October 27 Briefs and Notes

October 27 Briefs and Notes - October 27, 2008 Chapter 3...

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October 27, 2008 Chapter 3 Remedies 1. Damages A. Introduction The injured part has a right to damages based on his expectation interest as measure by: The loss in the value to him of the other party’s performance caused by its failure or deficiency, plus Any other loss, including incidental or consequential loss, caused by breach, less Any cost or other loss that he has avoided by not having to perform. B. Measuring Expectation Damages Give you what you expected, as if D had fully performed on their promise, loss profits, out of profit expenses. If we give you your expectation, that means legally the contract has been carried out. Expectation Interest: Lost profit may be something that would have been a direct result of the contract. Profit you would have made as a consequence of the contract. Reliance interest: P has in reliance of the contract, put them in the position they were in before the contract. Status quo, ante. Three Kinds: Expenses the Non-B had to 3 rd parties directly required by the K Expenses with 3 rd persons incurred as a consequence of the breach Assumed expenses (non recoverable expectation because it would be double dipping, but if you don’t get expectation damages, you can recover the assumed expenses) If non breacher has control of PP, then reliance Restitution Interest: Equity, Fairness. Breacher should not keep money because that would be improper. If Breacher has control of money in PP, the rest. Two Kinds: Money paid by the non-B to the B Assumed expenses Damages: Expectation Damages: Money relating to the expectation interest (Lost profit), reliance interest and restitution interest. (MOST MONEY, if you can’t get this, go for reliance damages) How much cash do you have to give to make them a whole Diminution of value: Economic waste to give someone their expectation, what wasn’t done was incidental, minor, secondary.
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Reliance Damages: out of pocket expenses as a direct result of the K (Monies paid to a 3 rd party that is directly required by the K (construction)) or as a consequence of the K (pain and suffering from 2 nd operation, or humiliation), and restitution damages. If you don’t get expectation interest, you can recover the assumed expenses. Restitution Damages: Money you will take away from the B, has the breacher earned this money? If yes then it is assumed (Doctor’s fee). Assume Expenses: Survey for land (Reliance) Mortgage processing (money paid to bank to start the mortgage) (Reliance) Pain and suffering from the 1 st operation Hospital Charges Anestistist expenses Doctor’s fee from 1 st operation Deductions (Losses Avoided): Money paid to the breacher by the non-breacher Salvaged Hawkins v. McGee Supreme Court of New Hampshire, 1929 Law: Facts: Mr. Hawkins met with Mr. McGee, a doctor, to repair some scar tissue on his hand. McGee promised Hawkins a “hundred percent good hand.” Following the operation, Hawkins’ hand became
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October 27 Briefs and Notes - October 27, 2008 Chapter 3...

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