Remedies for Breach 1
Under Common Law, failure to substantially perform means the other side may...BUT can NOT withhold ... if the other side has substantially performed
1. withhold their own performance
2. payment
Under the UCC, reasonable grounds for insecurity about the other side's performance allows you to demand an...and if the party fails to respond in a reasonable time, you can treat this as a ...
1. adequate assurance of performance
2. Repudiation
A party can not recover both ... and ... damages. They must choose one.
Expectation and reliance damages
This type of beneficiary has the right to sue.
Intended
If the contract ... assignments, the assigning party has breached when he makes the assignment, BUT the third party can still recover from the guarantor.
Prohibits
The power to assign persists, even if the right to assign does not
Under the UCC perfect tender, the seller must strictly perform all obligations or be in...
The doctrine of ...applies to installment sales.
1. Breach
2. material breach
The goal of this type of damage is to put a party in the same economic position it would be in if the K had been performed.
It is measured by...
Expectation Damages
Measured by comparing the value of performance without the breach to the value of the performance with the breach
The goal of this type of damages is to give the plaintiff an amount equal to the economic benefit that the plaintiff conferred to the defendant. This can sometimes equal reliance damages.
Restitution Damages
To be an intended beneficiary, the parties to the K have to ... for the TPB to benefit from the K
Intend
If the contract ... assignments, the third party cannot recover because there is no power or right to assign.
Invalidates
Anticipatory Repudiation arises if one party to a K...
1. makes an unambiguous statement or conduct
2. prior to the time performance is due
3. which indicates he will not perform
The goal of this type of damage is to put a party in the same economic position that it would have been in if the K had NEVER been created
Reliance damages
Consequential damages are foreseeable losses indirectly resulting from a breach, but recoverable only if:
1. Damages are a foreseeable result of the breach; and
2. When the K was formed, D had reason to now P would suffer special, unpreventable, or unexpected damages in the event of a breach.
Note: Under UCC K's, only BUYERS can recover
The parties to a K can modify or revoke any TPB rights UNLESS (think promissory estoppel)...
Also, TPB will NOT lose enforcement rights if these 3 things happen because the TPB rights have vested.
The third-party KNOWS about the promise AND has changed position in reasonable reliance on the promise
1. The beneficiary relied on the rights,
2. the beneficiary manifests assent to the contract; or
3. the beneficiary files suit to enforce the contract
If someone assigns the same rights twice, and ff rights are assigned without consideration, the assignment is generally revocable and the ... assignment controls
last
In an anticipatory repudiation, the non-repudiating party has what options?
1. Treat the anticipatory repudiation as a total repudiation and sue
2. Suspend performance until peformance date is due and wait to sue
3. Treat repudiation as an offer to rescind and treat K as discharged, or
4. Ignore repudiation and irge promisor to perofrm
A breached party must take reasonable steps to reduce damages from a breach. This is called
Mitigation
Under the UCC, these types of damages are recoverable as commercially reasonable expenses incurred by the non breaching party
Incidental Damages
Assignment is the ...while delegation is the...
1. transfer of rights
2. transfer of duties
If someone assigns the same rights twice, and the rights are assigned for consideration, then the ... assignment for consideration is typically irrevocable and will hold.
First
What is a caveat to anticipatory repudiation?
Can a party retract its repudiation?
1. If you have complete the entire performance and are only waiting for payment, you CAN NOT SUE EARLY
2. Yes, but only if the other side has NOT
-commenced a lawsuit OR
-Acted in reliance on the repudiation by materially changing its position
If the seller is a retailer who sells this type of product all the time, the seller may try to argue for ...and get expectation damages
Lost Volume Profits
Liquidated Damages
A delegatee is generally not liable for breach unless she receives ...from the delegating party
Consideration
An assignee can sue...
the Obligor for non-performance and the assignor for wrongful revocation of assignment or breach of an implied warranty