Study Contracts - Remedy and defenses Flash Cards

 
Pile Management Card
Contracts - Remedy and defenses

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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
Duty to mitigate should not lead to unreasonable burden on injured party
Bank One - sell your jewels to look for oil
Lost profits must be established with reasonable certainty
Ashland - the case with the stock picking computer model
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
The non-breaching party is entitled to the damages that are reasonably foreseeable at the time of K formation
Hadley
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
Reasonable costs incurred while trying to mitigate damages are recoverable
Mr. Eddie
A wrongfully discharged employee is not obligated to look for employment far from home
Punkar
The duty to mitigate is abrogated where the defendant could just as easily mitigated the damages themselves
S.J. Groves
Employment must be substantially similar or wrongfully discharged employment is not obligated to take it to mitigate
Shirley MacLaine
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
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
Between multiple reasonable options the non-breaching party can choose which option to pick
In Re Kellett
The reasonableness of the non-breaching party is determined in context
In Re Kellett
Whether or not a party has attempted to mitigate is dependent on the reasonableness of the party
In Re Kellett
Non-breaching party only has to make reasonable efforts to mitigate
RSC §350(1)
Damages cannot be recovered that would have been mitigated without undue risk, burden, or humiliation
RSC §350(1)
Non-breaching party has a duty to mitigate once it has knowledge of a breach
Rockingham County - the bridge to nowhere
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
Cover must be made in good faith (no sweet heart deals)
KGM Harvesting
Promissory estoppel
RSC § 90
PE can be applied to preliminary business agreements
Red Owl
A third party is entitled to PE if the promissor could reasonably foresee reliance by the 3rd party
RSC §90(1)
A K can be made obligating someone to bequeath property in a specified manner
Klockner
K must be unconscionable at time of formation (if circumstances make it unconscionable later it’s too late)
Maxwell
Seminal case in unconscionability
Walker-Thomas
Duress≠ legal duress
Chouinard
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)
Duress Test
1)Improper threat
2) By other party
3) No reasonable alternative
RSC §175
You cannot skip an opportunity to cover and then wait to cover at a higher price
Egere
Cover must be within a reasonable amount of time
Egere
The buyer is not limited to covering with “an exact” replacement but rather with a reasonable substitute
Egere
Non-breaching buyer does not have a legal obligation to cover
Egere
K price is not a cap on damages
Continental Sand
Construction of residential housing can be an exception to the value rule (if you live actually live in the house)
Fox
If the breach goes towards aesthetics the court is more likely interpret breach as material
City School District
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
– diminution in value is awarded to avoid economic waste
Value rule
what it will cost the plaintiffs to obtain performance of the work that was not done because of the Δ’s default
Performance rule
The non-breaching party is entitled to the benefit of the bargain
Peevyhouse
Puts the plaintiff in the position he would be if the K would have been executed
Expectation damages
Puts the plaintiff in a position that he would have been if the promise had never been made
Reliance damages
A party cannot recover for pain after surgery because it is “bargained for”
Hawkins
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