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Chapter 12 Performance of Contracts and Remedies for Breach

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1 Chapter 12 Performance of Contracts and Remedies for Breach
PowerPoint Slides to accompany The Legal Environment of Business and Online Commerce 5E, by Henry R. Cheeseman Chapter 12 Performance of Contracts and Remedies for Breach Prentice Hall © 2007

2 Genuineness of Assent The requirement that a party’s assent to a contract be genuine Prentice Hall © 2007

3 Mistakes Mutual mistakes Unilateral mistakes
Mutual mistakes of a past or existing material fact Mutual mistake of value Unilateral mistakes Mistaken party can generally not rescind. Prentice Hall © 2007

4 Misrepresentation Intentional misrepresentation (fraud)
Material misrepresentation of a fact Intent to deceive Justifiable reliance by the innocent party The innocent party was injured Innocent misrepresentation Prentice Hall © 2007

5 Duress Occurs where one party threatens to do a wrongful act unless the other party enters into a contract Prentice Hall © 2007

6 Undue Influence Undue influence occurs when one person takes advantage of another’s mental, emotional, or physical weakness and unduly persuades that person to enter a contract. A contract entered into under undue influence is voidable by the innocent party. Prentice Hall © 2007

7 Proving Undue Influence
A fiduciary or confidential relationship must have existed between the parties. The dominant party must have unduly used his or her influence to persuade the servient party to enter into a contract. Prentice Hall © 2007

8 Statute of Frauds State statute that requires certain types of contracts to be in writing to be enforceable. Prentice Hall © 2007

9 Contracts Generally Required to Be in Writing
Contracts involving interests in land Contracts that by their own terms cannot possibly be performed within 1 year Guaranty contracts in which a person promises to answer for the debt or duty of another Contracts for the sale of goods worth $500 or more Prentice Hall © 2007

10 Contracts Involving Interests in Land
Real property The land itself as well as buildings, trees, soil, minerals, timber, plants, crops, and other things permanently affixed to the land Fixtures Personal property that is permanently affixed to the real property, such as built-in cabinets in a house Prentice Hall © 2007

11 Other Interests in Real Property
Mortgages Leases Life estates Easements Prentice Hall © 2007

12 Agents’ Contracts Agents’ contracts to sell real property must be in writing in some states. This is sometimes called the equal dignity rule. Prentice Hall © 2007

13 Formality of the Writing
In general, any writing is sufficient. Required signature The contract must be signed by person against whom enforcement is sought. Prentice Hall © 2007

14 Parol Evidence Rule Parol evidence is any oral or written words outside the four corners of the written contract. If a written contract is a complete and final statement of the parties’ agreement, any prior or contemporaneous oral or written statements that alter, contradict, or are in addition to the terms of the written contract are inadmissible in court regarding a dispute over the contract. Merger or integration clause Prentice Hall © 2007

15 Third Party Rights Assignment—the transfer of contractual rights by the obligee to another party Assignor—the obligee who transfers the right Assignee—the party to whom the right has been transferred Prentice Hall © 2007

16 Beneficiaries Intended beneficiary
A third party who is not a party to contract but who was intended to benefit under the contract can enforce the contract against the obligor. Prentice Hall © 2007

17 Promises of Performance
Covenant Unconditional or unqualified promise Conditional promises Condition precedent - requires the occurrence or nonoccurence of an event before performance is due. Condition subsequent – the occurrence or nonoccurence of an event excuses performance. Prentice Hall © 2007

18 Discharge of Contracts
By agreement Mutual rescission Substituted contract Novation Accord and satisfaction Prentice Hall © 2007

19 Discharge of Contracts
Impossibility of performance Death or incapacity of promissor in a personal service contract Destruction of the subject matter Supervening illegality Prentice Hall © 2007

20 Discharge of Contracts
Commercial impracticability An unforeseeable event makes performance impractical. This defense is not recognized by all states. Prentice Hall © 2007

21 Unconscionable Contracts
A contract may be found to be unconscionable if the following elements are present: Severely unequal bargaining power Dominant party unreasonably used superior power to obtain unfair terms. Adhering party had no reasonable alternative. Prentice Hall © 2007

22 Types of Performance Complete performance Results in executed contract
Tender of performance discharges a party’s obligation. Prentice Hall © 2007

23 Types of Performance Substantial performance Results in a minor breach
Non-breaching party’s options Ask the breaching party to elevate performance. Deduct the cost of repair from the final payment. Sue for the cost of repair if the final payment has already been made. Prentice Hall © 2007

24 Types of Performance Inferior performance Results in a material breach
Non-breaching party’s options Rescind the contract and seek restitution. Affirm the contract and sue for damages. Prentice Hall © 2007

25 Types of Monetary Damages
Compensatory Compensates a nonbreaching party for the loss of the bargain. The goal is to place the nonbreaching party in the same position as if the contract had been fully performed. Prentice Hall © 2007

26 Types of Monetary Damages
Consequential Compensates a nonbreaching party for foreseeable special damages that result from the breach. Prentice Hall © 2007

27 Types of Monetary Damages
Liquidated Agreement by the parties in advance that sets the amounts of damages recoverable in case of breach Prentice Hall © 2007

28 Mitigation of Damages A nonbreaching party is under a legal duty to avoid or reduce damages caused by a breach of contract. Prentice Hall © 2007

29 Equitable Remedies Specific performance
Court orders the breaching party to perform the acts promised in the contract. Subject matter of the contract must be unique. Prentice Hall © 2007

30 Equitable Remedies Reformation Injunction
Court rewrites a contract to express the parties’ true intentions; usually used to correct clerical errors. Injunction Court order that prohibits a party from doing a certain act Prentice Hall © 2007

31 Intentional Interference With Contractual Relations
An enforceable contract exists between two parties. A third party knows of the contract and induces one of the parties to the contract to breach it. Prentice Hall © 2007


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