Docstoc

Restatement Second Contract

Document Sample
Restatement Second Contract Powered By Docstoc
					                         U.S. Contract Law - Seoul Bar Association
                                         Fall 2006

                                 Professor Hee Eun Lee
                             Handong International Law School


Session 1 – Friday, September 22

I.      Definitions

II.     What Law Applies?

III.    Mutual Assent


Session 2 – Friday, September 29

IV.     Enforceability


Session 3 – Monday, October 2

V.      Defenses

VI.     Issues Surrounding Contract Terms

VII.    Performance


Session 4 – Wednesday, October 11

VIII.   Damages

IX.     Other Remedies and Causes of Action

X.      Third Party Issues
Session 4 – Wednesday, October 11

VIII. Damages

      A. Damages for Breach of Contract

             1. Three Damages Interests

                Restatement (Second) of Contracts § 344 – Purposes of Remedies
                Judicial remedies under the rules stated in this Restatement serve to protect
                one or more of the following interests of a promisee:

                (a) his "expectation interest," which is his interest in having the benefit of his
                bargain by being put in as good a position as he would have been in had the
                contract been performed,

                (b) his "reliance interest," which is his interest in being reimbursed for loss
                caused by reliance on the contract by being put in as good a position as he
                would have been in had the contract not been made, or

                (c) his "restitution interest," which is his interest in having restored to him
                any benefit that he has conferred on the other party.

                a. Expectation

                b. Reliance

                c. Restitution

             Hypothetical Problem

             Agreement
             I agree to sell you my Contracts textbook (to be delivered tomorrow). You, in
             return, will pay me $10.00 and provide me with a photocopy of your Contracts
             notes.

             My Contracts textbook has a market value of $15.00. Your notes have a market
             value of $1.00. It costs you 3.00 to photocopy your notes.

             You pay me $10.00, and give me a copy of your notes. I refuse to deliver or
             return you money.

             Question 1:
             How much would you be entitled to if limited to the restitution interest?

             Question 2:
             How much would you be entitled to if limited to the reliance interest?

             Question 3:
             How much would you be entitled to if we applied the expectation interest?



                                              2
Restatement (Second) of Contracts § 347 – Measure of Damages in
General
Subject to the limitations stated in §§ 350-53, the injured party has a right to
damages based on his expectation interest as measured by

(a) the loss in the value to him of the other party's performance caused by its
failure or deficiency, plus

(b) any other loss, including incidental or consequential loss, caused by the breach,
less

(c) any cost or other loss that he has avoided by not having to perform.

2. Limitation on Damages

    a. Remoteness or Foreseeability of Harm

        Restatement (Second) of Contracts § 351 – Unforeseeability and
        Related Limitations on Damages
        (1) Damages are not recoverable for loss that the party in breach did not
        have reason to foresee as a probable result of the breach when the
        contract was made.

        (2) Loss may be foreseeable as a probable result of a breach because it
        follows from the breach

                (a) in the ordinary course of events, or

                (b) as a result of special circumstances, beyond the ordinary
                course of events, that the party in breach had reason to know.

        (3) A court may limit damages for foreseeable loss by excluding recovery
        for loss of profits, by allowing recovery only for loss incurred in reliance,
        or otherwise if it concludes that in the circumstances justice so requires in
        order to avoid disproportionate compensation.

    b. Certainty of Harm

        Restatement (Second) of Contracts § 352 – Uncertainty as a
        Limitation on Damages
        Damages are not recoverable for loss beyond an amount that the
        evidence permits to be established with reasonable certainty.

    c. Avoidability of Harm

        Restatement (Second) of Contracts § 350 – Avoidability as a
        Limitation on Damages
        (1) Except as stated in Subsection (2), damages are not recoverable for
        loss that the injured party could have avoided without undue risk, burden
        or humiliation.



                                  3
      (2) The injured party is not precluded from recovery by the rule stated in
      Subsection (1) to the extent that he has made reasonable but unsuccessful
      efforts to avoid loss.

3. Contracting Around the Default Rules of Damages

   a. Express Limitations on Consequential Damages and Incidental
      Damages

      Example:

      Microsoft XP License Agreement: LIMITATION ON REMEDIES;
      NO CONSEQUENTIAL OR OTHER DAMAGES. Your exclusive
      remedy for any breach of this Limited Warranty is as set forth below.
      Except for any refund elected by Microsoft, YOU ARE NOT
      ENTITLED TO ANY DAMAGES, INCLUDING BUT NOT
      LIMITED TO CONSEQUENTIAL DAMAGES, if the Software does
      not meet Microsoft's Limited Warranty, and, to the maximum extent
      allowed by applicable law, even if any remedy fails of its essential purpose.
      The terms of Section 17 ("Exclusion of Incidental, Consequential and
      Certain Other Damages") are also incorporated into this Limited
      Warranty. Some states /jurisdictions do not allow the exclusion or
      limitation of incidental or consequential damages, so the above limitation
      or exclusion may not apply to you … You will receive the remedy elected
      by Microsoft without charge, except that you are responsible for any
      expenses you may incur (e.g. cost of shipping the Software to
      Microsoft) …

   b. Liquidated Damages vs. Penalty Clauses

      Restatement (Second) of Contracts § 356 – Liquidated Damages
      and Penalties
      (1) Damages for breach by either party may be liquidated in the
      agreement but only at an amount that is reasonable in the light of the
      anticipated or actual loss caused by the breach and the difficulties of
      proof of loss. A term fixing unreasonably large liquidated damages is
      unenforceable on grounds of public policy as a penalty.
      (2) A term in a bond providing for an amount of money as a penalty for
      non-occurrence of the condition of the bond is unenforceable on
      grounds of public policy to the extent that the amount exceeds the loss
      caused by such non-occurrence.

      UCC § 2-718. Liquidation or Limitation of Damages; Deposits.
      (1) Damages for breach by either party may be liquidated in the
      agreement but only at an amount which is reasonable in the light of the
      anticipated or actual harm caused by the breach, the difficulties of proof
      of loss, and the inconvenience or nonfeasibility of otherwise obtaining an
      adequate remedy. A term fixing unreasonably large liquidated damages is
      void as a penalty.



                               4
IX.   Other Remedies and Causes of Action

         A. Specific Performance and Injunctions

               Specific Performance: An order of specific performance is intended to
               produce as nearly as is practicable the same effect that the performance due
               under a contract would have produced. It usually, therefore, orders a party to
               render the performance that he promised.

               Injunction: A court may by injunction direct a party to refrain from doing a
               specified act.

               1. Contracts for Land

               2. Contracts for Goods

                   UCC § 2-716. Buyer's Right to Specific Performance or Replevin.
                   (1) Specific performance may be decreed where the goods are unique or
                   in other proper circumstances.

                   (2) The decree for specific performance may include such terms and
                   conditions as to payment of the price, damages, or other relief as the
                   court may deem just.

                   (3) The buyer has a right of replevin for goods identified to the contract if
                   after reasonable effort he is unable to effect cover for such goods or the
                   circumstances reasonably indicate that such effort will be unavailing or if
                   the goods have been shipped under reservation and satisfaction of the
                   security interest in them has been made or tendered. In the case of goods
                   bought for personal, family, or household purposes, the buyer's right of
                   replevin vests upon acquisition of a special property, even if the seller had
                   not then repudiated or failed to deliver.

               3. Contracts for Personal Services

                   Restatement (Second) of Contracts § 367 – Contracts for Personal
                   Service or Supervision
                   (1) A promise to render personal service will not be specifically enforced.

                   (2) A promise to render personal service exclusively for one employer will
                   not be enforced by an injunction against serving another if its probable
                   result will be to compel a performance involving personal relations the
                   enforced continuance of which is undesirable or will be to leave the
                   employee without other reasonable means of making a living.




                                            5
B. Restitution

       i. Restitution for Breach of Contract

          Restatement (Second) of Contracts § 373 – Restitution When Other
          Party Is in Breach
          (1) Subject to the rule stated in Subsection (2), on a breach by non-
          performance that gives rise to a claim for damages for total breach or on
          a repudiation, the injured party is entitled to restitution for any benefit
          that he has conferred on the other party by way of part performance or
          reliance.

          (2) The injured party has no right to restitution if he has performed all of
          his duties under the contract and no performance by the other party
          remains due other than payment of a definite sum of money for that
          performance.

      ii. Restitution to the Party in Breach

          Restatement (Second) of Contracts § 374 – Restitution in Favor of
          Party in Breach
          (1) Subject to the rule stated in Subsection (2), if a party justifiably refuses
          to perform on the ground that his remaining duties of performance have
          been discharged by the other party's breach, the party in breach is entitled
          to restitution for any benefit that he has conferred by way of part
          performance or reliance in excess of the loss that he has caused by his
          own breach.

          (2) To the extent that, under the manifested assent of the parties, a party's
          performance is to be retained in the case of breach, that party is not
          entitled to restitution if the value of the performance as liquidated
          damages is reasonable in the light of the anticipated or actual loss caused
          by the breach and the difficulties of proof of loss.

     iii. Restitution and “Quasi-Contract”




                                    6
X.   Third Party Issues

        A. Third Party Beneficiaries

           Restatement (Second) of Contracts § 302 – Intended and Incidental
           Beneficiaries
           (1) Unless otherwise agreed between promisor and promisee, a beneficiary of a
           promise is an intended beneficiary if recognition of a right to performance in the
           beneficiary is appropriate to effectuate the intention of the parties and either

                   (a) the performance of the promise will satisfy an obligation of the
                   promisee to pay money to the beneficiary; or

                   (b) the circumstances indicate that the promisee intends to give the
                   beneficiary the benefit of the promised performance.

           (2) An incidental beneficiary is a beneficiary who is not an intended beneficiary.

        B. Assignment of Rights

           Restatement (Second) of Contracts § 317 – Assignment of a Right
           (1) An assignment of a right is a manifestation of the assignor's intention to
           transfer it by virtue of which the assignor's right to performance by the obligor is
           extinguished in whole or in part and the assignee acquires a right to such
           performance.

           (2) A contractual right can be assigned unless

                   (a) the substitution of a right of the assignee for the right of the assignor
                   would materially change the duty of the obligor, or materially increase the
                   burden or risk imposed on him by his contract, or materially impair his
                   chance of obtaining return performance, or materially reduce its value to
                   him, or

                   (b) the assignment is forbidden by statute or is otherwise inoperative on
                   grounds of public policy, or

                   (c) assignment is validly precluded by contract.

        C. Delegation of Duties

           Restatement (Second) of Contracts § 318 – Delegation of Performance of
           Duty
           (1) An obligor can properly delegate the performance of his duty to another
           unless the delegation is contrary to public policy or the terms of his promise.

           (2) Unless otherwise agreed, a promise requires performance by a particular
           person only to the extent that the obligee has a substantial interest in having that
           person perform or control the acts promised.




                                             7
   (3) Unless the obligee agrees otherwise, neither delegation of performance nor a
   contract to assume the duty made with the obligor by the person delegated
   discharges any duty or liability of the delegating obligor.

D. Agents

   Restatement (Second) of Agency § 1 – Agency; Principal; Agent
   (1) Agency is the fiduciary relation which results from the manifestation of
   consent by one person to another that the other shall act on his behalf and
   subject to his control, and consent by the other so to act.

   (2) The one for whom action is to be taken is the principal.

   (3) The one who is to act is the agent.




                                    8

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:200
posted:7/18/2011
language:English
pages:8
Description: Restatement Second Contract document sample