K Remedies - MBE

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Author:
stac8199
ID:
158091
Filename:
K Remedies - MBE
Updated:
2012-06-10 17:59:36
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Remedies
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K remedies for MBE
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  1. What are the different type of monetary damages from which an aggrieved party may select?
    • (1) expectation damages
    • (2) reliance damages
    • (3) restitutionary damages
  2. Which form of monetary damage is the default award courts grant to aggrieved parties?
    expectation damages
  3. An award of expectation damages means that the aggrieved party is entitled to what?
    the amount that will restore him to the position he would have been in had the K been fully performed
  4. What is the formula for calculating expectation damages?
    loss of value of the breaching party's performance + any incidental and consequential costs generated by the breach - any payments received - any costs saved as a result of the breach
  5. In what situations may an aggrieved party be unable to recover the full amount of expectation damages?
    • (1) where the cost of performance greatly exceeds the market value of the performance
    • (2) where expectation damages can't be calculated with reasonable certainty
    • (3) where damages are unforeseeable
    • (4) where damages can be mitigated
  6. What are reliance damages designed to do?
    restore the aggrieved party to the position he was in prior to the K
  7. What is the formula for calculating reliance damages?
    any expenditures made in preparation for performance or in actually performing - any loss that the breaching party can prove the aggrieved party would have suffered even if the K has been fully performed
  8. When may reliance damages be available?
    when expectation damages aren't available such as when they aren't too uncertain or speculative
  9. The restitutionary damages interest is what?
    the value of the benefits conferred upon the other party in the X
  10. The aggrieved party's restitutionary interest will be measured, in the court's discretion and as justice requires, by either:
    • (1) reasonable value/cost of the benefit conferred; or
    • (2) extent to which the other party's property has increased in value b/c of the performance rendered
  11. An aggrieved party is likely to elect to recover restitutionary recovery when it would exceed the amount recoverable based on his expectation interest which is most likely to occur when?
    in the context of a losing K
  12. Are restitutionary damages available where the aggrieved party has partially performed under the K?
    yes
  13. Are restitutionary damages available where the aggrieved party has fully performed?
    no
  14. What are liquidated damages designed to do?
    provide for damages of the parties' own choosing in the event of a breach
  15. A liquidated damages provision is enforceable if the court finds what?
    it to be a valid liquidation damaegs clause designed to compensate for breach
  16. A liquidated damages provision is uneforceable if the court finds what?
    it constitutes a penalty designed to punish a breach
  17. What is the 3 prong test for determining whether a clause in a particular K is a valid liquidated damages provision?
    • (1) Did the parties intend for the clause to operate as a liquidated damage clause or as a penalty?
    • (2) Was the clause reasonable at the time of the K in relation to the anticipated harm?
    • (3) Was the clause reasonable in relation to the harm and losses that actually occurred due to the breach?
  18. When a particular clause satisfies the anticipated harm prong of the liquidated damages provision test but not the actual harm prong, what is the majority rule?
    the clause is still valid and enforceable
  19. When a particular clause satisfies the anticipated harm prong of the liquidated damages provision test but not the actual harm prong, what is the minority rule?
    the clause is an uneforceable penalty
  20. When a court concludes that a liquidated damages provision is in fact a penalty, what is the result?
    the clause will be stricken from the K and damages will be recoverable in accordance with all the default rules of remedies and damages
  21. Under the UCC, what does the S right to recover depend on?
    whether the goods have been delivered to and accepted by the B
  22. If goods have been delivered to and accepted by the B, what is the S entitled to under the UCC?
    the K price
  23. If the goods haven't been delivered to and accepted by the B either b/c B has wrongfully rejected them or repudiated, what is the S entitled to if the S has resold the goods?
    difference b/t the K price and the resale price
  24. If the goods haven't been delivered to and accepted by the B either b/c B has wrongfully rejected them or repudiated, what is the S entitled to if the S hasn't resold the goods?
    difference b/t the K price and the market price
  25. What constitutes a lost volume S?
    one whose supply of goods exceeds the demand for the same
  26. The UCC permits lost volume S to recover what?
    the profit they would have made on the lost sale
  27. To recover lost profits, the S must be able to show what 3 things?
    • (1) that he could have made the sale to both the breaching B and resale B
    • (2) it would have been profitable to make both sales
    • (3) he probably would have made the additional sale even absent the B breach
  28. What are incidental damages in the S context?
    costs associated with getting stuck with the goods as well as the cost of resale
  29. Whether or not the S resells, he is also entitled to recover incidental damages however his damages will be reduced by what?
    any amount reflecting expenses avoided on account of the breach
  30. Under the UCC, the B's right to recover depends on what?
    whether the B has covered
  31. If the B covers, what are his damages?
    difference b/t the K price and the cover price
  32. Are sellers entitled to CD under the UCC?
    no
  33. If a B doesn't cover, what are his damages?
    difference b/t the K price and the market price
  34. What are incidental damages in the B context?
    costs associated with securing cover
  35. What are consequential damages in the B context?
    • peculiar costs arising to the B b/c of a particular need or use for the goods in question such as lost profits
    • these must be foreseeable!!!
  36. What will the B damages be reduced by?
    any expenses avoided b/c of the breach
  37. If the B is entitled to damages based on accepted nonconforming goods, what is the measure of those damages?
    the value of the goods K for and the value of the goods received
  38. What are the available equitable remedies?
    • (1) SP
    • (2) negative injunctions
  39. What is SP?
    remedy by which a breaching party is order to perform
  40. SP is only available to an aggrieved party when?
    a monetary award is considered inadequate
  41. Money damages are generally presumed to be inadequate when a party is purchasing either of what?
    • (1) unique objects
    • (2) real property
  42. What are the factors used by the judge when deciding if SP is appropriate?
    • (1) aggrieved party has clean hands
    • (2) terms of the K are fair
    • (3) terms of K are sufficiently definite
    • (4) performance can be reasonably assured
    • (5) SP in the public interest
  43. For what kinds of K is SP not available?
    • (1) personal services
    • (2) K which require ongoing cooperation b/t parties
  44. Under the UCC's uniqueness requirement, SP is allowed for a B who has done what?
    adequately searched but unable to find reaosnable substitutes and therefore unable to cover for the breach of the S
  45. Under the UCC's capable of immediate performance requirement, SP is allowed in what kinds of cases involving long term relationships that require cooperation b/t the parties?
    output and requirements K
  46. What are negative injunctions?
    orders by the court prohibiting the breaching party from taking particular action
  47. What is the most common and most important area for negative injunctions?
    the employment setting
  48. When an EE is under K for a specified period of time and the EE breaches the K be departing before the end of that period, a negative injunction will be available to prevent the EE from competing if what?
    the EE's services are unique or extraordinary
  49. The validity of non-compete clauses will depend on what 3 factors or circumstances?
    • (1) is there a significant business justification for enforcing the post-employment restraints?
    • (2) is the scope of the CNC reasonable in both duration and geographical reach?
    • (3) is there an express provision in the K?
  50. What types of interest may a party recover under a claim of PE?
    • (1) expectation damages
    • (2) reliance damages
    • (3) choose on a case-by case basis and tailor the remedy to the injustice at issue
  51. When may restitution be available to a party even when the other party hasn't breached a K?
    • (1) benefits conferred under a failed K
    • (2) benefits conferred by a breaching party
    • (3) emergency benefits conferred by a health care professional
    • (4) benefits conferred by mistake
  52. The general rule is that a person who bestows benefits w/o request from the benfitting party is considered what?
    an officious intermeddler who won't be entitled to any recovery since there was no opportunity to decline
  53. What is the exception to the general rule that a person who bestows benefits w/o request from the benefitting party is entitled to no recovery?
    doctors and other health care professionals who provide emergency healthcare to a patient who is unable to consent
  54. When a benefit is conferred by mistake what factors are considered to determine if restitution should be awarded?
    • (1) blameworthiness of the error
    • (2) whether the recipient was aware of the error in time to prevent it
    • (3) whether the recipient availed himself to the benefits at issue
  55. What are the 2 forms of agreed-to remedies in K?
    • (1) liquidated damages provisions
    • (2) provisions limiting or excluding damages
  56. What are the different types of exclusive remedies provisions?
    • (1) provisions that limit or alter the measure of damages available
    • (2) exclusive remedies such as limts to repair or replacement of defective goods
  57. Exclusive remedies provisions are generally enforceable unless they what?
    are unconscionable or fail their essential purpose
  58. Are limitations of consequential damages for personal injury OK in the case of consumer goods?
    no they are prima facie unconscionable

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