dynamic business law essentials 3e 2016 chapter 14

The contract is a “requirements” contract, stipulating that Arrow will purchase whatever number of “Arctic Ice” brand 100% wool sweaters it needs for a one-year period, at a “per-unit” p

Chapter 14

Discharge and Remedies

Chapter 14 Case Hypothetical and Ethical Dilemma

K K Legume, Incorporated is a reputable and popular sweater manufacturer Based upon Legume’s reputation and popularity, Arrow Stores, L L C enters into a contract with Legume The contract is a

“requirements” contract, stipulating that Arrow will purchase whatever number of “Arctic Ice” brand

100% wool sweaters it needs for a one-year period, at a “per-unit” price of $12.00

Two developments result in litigation between Legume and Arrow First, due to an unanticipated sheep shortage, with substantially fewer sheep to shear, the price of wool skyrockets 1,000 percent Second, due to an unexpected “cold snap,” consumer demand for wool sweaters increases dramatically, resulting in a 500% increase in Arrow’s wool sweater orders to Legume, compared to order averages over the previous ten years (the parties have a long-standing business relationship.)

Legume implores Arrow to increase its per-unit purchase price to $36.00, but Arrow refuses to modify the price term stipulated in the contract When Arrow refuses to pay a higher price for the sweaters, Legume ceases delivery, claiming that it would be bankrupted by continuing to fill Arrow orders; further, Legume claims that based upon the longstanding business relationship between the parties,

Arrow has at least an ethical obligation to pay a higher price

Who wins? Does Arrow have an ethical obligation to pay a higher price, based upon such an

unanticipated change in circumstances?

Chapter 14 Case Hypothetical

Hillman Brothers Construction, Inc agreed to build a home for Maggie Sykes The total contract price for the home is $325,000 The home is complete in all respects except for the fact that shutters have not been installed on the windows The contract between the parties stipulated that Hillman

Brothers would install shutters on each window

The day before the “closing” on the home’s purchase, Maggie noticed that Hillman Brothers had not installed the shutters She then called the owner, president and chief executive officer of the company, Andrew Hillman, and a heated argument between the two ensued (Maggie is well-known for her “anger management” issues, and she becomes especially angry when her requests as a buyer are not met.) The conversation ended with Andrew proclaiming that “Hades would freeze over” before he had his construction crew install the shutters, and with Maggie asserting that the “deal is off.” Hillman Brothers expects to be paid the full contract price, $325,000, for the home, based on the fact that “irreconcilable differences” between the parties make it impossible for the company to install the shutters, and since Maggie’s incorrigible personality caused the impassible chasm between them

For total “parts and labor,” it would cost $5,750 to install the shutters

Is Maggie Sykes obligated to purchase the house? If so, is she obligated to pay the full contract price

Circumstances Resulting in

Discharge of Contract

•Performance

•Happening of condition or its failure to occur

•Material breach by one/both parties

•Mutual Agreement

Types of Conditions

•Condition Precedent: Particular event that must occur for a party’s duty to arise

•Condition Subsequent: Future event that terminates obligations of parties when it occurs

•Concurrent Conditions: Each party’s performance conditioned on simultaneous performance of the other

Types of Conditions (Continued)

•Express Condition: Condition explicitly state

in contract (usually preceded by words such

as “conditioned on”, “if”, “provided that”, or

“when”)

•Implied Condition: Condition not explicitly stated, but inferred from nature and language

of contract

Definition: An offer of performance;

making an offer to perform and being ready, willing and able to perform

Types of Performance

•Complete Performance: Occurs when all aspects of parties’ duties under contract are carried out perfectly

•Substantial Performance: Occurs when:

-Completion of “nearly all” terms of agreement;

-Honest effort to complete all terms; and -No “willful departure” from terms of

agreement

Discharge By Material Breach

•Occurs when party unjustifiably fails to substantially perform his/her contractual obligations

•Discharges non-breaching party from his/her contractual obligations

Anticipatory Repudiation

•Definition: Party decides, before the actual time of performance, not to complete contract obligations

•Often occurs when market conditions change and one party realizes it will not be profitable

to fulfill terms of contract

Anticipatory Repudiation

(Continued)

•Can occur either through express indication of intent not to perform, or action inconsistent with ability to carry out contract obligations when

performance due

•Once contract anticipatorily repudiated, non-breaching party discharged from obligations under contract, and can sue immediately for breach

Discharge By Mutual Agreement

•Mutual Rescission: Both parties agree to discharge each other from their mutual obligations

•Substituted Contract: Parties agree to substitute new contract in place of original contract

•Accord and Satisfaction: Used when one party wishes to substitute a different performance for his/her original contractual duty

-“Accord”: Promise to perform new duty -“Satisfaction”: Actual performance of new duty

Discharge By Mutual Agreement

(Continued)

•Novation: Parties to contract wish to replace one

of the parties with a third party

•“Novation” is the substitution of a party

•Original duties remain same under contract, but one party discharged, and third party

takes original party’s place

Discharge By Operation of Law

•Alteration of Contract

•Bankruptcy

•Tolling of statute of limitations

•Impossibility of performance

•Commercial Impracticability

Legal Remedies (Monetary Damages) For Breach

of Contract

•Compensatory Damages: Damages designed to put plaintiff

in position he would have been in had contract been fully performed

•Consequential (Special) Damages: Foreseeable damages that result from special facts and circumstances arising

outside contract itself These damages must be within contemplation of parties at time breach occurs

•Punitive Damages: Damages designed to punish defendant and deter him and others from engaging in similar behavior in the future

-Primary factor in determining amount of punitive

Legal Remedies (Monetary Damages) For

Breach of Contract

•Nominal Damages: Award (typically for only

$1 or $5) intended to signify that although no actual damages resulted from defendant’s breach of contract, plaintiff wronged by

defendant

•Liquidated Damages: Damages for breach

of contract specified in the contract itself (either as fixed amount, or as formula for determining money due)

Duty to Mitigate Damages

Definition: Obligation on non-breaching party (plaintiff) to use reasonable efforts to

minimize damage resulting from defendant’s breach of contract

Equitable Remedies For Breach of

Contract

•Rescission: Termination of contract

•Restitution: Return of any property transferred under contract

•Specific Performance (Specific Enforcement):

Order requiring breaching party to fulfill obligations under contract Usually awarded only when monetary damages inadequate, and subject matter of contract unique (Example: Contract for

Equitable Remedies For Breach of

Contract (Continued)

•Injunction: Order forcing person to do something, or prohibiting person from doing something (usually a prohibition against certain actions)

•Reformation: Contract rewritten to reflect parties’

actual agreement

•Quasi-Contract: “Contract-like” obligation

Elements Necessary to Recognize

Quasi-Contractual Recovery

•Plaintiff conferred benefit on defendant

•Plaintiff reasonably expected to be compensated for benefit conferred on defendant

•Defendant would be “unjustly enriched” from receiving benefit without compensating

plaintiff