Remedies Flow Chart

What did P seek to gain from the contract/performance? value? Intangible benefits to
argue for specific relief? Difficult to calculate like Epsteins research assistant hypo?
Limiting $ damages:
Avoidable loss?
Avoided costs?
Unforeseeable loss?
Uncertain loss? UCC

Remedies

Equitable when remedy

at law is inadequate** 360

Legal
DAMAGES

Remember, theme is to
compensate P for its loss, not
punish D, not reward P

Argue efficient breach for ct to provide

substit remedy rather than specific relief?

SPECIFIC RELIEF

Injunction 357(2)
Is there a liquidated Damages
Clause in the contract? 356

Walgreen: usually
needs to show
injunction but if
temporary, just show
was inadequate

Yes
No

awarded ONLY if:

Contract is clear (can k away?!)
Seek intangible benefits
Difficult to find substitutes 360(b)
Difficult to calculate damages
with reas. Certainty 360(a)
Uniqueness makes it imposs to
assess damages 2-716(1)

Are liquidated damages fair estimate

of expectation damages? Cf. Obrian;
Reasonable? Under UCC2-718 Leerjet
No
Look to Expectation Damages which are
benefit of bargain, intended to put victim
where would be if k had been performed 345:
Are they either:
$0 or negative in amount;
Uncertain (i.e., new venture) Hollywood; or
Excessive given circumstances?
No

Expectation Damages awarded to put victim where he

would be had contract was performed.
(general expec, incidental=natural/direct costs,
consequential [not always. Cf. RoC 351 Hadley needs
to have been communicated. /UCC 2-715(2) Heim x-ray
case Consequential damages not recoverable if
reasonably can prevented by cover, but doctor ok b/c
relied on sellers promises to fix. Dont say foreseeable
consequential cost for UCC, but ok in RoC case]**)
Cf. Panorama (defective roof, P showed new would
be cheaper than repair, so cost of replacement)
- reasonable $ of completing performance
- remedying defects (O.W.Grun color roof, fixing
wouldnt solve issue so new roof cost)
- could ask repair $, new roof, new roof $
Cf. Hawkinss diminution in value (promised- now).
Peevy: where breach incidental and full performance
work would give disproportionate econ benefit to P,
damage is diminution in $ instead of $ of completion)

Specific Performance 357(1)

Yes

Court will
enforce
liquidated
damages

(land lease Van wagner says its not

uniqueness but uncertainty in
calculating damages/finding substitute)

Shouldn't be too high vs. freedom to contract

Yes

Reliance damages awarded to put victim he would

be had the contract never been made. 349/2-715(1)
If jx treats PE as 17(2) contract, may award expec
damages. But In jx that doesnt treat PE as K law,
may only give reliance instead of expec damages.
These can include:
Cost of preparation/performance minus
breaching partys showing w/ reasonable
certainty that non-breaching party would have
incurred had K performed (avoided costs)
Difference between market $ and value as is

NOTE:

Cant be disproportionate to probable loss in value of

property (PeevyHouse)

No punitive damages
Peevys Economic benefit test: If construction
/bdg contract, if defect can be repaired without
undue expense, cost of performance is proper
measure of damages, but if defect cant be
remedied without cost disproportionate to the
end to be attained, diminution in value rule

Contracts Page 1