Performance Part 2
How should performance order be conducted if unspecified?
RS: If performance can be rendered simultaneously, it should happen. Where one’s performance requires a period of time, their performance is due unless language to contrary. If parties don’t specify longer performance that takes time is due earlier. (like payment)
What are the elements of a misrepresentation?
RS: MR makes a contract voidable when: (1) assertion not in accord w facts; (2) fraudulent/material; (3) MR induced assent; (4) reliance on MR justified.
What are the elements for mutual mistake?
Elements: (1) Mutual mistake of fact; (2) Basic assumption on which contract was made; (3) material effect one exchange; (4) party asserting defense did not bear risk of mistake.
What are expectation damages?
RS: Injured party has right to expectation damages measured by loss in value plus other losses minus costs avoided.
What remedy is available for land?
Specific performance
What is anticipatory repudation?
Before performance, other party indicates they don’t intend to perform; unequivocal statement that you will not perform in the future. Other party can cease performance and sue for breach. Need to mitigate!
Can you rely on an opinion for misrepresentation?
RS: Cannot rely on opinion except (1) there is a relationship of trust/confidence; (2) person giving opinion has superior/skill/judgment or objectivity, or (3) You are particularly susceptible for a special reason.
What are the elements of unilateral mistake?
RS: Elements: (1) Unilateral mistake of fact; (2) Basic assumption on which the contract was made; (3) material effect on exchange; (4) party asserting defense did not bear risk of mistake; and (5) other party knew/had reason to know of mistake or enforcement is “unconscionable”
What are reliance damages?
Intended to put the promisee in the position in which the promisee would have been in if the promise not been made.
When can you get specific performance for personal property?
(1) no adequate remedy at law—money damages; (2) where property is of peculiar, sentimental, or unique value; or (3) not easily obtained bc rare.
When there are reasonable grounds for insecurity of performance, the other can demand adequate assurance of performance and until assurance received performance can be suspended. What is this?
Adequate assurances
What are the elements of duress?
Elements: Improper threat and no reasonable alternative. A threat is improper when (1) threatens crime/tort; (2) criminal prosecution; (3) civil process in bad faith; (4) breach of duty of good faith under a contract.
How is a party assigned risk?
RS: Party bears risk of mistake when: (1) allocated by agreement; (2) treats their limited knowledge as sufficient; or risk allocated by court (reasonable in circumstance)
What are restitution damages?
Intended to put the promisor back in the position in which the promisor would have been in if the promise had not been made.
When can you get specific performance for goods?
UCC: Buyer can get specific performance when goods are unique or in other propert circumstances (broader than CL) and buyer has right to get goods back if they paid and cannot find cover.
What are the factors for material breach?
What is required for undue influence?
Objective: Pressure applied by dominant person/Overpersuasion
Subjective: Victim's state of mind/Weakness and vulnerability
What are the elements of impracticability?
RS: Elements: (1) performance rendered impracticable; (2) without fault of party asserting defense; (3) by event that constitutes failure of basic assumption; and (4) no express/impled assignment of risk to party asserting defense.
What are the limitations on damages?
Foreseeability, certainty, avoidability (mitigation)
Can you enforce specific performance for personal services?
Personal Services: Court will not grant specific performance as a remedy for personal services but injunctive relief may be granted to restrain other services if the employee is a person of exceptional/unique knowledge nad has skill/ability that is not easily obtained from others on the market, not one of a kind.
Herb and Gale contract for Gale to paint Herb's house a cute pink color. Gale paints the house green. Is there a material breach?
Debate!
What is required for unconscionability?
An absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to other party.
What are the elements of frustration of purpose?
Elements: (1) Party’s purpose; (2) without fault of party asserting defense; (3) by event that constitutes failure of basic assumption; (4) no express/implied assignment of risk to the party asserting defense.
What is the reasonableness test?
Ascertainability and proportionality. (Utilize the prospective and prospective approach)
If Emily sells Quynh a 5million dollar home because she needs to make her net worth liquid. She is about to make a huge investment in bitcoin (way too many years late) Amanda tells Emily she is being dumb in investing and Emily realizes she is stupid for that. She tells Quynh she cannot sell her the house after they signed a sales agreement. What is Quynh entitled to?
Quynh can get specific performance for the home.