Restatements

Front 1

Material Breach Factors
241

Back 1

1. The extent to which the injured party will be deprived of the benefit he reasonably expected.
2. The extent to which the injured party can be adequately compensated.
3. The extent to which the party failing to perform or offer to perform will suffer forfeiture.
4. The likelihood that the party failing to perform of offer to perform will cure his failure, taking into account of all the circumstances including any reasonable assurances.
5. The extent to which the behavior of the party failing to perform or offer to perform comports with standards of good faith and fair dealing.

Front 2

Substantial Performance Factors

Back 2

1. How much of the reasonably expected benefits under the K has the non-breaching party received?
2. How great a loss will the breaching party suffer if the breach is deemed material.
3. Will damages alone compensate the non-breaching party.
4. Did the breaching party act with good faith or bad faith in breaching.
5. Would rectifying breach result in economic waste.

Front 3

Unfairness

Back 3

Unfairness is only a defense in a court of Equity

Front 4

Standard Form K

Back 4

Used to control or exclude risks from businesses, often takes the form of adhesion contract because one side has form and the other doesnt.

Front 5

Adhesion K

Back 5

Where parties occupy substantially different bargaining positions and the inferior party, in order to obtain some essential serive or good, is forced to adhere to terms dictated by the superior party (As Is, take it or leave it).

Front 6

Two Part Test for Adhesion

Back 6

1. Does the K fall within the expectations of the weaker party.
2. Is the K or term unduly oppressive or Unconscionable?

Front 7

Unconscionability

Back 7

If the terms of the K are so to appear unconscionable according to the mores and business practices of the time and plce, then those terms are not enforceable.

Front 8

Substantive Unconscionability

Back 8

Terms of the K
Overly harsh allocation of risks or costs not justified by the circumstances.
Great price disparity

Front 9

Procedural
Unconscionability

Back 9

Inequality in Bargaining Power
Evidence of inequality in bargaining power can be shown by 1) terms unreasonably favorable to other party, 2) terms that are hidden in the contract, and 3) a plaintiff with a lower education.

OR Unfair Surprise
Evidence of unfair surprise is shown by hidden terms in a prolix document.

Front 10

Performing in Good Faith
UCC 1-304, R. 205

Back 10

Good Faith Can be defined by course of performance, fair dealing, usage in trade, and or reasonable commercial standards.

Front 11

Factors that Determine if Void Against Public Policy

Back 11

1. Nature of the Conduct
2. The extent of the public harm.
3. The conduct of the parties v. the standards of the community.

Front 12

Examples of Policies against Public Policy

Back 12

1. Restraint of trade.
2. Impairment of Family Relations.
3. Interference with Other protected interests.

Front 13

Specific Performance
R. 359

Back 13

SP or an injunction will not be ordered if damges would be adequate to protect the expectation interests of the injured party.

Front 14

Adequacy of Remedy

Back 14

the adequacy of the damage remedy does not bar specific performance from being ordered. If he burden to monitor SP falls onto the court and is over burdensome, the c ourt will not order.

Front 15

Factors Determining Adequacy of Damages

Back 15

1. Difficulty of Proving Damages with reasonable certainty.
2. Difficulty of procuring a suitable substitute performance by meanns of money awarded.
3. The likelihood damages can not be collected.

Front 16

UCC 2-716

Back 16

When money domages will not make an aggrieved whole, specific performance is appropriate

Front 17

Personal Services K
R. 367

Back 17

Personal Service K's are never offered SP

Front 18

Damages Calculation
R.347

Back 18

Damages= A+B-C
A= Loss in Value
B= Incidental and Consequential
C= Costs avoided

Front 19

UCC Damages
2-713 When Buyer Does Not Cover

Back 19

When buyer does not cover, the measure of damages will be; Market price - K price + Incidental + Consequential - Expenses Saved.

Front 20

UCC Damages
WHen Buyer Covers

Back 20

Costs of Cover - K price + IE + CE - EX Saved

Front 21

Avoidability
350

Back 21

Damages are not recoverable for loss that the injured party could have avoided without undue risks, burden, or humiliation. The injured party is not precluded from recovery by the rule if he has made reasonable efforts to avoid loss.

Front 22

Foreseeablilty

Back 22

Damages are not recoverable for the loss that the party in breach did not have reason to foresee as a probsable result of the breach when the K was made.

Front 23

Certainty

Back 23

Damages are not recoverable for loss beyond an amount the evidence establishes with reasonable certainty.

Front 24

Liquidated Damages and Penalties

Back 24

Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in light of the anticipated or actual loss caused by the breach and difficulties of proving loss . A term fixing unreasonably large liquidated damages is unenforceable as against public policy.

Front 25

Test for Liquidated Damages Clause

Back 25

To assess reasonableness of a LD clause, analyze 1. Actual Harm, 2. Anticiapted Harm