
Requirements and Output contracts have consideration. Consdieration exists becasue the promisor has parted with the legal right to buy elsewhere.
- requires good faith and no unreasonably disproportionate demands.
Conditional Promises
Promises made conditional upon the happening fo some future event are not unenforceable for lack of legal detriment so long as the promisor does not have full power to control the occurence or nonoccurrence of the condition.
Substitutes for Consideration
Promissory Estoppel:
- Where the promisor makes a promise to the promisee under circumstances such that he should reasonably expect that the promisee will change position in reliance upon that promise, the promisor is estopped from asserting lack of consideration as a defense to enforcement, if injustice can be avoided only by enforcement of the promise. The promise will be inforced only to the extent required to prevent injustice.

UCC Promises in writing:
- Consideration is not necessary to a good faith written modification of a contract.
- Frim offers by merchants
- Reaffirmation of avoidable promise (minor becomes of age)
Requirement that No Defenses Exist
An agreement arrived at after mutal assent and supported by consideration or promisorry estoppel may still be unenforceable if there are any problems of capacity to contract; the agreement if the product of illegality, unconscionability, fraud, mistake, or unde influence; or the agreement fails to comply with the Statute of Frauds.
Capacity to Consent
Mental incompetence:
- If a party cannot comprehend the legal effect of teh agreement, no enforceable contract can be formed (insane, intoxicated).
- voidable if entered into before adjudication of incapacity and void if entered into after

Minors
- A contract entered into by a minor is voidable by the minor, but not the other adult party.
- minor must disaffirm the contract and return the benefit recieved,
- If after reaching 18, the minor clearly manifests an intent to be bound, he ratifies the contract and it becomes fully enforceable.
- A minor will be liable for the resonable value of necessities (food, clothing, houseing)
Illegality
If either the subject matter or consideration of a contract becomes illegal after formation, the illegality discharges the obligation to perform. An illegal contract is void, thus preculding relief for either party in court.
Unconscionability
The courts will refuse to enforce a contract if the court finds as a matter of law that a contract is unconscionable. Generally an unconscionable contract is one that is onesided and the product of unequal bargaining power.
Fraud
A contract in which the agreement of one party was induced by a material misrepresentaion by the other party will not be enforced.
Duress
If a party's assent was compelled by force or threat of force such that the party was not able to exercise free will, the assent will be the product of duress and the contract will not be enforced.
Undue Influence
A contract that results from undue influence is voidable. Undue influence occures when one party uses unfair persuasion agasint another party and there is a special relationship between them.
Mistake
Relief for cntracts entered into because of mistake may be granted, depending on whether the mistake is unilateral or mutual.
- Unilateral Mistake: If only one party entered into the contract because of mistake, no relief is granted unless the non-mistaken party knew or had reason to know of the mistake.
- Mutual Mistake: Where both parties are mistaken as to a basic assumption of the contract, the mistke goes to a material aspect of the subject matter of the contract, and the party asserting mistake as adefense did not assume the risk of the mistake, the contract is voidable.
Statute of Frauds
MYLEGS
(M) contracts in consideration of marriage
(Y) contracts which cannot per performed within one year
(L) contracts for the sale of land
(E) contracts by executors of estates to incur personal liabilty for estate debts.
(G) contracts for the soale of goods with a price of $500 or more
(S) Suretyship contracts (a contract to answer for or guarantee the debt of another).

It must contain the identity of the parties, the contract's subject matter, the terms and conditions, and signiture of the party to be charged.
Relief from Statute of Frauds
Estoppel: A party will be estopeed from asserting the Statute of Frauds if he promied not to assert it and the other party changed in reliance on this promise.

Quasi-Contract: If a contract is otherwise unenforceable under the Statute of Frauds, a party who has conferred a benfit upon the other party may proceed on a quasi contract theory (quantum meruit). That party may recover the reasonable value of the benefit conferred.
Parol Evidence Rule
Evidence of prior or contemporaneous agreements is not admissible to contradict the terms of a complete integrated written agreement (a final agreement containg all terms).
Complete Integared Agreement
A wrting is a compelte integration if the parties intended it to be the full and final expression of their agreement.
Partial Inegration
A contract is a partial integration (thus permiting parol evidence to prove that antother separate agreement exists as to the same subject matter) when only some atters were completely anf finally determined, while others were to be determined in a separate agreement.
Exceptions to the Parol Evidence Rule
No enforceable contract existed:
- does not preculde evidence if offered to show that there was no contract at all (due to fraud etc...) or the contract was subject to a condition precedent which remains unsatisfied.

Mistake/Reformation
- if one of the parties or third party makes a mistake when reducing the parties' agreement to writing, parol evidence is admissible to reform the writing to reflect the parties true intent.

Interpretation:
- Parol evidence is admissible to clear up ambiguous language or to supply an omitted term, even in an othewise completely integrated wrting, to show the parties attached special meaning to words.
Warranty if Contracts for Sale of Goods
A warranty is a promise that goods sold will be of a specified or minimum qulaity. Warranties may be express or implied.

Analytical Approach:
- have the seller's actions created a warranty?
- if a warranty has otherwise been created, has the seller, disclaimed any warranty?
Express Waranty
An express warranty is created when the seller makes statements of fact or promises regarding the goods, describes the goods, or provides sampels or models of the goods; and the above actions become part of the basis of the bargain.

Basis of the Bargain:
- can the buyer demonstrate that the statement was made adn taht he was aware of it? Seller can rebut by showing nonreliance of buyer.

If the goods sold on not meet the qulity promised, buyer can recover for breach of the warranty under available contract remedies.
Has Seller Disclaimed Any Express Warranty
Generally an express warranty cannot be disclaimed, but if there are also words or conduct negating the express warranty, problems of interpretation arise. Negation or limitation is inoperative to the extent that such construction is unreasonable. The basic oplicatoin created by the description of the product cannot be read out of the contract by a disclaimer.
Implied Warranty
Warranty of Merchantability UCC 2-314
- the seller is a merchant and the merchant deals in the goods of the kind sold

Warranty of Fitness for Particular Purpose UCC 2-315
- May be created by any seller if the seller has reason to know that the buyer has a particular purpose for the goods purchased, that the buyer is relying on the seller's skill and judgment in slecting a product for that purpose, and the buyer actually relies on the seller's skill and judgment.
Has Seller Discliamed Any Implied Warranty
Express Disclaimer:
- A seller may disclaim any implied warranty of merchantability if the disclaimer includes the term "merchanability" and the writing is conspicuous.
- A seller may disclaim any implied warranty of fitness if the disclaimer says "there are no warranties that extend beyond the discription on the face of this product" or similar words, in writing, and conspicuous.

Circumstantial Disclaimers:
- A court may find that any implied warranties have been disclaimed based upon the circumstances of teh sale of goods
- buyer examines goods purchase; words of the agreement (sold as is); and trade, custom or course of dealing.
Modification
After the parties have entered inot a contract (but before both sides have fully performed) the parties may attempt to modify the duties owed by one party or both. Evidence of modification will not be barred by parol evidence.

Elements:
- Modification of a contract requires mutual assent and new consideration.
UCC Modification
Modification of a contract for the sale of goods must have mutual assent. No new consideration is necessary so lang as the modification was made in good faith.
Accord and Satisfaction
An accord is an agreement between two parties to an existng contract in which one party agrees to accept a different performance tahn specified in the contract. Once the performance is provided, a "satisfaction" occurs and both the accord and the orginal contract duty is satisfied.
- must be unliqueated or disputed debt: when a debtor offers to pay less then the full amount owed and the creditor agrees to accept, a valid accord and satisfaction exists only if teh debt was either unliquidated (no specific debt agreed to) or in dispute.
Performance
A duty to perform under a contract which is conditional will not become absolute unitl the conditons have been satisfied or excused.

If a contract has been properly formed and is not subject to any valid defenses, the next question is whether either party has an absolute duty toperform under the contract. If an absloute duty to perform exists, has the duty been discharged or breached?
Conditions v. Promises
A promise is a commitment to do or refrain from doing something. The promise in the contact may be conditional or unconditional. An uncondtional promise is absolute; a conditional promise may become absolute by the occurrence of the condition. If the promise is unconditional, the failure to perform is a breach of contract.

A condition is an event, other than the passage of time, the occurrence or nonoccurrence of which will create, limit, or extinguish the other contracting party's absolute duty to perform. A condition is a promise modifier. There can be no breach of promise unitl the promisor is under an immediate duty to perform. The failure of a contractual provision that is only a condition is not a breach of contract, but it discharges the liability of the promisor whose obligations on the conditional promise never mature.

Test: intent of the parties (words of agreement, prior practices, custom, thrid-party performance, courts prefer promise in doubtful situations).
Express Condition Precedent
An express condition precedent is an event, not certain to occur, which the parties have agreed must occur before performance, or a particular act of perfrmance, under an existing agreement becomes obligatory.
Conditions Based on Personal Satisfaction
A contract for services may conatin a clause stating that payment for services is subject to approval by the paying party, who must be satisfied with the quality of the serviecs rendered. Requires good faith
Condition Concurrent
When both parties have a conditon precedent to thwir duty to perform but both conditons precedent can occur at the same time.
Condition Subsequent
A condition subsequent is an event, not certain to occur, whose occurance extinguishes an already existing absolute duty of performance.
Implied Conditions
Are those fairly inferred frm evidence of the parties' intention.
Constructive Conditions
Are conditions read into by the court without regard to the parties' intentions.

The time test: The courts will also imply construcitve condtions relating to thetime for performing under the contract.
Excuse of Conditions
There are two primary reasons why a condition will be excused breach of contract by the other party or waiver of the condition by the other party.
Breach
If one party comits an act that is both a breach of cntract and causes the nonoccurrence of a condition of his duty to perform, it may be sufficient to excuse the condition and the duty to perform will become absolute--depending on the type of breach.
Prevention
There is an implied duty in all contracts that the parties act in good faith toward each other. A party must not engage in conduct which prevents occurrence of a condition. If so, the condition is excused.
Anticipatory Repudiation
In a fully executory contract, words or conduct by one party that clearly indicate that he will not perform are a breach of contract by anticipatory repudiation.
- conduct or statements that suggest that performance is doubtful or unlikely is not sufficient.
Waiver
A voluntary relinquishment of the right to insist on satisfaction of the condition.
- The waiver may be withdrawn if the waiving party communicates the withdrawal at any time before teh time specified for occurance of the condition and the other party has not already relied to his detriment on the waiver.
- waiver must be minor (not material)
- no formalities necessary
Discharge
Where a duty has become an absolute duty (either not conditional or the condtions have been satisfied) the promisor may not be liable for nonperformance is some supervening event or change in circumstances arises after formation fothe contract which discharges his duty to perform.
Impossibility
Events or circumstances arising after formation may render performance of an absolute duty impossible (illegality,death, destrcution)
- performance must be objectively impossible
Illegality
If after formation but before time spcified for performance, changes in laws, regulations, or other government action make the called-for performance illegal or physically impossible, the promisor is discharged from his absolute duty to perform.
Death
The death or disability (prior to the time of performance) of a paticular person necessary for performance of an absolute duty discharges that duty if the contract involved is one for personal services.
Destruction
Destruction or deterioration (prior to time of performance) of a particular thing necessary for the performance of an absolute duty may discharge the duty if not the result of the fault of either party.

Risk of Loss
- Sale of property: equitable conversion = buyer as soon as contract is formed
- Building Construction: builder
- sale of goods: if not in contract then, if shipped by carrier seller reatians risk of loss unitl delivery. If goods are held by bailee, with the seller until buyer receives a negotiable document of title
Impracticability
Refers to the situation where performance of an obligation is not literally impossible, but it would be extremely difficult or risky to perform as promised.
Failure of Basic Assumption
Where a party's performance is made impractical by occurence of an event, the non-occurance of which was a basic assumption on which the contract was made, that party's duty is discharged, so long as the event is not the fault of the party seeking relief.
- if an event is reasonably unforeseeable, and its occurence renders performance very difficult, most courts would regard ita as failure of a basic assumption.
Commercial Frustration
Where performance of the contract is both possible and practicable, but circumstances arise after formation which are not the fault of either party and which deprive one of the parties of the benefit anticipated from performance, that party's obligation to perform may be discharged.
- nearly total frustration required
Breach
Once the duty to perform becomes absolute (all conditions have been satisfied or excused and the duty to perform was not discharged), the failure to perform will constitute a breach of contract.
Anticipatory Repudiation
If the timing of the breach occurs before both parties have fully performed.
Present Breach (Magnitude)
If the breach occurs at the time set for performance (or later), the consequences of the breach will depend on whether the breach is characterized as material or non-material (minor).
Material Breach
If a breach is charagerized as material, the non-breaching party may suspend his perfomance and bring suit for damages or any other remedies he is legally entitled to.
- the greater the amount of the total performance that the non-breaching party has already recieved at the time of the breach, the more likely that the breach will be considered minor. "Substantial performance" will almost always be minor.

To determine if material or minor look at
- the hardship suffered
- willfulness of the breach
- breach compensable by damages
UCC Perfect Tender Rule
A minor breach may be treated by a buyer as material subject to the seller's right to cure. If the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may reject the whole, accept the whole, or accpt any commercial unit or units and reject the rest.

Sellers right to cure:
- if a tner or delivery by the seller is rejected as nonconforming goods and the itme for performance has not expired, the seller may notify the buyer of the seller's intention to cure and then, within the time for performance, deliver conforming goods.
UCC Installment Contracts
Is one which requires or authorizes the delivery of goods in separate lots to be separately accepted, even if the contract specifies that each installment is a spearate contract or words to that effect. The buyer may reject any installment whose nonconformity substanitally impairs the value of that installment.
Rejection After Acceptance
Where the buyer has accepted the seller's goods, the buyer may reject goods "whose nonconformity substanially impoairs their value to him if he reasonably believed the nonconformity would be cured and it was not timely cured, or he failed to discover the nonconformity becasue it was reasonably undiscoverable or becasue he was lured by the seller's assurances.
- the rejection must occur within a reasonable time, notify seller of rejection, and no substantial change the conditon of the goods
Termination of Performance
The non-breaching party is permited to terminate his performance and teh contract upon a material breach (if not cured) by the breaching party.
Third-Party Contracts
This section deals with the issues which arise when a third party enters into the contractual relaitonship.
Third-Party Beneficiary
When the third party seeks to enforce the contract agaisnts one of the orignal parties.

Types
- creditor beneficiaries
- donee beneficiaries
- incidental beneficiares

One is a third party beneficiary (intended beneficiary) where permitting her to enforce the promisor's promse would effecutate the parties' (the promisor and promisee) intentions, and performance by the promisor will satsify the promiss'e obligation to pay money to the third party benficiary, or the circumstance indicate that the promisee intended the benficiary to receive the promised performance.
Donee Beneficiaries
If the promisee intended to either make a gift to the third party or to confer a right on that third party to a performance that was not acutall owed.
- Promissee owes not duty to beneficiary
- primary purpose is to make gift
- confer a right to performance
- indentification of donee beneficiary
Creditor Beneficiaries
If the promisee does not intend to make a gift to that third party and the promisee obtained the promisor's performance intending to satisfy an acutal obligatoin owed by the promisee to the third party.
Incidental Beneficiaries
Are third persons who benefit from the performance of a contract but who cannot be classified as creditor or donee. The original parties do not intend to confer benefit.

No right to enforce contract.
Vesting
Until the rights of a third party benefiicary have vested, they are subject to termination or modification by the orignal parties.

Vests if
- it learns of the contract and assents to it in a manner invited or requested by the parties
- materially changes his position in justified reliance on the promise
- brings suit to enforce the promise

Once vested, the parties may not modify or terniate the rights.
Benificiary v. Promisor
If vested, may seek damages, or specific performance.
Benificiary v. Promisee
Not affected by the formation of the prior relationship, if breached may enforce prior rights.
Assignment of Rights
After formation, one of the original parties to a contract transfers the right to receive the performance and or the obligation under that contract to a third person.

Analytical Approach
- Was the assighment effective
- Are there limitations on power to assign
- has assignment been revoked
- priorities of assignees
- what are the rights of the parties
Effective Assignment
To be effective, an assignment must adequately describe the rights being transferred and must manifest an intention to presently vest the rights in the assignee.
Limitations on Assignment
(1) express limitation in contract (affects only right to assign)
(2) Right v. power
- right refers to whether an assignment would be lawful, power refers to whether the assighment will be given legal effect.
(3) Assignment may not increase burden on obligor
(4) Future rights not assignable
Revocation of Assignment
The assignor notifies the assigness or obligor of the revocation, teh assignor subsequently assigns the same right to another, different assignee, the death of the addignor occurs, the assignor delcares bankruptcy, the assignor recieves the obligors performance.
Priorities Amoung Assignees
- Irrevocalbe assignments = first in time
- Revocable assignments = last in time
Rights of the Parties Assignee v. Origainal Obligor
Assignee has direct right of action to enforce the contract.
Rights of the Parties Original Obligor v. Assigness
The assignee stands in the same realtion to the obligor as the assignor did prior to assigment.
Assignee v. Assignor
The assignee can enforce any rights otherwise arising from his agreement with the assignor.
Limitaions of Right or Power to Assign
(1) limitaions in contract
(2) non-delegable duties: if the obligee has a subtanital interest in the personal perfomance of the original obligor (personal services contract)
(3) Invalid Delegaiton not a breach of orginal contract
Novation
A novaiton is a new agreement between the original promisee and the third party, as a part of which the promisee agrees to release the original obligor form hnis promises.
Specific Performance
SP is where the court orders the breaching party to comply with the original contract and is likely when the transaction involves a transfer of land or where monetary damages would be difficult to calculate.
Damages
Are intended to palce the injured party in the position he would have occupied had the contract been performed.
Analytical Approach
(1) does the contract provide for liquidated damges
(2) what is the injured parties expectancy interest
(3) are there any consequential damages
(4) are there any appliable limitations on damages
(5) What is the injured party's reliance interest
(6) Whist is the injured party's resitutionary interest?
Liquidated Damages
Liquidated damage clasues are enforceable where damages would otherwise be extremely difficlut to determine, the parties made a bona fide effort to estimate the damages which would result if a breach occured, and the damages stipulated are reasonable in light of the actual damages.
- liquidated damages that are a penalty are unenforceable
Expectation Damages
To the extent possible, an aggrieved party should be put in the position he would have been had the D performed his contractual obligations.
- can only recover losses which are calculable
- damages must have been reasonably foreseeable
- Aggrieved party must mitigate damgages to extent possible
- P must avoid incurring unnecessary damagaes
Mitigation of Damages
Where a breach of contract has occured, the aggrieved party must mitigate his damages to the extent it is pissible to do so.
Consequential Damages
In addition to expectancy damages, other contract damages not naturally arising from the type of agreement between the parties, but particular damages contemplated by them at formation, may also be recovered if properlty proven.
- Must be objectively foreseeable
Limitations on Damages
Damages must be resonably certain.

Damages must not be avoidable (duty to mitigate)
Reliance Interest
Where the breacher shows by appropriate proof that even if the contract had been fully performed, the injured party's expectation damages would have been less than the costs incurred. The injured party may then only revocer the lower amount.
Restitutionary Interest
Requires the breaching party to return to the injured party the value of any benifit the injured party conferred upon the breacher.
Specific Performance
Is designed to place the injured party in the position he would have occupied if the contract had been performed, by compelling the breaching party to render the promised performance.

Elements: is available when there is a definite and certain contract, the remedy at law is inadequate, the enfocement of the SP is feasible, no mutuality of remedy and no defenses to SP.
Defenses to Specific Performance
Unclean Hands: A party has unclean hands when that party had engaged in inequitable conduct with regard to the transaction for which he seeks SP (misrepresentaion, duress, undue influence, or unconscionablity.

Hardship: SP may be preculed where it would be a hardship on the other party. When the other party took unfair advantage of the breachor and the braching party received inadequate consideraiton.

Laches: SP may be denied where the breahee unrealsonably delayed asserting his rights and this dealy cause dprejudice to the breaching party.

Bona Fide Purchaser for Value: not available when the braching seller has conveyed to a BFPV.