Supervening impracticability    

A party’s duty to perform never arises where the party proves the following: (1) there exists, at the time of contract formation, a fact that neither party is aware of; (2) the party’s performance is impossible or impracticable as a result of the fact; and (3) the party should not, as a matter of law, bear the risk of the fact’s existence    

Effect of discharge on other party’s duties    

A party’s contract duties are discharged if the other party’s performance is discharged under the doctrine of impracticability or the doctrine of frustration of purpose and (1) the other party’s discharged performance is a “material” non-performance; and (2) the party did not assume the risk that he or she would have to perform despite the other party’s non-performance due to impracticability or frustration of purpose. 

In general, the amount of damages awarded for the breach of a contract is an amount designed to put the non-breaching party in the position she would have been in had the contract been performed (so-called expectation damages)    

Punitive damages are not awarded for the breach of a contract unless the breach also constitutes a tort for which such damages are recoverable (so-called independent tort requirement)    

If the breach caused no loss or the non-breaching party cannot recover any damages, the non-breaching party can still recover “a small sum fixed without regard to the amount of loss” (so-called nominal damages). 

Damages for emotional disturbance are not recoverable (as consequential losses or otherwise) unless (1) the breach caused bodily harm or (2) the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result. 

If a plaintiff seeks to recover a particular type of loss (whether loss in value, incidental loss, or consequential loss), the plaintiff bears the burden of proving (1) that the breach was a substantial causal factor in the loss; (2) the amount of the loss can be established with reasonable certainty; and (3) the loss was reasonably foreseeable by the breaching party at the time of contract formation. 

Buyer who breaches is entitled to restitution of any payment made to the seller (e.g., a down payment or deposit) to the extent the payment exceeds the greater of (1) 20% of the total amount promised to the seller or $500, whichever is smaller; or (2) any damages recoverable by the non-breaching party as a result of the breach

There is no requirement for recovering for a loss that the breaching party have expressly or impliedly agreed to be liable for the loss, as long as the loss was reasonably foreseeable. See Restatement (Second) of Contracts § 351 cmt. a (“[T]he party in breach need not have made a ‘tacit agreement’ to be liable for the loss.”); U.C.C. § 2-715 Official Comment 2 (“The ‘tacit agreement’ test for the recovery of consequential damages is rejected.”). 

A breaching party is only liable for a loss if the party expressly or impliedly agreed to be liable for the loss.

There is a deduction for any cost or loss avoided by the non-breaching party as a result of the non-breaching party not having to perform the contract.    

U.C.C. expectation damages calculation (buyer’s remedies): 

When the seller breaches by failing to deliver the goods, or the buyer rightfully rejects them, the buyer is entitled to (1) recover any portion of the price already paid; and (2) either cover and obtain damages under the cover remedy or, if the buyer is not able to recover under the cover remedy, obtain damages based on the market price-contract price differential    

U.C.C. (buyer’s remedies for accepted goods): 

When the seller breaches but the buyer accepts the non-conforming goods, the buyer may recover “the loss resulting in the ordinary course of events from the seller’s breach as determined in any manner which is reasonable.“The measure of damages is difference at the time of acceptance between the value of the goods accepted and the value they would have had if had been as warranted, unless special circumstances show damages of a different amount. 

U.C.C. expectation damages calculation (seller’s remedies): 

When the buyer breaches, the seller is entitled to (1) obtain the sales price for any goods accepted or when the buyer wrongfully rejects goods and the seller is unable to resell them at a reasonable price or the circumstances indicate that effort would be unavailing; (2) obtain damages under the resale remedy (3) obtain damages based on the market price-contract price differential if the resale remedy is not applicable; or (4) obtain damages under the lost-volume seller rule. 

U.C.C. (seller’s action for the price): 

If a buyer accepts goods and fails to pay for them, or the buyer wrongfully rejects goods and the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such an effort would be unavailing, the seller may recover the price promised by the buyer, plus any reasonable incidental losses. 

If a buyer wrongfully rejects goods, and the seller resells the goods in good faith and in a commercially reasonable manner, the seller may recover the difference between the resale price and the contract price, plus any reasonable incidental losses, but minus any expenses saved in consequence of the buyer’s breach. 

U.C.C. (seller’s contract price-market price remedy): 

If a seller is not entitled to recover under the resale remedy, the seller is entitled to recover the difference between the unpaid contract price and the market price at the time and place for delivery, together with any reasonable incidental losses, minus any expenses saved in consequence of the buyer’s breach    

Agreed-upon damages: Traditional rule: 

A contract provision specifying an amount of damages to be paid in the event of a breach is enforceable as a liquidated damages provision if it is reasonable with respect to either the anticipated loss at the time of contract formation or the actual loss. Id. § 356(1) & U.C.C. § 2-718(1).    

A contract provision that does not satisfy this test and that is an unreasonably large amount of damages is unenforceable on the grounds of public policy as a penalty for breach.    

Exclusive or Limited Remedy Failing Essential Purpose: 

Where circumstances cause an exclusive remedy or limited remedy set forth in a contract for the sale of goods to fail of its essential purpose, remedy may be had as provided in the U.C.C. 

Specific performance may be ordered for a buyer where the goods are unique or in other proper circumstances. 

As an alternative to expectation damages, the non-breaching party can seek and recover damages designed to protect her interest in being reimbursed for loss caused by reliance on the contract by being put in as good a position as she would have been in had the contract not been made, minus any loss that the breaching party can prove the non-breaching party would have suffered had there been performance. 

Restitution is an award protecting the plaintiff’s so-called restitution interest, which is measured by the reasonable value of the benefit provided to the defendant. With respect to services, this is generally the reasonable value of the services provided (i.e., what it would have cost the defendant to have obtained the services from a third party). 

Quasi-contract as alternative to breach of contract damages    

As an alternative to a claim for breach of contract, a non-breaching party who has exercised the power to terminate the contract (because of a repudiation or total breach) can assert a quasi-contract claim for restitution against the breaching party, unless the non-breaching party has fully performed and the only part of the agreed exchange that has not been performed by the breaching party is the payment of a promised sum of money. 

The non-breaching party is entitled to the profit realized by the breaching party from the breach if the breach was deliberate and the non-breaching party’s expectation interest cannot be adequately protected through an award of damages. 

A court may award expectation damages to a promisee in a suit based on promissory estoppel, but the court may also limit the remedy as justice requires.