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139 Cards in this Set
- Front
- Back
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What is the general attack plan for contracts essay questions?
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0) UCC vs. Common Law
1) Is there a legal relationship between the parties? 2) Are there any defenses? 3) Are there any conditions which must be fulfilled before the duty to perform arises, and if so, have they been satisfied or excused? 4) Has the duty to perform been discharged? 5) Has the duty to perform been breached? 6) Are there any 3rd party beneficiaries, assignment, and delegation issues? 7) What is the remedy for breach? |
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What is the attack plan for contract formation? (Legal relationship)
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OACD
Offer Acceptance Consideration Defenses |
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What is the attack plan for contract defenses?
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IF i C SCUM PE
Illegality Fraud Consent Statute of Frauds Capacity Unconscionable Mistake Parol Evidence |
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What is the attack plan for conditions?
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IC PAW DIE
Identify and Categorize Prevention of performance Anticipatory Repudiation Waiver Disablement (implied rep. by conuduct) Impossibility Estoppel |
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What is the attack plan for discharge of duty?
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IF SIC
Impossibility Frustration of Purpose Subsequent Agreement Impracticability Condition Subsequent |
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If there is a breach, what effect?
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Material versus minor
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What is the attack plan for third party beneficiaries, assignment, and delegation?
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No real attack plan - spot individual issues
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What is the contract remedies
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1) What damages are recoverable and what limitations apply?
2) Is Restitution, Rescission, or reformation avaliable? 3) Can specific performance be obtained? 4) Land sale, construction, personal service contracts |
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What are the two governing bodies of contract law?
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Contracts are goverened under the common law or the UCC. Only contracts for the sales of tangible, movable goods are covered by the UCC
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What is the definition of a contract?
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A contract is a promise or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty.
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What are the three types of contracts?
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Express: formed by language
Implied: formed by conduct Quasi: Not a contract, but a remedy to avoid unjust enrichment |
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Define unilateral versus bilateral contracts.
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Bilateral: an exchange of promises
Unilateral: exchange of an act for a promise – limited to situations where the offeror has stated the only way to accept is by performance or where there is an offer to the public clearly contemplating acceptance by performance |
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Define Void, voidable, and unenforceable contracts.
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Void: without any legal effect
Voidable: a party may elect to avoid or ratify Unenforceable: one which is otherwise valid but for which some defense exists extraneous to formation |
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What is the rule statement for an offer?
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An offer requires intent to contract, must be certain and definite, and requires communication to the offeree
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Define "intent to contract", "certain and definite", and "communication to the offeree" in the formation context
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Intent - would a reasonable person think his or her acceptance would create a contract?
Certain and definite - enough of the essential terms must be provided to justify the inference of the power of acceptance (Land sale, land and price. Goods, see sales outline. Employment, duration must be specified). The court will fill in missing terms if consistent with parties intent but not vague terms or agreement on a material term later. Communication: The offer must be communicated to the offeree. |
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How may a contract be revoked?
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1) Directly communicated by offeror, or
2) Actions inconsistent with continued willingness to maintain offer and offeree receives correct information from a reliable source. (Offers made by publication must be revoked by publication) |
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When is a revocation effective?
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Upon Receipt.
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When can an offer be revoked?
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Any time by the offeror, unless the offer is a UCC firm offer (see Sales) or there is detrimental reliance, or a unilateral contract where offeree has begun performance.
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What is a rejection?
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A rejection of an offer is either an express refusal of the offer (No. Fuck off.) or a counteroffer. (Be sure to mention the "mere inquiry" rule)
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What is the mere inquiry rule?
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A question about the terms of a contract is not a counteroffer but a mere inquiry. The test is, given the circumstances, does the question create the power of acceptance?
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What is lapse?
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An offer lapses and is therefore terminated if not accepted or rejected in a reasonable time
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Can an option contract be terminated by rejection?
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No, the offer is open according to the bargained-for terms unless the rejectee detrimentally relies.
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What are the three ways an offer can be terminated by operation of law?
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1) Death or insanity of either party (unless the offer is of a kind that cannot be terminated)
2) Destruction of the subject matter 3) Supervening illegality |
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What are the requirements for a valid acceptance?
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1) An offeree with the power of acceptance (to whom addressed or class of persons. Only option offers can be assigned).
2) Unequivocal terms of acceptance. 3) Communication of acceptance. |
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What does Unequivocal mean?
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Acceptance must mirror the offers terms. See Sales for UCC version.
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How can acceptance be communicated?
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Means: Modern law says any reasonable means unless explicitly limited.
Phrasing: Use an objective standard - would a reasonable person think there was an acceptance? |
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What is the mailbox rule?
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An acceptance by mail is effective at the time of the mailing.
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What are the exceptions to the mailbox rule?
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1) Explicit limitation in the offer
2) Options contracts 3) Rejection is mailed first - in that case, whichever is received first 4) Rejection is mailed after acceptance, arrives first and offeror detrimentally relies. |
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Can an acceptance be made by unauthorized means?
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Yes, modern law allows acceptance by unauthorized means but it is only effective upon actual receipt. The rule is the same for mis-addressed letters.
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What is the crossing offers rule?
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Crossing offers, even if the terms match, do not create a contract, despite the apparent meeting of the minds because an offer is only effective upon receipt.
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When is an acceptance not required?
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1) There is an express waiver of communication in the offer
2) The offer requires an act as acceptance 3) The offeree silently takes the offered benefits |
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When is a contract unilateral?
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Only if its terms clearly warn so.
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When can a person bind the offeror in a unilateral contract?
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A person must be motivated by the unilateral offer and have knowledge of it.
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Are "I have read and understood" provisions valid?
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Only if a reasonable person would have understood the terms.
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Define consideration.
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Consideration is composed of 1) exchange, and 2) legal value.
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What is the exchange prong of consideration?
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The parties must exchange something - in case of a bilateral contract, a promise for a promise (vs. a promise for an act)
An act or forbearance by the promisee will be sufficient to form a bargain if it benefits the promisor - this can include peace of mind or gratification. |
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Is past or moral consideration valid?
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Moral consideration is not valid. Past consideration is not valid unless the obligation is 1) not enforceable because of a technical defense, 2) a new writing is made in writing or partially performed.
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What is the legal value prong of consideration?
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1) Courts do not inquire into the adequacy of consideration. However, token consideration (entirely devoid of value) as well as sham consideration (recited but not paid) is not valid.
Bonus: the possibility of value, even if never realized, is valid. 2) A party must incur detriment (by soing something not legally obligated to do or refraining from somthing legal right to do) Minority: conferring a benefit is ok too. |
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What is the preexisting legal duty rule?
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Traditionally, performing or promising to perform an existing legal duty is insufficient consideration.
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What are the exceptions to the preexisting duty rule?
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1) New or different consideration is promised
2) The promise is to ratify a voidable obligation 3) Duty is owed to a third person 4) Honest dispute as to the duty 5) Unforseen circumstances sufficicent to discharge the duty |
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Is forbearance to sue good consideration?
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Yes, only if the claim is valid or the claimant believed in good faith that it was valid.
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What is the test for a gift?
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1) Intent
2) Delivery |
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When should "mutuality" be mentioned on an essay exam?
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1) Requirements/output contracts
2) Conditional promises (unless the condition is entirely within the promisor's control) 3) Contracts where a party has a right to cancel, if the right is somehow restricted 4) Voidable promises 5) Unilateral / option contracts 6) Gratuitous suretyship promises made before consideration flows to the principal debtor |
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What is an illusory promise?
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If only one party is bound to perform, the promise is illusory.
*If a promise allows for several alternatives, chosen by promisor, every one must involve legal detriment. However, it will not be illusory if at least one alternative involves legal detriment and the power lies with the promisee or a 3rd party, or a valuable alternative was actually selected. |
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Must all consideration be valid?
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No. If promisor makes two promises as consideration, one of which is defective, valid consideration still exists.
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What are the substitutes for consideration?
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1) Promissory Estoppel
2) Promises to pay legal obligations barred by law 3) Seal |
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Define promisorry estoppel.
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1) The promisor should reasonably expect her promise to induce action or forbearance
2) Of a definite and substantial character 3) Such forbearance or action is in fact induced. |
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Define Promises to pay legal obligations barred by law in the consideration context.
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A new promise to pay a debt now barred is valid consideration if in writing, enforceable according to the new terms
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Define Seal in the consideration context.
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Most courts reject a Seal as valid consideration.
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Define Mutual Mistake.
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1) The mistake concerns a basic assumption on which the contract is made (parties think a cubic zarconia is a diamond),
2) The mistake has a material adverse affect on the agreed upon exchange (cz's are worth 1/100 of the value of a diamond), 3) The adversely effected party did not assume the risk of the mistake. *Not a defense if the parties' assumption is doubtful, or with a mistake in value, (except if 3rd party verfies) |
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State the rule for unilateral mistake:
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A mistake of one party is not a sufficient defense to formation unless nonmistaken party knew or should have known of mistake. Voidable in that case.
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State the rule for mistake by intermediary:
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If there is a mistake by an intermediary (i.e. a telegraph company) the message will be operative as transmitted unless the party receiving the message should have been aware of the mistake.
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State the rule for latent ambiguity:
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If neither party is aware of the ambiguous term's meaning, no contract unless they both had the same meaning.
If both parties aware, no contract unless both parties meant the same meaning. If one party is aware, binding contract on what ignorant party reasonably believed to be the meaning of ambiguous words. |
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State the rule for fraudulent misrepresentation or material nonfraudulent misrepresentation:
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If a party induces another to contract by asserting information that he knows to be untrue or by asserting information that he does not know is untrue but would induce a reasonable person to enter a contract, the contract is voidable if the innocent party justifiably relied on the misrepresentation.
*Bonus - if there is fraud in the factum , that is the party is somehow tricked into assenting, this is just void. |
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What are the rules for illegality of contract?
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Consideration or subject matter of a contract is illegal = void contract.
Exceptions: 1) The plaintiff is unaware of illegality while defendant is aware 2) Parties are not in pari delicto (one party is not as culpable as the other) 3) The illegality is the failure to obtain a license when the licensing statute is for revenue raising purposes and not for protection of the public. If only the purpose behind the contract was illegal, the contract is voidable by the party who was unaware of the purpose or was aware of but did not facilitate the purpose (also does not involve serious moral turptitude). |
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What are the rules for capacity-based defenses?
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1) Contracts by minors are voidable with the exception of necessaries. Upon reaching majority, the minor may affirm obligation. No express disaffirmance is an affirmation.
2) Insane persons lack capacity, may contract during a lucid interval. 3) Intoxicated persons lack capacity if the other party had reason to know of the intoxication. 4) Contracts induced by duress and coercion are voidable. |
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What is the Statute of Frauds?
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The following agreements must be in writing: MY LEGS
Marriage - promises made in consideration of marriage Year - promises that cannot be fulfilled in one year. Land - any interest in land besides a leasehold that is one-year or less Executor - promises by executor to pay estate's debts out of their own funds Goods - Sales of goods for $500 or more Surety - promises to answer for the debt or default of another. |
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When is the statute of Frauds satisfied?
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1) Identity of party sought to be charged
2) Identification of the contract's subject matter 3) Terms and conditions of the agreement 4) Recital of the consideration 5) Signature of the party to be charged or his agent. |
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What are the exceptions to the Statute of Frauds?
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1) An admission that a contract existed
2) Part performance 3) Goods - part payment or acceptance to extent of above 4) Land - two of three: full or partial payment, posession, valuable improvements 5) Occasionally to correct injustice, promisorry estoppel |
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What are the rules for unconscionability?
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A contract is voidable where it is so one-sided as to be unconscionable. Includes inconspicuous risk-shifting provisions and contracts of adhesion. Tested at the time contract was made. This defense is more applicable when one party has substantially superior bargaining power.
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In terms of vocab, what is the typical 3rd party beneficiary situation?
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A, promisee, contracts with B, promisor, that B will render some performance to C, the 3rd party.
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What is the rule for intended versus incidental beneficiaries?
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Only intended 3PB have contractual rights. Consider if 3PD is ID'd in the contract, receives performance directly from promisor, or has some relationship with the promisee.
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When does a 3PB acquire contract rights?
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Only when his rights vest. This happens when 1) 3PB manifests assent in the manner requested by the parties, 2) brings suit to enforce the promise, or 3) Materially changes position in justifiable reliance on the promise.
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Should 3PB sue Promisor (B), what defenses are avaliable?
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Any defenses promisor B would have against promisee A may be raised against 3PB.
Promisor B may raise defenses that Promisee A had against 3PB if the promise was only to pay what A "owes" 3PB. |
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Should 3PB sue Promisee (A), what are the rules?
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A creditor beneficiary can sue promisee (A) on existing obligation between them or the promisor (B) but may obtain only one satisfaction.
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Can Donee 3PB sue promisee?
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No, unless grounds for detrimental reliance theory exists.
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In terms of vocab, what is a typical assignment situation?
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X, obligor, contracts with Y, assignor. Y assigns his right to X's performance to Z, the assignee.
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What contract rights may be assigned?
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All contractual rights may be assigned, except:
1) An assignment that would substantially change the obligor's duty or risk 2) An assignment of future rights to future contracts 3) An assignment prohibited by law (wage assignments) |
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What language must be used to bar assignment?
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"Attempts to assign WILL BE VOID" parties can bar assignment.
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What effect does a clause prohibiting assignment of "the contract" have?
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Such a clause bars delegation of the assignors duties only.
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What effect does a clause prohibiting assignment of contractual rights have?
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Such a clause does not bar assignment, it merely gives the obligor the right to sue for damages.
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What is neccessary for an effective assignment?
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A party must manifest an intent to immediately and completely transfer his rights. (A writing is usually not required. No consideration is needed. The word "assign" need not be used. The thing being assigned must be adequately described).
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When is an assignment revocable?
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An assignment for consideration is irrevocable.
A gratuitous assignment is irrevocable if 1) the obligor has already performed, 2) A token chose is delivered, 3) An assignment of a simple chose is put in writing, 4) detrimental, justifiable reliance. |
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When is a revocable gratuitous assignment terminated?
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1) Death or bankruptcy of the assignor
2) Notice of revocation by the assignor to the assignee or obligor 3) the assignor taking performance directly from obligor 4) Subsequent assignment of the same right by the assignor to another |
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Extra Credit: What effect does an assignment have between the obligor and the assignee?
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Privity of contract is established between them, while extinguished between obligor and assignor.
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Can assignee sue obligor, and if so, what defenses are avaliable?
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Assignee can sue obligor. Obligor has avaliable defenses that were avaliable at the time of formation. Cannot raise ass versus ass defenses.
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Can the assignee sue the assignor (extra credit)?
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Yes, if assignor wrongfully exercised the power to revoke in an irrevocable assignment situation.
Yes, if obligor successfully asserts a defense against assignor in an action by the assignee against the obligor, assignee may sue assignor to enforce the obligation, unless obligor is incapable of performing. |
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What if assignor reassigns an irrevocable assignment?
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The first assignment will prevail, unless second assignee has paid value and taken without notice, and 1) the subsequent assignee gets the first judgment against the assignee, 2) The subsequent assignee gets the first payment of a claim from the obligor, 3) a token chose is delivered to 2nd assignee, 4) the 2nd assignee is the party to a novation releasing the assignor, or 5) The subsequent assignee could proceed against the first assignee on an estoppel theory.
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What duties may be delegated?
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Generally, all of them, except
1) Personal judgment and skill 2) Change obligee's expectancy 3) A special trust was reposed in the delegator by the other party to the contract 4) There is a contractual restriction to delegation. |
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In terms of vocab, what is a typical delegation situation?
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Y (the obligor/delegator) promises to perform for X (the obligee) and delegates her duty to Z (the delegate or delegatee).
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What is required for an effective delegation?
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The delegator must manifest a present intent to delegate. There are no special formalities, may be written or oral.
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What are the rights and liabilities of the parties in a delegation?
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The obligee must accept performance from the delegate all duties that may be delegated. The delegator remains liable on the contract. The obligee can only require the delegate to perform if there has been an assumption.
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What is an assumption in the delegation context?
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As assumption is when a delegate promises to perform the duty delegated, and such a promise is supported by consideration.
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What are the primary rules of construction for common law contracts?
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1) A contract is to be construed as a whole and according to the ordinary meaning of words.
2) Inconsistency between typed or handwritten provisions and pre-printed provisions will be resolved in favor of the former. 3) Ambiguities are construed against the party preparing the contract absent intention of the parties. 4) Courts look to custom and usage in a particular locale to determine intent when it is unclear. 5) Courts will try to reach a determination that a contract is valid and enforceable. |
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What is the parol evidence rule?
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Evidence of prior or contemporaneous negotiations and agreements that contradict, modify, or vary contractual terms is inadmissible if the written contract is intended as a complete and final expression of the parties.
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What is a merger clause and what is its effect?
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A merger clause is a recital that a contract is complete on its face. A merger clause strengthens the presumption that the written document is final.
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What are the exceptions to the parol evidence rule?
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1) Formation defects such as fraud, duress, mistake, illegality
2) Existence of a condition precedent 3) The parties intent regarding ambiguous terms 4) Consideration problems 5) A valid prior agreement which (as by mistake) is incorrectly reflected in the writing 6) A collateral agreement if it does not contraduct the main contract and if it is not so closely connected as to be part of the main contract 7) Subsequent modification |
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What is the definition of a promise (or covenant)?
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A promise is a commitment to do or refrain from doing something. It may be conditional or unconditional.
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What is the definition of a condition?
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A condition is an event the occurrence or non-occurrence of which will create, limit, or extinguish the absolute duty to perform - it is a promise modifier.
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What is the test to determine if a provision is a promise or a condition?
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Intent of the parties. Courts will favor promises because they support contracts.
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Can a promise also be a condition?
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Yes - such as a promise to secure financing for a house.
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What is a condition precedent?
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A condition precedent is one that must occur before an absolute duty to perform arises. Nonoccurence of the condition prevents any duty from arising.
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What is a condition concurrent?
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Conditions concurrent are those that are capable of occurring together, as where property is tendered in exchange for cash.
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What is a condition subsequent?
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A condition subsequent is one that cuts off an already existing duty of performance.
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What is an express condition, implied condition, and constructive condition?
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Express conditions are those expressed in the contract. Implied conditions are those that can be inferred from evidence of the parties' intention. Constructive conditions are read into a contract without regard for the parties' intention in order to ensure that the parties receive what they bargained for (money for stereo, cannot demand payment until stereo is delivered).
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What gives rise to performance vis-a-vis conditions, and what are the excuses?
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A duty of performance arises upon either occurence of a condition or excuse of a condition. Excuses include:
1) Failure to cooperate 2) Actual Breach 3) Anticipatory Repudiation 4) Prospective Inability or Unwillingness to perform 5) Substantial Performance 6) Divisibility of Contract 7) Waiver or Estoppel 8) Impossibility, Impracticality, Frustration |
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How may a condition be excused by failure to cooperate?
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A party who wrongfully prevents a condition from occurring will no longer be given the benefit of it.
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How may a condition be excused by actual breach?
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An actual, material breach by one party excuses the other's duty of counterperformance.
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How may a condition be excused by anticipatory repuidation and what are the nonrepudiating party's options?
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Anticipatory repudiation is an unequivocal repudiation of a contract while there are executory duties on both sides of a contract. The nonrepudiating party may:
1) Sue immediately 2) Suspend his own performance and wait until the performance is due to sue 3) Treat the repudiation as an offer to rescind and treat the contract as discharged 4) Ignore the repudiation and urge performance, which does not waive the repudiation. |
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In the conditions context, may repudiation be retracted?
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Yes, unless it has been detrimentally relied upon.
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What is prospective unwillingness to perform in the conditions context, and what are the innocent party's options?
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According to a reasonable person standard, conduct that raises doubts about performance.
The innocent party may suspend his own performance until he receives adequate assurances of performance. If they are not forthcoming, the failure is repudiation. Retraction is possible, but may be ineffective if the other party has changed his position on the prospective failure. |
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What is substantial performance in the conditions context?
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Generally this rule is applied only with constructive conditions. Substantiality of performance is measured the same way as materiality of breach. The rule is not applied if the breach is willful. (Damage offset avaliable)
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Define excuse of condition by divisibility of contract.
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When a party performs one of the units a divisible contract, she is entitled to the agreed equivalent for that unit even though she fails to perform the other units. There is a three part test:
1) The performance of each party is divided into two or more parts 2) The number of parts due from each party is the same 3) The performance of each part by one party is the agreed equivalent of the corresponding part by the other party |
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Define excuse of condition by waiver or estoppel.
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1) A party may waive a condition by indicating he will not insist on it. May be retracted unless detrimental reliance
2) Continuing under a contract when a condition has been broken (by the party benefiting from the condition) will be deemed a waiver. 3) A waiver may only be for a collateral or ancillary condition. Otherwise, a waiver is a gift and not enforceable 4) Waiving a condition does not waive one's right to damages for the other's defective performance. |
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What are the tests for excuse of conditions for impossibility, impracticability, and frustration?
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The same as under discharge.
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Name the first three ways to discharge a duty.
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Performance, condition subsequent, supervening illegality of the subject matter
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Define discharge by impossibility.
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c) Impossibility – (objectively – nobody could perform according to the terms of the contract) Includes death, illegality, or destruction of the subject matter. Death only impossible if unique service. Destruction – repair? Impossible, build, not
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Define discharge by impracticability.
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Modern courts allow impracticability – extreme and unreasonable difficulty (subjective test)
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Define frustration of purpose.
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1) supervening event 2) Not reasonably foreseeable, 3) Completely or almost completely destroys the purpose of the contract, and 4) the purpose was understood by both parties
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Define discharge by recission.
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A contract that is executory on both sides may be rescinded by mutual agreement. Bilateral contract, partial performance? Still the option. Uniateral and only party to perform? Mutual not allowed, unless new consideration, PE, intent to gift). Orally unless statute of frauds (goods rules are different).
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May a mutual recission take place when a 3PB's rights have vested?
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No.
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What about unilateral recission?
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done by one party with adequate legal grounds – (mistake, misrepresentation, duress)
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Define Partial discharge by modification.
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A duty may be discharged partially by modification of the contract. There must be mutual assent to the modification. Usually consideration is necessary, although courts will usually find it where each party has limited its right to enforce the original contract.
Not necessary if a correction Not necessary for sale of goods |
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Discharge by novation?
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A duty may be discharged by a novation, ie a new contract substituting a new party for one of the original parties. 4 part test:
1) Valid contract 2) Agreement among all parties 3) Immediate establishment of contractual duties as between the original contracting parties 4) A valid new contract |
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Discharge by cancellation?
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1) Destruction of contract, and
2) Intent to discharge via destruction |
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Discharge by release?
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Duties may be discharged by a release and/or covenant not to sue. Must be supported by new consideration or promissory estoppel.
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Discharge by substituted contract?
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There is a discharge if both parties enter a contract that expressly or impliedly immediately revokes the first contract.
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Define Accord and satisfaction?
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An accord is an agreement in which one party agrees to accept performance different from that originally promised. Generally, an accord requires consideration. Less than original ok if a different type or paid to a 3rd party.
A mere suspension of a party’s right to enforce a contractual duty – does not discharge. Payment of a smaller amount than is due on a claim is valid consideration if it is made in good faith and there is a bona fide dispute as to the claim. A conspicuous “payment in full” accomplishes this. Satisfaction is the performance of the accord. It discharges both the accord and the original debt. |
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Discharge by account stated?
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Duties may be discharged by an account stated – parties agree to an amount as a final balance due from one to the other as settlement of all previous transactions between them. It is necessary that there have been more than one prior transaction. A writing is required only if original transactions were subject to the SOF.
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Discharge by lapse?
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Duties may be discharged by the lapse of time if each paty’s duty is a condition to the other’s duty and neither party performs his/her duty
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Discharge by operation of law?
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Bankruptcy, court judgment for breach, etc
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Effect of running of statute of limitations?
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While lapse discharges a duty, SOL makes it unenforceable
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Define Breach.
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1) Absolute duty of performance coupled with 2) Non-discharge of this duty plus 3) failure to perform with the contractual terms is a breach.
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Duties and obligations for nonbreaching party in minor/material breach situations?
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If the breach is material, the nonbreaching party may treat the contract as at an end and has an immediate right to all remedies for breach of the entire contract, including total damages. (Minor breach + anticipatory repudiation = material breach).
If the breach is minor, the nonbreaching party must still perform but can sue for damages. |
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What is the test for materiality?
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a) The amount of benefit received by nonbreaching party
b) The adequacy of compensation for damages to the injured party c) The extent of part performance by the breaching party d) Hardship to the breaching party e) Negligent or willful behavior of the breaching party f) The likelihood that the breaching party will perform the remainder of the contract |
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Define expectancy damages?
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Give the parties the benefit of the bargain.
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Define reliance damages?
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Place parties in position they were in before they acted in reliance on the contract.
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Define restitution damages?
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Reverse any unjust enrichment.
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Sale of land damages?
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Difference between contract price and fair market value.
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Employment contract damages?
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Employer breach - full contract price less wages made after the breach.
Employee breach - Whatever it costs to replace the employee. |
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Construction - owner breach damages?
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Profits for construction dude plus costs, unless completed, then full contract price plus interest.
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Construction - builder breach damages?
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Cost of completion plus reasonable compensation for the delay. Builder may offset or recover for work performed to avoid unjust enrichment.
If the only breach is late performance, damages is only damages from late performance. |
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Installment payment damages?
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Only a partial breach - can only recover missed payment, unless there is an acceleration clause.
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Consequential damages in contract?
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Consequential damages are allowed if a reasonable person could have forseen at the time of entering the contract that such damages would result from the breach.
Note: plaintiff has the burden of proving forseeability in special circumstances cases, that is, whether they were made clear at the time of formation). |
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Punitive, nominal damages?
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No punitives in contract, breach plus no damages = nominal ($1).
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Liquidated damages rules?
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Valid if difficult to ascertain and a reasonable forcast. Overcomes the fact that no actual damages were suffered. Not valid = penalty = not enforceable.
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Duty to mitigate?
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A nonbreaching party has the duty to use reasonable diligence to mitigate his losses.
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Specific Performance rules:
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See Remedies outline
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Quasi contract?
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See Remedies outline
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