Contract Breach Approach...

And here is the contract breach section....

Contract Breach General Approach:

A contract is a promise or a set of promises that the law will afford a remedy if breached. Here, the issue is whether ______ breached the contract.

A party will be liable for breach of a contract when 1) there is an absolute duty to perform, 2) there is a failure to perform, and 3) the breach is material. Once these elements are met, a party will have 4) remedies for breach.

1. Absolute Duty to Perform: A duty to perform under the contract arises when 1) all conditions have been excused/extinguished 2) the duty was not discharged, and 3) there are no defenses.

a. Conditions still existing?
b. Defenses to formation

i. Statute of Frauds (marriage, year, land, executor, goods>$500,surety)

1. Memorialized writing: requires

a. Identify parties
b. Subject matter
c. Terms and conditions
d. Recital of consideration
e. Signed by charged party

ii. Unconscionability: oppression and unfair surprise

c. Defenses to enforcement

d. Non-Parties: incidental or intended/creditor or donee benificiary

e. Delegation: Generally, all contract rights may be delegated freely.

i. Elements

1. Manifest intent
2. No formalities
3. Delegator remains liable on contract

ii. Exceptions:
1. Personal judgment/skill
2. If would change obligee’s expectancy (requirement/output cases)
3. Special trust
4. Contractual restriction

f. Assignment: Generally, all contract rights may be assigned.

i. Elements
1. Manifest intent
2. Adequately described
3. Consideration not required

ii. Exceptions
1. Substantially changes obligor’s duty or risk
2. Future right on future contracts
3. If it is prohibited by law

g. Excuses to performance

i. Failure to cooperate

ii. Actual breach

iii. Anticipatory Repudiation: options
1. Sue
2. Suspend and wait to sue
3. Treat contract as discharged and rescind
4. Ignore and urge performance

iv. Inability to perform

v. Substantial performance

vi. Divisibility

vii. Waiver or Estoppel

viii. Impracticability

ix. Impossibility

2. Failure to Perform: (who failed to perform? What did they do? Was the duty to perform discharged via one of the following?)

a. Illegality
b. Novation
c. Accord & Satisfaction
d. Impossibility
e. Substituted Contract
f. Modification
g. Frustration of Purpose
h. Operation of Law/Running of Statute
i. Mutual Rescission or Release
j. Condition Subsequent
k. Impracticability

3. Material Breach: A breach is material based on the following factors:
a. Amount of benefit received
b. Adequacy of compensation
c. Extent of past performance
d. Hardship
e. Negligent or willful behavior
f. Likelihood of performance

4. Remedies for Breach:
a. Damages:

i. standard measure- expectation that permit P to buy a substitute

ii. consequential- if reasonably foreseeable at time of entering the K

b. Specific performance
c. Rescission and restitution
d. Quasi-contractual relief:

i. failed contract and

ii. unjust enrichment
1. benefit conferred
2. expectation of payment
3. knowledge of expectation of payment
4. unjust to retain benefit