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39 Cards in this Set
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Restatement (Second) 234 Order of Performance
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(1) Where all or part of the performances to be exchanged under an exchange of promises can be rendered simultaneously, they are to that extent due simultaneously, unless the language or the circumstances indicate the contrary.(2) Except to the extent stated in Subsection (1), where the performance of only one party under such an exchange requires a period of time, his performance is due at an earlier time than that of the other party, unless the language or the circumstances (usage of trade, course of dealing) indicate the contrary.
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Restatement (Second) 237 Effect on Other Party’s Duties of a Failure to Render Performance
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Except as stated in § 240, it is a condition of each party's remaining duties to render performances to be exchanged under an exchange of promises that there be no uncured material failure by the other party to render any such performance due at an earlier time.
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Restatement (Second) 240 Part Performance as Agreed Equivalents |
If the performances to be exchanged under an exchange of promises can be apportioned into corresponding pairs of part performances so that the parts of each pair are properly regarded as agreed equivalents, a party's performance of his part of such a pair has the same effect on the other's duties to render performance of the agreed equivalent as it would have if only that pair of performances had been promised. |
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Restatement (Second) § 224. Condition Defined |
A condition is an event, not certain to occur, which must occur, unless its non‐occurrence is excused, before performance under a contract becomes due. |
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Restatement (Second) § 227 Standards of Preference with Regard to Conditions |
(1) In resolving doubts as to whether an event is made a condition of an obligor's duty, and as to the nature of such an event, an interpretation is preferred that will reduce the obligee's risk of forfeiture, unless the event is within the obligee's control or the circumstances indicate that he has assumed the risk. (2) Unless the contract is of a type under which only one party generally undertakes duties, when it is doubtful whether(a) A duty is imposed on an obligee that an event occur, or(b) The event is made a condition of the obligor's duty, or(c) The event is made a condition of the obligor's duty and a duty is imposed on the obligee that the event occur, the first interpretation is preferred if the event is within the obligee's control. (3) In case of doubt, an interpretation under which an event is a condition of an obligor's duty is preferred over an interpretation under which the non-occurrence of the event is a ground for discharge of that duty after it has become a duty to perform. |
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Restatement Second of Contracts § 247 Effect of Acceptance of Part Performance as Excusing the Subsequent Non-Occurrence of a Condition |
An obligor's acceptance of part of the obligee's performance, with knowledge or reason to know of the non-occurrence of a condition of the obligor's duty, operates as a promise to perform in spite of a subsequent non-occurrence of the condition under the rules stated in § 84 to the extent that it justifies the obligee in believing that subsequent performances will be accepted in spite of that non-occurrence. |
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Restatement (Second) § 241. Circumstances Significant in Determining Whether a Failure is Material |
In determining whether a failure to render or to offer performance is material, the following circumstances are significant:(a) the extent to which the injured party will be deprived of the benefit which he reasonably expected;(b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;(c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture;(d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances;(e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. |
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Restatement (Second) § 261 Discharge by Supervening Impracticability |
Where, after a contract is made, a party's performance is made impracticable without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged, unless the language or the circumstances indicate the contrary. |
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Restatement (Second) § 262 Death or Incapacity of Person Necessary for Performance |
If the existence of a particular person is necessary for the performance of a duty, his death or such incapacity as makes performance impracticable is an event the non-occurrence of which was a basic assumption on which the contract was made. |
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Restatement (Second) § 265 Discharge by Supervening Frustration |
Where, after a contract is made, a party's principal purpose is substantially frustrated without his fault by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his remaining duties to render performance are discharged, unless the language or the circumstances indicate the contrary. |
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Restatement (Second) § 250 When a Statement or an Act Is a Repudiation |
A repudiation is:(a) A statement by the obligor to the obligee indicating that the obligor will commit a breach that would of itself give the obligee a claim for damages for total breach under § 243, or(b) A voluntary affirmative act which renders the obligor unable or apparently unable to perform without such a breach. |
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Restatement (Second) § 251 When a Failure to Give Assurance May Be Treated as a Repudiation |
(1) Where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach under § 243, the obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance.(2) The obligee may treat as a repudiation the obligor's failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances of the particular case. |
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Restatement (Second) § 256 Nullification of Repudiation or Basis for Repudiation |
(1) The effect of a statement as constituting a repudiation under § 250 or the basis for a repudiation under § 251 is nullified by a retraction of the statement if notification of the retraction comes to the attention of the injured party before he materially changes his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final.(2) The effect of events other than a statement as constituting a repudiation under § 250 or the basis for a repudiation under § 251 is nullified if, to the knowledge of the injured party, those events have ceased to exist before he materially changes his position in reliance on the repudiation or indicates to the other party that he considers the repudiation to be final. |
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Restatement (Second) § 243 Effect of a Breach by Non-Performance As Giving Rise to a Claim for Damages for Total Breach |
(1) With respect to performances to be exchanged under an exchange of promises, a breach by non-performance gives rise to a claim for damages for total breach only if it discharges the injured party's remaining duties to render such performance, other than a duty to render an agreed equivalent under § 240.(2) Except as stated in Subsection (3), a breach by non-performance accompanied or followed by a repudiation gives rise to a claim for damages for total breach.(3) Where at the time of the breach the only remaining duties of performance are those of the party in breach and are for the payment of money in installments not related to one another, his breach by non-performance as to less than the whole, whether or not accompanied or followed by a repudiation, does not give rise to a claim for damages for total breach.(4) In any case other than those stated in the preceding subsections, a breach by non-performance gives rise to a claim for total breach only if it so substantially impairs the value of the contract to the injured party at the time of the breach that it is just in the circumstances to allow him to recover damages based on all his remaining rights to performance. |
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Restatement (Second) § 251 When a Failure to Give Assurance May Be Treated as a Repudiation |
(1) Where reasonable grounds arise to believe that the obligor will commit a breach by non-performance that would of itself give the obligee a claim for damages for total breach under § 243, the obligee may demand adequate assurance of due performance and may, if reasonable, suspend any performance for which he has not already received the agreed exchange until he receives such assurance.(2) The obligee may treat as a repudiation the obligor's failure to provide within a reasonable time such assurance of due performance as is adequate in the circumstances of the particular case. |
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Restatement (Second) § 252 Effect of Insolvency |
(1) Where the obligor's insolvency gives the obligee reasonable grounds to believe that the obligor will commit a breach under the rule stated in § 251, the obligee may suspend any performance for which he has not already received the agreed exchange until he receives assurance in the form of performance itself, an offer of performance, or adequate security.(2) A person is insolvent who either has ceased to pay his debts in the ordinary course of business or cannot pay his debts as they become due or is insolvent within the meaning of the federal bankruptcy law. |
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Restatement (Second) § 253 Effect of a Repudiation as a Breach and on Other Party's Duties |
(1) Where an obligor repudiates a duty before he has committed a breach by non-performance and before he has received all of the agreed exchange for it, his repudiation alone gives rise to a claim for damages for total breach.(2) Where performances are to be exchanged under an exchange of promises, one party's repudiation of a duty to render performance discharges the other party's remaining duties to render performance. |
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Restatement (Second) § 344 Purposes of Remedies |
Judicial remedies under the rules stated in this Restatement serve to protect one or more of the following interests of a promisee:(a) his "expectation interest," which is his interest in having the benefit of his bargain by being put in as good a position as he would have been in had the contract been performed,(b) his "reliance interest," which is his interest in being reimbursed for loss caused by reliance on the contract by being put in as good a position as he would have been in had the contract not been made, or(c) his "restitution interest," which is his interest in having restored to him any benefit that he has conferred on the other party. |
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Restatement (Second) § 347 Measure of Damages in General |
Subject to the limitations stated in §§ 350-53, the injured party has a right to damages based on his expectation interest as measured by(a) the loss in the value to him of the other party's performance caused by its failure or deficiency, plus(b) any other loss, including incidental or consequential loss, caused by the breach, less(c) any cost or other loss that he has avoided by not having to perform. |
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Restatement (Second) § 352 Uncertainty as a Limitation on Damages |
Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty. |
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Restatement (Second) § 359 Effect of Adequacy of Damages |
(1) Specific performance or an injunction will not be ordered if damages would be adequate to protect the expectation interest of the injured party.(2) The adequacy of the damage remedy for failure to render one part of the performance due does not preclude specific performance or injunction as to the contract as a whole.(3) Specific performance or an injunction will not be refused merely because there is a remedy for breach other than damages, but such a remedy may be considered in exercising discretion under the rule stated in § 357. |
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Restatement (Second) § 357 Availability of Specific Performance and Injunction |
(1) Subject to the rules stated in §§ 359-69, specific performance of a contract duty will be granted in the discretion of the court against a party who has committed or is threatening to commit a breach of the duty.(2) Subject to the rules stated in §§ 359-69, an injunction against breach of a contract duty will be granted in the discretion of the court against a party who has committed or is threatening to commit a breach of the duty if(a) the duty is one of forbearance, or(b) the duty is one to act and specific performance would be denied only for reasons that are inapplicable to an injunction. |
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Restatement (Second) § 359 Effect of Adequacy of Damages |
(1) Specific performance or an injunction will not be ordered if damages would be adequate to protect the expectation interest of the injured party.(2) The adequacy of the damage remedy for failure to render one part of the performance due does not preclude specific performance or injunction as to the contract as a whole.(3) Specific performance or an injunction will not be refused merely because there is a remedy for breach other than damages, but such a remedy may be considered in exercising discretion under the rule stated in § 357. |
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Restatement (Second) § 360 Factors Affecting Adequacy of Damages |
In determining whether the remedy in damages would be adequate, the following circumstances are significant:(a) The difficulty of proving damages with reasonable certainty,(b) The difficulty of procuring a suitable substitute performance by means of money awarded as damages, and(c) The likelihood that an award of damages could not be collected. |
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Restatement (Second) § 349 Damages Based on Reliance Interest |
As an alternative to the measure of damages stated in § 347, the injured party has a right to damages based on his reliance interest, including expenditures made in preparation for performance or in performance, less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed. |
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Restatement (Second) § 371 Measure of Restitution Interest |
If a sum of money is awarded to protect a party's restitution interest, it may as justice requires be measured by either(a) The reasonable value to the other party of what he received in terms of what it would have cost him to obtain it from a person in the claimant's position, or(b) The extent to which the other party's property has been increased in value or his other interests advanced.
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Restatement (Second) § 373 Restitution When Other Party Is in Breach
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(1) Subject to the rule stated in Subsection (2), on a breach by non-performance that gives rise to a claim for damages for total breach or on a repudiation, the injured party is entitled to restitution for any benefit that he has conferred on the other party by way of part performance or reliance.(2) The injured party has no right to restitution if he has performed all of his duties under the contract and no performance by the other party remains due other than payment of a definite sum of money for that performance.
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Restatement (Second) § 355 Punitive Damages
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Punitive damages are not recoverable for a breach of contract unless the conduct constituting the breach is also a tort for which punitive damages are recoverable.Comment (b) - separate tort after a particularly aggrieved breach and person has trouble proving all damages. Purpose of damages is compensation not punishment.
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Restatement (Second) § 352 Uncertainty as a Limitation on Damages
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Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.
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Restatement (Second) § 351 Unforeseeability and Related Limitations on Damages
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(1) Damages are not recoverable for loss that the party in breach did not have reason to foresee as a probable result of the breach when the contract was made.(2) Loss may be foreseeable as a probable result of a breach because it follows from the breach(a) In the ordinary course of events, or(b) As a result of special circumstances, beyond the ordinary course of events, that the party in breach had reason to know.(3) A court may limit damages for foreseeable loss by excluding recovery for loss of profits, by allowing recovery only for loss incurred in reliance, or otherwise if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation.
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Restatement (Second) § 350 Avoidability as a Limitation on Damages
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(1) Except as stated in Subsection (2), damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation.(2) The injured party is not precluded from recovery by the rule stated in Subsection (1) to the extent that he has made reasonable but unsuccessful efforts to avoid loss.
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Restatement (Second) § 356 Liquidated Damages and Penalties
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(1) Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.(2) A term in a bond providing for an amount of money as a penalty for non-occurrence of the condition of the bond is unenforceable on grounds of public policy to the extent that the amount exceeds the loss caused by such non-occurrence.
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Restatement (Second) § 302 Intended and Incidental Beneficiaries
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(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either(a) The performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or(b) The circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.
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Restatement (Second) § 304 Creation of Duty to Beneficiary
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A promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty.
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Restatement (Second) § 34 Certainty and Choice of Terms; Effect of Performance or Reliance
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(1) The terms of a contract may be reasonably certain even though it empowers one or both parties to make a selection of terms in the course of performance.(2) Part performance under an agreement may remove uncertainty and establish that a contract enforceable as a bargain has been formed.(3) Action in reliance on an agreement may make a contractual remedy appropriate even though uncertainty is not removed.
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Restatement (Second) § 259 Creditor's Application
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(1) Except as stated in Subsections (2) and (3), if the debtor has not directed application of a payment as between two or more matured debts, the payment is applied according to a manifestation of intention made within a reasonable time by the creditor to the debtor.(2) A creditor cannot apply such a payment to a debt if(a) The debtor could not have directed its application to that debt, or(b) A forfeiture would result from a failure to apply it to another debt and the creditor knows or has reason to know this, or(c) The debt is disputed or is unenforceable on grounds of public policy.(3) If a creditor is owed one such debt in his own right and another in a fiduciary capacity, he cannot, unless empowered to do so by the beneficiary, effectively apply to the debt in his own right a greater proportion of a payment than that borne by the unsecured portion of that debt to the unsecured portions of both claims.
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Restatement (Second) § 302 Intended and Incidental Beneficiaries
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(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either(a) The performance of the promise will satisfy an obligation of the promisee to pay money to the beneficiary; or(b) The circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.(2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.
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Restatement (Second) § 317 Assignment of a Right
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(1) An assignment of a right is a manifestation of the assignor's intention to transfer it by virtue of which the assignor's right to performance by the obligor is extinguished in whole or in part and the assignee acquires a right to such performance.(2) A contractual right can be assigned unless(a) The substitution of a right of the assignee for the right of the assignor would materially change the duty of the obligor, or materially increase the burden or risk imposed on him by his contract, or materially impair his chance of obtaining return performance, or materially reduce its value to him, or(b) The assignment is forbidden by statute or is otherwise inoperative on grounds of public policy, or(c) Assignment is validly precluded by contract.
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Restatement (Second) § 318 Delegation of Performance of Duty
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(1) An obligor can properly delegate the performance of his duty to another unless the delegation is contrary to public policy or the terms of his promise.(2) Unless otherwise agreed, a promise requires performance by a particular person only to the extent that the obligee has a substantial interest in having that person perform or control the acts promised.(3) Unless the obligee agrees otherwise, neither delegation of performance nor a contract to assume the duty made with the obligor by the person delegated discharges any duty or liability of the delegating obligor.
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