INTRODUCTION TO REMEDIES
R §1: a contract is “a promise or set of promises for the breach of which the law gives a remedy, or the
performance of which the law in some way recognizes a duty”
R § 2(1) “manifestation of intention to act or refrain from acting in a specified way, so made as to justify the
recipient of the promise in understanding that a commitment has been made”
Whether a contract is enforceable is determined at the time of exchange.
UCC §1-201(3): “agreement” means the bargain of the parties in fact, as found in their language or inferred
from other circumstances, including course of performance, course of dealing, or usage of trade
UCC §1-201(12): “Contract” means the total legal obligation that results from the parties’ agreement as
determined by the UCC as supplemented by any other applicable laws
UCC §2-104: Merchants: fairly flexible definition; if someone represents that they have skill or knowledge then
they will be considered a merchant by law
UCC §2-105: Goods: all things which are movable at the time of the contract
TYPES OF CONTRACTS
-Express Contract: the parties manifest their agreement by words, whether written or spoken
oReasonable excuse may exist when initial contracting was impracticable (i.e. aid given to
unconscious patient who couldn’t have consented to contract)
-Contract Implied in Fact: a contract established by conduct (see Taco Bell)
oWhere intention of parties not expressed, but agreement implied or presumed from conduct,
which, according to ordinary course of dealing and the common understanding of man, show
mutual intent to contract
- Option Contract: promise to hold the offer to sell open until the end of a period of time specified for
exchange of money
- Bilateral K: a promise for a promise – binding upon formation of contract
oStatements of future intent that commit the parties to doing something in the future
-Unilateral K (“if” contract): a promise for an act – binding if and when the services are rendered
oTakes the form usually of something like a reward offer
oEx. If you find my dog and return her to me, I will pay you $500
-Void Contract: agreement has NO legal effect
-Voidable Contract: one party may either enforce or not enforce
-Unenforceable Contract: no immediate right to judicial relief, but some legal status – may be
converted into fully binding contract by act of one of the parties
FORMS OF DAMAGES
-Expectancy: P ex post whole (offset expected costs) – damages what you would expect at time of
contract – put party in position they were in if contract were performed
-Reliance: ex ante whole (before breach) – measured from time of breach, brings P back to position prior
to breach had it never occurred (what $ they spent relying on this K)
-Restitution: D ex post whole – puts D back where they would be had they not breached
oBenefit must be conferred, must be measurable, must be able to be returned
-Disgorgement: forces D to “disgorge” all profit from breach (D ex post whole); usually when D
behaves egregiously
-Injunction: “specific performance”; available if damages are inadequate or immeasurable
-Punitive: generally not available for breach of contract, you get commercial loss not punitive damages
FORMATION OF A CONTRACT
