Term
| How do you tell if a contract is integrated? |
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Definition
| If it is the final and complete exclusive agreement of the parties. |
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Term
| How do you tell partial integration verses full integration? |
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Definition
| Partial integration - RS It is partially integrated if the term would have been naturally been admitted, it will be included. Full integration - The parties intended the writing to be the full and final embodyment of their agreement. |
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Term
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Definition
| When a party to an existing contract transfers to a third person her rights under the contract. |
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Term
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Definition
| When a party to a contract transfers to a third person her duties under the contract. |
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Term
| What are the limitations on contract damages? |
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Definition
| Forseeability, Certainty, Avoid avoidable losses. |
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Term
| What are the elements of frustration of purpose? |
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Definition
2. Frustration of purpose is when after a contract is made, thru no fault of the parites, the primary purpose of the contract is substantially frustrated by the occurance of an event, the non-occurance of which, was a basic assumption on which the contract was made. |
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Term
| How do you tell if someone was an intended 3rd party beneficiary? |
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Definition
You look to see if conferring the right to performance on the 3rd party is necessary to effectuate the intent of the parties and [was it clear that the parties said do this and give it to her] (a or b)
a. the third party bene owes money or
b. the promissee intended for the performance to flow to the third party beneficiary. |
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Term
| What is the diminished value rule? |
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Definition
| money calculations for damages when a contract (especially for construction) has been pretty much performed but has been deviated from slightly we look to the value as promised and the value as delivered. |
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Term
| What is repudiation and anticipatory repudiation? |
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Definition
| repudiation (a clear an unequivacable statement of intent not to perform, may be words or actions). A anticipatory repudiaiton comes before the time for performance is due. |
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Term
| What can you do in the face of a repudiation? |
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Definition
1. You can do nothing
2. You can cover
3. Ask for retraction (stop it don't to it) |
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Term
| What are your expection interest? |
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Definition
| The amount that is needed to put the party in the posisiton they expected to be had the contract been performed. This also encompasses reliance, and restitution. |
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Term
| What is a constructive condition? |
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Definition
| A condition the court will consturct if reasonable to avoid forfieture. |
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Term
| What types of promises are usually construed as dependant promises. |
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Definition
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Term
| What are the things the court will look to to interpret the contract if there is an ambiguous term. |
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Definition
1. Definitions
2. course of dealings (history of dealings between the same parties)
3. Course of performance (same parties same contract.
4. Trade Usage (customs of the trade)
5. Intent of the parties
6. Language of the contract.
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Term
| Is parole evidence admissible to show a condition even if the contract is integrated. |
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Definition
| A condition precedent to the contract arising. |
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Term
| It is a assumed that you can always hire more people to do the work in a construction contract so lost volume seller won't apply. How is this different than UCC lost volume seller? |
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Definition
| UCC lost volume seller - a seller whos expectation damages won't be caculated by cost to cover because they could have sold another product at that same price so they really just lost volume. |
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Term
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Definition
| When the ambiguous nature of the words are not understood until the parties point them out. |
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Term
| What are the exceptions to a delegation taking effect? |
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Definition
| When the obligee has a substantial interest in having the delegator perform the duty. |
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Term
| What are the facts you want to look to when evaluating the expectation damages? |
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Definition
1. There has to be a contract that calls for payment.
2. Look at there promised posistion, and what they were supposed to get
3. What did they actually get |
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Term
Expecation damages - What are the elements to recover damages?
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Definition
1. promised position - value of the contract
2. (subtract) any costs it would have taken to get to that point in time.
3. in the end position, where is she now?
4. Reliance (did they spend anything to get where they were going?)
5. Did they conferr benefit (watch for payments to the breaching party). |
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Term
| Empolyment contract rules and limitations. |
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Definition
| In an employment contract, there is no cost of performance. So expectation is the value of the contract. and it is limited by what they did or what, with reasonable effort, could have recieved. |
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Term
| What is a patent ambiguity |
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Definition
| Ambiguities on the face of the contract |
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Term
| Who is liable under a delegation? |
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Definition
| The delagotor remains liable to the original promisee. |
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Term
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Definition
| A fixed amount of rent, includes everything the landlord must collect. |
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Term
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Definition
| Includes a base rent and a cost of shared expenses calculated each month and added to the base. |
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Term
| What are the ways a court may specify certain details of performance left unspecified by the parties either consciously or unconsciously? |
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Definition
(a) attempt to find a new term by implication from the facts, e.g., if the recitals to the agreement reflect the parties' intent, etc.; (b) imply a duty of good faith; (c) imply a duty to use reasonable efforts; (d) if the U.C.C. applies, use any of Article 2's “gap fillers” (Part 3 of Article 2); or (e) add terms from course of performance, course of dealing, and usage of trade. |
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Term
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Definition
| An event not certain to occur, which must occur, unless its nonoccurrence is excused, before performance under a contract becomes due. |
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Term
| How do you IRAC a condition? |
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Definition
| identify the obligation, the linking words and the event not certain to occur. |
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Term
| What is the implication of the word "when" as a linking word? |
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Definition
| When the word "when" is used as a linking word, courts have a preference to interpret this as only a "convenant" to pay when paid like Peacock case, as to avoid a complete forfieture of the obligation. Pay when reasonable |
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Term
| A condition in fact occurs when? |
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Definition
| When the parties intended the fact operate as a condition. It may be expressed in the terms or if reasonalby inferable, implied in fact. This cannont happen with out something else taking place first. |
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Term
| What is a breach of contract? |
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Definition
| non-fullfillment of a promise |
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Term
| What are examples of express conditions? Actually and intentionally included by the parties as a term of the contract. |
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Definition
| If, on condition that, provided that, in the event that, subject to. |
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Term
| What are the two types of satisfaction clauses? |
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Definition
| based on personal taste, must be expressed that it is essential to the contract; Based on commercial standards of reasonableness given the context of the contract. |
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Term
| language creates a covenant when? |
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Definition
| it contains words of obligation or some other outward manifestation of obligation. examples are debtor will, a's duty to. |
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Term
| How do you construe when as a condition? |
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Definition
| When may suggest the passage of time (something certain to occur) rather than an event not certain to occur. |
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Term
| How do you describe an obligation that does not arise unless some event occurs? |
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Definition
| conditional obligation or duty; an obligation that is subject to a condition. |
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Term
| What does it mean to enforce a contract? |
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Definition
| To give the aggrieved party the benefit of the bargain (measured by money) and NOT by forcing the defaulting party to perform. |
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Term
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Definition
| lets the agreived party recover an amount of money that should substitute for what that party would have recieved has the breaching party fully performed. |
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Term
| Damages under the expectation interest are? Formula? |
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Definition
| Loss in value (promised - recieved) + other loss (forseeable) - cost avoided and loss avoided. loss avoided = when you go and sell it to someone else or make money doing what you were going to do for someone else. Cost avoided = if you didn't have to make the product you were going to make or spend the money that you planed on spending in performance of your obligations. |
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Term
| What is the reliance interest? |
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Definition
| A monetary award designed to let the aggrieved party recover money spent in reliance on the contract minus any loss the breaching party can prove with certainty the injured pary would have suffered had the contract been performed. |
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Term
| What is the restitution interest? |
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Definition
| Lets the agrieved party recover any value it has conferred on the other party, where the breaching party has been unjustly enriched. |
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Term
| When is equitable relif available? |
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Definition
| Sale of land (land is unique) |
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Term
| When will courts NOT grand specific performance? |
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Definition
| Contracts for personal services, where enforcement would require court supervision. |
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Term
| Contracting parites loose rights to modify or discharge the contract when a third party (before reciving notification of the changes) (3 things) |
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Definition
| changes her posistion in reliance on the contract. Brings suit on the contract. Manifests and intent to it. |
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Term
| Did the person intend to confer a benefit on a 3rd party? |
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Definition
| a person is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties. (look at objective manifestation in contract of promise to benefit 3rd party.) a. creditor / beneficiary - the promise satisfies an obligation of the promisee to pay money to the befeficiary. or b. where the promisee intends to give the beneficiary the benifit of the promised performance. |
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Term
| What is an incidental beneficiary? |
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Definition
| one who would be benefited by performance, but whom the original parties did not intend to confer a benefit. |
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Term
| When does a party become Vested? |
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Definition
| when before the beneficiary recieves notification of the modificaton, a. changes her position in reliance on the contract b. brings suit on the contract (all defenses are ligit) c. manafests assent to it at the request of either of the other original parties. |
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Term
| does an intended beneficiary have to assent or be aware of the 3rd party benefit conferred upon him? |
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Definition
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Term
| What performances are not delegable? |
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Definition
| personal services or particular taste or skill contracts, if delegee is a competitor. |
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Term
| What happens if the delagatee makes a promise to perform the duties assigned? |
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Definition
| The obligor becomes a third party beneficiary and can sue either party for non-performance. |
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Term
| What happens if the delagator "assigns the contract" |
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Definition
| The rights and dutys are both assigned. |
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Term
| What happens if the delagtor, after delegating his duties says, "I don't remain liable to you original party" |
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Definition
| if the party says nothing they waive it and the party is not liable to them, some courts require this assent to be in writing. |
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Term
| What are the elements of impossibiltiy of performance? |
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Definition
1. The event occurred after the contract was made
2. The event was one whose non-occurrence was a basic assumption on which the contract was made.
3. The event was not the fault of the party seeking the discharge and
4. The language or circumstances don’t dictate that discharge should be denied because the parties allocated the risk of the event to the party now seeking to use the impossibility doctrine. |
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Term
| What are the elements of frustration of purpose? |
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Definition
| An event occurred, that frustrated the purpose, non-occurance was a basic assumption of the contract. |
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Term
| Expectation damages do not include reliance damages, Why? |
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Definition
| Because when you are looking at where you would have been had the contract been performed, you would subtract the amount the party would have spent to get there (this is the reliance damages.) Restituion focuses only on what went to the other party. |
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Term
| What amount is restitution? |
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Definition
| The amount paid to the other party. |
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Term
| What does the reliance interst include |
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Definition
| it includes the restitution (payment to other parties) and money spent by the party in reliance on the contract. |
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Term
| When will they refuse to award expectation damages? |
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Definition
| When the damages are to speculative to calculate with a degree of certainty. |
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Term
| The rules for obtaining reliance are? |
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Definition
| It must be shown with a reasonable degree of certainty. |
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Term
| When are legal remedies inadequate? |
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Definition
| Where goods are unique, where damages are too speculative. |
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Term
| How do you calculated damgages under expectation interest? |
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Definition
| Damages under expectation interest are equal to, the value of the defendant’s promised performance (the contract price) minus Whatever benefits the plaintiff received from not having to complete his own performance. |
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Term
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Definition
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Term
| Rights are normally assignable unless: |
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Definition
| a. it would materially change the duty of the obligor b. materially increase the burden or risk imposed on him c. or materially impari hs chance of obtaining his contract, reduce value to him, impair chance of geting return performance. |
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Term
| Ways to calculate money damages? |
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Definition
| expectation, reliance, restitution. |
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Term
| What are remedies for breach of contract. |
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Definition
| money damages and equitable damages. |
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Term
| When can a party revoke the 3rd parties rights? |
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Definition
| At anytime unless a term in the contract prevents it or they (3rd party) become vested. |
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Term
| When does a 3rd party become vested? |
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Definition
| if he materially changes his position in reliance on the promise, brings suit on the contract, manifests assent to it at the requrset of the promisor or promisee. |
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Term
| the assignee stands in the shoes of the assignnor 334 |
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Definition
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Term
| restitution is measured by the value of the benefit conferred. |
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Definition
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Term
| Good faith and fair dealing |
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Definition
| Implied in law condition, because a party has the duty to cooperate and not stop you from getting the fruits of your contract. |
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Term
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Definition
| Damages are not recoverable for loss that the injured party could have avoided without undue risk, burden or humiliation. |
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Term
| intended 3rd party beneficiary verses incidental. |
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Definition
| has a right to recover on a contract, the other does not. |
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Term
| RS 315 effect of a promise of incidental benefit |
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Definition
| An incidental beneficiary requires no right against the promisor. |
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Term
| 307 - specific performance and 3rd party. |
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Definition
| 3rd party can use specific performance where it is appropriate. |
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Term
| 309 - defenses against the beneficiary. |
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Definition
| if this contract is voidable or unenfoceable, the 3rd party doesn't have rights any longer. |
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Term
| 311 RS variation of a duty to a 3rd party beneficiary. VESTING |
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Definition
| Parties to the original contract have the right to modify the 3rd party beneficiaries rights, unless there is a term, the bene materially changes his posistion, brings suit on it or manifests assent at the request of the parties. |
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Term
| 313 government entities and 3rd party beneficiaries. |
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Definition
| Generally courts will not interpret government contracts has giving rise to 3rd party claims, they are worred about a plethura of litigation and this might prevent people from entering into contracts with government entities |
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Term
| The preferred interpretation of assigning the contract means. |
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Definition
| both an assignment of rights and delegation of duty’s has taken place. |
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Term
| RS 328 assignment of contract and 3rd party beneficiary created. |
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Definition
| an assumption that the delegate has assumed the obligation and this creates an intended third party beneficiary. |
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Term
| RS 324 mode of assignment |
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Definition
| the obligor manifest an intention to transfer the right to another party with out further action or manifestation by the obligee. May be oral or written. |
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Term
| RS 317 Assignment of Right |
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Definition
| An assignment of right takes place when the assignor manifests a present intent to transfer all the rights, and relinquish all control of those rights to another party. |
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Term
| RS 317 defenses to assignment of right are. |
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Definition
| unless it would materially change the duty of the obligor, increase risk or burden, impair his chance to obtain performance, or reduce the value to him. |
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Term
| 318 more defenses to assignment of rights. |
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Definition
| unless contrary to public policy, unless obligor has an interest in having the original party perform, no original duty is discharged under the original contract. |
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Term
| RS 336, defenses against an assignee |
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Definition
| Assignee stands in the shoes of the assignor. |
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Term
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Definition
| The rights of an assignee is priority, first in time, first in right. |
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Term
| prima facia case for expectation damage. |
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Definition
| The injured party has a right to damages based on his expectation interest as measured by loss in value, plus other loss, less other cost or another loss he could have avioded. |
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Term
| loss in value (generally) |
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Definition
| difference between what they were promised and what they recieved. |
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Term
| 2 ways to assess the loss in value |
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Definition
| diminition of value and cost of performance. Peevy house. cost of performance should be limited to the difference in the market value before and after. |
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Term
| The cost of value performance is the proper measure of damages if: |
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Definition
| if this is possible and does not involve unreasonable economic waste. |
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Term
| The dimintution in value is proper where: |
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Definition
| completion of the contract would involve economic waste. A is entitled to the money which will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the goot to be attained. When that is true, the measure is the difference in value. |
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Term
| any other loss (consequencial damages) |
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Definition
| incidental damages - costs, consequencial - loss. Talk about Hadly v. Baxendale. Were the damages foresable? Did it naturally flow from the breach or arise out of the circumstances that were disclosed at the time of the contract? |
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Term
| Any cost or other loss that he has avoided |
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Definition
| consider this in terms of avoidable loss. Parker - you will also have to subtract from the recovery, amounts that could have been avoided through reasonable efforts. |
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Term
| if the loss in value comes from defective or unfinished construction and the party cannot prove with reasonable certainty that loss he may - |
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Definition
| use the diminution in market price of the property caused by the breach or the reasonable cost of completeing performance if that cost is not clearly disporportionate to the probable loss in value to him. |
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Term
| You can't rely after a contract has been breached |
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
| ok unless they seem to be punitive. |
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Term
| Equitable remedy what do you need to show |
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Definition
| That a legal remedy would be inadequate. How hard would it be to take the money out and find someone else to perform the same job, how hard is it to prove money damages with specificity, likely hood that you can't collect money from the person. Specific performance will not be awarded if it would require burden to supervise the parties. |
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Term
| Restitution when you are the one who breached. |
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Definition
| The contract price as a ceiling. ?? I don't really know about this. |
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Term
| Restitution and measurement of damages |
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Definition
| is it reasonable certain? |
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Term
| Where there is not a breach but substantial performance how do you determine loss in value? |
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Definition
| dimunition value or cost of performance. |
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Term
| What are the elements of substancial performance? |
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Definition
| extent to which injured party will be deprived of the benefit he expeced to recieve, extent to which the injured party can adequately be compensated, extent to which the party failing to perform or to offer to perform with suffer forfieture, likelihood that the party failing to perform will cure his failure, extent to which the behavior of te party failing to perform did so willfully (acted in good faith). |
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Term
| How to talk about if a delagatee is a 3rd party beneficary. |
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Definition
| The presumtion that when there is a contract that assigns rights and delegates duties it is presumptively a 3rd party beneficiary contract. |
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Term
| Call of the question: Discuss whether she can either recover damages or specific performance. |
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Definition
| Legal remedies are the preferred method of recovery for damages. Courts award equitable relief only when legal remedy is inadequate. A legal remedy is inadequate when the contract involves the sale of property because land is unique. Also, if damages are to speculative and uncertain, specific performance may be awarded. However, specific performance is discretionary. The may choose not to award specific performance if it would create great burden or cost on the court or parties. Some ways courts decide if legal remedies are inadequate is if payment of damages is unlikely, it would be hard to find the same performance somewhere else once you got the money and if they are difficult to prove with reasonable certainty. |
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Term
| Call of the question: Assume she is entitled, what can she recover? |
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Definition
| Money damages for breach of contract (don't talk about restitution) |
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Term
| Call of the question: A wishes to know if she can recover damages to their contract. |
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Definition
| Money damages (don't discuss equitable) |
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Term
| Call of the question: E and F consult their attorney to learn what, if anything, they can recover arising out of H's breach of the contract. |
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Definition
| Legal remedies only (not equitable only equitable if question says recieve), |
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Term
| Call of the question: Analyze the parties legal position, including who breached, do not discuss remedies |
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Definition
| breach breach whos got the breach. |
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Term
| Call of the question: What are A's rights and obligations under the contract? |
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Definition
| Rights and obligation include, what were the obligations, was there a breach, if so can they collect legal remedy or equitable relief? |
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Term
| Call of the question: Advise A of her rights. |
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Definition
| Was there a contract, terms, conditions, performance, equitable or legal remedies, demand for adequate assurance. Full analysis of everything you know! |
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Term
| Call of the question: A sues B for breach of contract, what damages can A recover? |
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Definition
| On the contract expectation only. Money damages - expectation. If it says what DAMAGES... don't talk about equitable relif.. damages are money, legal remedy only. |
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Term
| Call of the question: What are A's remedies? |
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Definition
| Remedies at law for breach of contract (legal are preferred), equitable remedies for breach of contract, not recovered unless legal is inadequate. Off the contract, restitution and reliance. |
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Term
| Call of the question: Was A an alleged third party beneficiary? |
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Definition
| There is a contract in which I am an intended 3rd party bene, duty arose, if unexcused then nonperformance = breach, breach caused damages, |
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Term
| Call of the question: The assignee of a contract wants to sue original obligor for breach of K can she? |
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Definition
| 1. an original contract exists between obligor and assignor. 2. was the assignment effective? (present intent to transfer right, relinquising all control?) If so Assignee stands in the shoes of the Assignor. What was the duty? did it arrise? If unexcused was non-performance a breach of K? Did the breach cause damages? |
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Term
| Call of the question: What does an action for breach of contract look like? |
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Definition
| 1. contract exists 2. duty arose and was not performed 3. (if unexcused, that nonperforamance gave rise to a breach 4. breach caused damages. |
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