Term
| Restatement 1: Contract Defined |
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Definition
| A contract is a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes a duty |
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Term
| Restatement 347: Measure of Damages in General |
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Definition
Subject to limitations stated in 35-53, the injured party can get 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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Term
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Definition
| The interest of a nonbreaching party in being put in the position that would have resulted if the contract had been performed |
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Term
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Definition
| An intentional breach of contract and payment of damages by a party who would incur greater economic loss by performing under the contract |
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Term
| UCC 2-718(1): Liquidation or Limitation of Damages; Deposits |
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Definition
| Damages for breach by either party may be liquidated in the agreement by only at a reasonable amount in light of the anticipated or actual harm caused by the breach and the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy |
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Term
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Definition
| Where the seller justifiably withholds delivery of goods or stops performance because of the buyer's breach, the buyer is entitled to restitution of any amount by which the sum of the buyer's payments exceeds the amount to which the seller is entitled by virtue of terms liquidating the seller's damages in accordance with subsection 1 |
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Term
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Definition
The buyer's right to restitution is subject to offset to the extent that the seller establishes:
a) a right to recover damages
b) the amount or value of any benefits received by the buyer |
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Term
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Definition
| Where a seller has received payment in goods their reasonable value or the proceeds of their resale shall be treated as payments for the purposes of subsection 2; but if the seller has notice of the buyer's breach before reselling goods received in part performance, the resale is subject to the conditions laid down in thei Article on resale by an aggrieved seller (section 2-706) |
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Term
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Definition
| Damages awarded to a plaintiff when the defendant has been unjustly enriched at the plaintiff's expense |
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Term
| UCC 2-708(1): Seller's Damages for Non-acceptance or Repudiation |
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Definition
a) the measure of damages for non-acceptance by the buyer is the difference between the contract price and the market price at the time and place for tender plus any incidental or consequential damages but less expenses saved in consequence of the buyer's breach; and
b) the measure of damages for repudiation by the buyer is the difference between the contract price and the market price at the place for tender at the expiration of a commercially reasonoable time after the seller learned of the repudiation |
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Term
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Definition
| If the measure of damages provided in subsection 1 or in section 2-706 is inadequate to put the seller in as good a position as performance would have done then the measure of damages is the profit which the seller would've made from full performance by the buyer |
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Term
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Definition
| A contracting party's words or actions that indicate an intention not to perform the contract in the future; a threatened breach of contract |
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Term
| UCC 2-706(1):Seller's Resale Including Contract for Resale |
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Definition
| If there's a breach by the buyer, the seller may resell the goods or the undelivered balance thereof. The seller may recover the difference between the contract price and the resale price |
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Term
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Definition
| Resale may be at public or private sale. Sale may be as a unit or in parcels and must be comercially reasonable |
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Term
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Definition
| Where the resale is at private sale the seller must give the buyer reasonable notification of an intention to resell |
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Term
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Definition
When the resale is at a public sale:
a) only identified goods can be sold
b) it must be made at a usual place or market for public sale and
c) if the goods aren't to be within the view of those attending the sale the notification of sale must state the place where the goods are located and provide for their reasonable inspection by prospective bidders and
d) the seller may buy |
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Term
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Definition
| A purchaser that buys in good faith at a resale takes the goods without any rights of the original buyer |
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Term
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Definition
| A seller is not accountable to the buyer for any profit made on any resale |
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Term
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Definition
| Failure of a seller to resell under this section does not bar the seller from any other remedy |
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Term
| UCC 2-709(1): Action for the Price |
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Definition
When the buyer fails to pay the price as it becomes due, the seller may recover the price
a) of goods accepted or of conforming goods lost or damaged within a comercially reasonable time after risk of their loss has passed to the buyer, and
b) of goods identified to the contract if the seller is unable after reasonable effert to resell them as a reasonable price or the circumstances reasonably indicate that such effort will be unavailing. |
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Term
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Definition
| Where the seller sues for the price the seller must hold for the buyer any goods which have been identified to the contract and are still inthe seller's control, except that if resale becomes possible the seller may resell them at any time prior to the collection of the judgment. The net proceeds of any such resale must be credited to the buyer and payment of the judgment entitles the buyer to any goods not resold |
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Term
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Definition
| After the buyer has wrongfully rejected or revoked acceptance of the goods or has failed to make a payment due or has repudiated, a seller that is held not entitled to the price under this section shall neverthe less be awarded damages for non-acceptance |
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Term
| UCC 2-712(1): "Cover;" Buyer's Procurement of Substitute Goods |
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Definition
| If the seller wrongfully fails to deliver or repudiates or the buyer rightfully rejects or justifiably revokes acceptance, the buyer may "cover" by making in good faith and without unreasonable delay any reasonable purchase of or contract to purchase goods in substitution for those due from the seller. |
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Term
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Definition
2) The buyer may recover from the saller as damages the differnece between the cost of cover and the contract price together with any incidental/consequential damages, but less expenses saved in consequence of the seller's breach
3) Failure of the buyer to effect cover within this section does not bar the buyer from any other remedy |
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Term
| UCC 2-711(1): Buyer's Remedies in General; Buyer's Security Interest in Rejected Goods |
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Definition
| A breach of contract by the seller includes the seller's wrongful failure to deliever or to perform a contractual obligation, making of a nonconforming tender of delivery or performance, and repudiation |
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Term
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Definition
If a seller breaches a contract the buyer may:
a) in the case of rightful cancellation, rejection or justifiable revocation recover su much of the price as has been paid;
b) deduct damages from any part of the price
c) cancel;
d) cover
e) recover damages for non-delivery or repudiation;
f) recover damages for breach with regard to accepted goods or breach with regard to remedies promised;
g) recover identified goods
h) obtain specific performance
i) recover liquidated damages
j) in other cases, recover damages in any manner taht is reasonable |
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Term
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Definition
| On rightful rejection or justifiable revocation of acceptance a buyer has a security interest in goods in the buyer's possession or control for any payments made on their price and any expenses reasonably incurred in their inspection, receipt, transportation, care and custody and may hold such goods and resell them in like manner as an aggrieved seller |
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Term
| UCC 2-714(1): Buyer's Damages for BReach in Regard to Accepted Goods |
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Definition
| Where the buyer has accepted goods and given notification, the buyer may recover the loss resulting in the ordinary course of events from the seller's breach as determined in any reasonable manner. |
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Term
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Definition
| The measure of damages for breach of warranty is the difference at teh time and place of acceptance between the calue of the goods accepted and the value that would have had if thay had been as warranted, unless special circumstances show proximate damages of a different amount. |
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Term
| UCC 2-715(1): Buyer's Incidental and Consequential Damages |
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Definition
| Incidental damages from the seller's breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach. |
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Term
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Definition
Consequential damages resulting form the seller's breach include:
a) any loss resulting from general or particular requirements that the seller had reason to know, and
b) injury to person or property proximately resulting from any breach of warranty. |
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Term
| UCC 2-713: Buyer's Damages for Non-Delivery or Repudiation |
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Definition
If the seller wrongfully fails to deliver or repudiates or the buyer rightfully rejects or justifiably revokes acceptance:
a) damages = (Market price - contract price) - expenses saved
b)damages = Market price att eh expiration of a commercially reasonable time after the buyer learned of the repudiation and the contract price + incidental damages - expenses saved |
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Term
| UCC 2-313(1) and (2): Express warranties by affirmation, Promise, Description, Sample; Remedial Promise |
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Definition
| A warranty created by the overt words or actions of the seller; under the UCC, an express warranty is created by the following: 1) an affirmation of fact or promise made by the seller to the buyer relating to the goods that becomes the basis for the bargain; 2) a description of the goods that becomes part of the basis for the bargain; 3) a sample or model made part of the basis of the bargain. |
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Term
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Definition
| It is not necessary to teh creation of an express warranty that the seller use formal words such as "warrant" or "guarantee" or that the seller have specific intention to make a warranty, but an affirmation merely of the value of the goods or a statement purporting to be merely the seller's opinion or commendation of the goods does not create a warranty |
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Term
| UCC 2-314(1): Implies Warranty; Merchantability; Usage of Trade |
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Definition
| Unless excluded or modified, a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind |
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Term
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Definition
| Repudiation of a contractual duty before the time for performance, giving the injured party an immediate right to damages for total breach, as well as discharging the injured party's remaining duties of performance |
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Term
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Definition
| A contracting party's words or actions that indicate an intention not to perform the contract in the future; a threateded breach of contract |
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Term
| UCC 2-610(1): Anticipatory Repudiation |
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Definition
When either party repudiates the contract, the loss of which will substantially impair the calue of the contract to the other, the aggrieved party may:
a) await performance for a commercially reasonable time;
b) resort to any remedy for breach
c) suspend performance or proceed in accordance with the seller's right to identify goods to the contract nonwithstanding breach or to salvange unfinished goods |
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Term
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Definition
| Repudiation includes language that a reasonable person would interpret to mean that the other party will not or cannot make a performance still due under the contract or voluntary, affirmative conduct that would appear to a reasonable person to make a future performance by the other party impossible. |
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Term
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Definition
| 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 |
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Term
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Definition
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. |
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Term
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Definition
| 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 disprroportionate compensation. |
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Term
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Definition
| Recovery for emotional disturbance will be excluded unless the breach also caused bodily harm or the contract or the breach is of such a kind that serious emotional disturbance was a particularly likely result. |
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Term
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Definition
| 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 ont eh other party by way of part performance or reliance |
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Term
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Definition
| The injured party has no right to restitution if he has performed all of his duties under the contract and no performance by teh other party remains due other than payment of a definite sum of money for that performance |
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Term
| UCC 2-608(1): Recovation of Acceptance in Whole or in Part |
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Definition
The buyer may revoke acceptance of a lot or commercial unit whose non-conformity substantially impairs its value to the buyer if the buyer has accepted it
a) on the reasonable assumption that its non-conformity would be cured
b) without discovery of such non-conformity if the buyer's acceptance was reasonably induced either by the difficulty of discovery before acceptance or by the seller's assurances |
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Term
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Definition
| Revocation of acceptance must occur within a reasonable time after the buyer discovers or should have discovered the ground for it and before any substantial change in condition of the goods which is not caused by their own defects |
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Term
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Definition
| A buyer that so revokes has the same rights and duties with regard to the goods involved as if the buyer had rejected them |
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Term
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Definition
If a buyer uses the goods after a rightful rejection or justifiable revocation of acceptance, the following rules apply:
a) Any use by the buyer which is unreasonable under the circumstances is wrongful as against the seller and is an acceptance on if ratified by the seller.
b) Any use of the goods which is reasonable under the circumstances is not wrongful as against the seller and is not an acceptance, but in an appropriate case the buyer is obligated to the seller for the value of the use to the buyer. |
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