(1) What is a promise? (2) What is enforceable promise? (3) How do we breach them?

(4)
What are the consequences for breaching them?
WHAT IS A PROMISE
I. Definition: “A contract is a promise...for the breach of which the law gives a remedy.”
II. An enforceable contract is formed when there is:

No defenses to
Offer Acceptance Consideration
formation
UCC or COMMON LAW
I. Article II of UCC
a. Purchase and sale of goods (e.g., an agreement to buy 100 markers from office supply
store)
b. Any other identified things attached to realty
II. Common Law
a. Property and real estate
b. Services (e.g., hiring a law school tutor)
III. If a contract is mixed
a. Predominant purpose of contract governs whether it is common law or UCC
i. Whether goods or service plays a bigger role
OFFER
I. What is an offer? (R2dk 24)
II. To form a valid offer, offeror must:
i. Manifest an objective willingness to enter into the agreement
a) Objective Test:
1. Intent– the law imputes to a person an intention corresponding to the
reasonable meaning of his outward words and actions, not their hidden
intentions.
2. BUT if a party has actual knowledge that can be proved, that knowledge
may be considered
3. Potentially relevant facts:
a. Language used + description given
b. Price?
c. Negotiation– talking for 5 minutes? 45 minutes?
d. Other surrounding circumstances
ii. Create power of acceptance in specific offeree
a) Inviting acceptance by performance
1. Once performance starts offeree has option to complete it
2. “I promise to do” is meaningless
3. Offeree can stop performing after starting
b) Inviting acceptance by a promise
1. Starting performance is meaningless
2. “I promise to do” is acceptance
3. After acceptance both parties are bound
c) Inviting acceptance by either performance or a promise (default)
1. Once performance starts K is accepted and offeree must fully perform
2. “I promise to do” is also acceptance that bounds both
d) Exceptions: some advertisements, reward offers, unilateral contracts, etc.
iii. Communicate necessary terms of the deal
a) Common Law requirements: all essentials terms– parties, subject, quantity and
price
 b) UCC Art 2 requirements: parties, subject and quantity
III. Advertisements to the public (Invitations to Deal)
i. Rule: If goods are advertised for sale at a certain price, it is an invitation to bargain, not
an offer and no contract is formed.
ii. Ad should be clear, definite, explicit, and leave nothing to negotiation.
iii. Test: Do the facts show some performance was promised in positive terms in return for
something requested? What would a reasonable person believe?
a) If unreasonable  no offer.
b) If performance was promised and reasonable  offer.
c) Hint: using the terms “as is” might constitute valid offer
IV. Sale of Goods: UCC §2-206/2-204
i. Contract may be formed:
a) In any manner sufficient to show agreement including conduct by parties
b) Even if the moment of its making is undetermined
V. Termination
i. Rejection
a) Power of acceptance dies once offeree declines the offer
ii. Death
a) offer expires automatically
iii. Lapse of Time
a) Offeror can tell offeree how long offer is open or offer will be held open for
reasonable amount of time if unspecified  once time window expires offer is
terminated
iv. Revocation
a) Rule: an offer on its own is not binding, offeror can terminate any time before
acceptance
v. Exceptions to the power of revocation:
a) Option contracts (R2dk 89)
1. Rule: an offer is irrevocable if consideration is given in exchange for a
promise to keep the offer open (e.g, you have 24 hours to let me know if
you want to buy the car)
2. Requirements:
a. In writing and signed by offeror
b. Recites purported consideration for making of the offer
c. Proposes an exchange of fair terms within reasonable time
3. Must be additional consideration to be an option contract
4. Some courts accept no payment/other courts do not and restatement does
not
b) Firm offers (2-205)
1. Rule: offer is irrevocable if a merchant makes a firm offer to buy or sell
goods, provided the offer is:
a. In UCC and in writing
b. Contains explicit promise that offer will be left open
c. Signed by the merchant (“person who regularly deals in goods of the
kind”)
2. Duration: firm offer lasts either as long as stated in the offer or for a
reasonable amount of time > 3 months
c) Unilateral contracts (R2dk 45)
1. Bilateral: promise invites acceptance by return promise, does not specify
acc. mode
 a. E.g., “Alice: I promise to deliver the book if you promise to pay. Bob: I
promise.”
2. Unilateral: offeror invites acceptance only by performance
a. E.g., for the public at large, such as promise of reward
3. Rule: If offeree starts performance on unilateral contract the offer is
irrevocable
a. Contract is not accepted until job is finished BUT offeree can finish
performance
d) Reliance (Double AA, R2dk 87)
1. Rule: an offer is irrevocable if offeree reasonably and detrimentally relies on
the offer in a foreseeable manner
2. Bids on construction contract:
a. an offer where the offeror reasonably expects to induce action or
forbearance of a substantial character on the part of the offeree
before acceptance AND does induce such action or forbearance is
binding as an option contract
b. Most courts reject this rule outside of construction industry
ACCEPTANCE
I. Offeror (master of offer) chooses:
i. identity of offeree
ii. timing for acceptance
iii. manner of acceptance
I. If unspecified: offer invites acceptance in any manner and by any medium
reasonable in the circumstances. R2dK 30(2).
II. offeror cannot lower threshold of acceptance by designating
non-reasonable/trival activities as acceptance
II. To ACCEPT the offer, offeree must:
i. Have power of acceptance created by the offeror specifically for the offeree
I. Must be directed to specific offeree
II. Exceptions: unilateral contracts for contests, rewards, etc.
ii. Manifest objective willingness to enter into agreement
iii. Accept the offer according to the terms established by the offeror (master of offer)
I. Bilateral: start of performance manifests acceptance
II. Unilateral: offer accepted once performance is complete
III. Acceptance must be:
i. must be communicated to other party
ii. definite and unequivocal
I. cannot be standard action (e.g., professor can accept offer by walking inside
building)
iii. may not place conditions or limitations or add terms (common law Mirror Image Rule)
I. unless an acceptance mirrors the offeror’s terms, it has no legal effect as
acceptance
IV. Modes of Acceptance– when & how can you accept?
i. Instantaneous communication
ii. Mailbox Rule (only applies to ACCEPTANCE letters)
I. Rule: acceptance that is sent by mail, email, or fax is valid at the moment it is
sent
II. Exceptions where acceptance is effective once received:
1. Offeree uses wrong address or improper postage
2. Option contract
3. Offeror stipulates acceptance is valid upon receipt
 4. Offeree sends termination better BEFORE acceptance letter (counter or
rejection)
5. Offeror detrimentally relies on a termination BEFORE he receives
acceptance letter
V. Negotiation + Closure (complex business transactions)
i. Legal issues:
I. Difficult to know when parties move from negotiating to closure
II. Parties may deliberately leave matters unsettled
1. “Agreements to agree”
2. Gentlemen’s agreement: agree that is not an agreement made between two
parties whereby each expects the other to be strictly bound without himself
being bound
III. Parties may signal growing commitment to bargain w/ intermediate documents
like LOI
1. Letter of Intent can:
a. leads courts to conclude contract in the absence of final formalities
b/c objective theory
b. a party can remember what they did (memorialize the agreement)
c. helps make sure all relevant parties are on the same page
d. a way to bind the parties to the completed understandings
2. Rule: parties must have clear understanding of the terms of an agreement
and an intention to be bound by its terms before enforceable contract is
created
a. Whether parties intend to be bound is a FACTUAL question not legal
one
b. Courts look at: (1) how detailed, (2) what was agreed upon, (3) what
was left open
ii. Role of Courts
I. Fairness: extensive role; views overall circumstances
II. Certainty: limited role; focuses on text
VI. Misunderstanding (R2DK 20)
i. Rule: No contract is formed if neither party is at fault or if both parties equally at fault
ii. Requirements:
I. Parties involved attached materially different meanings to their manifestations
II. Neither party knows or has reason to know the other’s meaning; OR
III. Each party knows or has reason to know the meaning attached by the other
iii. Misrepresentation
I. Both parties not equally at fault
II. One party knows the other’s meaning and manifests assent intending to insist on
different meaning
VII. Counteroffers
i. When an offeree adds additional or different terms to the offer and sends it back (orally or
paper):
I. Acceptance of offer is required
II. Counteroffer operates as (1) a rejection that terminates original offer and (2) a
new offer
VIII. Standard Form Agreements
i. Types and Enforceability
I. Sign the form or you cannot receive service  enforceable
II. Click-wrap agreement (contracts accepted by clicking “I agree”)  likely
enforceable
 III. Shrink wrap agreements (binding upon action like opening a package)  usually
unenforceable
IV. Acceptance by usage (browser wraps)  questionable enforcement
V. Rolling contracts  enforcement is controversial
1. Money now  terms later (e.g., insurance contracts, airline tickets)
2. Some terms might be (1) agreed before payment, (2) incorporated by
reference
ii. Battle of the Forms (UCC §2-207) see chart

CONSIDERATION
I. Valid Consideration
I. Requirements: performance or return promise must be bargained for
I. Legal detriment OR promisor receives a legal benefit (majority only looks at legal
detriment)
1. Legal detriment consists of:
a. Promising to do something the party has no prior legal duty to do
b. Performing an action the party is not otherwise obligated to undertake
c. Forbearance: refraining from or promising to refrain from exercising a
legal right which the party is otherwise entitled to exercise
d. Creation, modification or destruction of legal relation
II. The promise induces the detriment AND the detriment induces the promise
(bargained for)
1. Bargained for exchange requires reciprocal inducement:
a. Promise induces promisee to incur his legal detriment
b. The legal detriment induces the promisor to make his promise
II. If consideration is met there is NO additional requirement of
I. gain, advantage, or benefit to the promisor
II. loss, disadvantage, or detriment to the promisee
III. equivalence in the values exchange
IV. mutuality of obligation
III. Employment
I. Contractual in nature– agreement to work in exchange for agreement to pay
II. Non-compete agreements
I. Sufficient consideration = continued employment for at-will employee (majority)
1. Forbearance from exercising legal right (to fire or to leave) is consideration
2. Agreements are valid so long as they’re reasonable
3. Focuses on possibility that employee would have been fired if he didn’t sign,
employee can receive additional compensation/training/confidential info
II. Not consideration (minority) through continued employment alone
1. Employees have no bargaining power once employed & can be coerced
2. Employee gets no more from employer than otherwise would by signing
IV. Option Contracts (see offer exceptions for requirements)
I. Rule: Anything which fulfills the requirement of consideration will support a promise,
regardless of the comparative value of the consideration and the thing promised. (does not
have to be $ amount)
V. Promises that are not bargained for:
I. Conditional promises
I. Not consideration if promisor knows at time of making promise that condition cannot
occur.
II. Gifts
I. “I offer to give you this marker for free.”
 III. Conditional gifts
I. “I offer to give you this marker for free, but you have to come pick it up.”
II. Promisee might incur detriment, but detriment might not induce promisor.
IV. Pre-existing Legal Duty
I. A promises to pay B $100 if he refrains from smoking crack. B has pre-existing duty
to not smoke because it is illegal.
II. It will be consideration if it differs from what was required by the duty in a way which
reflects a bargain.
V. Past Consideration
I. If a detriment is incurred BEFORE the promise is made.
II. “B saves A from a burning house. A promises to pay B $100 for the rescue.” A’s
promise to pay B is induced by an action that B already completed.
VI. Nominal consideration (pretense of consideration or sham)
I. More than just a “bad deal.” E.g. person promises to sell their car for $1, person
likely not induced by the detriment.
VII. Illusory Promise
I. Words of promise which make performance entirely option with the promisor
II. Alternative Promises:
1. when the promisor keeps the power of alternative performances each
alternative performance should be enough to be consideration in itself
III. Requirements Contract
1. UCC §2-306: a contract measuring the quantity of goods in terms of a buyer’s
good-faith requirements is valid, as long as the demanded quantity is not
unreasonably disproportionate to any stated estimate or comparable prior
demands.
2. Test: whether a party acted in good faith (honest and observing
reasonable/general practices)
VI. Modification
I. Common Law Pre-existing Duty Rule (R2dK §73)
I. Rule: "performance of a legal duty owed to a promisor which is neither doubtful nor
the subject of honest dispute is not consideration…" Must be additional
consideration for modification.
II. Contractors: a subsequent agreement for additional compensation is unenforceable
if contractor is only performing work that was required of them in original contract
II. Contract for sale of goods (UCC §2-209)
I. Good faith test: no additional consideration needed for modification
III. Modern Approach
I. When unexpected or unanticipated difficulties arise during the course of performance of
a contract, the parties may modify the initial contract even without additional
consideration for the modification as long as:
1. (1) the parties voluntarily agree and the promise modifying the initial contract is
made before the contract is fully performed on either side;
2. (2) the underlying circumstances prompting the modification are unanticipated
by the parties; and
3. (3) the modification is fair and equitable.
VII. Consideration Substitutes (no enforceable contract but there should be legal relief for
plaintiff)
I. Promissory Estoppel
I. Under PE a promise (without consideration) is binding and enforceable if:
1. Foreseeability: promisor should reasonably expect the promise to induce
action or forbearance from the promisee
 2. Detriment: the promise actually does induce such action or forbearance, AND
3. Enforcement is necessary to prevent injustice
II. Common situations:
1. Gift promises that lack consideration
III. Remedies
1. Will be limited or adjusted as justice requires
2. Usually limited to the monetary value of the losses incurred in reliance on the
promisor’s promise (reliance damages)
II. Quasi-contracts (“implied in-law”)
I. Plaintiff may recover restitution if:
1. Plaintiff conferred a measurable benefit to the defendant (e.g. economic
services)
a. Must have real measurable value– not something like “compassion”
2. Benefit was conferred w/ the reasonable expectation of being compensated
for its value
a. Does not apply to gifts– there is no expectation of compensation.
3. Defendant would be unjustly enriched if he were allowed to retain the benefit
without compensating the plaintiff because either:
a. Defendant knew or had reason to know of plaintiff’s expectation
b. Plaintiff had reasonable excuse for conferring benefit without
defendant’s knowledge (e.g. emergency services)
II. Remedies
1. Plaintiff is limited to restitution damages (an amount equal to the economic
benefit that the plaintiff conferred on the defendant)
III. DOES NOT have to be supported by mutual assent
III. Moral Obligations (person does not have reasonable expectation of compensation)
I. “Some” courts may enforce a promise supported by past consideration if there is a
strong moral obligation and justice so requires.
1. E.g., Webb v. McGowin (Webb saves McGowin from dying and is severely
injured so he cannot work, MG promised to pay him for the rest of his life then
stopped)
II. Rule: A promise made in recognition of a benefit previously received by the promisor
is binding to the extent necessary to prevent injustice.
III. Exceptions:
1. Promisee conferred benefit as a gift
2. The promisor has not been unjustly enriched
3. The value of the promise is disproportionate to the benefit
4. Promise was based solely on sentiment or gratitude
5. Some courts might not enforce it

DEFENSES FOR FORMATION

(Remember that hypo can trigger more than 1)

Defense Requirements Void or Voidable

I. If a defense is successful, the contract will generally be void or voidable

a. Void– treated as though it never existed (neither party can enforce the contract)
b. Voidable– K is enforceable until a party takes action to rescind the contract
 i. At least one party has the power to avoid the contact but power might be limited
by law
ii. Can typically be affirmed
c. Unenforceable (unconscionability, public policy, SOF )– either party can argue that a
provision or a contract is unenforceable w/ no time limit and no affirmation
II. Incapacity: a party must have the capacity to contract or else K is voidable
a. Minors (under age 18)
i. Voidable at the minor’s discretion before reaching 18
ii. If child turns 18 they must rescind contract within reasonable amount of time or it
is affirmed
b. Guardianship
c. Mental incapacity (assumed if under guardianship)
i. Void if party is adjudicated as mentally incompetent (extreme cases)
ii. Voidable if:
1. person is unable to under the nature and consequences of the transaction
or
2. person is unable to act reasonably w/ regard to the transaction AND the
other party has reason to know of his condition
iii. NOT voidable if:
1. Fair terms + no knowledge of other person only to the extent:
a. Contract has been performed in whole or in part
b. Circumstances changed so avoidable would be unjust
d. Intoxication
i. Voidable if:
1. Other party knew or had reason to know that the party was unable to
understand nature and consequences of transaction or unable to act in
reasonable manner
ii. NOT voidable if: other side had no reason to know of other side’s intoxication
e. Necessity exception: when necessaries (food, clothing, shelter, etc) are furnished, party
is liable for fair market value under quasi-contract (value might not be price under
contract terms)
f. Goods exception: adult or minor had a duty of restoration
III. Mistake
a. Mutual mistake: both parties mistaken to basic assumption on which K was formed
i. Voidable if mistake:
1. is of FACT that existed at the time deal was made
2. relates to BASIC assumption of the contract (performance/functionality)
3. has a MATERIAL impact on the deal
4. the adversely affected party DID NOT assume risk of mistake by:
a. risk was allocated to him by agreement (ex: seller selling item “as
is”)
i. most courts will not enforce K provision that places the risk
on buyer with non-disclosure
b. being was aware at time K was made that he had limited knowledge
ii. E.g., seller sold house but after sale realized house something unknown was there
b. Unilateral: only one party is mistaken (voidable)
i. All above elements plus: (a) mistaken party exercised reasonable care, (b)
consequences make K unconscionable, (c) other party can be placed in status quo
ii. Typically occurs in one side making or accepting offer (commonly a typo)
IV. Misrepresentation
a. Concealment: party intends to prevent other from learning a fact
 b. Non-disclosure
i. Equivalent to an assertion if maker:
1. Knows disclosure is necessary to prevent misrepresentation
2. Knows disclosure would correct other party’s mistake of assumption
3. Knows disclosure would correct other party’s mistake in agreement
4. Other person is entitled to know the fact b/c of trust and confidence
between them
c. Fraudulent Misrepresentation (R2dk §162)
i. Voidable if: maker intends his assertion to induce a party to manifest assent
1. Maker knows or believes assertion is not in accord w/ facts
2. Does not have the confidence he states/implies in truth of assumption
(ignorant)
3. Knows he does not have the basis for the assumption
ii. Void (rare) if: person tricks other in signing a contract by making it appear it is
different
d. Material Misrepresentation
i. Voidable if: it would be likely to induce a reasonable person to manifest assent OR
maker knows it would likely induce this specific party
e. Justified reliance
i. Voidable: recipient MUST have been justified in relying fraud/misrepresentation by
other party
V. Duress & undue influence promises as a result of inappropriate threats w/ no alternatives
are voidable
a. Duress: deals w/ situations which consent is tainted
i. Void: Physical compulsion (e.g. holding gun to someone’s head)
ii. Voidable: Improper threat that overcome the mind or will that leave victim w/ no
reasonable alternative (overcome mind judged subjectively)
1. Threat of crime/tort
2. Criminal prosecution
3. Bad faith civil action
4. Breach of duty of good faith and fair dealing under contract
iii. Most cases are K modification
VI. Unconscionability: unfair terms that “shock the conscience of the court” are not enforceable
a. Some courts will only enforce if both types of unconscionability are present so LOOK AT
BOTH
b. Procedural: present when there is a defect in the bargaining process (e.g. one side
applies pressure)
c. Substantive: when the terms of the deal are grossly unfair or one sided in one party’s
favor
VII. Public policy & illegality: K whose enforcement is socially harmful might be unenforceable
a. Void (illegal): if consideration or performance under contract is illegal
i. Restitution may be allowed anyways by balancing illegality and unfairness (rare)
b. Void (legal): agreements that restrain trade are per se illegal and enforceable
i. employment non-compete agreements (varies by state)
1. Reasonableness test looks at factors: employer’s interest, undue hardship
on employee, injury to the public
ii. contracts that violate the rule against perpetuities
VIII. Statute of Frauds: some promises are unenforceable unless they are in writing
a. Contracts that trigger SOF:
i. Sale of land– transfer, receive, create (not construction project unless > 1 year)
 ii. Contracts that cannot possibly be performed within one year from day after its
formation
1. Contracts w/ no timeline listed will usually not trigger SOF
2. If there is a possibility it can be less time it doesn’t trigger (ex: person’s
life)
iii. Answer for debt of another (suretyship)
b. Purchase or Sale of goods (§2-201 UCC APPLIED BECAUSE IT’S A SALE OF GOODS)
i. Only applied if the sale of goods is $500 or more
c. Satisfying SOF:
i. Restatement:
1. Signed writing from party whom enforcement is sought
2. Writing shows contract was formed
3. States the essential terms (parties, subject matter, quantity AND price)
4. Exceptions: FULL performance will satisfy SOF
ii. UCC 2-201 requirements:
1. Signed writing
2. Shows contract was created
3. Includes requisite terms (quantity– price not needed)
4. Exceptions:
a. Performance– satisfied if payment for quantity of goods has been
made or accepted or received an accepted 2-201(3c)
b. Both parties merchants– SOF is satisfied if: (2)
i. Both parties orally agreed (both are merchants)
ii. Either party sends a signed, written confirmation or oral
contract signed by the sender
iii. The written confirmation is received by the other party to the
oral agreement unless the party receiving the confirmation
gives written notice of objection within 10 days after receipt
of confirmation
c. Admission (3b)– if party against whom enforcement is sought admits
in his pleading, testimony or otherwise in court that a contract was
made
d. Specially manufactured goods (3a): when seller makes a substantial
beginning toward manufacture of custom goods that are to be
specifically made for buyer and are not suitable for sale to others in
course of business
IX. Performance defenses
a. Other side did not perform
b. Something dramatic provides an excuse
c. Impracticability
d. Frustration of purpose

BREACH
I. When performance of a duty under a contract is due any non-performance is a breach (R2dk
235). Performance is due whenever the parties decide it will be due (express conditions).
II. Breach is material by default, other party can suspend performance until breach is cured:
I. Non-material breaches cannot be ground for suspending performance
II. Material breach can be cured if done on time otherwise contractual duties are
discharged/contract ends
III. Interpreting terms of the contract:
I. Signed written agreement
 I. Will be interpreted so as to give effect to the intention of the parties as
expressed in the contract’s language
II. Cannons of interpretation:
1. Contra proferentem– interpretation against the draftsman
2. Course of performance– past performance of this contract is used as long as
it is consistent w/ the text
3. Course of dealing– past performance of other contracts between these
parties is used as long as it is consistent w/ the text and course of
performance
4. Trade usage–industry standards used as long as they are consistent with all
the above
IV. Gap fillers: terms which are reasonable in the circumstances applied by the court

REMEDIES
I. Self-Help (for material breaches)
I. Suspend performance
II. Discharge (terminate)
II. Interests of Breached Against Party
I. Expectation interest: his interest in having the benefit of his bargain by being put in as
good a position as he would have been in had the contract been performed
II. Reliance interest: his interest in being reimbursed for loss caused by reliance on the
contract by being put in as good a position as he would have been in had the contract
never been made
III. Restitution interest: his interest in having restored him to any benefit he has conferred on
the other party
III. Expectation Damages (default remedy and usually higher than reliance)

loss in other cost loss

ED
value losses avoided avoided

I. General rule: should put P in the same state as if the contract had been performed
II. Must prove damages with:
I. Certainty– prove with level of certainty that breach caused damages
II. Causation– damages must be caused by breach
III. Foreseeability– reasonable person in shoes of D should have expected this harm
at time of contracting
1. Can be foreseeable because it was “naturally arising” from breach or
because parties were aware of the circumstances
III. Measurements:
I. Loss in value = value P should have received under K – the value P did receive
1. What was the amount promised? What did P already receive?
II. Other losses = incidental costs + consequential costs
1. Incidental– general damages (cost of storing goods, finding new buyer, etc.)
2. Consequential– damages associated w/ this specific plaintiff (e.g., factory
shipping case)
III. Cost avoided = value P saves by NOT having to perform any further (est.
expenses – $ spent)
 IV. Loss avoided = any value P recovers by salvaging or relocating resources that
would have been used for performance of contract (e.g., builder goes to buy
lumber for K but can reuse it)
IV. Limitations
I. Foreseeability: damages must have been reasonably foreseeable or anticipated
by the other party at time of contracting
II. Mitigation: P must make a “reasonable” attempt to avoid loss even if it is
unsuccessful
III. Damages should give plaintiff the value of performance and protect plaintiff’s
subjective value
1. They cannot:
a. Make plaintiff worse or better than before performance
b. Have a significant disparity between objective benefit and subjective
cost of performance
V. Disadvantages
I. Measure the value of performance which is often difficult to know
II. Inadequate for unique goods/services
III. Courts often can’t measure subjective value to plaintiff
IV. If expectation damages are too speculative:
I. Reliance damages (rare)– gives plaintiff his out of pocket expenses
I. Almost always less than expectation damages BUT plaintiff may choose this
anyways
II. Requirements:
1. Must be caused by breach
2. Certainty (easier to prove than expectation)
3. Foreseeable
4. Cannot cover losing contract (breaching party must prove if it is losing)
III. P may want reliance because:
1. Expectation interest is too hard to prove w/ certainty
2. The law doesn’t allow expectation (promissory estoppel, negotiation)
II. Restitution damages (rare)– provide plaintiff w/ the unjust enrichment of the other
side
I. How it is measured:
1. Amount or economic benefit D got because of contract with P
II. Common cases:
1. A breaching party partially performed before breach (breaching plaintiff)
2. Contract justifiably terminated during performance
3. “we thought we had a contract” but it was unenforceable
III. Limitation: if P did not confer a benefit to D then damages are not available
III. Liquidated damages– specify the exact measurement of damages (cannot be punitive)
V. Reputation Harm
I. Hard to recover unless there is evidence of “loss of identifiable professional
opportunities”
VI. Specific performance (equitable relief): only ordered if damages are inadequate to protect
P’s interest
I. Definition: SP compels a defendant to perform their legal duties under the contract.
II. Factors to consider:
I. Whether goods are unique/rare (e.g., land or rare painting)
II. When it is difficult to calculate damages
III. Balancing of equities
IV. Practicality of enforcement
 III. Limitations
I. Cannot be contrary to public policy
II. Difficult in supervision
III. No specific performance for a promise to render personal service (R2dk 367)
1. Breach of employment agreements
IV. Benefits
V. Disadvantages
I. Can sometimes be impractical
II. Might not be relevant after time it takes to litigate the case
III. Ordered performance may be very complicated or long
IV. No way to supervise defendant’s performance/quality of it
V. Might be unfair to force defendant to do something they don’t want to
VII. Performance & Breach by Buyer and Seller (UCC)
I. Buyer’s Remedies
I. How seller might breach: Fails to deliver, repudiates the contract, delivers non-
conforming goods
II. If seller breached:
1. If seller failed to deliver or repudiated:
a. If buyer covered  buyer can recover cost of cover minus contract
price (2-712)
b. If buyer did not cover  buyer can recover market price minus
contract price (2-713)
2. If buyer accepted non-conforming goods:
a. Buyer can recover the value of conforming goods minus the value of
non-conforming goods (2-714)
3. Buyer can recover incidental and consequential damages (2-715)
4. For unique goods  buyer can request specific performance (2-716)
II. Seller’s Remedies
I. How buyer might breach: Not accepting, repudiating contract, failing to pay
II. If buyer breached:
1. Buyer did not accept or repudiated
a. If seller resold the item  seller can recover contract price minus
resale price
b. If seller did not resell the item  seller can recover contract price
minus market price
c. If seller resold and is a lost volume seller  seller can recover
expected profits from the sale
i. Lost volume seller test:
1. Was the seller capable of making a second sale at the
time of breach? AND
2. Would the plaintiff have made a sale to the resale
purchaser even without the breach? courts must
consider whether:
a. the opportunity for the second sale resulted from
the breach
b. whether the buyer’s needs relate to the breach
c. the nature of the good.
d. If item cannot be resold  seller can recover the contract price
2. Buyer accepted and didn’t’ pay  seller can recover the contract price
3. In addition seller can recover incidental damages