American Contract Law for a Global Age, 2017a

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Restatement (Second) of Contracts states the typical rule: If a non-breaching party can avoid breach-of-contract damages “without undue risk, burden, or humiliation,” but fails to do so, it will not be awarded those damages. Lawyers and courts sometimes refer to this concept as the “duty to mitigate,” but you should understand that this is not a “duty” in the sense of being an affirmative obligation such as the duty of ordinary care in negligence law. A party is free to not mitigate its damages, but the cost of it doing so is that it will not be awarded those damages it could have avoided. Certainty. Our final limiting doctrine is very easy to state but somewhat challenging to apply. Section 352 of the Restatement (Second) of Contracts provides that “[d]amages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.” What exactly does “reasonable certainty” mean? Where buyer Burge’s new business venture suffers because of seller Snyder’s contract breach, proving expectancy damages can be quite difficult because of the certainty test. Burge might claim that his line of collectable law professor figurines would have generated enormous profits if only Snyder had delivered the rare marble required to make them. Can Burge prove his claim in a way that rises above the level of pure (and self-interested) speculation? Application of this test ends up being very fact specific and allows for a great deal of creative advocacy by lawyers. _____________________ A. The Foreseeability Limitation Cases and Materials SOUTHERN ILLINOIS RIVERBOAT/CASINO CRUISES, INC. v. HNEDAK BOBO GROUP, INC. United States District Court for the Southern District of Illinois 2007 U.S. Dist. LEXIS 53776 (No. 03-CV-4215-JPG) GILBERT, U.S.D.J. This matter comes before the Court on a motion for partial summary judgment on the issue of liability for plaintiff’s fire watch expenses filed by defendant Hnedak Bobo Group, Inc. (“HBG”). The plaintiff, Southern Illinois Riverboat/Casino Cruises, Inc. (“Harrahs”), has responded to HBG’s motion and HBG has replied to the response. Harrahs and HBG entered into an agreement on June 29, 2000, under which HBG agreed to design the docking facility for a riverboat casino Harrahs planned to build on the Ohio River in Metropolis, Illinois. Harrahs wanted to replace the casino ______________________________________________________________________________ 522 CHAPTER VIII: REMEDIES
it was operating on the site because it was in very poor condition. The parties’ contract (the Agreement) contained several provisions dealing with code compliance. Among other things, HBG agreed to assist Harrahs “in the filing of the required documents for the approval of governmental authorities having jurisdiction over the Project” and to revise “the drawings, if necessary for such approval.” The Agreement also provides that, “Prior to the commencement of construction, [HBG] shall provide documentation to [Harrahs] that, in the professional judgment of [HBG], all plans specifications and drawings conform to all applicable governmental regulations, statutes and ordinances, and the improvements when built in accordance therewith will conform to applicable regulations.” Pursuant to the Agreement, HBG designed a dock with four ramps providing access to the riverboat. HBG eventually determined, after employing an independent code consultant, that a cheaper, two-ramp design would satisfy the applicable codes and regulations. Upon review, Harrahs agreed to the two-ramp design. On March 23, 2000, HBG, its code consultant, and Harrahs met with a representative of the State Fire Marshal to review the two-ramp plan. The Fire Marshal’s representative orally confirmed that the two-ramp plan complied with applicable fire code. He declined, however, to provide written approval of the design because it was his policy to withhold such approval until he conducted an inspection of a completed facility. HBG completed the dock in August 2001. On August 6, 2001, Harrahs moved the old boat to the new dock and continued operating the old boat there until the new boat arrived. The Fire Marshal inspected the old boat/new dock facility on August 24, 2001, and concluded that it failed to meet code because of ingress and egress problems. The Fire Marshal refused to certify the structure and told Harrahs it had to maintain a fire watch if it intended to continue its operations. Harrahs chose to keep the facility open and to maintain the fire watch. 1 Once the new boat arrived on September 10, 2001 and its connection to the new dock was complete, the Fire Marshal inspected the set up and concluded that the facility needed additional ramps to comply with code. He concluded that the casino could not remain open unless Harrahs continued to maintain a fire watch. After an abortive appeal, Harrahs decided to build a third ramp. HBG claims Harrahs asked it and Thompson to submit plans for building the third ramp. HBG claims Harrahs chose to go with Thompson and fired HBG. Harrahs, on the other hand, contends that HBG continued to be involved with the third ramp until its completion. 1 [By the court] Because of the code violations, Harrahs had to pay local firefighters to keep a fire watch on the boat 24 hours a day until it attained compliance with applicable codes. ______________________________________________________________________________ UNIT 25: LIMITS ON DAMAGES 523
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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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performance is excused when unfores
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caused to communications and transp
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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 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
Page 524 and 525: product that would be fully functio
Page 526 and 527: car to the Country Music Museum for
Page 528 and 529: ___________________________________
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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Page 576 and 577: 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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American Contract Law for a Global Age, 2017a

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