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Question 1

What are the two views if a contractor breaches, for damages for the owner depending on the type of breach?

Answer 1

• if it would lead to serious economic waste: owner can get diminution in value (what he would’ve gotten minus what he actually got)
• if breach wasn’t materially defective: cost of correcting the defect or the value of performance promised minus the value of performance actually gotten

Question 2

Why are construction contracts not usually specifically reinforced?

Answer 2

Because damages are usually adequate and the courts don’t want to supervise performance. Specific performance is only granted if the damages are inadequate and supervising isn’t too hard.

Question 3

If there is a breach in a transportation/shipping contract because of late performance, what damages are given?

Answer 3

• if it was reasonably foreseeable to the carrier that the goods were going to be sold, the seller gets the reduction in market value between the time performance was due and the time it was rendered.
• otherwise it is the reasonable daily rental value of the shipped goods times the days of delay

Question 4

What are the things that must be proven for restitution?

Answer 4

• D was unjustly enriched

- at the P’s expense or by violating his rights

Question 5

What is required of the defendant in a restitution action?

Answer 5

He must disgorge his unjust gains. Disgorge all economic value of benefits he received and return them to plaintiff if it is unjust for him to keep them. If what was given was performance, then the money value of it is substituted.

Question 6

Is it possible to get damages and restitution?

Answer 6

Generally no

Question 7

What is the rationale for restitution?

Answer 7

Liability imposed by society for public policy that disregards the will of the defendant

Question 8

Restitution damages often involve a defendant that wasn’t what?

Answer 8

Competent: physically absent, unconscious, mentally incompetent, under age, etc.

Question 9

What is another name for restitution?

Answer 9

Quantum meruit

Question 10

What are the different views on what must be given in restitution?

Answer 10

• CL: P must give back all material benefits in order to commence the action and breaching parties cannot get restitution
• R2: only need to offer to make restitution, don’t have to tender. Benefit to D must have been given by P
• Modern/UCC: breaching party can get restitution

Question 11

How do you determine the value of the benefit conferred for restitution?

Answer 11

The cost avoided by the breacher. What he would’ve had to pay to get a similar benefit from someone else.

Question 12

If one party confers benefits on another, but the contract is declared unenforceable, what kind of remedy can he get?

Answer 12

Restitution for any tangible property given in the void agreement, or the value of the benefit conferred