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1) Was there a k?

a) Enforceable?
i) Consideration?
(1) Why do we care? K are risk-shifting devices.
(a) Once youre in a k! youve lost the right to change your "ind for free.
(b) #akes k a legally enforceable agree"ent.
(2) $efinition- %ought for by &ro"isor ' given by &ro"isee. #ust be
bargained for.
(a) () * +,.
(b) Can be a &ro"ise or &erfor"ance
(i) -erfor"ance e.uals
,. /n act other than a &ro"ise
(. / forbearance
0. Creation! "odification or destruction of a legal relationshi&
(ii) -erfor"ance does not e.ual
,. %o"ething already done
(. %o"ething not sought by the -or
(iii) 1ow do we 2udge whether it was a legit &ro"ise? 3Fiege v. Boehm4
,. 5ou can &ro"ise to not assert a clai" as consideration! even if
that clai" is false if you use good faith
a. %ub2ectively! you believe the clai" is true
b. Ob2ectively! a reasonable &erson could believe the clai"
c. Court in that case ca"e u& w6 test of honesty and a
reasonable degree of intelligence.
d. () *+73,43b4
e. 8he hell is good faith?
i. 9se an e:clusory &rinci≤ Everything that is not bad
faith
ii. %niff test; /nything s"ell rotten?
(iv) <eed to check that &ro"ise was not illusory
,. =llusory > -arty gets to change its "ind for free
a. 8o not be illusory! need to be actual! in good faith and
reasonable.
b. 9CC (-0?@
(. %atisfactory clauses A =llusory?
a. 8hese are risk shifters. Check for consideration 3e.g. down
&ay"ents4
b. #utuality of obligation not re.ed
c. #ust be acce&ted and re2ected on good faith
0. )e. clauses A =llusory?
a. Oee has o&tions on a )e. clause
i. 5es
ii. <o
iii. Bi"its 3Ceiling or Cloor4
iv. Esti"ate 3/llow for fluctuations4
b. )e.uire"ents "ust be
i. =n Dood Caith
ii. /ctual needs 3<o stock&iling4
iii. Doverned by 9CC (-0?@3,4
7. Court often reads in i"&lied &ro"ises and uses <o da"n
fool test
a. =n Mattei v, Hopper! i"&lied that Euyer will use good faith
in checking leases
i. =n "atters of aesthetics! taste of 2udg"ent! we use the
sub2ective standard
ii. 8his &art of the o&inion is only dicta thoughF
b. =n Gulf Oil! i"&lied that E/B will kee& its re.s reasonable.
c. =n Wood v Lucy! i"&lied reasonable efforts
i. 9CC (-0?@3(4; Obligation to use best efforts in
re.6out&ut or e:clusive license ks.
ii. Eest Efforts > DC G $ue $illigence6)easonable Efforts
(c) <O %9C1 81=<D as sufficient consideration.
(i) =t either is or it isnt.
(d) 1ol"es idea of )eci&rocal Conventional =nduce"ent
(i) %o"ething a reasonable &erson would be induced to do
(ii) Consideration does <O8 have to be the O<B5 "otivating force
ii) =f no consideration! then gratuitous &ro"ise.
(1) Drat -ro"ise does not e.ual gift.
(a) E.uals gift in the future
(b) Dift in the &resent "eans Oee has &ossession. Oor cant get it back.
(2) <or"ally unenforceable
(3) E:ce&tion; )eliance
(a) )eliance is <O8 necessary in order to enforce a k
(b) Eut if there is no consideration! it "ight "ake the k enforceable
(c) 8o enforce;
(i) )eliance needs to be reasonably foreseen
,. <one of "y grandchildren have to work! neither do you
a. )easonable reliance Huit 2ob
b. 9nreasonable 8ake Baw %chool out to @
th
%treet
(. )easonably foreseen &rotects the -or fro" outlandish
reliances
(ii) -ee "ust go along with what the -or wants
(iii) =f , ' ( satisfied! then -or is esto&&ed fro" going back on his
&ro"ise.
(d) () * I?
(i) =f -or reasonably e:&ects an action or forbearance! and -ee does
act6forbearance! then to avoid in2ustice the re"edy granted for
breach "ay be li"ited as 2ustice re.uires
(e) Conse.uential $a"ages
(i) #r. Wells refuses to &aint %okolows house. =f tenants refuse to
rent house b6c of ugliness! Wells only liable for these conse.uential
da"ages if they were reasonable foreseeable.
(ii) =f the granddaughter .uit her 2ob for , day! &ro"ise is enforceable!
but she only gets , day &ay.
(4) E:ce&tion; )estitution
(a) #ay be available in k! or where &arties thought there was a k! but k
unenforceable 3e.g. %oC w6o writing4
(b) 9lti"ate fallback &osition
(c) /llows / to recover un2ust enrich"ents he gave to E. $isgorges E of
the benefits.
(i) $oesnt actually "atter if E is "ade better off.
,. / o&erates co"&licated surgery on E. E dies w6o &aying before
surgery over. / entitled to restitution b6c surgery gave E an
increased &robability of living.
(. / &lants bushes on Es lawn under su&&osed k. 8here is no k!
and E could have gotten bushes for chea&er. / entitled to
restitution.
(ii) $oesnt "atter if E cannot consent. E98F
,. D); 9sually no recovery in this case. / is good %a"aritan.
(. E:ce&tions;
a. -rofessionals acting w6in their skill
b. E:cessively e:&ensive or burdenso"e circu"stances
0. =n this case! k is inferred by law! not by facts. Huasi-k.
a. Huantu" "eruit $a"ages to be &aid what the service
is worth.
b. Co"& "ay be at /s nor"al rate! or at the nor"al rate of a
reasonable /.
(d) Denerally cannot recover fro" Es friend! C
(i) C usually does not have &rivity of k with / 3ie k was between /
and E! C had no &art4
(ii) =t does not "atter if C now has the un2ust enrich"ent 3e.g.! shrubs
on Es land now belong to C4
(iii) Can only have a Co/ against C when
,. /ll o&tions against E are e:hausted and unsuccessful
(. =f C consented or e:&ected the i"&rove"ents
(e) #istakes are generally not un2ust enrich"ent
(f) Co"&ensation
(i) )easonable value of the benefit conferred
(ii) )un an e:a"&le. %hrubbery.
,. O&tion ,; C#J of increase in land worth. K7+L.
(. O&tion (; )easonable value of obtaining shrubbery. KL??.
a. What if O&t, > K@??? =s it still a valid co"&?
i. <o&e. K &rice is a ceiling. We &ut / in as good a
&osition as full &erf! no "ore.
b. What if E could have s&ent K0?? to get shrubs?
i. )estitution is "eant to disgorge E of benefits. Dood
chance / will be li"ited to K0??.
b) %ale of Doods?
i) %ale defined by 9CC (-,?@
(1) %ale is a conveyance of title for a &rice
ii) Doods defined by 9CC (-,?L
(1) #oveable at ti"e of =$
(2) Doods &art of land?
(a) Check 9CC (-,?+ to see if they really are goods
(i) E:; =f oil taken out of land and sold! it is a %oD and not a %ale of
-ro&erty
(b) -redo"inant factor test
(i) =f -C > goods 9CC
(ii) =f -C > services CB
iii) =f %oD! use 9CC
(1) %u&&le"ent with CB through 9CC ,-,?03b4
iv) Dood Caith
(1) =n all cases! defined by 9CC ,-(?,3,I4
(a) 1onest in Cact 3%ub2ective4
(2) =n cases with "erchants! defined by 9CC (-,?03,43b4
(a) 1onest in Cact /<$ so"e ob2ective standard of the &ractices of the
trade
v) #erchants
(1) %o"eone with knowledge of the &ractices of their business and is acting in
that ca&acity
(a) Duy working in the "ailroo" of #icrosoft is a co"&uter "erchant
(b) CEO of DE buying fishing tackle is not a "erchant
c) Eilateral or 9nilateral?
i) Eilateral > -ro"ise for -ro"ise
(1) K for"ed at the e:change of &ro"ises
ii) 9nilateral > -ro"ise for -erfor"ance
(1) K for"ed u&on co"&letion of &erfor"ance
(a) -artial &erfor"ance yields no da"ages 3but see reliance4
(2) Oee doesnt have to give a &ro"ise
(a) Once Oee starts &erfor"ance! O is not revocable.
(i) 8he hell does starting &erfor"ance "ean?
d) Offer?
i) Was an offer "ade in the first &lace?
(1) #ental assent of the &arties is not re.uisite for the for"ation of a k.
(a) <O "eeting of the "inds
(2) 8est for offer is ob2ective and sub2ective
(a) Ob2ective; / reasonable &erson in the role of the Oee would believe
there was an offer
(i) 8his test is "eant to &rotect an innocent &arty. Cannot be used to
&rotect a bastardy one 3ie Oee knows its a 2oke4
(b) %ub2ective; 8he Oee hi"self believed that there was an offer.
(c) Eoth these tests "ust align for there to be an offer
ii) 8he hell is this offer of which you s&eak?
(1) O allows Oee the &ower to create a contract by "erely saying = acce&t.
(a) / letter that says =ts not &ossible for "e to sell 9<BE%% M!5!NF is
<O8 an offer that Oee can acce&t by doing M!5!N.
(b) /sking6Diving esti"ates are <O8 offers
(2) Denerally! Dreater &recision of e:&ression "ay be re.uired! and less hel&
fro" the court given! when the &arties are "erely at the threshold of a k
Orather than o&erating w6in a kP
(3) D); /dvertise"ents not offers! b6c they dont s&ecify .uantity to be sold
or who can acce&t. %a"e with &rice .uotes.
(a) E:ce&tion; Clear! definite and e:&licit.
(i) , %tole! K,! first co"e first served > O
(ii) We .uote youFKK... for i""ediate acce&tance > O
,. 8his works b6c it was res&onding to an in.uiry into - for a
s&ecific H! so H was ke&t intact
(iii) Dood M at &rice - while su&&lies last > O
e) 8er"ination of Offer
i) Ba&se of 8i"e
(1) =f a face-to-face conversation! O la&ses when conversation ends! unless
Oor wants otherwise
ii) )e2ection
(1) $ef- /n ina&&ro&riate res&onse to an O
(2) CO > )e2
(3) #ere bargaining Q )e2 O/sking HsP
(4) /ttaching conditions to / > )e2
(a) #=) under CB
(b) $oes not include i"&lied ter"s O8o& HualityRP
(c) 9CC does away w6 (-(?+
(5) Co""on law hy&o
(a) E sends O.
(b) % shi&s goods! but adds disclai"er. 8his is )e2 ' CO
(c) E uses goods. 8his is / of CO
(d) =f goods break! E loses.
iii) $eath of either &arty
iv) )evocation
(1) 9sually good if notice received before O
(a) Eut what the hell is )evocation?
(i) %o"e indication that youre not willing to go through with the
offer.
(ii) 8his doesnt even have to be ,??S. =f you say =" not really sure
about it any"ore! thats good enough for revocation
(iii) =f offer to the &ublic! can revoke by &osting in sa"e "anner as you
&osted the offer
,. $oes not need to reach everyone the offer reached
(b) What about when its indirect?
(i) 8here "ust be a contrary intention to offer by Oor
(ii) Oee "ust learn of this intention6conduct.
(iii) () ** 7(-70
(iv) %hould there be a diff btwn negotiating w6 a 0
rd
&arty and selling to
a 0
rd
&arty in ter"s of revocation?
(2) Eut what if O was irrevocable?
(a) /s long as Oee acce&ts w6in original irrevocable ti"e! / k.
(b) <eeds to be so"e consideration for this &ro"ise to kee& it o&en.
(i) 8hink of it as bargaining for a subsidiary &ro"ise to the "ain
&ro"ise.
(ii) Oee is buying ti"e to "ull it over.
(c) Writing.
(i) () * TI3,4
,. %igned is CB defn! not 9CC
(. -ur&orted Consideration is good enough
(ii) 9CC (-(?L
,. Cir" Offer &rovision
(. %igned Writing takes &lace of consideration
0. Only a&&licable to #erchants
7. =n a signed writing 3,-(?,30I44
L. #ust give assurance to hold offer o&en
@. 0 "onth li"it. <o E:ce&tions. <O<ER
+. =f no li"it stated! then use a reasonable ti"e.
(d) )eliance
(i) 9sually only available for unilateral contracts
(ii) -re&aring for &erfor"ance is not enough for reliance. #ust have
actually &erfor"ed to so"e e:tent.
(iii) () *7L only a&&lies to 9nliateral ks
,. What is tendering &erfor"ance?
a. 5ou owe so"eone "oney! you hold out a check to the" >
-erfor"ance 8endered
b. Can tender when &erfor"ance can occur in an instant
(. Can tender a beginning of &erfor"ance when &erfor"ance
takes ti"e
(iv) Why only &rotection for 9nis?
,. Oee in Eilateral can &rotect by saying = /cce&t.
(. Oee in 9ni needs not to be screwed over
(v) -rotection for Eilaterals 3li"ited4
,. () *T+3(4
(. #eant to &rotect sub-kors fro" Kors
a. Why not 2ust re. conditional k?
b. <ot &ractical. /ll negs at deadline.
0. =f sub-kors O says revocable! then () *T+3(4 <6/
7. Kor <O8 free to delay acce&tance of sub-kor bids
a. C/<<O8 bid sho&6cho&
b. =f bid cho&! the Kor )e2ects ' COs
L. 1el&s if Kor e:&licitly lists sub-Kor in bid to show s&ecific
reliance.
(vi) -re-Offer?
,. D); <ot &rotected
(. E:ce&tion; () *I? can &rotect &re-O reliance on grat &ro"ises
0. Hoffman v Red Owl A )ed Owls conduct so horrendous '
1off"an so co"&liant that Court needs to &rotect
7. <ote; Baw does not re. DC in <egotiation. Eoth CB and 9CC
(3) )evocation by 9nilateral "istake
(a) /&&ly when offer irrevocable and "istaken &arty co""unicates
"istake
(b) L factors for when to consider unilateral "istakes;
(i) =f the "istake is "aterial to the k
(ii) <ot the result of neglect of a legal duty
(iii) Enforce"ent of the k would be unconscionable
(iv) =f the other &arty can be &laced in the status .uo
(v) 8he &arty seeking relief "ust give &ro"&t notice of his revocation
and "ust restore the other &arty w6 everything he received under
the k.
(c) 9sually ha&&ens in construction bids b6c of ti"e li"its and
subcontractor bids.
(d) 8he law forgives clerical errors "uch "ore than it forgives 2udg"ent
errors.
(e) =f a reasonable &erson in the Oees shoes should have known that O
was the result of a "istake 3e.g. -rice too low4! then any k fro" / "ay
be unenforceable.
(i) 1owever! &rice swings in diff Os can be gigantic. 1ow necessarily
should Oee know when "istake?
(ii) What if Oee relies on low &rice and buys better e.ui&"ent in
other area 3lighting4?
,. Could hel& &ersuade that Oee knew it was getting a deal too
good to be true.
(f) Denerally "istaken &arty doesnt get "uch slack fro" the court.
(i) 8ry to find out other ways to acco""odate for your "istake. Cut
your &rofit "argin. %ee if you can lower other costs or
subcontractor bids.
(ii) Why this &olicy?
,. $ont want bait and switch.
(. 5eah! re"e"ber how = said = could "ow your lawn for K(??
8urns out = read the &rice of the "ower wrong. Donna be K(??.
(g) %ee () ** ,L,-,L7 for "istake.
f) /cce&tance?
i) /cce&tance Q k.
(1) Ks are legally enforceable. 5ou can acce&t a gratuitous &ro"ise.
(2) Eut if consideration! /cce&tance k.
ii) What does this / need to be?
(1) Oor can s&ecify whether / is a &ro"ise! &erfor"ance or either.
(a) /cce&ting only by &erfor"ance 9nilateral k.
(i) When Oee can acce&t by &erfor"ance! this includes the &ro"ise
to finish &erfor"ance.
(ii) 9nilaterals are handy in Contest6)eward sche"es and
-rinci&le6/gent &roble"s.
(b) /cce&ting by &ro"ise or &erfor"ance Eilateral k.
(c) %ee () ** L7 ' L@ for acce&tance rules on Ei69nilateral ks.
(2) #ust be 2udged fro" the &osition of a reasonable Oor
(i) / letter that says 5our order will receive our full attention! is
<O8 an offer
(ii) When that letter is sent in #ay! no re&ly into Uuly and Es order
can no longer be filed anywhere else! then that letter =% acce&tance.
,. Cause its 2ust not fair that the Oee was such a dick about it.
(3) D); %ilence is not acce&tance.
(a) )easoning; We want to &rotect the Oee. What if O "ailed and Oee
out of town?
(b) =f Oor says %ilence is /cce&tance and Oee takes hi" u& on that!
we should acce&t that acce&tance. 8he rule is "eant to -)O8EC8 the
Oee! so lets not let the D) $E%8)O5 hi"R
(4) 9CC has so"ething to say
(a) (-(?@3,43b4
(i) % can acce&t O by &ro"ise or by shi&&ing goods
(ii) Can even shi& non-confor"ing goods. 8his si"ultaneously acce&ts
and breaches k.
(iii) Can avoid this by "aking clear that n-c goods are an
acco""odation 3ie / counter-offer4.
(b) (-(?@3(4
(i) When &erfor"ance can > /! if Oor not notified w6in reasonable
ti"e! Oor can treat the O as la&sed before acce&tance.
(ii) )easoning; Oor needs notice. <o conflict w6 #ailbo: b6c #ailbo:
does not a&&ly to &erfor"ance.
iii) D); 8here needs to be notice of /.
(1) <otice does not have to be Oh look! we acce&ted.
(a) Could easily be Oh! look! were shi&&ing to"orrow and you better
da"n well &ay us.
(b) )eliance is <O8 <otice if you dont tell anybody about it.
(2) Oee "ust use reasonable diligence to notify
(a) #ailing a letter is &retty good.
(b) 5elling in the street is not! unless the Oor is in that street.
(3) E:ce&tion; When the Oor says otherwise.
(a) 8he Oor is "aster of the offer. 8herefore! he can set ter"s of what
will and what will not constitute acce&tance.
(i) %o"eti"es he "ay not e:ercise this &ower. -articularly when Oee
is the % and gives E a basic for" for an O.
(4) E:ce&tion; #ailbo: rule.
iv) 1ow "ust the / look?
(1) #irror ="age )ule 3#=)4
(2) 9CC (-(?+
g) #ailbo: rule
i) =t is the default rule when "ailing letters
ii) %erves to &rotect the Oee when the O is revocable. We want to encourage
reasonable reliance
iii) )e2ection! )evocation effective when received by Oor
iv) /cce&tance effective when "ailed by Oee
(1) E98 in O&tion k! / "ust be received by Oor in order to be effective
(2) =n O&tion k! no need to &rotect Oees reliance! has an established window
to acce&t
v) E:ce&tions
(1) Only a D)! Oor can change or eli"inate it in his O
(2) <6/ in =rr O
(3) <6/ if "ail is not an acce&table "ediu"
(4) <6/ if dealing with &erfor"ance O-ay"entsP
(5) Overtaking )e2ction O/cc %! )e2 %! )e2 )! /cc )P
(a) () *@0
(b) O /cced when / sent! unless Oor relies on )e2
(c) Oee "ay be esto&&ed fro" enforcing k if Oor relied
(6) Overtaking /cce&tance O)e2 %! /cc %! /cc )! )e2 )P
(a) () *7?
(b) O /cced when / received
(c) E6c Oee no longer needs the &rotection of #E).
(7) )e2 then /cc O)e2 %! /cc %! )e2 )! /cc )P
(a) <o K
(b) )e2ected when received. /cc that co"es afterwards is a CO
h) 9CC (-(?+
i) $esigned to &rotect original Oor
ii) 3,4 A Eli"inates #=)
iii) 3(4 A %e&arates out k for"ation fro" k ter"s
iv) 304 A /llows k to be for"ed by action! even if writings dont for" k
v) 1ow to read (-(?+
(1) $o the writings for" a k?
(a) <eed a definite ' seasonable e:&ression of /cc
(i) $efinite /cc Q /ny change in - or H
(ii) Written conf also works
(b) 8his is <6/ if /cc "akes add6diff ter"s e:&ressly conditional
(i) =f Oee uses /<5 O81E) B/<D9/DE! is <O8 e:&ressly
conditonal
(ii) #ust indicate that Oee is unwilling to continue unless Oor
assents
(2) 5es! writings "ake K
(a) (-(?+3(4
(b) /dd ter"s are treated as &ro&osals. Oor is not barred fro" agreeing to
these ter"s
(c) D); =f #erchants both! then /dd ter"s &art of k 9<BE%%
(i) O e:&ressly li"its /cc to ter"s of O
(ii) Oor ob2ects w6in reasonable ti"e or has done so &reviously
(iii) 8er"s "aterially alter K
,. Denerally! ter"s that are w6in trade &ractices are not "aterial
alterations
(. 8est; Will add ter" shock6har" Oor?
0. <otes 7 and L &rovide e:a"&les
(d) What if $iff ter"s?
(i) #a2ority view; Knock out rule 3Co""ent @4
,. Eoth ter"s fall out ' ga&-fillers of 9CC installed
(. 8his doesnt &rotect Oor though
(ii) )un Oees diff ter" through (-(?+3(4 3Co""ent 04
(iii) Conciliatory
,. (-(?+3(4 for diff ter"s in /cc
(. Knock-out for diff ter"s in Conf #e"os
0. #inority view though
(iv) $ro& out Oees ter"
(v) Eest %hot rule
(3) <o! /cc was E:&ressly conditional and not assented to.
(a) (-(?+304
(b) E:& Cond does not necc "ean Oee will win. =t "eans Oee can
walk away fro" deal =C no assent
(c) What is assent?
(i) =f Oor says We dont like ter"s ,! L and +! >V /ssent for ter"s
(! 0! 7! and @
(d) What are ter"s of this new k?
(i) 8er"s &arties agreed to in their writing
(ii) Off-the-rack ter"s of 9CC
(iii) <O8 any addl Oee ter"s
(iv) =C Oee has diff ter"s! 81E< <E=81E) Oor or Oee ter"s get in
i) 8er"s?
i) ="&lied -ro"ises
(1) )ead into any a&&arent illusory &ro"ise
(2) 9se good faith! sub2ective standard or co"bo sub26ob2 de&ending
(3) <o $a"n Cool )ule
ii) Warranties
(1) ="&lied Warranties
(a) #erchantability
(i) Doods will not e:&lode in "y face
(ii) Only read in if % > #erchant who deals in these goods Oe.g.
Cootlocker is not a "erchant for $is&lay Cabinet shoesP
(iii) 9CC (-0,7
(b) Citness for -articular -ur&ose
(i) Dlass for "y greenhouse will not kill all "y &lants
(ii) % "ust know of Es &articular &ur&ose
(iii) % "ust be in &osition to choose good to fit &articular &ur&ose Oe.g.
= want a #ilky Way that has &eanuts for "y ele&hants. 5ou cant
do it? $/#< 5O9RP
(iv) % does <O8 have to be a "erchant
(v) 9CC (-0,L
(c) Can be disclai"ed by 9CC (-0,@.
(i) $isclai"ing is a "aterial alteration.
(ii) #agic words > /s =s! With all faults
(iii) Otherwise! "ust be cons&icuous and "ention "erchantability
(iv) E:ce&tions;
,. =f before k! E e:a"ines or refuses to e:a"ine goods! no
i"&lied warranties w6 res&ect to what he could see
(. =W can be e:cluded or "odified during the course of dealing
(v) Huestions to ask;
,. =s disclai"er effective?
(. =s it &art of the k?
0. $o the warranties hel& the E?
(d) Can be read as a ter" of every offer unless s&ecifically "entioned
otherwise
(2) E:&ress Warranties
(a) /ny state"ent of fact about goods
(b) /ny &ro"ise about goods
(c) /ny use of sa"&le of "odel of goods
(d) O&inions are <O8 e:&ress warranty
(e) C/<<O8 be disclai"ed
iii) #aterial ter"s. -!H! $uration! etc.
(1) 9CC holds H sacrosanct
(2) =ts cool if these ter"s are uncertain. /s long as they can be esti"ated
3-osted -rices! Es re.s! when we get done4 the k is valid
j) =nter&retation and Evidence
i) -arol Evidence )ule
(1) / lot like %oC. Courts hostile to it as well.
(a) Essentially! if no &ro"ise in written k! then cannot &resent evidence of
&ro"ise before k
(b) /lways deals with a written k.
(c) Uust b6c you win -E) battle does not "ean ter" is in k. Uust "eans it
gets in as evidence. #ust &rove that se&arate k was "ade.
(2) K integration
(a) -artial v. Co"&lete
(i) -artial > %o"e final ter"s in k! but other final ter"s "ay be
elsewhere
(ii) =f -artial! then ter"s cant be contradicted! but they can be
su&&le"ented
(iii) Co"&lete > /ll ter"s in k! final and co"&lete
(iv) =f Co"&lete! then no contradictory or su&&le"ental ter"s
(v) 8hese are "atters of law. Courts usually wont find a k
unintegrated! unless the writing is a bunch of doodles
(b) Old analysis
(i) Court bars evidence. Books to writing itself to deter"ine whether k
is integrated.
(ii) 8raditional 8est; Would -arol Evidence naturally have been
included in the writing
(iii) Jery strict! not "uch gets in
(c) #odern analysis
(i) Court ad"its evidence. Books to writing and all the circs. Dives
effect to the &arties intent
(ii) Evidence should only be barred if factfinder would be "isled
(iii) #odern 8est; $id &arties intend their writing as an e:clusive
e"bodi"ent of their agree"ent?
(iv) #erger clause. =f "erger! the -arol Evidence irrelevant
(d) 5ou can always get in -arol evidence w6 regards to integration!
"eaning of writing and other stuff
(3) -rovisions
(a) () ** (,7 and (,+
(b) 9CC (-(?(
(i) Cinal > =ntegrated. <o contradictions
(ii) 1owever! can su&&le"ent or e:&lain by
,. Co$! 98 or Co-
(. Consistent addtl ter"s unless writing is co"&letely integrated
(iii) Only if -arol ter" would have certainly been included in writing
does the ter" not get in
ii) K inter&retation
(1) has to &rove that their inter&retation is the right one. -robably should
have s&ecified in the k.
(a) =n a close case! Court will find their was no O.
(b) 8o dis&rove! only have to "uddy the waters
(c) Court will often take issue away fro" 2ury and rule on it the"selves
(d) <ot so easy to diff btwn e:&laining and contradiciting a ter"
(2) () * (?, A Whose "eaning &revails
(a) D); =nnocent &arty &revails
(b) E98 if neither &arty knew61)8K of others ter"! then no k
(c) O) if both &arties knew of the others contradictory inter&! then no k
(d) =f both agreed on inter& that reasonable &erson would no! then it
de&ends on whether the Court uses Ob2 or %ub2 standard
(3) 9sage of 8rade > 1ow the ter" is used in the industry
(a) 5ou have to show that usage e:ists and that the other &arty should be
held to it as well
(b) 9CC ,-,?L3(4 and 304
(c) Other &arty is "e"ber of trade! held to usage regardless of %ub2
knowledge
(d) Otherwise! "ust know61)8K
(e) Can get in through -arol Evidence
(4) Jagueness v. /"biguity
(a) Jagueness > What the hell is a chicken?
(b) /"biguity > =s it the $ec -eerless or the Oct -eerless?
(c) One -rof says courts should only invalidate k if ter" is a"biguous!
never for vagueness
(5) 8raditional Jiew
(a) Dives &ri"acy to the written k
(b) -lain "eaning67 corners a&&roach
(c) 8raditional test; =f ter" has &lain "eaning w6in &lain language of the
docu"ent! no e:trinsic evidence
(6) #odern Jiew
(a) Dives &ri"acy to &arties intention
(b) /llows evidence in to create a"biguity
(c) #odern 8est; Was the ter" reasonably susce&tible to the &roffered
"eaning?
(d) Criticis" =f you let in all &arol evidence! no one will ever know
what k they are creating frivolous litigation
(7) 9CC -rovisions
(a) ,-(?L; 98 and Co$. Co$ A -rior ks! &rior acts! etc.
(b) (-(?T; Co-. )e&eated occasions of &erfor"ance. Other &arty "ust not
ob2ect.
(c) (-(?(3a4 allows for Co-! Co$ and 98 to get in even if writing is
co"&letely integrated.
(d) E:&ress ter"s V Co- VCo$ V 98
(8) %&ecific #erger Clauses
(a) $esigned to kee& out evidence for inter&! fraud! "istake! etc.
(b) Courts s&lit on enforcing the"
(c) Ones that &rohibit evidence of fraud are du"b
iii) )ando" #a:i"s
(1) Contra &rofessor
(a) =ntre&ret against the writer of the k
(b) 8ake w6 a grain of salt
(2) E2usde" generis
(a) Of the sa"e thing
(b) <eed a list and a general ter"
(3) E:&ressio unius
(a) %aying one thing e:cludes another
(b) #eh
iv) Cilling Da&s
(1) Court reads in &ro"ises of gf and best efforts to &rovide consideration
(a) <ot obliged to use EE if that "eans bankru&tcy. /nything short! and
you better use EE.
(b) 1andling co"&eting &roducts does not necessarily break a gf &ro"ise.
Eut it does de&end on s industry standards.
k) Conditions
i) /nd event that "ust occur! not certain to occur! before the k beco"es due.
ii) Cannot breach a condition
(1) Condition either ha&&ens or it doesnt
(2) Eut no al"ost in e:&ress conditions
iii) E:&ress conditions created by k language
(1) )isk shifting devices. Every e:&ress condition &rotects so"eone
(2) Condition &recedent A Event "ust occur before &erfor"ance is due. O=f
condition! then &erfor"anceP
(3) Condition concurrent A -erfor"ance occurs with conditions O/s long as
condition! then &erfor"anceP
(4) Condition subse.uent A -erfor"ance ends on condition O-erfor"ance until
conditionP
iv) ="&lied Conditions
(1) Constructive conditions read in by law
(2) E:a"&les
(a) ="&lied condition that services "ust occur before &ay"ent is due
(b) ="&lied condition of coo&eration between &arties
v) %atisfaction clauses
(1) Ob2ective; value! co""ercial utility. )easonable &erson
(2) %ub2ective; art! 2udg"ent or &ersonal taste. 1=C.
vi) Contractor &ay"ent clauses
(1) Kor only "ust &ay %ubs if O &ays Kor
(2) Court rules this is a ti"efra"e for &ay"ent! not a condition
(3) Kor ked with O! K assu"es risk when O defaults
(4) /lso &olicy; %ubs will go under if not &aid. Kor can stand default better
vii) E:cuse
(1) =f E has a "ortgage condition to &rotect hi"! and does nothing to get a
"ortgage! then condition is e:cused and E waives his right to &rotection
(2) if E waives condition! E can reinstate condition to the e:tent that % has not
relied.
viii) $uty or Condition?
(1) 1ard to tell difference
(2) =n close case! court will read ter" as a duty in order to &revent forfeiture
(3) $uty > obligation > legally enforceable &ro"ise. = &ro"ise to &aint your
house by Cri.
(4) Condition > = will &ay your only if you &aint "y house by Cri.
l) #odification and $uress
i) $uress
(1) to k for"ation
(2) Econo"ic duress is valid if E has no reasonable alternative
(3) K is voidable at the choice of the victi"
ii) 8hreat
(1) Jicti" "ust be induced into the k by the threat
(2) $uress </ if reasonable alternative
(3) 8hreat "ust be i"&ro&er if threat
(a) is a cri"e or a tort
(b) is cri"inal &rosecution
(c) is civil suit in bf
(d) is a breach of gf and fair dealing under the k
(4) Court has a lot of leeway in deciding what is a threat
iii) #odification
(1) CB courts afraid of duress! hostile to #ods
(2) -re-E:isting $uty rule re.uires consideration
(3) #odern courts view;
(a) /nything is considetation
(b) #odification is &er"issible if circs are diff and not antici&ated at ti"e
of k
(c) %o"e courts "ay find that "odification is a new k that su&ercedes old
one
(4) 9CC
(a) (-(?I3,4 eli"inates consideration
(b) #ust have gf reason for "odification
(c) =f k as "odified is %oC! need a writing
(d) )un "od through (-(?, and &rivate %oC
(5) =n CB! <o Oral #od is not enforceable
(6) =n 9CC! if no writing
(a) #od o&erates as a waiver of the other &artys right to a writing
(b) Waiver can be retracted to the e:tent that the other &arty has not relied
on it.
m) %tatute of Crauds 3%oC4
i) K re.s writing to be enforceable.
(1) %oC is a &rocedural hurdle to get into court. =t does not solve a case for
you.
(2) 1aving a writing is a co"&letely se&arate issue fro" whether there was a
K
ii) Uudges fucking hate the %oC
(1) 8hey will always find a way around it
(2) E:; , year clause. =f W ks w6 %ok to work for the rest of his life! %oC <6/
b6c W could have died w6in , year.
iii) 8y&es
(1) 8ransfer of an interest in )eal -ro&erty
(2) %uretyshi& -ro"ise
(a) %uretyshi& ; $ C W> %
(b) $irect Obligation; $ W> C W> %
(c) <ovation; $ 3MM4 W> C W> %
(d) 0rd &arty bnf % >V $ C
(3) %oD X KL?? 3(-(?,4
(4) Cannot be fully &erfor"ed w6in One year fro" date of "aking
(5) 8M A -atient needs $r.s &ro"ise in writing
iv) Kind of writing
(1) 9CC (-(?,
(a) Can &iece together se&arate writings
(b) %igned > /<581=<D
(c) #9%8 have H ter"
(d) %ufficient to convince Court that there was k
(2) /ll other &rongs for %oC
(a) #ust contain all "aterial ter"s
(b) %igned by the
(c) Can &iece together se&arate writings! only one "ust be signed by
(3) =f you fall w6in "ulti&le &rongs! "ust have a writing that satisfies each
&rong
v) E:ce&tions
(1) )eal -ro&erty A
(a) One year or less.
(b) -art &erfor"ance. % lets E onto land! E "akes &er"anent
i"&rove"ents.
(2) %uretyshi& A
(a) #ain &ur&ose. =f suretys #- was to secure its own benefit! no %oC
(b) % backs u& W so W will &aint house
(3) ,-year A
(a) Cull -erfor"ance. C9BB. -art &erf only yields restitution.
(4) %oD 3(-(?,4 A
(a) Uudicial /d"ission 3043b4
(b) Custo" "ade Doods 3043a4
(c) -ay"ent6Doods acce&ted 3043c4 OBi"ited to H acce&tedP
(d) #erchants Conf 3(4
(i) Eoth "ust be "erchants
(ii) =f w6in reasonable ti"e! / sends written conf of K to E! s.t. it is
sufficient against /
(iii) )eceived by E ' E has reason to know what it says
(iv) =f E no ob2ect for ,? days! then no %oC
vi) $oes )eliance hel&?
(1) Cirst "ake sure that
(a) 5ou needed a writing
(b) 5ou have no writing
(c) 5ou are not an e:ce&tion
(2) D); 5ou get s.uat
(a) =n 8M! reliance only hel&s if you have oral k ' &ro"ises to reduce
ter"s of k to writing
(b) E:ce&tions; 9nconscionable in2ury and 9n2ust Enrich"ent! a la
Monarco v. Lo Greco
vii) Deneral <otes
(1) Writings can be at different ti"e fro" k for"ation
(2) %oC offer can be rescinded orally
(3) (-(?,3(4 Q (-(?+
2) Was there a breach?
a) 1ow do you &rotect against a breach?
i) =f in &osition of seller
(1) #ake E get a guarantor
(2) #ake E &ay u& front
(3) E &ays as you go
(4) -ut a &re"iu" into every k with &otential Es
(5) Charlie Erown style
(6) Det collateral fro" E
b) What counts as a "aterial breach?
i) () * (7, details what is a #E
(1) =s denied an e:&ected benefit?
(2) Will not be co"&ensated for it?
(3) Will suffer forfeiture?
(4) Will not cure?
(5) $id suck as a &erson?
ii) %ubstantial &erfor"ance Q #E
(1) =f breaching &arty substantially &erfor"s! then get full k &rice. Eut!
can sue for da"ages
(2) #ust figure out who co""itted the first "aterial breach in order to
deter"ine whether %ubstantial -erf
(a) Cant breach a condition.
(b) Can only lose &rotection
(3) No Subst Perf in CC
iii) $octrine of $ivisibility
(1) =f &rice is set &er unit! then can get "oney for the units he gave to
(2) =f &rice set as a whole! then gets nothing and #Es
iv) =f #E then
(1) $a"ages
(2) <ot have to &erfor"
v) =f &artial breach! then
(1) $a"ages
(2) #ust &ay k &rice
c) Can re&udiate?
i) =f #Eed
ii) =f it will this hinder in substituting for s non-&erfor"ance
iii) =f ti"e was of the essence and didnt deliver
d) /de.uate assurance
i) 9CC (-@?I3,4
(1) =f had reasonable ground to fear will not &erfor"! has a right to
re.uest in writing that give ade.uate assurance
(2) =f no assurance! then off the hook
ii) What are reasonable ground?
(1) Circs "atter
(2) Eetween #erchs! reasonable co""ercial standards
iii) Cannot use (-@?I to rewrite k or de"and a &articular kind of assurance
iv) /lso found under *(L,
e) 9CC -erfect 8ender )ule
i) %eller "ust deliver &erfect goods in right &lace at right ti"e
ii) Euyer "ay re2ect all! acce&t all or acce&t so"e and re2ect the rest
iii) Cure
(1) %eller can cure if still ti"e left! or if % had reason to believe E would
acce&t nonconfor"ing goods
(2) E cannot force the % to cure
iv) =nstall"ent k
(1) K "ust s&ecifically &rovide for install"ents
(2) -erfect tender rule $</
(3) E can only re2ect an install"ent when it substantially i"&airs the
install"ent and cannot be cured with later install"ents
(4) Can only re2ect k when a bad installe"tn substantially affects value of
whole k
v) /cce&tance of Doods
(1) #ust have reasonable o&&ortunity to ins&ect goods
(2) #erely &aying is not enough
(3) Can still get da"ages
vi) )evocation
(1) D) A <OR E/$R
(2) E:ce&tion; =f defect substantially i"&airs the value of the whole k and it
was difficult to discover
vii) Es &ay"ent obligation
(1) 9CC (-L?+ > #utual tender of goods and &ay"ent unless otherwise
agreed to
(2) -ay in cash! but checks ok. -arties can agree otherwise
(3) =f % re2ect check! E gets addtl reasonable ti"e to &ay cash
3) What is the re"edy?
a) $oes the have any rights?
b) /re da"ages the right ty&e of re"edy?
i) =f %oD! see 9CC ,-,?@
ii) Denerally! )est W )eliance W E:&
(1) )estitution is for un2ust enrich"ent
(a) $isgorges fro" wrongful &rofits
(b) )estores to what he conferred onto
(c) Can only use wrongful &rofits when would have "ade that "oney
3avy v. Ber!ley4.
(i) %ubway at %tate ' #adison ks with Ui""y Uohns not to sell
veggie sandwiches. UU br6k. %ubway can recou& &rofits.
(2) )eliance is to restore the status .uo
(a) )eturn the to the &osition he had EECO)E 81E E<8=)E K
(i) Cor a "edical &rocedure! restores all &ain and suffering
(3) E:&ectations gives the benefit of the bargain
(a) =gnore all costs and losses which would have been lost anyway
(b) Count all costs and losses which would not have been incurred had
&erfor"ed
(i) &ro"ises to do 2ob for K0??! then breaches. finds substitute for
KL??. $a"ages are K(??.
,. "ust act in good faith when finding substitute
(. usually has to go with the &revailing "arket rate
a. -revailing "arket rate is not necessarily the rock botto"
&rice for a 2ob.
b. #ay well be the "ode for si"ilar ty&es of &erfor"ance
(c) Count all benefits of the k that did not receive because of breach
(d) =gnore all benefits of k that received before breach
(e) Ee aware; E:&. da"ages can change over ti"e.
(i) % e:&ects KL?? &rofit fro" Es &erfor"ance. % s&ends K(?? in
order to &erfor". E breaches. %s e:& da"ages are now K+??.
(f) not cannot recou& "ore than his e:&ectation.
(i) E s&ends K0!??? in reliance on a K0?? &ro"ise. % breaches. E gets
back only K0??.
,. Can avoid this by constructing a Costs &lusF k
iii) $a"ages are "eant to co"&ensate! not to &unish
(1) E:ce&tions which "ay have &unitive da"ages
(a) 8orts
(b) =nsurance
(c) 9tilities
(2) What about discri"inatory reasons for br6k? 9nclearF
iv) $a"ages are generally resolved against the &arty in breach
(1) /s long as the da"ages have a reasonable basis! they dont have to be the
&icture &erfect truth 3avy v. Ber!ley4
v) D); E:&ectation da"ages
(1) /nalogous to a defective "achine
(a) Dives the the benefit of the bargain
(b) Ought to be a "arket for what was bargained for
(c) E:&. $a"ages in 9CC (-+,7
(d) Econo"ically efficient. 8ends to &ro"ote efficient br6k.
vi) E:ce&tion; )eliance
(1) s reliance does not necessarily need to confer a benefit to the
(2) #ight be a &referable da"age in order to tier ty&es of breach
(a) #al&ractice torts grant reliance da"ages.
(i) Would we want non-negligent $rs &unished "ore 2ust because
they o&ened their big "ouths and "ade a k?
vii) E:ce&tion; )estitution
(1) 9n2ust enrich"ent
(2) 9sually for .uasi-ks or when everything else fails
(3) #echanics lien
(a) =f %ubs file &a&ers on ti"e! they can &lace a lien on Os &ro&erty
(b) Bien wont cover full &rice of their work! but will allow for rest of
un2ust enrich"ent
(c) #ost likely li"ited to a"ount of "oney that O owes Kor
viii) E:ce&tion; Bosing k
(1) =f E:& Y ?! then should be able to get )est or )el
(2) )est- =ncrease in C#J of s &ro&erty or What would have had to &ay
for si"ilar services
(3) K should act as ceiling.
(4) E:a"&le; Wells )eliance > (!L??! his )est > (!7?? 3by C#J or cost of
getting so"eone else to do it4 and his e:&ected &rofit is now -(??. E:& >
(!0??. =n this case! abandon D) of E:& and &ut Wells in best &osition
&ossible eg )eliance.
c) =s %&ecific &erfor"ance a&&ro&riate?
i) D); 1ell <o
(1) Es&ecially for service ks. %"acks of slavery. /lso not good .uality.
(2) We assu"e there is a "arket&lace for goods. Do out and get it fro"
so"eone who actually wants to sell.
(a) Well back you u& though
(b) Euyer A Cover
(c) %eller A )esale
(3) %- is a fallback re"edy when da"ages cannot "ake you whole
ii) E:ce&tions so that you can get %- in %oD
(1) Euyer %-; 9CC (-+,@3,4; Doods are uni.ue or there are other &ro&er
circu"stances
(a) )ead; 8here isnt a "arket
(b) Out&ut ' )e. ks are ty&ical %- O=f w6 right circsP
(c) )ight circ e:s
(i) Bong ter" k
(ii) =nability to cover
(iii) $a"ages difficult to ascertain! fluctuating -
(iv) -ublic -olicy concerns
(2) %eller %-; 9CC (-+?I; /ction on the -rice
d) /dded Costs6#itigation
i) /voidability
(1) Cant get avoidable e:&enses back
(2) $a"ages are froZen when learns of br6k.
(3) =f you dont "itigate! you cant recover for e:&enditures that could have
been avoided w6 reasonable effort
(4) Why does 9CC allow (-+?73(4 then?
(a) /ssu"e "arket&lace
(b) %eeks to avoid loss
(c) 9se reasonable co""ercial 2udg"ent
ii) Certainty
(1) Only need to &rove certainty with reasonableness! not "athe"atical
(2) Courts will be lenient to <ew Eusinesses. =f e:&erts can show what other
businesses in neighborhood do! or what si"ilar businesses "ake! then
Court will find this reasonable certainty.
(3) Courts will not usually find reasonableness on artistic works or
)e&utation. -ublic has fickle tastes! difficult to &rove but for cause.
(4) =f you find a way to deter"ine certainty! courts will sign on
(5) #ore likely to recover if you can show br6k da"ages your re& rather that
did not add to your re& when it should have
iii) Conse.uential $a"ages
(1) Can only get Cons. when % knows or should have reason to know of
Cons. at ti"e of king.
(2) =f E co""unicates info at ti"e of K! then E wins
(3) Corseeability "easured at ti"e of k.
(a) 1owever if a ter" left o&en at ti"e of k! forseeability a&&lies to that
ter" even though it is deter"ined later
(b) E:a"&le; $elivery date left o&en at ti"e of k. $ate later set for ne:t
Criday. foresaw that date could be Criday at ti"e of k.
(4) 9CC (-+,L3(43a4 includes foreseeability and avoidabilty as re.s for
getting Cons. da"ages
(5) =f E chooses not to cover and get (-+,0! E "ight not get Cons. if cover
or otherwise "ight have reasonably &revented the Cons. da"ages
(6) -ersonal in2ury or &ro&erty da"age fro" br6warranty is a Cons. da"age
(7) 9CC -rovisions
(a) +,I304 A % can li"it or e:clude Es cons. da"ages unless li"it is
unconscionable 3#atter of law4. $isclai"er of &ersonal in2ury on
consu"er goods is facially unconscionable.
(b) +,I3,4 A -ossible to li"it or alter "easure of da"age &rovided by the
Code
(c) +,I3(4 A Where circs cause li"itation to fail of its essential &ur&ose!
then has access to /rt ( da"ages.
(8) Why cant % get cons. da"ages?
(a) Can do anything with his K.
(b) 1ow can you deter"ine what % was not able to do?
(!) %o"e courts have awarded % cons. da"ages
(a) Book to (-+,? Or otherwise resulting fro" the br6k.
(b) Lth Circuit has re2ected this argu"ent
e) Bi.uidated $a"ages
i) -resu"ed )easonable. Co"&laining &arty has the burden of &roof to show
that it is not reasonable.
ii) Court will not allow B$ if they are a &enalty though
iii) 1ow do you distinguish?
(1) $a"ages at the ti"e of k "ust be difficult to "easure
(2) #ust "ake reasonable effort to fi: fair co"&ensation
(3) $a"ages "ust be reasonably related to &robable da"ages
(a) Draduated da"ages hel&
(b) -ercentage of k da"ages hel&
(c) %hotgun da"ages hurt
(4) Ee aware of subterfuge; Eonus clauses instead of straight out B$s
iv) (nd look?
(1) %o"e courts take a (nd look! and if at ti"e of br6k da"ages > K?! then
court ignores B$ clause.
(a) Why? B$s take away discretion for" court
(b) /lso! in this case B$ doesnt see" to "ake sense
(2) Eut! note that it was an ar"s length bargain
(3) Could also be that br6&arty was already co"&ensating by a higher k &rice.
%hould enforce B$ clause even though no da"ages b6c of breach
v) 9CC;
(1) (-+,T3,4 )easonable in light of antici&ated or actual har" caused by
br6k
(2) =f reasonable at either ti"e! then enforceable
(3) Certainty! foreseeability! etc. =nconvenience or nonfeasibility of
otherwise obtaining an ade.uate re"edy.
(4) (-0?( allows Court to strike down any cl or k that was unconscionable at
ti"e of k.
vi) =f B$! the no duty to "itigate da"ages
vii) =f B$! can you get other re"edies? Courts s&lit.
f) 9CC Duide to )e"edies
i) Euyer
(1) $a"ages Denerally; (-+,,
(2) Cover (-+,(
(a) KCover - KK G K =6C da"ages - KCosts avoided
(b) Cover &urchases "ust be;
(i) =n DC
(ii) W6o unreasonable delay
(iii) )easonable &urchases of goods
(iv) =n %ubstitution for the ked goods
(c) =f &urchases "ade over ti"e! only those in a reasonable ti"e &eriod
will be co"&ensated by Cover
(d) =f Cover W #arket! E li"ited to cover if cover "ade
(3) #arket -rice (-+,0
(a) K#arket - KK G K=6C da"ages - KCost avoided
(b) /vailable if E cannot or did not cover 3$id nothing6$id not "eet a
Cover re.4
(c) K#arket is when Euyer Bearns of Ereach
(d) $e&rives % of e:& on br6day
(e) =f E Covers and K#arket V KCover! E can only get Cover da"ages
(4) )esale of acce&ted <on-Confor"ing goods (-+,7
(a) KC#J as warranted - KC#J as delivered
(5) %&ecific -erfor"ance (-+,@
(a) =f all the above are unavailing! ' &ro&er circs! then %-
ii) %eller
(1) $a"ages Denerally; (-+?(
(2) %ellers choices (-+?7
(a) =f br6k during "anufacture of goods! %eller "ay
(i) Co"&lete "anufacture and resell the good. (-+?@ or (-+?I.
(ii) %to& "anufacture and sell goods for scra&.
(b) Choice "ust be done;
(i) with co""ercially reasonable 2udg"ent.
(ii) to avoid loss
(iii) with effective realiZation
(c) =f % sto&s "anufacture ' resells a good % kee&s in reg inventory! then
&ossible that % is BJ$. %ee (-+?T3(4
(3) )esale (-+?@
(a) KK - K)esale G K= da"ages - KE%
(b) #ust resale through &rivate sale or &ublic auction
(c) #ust notify buyer
(d) #ust be "ade in DC
(e) #ust be in Co""ercially reasonable "anner
(f) =f )esale W #arket! % li"ited to resale if resale "ade
(4) #arket da"ages (-+?T3,4
(a) KK - K#arket G K= da"ages - KE%
(b) K#arket fro" 8i"e and -lace of 8ender 3#akes goods available to E4
(5) Bost -rofit of BJ$ (-+?T3(4
(a) K G K= G KCost reasonably incurred- K-roceeds of resale
(i) Bast two clauses are for (-+?7 choice
(ii) E:; Custo" van! tear down! resell &arts.
(b) BJ$ > / %eller w6 theoretically unli"ited su&&ly. Court test for BJ$;
(i) Ca&acity to "ake both sales
(ii) -rofitability for both sales
(iii) #aybe whether 0rd &arty would have been solicited successfully
anyway
(6) /ction on the -rice (-+?I
g) %ervices $a"ages Denerally
i) $ifference between KK, and KK(.
ii) 1owever! if K( was not in substitution for K,! then da"ages are all of K,.
(1) 8wo &art ti"e 2obs are not substitutes for each other
(2) 8wo full ti"e 2obs are substitutions! regardless of their ti"e slots. 9nless %
was already working ( fullti"e 2obs.
(3) Uob that = can k out to an e"&loyee is not a substitute 2ob.
iii) /voidability and 1y&o Uobs
(1) "ust "ake reasonable efforts to take co"&arable e"&loy"ent. has
burden of &roof on this.
(2) $ifferent or inferior 2obs are not considered to be co"&arable.
(3) E98 if takes diff6inf 2ob! this is substitution and "itigates da"ages
(4) 9nion Uob Q <on-9nion 2ob
(5) -olicy; %ubtracting actual earnings &unishes &eo&le who cant afford to be
une"&loyed
(6) -olicy; shouldnt be forced to work for br6. Ead relationshi&! not full
efforts. /lso! could have &ulled a bait ' switch with the new 2ob
offered.
iv) DC breach
(1) ="&licit &ro"ises of gf in service ks
(2) When %ynagouge hires rabbi as s&iritual leader! synagogue i"&licitly
&ro"ises to kee& services the sa"e