Title Page 2 results
Chapter 8. Remedies 4 results
- ..., the plaintiffs must be assumed, as a matter of law, to have sought substitute (non-inferior) employment as managers of somebody else’s liquor store and likewise to have invested their capital in some other income-producing asset. The Shirley MacLaine case shows that the duty to mitigate is not always the same as the economist’s notion of implicit opportunity cost; but where, as here, the injured party’s service skills are routine in nature, the two constructs are very much alike and omitting one is roughly equivalent to omitting the other. To be sure, the State liquor license for which the plaintiffs had applied would have no close economic substitute, and I concede that the license (if it had ever been granted) would be an asset of premium value in the plaintiffs’ hands. In addition, I suppose that the idea of combining books with bottles might have seemed to the jury to be an innovative marketing concept from which the plaintiffs were entitled to expect an unusually high...
- Actually, expectation and reliance are not true alternatives since both assume that the contract is to be enforced against the promisor in accordance with its terms. The promisor being bound by his promise to perform and having breached, the remedy is money damages and the question becomes one of how best to measure the promisee’s loss, that is, whether with respect to reliance only or with respect to expectations as well. Restitution, by contrast, though a fairly frequent form of relief in contract cases, is based upon the quite separate concept of unjust enrichment; recovery is measured by the value of the benefits conferred upon the promisor by the promisee rather than by reference to the loss resulting from the promisor’s failure to meet his obligations under the contract as such.
- As noted, while restitution is a claim that is based on a concept of unjust enrichment rather than contractual obligation, it does serve on occasion as an appropriate remedy in the contract setting. One situation in which restitution rather than contract damages might be sought would be that of a buyer who has paid in advance for undelivered property or services. Logically, the choice of restitution would be made only if the market value of the property or service had fallen well below the contract price, although in such event, apart from special circumstances, one assumes that the seller would be eager to perform and unlikely to breach. If the property or service was clearly worth more than the contract price, then, restitution being the lesser claim, the injured
- “principle” is simply to divide the burden between the two parties on a ratio of 23:27 throughout the entire term of the contract. In some cases—for example, where the defendant is a governmental agency whose appropriations have unexpectedly been terminated by the legislature—the act of breach might be viewed as faultless or as a kind of quasi-impossibility event, so that a sharing concept has some equitable appeal. The plaintiff would still have reason to make a careful estimate of costs and the defendant would still have an incentive to avoid delay in terminating the project, but now both parties take the risk of an abrupt change in underlying circumstances.
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- When applicable, the parol evidence rule renders unenforceable oral agreements entered into prior to the adoption of a written contract. Restatement Section 213 expresses the substantive concept in terms of “discharge”: a written agreement that is found to be “completely integrated”—that represents a full and final embodiment of the parties’ understanding—effectively discharges any prior agreement that falls within its scope. The consequence in evidentiary terms is that proof of the alleged prior agreement is inadmissible and cannot be placed before the trier of fact, which might of course be a jury otherwise inclined to sympathy for the
- concept have been willing to admit evidence of a prior oral condition on the ground that the “true intent” of the parties is always the ultimate touchstone. In determining intent, “it is necessary to look not only to the written instrument, but to the circumstances surrounding its execution”, which may of course show that a prior oral understanding was intended to survive. Justice Traynor himself indicated that if a merger clause had been included in Masterson’s deed, this
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Chapter 3. Contract Formation 1 result
- Section 90 and the doctrine of promissory estoppel have long engaged, sometimes inflamed, the imagination of contract theorists. Going back a number of years, at least one influential commentator predicted that the traditional idea of contract based on bargainedfor consideration and mutual assent was on its way to extinction and would be replaced by the less restrictive and more dynamic concept of reliance.
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Chapter 9. Third Party Beneficiaries 1 result
- ...Restatements, have exhibited a general willingness to recognize the contract rights of third party beneficiaries. The concept is easily expressed: where A, for a consideration, promises B to pay money or transfer property to C, then, in the name of procedural economy and convenience of remedy, C, no less than B, should be able to sue for damages if A fails to perform. To be sure, C has furnished no consideration to A (though, of course, B has), and C is not a party to the contract between A and B. But these shortcomings would appear to be largely formal. Thus, A’s obligation to perform is the same whether it is B or C who receives the benefit, and A’s exposure to liability for non-performance is the same whether it is B or C who asserts a claim against her. Given the simple outlines of the problem, perhaps the real question is why there should ever have been any hesitation about accepting the idea of third-party contract rights. In the alternative, one wonders whether...
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Chapter 7. Mistake and Impossibility 1 result
- in the case of clerical or arithmetical error, misidentification, etc. The challenge, of course, would be to enumerate our exceptions so as to eliminate the ambiguity present in the risk-assumption concept, but without denying relief to those “adversely affected parties” to whom we really think it ought to be extended.
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- ...concept of “estoppel” based on the promisor’s representations to the promisee—now generally referred to as promissory estoppel—is reflected, with refinements and enlargements, in Section 90 of the Restatement, discussed in more detail below. Briefly, Section 90 provides that a promise which is expected by the promisor to induce the promisee to take some action, and which does induce such action, is binding and enforceable if necessary to avoid injustice. Reliance by the promisee may thus be sufficient to create an enforcement right against the promisor, even though the transaction does not involve a “bargain” between the parties and even though the promisor receives no “consideration”. Grandfather Ricketts sought neither a return promise nor a performance from his granddaughter; his promise was nonreciprocal in the sense that it imposed no obligation on the promisee. Grandfather did, however, intend and expect that granddaughter would quit her job and opt for a life of leisure....
- ...—the concept of reliance-based enforcement—represents the principal exception to the standard requirement of consideration, but not the only exception. Yet another class of promises that sometimes appear to call for enforcement despite the absence of consideration (at least of present consideration) consists of promises made in recognition of a benefit received in the past. As a general proposition, a person who performs unrequested services for another does not thereby acquire a right to compensation or restitution, even though the performance entailed a cost to the former and a benefit to the latter. In effect, if you do somebody a favor, you cannot convert your generosity into an enforceable contract claim; services that were intended to be voluntary and gratuitous remain so as a matter of legal presumption. There are, of course, limits to this “rule”. Thus, a doctor who gives emergency treatment to an accident victim is assumed to be responding to the latter’s request and can...
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- If, on the other hand, either party lacks or can be presumed to lack the attributes of informed volition, then the customary basis of contract is in doubt. Recognizing this, the law has traditionally regarded contracts as void or voidable if made by persons lacking legal capacity, including “infants” (generally, persons under 18), drunks and the mentally ill, or if entered into under conditions of duress, or if induced by fraud or misrepresentation. The intuitive basis for treating a promise as non-binding under such circumstances is clear, I think, but inevitably there are borderline definitional issues—particularly in the areas of “duress” and “misrepresentation”—that test the limits or the application of the concept. Some of these are sorted out briefly in the discussion that follows. The much larger and infinitely more contentious question of consumer safeguards and so-called contracts of adhesion is reserved for Section B.
- court candidly acknowledged, is how both to apply and to contain the concept of unconscionability—how to protect people from being dealt with by car-dealers and furniture companies in ways that violate their expectations as consumers, while at the same time continuing to honor “freedom of contract” as a fundamental tenet of the legal system. The answer furnished by the cases, and presumably accepted by the UCC, is that a contract entered into by competent adults is binding without regard to anyone’s opinion of its fairness; but where the circumstances indicate that one party did not, or could not, fully comprehend the meaning of the contract, then the court is free to use its own judgment to determine whether the contract terms are fair. Thus, the threshold issue in
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- Publication Date: June 3rd, 2013
- ISBN: 9781609303303
- Subject: Contracts
- Series: Concepts and Insights
- Type: Hornbook Treatises
- Description: Recommended in more than 100 schools, the updated seventh edition of Concepts and Case Analysis in the Law of Contracts is a readable primer that offers first-year law students a reliable overview of the major themes and leading cases in the field of the law of contracts. This contracts primer is straightforward and uncluttered, covering the main themes of the first-year contracts course, together with related cases.