ARTICLE 1: The first article that I reviewed was RESTITUTION AS A REMEDY FOR BREACH OF CONTRACT: THE CASE OF PARTIALLY PERFORMING SELLER by Henry Mather. The article basically dealt with the five different ways or situations in which restitution could be used by the courts as a remedy for breach of contract. The author took a situation when the seller performs partially and came up with a conclusion that the seller in case of partial performance should not be paid in the form of money restitution and should be limited to his expectancy damages. Consider a case with the following assumptions-a contractor and an owner enter into a contract and the contractor has to build a house for the owner for a sum of $50,000 assuming contract …show more content…
In this case, the contractor does receive restitution but it is limited to the contract price, he does not get more than what has been mentioned in the contract. C: Contract rate as the measure of restitution. The contract rate is also used by few courts to calculate the restitution for the partial performance of the seller. The plaintiff (contractor) receives that much amount that has been earned by his part performance which is in accordance to the terms of the contract. If the contract rate was measured in terms of dollar per unit of performance, then the contractor would get the amount of money according to the units he had performed. D: Restitution measured according to the costs incurred by the seller. In the hypothetical situation that has been presented, according to this rule, the restitution money would amount to $48,000. This is less than the restitution amount measured by the two methods of market value restitution of partial performance and market value restitution with a price ceiling; and more than the contract rate restitution and contractor’s expectancy damages. E: Measuring restitution according to the gains of the
(1) When the contract was entered into, was it apparent that damages would be difficult to estimate in the event of a breach? (2) Was the amount set as damages a reasonable estimate and not excessive? (Cross & Miller, 2012)
Aldo shipped 10 refrigerators to Rafael pursuant to a sales contract under which title to the goods and risk of loss would pass to Rafael upon delivery to Fleet Railroad. The agreed price was $5,000. When the refrigerators were delivered to Rafael, he found they were damaged. An estimate for repairing them showed it would cost up to $1,000, and an expert opinion was to the effect that they were defective when shipped. Rafael put in a claim to Aldo, which Aldo rejected. Rafael then wrote to Aldo, “I don’t like to get into a despite of this nature. I am enclosing my check for $4,000 in full payment of the shipment.” Aldo did not reply, but he cashed the check and then sued Rafael for the $1,000 balance. May he recover? Explain.
Liability in restitution with disgorgement of profit is an alternative to liability for contract damages measured by injury to the promisee.” (2011)
PART B: CAN GRACE CLAIM DAMAGES FOR: i) $25,000 spent in the leasing larger premises and placing advertisement ii) $20,000 paid to fulfil the contract with
A company known as Apex Art was recently asked to prepare a bid on 500 pieces of framed artwork for a new hotel. If Apex Art wins the bid, then the benefits would lead directly to sales representative Jason Grant, whose income relies on commission. In other words, he would receive a large sum of money as a result of the winning bid. The cost accountant for Apex, Sonja Gomes, prepared the bid and calculated the total product costs of the framed artwork to be $121,000. Since the company policy states that the pricing must be at 125% of full cost, Gomes provides Grant a total amount of $151,200 to submit for the job. Grant notifies Gomes that at the price of $151,200, the company is incapable of winning the job. He confesses to Gomes that he had spent $500 of company funds to treat the hotel’s purchasing agent to a basketball playoff game where the purchasing agent revealed to him that a bid of $145,000 would win the job. At first, Grant had no intention of letting Gomes know of this information because he was sure that she would have developed a bid that would be below the amount that the purchasing agent told him about, $145,000. Therefore, he thoroughly explains to Gomes that if the company does not take advantage of the important information that the purchasing agent had revealed to him, then the $500 of company funds that he had spent would go to waste. Nevertheless, Apex Art would still generate some profit if it wins the bid at $145,000 because it is higher than the full cost of $121,000. In order to come to fair grounds, Gomes advises Grant to use cheaper materials for the frame, which will assist him in attaining a bid of $145,000. Since the artwork was pre- selected and thus cannot be altered, the total amount of cost redu...
As a result of the breach, I am pursuing legal options to mitigate my losses; court precedence allows me to do such a thing as shown in the case of “Sons of Thunder Inc. vs Borden Inc. In it, the case was allowed to go to court based on the ruling of a breach in the Good Faith and Fair Dealing clause that developed throughout their business relationship. As a result of the case proceeding, Borden was found guilty of violating the Requirements Contract (among other grievances mentioned in their case) and was ordered to compensate Sons of Thunder Inc. for the loss in result to the breach. (Sons of Thunder Inc. vs Borden Inc. 1997)
The injured party right to claim damage for breach of contract is not forever. The Limitation Act 1980 imposes that consumers only have 6 years to be granted remedies for contracts under deeds (for example, sale of land). If they exceed the limit to claim for damage, customers may not be granted any compensation for the damage. However, courts will have to examine case, for example if customers experience fraud, the time limit to claim remedies may extend.
The company Builder Square, Inc. was in the market to sell, subletting, or leasing vacant K-mart stores, in-turn found Network Group to carry out this process throughout the Ohio area. A deal was struck that Reisenfeld’s with the company Network that they would receive $1 per square foot for a store that was subleased totaling $260,320 in commissions. Unfortunately, Network’s sole shareholder was defrauding BSI in various ways. As a result, that Reisenfeld’s was left high and dry, with no money from the commission. After having a suit brought against Reisenfeld’s, and BSI stated that under restitution (unjust enrichment). Under Ohio law, there are three elements for quasi-contract claim. There must be (1) a benefit conferred by the plaintiff upon the defendant; (2) knowledge by the defendant of the benefit; (3) retention of the benefit by the defendant under circumstances where it would be unjust to do without payment (Kubasek, 2015, p. 313). It is the third one that the disagreement was based on was having the problem with; whether it would be unjust for BSI to retain the benefit it received without paying Reisenfeld’s for it. The courts ruled that Reisenfeld’s may seek payment from BSI under quasi-contract theory this in fact overruled the trial court’s judgment.
Compensatory damages help compensate you for the economic loss caused by a broken contract. Consequential damages are those caused indirectly by the broken contract.
In the restorative process the defense lawyers tells the court the wishes of his or her client. An Investigating magistrate will then do a report about the burglary and issue the report out. This report will have the recommendation amount for restitution he or she thinks the offender should get for his crimes. The victim then has to agree to the judge’s recommendation. If this is done the restorative justice process is complete. An alternative is to have a sentencing circle at mentioned above to figure out what restitution should be. This process is a lot faster to get through the criminal justice
(Insert Citation p 305). Consideration refers to the attained good or service agreed upon by each party under a contract. Contractual Capacity is the legal ability to enter into a binding agreement. Some factors that affect contractual capacity are: age, mental health and agreements under alcohol intoxication. Last but not least is the legal object, which means that for a contract to be enforceable it must be of legal intent and comply with public policy. If all of these factors are present in a contract, we can conclude that a binding contractual agreement exists and it is enforceable by law.
The construction site was in a downtown area of a large southeastern city, criss-crossed with city streets, utilities, and immediately adjacent to mid-rise and high rise buildings. Nearly all of the work was required to be constructed within temporary piling structures to limit settlement of adjacent structures. The construction contract called for seven phase releases of work areas and nine completion milestones, each milestone has its own liquidated damages penalty. The construction contract was valued at $10 million, and the duration was 545 calendar days. Following the completion of the work, the contractor filed a claim for $5.5 million and 1.1 million in interest. The authority subsequently denied the claim and the contractor, in accordance with the contract, filed an arbitration demand with the American Arbitration Association. Following the contractor’s issuance of the demand letter, the parties agreed to resolve the dispute through negotiation” (Ray,
Damages, a form of remedy for breach of contract, are aimed to put parties back in the position they would have been in if the breach had not occurred. Therefore, had a contract been formed Sam would be owed for the time he had worked for the two months, so this could possibly be the national minimum wage for someone aged under 18, as Sam was 17 at the time, multiplied by the total hours he worked
Where compensation takes the form of a monetary award, it adequately satisfies the plaintiff for any financial harm caused . For example...
Estimates form the basis of tender comparison, so it should be as accurate as possible, if deficient the award settlement becomes arduous (Odusami & Onukwube, 2008). Accurate cost estimate for projects are tremendously essential to both the clients and the contractor. It provides the basis for the contractor to submit the tender and allows the parties to highlight the final cost of the project at an early stage. Essentially it is used for planning the entire project and helps during the execution phase (Akintoye and Fitzgerald, 2000). It has been pointed out that the building cost of the project usually differs from the estimated final cost and this is due to the variations (Oberlender and Trost,