Fundamentals of Business Law Summarized Cases, 8 th Ed., and Excerpted Cases, 2 nd Ed. ROGER LeROY MILLER Institute for University Studies Arlington, Texas GAYLORD A. JENTZ Herbert D. Kelleher Emeritus Professor in Business Law University of Texas at Austin

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 2 Learning Objectives What is the difference between compensatory and consequential damages? What are nominal damages and when do courts award them? What is the standard measure of compensatory damages when a contract is breached? How are damages computed differently in construction contracts? Under what circumstances is the remedy of rescission and restitution available? When do courts grant specific performance as a remedy? What is the rationale underlying the doctrine of election of remedies?

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 3 Types of Damages Compensatory Damages: –Compensates injured party (Plaintiff). –Plaintiff must prove actual damages caused by breach. Amount: Generally: difference between Defendant’s promised performance and actual. Sale of Goods: difference between the contract price and market. Sale of Land/Construction Contracts.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 4 Types of Damages Consequential (Special) Damages –Foreseeable damages that result from breach of contract. –Caused by other than breach of contract. Punitive (Exemplary) Damages. –Deter wrongdoer; set example. Nominal Damages.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 5 Types of Damages Mitigation of Damages. –Injured party has a legal duty to mitigate damages. –CASE 12.1 Hanson v. Boeder (North Dakota, 2007).

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 6 Types of Damages Liquidated Damages vs. Penalties. –Liquidated: fixed, certain dollar amount agreed to by parties, paid in the event of breach. LD’s are enforceable. –Penalty: designed to penalize a party. Generally not enforceable.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 7 Equitable Remedies Rescission: cancel or undo a contract. –Available for fraud, mistake, duress and failure of consideration. Restitution: recapture the benefit conferred on the defendant that has unjustly enriched her. –Parties must return goods, property or money.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 8 Equitable Remedies Specific Performance. –Sale of Land. CASE 12.2 Stainbrook v. Low (Indiana, 2006). Reformation: court re-writes the contract to reflect parties’ true intentions.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 9 Plaintiff must show: –Benefit was conferred on the other party. –Party conferring benefit expected to be paid. –Party seeking recovery did not volunteer. –Retaining benefit without payment would be unjust enrichment. Recovery Based on Quasi Contract

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 10Remedies

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 11 Contract Provisions Limiting Remedies Exculpatory Clauses or Limitations of liability clauses. CASE 12.3 Lucier v. Williams (2004).

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 12 Election of Remedies Nonbreaching party usually has several remedies available. Purpose is to prevent double recovery.

Fundamentals of Business Law Summarized Cases, 8 th Ed., and Excerpted Cases, 2 nd Ed. ROGER LeROY MILLER Institute for University Studies Arlington, Texas GAYLORD A. JENTZ Herbert D. Kelleher Emeritus Professor in Business Law University of Texas at Austin

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 14 Learning Objectives What are some important clauses to include when making offers to form e-contracts? How do shrink wrap and click-on agreements differ from other contracts? How have traditional laws been applied to these agreements? What is an electronic signature? Are electronic signatures valid? What is a partnering agreement? What purpose does it serve? What is the UETA? What are some of the major provisions of this act?

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 15 Forming Contracts Online Online Offers should include: –Remedies for Buyer. –Statute of Limitations. –What constitutes Buyer’s acceptance. –Method of Payment. –Seller’s Refund and Return Policies. –Disclaimers of Liability. –How Seller will Use Buyer’s Information (Privacy).

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 16 Dispute Settlement Provisions. –Choice of Law. –Choice of Forum. –E-Bay uses online dispute resolution. Displaying the Offer (via hyperlink). –CASE 13.1 Feldman v. Google, Inc. (Pennsylvania, 2007). How Offer Will Be Accepted. –Amazon.com--Checkout. –“I Accept” Button to Click. Forming Contracts Online

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 17 Online Acceptances Click-on Agreements. –CASE 13.2 Mortgage Plus, Inc. v. DocMagic, Inc. (Kansas, 2004). Shrink-Wrap Agreements. –Contract terms are inside the box. –Party opening box agrees to terms by keeping merchandise. Enforceable Contract Terms. (UCC 2-204). Additional Terms.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 18 Online Acceptances Click-On Agreements occur when Buyer “checks out” or clicks on “I Accept” button on Seller’s website or when software is installed. Browse-Wrap Terms. –CASE 13.3 Specht v. Netscape Communications Company (2002).

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 19E-Signatures E-Signature Technologies. –Asymmetric Cryptosystem. –Cyber Notary. State Law Governing E-Signatures. –Uniform Electronic Transactions Act (1999). Federal Law. –E-SIGN (2000) gives e-signatures and e- documents legal force.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 20 Partnering Agreements Sellers and Buyers agree as to protocols to create online agreements. Useful for electronic inventory (Just In Time) ordering of parts and supplies.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 21UETA Purpose is to remove barriers to forming electronic commerce. E-Signature is “electronic sound, symbol or process…associated with a record and… adopted by a person with intent to sign the record.” UETA applies only to e-records and e- signatures relating to a transaction.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 22 UETA and Federal E-SIGN E-SIGN explicitly refers to UETA. Provides that E- SIGN is pre-empted by state passing of UETA. But state law must conform to minimum E-SIGN procedures.

Copyright © 2010 South-Western Legal Studies in Business, a part of South-Western Cengage Learning. 23 Highlights of UETA Parties must agree to Conduct Transactions Electronically. –A party can “opt out” of UETA terms. Attribution—process to ensure person sending an electronic record is in fact the real person. Electronic Errors. Timing: “ box” Rules. –Dispatched when leaves control of sender. –Received when enters recipient’s processing system.