APPLICABLE LAW

The issue is whether the contract is governed by the UCC or common law.

The UCC governs the sale of all goods while common law deals with contracts that do not
involve the sale of goods such as service contracts. Goods are any tangible moveable item.

Here, the UCC/common law governs because the contract deals with INSERT FACT.

Therefore, the contract is governed by the UCC/Common law.

PREDOMINANT PURPOSE TEST

When the contract involves both sale of goods and service contracts the governing law is
Determined by the predominant purpose of the transaction.

Here, The builder agreed to build a fence in Owner’s backyard, but he had to purchase a
redwood fence before building. The purpose of the transaction is a service although the
redwood had to be purchased and it’s a moveable good.

Here, Lawyer agreed to find a buyer for the widgets that Marla owns. The primary purpose of
the transaction is to get the widgets sold which is a service despite the widgets being a
moveable good.

CONTRACT FORMATION
The issue is whether the parties entered into a valid contract.

In order to form a contract parties must have an offer, acceptance and consideration.
OFFER
The issue is whether the party gave a proper offer to the offeree.

An offer is an outward manifestation coupled with a signal that acceptance would

seal the deal.

Here, the party showed an outward manifestation by INSERT FACT. The signal to
commit without further assent is shown by the party willing to pay INSERT FACT.

Thus the party’s communication constituted an offer.

COMMON LAW ACCEPTANCE
Under the common law, the acceptance must mirror the terms of the offer.

Here, the acceptance mirrored the terms of the contract since the offeree INSERT
FACTaccepted the offer and said i’d like to go with the second option but i would
like a commitment for an ad’l three yrs after the first three.

Thus, the party accepted the offer.

UCC ACCEPTANCE
The issue is whether the merchant accepted the offer.
The UCC allows acceptance by any manner and by any medium reasonable.

UCC Conditional Acceptance

The issue is whether the acceptance is conditioned on accepting the additional terms.

Under the UCC, there is no acceptance if the acceptance is made expressly conditional on
assent to the additional terms. A conditional acceptance is if the language is clear.

Here, the language is clear that the party needs assent regarding the additional terms because it
says INSERT FACTSuper responded with its standard acknowledgment which acted the order
and confirmed delivery would be no later than Feb 20. It also provided:(1) “Seller disclaims all
warranties of merchantability and fitness.” (2) In no event shall Seller be liable for
consequential damages.” (3) This acceptance is expressly made conditional on your assent to
the terms of this acceptance. But buyer never accepted and seller shipped products.

Thus, there is no effective acceptance.

UCC ACCEPTANCE through SHIPMENTS

The issue is whether the seller accepted the buyer’s offer.

Under UCC, a seller can accept a buyer’s offer to purchase goods for prompt or
current shipment in one of three ways:
(1) A promise to ship goods,
(2) a conforming shipment of the goods, or
(3) shipping nonconforming goods which equates an acceptance and a
breach absent any accommodation.

Here, the seller accepted the offer by INSERT FACTS.

Thus this is a valid acceptance.

ACCEPTANCE BY SILENCE
When the offeree silently takes the offered benefits. When the offeree knows or
has reason to know that svs are being rendered with the expectation of
compensation, she may be held to have accepted the offer if she fails to speak.

Here, INSERT FACT if she is silent, then the offeror will INSERT FACT and render
svs, so it was reasonable to believe she received the message. INSERT FACT
Builder left a voice message stating i’ve found the redwood and i can build the
redwood fence for $7,0000. Give me a call as I will otherwise buy the redwood and
start the work in a few days. Owner heard the message but bc the charity event
was canceled with no more urgency about getting the fence erected, she decided
to wait until she returned to speak to Builder.

Battle of the Forms 2207(2)

The issue is whether the additional terms are a part of the contract.

Under the UCC, the additional terms become apart of the contract unless: (1) the
offer expressly limits acceptance to the terms of the offer, (2) the offeror objects
to the additional terms within a reasonable time, or (3) the terms would materially
alter the contract.

MERCHANTS
Under the Ucc, if two parties are both merchants then there are certain rules that follow.
Merchants deal and sell goods in a particular field.
Here, Buyer and Seller are merchants in selling products of the epoxy and surfboards.

(1) Expressly limits Acceptance

The issue is whether the offer expressly limits acceptance to the terms of
the offer.
If the offer expressly limits to the terms of the offer by having clear
language of such than the additional terms will not become apart of the
contract.

Here, the offer’s language did not expressly limit its terms to the offer since
it said INSERT FACTS

Thus, It did not expressly limit the acceptance to the offer.

(2) Object to Ad’l Terms

The issue is whether the party objected to the additional terms.
 In order to object to the additional terms, the party must have clearly
expressed an opposition to the additional terms.

Here, the party responded to the acceptance by INSERT FACT.

Thus, the party did not object to the additional terms.

(3) Materially Alter

The issue is whether the terms materially alter the contract.

In order to materially alter the contract, the terms must surprise the other
party or it would result in hardship.

Here, the terms could/not surprise the other party because INSERT FACTIt
provided:(1) “Seller disclaims all warranties of merchantability and fitness.” (2) In no event
shall Seller be liable for consequential damages. It wouldn’t result in hardship because
INSERT FACT.

Thus it does/not materially alter the contract.

Conclusion
Thus, the additional term will be apart of the contract because it doesn’t
materially alter the contract and the party did not object to it.

CONSIDERATION
The issue is whether there is consideration.
Consideration is the bargained-for exchange that carries legal value.

Here, the parties bargained for INSERT FACT.

Thus, there is consideration in this contract.

STATUTES OF FRAUDS
The issue is whether the contract is enforceable under statutes of frauds.

SOF only governs certain categories of contracts. When it applies, the agreement must be in
writing and signed by the party against whom enforcement is sought.

Here, the agreement is governed by SOF because INSERT FACT. The agreement is in writing
and signed by the party against enforcement because INSERT FACT.
Thus, the contract is enforceable.

MISTAKE
A mistake regarding the facts that exist at the time of contracting will excuse
performance only where the mistaken facts are material(impacts value) to that
contract.
Here, Pop obtained a liability insurance policy for his daughter Sally. Pop asked
for an increase in the coverage to $500,000. Pop received the amended policy but
failed to notice that the coverage has been increased to $250,000 not $500,000.

> Dirt a large excavating company, agreed to perform all the site preparation work for Builder, a
general contractor, for $1,500,000. Before this, Dirt replaced all of its gas-powered equipment
with more efficient diesel-powered equipment and placed the gas ones in storage. Then an
unusual high pressure weather system settled over the state so the state banning diesel-
powered equipment, caused the contract price to go up and Builder refused. There was a
mistake in thinking the diesel-powered equipment can be used at the time of contracting so
Builder is excused from paying extra.

>(unilateral) The original epoxy had failed to harden because of manufacturing defects of which
Super was unaware.

PROVISION IS CONDITION OR PROMISE - PERFORMANCE/DISCHARGE

Call: Is Dirt likely to prevail in its suit? Discuss.
The dispositive issue is whether the enforceable contract was conditioned on Carl using Sun’s
equipment that reflected Ben and Carl's understandings

Conditions are often beyond the control of either party and perfect compliance is required. While a
promise are Manifestations of assent and only require substantial compliance in order for the other party
to perform.
>Here, prior to the written agreement Ben told Carl he had to use Sun solar panels owned by
Ben’s brother and it had to be done before Thanksgiving. Carl assured Ben that he would
comply. Even in the agreement the provision said he has to use Sun’s equipment.

>Here, Dirt a large excavating company, agreed to perform all the site preparation work for
Builder, a general contractor, for $1,500,000. Builder was anxious to avoid delays. To ensure
Dirt would give the job top priority, the K also states: Dirt agrees to have all of its equipment
available as needed to perform this K and shall refrain from undertaking all other jobs for the
duration of the contract. Later the state banned use of all diesel-powered equipment, but Dirt
had placed the old gas-powered equipment in storage until it could sell it but its more
expensive to use it so Builder canceled the contract. The condition was in the control of Dirt
because although it was banned, he had an alternative to use the gas powered equipment.

Thus, It should be construed as a promise.

TIME OF THE ESSENCE

Call: Is Builder/Dirt likely to prevail in its suit? Discuss.
This clause makes an untimely performance a material breach of the K. It must be
clear/conspicuous.

Here, Dirt, a large excavating company, agreed to perform all the site preparation work for
Builder, a general contractor, for $1,500,000. The K states: “Dirt hereby agrees to commence
site work on or before June 1 and to complete work on or before Sept. 1.” Because no other work
could begin until completion of the site preparation, Builder was anxious to avoid delays. To
ensure Dirt would give the job top priority, the K also states: Dirt agrees to have all of its
equipment available as needed to perform this K and shall refrain from undertaking all other
jobs for the duration of the contract. These provisions do not make it clear and conspicuous
that time is of the essence.

EQUITABLE ESTOPPEL 16feb

Where a party suffers losses in reliance on an oral contract, but the enforcement
of that contract is barred under the Statute of Frauds, the party may be able to
recover damages via promissory estoppel.

>Here, Pop asked Insurco to increase his insurance coverage and insurco agreed
if he paid a premium increase of $150 and he did so. When he got into an
accident the insurance company at first said it would pay claims up to $250,000
then said it would not pay any claim at all because Pop lied on his application for
the policy.
>Here, Peter orally received a job that he orally agreed to be paid $40,000 per year and receive
a parcel of land at the end of three years. But employer only agreed to pay him $40,000 in a
letter although she was satisfied with his work. She fired him after he had worked for 2 yrs and 9
mos.

UNILATERAL CONTRACT 06feb,11jul

The offer is seeking performance in return. Once offeree begins performance, offeror may not
revoke.
Here, INSERT FACTduring the phone convo, Marla told Lawyer that, if he could find a buyer for
her excess inventory of 100,000 widgets, Lawyer could keep anything he obtained over $1.00
per widget. Lawyer replied okay and undertook to market the widgets.
MODIFICATION 13jul,18jul
The issue is whether the contract can be validly modified.

Modifications can be either orally or in writing. Under common law, you need new
consideration unless (1) theres an unforeseen circumstance, and (2) its fair &
equitable. The UCC is more relaxed, only need good faith.

Here, the parties attempted to modify the contract orally because INSERT FACT.
Here there is good faith because INSERT FACT.
Here, there was no consideration but an unforeseen circumstance since INSERT
FACT.
Here, under common law, there was an unforeseen circumstance that Sun was
temporarily out of stock of their solar panels and related electrical equipment.

Thus, the modification is valid.

PRE-EXISTING DUTY RULE

The issue is whether the preexisting duty rule prevents the modification.

At common law, contracts can be modified only if there is additional

consideration. This is commonly known as the preexisting duty rule,since the
promisor is already required to perform that duty under the original contract.

Here, The party’s modification requires the promisor to perform the same duties
as the original contract since INSERT FACTBen offered Contractor a $25,000
bonus if Contractor would assure completion. The party did not offer additional
consideration since INSERT FACT.

Thus the modification is not valid.

BREACH OF CONTRACT
The issue is whether there was a breach of contract.

A breach occurs when a failure to perform the terms of the contract. FOB is a term used to
describe whose cost it is to ship and whose responsible for it until arrival at the location.

Here, the terms of the contract are INSERT FACTS. The party failed to perform by INSERT
FACT. tHE COntract was for FOB Betaville, this means seller is responsible to cover costs and
whatever damages until it arrives at Betaville.
Thus there was a breach of contract.

UCC PERFECT TENDER

Call: Is Bing likely to prevail in its suit? Discuss.
Every Conditions/terms of a K is express and must be enforced exactly. If the seller fails then
buyer can reject or accept the goods, or partially do both. If rejecting, must do so within a
reasonable time and notify the seller then sue for damages unless cured.

Here, On Feb 15 Bing Received the epoxy when the contract stated the delivery will be no later
than Feb 20. Buyer tested the epoxy by manufacturing 50 surfboards. The epoxy did not harden
properly, leaving the surfboards useless. On Feb 23, Bing emailed Super stating the epoxy failed
to harden properly and it was returning the remaining epoxy.

This the seller breached and buyer can sue for damages.

RIGHT TO CURE
Breaching sellers may cure non-conforming goods only if it’s before time is due. Seller must
give buyer reasonable notice and cure by K deadline.

Here, On Feb. 1 Bing ordered 400 gallons of epoxy from Super. On Feb 15, Bing received the
epoxy but they tested it and they were useless so they emailed them they were returning the
epoxy. On Feb 26, Super informed Bing that it was shipping replacement epoxy to arrive the
following day. K deadline is Feb 20.

Thus, seller does not have a right to cure

MATERIAL V. MINOR BREACH
A material breach is a failure of an express condition that excuses the aggrieved party from
performance. While a minor breach means the party rendered substantial performance and
aggrieved party is not excused from performing.

Here, to complete construction prior to Thanksgiving, Carl had to use solar panels and related
electrical equipment of equal grade manufactured by one of Sun’s competitors. Carl completed
construction but Ben refused to pay anything.

Thus, builder substantially performed and Owner must pay.

PROMISSORY ESTOPPEL
Call: What defenses should Travelco assert on the merits of Polly=s breach of contract claim, and
what is the likely outcome? Discuss.
Enforcement may be available where there is detrimental reliance on a promise without
consideration.
>(no consideration) After reading Travelcos advertisement, Polly had the telephone company
change her unlisted number to a listed one just in time for it to appear in the telephone book
that Travelco used to select the winner. Luckily for Polly, her name was picked, and Travelco
notified her. That night Polly celebrated her good fortune by buying and drinking an expensive
bottle of champagne. The next day Polly bought new luggage and costly new golfing clothes for
the trip. Here, the defense is there was no valid contract formed because there was no
consideration, yet Polly will argue promissory estoppel.

UCC SOF DOCTRINE OF PARTIAL PERFORMANCE

It’s enforceable for goods that pmt was made and if goods have been received/accepted. If
divisible K, part pmt renders K enforceable.

Here, Peter received a job that he agreed to be paid $40,000 per year and receive a parcel of land
at the end of three years. But employer only agreed to pay him $40,000 although she was
satisfied with his work. She fired him after he had worked for 2 yrs and 9 mos.

ANTICIPATORY REPUDIATION

The issue is whether the party can assert a breach through anticipatory repudiation.

Anticipatory repudiation occurs when, prior to when performance is due, a party

announces his intention not to perform, or circumstances make such an
intention reasonably clear to the aggrieved party.

The aggrieved party has the option to immediately treat the anticipatory
repudiation as a breach and will be entitled to damages.

If anticipatory repudiation can’t be established but there are reasonable

grounds for insecurity, the insecure party may make a demand for adequate
assurance of performance which suspends their own performance.

Here, the party announced his intention of not performing by INSERT FACT.
Circumstances made it clear the party won’t perform because INSERT FACT.

Here, the anticipatory repudiation can’t be established because INSERT FACT.

There are reasonable grounds for insecurity because INSERT FACT.
Thus, the party breached through anticipatory repudiation and the insecure
party has the option to cancel the K or receive damages

PAROL EVIDENCE RULE

Call of the question: What’s the likelihood of success of Insurco’s complaint, and
What defenses can Pop reasonably raise?

The Parol evidence rule bars prior or contemporaneous agreements from being
admitted into evidence for the final written agreement. Complete integration
means no new terms will be admitted, partial integration only consistent ad’l
terms will be admitted.

>Here, INSERT FACTsubsequently, Pop asked Insurco to increase his coverage to

$500,000 and Insurco agreed if he paid a premium increase of $150; and he did so.
The oral modification occurred after the contract was integrated. The parol
evidence doesn’t apply.
>Here, Ben and Contractor agree that this written agreement contains the full
statement of their agreement. Prior to execution of the written agreement Ben
told Contractor that Carl had to use Sun solar panels and related electrical
equipment because Sun was owned by Ben’s brother.

>Here, Developer signed a contract with Builder for the construction of ten
single-family homes on The Highlands parcel. The contract provided, “All
obligations under this agreement are conditioned on approval by City of all
necessary utility extensions.” During precontract negotiations, Developer
specifically informed Builder that he could not proceed with the project unless
City followed its usual policy of reimbursing the developer for the installation of
utilities, and Builder acknowledged that he understood such a condition to be
implicit. The contract also provided, “This written contract is a complete and final
statement of the agreement between the parties hereto.” In a change of policy, City
approved “necessary utility extensions to The Highlands parcel,” but only on the condition that
Developer bear the entire cost, which was substantial, without reimbursement by City. Here
condition precedent are an exception to the parol evidence rule

IMPRACTICALITY or IMPOSSIBILITY
Call: What arguments can Developer make, and what is the likely outcome, on
each of the following points? 2. Developer’s performance was excused.
The issue is whether the party’s performance is excused due to impracticality, OR
impossibility.

Performance is impracticable when unforeseen difficulties render performing

expensive or otherwise extremely burdensome.
Impossibility excuses both parties from performing, if: (1) performance became
objectively impossible after K was formed; and (2) the future facts were unknown
while contracting.

Here, the unforeseen difficulty is the INSERT FACT. This would make it expensive
or burdensome because INSERT FACT.
Here, both parties performance is objectively impossible because INSERT
FACTequipment is out of stock and the facts weren’t known at the time of
contracting because INSERT FACT.

>On Thursday evening before RC’s cleaning crew was to show up, Maria accepted
an offer for the sale of her house. The next morning, Friday at 10AM, Maria sent
RC another email stating, No need to send your crew. I sold my house last night,
and I no longer need your services.” By that time, however, RC’s crew was en route
to Maria’s house.

>Dirt a large excavating company, agreed to perform all the site preparation work for Builder, a
general contractor, for $1,500,000. Builder was anxious to avoid delays. To ensure Dirt would
give the job top priority, the K also states: Dirt agrees to have all of its equipment available as
needed to perform this K and shall refrain from undertaking all other jobs for the duration of
the contract. Then an unusual high pressure weather system settled over the state so the state
banned use of all diesel-powered equipment. Dirt had placed the old gas-powered equipment in
storage, but its even more expensive to use the gas ones so Builder canceled the contract. It’s
impossible due to intervening illegality. It’s impractical because it's $500,000 more dollars and
the unforeseen event of weather prompting the ban.

>Developer had an option to purchase a five-acre parcel named The Highlands in City from
Owner, and was planning to build a residential development there. In a change of policy, City
approved “necessary utility extensions to The Highlands parcel,” but only on the condition that
Developer bear the entire cost, which was substantial, without reimbursement by City. Because
this additional cost made the project unprofitable, Developer abandoned plans.

Thus, performance would be excused because it is impractical or impossible.

WAIVER 10feb

A party may waive the failed express condition or condition precedent and
perform anyway.
Here, Seller agreed to sell Buyer 5,000 bushels of tomatoes on July 1. On May 15,
Seller sent email to buyer saying heavy rains in March-May slowed tomato
ripening. Delivery will be two weeks late. Buyer replied “Okay”. This constitutes a
waiver to the condition precedent regarding delivery time.

FRAUD MISREPRESENTATION

The issue is whether the party committed fraudulent misrepresentation.

Fraudulent misrepresentation, consists of 5 requirements:

(1) the defendant made an assertion that was not consistent with existing facts
(halftruths too);
(2) The defendant must either know the assertion was false or have no idea
whether it was true;
(3) make it with intent to mislead (scienter);
(4) the assertion was material; and
(5) reliance on the assertion.

Here, the assertion was not consistent with the facts since INSERT FACThis
daughter drove the car in the city. The defendant knew of the faulty statement or
didn’t know the truth because INSERT FACTshe was using his car while in college.
The defendant intended to mislead because INSERT FACTit was cheaper
otherwise. The assertion was/ not material because INSERT FACTthe policy would
be cheaper the plaintiff was truthful . And the plaintiff relied on the assertion
because INSERT FACTthey distributed the policy according to the false
statement.

Here, Mary hired real estate broker to help find her house. But he found his
cousin, a desperate seller Carol that had bat infestation. Broker and Cousin split
the proceeds they got from Mary and broker invested it into stocks that
increased in value.

Thus the defendant made a fraudulent misrepresentation.

FRAUD NON-DISCLOSURE
The issue is whether the plaintiff can rescind the contract for non-disclosure
Fraudulent non disclosure is when a Defendant has a duty to disclose but is
silent on that material fact and there was reliance.

Here, the fact that the item can increase in value INSERT FACT means its a
material fact to mention. The defendant had a duty to disclose a murder because
the rule states a seller must disclose defects the buyer is not able to discover
through reasonable inspection which includes INSERT FACT murder on the
premises. Thus, the buyer was entitled to know about the INSERT FACT.
ACCORD AND SATISFACTION
When there is a real dispute as to price the parties may resolve the issue by
accord and satisfaction. An accord is an agreement coupled with consideration
and satisfaction is the performance of that new agreement. If breached, the
aggrieved party may sue on the original agreement or the accord agreement.

Here, Owner saw the completed work and said to buyer i never agreed to go
ahead with the fence but To avoid a dispute(consideration) with you, I’ll offer to
split the difference- I’ll pay you $5,500. Builder received the letter and called
owner and said i was going to sue you but i decided to let it go and i do accept
your offer of $5,500. Owner replied too late i’ve changed my mind i don’t owe you
anythingINSERT FACT courts will determine satisfaction has not been satisfied, so
the party may sue on either the original agreement or the accord agreement.

DUTY TO MITIGATE DAMAGES

There is a duty to mitigate damages.
A party may not recover add’l damages such as cover if he failed to mitigate his
damages.

>Here, On Feb 25, not having heard from Super, Buyer bought 400 gallons of
epoxy from one of Super’s competitors, paying a substantially higher price for
quick delivery, which was necessary to avoid shutdown of Buyer’s production line

>Here, Bath immediately rejected Scent’s shipment without opening any boxes,
promptly notified Scents of the rejection, and refused to pay any amount. Scents
promptly solicited bids from all of its customers and received the best offer,
which it accepted from Redemption Candles for $9,000.

REMEDIES
DAMAGES, RESTITUTION, EQUITABLE

DAMAGES FOR FRAUD- tort

The issue is whether the defendant is liable for damages based on fraud.

Tort damages for fraud require actual damages from reliance on the
misrepresentation. Damages are measured by the plaintiff’s out of pocket
loss. Punitive damages are available in tort cases where there has been
willful conduct.

Here, the plaintiff suffered actual damages when INSERT FACT. The
plaintiff did/not suffer loss because INSERT FACT.
Here, Mary hired real estate broker to help find her house. But he found his
cousin a desperate seller Carol that had bat infestation. Broker and Cousin split
the proceeds they got from Mary and broker invested it into stocks that
increased in value.

Thus, the defendant is liable for damages.

EXPECTATION DAMAGES - K breach

Call: Did Bath and Scents have a binding K and if so, did either party breach the K? If there was a
breach of K, what damages are likely to be recovered, if any? Discuss.
The issue is whether expectation damages can be awarded.

Courts protect expectation, reliance, or restitutionary interests when a

contract is breached. Expectation damages are the default rule for
damages. It’s calculated to put the party in the position he would have
been had the other party fully performed. The formula is the loss of value,
plus incidental and consequential costs generated by the breach, minus
payments received from the breaching party and costs saved as a result
of the breach.

Here, The loss of value is $200,000 the contract price for the car, Barry
suffered consequential costs when he paid the nonrefundable $5,000 entry
fee for the Concours. There are no payments received from Sally and no
costs saved as a result of the breach.
Thus, expectation damages should be recovered in the amount of
$205,000.

>Here, Builder, claiming breach of contract, sued Developer for the

$700,000 profit he would have made on the project. In the meantime,
Architect purchased The Highlands parcel from Owner and contracted
with Builder to construct a business park there. Builder‟s expected profit
under this new contract with Architect is $500,000.

>Here, the contract price was $10,000. Scents can also recover the add'l
costs to ship the candles back to Sunville which was $500. However, Scents
was able to mitigate some damages by selling to Redemption for $9,000.
Thus, $10,000 + 500 - 9,000 = $1,500. Scents can recover $1,500 for damages
for Bath’s breach.

COVER 16feb 05feb, 18 jul, 22jul

Buyer’s remedies if they sought replacement(cover) is the difference
between K price and cover price.

Here, On Feb 25, not having heard from Super, Bing bought 400 gallons of
epoxy from one of Super’s competitors, paying a substantially higher price
for quick delivery, which was necessary to avoid a shutdown of Bing’s
production line(mitigate).

Thus, Bing may be rewarded the difference between Super’s K price and
Super’s competitor’s substantially higher price.

>Bath sent Scents an offer to purchase 1000 wrapped candles for $10,000.
They immediately rejected the shipment without opening any boxes seeing
that they had water damage, promptly notified Scents of the rejection and
refused to pay any amount. Bath promptly entered into a contract with
Hot Candles to purchase 1,000 replacement candles for $12,000.

Thus, Bath may not be rewarded the difference between Scent’s K price
$10,000 and Hot $12,000 because Scent perfectly performed.

RELIANCE DAMAGE
Call of the question: If Barry seeks damages for breach of contract can he
recover damages for the loss of the expected increase in circulation and
advertising revenues.

Reliance damages are available where expectation damages are too

speculative.

Here, Plaintiff was trying to win first place at a car show and was sure that
winning such an award would vastly increase the circulation of his
magazine and attract lucrative advertising revenue. Reliance damages
would be awarded because the expectation damages are too speculative
since he wouldn’t know exactly the number he would gain from the award.

RESTITUTIONARY DAMAGES01feb,10feb
Restitutionary damages returns (unjust enrichment) value given to the
aggrieved party.

>Here, Owner said she doesn’t think she owes the builder anything after he
erected a redwood fence for $7,000.
>Here, Marla said to Lawyer I don’t think the deal we made over the phone
is enforceable. I want you to send me the other $150,000 you received from
Ben(all of it) and then we’ll talk about a reasonable commission for you,
but we don’t have a deal. Lawyer refused to remit any part of the $150,000
to Marla.

CONSEQUENTIAL DAMAGES
Consequential damages may also be awarded when damages are
foreseeable and flow from the breach.

Here, the plaintiff should claim consequential damages for INSERT FACT
the paid nonrefundable $5,000 entry fee because she relied on the
defendant’s statement.
> Instead, the plaintiff had to pay INSERT FACTsubstantially higher price
for quick delivery from Seller’s substitutes which was necessary to avoid a
shutdown.

>Here, Angela hired Mark, a real estate broker to help her find a house.
She spent $10,000 to move her household goods to the house but it had a
bat infestation. Moving expenses are foreseeable.

PUNITIVE DAMAGES
Call: What remedy or remedies may Angela obtain against Mark?

Punitive damages are generally not available in contract or negligent

actions, but are allowed where there has been willful, wanton or malicious
conduct.

Here, Angela hired Mark, a real estate broker to help her find a house. He
found a house for her saying it was kept in pristine condition and owned
for some years by Carol, who was his cousin that was desperate to sell
because of the bat infestation. When she visited the house she noticed
what appeared to be some animal droppings but Mark assured her that
they were only bird droppings, had never appeared previously and would
be removed before closing. Mark was aware of all of these facts.

>On his first trip, Doug dumped the trees on Paul's lot near the stream, in a
wooded area Paul was unlikely to see, much less use. Several of the trees rolled in
the stream, blocking its natural flow. Paul left for the winter. As a result of the
winter’s normal rainfall, the stream overflowed, causing water to rush down to
Paul’s house at the other end of the lot, flooding his garage and damaging a 3-
year-old motorcycle. Paul returned in the summer and learned what had
happened. It will cost $30,000 to remove the trees. The trees’ presence on the lot
has depressed its market value from $50,000 to $40,000.

EQUITABLE REMEDIES:

REFORMATION Contract -Very. Good. Dog

Whether the court should reform the contract.

Reformation is an equitable remedy that modifies a contract so it conforms to

the actual intent of the parties. This remedy is for a mistake or error that
happened during the formation of the contract but not where there was a
mistake in entering into the agreement in the first place. Reformation is available
in instances involving fraud, mutual mistake, or unilateral mistake (Grounds).

Here, reformation is available because mutual mistake or unilateral mistake is

the grounds for Pop’s cross-complaint since Pop received the amended policy
but failed to notice that the coverage had been increased to $250,000, not
$500,000. The amended policy contained an error on the part of the Insurance co.
There was no mistake in entering the agreement since Pop only asked Insurance
co to increase the coverage of their existing contract and sought the benefits of
the policy when he got into a multi-vehicle collision.

RESCISSION Contract- Good Dog

The issue is whether the contract can be rescinded.

Rescission cancels the contract when there is no valid contract because of some
mistake or misrepresentation from a party or both. This remedy makes the
contract voidable to put the parties in the position they were in before the
agreement was made.
Here, the defendant misrepresented the fact/ made a mistake when INSERT
FACTPop stated that his cars were driven in a rural community which resulted in
a lower rate than if they were driven in a city. The plaintiff can cancel the
contract and receive a full refund for INSERT FACTthe misrepresentation of the
statement on the insurance policy application.

COLLATERAL SOURCE DOCTRINE

The issue is whether the collateral agreement doctrine applies.

If the plaintiff gets benefits from a collateral source (i.e. not the D) in a tort or
contract action, the D may not reduce his own liability by this amount UNLESS
the first set of benefits derived from the D.
Here the D will argue because the condo was located in a congested urban area
so parking was a very important part of the contract. Nevertheless, Betty will
argue the parking didn’t have to be written in the contract because it was a
minor detail and it was collateral to the main agreement. Betty has a stronger
argument here since the contract was for the price of $200,000 and the parking
fee was only $50 a month. The difference is big and the parking is a collateral
agreement therefore it will come in as part of the contract.

TRO TEMPORARY RESTRAINING ORDER L.i.p.b.

Call of question: What remedies might Barry seek to prevent Sally from delivering
the car to the shipping co. pending resolution of his dispute with Sally, and would
the court likely grant them?

TRO’s are issued to maintain the status quo before a preliminary injunction
hearing lasting for 14 days. A TRO has 4 requirements: (1) irreparable harm if not
granted, (2) Likely Success on the merits, (3) Balance of the hardship must favor
the plaintiff, and (4) Public interest will benefit.

(1) IRREPARABLE HARM

Here, PLAINTIFF will argue that he will suffer irreparable harm because
INSERT FACT he has been horrified by the loud noise and it prevents him
from INSERT FACT holding normal conversations/paid a $5,000 entry fee.
Yet, DEFENDANT will argue none of the harms are irreparable.
Thus, The courts have discretion to decide if the harms are irreparable.

(2) LIKELY SUCCESS ON THE MERITS

The plaintiff needs to prove the likelihood of success on his claim and ability to
prevail.
Here, PLAINTIFF will argue that he will be successful on his claim in the future
considering the argument he has under the INSERT FACTnuisance/anticipatory
repudiation claim.

(3) BALANCE OF THE HARDSHIP

The court will balance the hardship of both the DEFENDANT AND PLAINTIFF if
the TRO is granted. They will analyze the advantages and disadvantages of the
DEFENDANT if the TRO is granted.

Here, PLAINTIFF will argue that the hardships to him mentioned and argued
above will continue without the TRO causing himself harm. Yet, DEFENDANT
will argue that if the TRO is granted the INSERT FACT rock concerts will be
stopped and will have a negative impact on the theater.
Thus, the court will need to balance both factors.
 (4) PUBLIC INTEREST MUST BENEFIT
Here, DEFENDANT will argue that if the TRO is granted the INSERT FACT rock
concerts will be stopped and it will not survive economically and the beneficial aspects
to the community will be diminished.
Thus, the court will need to balance this factor.

TRO CONCLUSION
It is possible, but also unlikely that the court will grant the TRO to PLAINTIFF because
of his lack of irreparable harm, and his hardships compared to DEFENDANTs.

PERMANENT INJUNCTION 00febI.P.F.B.D.

Issued at full hearing on the merits after its proved that D is liable and P is entitled to
injunction.
Inadequate Legal remedy, property right, feasibility, balancing, and defenses(laches &
unclean hands)

Here, started construction to a dam a stream to create a pond for a kids summer camp
but neighbors downstream use it to irrigate crops. But six months into construction when
the dam was almost done the neighbors filed for a permanent injunction(laches).

PRELIMINARY INJUNCTION Leah’s.I.P.B.D.

Call: What intentional tort claims can Paul reasonably bring against Doug and what
remedies can he reasonably seek? Discuss.
Preliminary injunctions preserve the status quo until a full hearing can be held. To
satisfy a preliminary injunction there are 5 requirements: (1) Irreparable Harm, (2) Likely
success on the merits, (3) balance of hardships must favor plaintiff, (4) Public interest
will benefit, and (5) Defenses aren’t available (laches,unclean hands,coming to the
nuisance).

INADEQUATE LEGAL REMEDY

In order for there to be a preliminary injunction or TRO, there must be an
inadequate legal remedy such as money damages being unable to stop the
harm.
Here, PLAINTIFF will argue money damages are inadequate because it will not
stop the INSERT FACTnoise or nuisance from the theater.

Thus, the court will determine there is an inadequate legal remedy.

DEFENDANT may assert defenses to any of PLAINTIFF’s claims. Her options are
laches and unclean hands, but they will not be effective because PLAINITIFF did
not delay the claim nor engage in unfair conduct.
>On February 1, Steve and Belle executed a contract for the sale of Parcel 1 at a
price of $400,000. Later in February, Steve was approached by Tim, who offered
Steve $550,000 for Parcel 1. Steve decided to breach his contract with Belle and
agreed to convey Parcel 1 to Tim. Despite Belle’s insistence that Steve honor his
contract, he told her that he was going ahead with the conveyance to Tim in mid-
April, and added, “Besides, our contract is no good because the wrong road was
named.” In March, Belle learned that, in April, Steve was going to cut down the five
100-year-old oak trees on Parcel 1 to better the view of the lake from Parcel 2.

> Doug began to clear his land to build a house. To do so, he had to fell trees and
haul them to a nearby lumber mill. He asked Paul if he could take a short cut
across Paul’s lot to the mill, and Paul agreed. On his first trip, Doug dumped the
trees on Paul's lot near the stream, in a wooded area Paul was unlikely to see,
much less use. Several of the trees rolled in the stream, blocking its natural flow.
Paul left for the winter. As a result of the winter’s normal rainfall, the stream
overflowed, causing water to rush down to Paul’s house at the other end of the
lot, flooding his garage and damaging a 3-year-old motorcycle. Paul returned in
the summer and learned what had happened. It will cost $30,000 to remove the
trees. The trees’ presence on the lot has depressed its market value from $50,000
to $40,000.

Property-EJECTMENT

Call: What intentional tort claims can Paul reasonably bring against Doug and
what remedies can he reasonably seek? Discuss.
Call: Olive commences the following actions: 2. An action for ejectment against
Toby and to require him to leave the lighting and wall treatments when he
vacates the premises.(trade fixtures) Discuss.

Ejectment is a restitutionary remedy available in tort claims. This action is to

remove the Defendant who wrongfully possessed the land.

>Here, there was a holdover tenant.

>Here, On his first trip, Doug dumped the trees on Paul's lot near the stream, in a
wooded area Paul was unlikely to see, much less use. Several of the trees rolled in
the stream, blocking its natural flow. Paul left for the winter. As a result of the
winter’s normal rainfall, the stream overflowed, causing water to rush down to
Paul’s house at the other end of the lot, flooding his garage and damaging a 3-
year-old motorcycle. Paul returned in the summer and learned what had
happened. It will cost $30,000 to remove the trees. The trees’ presence on the lot
has depressed its market value from $50,000 to $40,000.

> Here, Mike had a 30-year master lease on a downtown office building and had
sublet to others the individual office suites for five-year terms. At the conclusion
of the 30-year term, Olive, the building’s owner, did not renew Mike’s master lease.
Olive also learned that a week before the end of the 30-year lease Mike had
renewed for another five years the sublease of one tenant, Toby, at a rate much
below market. Toby ran an art gallery, which Mike thought was “classy.” Upon
signing the renewal, Toby purchased and installed expensive custom lighting and
wall treatments to enhance the showing of the art in his gallery.

REPLEVIN
Call of the question: Can Barry obtain the Phaeton by specific performance or
replevin?

Replevin is a restitutionary remedy available in tort claims. Plaintiff claims

replevin for the return of wrongfully dispossessed chattel.

Here, Barry would claim the return of the 1932 Phaeton car that he paid $200,000
for and entered into a valid written contract. However, the contract states
delivery is scheduled for May 25, and it is May 10. This suggests Sally has not
wrongfully dispossessed the car because she still has a right to possess the car.

CONSTRUCTIVE TRUST
When Defendant wrongfully disposes Plaintiff’s property, a constructive trust will
be created to hold the property. If property changes form, it will be traced and
recoverable on whatever property is available.

Here, Mary hired real estate broker to help find her house. But he found his
cousin a desperate seller Carol that had a bat infestation. Broker and Cousin
split the proceeds they got from Mary and broker invested it into stocks that
increased in value.

DAMAGES FOR CONVERSION)

Call: what remedy or remedies can Mary reasonably obtain against Frank for
conversion, what defenses(laches,unclean hands) can Frank reasonably raise,
and who is likely to prevail?
P can bring an action that Forces the sale(common) which is the market value at
time converted (D exercises control that causes substantial
destruction/interference) OR Replevin- Action for personal property back & The
measure for damages is the market value or the replacement value.

Here, INSERT FACTMary & Frank orally agreed to jointly purchase a storefront in
which they both get half the proceeds if sold. He sold it but didn’t give Mary
half(conversion). Mary and Tanner(embezzlement-conversion of personal
property) each sued Frank for conversion. Mary should bring an action of
replevin for the proceeds since he already sold the property. Tanner should
bring an action for replevin.
EQUITABLE LIEN
Call: what remedy or remedies can mary reasonably obtain against Frank for
conversion, what defenses(laches,unclean hands) can Frank reasonably raise,
and who is likely to prevail?
A lien imposed on property for the value of the property that was taken from
Plaintiff.

Here, INSERT FACTMary & Frank orally agreed to jointly purchase a storefront in
which they both get half the proceeds if sold. He sold it but didn’t give Mary half.

> Here, Mary hired real estate broker to help find her house. But he found his
cousin a desperate seller Carol that had a bat infestation. Broker and Cousin
split the proceeds they got from Mary and broker invested it into stocks that
increased in value. A lien can be put on the stocks.

SPECIFIC PERFORMANCE CCIMFD

Specific performance is an equitable remedy which requires the contract to be
performed. To be granted, it must be shown that (1) there is a certain contract, (2)
there is mutuality between party’s that conditions were met, (3) there is not an
adequate remedy at law, (4) enforcement is feasible, and (5) there are no
defenses. It’s not available for personal service contracts.

Here, Barry and Sally entered into a certain contract because on April 1 they
entered into a valid written contract (2) there is mutuality between the party’s
condition because Barry agreed to buy and Sally agreed to sell the car, (3) there
might be an adequate remedy at law (4) enforcement might not be feasible bc
Sally already entered into another contract to sell the car, (5) there are no
defenses such as laches or unclean hands because Barry has not engaged in
unfair activity or unreasonably delayed his suit.

>Here, Peter started work that he agreed to be paid $40,000 per year and receive a parcel of
land at the end of three years. But employer only agreed to pay him $40,000 although she was
satisfied with his work. She fired him after he had worked for 2 yrs and 9 mos.

LACHES & UNCLEAN HANDS

Unclean hands for not telling the truth on the insurance policy application,
defendant engaged in unfair activity when he stated his cars are driven in a rural
community since its cheaper. However, Sally kept and drove his car in Industry
City while attending college.
Laches for neighbors waiting to bring an injunctive action when she was almost
done constructing the dam for the kid’s summer camp.