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| Lost profits must be established with reasonable certainty |
Ashland - the case with the stock picking computer model |
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Andrewcm09 Tue, 25 Nov 2008 02:50:20 GMT |
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| to recover damages the damages must be reasonably certain but they do not have to be absolutely certain |
Ashland - the case with the stock picking computer model |
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Andrewcm09 Tue, 25 Nov 2008 02:50:20 GMT |
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| The non-breaching party is entitled to the damages that are reasonably foreseeable at the time of K formation |
Hadley |
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Andrewcm09 Tue, 25 Nov 2008 02:50:20 GMT |
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| If a wrongfully discharged employee takes inferior employment the amount of the salary of the inferior employment is deducted from the recoverable damages |
Southern Kenswick |
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Andrewcm09 Tue, 25 Nov 2008 02:50:20 GMT |
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| Reasonable costs incurred while trying to mitigate damages are recoverable |
Mr. Eddie |
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Andrewcm09 Tue, 25 Nov 2008 02:42:34 GMT |
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| A wrongfully discharged employee is not obligated to look for employment far from home |
Punkar |
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Andrewcm09 Tue, 25 Nov 2008 02:42:34 GMT |
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| The duty to mitigate is abrogated where the defendant could just as easily mitigated the damages themselves |
S.J. Groves |
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Andrewcm09 Tue, 25 Nov 2008 02:42:34 GMT |
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| Loss of opportunity to practice one's profession and injury to one's reputation are all viable arguments for a wrongfully discharged employee seeking damages |
Shirley MacLaine |
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Andrewcm09 Tue, 25 Nov 2008 03:00:34 GMT |
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| Employment must be substantially similar or wrongfully discharged employment is not obligated to take it to mitigate |
Shirley MacLaine |
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Andrewcm09 Tue, 25 Nov 2008 02:39:31 GMT |
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| The employee's rejection of or failure to seek other available employment of a different or inferior kind must not be resorted to in order to mitigate damages |
Shirley MacLaine |
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Andrewcm09 Tue, 25 Nov 2008 02:39:31 GMT |
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| The measure of recovery by a wrongfully discharged employee is the amount of salary agreed upon for the period of service, less the amount which the employer affirmatively proves the employee has earned or with reasonable effort might have earned from other employment |
Shirley MacLaine |
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Andrewcm09 Tue, 25 Nov 2008 02:39:31 GMT |
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| Duty to mitigate should not lead to unreasonable burden on injured party |
Bank One - sell your jewels to look for oil |
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Andrewcm09 Tue, 25 Nov 2008 02:52:18 GMT |
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| Between multiple reasonable options the non-breaching party can choose which option to pick |
In Re Kellett |
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Andrewcm09 Tue, 25 Nov 2008 02:35:05 GMT |
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| The reasonableness of the non-breaching party is determined in context |
In Re Kellett |
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Andrewcm09 Tue, 25 Nov 2008 02:35:05 GMT |
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| Whether or not a party has attempted to mitigate is dependent on the reasonableness of the party |
In Re Kellett |
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Andrewcm09 Tue, 25 Nov 2008 02:35:05 GMT |
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| Non-breaching party only has to make reasonable efforts to mitigate |
RSC §350(1) |
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Andrewcm09 Tue, 25 Nov 2008 02:35:05 GMT |
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| Damages cannot be recovered that would have been mitigated without undue risk, burden, or humiliation |
RSC §350(1) |
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Andrewcm09 Tue, 25 Nov 2008 02:32:18 GMT |
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| Non-breaching party has a duty to mitigate once it has knowledge of a breach |
Rockingham County - the bridge to nowhere |
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Andrewcm09 Tue, 25 Nov 2008 02:32:18 GMT |
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| If a dealer is a volume seller and the buyer breaches but the dealer later sells the item to another buyer, the dealer is entitled to the K price made with the first buyer as damages because the breach does not create an opportunity for the second sale. |
Lost volume seller rule - Neri |
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Andrewcm09 Tue, 25 Nov 2008 02:32:18 GMT |
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| Cover must be made in good faith (no sweet heart deals) |
KGM Harvesting |
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Andrewcm09 Tue, 25 Nov 2008 02:32:18 GMT |
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| Promissory estoppel |
RSC § 90 |
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Andrewcm09 Tue, 18 Nov 2008 00:39:16 GMT |
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| PE can be applied to preliminary business agreements |
Red Owl |
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Andrewcm09 Tue, 18 Nov 2008 00:39:16 GMT |
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| A third party is entitled to PE if the promissor could reasonably foresee reliance by the 3rd party |
RSC §90(1) |
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Andrewcm09 Tue, 18 Nov 2008 00:39:16 GMT |
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| A K can be made obligating someone to bequeath property in a specified manner |
Klockner |
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Andrewcm09 Tue, 18 Nov 2008 00:38:39 GMT |
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| K must be unconscionable at time of formation (if circumstances make it unconscionable later it’s too late) |
Maxwell |
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Andrewcm09 Tue, 18 Nov 2008 00:38:39 GMT |
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| Seminal case in unconscionability |
Walker-Thomas |
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Andrewcm09 Tue, 18 Nov 2008 00:38:39 GMT |
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| Duress≠ legal duress |
Chouinard |
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Andrewcm09 Tue, 18 Nov 2008 00:38:39 GMT |
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a threat that is
1) A crime or tort
2) Threat of criminal prosecution (not really relevant)
3) Frivolous lawsuit
4) Threatening to breach another K
Above threats not contingent on fair terms of the K |
Improper threat (RSC §176) |
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Andrewcm09 Tue, 18 Nov 2008 00:37:49 GMT |
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Duress Test
1)Improper threat
2) By other party
3) No reasonable alternative |
RSC §175 |
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Andrewcm09 Tue, 18 Nov 2008 00:37:49 GMT |
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| You cannot skip an opportunity to cover and then wait to cover at a higher price |
Egere |
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Andrewcm09 Tue, 18 Nov 2008 00:37:49 GMT |
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| Cover must be within a reasonable amount of time |
Egere |
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Andrewcm09 Tue, 18 Nov 2008 00:37:49 GMT |
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| The buyer is not limited to covering with “an exact” replacement but rather with a reasonable substitute |
Egere |
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Andrewcm09 Tue, 18 Nov 2008 00:35:36 GMT |
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| Non-breaching buyer does not have a legal obligation to cover |
Egere |
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Andrewcm09 Tue, 18 Nov 2008 00:35:36 GMT |
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| K price is not a cap on damages |
Continental Sand |
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Andrewcm09 Tue, 18 Nov 2008 00:35:36 GMT |
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| Construction of residential housing can be an exception to the value rule (if you live actually live in the house) |
Fox |
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Andrewcm09 Tue, 18 Nov 2008 00:35:36 GMT |
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| If the breach goes towards aesthetics the court is more likely interpret breach as material |
City School District |
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Andrewcm09 Tue, 18 Nov 2008 00:34:56 GMT |
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To get diminution in value the Δ must prove
1) Made a good-faith effort to perform the K
2) Performance is grossly disproportionate to cost of completion
3) The breach was incidental to the main objective. |
H.P. Droher |
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Andrewcm09 Tue, 18 Nov 2008 00:34:56 GMT |
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| – diminution in value is awarded to avoid economic waste |
Value rule |
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Andrewcm09 Tue, 18 Nov 2008 00:34:56 GMT |
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| what it will cost the plaintiffs to obtain performance of the work that was not done because of the Δ’s default |
Performance rule |
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Andrewcm09 Tue, 18 Nov 2008 00:34:56 GMT |
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| The non-breaching party is entitled to the benefit of the bargain |
Peevyhouse |
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Andrewcm09 Tue, 18 Nov 2008 00:33:41 GMT |
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| Puts the plaintiff in the position he would be if the K would have been executed |
Expectation damages |
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Andrewcm09 Tue, 18 Nov 2008 00:33:41 GMT |
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| Puts the plaintiff in a position that he would have been if the promise had never been made |
Reliance damages |
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Andrewcm09 Tue, 18 Nov 2008 00:33:41 GMT |
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| A party cannot recover for pain after surgery because it is “bargained for” |
Hawkins |
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Andrewcm09 Tue, 18 Nov 2008 00:33:41 GMT |
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