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Law Outlines Contracts Outlines

Performance Breach And Remedies Outline

Updated Performance Breach And Remedies Notes

Contracts Outlines

Contracts

Approximately 165 pages

This outline packet comprehensively explains one of the most difficult legal subjects. Topics include: offers, acceptance, interpreting terms, modifying contracts, parol evidence, performance, breach, and remedies. The outline includes UCC rules and caselaw, as well as rules from the Restatement. This packet also includes an outline of the E&E for contracts, as well as an outline for the bar exam (MBE and UBE). Everything you need to ace your exam!...

The following is a more accessible plain text extract of the PDF sample above, taken from our Contracts Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:

PERFORMANCE AND BREACH

  1. Promise based on past services

    1. Law of Restitution & Unjust Enrichment (or quasi-contract)

      1. Obligation in the law of unjust enrichment is benefits based (as opposed to obligation in contract, which is promise based/ or trots, which is harm based)

        1. Mills v. Wyman (pg 152) – adult son becomes deathly ill and incapacitated, dies. Father writes caretaker letter promising to reimburse.

          1. The rule . . . . cannot be departed from to suit particular cases in which a refusal to perform such a promise may be disgraceful.

        2. Webb v. McGowin (pg 156) – Webb injures self to save McGowin who had negligently wandered into a workspace. Oral promise to pay Webb $15 every two weeks for his life. Executor reneges after McGowin’s death.

          1. Court crafts a rule that justifies the result they want to reach

            1. Bricken: promise is enforceable if promisor received benefits of a material or pecuniary nature

            2. Foster: adds requirement that promise sustained injuries to his person/property in providing the service

            3. The rules are question-begging, especially given Mills

        3. In each of the above:

          1. Promise not made as part of bargain, so no contract claim

          2. Judges believe promises ought to be kept and want to provide legal remedy, but there’s no claim under law of restitution and unjust enrichment, no tort.

      2. R2 § 86 basically says a “promise made in recognition of a benefit previously received” is enforceable if the promisor would otherwise be “unjustly enriched.”

        1. Like §90, this expands bases for enforcing a promise beyond bargain & uses open-ended criteria that refers to underlying normative consideration (which is to avoid unjust enrichment)

REMEDIES

  1. Goals

    1. Put claimant in promised position (expectation principle)

    2. Minimize cost to defaulter (mitigation principle)

    3. Remedial simplicity (simple, predictable rules preferred)

      1. Courts willing to live with results that over/under compensate apparent loss in order to have reliable rules for a general category of cases

  2. Problem of Valuation

    1. Where the problem is valuing the difference between the promised position and the actual position. We know the breach worsened the plaintiff’s position, and we must set a value or price on the worsening of his position.

      1. Choices:

        1. Remedial cost

        2. Loss in market value

        3. Estimated actual loss

      2. Policy considerations:

        1. Remedial simplicity

        2. Incentive effects on performance

  3. Problem of Causation

    1. Where the problem is determining what difference performance would have made to the plaintiff’s position

      1. Same policy considerations

  4. Restitution

    1. Benefits based obligation

    2. Most common claim: plaintiff seeks restitution for a benefit conferred on another as a byproduct of the plaintiff pursuing her own interests

    3. Estate of Cirsan – City hospital provides 329 days of care for Crisan – who is admitted while unconscious and remains so until her death.

      1. Implied promise in law and is fictitious (byproduct of using conceptual apparatus of contract to solve a problem of unjust enrichment)

    4. Mills v Wyman - only allows Mill recovery if Levi’s father was under legal duty to care for son

    5. R3RUE § 20:

      1. (1) A person who performs, supplies, or obtains professional services required for the protection of another’s life or health is entitled to restitution from the other as necessary to prevent unjust enrichment, if the circumstances justify the decision to intervene without request.

      2. (2) Unjust enrichment under this section is measured by a reasonable charge for the services in question.

    6. Webb v. McGowin – no viable restitution claim because he did not provide a professional service (objective standard, administrability, incentivizing the right people, simplicity of valuation)

    7. Restitution as an alternative remedy for breach of contract (think of as coupled with doctrine of “reliance as surrogate for uncertain expectation damages”)

      1. Plaintiff’s right to resind contract for a sufficiently grave breach and use in restitution for value of performance rendered

      2. This suit is not technically on the contract.

      3. Algernon Blair (pg 351): contract price and expectation interest are not a limit on the right to recover in restitution.

        1. A Contractor who grossly underbid work was allowed to recover damages in restitution for the value of the work though this amount was significantly in excess of contract price.

          1. Unlike reliance claim

      4. No expectancy cap

        1. The measure of restitution is the “reasonable value of the performance” rendered, usually the market value of the performance rendered. This is not defined by the contract price. Nor is it defined by the defendant’s subjective value. Algernon Blair.

        2. Randolph Castle holds D is liable in restitution for labor made available though it did not use the labor. This type of restitution claim is not really benefits-based. R3RUE describes it as a claim for restoration.

      5. Performance v. preparing to perform

        1. Illustration 2 (pg 350): P cannot get restitution of the $40,000 because this was a cost of preparing to perform, the machine was never delivered to D. Similarly, if someone who lives in California takes a job in N, they couldn’t recover for time and money spent relocating to NY in a restitution claim.

          1. Claim in restitution is for the reasonable value of the performance rendered.

          2. Costs of preparing to perform are recovered

          3. The $40,000 would be recovered as reliance damages

          4. Not clear how this line is being drawn generally and in the illustration

          5. Standard rationale – the $40,000 did not benefit D – does not work because restitution is not benefits based

        2. Illustration 5: line between preparing to perform and rendering performance is sometimes obscure

      6. Subtract benefits received

        1. Algernon Blair: judgment for reasonable value of work done minus payments already receieved. Think of this as netting. Or as claim for counter-restitution.

      7. Claim is unavailable if performance is completed

        1. Oliver v. Campbell – precludes elective restitution claim if P has finished performance...

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