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Question 1

What is required for restitution?

Answer 1

• prior breach, and

- certainty of damages (although UCC allows approximation when certainty can’t be had)

Question 2

What is needed for certainty of damages for restitution?

Answer 2

• they must be certain in their nature (approximation and reasonable certainty is enough)
• must show the breach caused the injury.

Question 3

Are lost profits from a sports event or performance certain enough for recovery in restitution?

Answer 3

No, and new businesses can’t show what their profits will be with certainty either

Question 4

What are alternatives to certainty that is necessary for restitution?

Answer 4

• reliance interests
• value of a chance of opportunity
• rental value of property

Question 5

What is involved in the reliance interests alternative to certainty that is required for restitution?

Answer 5

Person can recover costs, preparation expenses, part performance, and foreseeable expenses in reliance on the contract

Question 6

If a farmer buys defective seeds, he likely can’t prove what the value of a good crop would be to show certainty for restitution, but he can usually recover what?

Answer 6

• what he paid for the seed
• the rental value of his land
• the cost of prepping and sowing the seeds

Question 7

If damages are uncertain, but there was a chance of making a profit, what is given in restitution?

Answer 7

The law of averages is used for things that aren’t in the control of the parties (like for contests or drilling explorations).

Lost opportunity is based on the price a reasonable person would pay for the opportunity.

Question 8

If a breach prevents the use and operation of property that profits could’ve been made from, what are damages in restitution?

Answer 8

The rental value of the property or interest on the value of the property

Question 9

What is market value?

Answer 9

The sum of money a reasonable buyer would pay

Question 10

How can you prove the value of an item?

Answer 10

• through publications that report prices in an established market
• prevailing prices around the same time
• expert opinion
• original cost less depreciation
• reproduction cost less depreciation
• sale of comparable items

Question 11

Is an offer to buy property considered proof of value?

Answer 11

No, but an offer to sell can be used as evidence

Question 12

If an item has different values depending on its use, which one is used in restitution?

Answer 12

The most profitable one (if the item is a cow that can be milked, bred, or eaten)

Question 13

What is the reasoning for a duty to mitigate damages?

Answer 13

A party that has been wronged by a breach can’t sit idly by and allow damages to accumulate, because those aren’t proximately caused by the breach

Question 14

What is the exception to the duty to mitigate damages?

Answer 14

If continuing performance will cut down damages, the party can continue without jeopardizing recovery

Question 15

Under the duty to mitigate, must mitigation be successful?

Answer 15

No, you just have to use reasonable efforts to mitigate

Question 16

Must you mitigate if it involves unreasonable expense, committing a wrong, or jeopardizing your credit?

Answer 16

No

Question 17

Who has the burden of proof to show duty to mitigate wasn’t met?

Answer 17

Aggrieved party

Question 18

What are the differences in duty to mitigate between exclusive and non-exclusive contracts?

Answer 18

• exclusive: includes employment contracts and unique items or limited space. Ie: party has duty to devote working hours to employer, so if wrongly discharged, his damages are reduced by the employment he could get with reasonable diligence during the contract.
• non-exclusive: if the agreement allows employees to freely enter similar contacts with others, and one party breaches, it doesn’t matter that the party could make similar contracts with others, that party is free to get as many customers as he wants.

Question 19

What are the different views on whether the plaintiff must accede to the wrongful demands of the defendant in order to mitigate?

Answer 19

• some courts: if cost of compliance is small vs overall loss, P must to do it, but if it isn’t, he doesn’t have to.
• UCC: P must surrender to demand (but can do it under protest).
• CL exception for RP: if T abandoned property, LL doesn’t have to mitigate because he already performed his duty by conveying the leasehold