American Contract Law for a Global Age, 2017a

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product that would be fully functional in conjunction with that hardware.” We concluded that the hardware would not have been purchased “but for VMark’s misleading representations.” Here, in contrast, the motion judge, in allowing summary judgment, rejected Doering’s contention that it could prove that it entered into the contract and incurred the expenses based on various misrepresentations. Doering does not challenge this decision on appeal. The lack of a causal connection between the claimed breach (or unfair act) and the losses is fatal to Doering’s claims. Furthermore, as provided in the Restatement (Second) of Contracts § 349, the “injured party has a right to damages based on his reliance interest, including expenditures made in preparation for performance or in performance,” but “less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed.” See L. Albert & Son v. Armstrong Rubber Co., 178 F.2d 182, 189 (2d Cir. 1949) (where Hand, J., writing for the court, stated, “on principle therefore the proper solution would seem to be that the promisee may recover his outlay in preparation for the performance, subject to the privilege of the promisor to reduce it by as much as he can show that the promisee would have lost, if the contract had been performed”). 4 In the instant case, Doering is seeking to recover expenditures made in preparation for performance or during performance, but has also demonstrated, through its own submissions, that the contract, as performed, had been a losing proposition since inception, separate and apart from the breach. In fact, the operating losses for the contract, while being performed by both parties, are exactly what Doering seeks to recover. We are, therefore, in the rare position of being able to judge with accuracy “what the fate of the venture would have been had it not been interrupted” by the defendant’s breach. Fuller & Perdue, The Reliance Interest in Contract Damages, 46 YALE L.J. 52, 79 (1936). If Doering recovered its losses as requested, it would be in a better position than if the contract had been performed. This would violate the fundamental principle first articulated by Professor Fuller and thereafter adopted by Judge Learned Hand in Albert & Son, the Restatement (Second), and this court in Lord’s & Lady’s Enterprises, that “we will not in a suit for reimbursement for losses incurred in reliance on a contract knowingly put the plaintiff in a better position than he would have [been in] . . . had the contract been fully performed.” Fuller & Perdue, 46 YALE L.J. at 79. See Productora e Importadora de Papel v. Fleming, 383 N.E.2d 1129 (Mass. 4 [By the court] We recognize that a “party standing in breach cannot insist on mathematical precision in the measurement of damages, and may expect some lack of sympathy when he claims that the loss would have been suffered even if breach had not occurred.” Gilmore v. Century Bank & Trust Co., 477 N.E.2d 1069 (Mass. App. Ct. 1985). Therefore, the burden is placed on the breaching party to establish the losses with “reasonable certainty.” Restatement (Second) of Contracts § 349. ______________________________________________________________________________ 516 CHAPTER VIII: REMEDIES
1978) (damage award “should be reduced, even to extinction, by the expenses that the breach” allowed the injured party to avoid). Judgment affirmed. _____________________ Review Question 9. Doering and Mistletoe Express both involve situations in which one party has reasonably relied on performance from its counterparty. But the plaintiff in Mistletoe Express wins and the plaintiff in Doering loses. What, if any, is the factual difference between the two cases that leads to a different result? Review Question 10. As a contract litigator, in what kinds of situations would you be likely to pursue reliance (rather than expectancy or restitution) as your preferred measure of damages? Under what factual conditions would you expect parties to prefer to seek reliance damages? _____________________ Problems Problem 24.1 Titus, a wealthy oil magnate, is a huge fan of Gram Parsons, the influential musician who co-founded the Flying Burrito Brothers and who died at age 26 of a drug and alcohol overdose in 1973. He has an extensive collection of Parsons memorabilia and other materials related to the Los Angeles country-rock scene in the period 1965-75. Titus really wants the turquoise 1960 Ford Galaxie convertible that Parsons owned when he moved to Los Angeles in 1966, and which has marijuana decals and cigarette burns inflicted by Parsons. The car is now owned by a distant cousin of Parsons, Elmer. Titus and Elmer sign a contract in which Elmer will sell the car to Titus for $1 million. The car, which is currently loaned on display at the Country Music Museum in Del Ray, Florida, will be delivered in three months, on July 15. Titus puts $50,000 down on the car. Titus immediately begins renovations to his palatial Houston home, widening the living room and opening it into a gallery of his collection. Architects design a special lighted platform on which the car will be displayed; the car will effectively be the centerpiece of his home. The renovations necessary to accommodate the car are done at a total cost of $200,000. Three days before the car is due to be delivered, Elmer calls Titus and informs him that he has decided that the car is better off in a museum, and so he has sold the ______________________________________________________________________________ UNIT 24: RESTITUTION AND RELIANCE 517
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Notices This is the first edition o
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About CALI eLangdell Press The Cent
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Unit 19: Conditions ...............
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hired Corleone family thugs 4 or an
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described herein, and agrees to fre
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6. MARY BETH WHITEHEAD, Surrogate,
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Surrogate and WILLIAM STERN, Natura
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10. Consider paragraph 5. Should th
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The two court opinions that follow
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Venue Venue is a concept of place
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Their first child, Ryan, was born o
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Subsequent to entering into the sur
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The sixth and final argument sugges
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It is argued by amicus that the $ 1
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no stated public policy on surrogac
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IN RE BABY M Supreme Court of New J
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adoption; the sole purpose of the c
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The surrogacy contract violates the
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Problems Donald Donor is a single,
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An Introduction to CONTRACT FORMATI
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particular obligation? In Europe, i
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The evidence is undisputed that pla
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After some negotiation a price of $
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The answer of A.H. Zehmer admitted
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no, that is beer and liquor talking
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on the Zehmers as well as on himsel
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offer and of the reward and its sub
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your professor. You will come acros
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car title you’re holding there. I
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In the modern world, the question o
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pair of sunglasses. The drumroll th
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This letter was apparently sent onw
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Because these cases generally invol
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teenager’s schoolmates gape in ad
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Review Question 3. Note how Judge W
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cash in ten days,” it must be dee
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“Before a contract can be complet
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for the purpose of doing the work a
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accidentally being bound to unwante
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Here, we have a counter-offer. The
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parties.” Metropolitan Sports Fac
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court. See Minn. R. Civ. App. P. 10
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Thus, it clearly appears that the d
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with distribution. The parties ulti
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all essential terms. See, e.g., Sit
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Enclosed, we beg to hand you contra
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to call for an acceptance particula
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than identify himself, Dealer says,
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offer.” More often, they nod, sha
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The next attack will be my end, I a
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from all the facts and circumstance
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Notice to the agent, within the sco
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2. Written approval by United State
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contrary in the offer, the acceptan
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HOBBS v. MASSASOIT WHIP CO. Supreme
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stranger may impose a duty upon ano
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contract in this case come into exi
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An Introduction to CONSIDERATION Th
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and you are free to change your min
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Ridge Runner that she lacked the pr
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We conclude that the territory enco
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He further answered, that it was gi
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This action was brought upon an all
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consideration does in fact benefit
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Review Question 5. The promisors in
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The distinction between such a cond
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Vincent refuses. Fritz eventually s
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enefit was money received, the subs
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they stopped work in a body, and de
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supervise this building. Under the
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The day before trial the plaintiffs
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General rules of law established fo
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For the foregoing reasons we are al
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WEBB v. McGOWIN Court of Appeals of
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100 P. 631 (Kan. 1909); Edson v. Po
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McGowin’s adult child, would that
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efuses, saying, “We had a deal.
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Giles had no right to use it. But t
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BLICESTER: That’s crazy. JUDGE: N
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A. She took the piece of paper and
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According to the undisputed proof,
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We recognize that upon different fa
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was discussed with compensation to
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CONRAD v. FIELDS Court of Appeals o
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her job at Qwest and enroll in law
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Seth Wyman’s estranged son Levi i
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An Introduction to ALTERNATIVE REGI
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consistency. Some provisions have p
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TOUSLEY-BIXLER CONSTRUCTION CO. v.
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of goods within this Article whethe
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differently from other contracts? F
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nine units was delivered and paid f
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think they have struck a deal.” Q
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more sense for contract formation t
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COMMERCIAL CODE § 2-206:12 (3D ED.
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face of which appears the notation,
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Problem 10.3 On June 1, the sales d
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except for personal use. If, howeve
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[T]he plain reading of the statute
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not lubricated in any way. Without
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we also note that Best Bolt’s vic
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(c) are fit for the ordinary purpos
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This purchase order represents the
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provision would cause no “surpris
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FLENDER CORPORATION v. TIPPINS INTE
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well that the reservations each par
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The alternate approach, recognized
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(a) Is Ivy League University a “m
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and ratified a treaty called the Un
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(2) The fact that the parties have
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e. Manufacturer in Texas contracts
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an authorized distributor of Defend
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undisputed that each of these alleg
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Treaty Text Note. Read Articles 18,
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*4 (S.D. Ohio Mar. 26, 2009); see a
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perform a substantial part of his o
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shall be settled by binding arbitra
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An Introduction to CONTRACT DEFENSE
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which extended even to being able t
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Dickerson, 72 Ala. 318 (1882). In t
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loss from the transaction, includin
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this definition. Whether other area
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ORTELERE v. TEACHERS’ RETIREMENT
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medicine, this physician “judged
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The avoidance of duties under an ag
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7. What is my total service credit?
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Review Question 5. In McGovern v. C
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will pay the full listed price of $
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endeavoured to be upheld by Perjury
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Y Contracts that cannot be performe
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you think the consideration doctrin
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NICKELS, J., dissenting. I disagree
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contracts. What is the real purpose
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At the ensuing trial, defendant den
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There may be cases in which it woul
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professional. Things were really ge
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GUENTHER v. AMER-TEX CONSTRUCTION C
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(b) Subsection (a) of this section
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Problem 14.3 Van der Rohe USA, Inc.
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sold, the terms of the sale, the na
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the judgment of a vulnerable party.
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The first issue is whether the labe
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some point or on some occasion it w
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As a matter of law, based on the fa
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or, more particularly, in cases suc
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“deprived Loral of its free will.
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As to mistake, the amended complain
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In Weger v. Rocha, 32 P.2d 417 (Cal
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I had brought back the topaz, and h
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May 5, 1886, plaintiff went out to
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arren cow is substantially a differ
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prior to the sale was Buyer aware t
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Against Public Policy. In many situ
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HANKS v. POWDER RIDGE RESTAURANT CO
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interest adversely, and identified
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illogical, in these circumstances,
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_____________________ Review Questi
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construed against the employer). Th
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acquired by virtue of effort and ex
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_____________________ Review Questi
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Mere inadequacy of consideration wi
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District of Columbia Court of Appea
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In determining reasonableness or fa
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Problems Problem 16.1 The Californi
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position to all of his patients (or
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An Introduction to TERMS AND INTERP
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contract itself. Thus written docum
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consideration of the simultaneous a
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the contract on the basis of which
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The subject-matter of the written c
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understandings or agreements.” 3
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little time to compose it . . . . A
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expressed in the writing. KN Energy
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Article 8 UNITED NATIONS CONVENTION
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contracts or that parol evidence re
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percent (50%) protein, as tested on
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get the deal they intended, and the
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Cases and Materials W.W.W. ASSOCIAT
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do so because of some identified am
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The truth is that whatever virtue a
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Absent strong public policy conside
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FRIGALIMENT IMPORTING CO. v. B.N.S.
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persuasive if sustained by the reco
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and there is force in defendant’s
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RANDOM HOUSE, INC. v. ROSETTA BOOKS
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language of the grant was broad, en
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F.3d at 1095, would conclude that t
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When Hurricane Rubin strikes the lo
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the business. The contract was sile
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party argues ambiguity), the loan f
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accordance with the terms of this c
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of the advance payments, or the num
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imbibe alcoholic beverages and stil
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significant satisfied requirement o
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TOWN OF FAIRFIELD v. D’ADDARIO Su
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damages. The notice of Kant’s act
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who had turned down lucrative offer
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were to suggest some express provis
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notice of ninety days. The plaintif
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Review Question 2. What was Judge C
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exercising discretion under the con
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NANAKULI PAVING AND ROCK CO. v. SHE
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§ 490:1-102(2)(b). The drafters of
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trade existed in Hawaii in 1969 and
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1978) (unpublished opinion) (holdin
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Plaintiff does not contest its stat
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product. The concept of “merchant
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discovery by defendant of the defec
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Unfortunately, Plumber’s work doe
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An Introduction to PERFORMANCE AND
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doctrine, so that close-enough perf
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the number of joists used in all th
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JACOB & YOUNGS, INC. v. KENT Court
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transgressor must accept the penalt
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was for requiring this kind of pipe
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The evidence is undisputed that the
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eing a new roof. We are not prepare
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This case is simple if the perfect
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yacht remained located at SIYS’ f
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happens by mere operation of law; s
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Problems Problem 21.1 Actor is a ve
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processor for the same price as the
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venue. Under Paradine v. Jane, this
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At trial, the court allowed IH’s
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In order for a supervening event to
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The court interpreted this passage
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economic circumstances sufficiently
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A cancellation order given by her o
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e entitled to judgment. They certai
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Page 478 and 479: Following the closing of the above-
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Page 482 and 483: Canal, across the Mediterranean thr
Page 484 and 485: An Introduction to REMEDIES We now
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Page 488 and 489: multiplication and (very rarely) di
Page 490 and 491: It was also erroneous and misleadin
Page 492 and 493: and we turn to the question of whet
Page 494 and 495: testified that the total gas, oil,
Page 496 and 497: BRANDEIS MACHINERY & SUPPLY CO., LL
Page 498 and 499: PEEVYHOUSE v. GARLAND COAL & MINING
Page 500 and 501: explanation as to why a measure of
Page 502 and 503: work; however, where the contract p
Page 504 and 505: clear and unambiguous and the parti
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Page 508 and 509: ___________________________________
Page 510 and 511: Nevertheless, the English courts he
Page 512 and 513: perform the work. As Lee failed to
Page 514 and 515: UNITED STATES ex rel. COASTAL STEEL
Page 516 and 517: emanded for those findings. When th
Page 518 and 519: the substance is that the plaintiff
Page 520 and 521: the agreement would continue on a m
Page 522 and 523: Review Question 7. Note the paralle
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Page 528 and 529: ___________________________________
Page 530 and 531: Restatement (Second) of Contracts s
Page 532 and 533: Harrahs brings the instant action a
Page 534 and 535: contest payment for same if constru
Page 536 and 537: This is in accord with the earlier
Page 538 and 539: Defendant’s sole defense to this
Page 540 and 541: particular. Certainly, none of the
Page 542 and 543: sustained where, from the nature of
Page 544 and 545: ut will be happy to try to help in
Page 546 and 547: the full $7,500 price of admission
Page 548 and 549: Problem 25.2 Mina is a second-year
Page 550 and 551: ___________________________________
Page 552 and 553: other types of specific performance
Page 554 and 555: imposed as the remedy for breach of
Page 556 and 557: certainty, then S&M should be compe
Page 558 and 559: There is simply no requirement in t
Page 560 and 561: “other proper circumstances” th
Page 562 and 563: fence plaintiff erected to discoura
Page 564 and 565: y no means certain, at the time of
Page 566 and 567: cannot use that method of self-help
Page 568 and 569: contract price of $533,000) that La
Page 570 and 571: teacher resigned at the beginning,
Page 572 and 573: eaching its lease with Perez by the
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An Introduction to CONTRACT NONPART
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fraud, mistake, and illegality. If
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may be the diversity of opinion els
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given him by the will for a particu
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since Lawrence v. Fox in a desire t
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workers’ compensation benefits),
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to divide a lawyer’s loyalty betw
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Review Question 9. Lawyers do many
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Problems Problem 27.1 Hank and Hild
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interested in jumping into such a b
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limitations barred the claims. She
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assigned their claim to recover the
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application to this contract as it
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A breach of contract has been defin
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moved to Arizona and had no further
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It is evident from the express lang
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contracted to assume, and the assig
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March 1 for the conveyance of Purpl
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