Expectation Damages for Breach of Contract and the Principle of Restitutio in Integrum Justin Orsborn* Joint Winner of the Law R
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Drafting and Enforcing Complex Indemnification Provisions
Drafting And Enforcing Complex Indemnification Provisions D. Hull D. Hull Youngblood, Jr. and Peter N. Flocos Youngblood, Jr. is a partner in the Forget about copy and paste. The best indem Austin, Texas office nification provisions start with the details of of K&L Gates LLP. Mr. Youngblood the transaction. focuses his practice on government contracting, the security industry and com plex THE PURPOSE of this article is to assist transactional financial transactions, and regularly represents and litigation attorneys in the negotiation and drafting clients in a wide array of local, state, and federal of customized, and therefore more effective, indemnifi- contracting transactions and disputes. He can be cation provisions in a wide range of situations, and also reached at [email protected]. to spot certain litigation issues that may arise out of in- demnification provisions. This article will identify issues Peter N. and strategies and suggested language that can act as a Flocos starting point to protect the client’s interests in the area is a partner in the of indemnification in complex transactions and litigation. New York City Readers should note that this article is for informational office of K&L Gates purposes, does not contain or convey legal advice, and LLP. Mr. Flocos, may or may not reflect the views of the authors’ firm or who began his any particular client or affiliate of that firm. The infor- legal career as mation herein should not be used or relied upon in regard a transactional lawyer and then to any particular facts or circumstances without first con- became a litigator, sulting a lawyer. -
Expectation, Reliance, and the Two Contractual Wrongs
Expectation, Reliance, and the Two Contractual Wrongs CHRISTOPHER T. WONNELL* TABLE OF CONTENTS L INTRODUCTION: THE PLACE OF EXPECTATION AND RELIANCE IN CONTRACTUAL DECISION MAKING ............................................. 54 A. Two ContractualDecisions in Need of Moral Assessment ................54 B. Six Motivesfor Making and Then Breaking a Particular Contract................................................................................................. 60 1. Taking Advantage of NonsimultaneousPerformances ................... 60 2. Making a Threat to Breach in the Face of Situational Monopoly Credible....................................................................... 62 3. Refusing to Carry Through on an Agreed-upon Allocation of Risk ......................................................................... 63 4. Seeking to AppropriateInformation Productively Brought to Bearon the Transactionby the Promisee..................... 66 5. Seeking to Avoid the Contract Because of a Mistake That Makes the ContractMore Burdensome to the PromisorThan Anticipated and Correspondingly More Profitableto the Promisee.................................................. 72 6. Seeking to Avoid the Contract Because of a Mistake That Makes the ContractMore Burdensome to the PromisorThan Anticipated Without Becoming CorrespondinglyMore Profitableto the Promisee........................ 75 * Professor of Law, University of San Diego School of Law. J.D. 1982, University of Michigan; B.A. 1979, Northwestern University. This Article was selected by -
1. the Issue Is Whether the Trial Court Erred in Awarding the Rancher, An
STUDENT ANSWER 1: 1. The issue is whether the trial court erred in awarding the Rancher, an aggrieved party in a breach of contract claim, a $500,000 award for restoration of the Ranch when the breaching party showed by expert testimony a diminution of value of only $20,000 in the Ranch’s current condition? The trial court had already determined that an enforceable contract existed between the Rancher and Gasco, and that the contract was breached by Gasco when it failed to restore the Ranch to its pre-exploration condition by March 31. The sole issue here is the issue of damages. Specifically, whether the award of $500,000 to restore the ranch was grossly and unfairly out of proportion to the benefit to be achieved? Remedies for breach of contract seek to compensate an aggrieved party for profits that were prevented and losses sustained due to the breach of contract. Typically, three (3) types of damages are available to an aggrieved party under Common Law contract law (UCC Article 2 does not apply here since the contract does not involve the sale of good but rather a lease for real property): (1) restitution damages, (2) reliance damages, and (3) expectation damages. The first two types of damages help an aggrieved party recover the benefit bestowed upon a breaching party to prevent its unjust enrichment, which includes the recovery of out-of-pocket expenses, if foreseeable and ascertainable at the time of the breach, that were wasted by the aggrieved party in getting ready to perform. The third type of damages, expectation damages, aims to place an aggrieved party in the same financial position as if the contract had been fully performed and not breached. -
Overview of the Constructive Trust
Overview of the constructive trust A paper presented to the Society of Trust and Estates Practitioners – QLD Branch Tuesday 6 June 2017 Denis Barlin Barrister 13 Wentworth Selborne Chambers 180 Phillip Street Sydney, New South Wales [email protected] (02) 9231 6646 Contents 1. Overview of the constructive trust .................................................................................................. 3 2. “Remedial” and “institutional” constructive trusts ......................................................................... 5 3. Fairness is not the criteria for the imposition of a constructive trust ............................................. 7 4. Remedial Constructive Trust and Presumed Resulting Trust .......................................................... 7 5. Recipients of trust property – constructive trusts ........................................................................... 8 6. Subsequent awareness of the receipt of trust property ................................................................. 8 7. Tracing .............................................................................................................................................. 9 8. Mutual wills and constructive trusts................................................................................................ 9 9. Trustee de son tort.........................................................................................................................11 10. Threshold questions to be considered for there to be constructive -
Remedies for Breach of Contract
Remedies for Breach of Contract: The Jimi Hendrix Experience a presentation by SIMON EDWARDS at 39 Essex Street on 2nd December 2003 1. In Ruxley Electronics and Construction Limited v Forsyth [1996] AC 344 Lord Bridge started his speech with these words, “My Lords, damages for breach of contract must reflect, as accurately as the circumstances allow, the loss which the Claimant has sustained because he did not get what he bargained for. There is no question of punishing the contract breaker”. In Attorney General v Blake (2001) 1 AC 268, the House of Lords introduced a substantial departure from that principle. 2. The majority (Lord Hobhouse dissenting) held that in “exceptional circumstances” a contract breaker could be ordered to account to a Claimant for the benefits he received from the breach of contract. The breach of contract in the Blake case was that of a member of the Secret Intelligence Service who had spied for the Soviet Union. Later he wrote a book about his exploits and the Attorney General took action, amongst other things, to “expropriate” the royalties that he was to receive from the publication of the book. 3. Ultimately that action was successful. The House of Lords based its decision on a breach of the contractual undertaking that Blake had given not to divulge any official information that he had gained during the course of his employment. The House of Lords held that in the exceptional circumstances of the case the courts could afford to the Crown the remedy, described by Lord Hobhouse as being “essentially punitive”, of ordering an account of profits. -
In Dispute 30:2 Contract Formation
CHAPTER 30 CONTRACTS Introductory Note A. CONTRACT FORMATION 30:1 Contract Formation ― In Dispute 30:2 Contract Formation ― Need Not Be in Writing 30:3 Contract Formation ― Offer 30:4 Contract Formation ― Revocation of Offer 30:5 Contract Formation ― Counteroffer 30:6 Contract Formation ― Acceptance 30:7 Contract Formation ― Consideration 30:8 Contract Formation ― Modification 30:9 Contract Formation ― Third-Party Beneficiary B. CONTRACT PERFORMANCE 30:10 Contract Performance — Breach of Contract — Elements of Liability 30:11 Contract Performance — Breach of Contract Defined 30:12 Contract Performance — Substantial Performance 30:13 Contract Performance — Anticipatory Breach 30:14 Contract Performance — Time of Performance 30:15 Contract Performance — Conditions Precedent 30:16 Contract Performance — Implied Duty of Good Faith and Fair Dealing — Non-Insurance Contract 30:17 Contract Performance — Assignment C. DEFENSES Introductory Note 30:18 Defense — Fraud in the Inducement 30:19 Defense — Undue Influence 30:20 Defense — Duress 30:21 Defense — Minority 30:22 Defense — Mental Incapacity 30:23 Defense — Impossibility of Performance 30:24 Defense — Inducing a Breach by Words or Conduct 30:25 Defense — Waiver 30:26 Defense — Statute of Limitations 30:27 Defense — Cancellation by Agreement 30:28 Defense — Accord and Satisfaction (Later Contract) 30:29 Defense — Novation D. CONTRACT INTERPRETATION Introductory Note 30:30 Contract Interpretation — Disputed Term 30:31 Contract Interpretation — Parties’ Intent 30:32 Contract Interpretation — -
Why Expectation Damages for Breach of Contract Must Be the Norm: a Refutation of the Fuller and Perdue "Three Interests&Quo
Nebraska Law Review Volume 81 | Issue 3 Article 2 2003 Why Expectation Damages for Breach of Contract Must Be the Norm: A Refutation of the Fuller and Perdue "Three Interests" Thesis W. David Slawson University of Southern California Gould School of Law, [email protected] Follow this and additional works at: https://digitalcommons.unl.edu/nlr Recommended Citation W. David Slawson, Why Expectation Damages for Breach of Contract Must Be the Norm: A Refutation of the Fuller and Perdue "Three Interests" Thesis, 81 Neb. L. Rev. (2002) Available at: https://digitalcommons.unl.edu/nlr/vol81/iss3/2 This Article is brought to you for free and open access by the Law, College of at DigitalCommons@University of Nebraska - Lincoln. It has been accepted for inclusion in Nebraska Law Review by an authorized administrator of DigitalCommons@University of Nebraska - Lincoln. W. David Slawson* Why Expectation Damages for Breach of Contract Must Be the Norm: A Refutation of the Fuller and Perdue "Three Interests" Thesis TABLE OF CONTENTS 840 I. Introduction .......................................... Principal Institutions in a Modern Market II. The 843 Economy in Which Contracts Are Used ................ A. The Institution of the Economic Market: Contracts 843 as Bargains ....................................... Institution of Credit and Finance: Contracts as B. The 845 Property .......................................... 846 the Institutions' Needs ....................... III. Meeting 846 A. Providing a Remedy for Every Breach ............. Contracts Enforceable as Soon as They Are B. Making 847 M ade ............................................. Has Compensating the Injured Party for What He C. 848 ost ............................................... L 848 Damages Under the Expectation Measure ...... 1. 849 2. Damages Under the Reliance Measure ......... 849 a. -
Practice Hypotheticals Contracts
Practice Hypotheticals Contracts Evaluation Sheet: “Amy and the Convertible” 1. Threshold question: Was there a contract? Need to identify the overriding question of whether enforceable promises were made. Here there was an exchange of promise to wash and wax a car for ten weeks and a promise to pay $600. 2. If so, what kind of contract? Is it a contract for the sale of goods or services? Need to identify the nature of the parties’ agreement to determine the rule of law to apply: whether the UCC or common law. Since the nature of the agreement is one for personal services (washing the car) and not a transaction in goods, the common law is applicable 3. What are Ben’s damages? General rule: Every breach of contract entitles the aggrieved party to sue for damages. The general theory of damages in contract actions is that the injured party should be placed in the same position as if the contract had been properly performed, at least so far as money can do this. Compensatory damages are designed to give the plaintiff the benefit of his bargain. Expectation damages Rule: This interest represents the “benefit of the bargain” and would include all that Ben expected to earn over the course of the contract. It is what the injured party had expected to receive under the contract “but for” the breach, less expenses saved by not having to perform. Application: Here, Ben would have earned $600 over the life of the contract, the amount she promised to pay him. He said he needed to spend $50 for supplies, so $550 was pure profit. -
Is the Assignee of a Contract Liable for the Non-Performance of Delegated Duties?
University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 1920 Is the Assignee of a Contract Liable for the Non-Performance of Delegated Duties? Grover C. Grismore University of Michigan Law School Available at: https://repository.law.umich.edu/articles/1167 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Contracts Commons Recommended Citation Grismore, Grover C. "Is the Assignee of a Contract Liable for the Non-Performance of Delegated Duties?" Mich. L. Rev. 18 (1920): 284-95. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. IS THE ASSIGNEE OF A CONTRACT' LIABLE FOR THE NON-PERFORMANCE OF DELEGATED DUTIES? T is an oft recurring statement that "rights arising out of a con- tract cannot be transferred if they are coupled with liabilities." 2 It is such obscure statements as this which give rise to and per- petuate error, and an examination of the cases will show that this one has been responsible for no little confusion in regard to the mat- ter of assignment in the law of Contract. Our courts, under the pres- sure of a well filled docket, are prone to seize upon a broad generali- zation of this kind without examining its true meaning or defining its proper limitations. It is high time for us to do away with such archaic conceptions and to recognize what the modem business man assumes, viz: that contract rights may be as freely transferred as any other species of property. -
Failure of Consideration As a Basis for Quantum Meruit Following a Repudiatory Breach of Contract
FAILURE OF CONSIDERATION AS A BASIS FOR QUANTUM MERUIT FOLLOWING A REPUDIATORY BREACH OF CONTRACT KARAN RAGHAVAN* I INTRODUCTION In Renard Constructions (ME) Pty Ltd v Minister for Public Works, the New South Wales Court of Appeal affirmed the right of a builder to elect to sue for quantum meruit, as an alternative to a claim for contract damages, following a repudiation by the principal.1 The Court also held that, in assessing a claim for quantum meruit in this context, the contract price does not limit the amount which the builder is entitled to recover.2 Both aspects of the decision were subsequently followed by the Queensland Court of Appeal in Iezzi Constructions Pty Ltd v Watkins Pacific (Qld) Pty Ltd,3 and the Victorian Court of Appeal in Sopov v Kane Constructions Pty Ltd [No 2].4 Whilst the law in this area can therefore be regarded as settled, the jurisprudential basis for the availability of quantum meruit in this context remains unclear. In Pavey & Matthews Pty Ltd v Paul, a majority of the High Court of Australia held that an award of quantum meruit is restitutionary in nature, and that the claimant’s entitlement to restitution rests upon the concept of unjust enrichment.5 However, as has been emphasised in a number of subsequent cases, unjust enrichment is not a direct source of liability in Australia.6 Rather, it has been described as a legal category which may assist in explaining the variety of situations in which the law has historically imposed an obligation upon one party to make restitution of a benefit received at the expense of another.7 Thus, the High Court has said that a party seeking restitution must establish the existence of some ‘qualifying or * BA, LLB (Hons); Solicitor, King & Wood Mallesons. -
The Purpose of Compensatory Damages in Tort and Fraudulent Misrepresentation
LENS FINAL 12/1/2010 5:47:02 PM Honest Confusion: The Purpose of Compensatory Damages in Tort and Fraudulent Misrepresentation Jill Wieber Lens∗ I. INTRODUCTION Suppose that a plaintiff is injured in a rear-end collision car accident. Even though the rear-end collision was not a dramatic accident, the plaintiff incurred extensive medical expenses because of a preexisting medical condition. Through a negligence claim, the plaintiff can recover compensatory damages based on his medical expenses. But is it fair that the defendant should be liable for all of the damages? It is not as if he rear-ended the plaintiff on purpose. Maybe the fact that defendant’s conduct was not reprehensible should reduce the amount of damages that the plaintiff recovers. Any first-year torts student knows that the defendant’s argument will not succeed. The defendant’s conduct does not control the amount of the plaintiff’s compensatory damages. The damages are based on the plaintiff’s injury because, in tort law, the purpose of compensatory damages is to make the plaintiff whole by putting him in the same position as if the tort had not occurred.1 But there are tort claims where the amount of compensatory damages is not always based on the plaintiff’s injury. Suppose that a defendant fraudulently misrepresents that a car for sale is brand-new. The plaintiff then offers to purchase the car for $10,000. Had the car actually been new, it would have been worth $15,000, but the car was instead worth only $10,000. As they have for a very long time, the majority of jurisdictions would award the plaintiff $5000 in compensatory damages 2 based on the plaintiff’s expected benefit of the bargain. -
Paying for What You Get—Restitution Recovery for Breach of Contract
Pace Law Review Volume 38 Issue 2 Spring 2018 Article 7 April 2018 Paying for What You Get—Restitution Recovery for Breach of Contract Jean Fleming Powers South Texas College of Law Follow this and additional works at: https://digitalcommons.pace.edu/plr Part of the Contracts Commons Recommended Citation Jean Fleming Powers, Paying for What You Get—Restitution Recovery for Breach of Contract, 38 Pace L. Rev. 501 (2018) Available at: https://digitalcommons.pace.edu/plr/vol38/iss2/7 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. POWERS.DOCX (DO NOT DELETE) 5/8/18 10:33 PM Paying for What You Get—Restitution Recovery for Breach of Contract By Jean Fleming Powers* I. INTRODUCTION Many contracts casebooks, in dealing with contract remedies, include the case Sullivan v. O’Connor,1 a case dealing with an unsuccessful nose job.2 While a case about the results of surgery at first blush seems more fitting for a torts book, Sullivan, like its iconic counterpart Hawkins v. McGee3 uses a vivid fact pattern in an atypical contracts case4 to illustrate important points about contract remedies.5 Sullivan has the added benefit of providing a launching point for a discussion of the three contracts measures of recovery: expectation, reliance, and restitution.6 If the approach of the Restatement (Third) of Restitution and Unjust Enrichment7 [hereinafter referred to as “the Restatement of Restitution,” or just “the Restatement”] * Professor of Law, South Texas College of Law Houston; J.D., University of Houston Law Center, 1978; B.A.