Term
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Definition
This is an equitable remedy. It is only available if no adequate remedy at law.
Land Contracts: Specific performance is an appropriate if seller breaches Land Contract. But no specific performance if Seller breaches by selling the land to a third party bona fide purchaser.
Unique Goods: specific performance is available if contract is for the sale of unique goods.
Service K: can never get specific performance (possible injunctive relief a/k/a negative specific performance). |
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Term
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Definition
| The right on an unpaid seller to get his goods back. Buyer (1) must have been insolvent at the time that it received the goods, and (2) the seller demands return of goods within 10 days of receipt and (3) the buyer still has the goods at time of demand. |
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Term
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Definition
Money damage rule based on protection of parties' expectation interests.
The measure of damages is arrived at by comparing the dollar value of performance without breach with the dollar value of performance with breach. |
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Term
| What are the FOUR expectation damage rules regarding SALES OF GOODS? |
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Definition
1. Seller breaches, buyer keeps the goods: fair market value if perfect tender minus fair market value as delivered.
2. Seller breaches, seller has the goods: market price at time of discovery of the breach ("cover price") - contract price.
Buyer breaches, buyer keeps goods: contract price
Buyer breaches, seller has the goods: contract price minus resale price and, in some situations, provable lost profits. |
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Term
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Definition
| A volume seller can recover for lost profits if buyer breaches and seller still has the goods. He can recover only to the extent of lost profit. |
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Term
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Definition
Costs incurred in dealing with the breach such as costs of storing rejected goods in a sale of goods or finding replacement in a service K.
Incidental damages are ALWAYS recoverable. |
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Term
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Definition
| compensation for "special damages," i.e., loss that is special to the plaintiff. In order for consequential damages to be recoverable, D must know or have reason to know of the special circumstances at the time of the contract. |
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Term
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Definition
| Avoidable damages are subtracted from the total measure of damages. Avoidable damage is damage that could have been avoided without undue burden on the plaintiff. |
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Term
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Definition
| Damages must be able to measured with reasonable certainty. |
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Term
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Definition
| Reliance damages available if plaintiff relied on the K to his detriment |
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Term
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Definition
| This is a contract provision that fixes the amount of damages in the event of breach. Issue will be validity of such a clause. Tests are (1) whether damages where difficult to forecast at time of contracting and (2) provision is a reasonable forecast. |
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Term
| Excuse Because of Improper Performance |
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Definition
Four Rules:
1. Damages can be recovered for any breach.
2. Only a MATERIAL BREACH by one guy excuses the other guy from performing.
3. Whether a breach is material is a question of fact.
4. If there is substantial performance the breach is not material. |
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Term
| Divisible K exception to material breach rule |
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Definition
| If divisible K, there can be contract law recovery for substantial performance of a divisible part even though there has been a material breach of entire K. |
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Term
| Excuse not to perform because no "perfect tender" |
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Definition
Unlike the common law doctrines of substantial performance and material breach, the UCC excuses non performance when there is not perfect tender of the goods.
Exception: installment contract. |
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Term
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Definition
a mutually agreed upon promise modifier. It is language in a contract -- not merely language in response to an offer -- that does not create a new obligation, but merely limits obligations created by other language in the contract.
Watch for words such as "if" "only if" "provided that" "so long as" "subject to" "in the event that" unless" "when" "until" "on condition that"
Example: S and B enter into an agreement that states that B will buy S's house for $100,000 IF a mortgage at no more than 6 percent can be obtained. If mortgage cannot be obtained at that interest rate, B is excused because of NON-OCCURRENCE OF EXPRESS CONDITION |
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Term
| Waiver/Estoppel/Prevention of Express Condition |
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Definition
Waiver/Estoppel: Identify the person who benefits from or is protected by the express condition. Then look for a statement by that person giving up the benefits of express condition. If BEFORE the condition occurs, then estoppel is the applicable doctrine. If AFTER the condition occurs, WAIVER is the doctrine.
Prevention: If the party protected by the express condition HINDERS or PREVENTS the occurrence of the express condition, then the express condition is EXCUSED and the K MUST be performed |
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Term
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Definition
An UNAMBIGUOUS statement or conduct indicating that the repudiating party will not perform made prior to the time that performance was due. It excuses the other party from performing. It generally also gives rise to an immediate claim for damages for breach unless the claimant has already finished her performance.
An anticipatory repudiation can be reversed or retracted so long as there has not been a material change in position by the other party. If the repudiation is timely retracted, the duty to perform is reimposed but performance can be delayed until adequate assurance is provided. |
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Term
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Definition
| If words or conduct merely make performance UNCERTAIN, as opposed to the unambiguous statement required for AP, then the other party can demand in writing adequate assurances and if it is "commercially reasonable" can suspend performance until it gets adequate assurance |
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Term
| Excuse by Reason of a Later Contract |
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Definition
Four ways:
1. Rescission
2. Accord and Satisfaction
3. Modification
4. Novation |
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Term
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Definition
| An agreement to rescind a contract is only valid if performance is still remaining (executory). If performance is complete, a contract cannot be rescinded. |
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Term
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Definition
| An accord is an agreement by the parties to an already existing obligation to accept a different PERFORMANCE in satisfaction of the existing obligation. If the new agreement--the accord--is performed (satisfaction), then performance of the original obligation is excused. |
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Term
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Definition
| This is an agreement by parties to an existing obligation to accept a different AGREEMENT in satisfaction of the existing obligation |
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Term
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Definition
A novation is an agreement between BOTH parties to an existing K to the substitution of a NEW party. That is, same performance, different parry.
Novation excuses the contracted for performance of the party who is substituted for or replaced. |
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Term
| How is DELEGATION different from NOVATION? |
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Definition
| Novation requires the agreement of BOTH parties to the original K and excuses the person replaced from any liability for non performance. Delegation does not require the agreement of both parties and does not excuse. MERE DELEGATION DOES NOT EXCUSE PERFORMANCE |
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Term
| Excuse of Performance by Some Later, Unforeseen Event |
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Definition
| Performance of contractual duties (other than duty to pay cash money) can be excused under impossibility or impracticability or frustration of purpose if (1) something happens after K formation but before the completion of performance; and (2) that something was unforeseen; and (3) that something that happens makes performance impossible or commercially impracitcable or frustrates the purpose of the performance. |
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Term
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Definition
| Performance can only be done with EXTREME and UNREASONABLE difficulty and expense. It is an excuse for non performance. |
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Term
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Definition
Death generally does NOT make a person's contract obligations disappear.
Exception: if party to K is a "special" person, e.g., Owen Wilson |
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Term
| Third Party Beneficiaries |
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Definition
| A person trying to enforce a K she did not make. She is not a party to the K. Able to enforce K other made for her benefit. Only intended beneficiaries have contract law rights. Intent of parties to K determines whether intended or incidental |
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Term
| When Do Third Party Beneficiaries Rights Vest? |
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Definition
| When she knows of and has relied on or assented as requested. The K cannot be canceled or modified w/o her consent unless the K otherwise provides. |
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Term
| Who Can Sue Whom When There is Third Party Beneficiary? |
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Definition
Four Rules.
1. Beneficiary can recover from promisor
2. Promisee can recover from promisor
3. Generally, beneficiary can not recover from promisee (a creditor-beneficiary can recover from promisee, but only on pre-existing debt)
Both Beneficiary and Promisee CANNOT recover from promisor, only one of them can. Also, if the third party beneficiary sues the promnisor, the promsior can assert any defenes that he would have if sued by the promisee. |
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Term
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Definition
A person trying to enforce a K she did not make. It is a transfer of rights under a K involving two steps.
1. K between only two parties and
2. one of the parties later transfers rights under that K to a third party.
NOTE the difference between assigment or an offer (not permissible) and assigment of a K |
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