Term
| What is the first thing to ask yourself when reading a hypo? (2) |
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Definition
| Does the UCC apply? Is there a SOF problem? |
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Term
| If it involves a sale of goods, use ___ |
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Definition
| the UCC and supplement with common law and Restatement |
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Term
| If it involves land, what should you use? |
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Definition
SOF - make sure there's writing!
Use restatement/CL |
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Term
| If it involves a contract that cannot be performed in a year... |
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Definition
| SOF - make sure ther's writing! |
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Term
| If it involves sale of good more than $500... |
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Definition
| SOF - make sure its in writing! |
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Term
| What is the SECOND thing to look for in a hypo? |
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Definition
| Is there a "real" contract, with offer, acceptance, and consideraton? |
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Term
| If you lack consideration, what should you do? |
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Definition
| after arguing both ways, try PE or QM |
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Term
| If you lack acceptance.... |
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Definition
| argue boty ways, try PE or QM |
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Term
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Definition
| argue both ways, try PE or QM |
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Term
| If you seem to have a real contract, what should you do? |
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Definition
| after IDing offer/acceptance/consideration, go through defenses to contract formation |
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Term
what are the defenses to contract formation?
If Us, MD |
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Definition
| incapacity, fraud/misrepresentation, unconsciousnability, SOF, mistake, duress |
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Term
| What kinds of things are we looking for w/in remedies? |
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Definition
our baseline, expectancy
reliance
restituion/RM
liquidated damages/LLC
specific performance/injunction |
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Term
| when figuring out damages, what's the first thing you should do? |
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Definition
State expectancy baseline (HaWkins)
Frame problem this way; THINK about it |
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Term
| Is expectancy obj or subj? |
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Definition
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Term
What if D was enriched by their breach, but P didn't actually injure.
Can p recover? |
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Definition
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Term
| What's the expectancy principle? |
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Definition
Hawkins.
The goal of contract law is to put P in as good of a position as they occupied absent the breach. |
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Term
| What's the objective recovery of expectancy? |
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Definition
Groves.
market differential. |
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Term
| what's the market differential? |
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Definition
| subtract k price from market price as time of delivery/breach |
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Term
| whats the subjective theory of expectancy? |
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Definition
Peevyhouse. Landis
cost of completing performance. |
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Term
| What's the catch to P recovering under subjective expectancy? |
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Definition
| the cost of completing performance but be REASOABLE and not disproportintae to subjective loss |
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Term
| If a seller fails to deliver, what are the buyer's damages? |
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Definition
| difference between k price and market price at time/plce set for delivery (acme) |
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Term
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Definition
| damages = market price at the expiration of a commercially reasonable time after repudiation |
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Term
| If the buyer breaches, can he recover deposit under the UCC? |
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Definition
Yes. 2.718.2 (restitution esque)
buyer gets lesser of $500 or 20% of deposit |
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Term
| What damages can seller recover upon buyer's breach under UCC? |
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Definition
| 2.708: the difference between actual price and market price. |
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Term
| if buyer breaches, can seller recover lost profits? UCC |
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Definition
only if they are a volume dealer (Neri)
2.708.2 |
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Term
| ______ is when P changes position due to promise |
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Definition
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Term
| when you see a change of position bc P relied on promise, what should you look for? |
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Definition
| pre-k expenses, fixed costs, indirect costs (all non-recoverable) |
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Term
| X plans a huge party and buys all the balloons and confetti. Then X goes to contract with Y. Y doesn't sign. Can X recover? |
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Definition
| No - pre-k expenses aren't recoverable via Dempsey. |
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Term
| If you see someone screwed over by a hotel, airport, train, or other public infrastructure, what exception can you argue? |
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Definition
| exception to Dempsey rule - P may recover pre-k expenses bc its public infrastrcuture |
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Term
| What if P relied on D in that they stopped searching for NEW HOUSING. P and D never signed the contract tho. Can P recover? |
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Definition
| This may be an exception to the Dempsey pre-k expenses rule bc P discontinued their search for alternative . |
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Term
| P and D made a contract, and D breaches. Does P have a reliance recovery theory for his EE's salaries and overhead costs? |
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Definition
| No, those are fixed. P can only sue for variable costs, like prep for specific k event. |
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Term
| If you have a dog k (where party isnt better off based on k), what should you think about? |
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Definition
| QM! will recover more than in expectancy. |
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Term
| If you have a SOF problem, what should you do? |
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Definition
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Term
| Does P have a restitution theory if they were injured, but D wasn't enriched? |
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Definition
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Term
| what if D accidentally breached - does P still have a restitution theory? |
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Definition
| maybe. performance doesn't have to be perfect (Swedish church) |
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Term
| _______________ are complete bar to QM |
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Definition
| willful breaches. those this is kinda loose |
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Term
| Exceptions to willful breach bar rule |
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Definition
| fairness: we can look to moral quality of breach |
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Term
| _________ caps restitution. |
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Definition
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Term
| If _________ was substantial, can we use QM? |
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Definition
| no, we'll probably just use contract price (Oliver) |
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Term
| what are the 3 possibilities with deposits and QM? |
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Definition
1) K tell us how to deal via clause
2) K is silent so deposit = LD (CL)
3) Even if there is a clause, burden has to show unjust enrichment to seller |
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Term
| are LD and LLC enforceable? |
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Definition
| Yes, but regulated. And CTs are more apt to enforce LLC (these just have a set amount) |
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Term
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Definition
| 2.719 and go thru ct's 3 worries |
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Term
| if LDC, then what? R and _______ rule |
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Definition
| r 356. proportionality rule. |
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Term
| we prefer _____ injunctions to ____ injunctions. |
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Definition
| preference for prohibitory rather than mandatory |
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Term
| ______ has a better chance of getting SP than _________ |
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Definition
| house/land/closely held corps have better chance than goods |
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Term
Goods and SP - use UCC
goods must be _______ |
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Definition
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Term
| What about SP and personal services? (Fitzpatrick) |
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Definition
| no SP for personal services UNLESS that EE was part. unique and goes to competitor (Lumley) |
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Term
| are non-compete clauses okay? |
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Definition
| sometimes. consider lots of factors - super circumstantial. |
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Term
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Definition
| damages must be FORESEEABLE. |
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Term
| in order to recover consequential damages, you must _____ at time _________to recover |
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Definition
| communicate them at thhe time of contract |
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Term
| when thinking about special situations, what analytical questions should you cosider? |
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Definition
how explicit was the communication? (UCC and CL differ here!)
how certain? new business rule! |
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Term
| Timing: what was forseeable at ___ |
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Definition
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Term
| what 3 defenses are there to damages? |
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Definition
| forseeability, duty to mitigate, reasonable certainty |
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Term
| P incurs tons of expenses the week after D breaches. Can he recover? |
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Definition
| No - P can't recover anything past cost of breach. |
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Term
| Does EE have duty to mitigate via new job? |
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Definition
| Yes, but job doesn't have to be different or inferior. |
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Term
| whats the rule with EE and IC and mitigation? |
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Definition
| ICs have increased duty to mitigate bc they have more control over their job (Jordan) |
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Term
| what's a bonus defense to damages? |
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Definition
| cant recover for emotional distress. |
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