REMEDIES REMEDIES Class 6 1 Rest 2d

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REMEDIES REMEDIES Class 6 1 Rest 2d Powered By Docstoc
					REMEDIES

  Class 6




            1
    Rest 2d Contracts 353
   Recovery for emotional disturbance
will be excluded unless the breach also
caused bodily harm or the contract or
the breach is of such a kind that
serious emotional disturbance was a
particularly likely result.



                                          2
          Rest Contracts 337
     If the parties have not by contract determined
otherwise, simple interest at the statutory legal rate
is recoverable as damages for breach of contract as
follows:

     (a) Where the defendant commits a breach of a
contract to pay a definite sum of money, or to render
a performance the value of which in money is stated
in the contract or is ascertainable by mathematical
calculation from a standard fixed in the contract or
from established market prices of the subject matter,
interest is allowed on the amount of the debt or
money value from the time performance was due,
after making all the deductions to which the
defendant may be entitled.

                                                         3
  Rest. Contracts 337, cont.
   (b) Where the contract that is broken
is of a kind not specified in Clause (a),
interest may be allowed in the
discretion of the court, if justice
requires it, on the amount that would
have been just compensation if it had
been paid when performance was due.


                                        4
      Rest. 2d Contracts 354
   (1) If the breach consists of a failure to
pay a definite sum in money or to render a
performance with fixed or ascertainable
monetary value, interest is recoverable from
the time for performance on the amount due
less all deductions to which the party in
breach is entitled.

    (2) In any other case, such interest may
be allowed as justice requires on the amount
that would have been just compensation had
it been paid when performance was due.


                                                5
           Cal. Civ. Code § 3287
    (a) Every person who is entitled to recover
damages certain, or capable of being made
certain by calculation, and the right to recover
which is vested in him upon a particular day, is
entitled also to recover interest thereon from that
day, except during such time as the debtor is
prevented by law, or by the act of the creditor from
paying the debt. This section is applicable to
recovery of damages and interest from any such
debtor, including the state or any county, city, city
and county, municipal corporation, public district,
public agency, or any political subdivision of the
state.


                                                    6
    Cal. Civ. Code § 3287
    (b) Every person who is entitled
under any judgment to receive
damages based upon a cause of
action in contract where the claim was
unliquidated, may also recover interest
thereon from a date prior to the entry
of judgment as the court may, in its
discretion, fix, but in no event earlier
than the date the action was filed.
                                       7
     Cal. Civ. Code § 3289
   (a) Any legal rate of interest stipulated
by a contract remains chargeable after a
breach thereof, as before, until the
contract is superseded by a verdict or
other new obligation.


    (b) If a contract entered into after
January 1, 1986, does not stipulate a legal
rate of interest, the obligation shall bear
interest at a rate of 10 percent per annum
after a breach.                             8
             Illustration 8
    A sells seed to B, warranting that it is
Bristol cabbage seed. It is an inferior type
of cabbage seed instead, and B suffers a
loss of profit. B sues A and recovers
$10,000, the difference between the value
to B of a crop of Bristol cabbage and the
crop actually grown. What result?



                                               9
    Illustration 8, continued
    The amount was not sufficiently definite
to give B a right to interest on it. The
allowance of interest is in the discretion of
the court.




                                            10
                     Rest. 2d Torts 913
(1) Except when the plaintiff can and does elect the restitutional
   measure of recovery, he is entitled to interest upon the amount
   found due

       (a) for the taking or detention of land, chattels or other
  subjects of property, or the destruction of any legally protected
  interest in them, when the valuation can be ascertained from
  established market prices, from the time adopted for their
  valuation to the time of judgment, or

       (b) except as stated in Subsection (2), for other harms to
  pecuniary interests from the time of the accrual of the cause of
  action to the time of judgment, if the payment of interest is
  required to avoid an injustice.

(2) Interest is not allowed upon an amount found due for bodily
   harm, for emotional distress or for injury to reputation, but the
   time that has elapsed between the harm and the trial can be
   considered in determining the amount of damages.


                                                                       11
          Cal. Civil 1717(a)
    In any action on a contract, where the
contract specifically provides that attorney's fees
and costs, which are incurred to enforce that
contract, shall be awarded either to one of the
parties or to the prevailing party, then the party
who is determined to be the party prevailing on
the contract, whether he or she is the party
specified in the contract or not, shall be entitled
to reasonable attorney's fees in addition to other
costs.
                                                  12
    You are a plaintiff in a commercial matter
in which you are seeking $750,000 in
damages. Defendant has offered you a
settlement of $250,000 in full. Your lawyer
has already charged you $50,000 in fees; we
are at the eve of trial preparation. She tells
you that you have a 75% chance of winning
at trial and getting all your damages. On the
other hand, you have a 25% chance of losing
and getting nothing. Your lawyer anticipates
another $40,000 in fees if she has to try the
matter. Do you take the settlement offer?

                                             13

				
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