Gergen law review outline - I. Central Principles What...

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I. Central Principles What promises does law enforce? 1. Is there basis for enforcing promise? Consideration Promissory estoppel 2. Was there assent ? Has D voluntarily undertaken a contractual obligation, or lead someone to believe he’d voluntarily undertaken a contractual obligation? 3. Did K contain required formality ? Statute of Frauds indefiniteness Remedy Remedy is function of harm suffered by Π . *Expectation = put Π in as good a position as would have been upon performance Breach is what caused the harm. court awarded reliance (pain/suffering, ill effects of operation). Should be expectation damages (value of good hand - value of hairy hand): wrong was the breach, not the agreement. if remedial cost > loss in market value, choose value unless interest in the promised portion justifies the larger reward . (Hawkins’s hand: personal value not reflected in mere market value. Privately constructed dream home). Peevyhouse : filling in dirt pits would cost $29K, but only raise value by $300. Goal is to adequately compensate P by restoring him to original position, at the least cost to D. Goal of damages is to make promisee whole, not punish breacher. principle of efficient breach: efficient to give goods to those who value them most + minimize transaction costs, so breach K if can get more profit, because that shows third party values it more, as long as P compensated. Reliance = put Π in position he’d have been in had promise not been made making promise was what caused harm Sullivan v. O’Connor (nose job went bad): reliance b/c (1) expectation could be excessive, (2) hard to evaluate expectation (what is value of perfect nose?) Restitution = D unjustly enriched at P’s expense, and must disgorge benefit he gained from K 1. Getting disgorgement (D’s profit from breach) a) profit as best measure of uncertain expectations b) restitution: “profit must be derived from D’s use of P’s property or D’s commission of a wrong against P” 1
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Moore v. Regents : doctor cures P, uses waste material from P’s body to make serum, sells for profit. P not worse off, but D profited from breach of fiduciary duty, so P entitled to restitution. Profit is best measure. 2. Separate remedy for undoing defective transfers Limit application: not for selfish intermeddlers, volunteers, but for transfers under Ks that turned out to be unenforceable. Does not step in to help P who acts to assert own interests + thereby indirectly benefits D. EX: in pumping own mine, pumped out D’s mines too. 3. Alternative remedy upon breach a) on material breach, promisee may choose to rescind K and sue in restitution for value of what he gave to breaching promisor this is not suit for breach of K and expectation damages, but a suit in restitution. So expectation principle doesn’t apply: we may put promisee in better
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Gergen law review outline - I. Central Principles What...

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