Contracts I and II Outline
Professor Dan Collins, 1999-2000
Prepared by Christine Bohrer Van Aken

Miscellany/Overview

-	Rstmt 1 promulgated by Williston in 1932
-	Rstmt 2 promulgated was a law reform effort that worked.
-	UCC was based on 2d Rstmt

-	Key idea behind K law: freedom of K
1.	freedom for parties to shape the deal as they wish (b/ UCC applies if they d/n specify other terms)
2.	Parties can contract w/ whom they want

-	Equity relief/s.p. normally avl only where legal remedy is inadequate
-	Judges typically w/n order performance where supervision is required.  It’s easier to get an injunction against s/th.
-	W/ performers: s/t starve them into submission (Dempsey)
-	Temporary injunctions and TROs: can be issued ex parte, or after brief hearing, to preserve suit for an outcome on the merits.

Chapter 1. Remedies for Breach of K
Introduction/§ 1. Goals of K damages

-	Restitution interest: recover values conferred on other party through efforts to perform a K; prevent gain by defaulting PO at expense of PE
-	Reliance interest: recover losses suffered b/c of reliance on the breached K: put the PE in as good a position as he was in before the promise was made
-	Expectation interest: realize the value of the expectancy created by the other’s promise: put PE where he wld be had POR performed

-	Damages in Ks a/n punitive or deterrent, unlike torts, even where the breach is willful.  Recovery is meant to merely make P whole.
-	Holmes excerpt: legal rules a/n moral rules.  Duty at K law is simply to pay damages if you breach.
-	Efficient breach: when breaching party breaches and comes out ahead even after giving injured party expectation damages
-	Argument is that compelling performance is bad in these cases

Medical Ks
-	Typical is reliance (Sullivan).  Hawkins gave expectation.

-	Hawkins v McGee, NH 1929: where surgeon guaranteed a perfect hand, damages were expectation: diff btw value of hand as promised and value of hand now.
-	Sullivan v O’Connor, MA 1973: where surgeon botched nose surgery, P waived expectation and asked for reliance.  Ct noted that reliance is often most appropriate in medical Ks: outside of commercial realm, where reassurances can sound like Ks.  Reliance included hospital expenses and fees and P’s pain and suffering.

Construction Ks
-	Issue is often cost of completion (Groves) vs. difference in value (Peevyhouse).  Both are forms of expectation damages.
-	Cts today adopt Rstmt 2 approach: cost of completion if it’s n/ disproportionate; otherwise difference in value
-	Often the factfinder will also look at whether the property is an investment or n/: if the owner will complete the construction, shld get cost of completion, b/ if owner will just pocket the overage and sell the property, difference in value is proper.  (Advanced, Inc. v Wilks, AK 1985)
-	Cost of completion is proper measure rather than benefit of the bargain where this gives P a windfall (Louise Caroline).  The idea simply is to allow P to get what it wanted from the K, a nursing home, rather than give P an unbargained-for benefit at D’s expense, or put P in a better position than it wld have been if K had been performed
-	(Compare w/ Freund: no cost of completion in breached publishing K.  Expectation was royalties.)

-	Groves v John Wunder Co, MN 1939: where D willfully breached K, and excavated gravel b/ d/n ameliorate premises, recovery was cost of completion.  There was no economic waste here.  Dissent says this creates a windfall for P.
-	Peevyhouse v Garland Coal & Mining Co, OK 1962: where D breached K by n/ ameliorating land after strip mining, Ps recovered difference in value of land.
-	Rstmt 1: P can get cost of completion if there is no economic waste; otherwise, P shld get difference in value; and follies example.
-	Rstmt 2: P can get cost of completion if it’s n/ clearly a disproportionate recovery; otherwise P shld get difference in value.
-	Louise Caroline Nursing Home v Dix Construction Corp, MA 1972: where D abandoned performance on nursing home, b/ nursing home cld be completed for unpaid K price, P got no recovery.
-	Ct gave P cost of completion rather than benefit of the bargain: w/n put P in a better position than if K had been performed
-	P cld have recovered costs of delays if had presented evidence of any

Sale of goods Ks: seller’s breach
-	Pre-UCC: measure of damages is difference btw mkt price and K price at the place and time of delivery (Acme Mills)
-	UCC 2-713: where buyer d/n cover, damages are difference btw mkt price at time and K price at time when buyer learned of breach + incidental/consequential damages less expenses saved b/c of breach
-	Comment: the yardstick is the mkt the buyer wld have faced had he covered
-	Also see cover sections in chart.

-	Acme Mills & Elevator Co v Johnson, KY 1911: where seller breached K to sell wheat, and where mkt price had dropped below K price at time of delivery, no recovery for P based on expectation interest: damages is mkt price and K price at time and place of delivery.  Here, P benefited by D’s breach.
-	Ct d/n allow gain from breach damages (forcing D to disgorge the overage it made by breaching the K and selling to s/o else)

Gain from breach
-	Typically, it’s n/ allowed: K law i/n punitive in damages
-	Typically any gain from breach is subsumed in expectation damages (except in cases like Acme, where price dropped below K price, b/ ct refused gain from breach)
-	Exception in Laurin (due to extenuating MA law)
-	And gain from breach is allowed in fiduciary relationships (eg Snepp v US, where CIA agent had to pay profits to govt)

-	Laurin v DeCarolis Construction Co, MA 1977: where D construction co removed gravel on P’s land, ct awarded the value of the gravel as it lay on the land.  Difference in value of property was considered an inadequate remedy to fully compensate P, esp in this case of deliberate and willful breach.  Breach from gain was awarded.
-	Result in this case is due to weird MA law that d/n allow a conversion action in tort b/c P w/n considered equitable owner prior to conveyance
-	Also, it’s K law crossing over into tort/deterrence country

Real estate Ks
-	15 states follow Flureau doctrine, which holds that if VO makes good-faith breach (eg inability to cure defective title), then VE is limited to reliance damages
-	There’s debate about what constitutes a good-faith error
-	And VE can usually recover difference in value where he has made improvements to the land
-	No emotional distress damages

§2. Limitations on Expectation Damages

Duty to mitigate
-	When there’s a breach or repudiation, P has duty to mitigate.  This is a basic precept of K law.
-	Damages are expectation up to the point of repudiation or breach, b/ n/ beyond (Rockingham County)
-	This includes costs expended plus lost profits on the whole job in construction Ks
-	Damages will include actual costs plus lost profits, generally estimated at K price minus total costs that wld be expended.
-	b/ costs of overhead a/n included, b/c it’s assumed that overhead is generally fixed and that businesses are expandable.  Overhead is something that’s paid out of lost profits.  (Leingang)
-	Damages w/n be reduced by overhead (savings b/c of the breach) b/c of the same principle: it’s assumed to be fixed (Kearsage)
-	Damages w/n be reduced by new business that’s gained following breach b/c it’s assumed that businesses are expandable (Kearsage).  D wld have to show that P w/n have gotten the new business absent D’s breach.

-	Rockingham County v Luten Bridge Co, 4th Cir, 1929: where D breached construction K and gave notice of repudiation, P had duty to mitigate by stopping construction on the bridge.  Proper recovery was expectation up to the point of repudiation: costs expended plus lost profits on the entire job.  P d/n recover for costs expended after the point of repudiation.
-	Leingang v City of Mandan Weed Board, ND 1991: where D breached K by giving a weed-cutting job to another contractor, P received costs expended toward performance plus lost profits (K price less cost) b/ n/ overhead: that’s assumed to be fixed, and P must pay them whether or not the K is performed.
-	It’s assumed that businesses are expandable, and that the contractor pays overhead out of net
-	Kearsarge Computer v Acme Staple Co, NH 1976: where D breached K for data-processing services by P, lost profits recovery w/n reduced by overhead.
-	D claimed that P saved overhead costs b/c of it’s breach, b/ ct held that these costs are fixed.  This included payroll, equipment rental, etc.
-	D also claimed that P got new business b/c of the breach; b/ ct disagreed: businesses are assumed to be expandable

Personal service Ks and duty to mitigate:
-	There’s a duty to mitigate upon breach or repudiation: look for another job
-	B/ P d/n have to take employment of a different or inferior kind (Parker)
-	S/t D will get an offset from a collateral source (eg unemployment benefits, Social Security), b/ n/ always (Billetter)
-	W/ a long-term employment K that is breached early in the K term, if there is adjudication of mitigation/offset, it’s final.  D c/n come back later and get judgment reduced b/c P got a better job than expected.  Also, it’s hard for D to prove what kind of mitigating employment P cld get, so D usually has to pay most of the K.

-	Parker v 20th Century-Fox, CA 1970: where D breached emp K, P had duty to mitigate b/ d/n have to accept role in western b/c it was employment “of a different or inferior kind”
-	The western paid as much, b/ it w/n a musical, and P d/n have as much artistic control
-	Billetter v Posell, CA 1949: in breach of employment K, no offset for other job offered b/c it paid less and was less responsible, and no offset for unemployment insurance (collateral source)

Seller’s breach: cover and anticipatory repudiation
-	Early approach in sale of goods: recovery is difference btw mkt price and K price, even if buyer covers.  If buyer covers and for some reason the cover price is higher than the mkt price, buyer can only recover mkt price.
-	 buyers lost out when covering in some cases (Missouri Furnace)
-	This was detrimental to buyers who reasonably tried to cover, and just generally created economic loss
-	UCC changed it w/ 2-712: buyer gets difference btw cover price and K price if he covers
-	Cover must be made in good faith and w/o delay.
-	(Good faith=honest in factand reasonable according to stds of the trade)
-	Buyer d/n have obligation to cover, b/ damages are measured based on the mkt when buyer cld have covered (2-713)
-	UCC 2-610: When there’s anticipatory repudiation, either party can wait until other party d/n perform before covering (rather than covering at the time of the repudiation) (Reliance Cooperage Corp)
-	Or the can cover right away
-	And the non-breaching party can suspend performance
-	The non-repudiating party can bring suit right away (Hochster) or can wait until performance is due
-	Case law generally indicates that in these cases, damages will be based on mkt price “at a commercially reasonable time” following repudiation
-	UCC 2-611: Until repudiating party’s next performance is due, he can retract repudiation unless the other party has changed position b/c of the repudiation or has otherwise said he considers the repudiation final.
-	UCC 2-716: buyer can get s.p./replevin if goods are unique or he c/n cover

-	Missouri Furnace Co v Cochran, WDPA, 1881: where seller breached installment K for coke, buyer covered w/ new K at mkt price.  Later mkt price dropped.
-	P recovers difference btw mkt price and K price at time of delivery, n/ diff btw K price and cover price.  Ct says P w/n bound to go out and cover.  UCC changed this rule.
-	Here, the cover price was fixed b/ the mkt price was measured upon each delivery.  So when the mkt later dropped, P was stuck w/ cover price and c/n recover difference from D.
-	Reliance Cooperage Corp v Treat, 8th Cir 1952: where seller notified buyer that he planned to breach K for “bourbon staves,” b/ buyer tried to persuade seller to fulfill the K, and buyer d/n cover, buyer received damages based on difference btw K price and mkt price at time of breach, n/ at time of anticipatory repudiation
-	Cover is designed to protect injured party, n/ breaching party
-	Buyer d/n have to cover until there were actually damages to mitigate (time of breach)
-	Hochster v De la Tour, Eng. 1853: in action for anticipatory repudiation of personal svc K (to accompany D to Europe), P cld bring action for damages before performance is due.  Otherwise, P wld have to sit idle and prepare for K he knew was going to be breached.

Buyer’s breach
-	UCC 2-708(1): when buyer breaches, measure of damages for seller is difference btw mkt price at time and place for tender and the unpaid K price plus incidental less expenses saved
-	UCC 2-708(2): if this is inadequate, measure of damages is lost profits including reas overhead, plus incidental damages (Neri).
-	708(2) is typically used for fixed-price sellers.  708(1) is inappropriate b/c the K price is the same as mkt price.
-	“Lost-volume analysis”: For resellers, no offset b/c they sold the product in the interim (Neri).  The assumption is that they have an unlimited quantity of the same good to sell.
-	Seller must show that he wld have sold next unit.
-	UCC 2-706: Seller’s resale: seller gets the difference btw K price and resale price, plus incidental less expenses saved
-	UCC 2-709: Action for the price: special remedy if goods are delivered b/ buyer d/n pay or if the item c/n be resold (eg monogrammed items)

-	Neri v Retail Marine Corp, NY 1972: where buyer repudiated boat purchase after making downpayment, seller was entitled to lost profits and incidental damages under 708(2), less the amt of the downpayment (718(2) and 718(3)).  Also, d/n take into account the fact that seller sold the same boat to s/o else.  As a retailer, he has unlimited supply, and any lost sale is a lost profit.

Seller’s breach: Incidental/consequential damages
-	Consequential damages are only recoverable if they are foreseeable (Hadley)
-	Holmes formulation: “tacit agreement” test (Lankins), esp where there are big consequential damages compared to the value of the K
-	Rstmt adopts Hadley b/ says that disproportionate recovery w/n be given (almost like tacit agreement)
-	UCC 2-715: consequential damages are avl if seller had reason to know of the damages and they c/n be prevented by cover.  UCC proposed revision adopts Rstmt limit on disproportionate recovery
-	That’s a default rule.  B/ see UCC 2-719(3): Parties can limit consequential damages in the K if it’s n/ unconscionable.
-	Proposed revision also says that sellers may recover consequential damages in the same manner as buyers
-	One criticism of the Hadley rule: it’s easy for cts to manipulate foreseeability to get the results they want.

-	Hadley v Baxendale, Eng. 1854: where P’s crank shaft broke, and P shipped it to engineers so they cld use it to bld a new one, and D was the shipper, and D breached K by shipping delays, and P d/n specifically tell D of the special consequences of breach, D w/n liable for consequential damages (ie the days of lost profits b/c the mill was stopped)
-	Historic case: ct instructed jury on what damages are recoverable, and est. foreseeability in determining consequential damages
-	Lamkins v International Harvester Co, AR 1944: where P bought tractor w/ lighting, and D d/n deliver lighting for a year, P sued to recover losses b/c he c/n plant a particular tract b/c c/n farm at night w/o lighting.  Given the disproportionate btw the losses and the value of the K, Holmes adopts tacit agreement test: did D tacitly consent to be bound to more than ordinary damages?
-	Victoria Laundry Ltd v Newman Industry Ltd, Eng. 1949: where P laundry company purchased large boiler, and D delayed delivery, lost profits were acceptable damage b/c D cld reasonably foresee that that wld be the consequence of his breach.  However, lost unusual business (“particularly lucrative dyeing Ks”) w/n recoverable b/c D c/n have known about that.

Emotional distress
-	Punitive damages, damage to reputation, and mental distress damages normally n/ recoverable (Valentine)
-	Possible exception: if the K is a particular, very personal K (eg Sullivan: pain and suffering)
-	Rstmt says emotional distress shld also be allowed if there was bodily harm due to breach
-	Atty’s fees n/ recoverable

-	Valentine v General American Credit, MI 1984: where P sued for breach of employment K, P c/n recover mental distress even though it is foreseeable that termination of this kind of K wld result in mental distress.  Only very narrow personal Ks can be allowed mental distress (eg MD’s promise to deliver child by caesarean), and primary purpose of employment K is financial, n/ emotional.
-	Also, pecuniary damages are much easier to valuate

No speculative expectation damages
-	No speculative expectation damages (Freund), b/ evidence may be entered and if damages can be proved w/ “stable fdn,” they will be awarded.  Precise proof of damages i/n needed (Fera).
-	Fera was a holding against the “new business rule”: no lost profits for new businesses.

-	Freund v Washington Square Press, NY 1974: where D breached K to publish MSS (after n/ exercising option to terminate agreement w/in 60 days), P’s request for s.p. was rejected.  Also, cost of publication w/n proper measure of damages (puts P in better position than w/ K).  Instead, P’s expectation interest was royalties, b/ that was too speculative to award.  (Also, P’s prestige/job factors too speculative.)  Nominal damages only.
-	Fera v Village Plaza, MI 1976: where Ds breached commercial lease K w/ Ps who were starting a business, ct upheld damage award for new business where there was testimony about potential lost profits.  “Stable fdn” needed, b/ n/ precise proof.

§3. Alternative interests: reliance and restitution

Generally
-	Often, reliance or restitution will be applied in noncommercial settings (see Sullivan)
-	Applied even in commercial settings if damages are too speculative (Fera, Dempsey)
-	Reliance expenses incurred before the K was formed:
-	Normally n/ awarded (Dempsey), b/ ct in Anglia awarded, b/c D knew that expenses had been incurred already.
-	Rstmt 2d: Reliance = expenditures made in preparation for performance or in performance, less any loss that D can prove P wld have suffered had K been performed (Albert & Son).  Can be “essential reliance” (preparation for K i/s) or “incidental reliance” (preparation for collateral transactions based on performance)
-	Where K is unenforceable via S/F, no reliance (or expectation) is granted (Boone 1913).  This is later changed from specific exceptions to pretty general doctrine that reliance avoids S/F, esp in land, although n/ all cts enforce.
-	Exceptions mentioned in Boone: personal service to a person who has died, on the promise that a legacy wld be received; vendee of land under parol K can recover purchase money and compensation for improvements, and personal services under quantum meruit

-	Chicago Coliseum Club v Dempsey, IL 1932: where D breached K to box in match, profits from match were too speculative.  Expenses incurred in trying to enforce the K (eg the injunction) a/n recoverable: P took those steps at his own risk.  P recovered only reliance expenses: monies paid to the promoter, trips in preparation for the event, etc.
-	P c/n recover reliance expenses from before the K was made.  B/ see Anglia.
-	IN equity ct had ordered D n/ to fight a/o else, b/ he ignored the injunction.  Risked civil contempt suit by P or criminal contempt action by ct.
-	Security Stove v American Railway Express, MO 1932: where D failed to transport demonstration gas burner to trade show, expectation damages on sales were too speculative, b/ reliance damages (cost of wasted shipping and travel to the show) were awarded.
-	Anglia Television Ltd v Reed, Eng. 1971: where D breached K to act in televised play, expectation was too speculative, b/ P was awarded reliance damages, even for expenses prior to the K b/c D knew that the expenses had been incurred and wld be wasted if he breached.
-	Albert & Son v Armstrong Rubber Co., 2d Cir 1949: where seller breached sales K for rubber-reconditioning machines, and expectation too speculative, buyer recovered reliance less any losses that performance wld have caused that seller cld prove.
-	Boone v Coe, KY 1913: where oral lease unenforceable (S/F), and where P moved to TX in reliance on the K, P’s reliance expenses in moving w/n recoverable.
-	Also, P c/n recover in quantum meruit b/c no benefit accrued to D through P’s moving.  

Quantum meruit and other substantial performance remedies
-	Quantum meruit: promise to pay implied on the basis of partial performance for the benefit of D: K implied in law
-	It’s a thry of restitution to prevent unjust enrichment
-	Constructive K or quasi-K: K parties shld have known about or where there’s unjust enrichment.
-	S/t quantum meruit is used to mean K implied in fact, b/ usually it’s K implied in law.
-	Construction Ks: where prime contractor breaches, a subcontractor who ceases work can recover off the K, in quantum meruit, for mkt value of services rendered, even if completed performance wld have resulted in a net loss (Algernon Blair)
-	In Algernon Blair, D was required to pay more than wld have pd for same performance under the K
-	If injured party has fully or almost fully performed, c/n go off the K and get quantum meruit (Oliver)
-	This is b/c if there is a K, cts w/n create a quasi-K
-	If the svces rendered are of no benefit to D, P c/n get quantum meruit (Boone, Curtis)

-	US v Algernon Blair, 4th Cir 1973: where prime contractor Blair breached K by refusing to pay for a crane, and subcontractor left the job, subcontractor Coastal recovered under quantum meruit for value of services rendered, even though Coastal wld have lost money on the job had it been performed completely.
-	Quantum meruit is off the K: restitution interest.  K price (expectation) i/n controlling.
-	Kearns v Andree, CT 1928: where P agreed to sell real property to D, and P performed alterations at Ds behest, and where the K was unenforceable b/c it was indefinite, P cld recover reliance expenses (alterations)
-	Farash v Sykes Datatronics, NY 1983: where P agreed to lease bldg to D, and modified bldg at D’s request, and no agreement was signed, the lease was unenforceable (S/F), b/ P cld recover reliance expenses.
-	Curtis v Smith, VT 1874: P contracted to bld stone walls for D’s bakery.  D repudiated after P had quarried sotone b/ before installation had begun.  No restitution recovery since the work d/n confer benefit on D.
-	Here, P still had the quarried stone, which was of value.  Also, Dempsey thry of reliance cld give P recovery.
-	Oliver v Campbell, CA 1954: P, an atty, agreed to represent D in divorce for $850.  The trial lasted a month, b/ D dismissed P just before order was entered.  No quantum meruit recovery b/c K was “in effect” fully performed.  P limited to on-the-K remedies.

Defaulting Ps & restitution
-	Doctrine of substantial performance: where a party that breaches that h/n performed fully b/ has “substantially performed” can recover (Britton)
-	Whether on the K or off the K varies by jurisdiction, b/ typically on the K if subst performance
-	This is a new rule: old rule was that you cld get nothing if you breached the K.  This gave contractors an incentive to drive laborers away just before the work was done.
-	If there is no substantial performance, j/ds vary.  Some cts allow recovery for any benefit conferred on injured party.  Other cts, including NY, allow no recovery if no substantial performance (Kelley), b/ very liberal view of substantial performance.
-	Sale of goods Ks:  UCC 2-718(2): where buyer breaches, and seller withholds goods, buyer is entitled to restitution to downpaymt less liquidated damages or the lesser of 20% of total performance or $500, offset by remedies in other parts of UCC (2-708: lost profits or diff btw K price and mkt price, Neri). 
-	Construction Ks: where P breaches by error, entitled to payment on the K less offset for difference in value (not offset by cost of completion) (Pinches)
-	Willful breach and good faith conduct may be factors the cts will consider in deciding if restitution is warranted and if there has been substantial performance (Kelley)
-	Real estate Ks: purchaser whose breach i/n willful can recover in restitution if seller has been unjustly enriched (damages suffered by seller are less than moneys received from the purchaser) (Vines)
-	And where there’s liquidated damages clause, purchaser has burden of showing that the clause is unenforceable
-	In TX, restitution is flexible when dealing w/ defaulting buyer
-	NY denies restitution to defaulting buyers.  Generally, there’s a 10% liq damages clause, and even if n/, it’s hard to prove damages, and real estate Ks are arms-length, so the partise shld be bound by the Ks (and can specify the return of the downpaymt in their Ks)

-	Britton v Turner, NH 1834: where P had K to work on D’s farm for 1 yr, and P abandoned performance after 9 months, P received recovery for svces performed
-	B/ P c/n recover for more than the value of the K, and P’s recovery cld be offset if D cld show damages suffered by the breach.
-	Pinches v Swedish Evangelical Lutheran Church, CT 1887: where P defaulted on construction K, where the church varies from the specs, and D took possession of the bldg, recovery for P permitted: K price less diminution of value of the bldg due to P’s errors.
-	Offset by difference in value, n/ cost of completion
-	Kelley v Hance, CT 1928: where P was constructing sidewalk, and abandoned performance after digging a hole, there was no recovery for P.  This was a willful, n/ a negligent breach, and there was no substantial performance.
-	Vines v Orchard Hills, CT 1980: where P breached real estate K, cld recover downpaymt as restitution if P can prove that there was unjust enrichment of D (ie, that downpaymt is greater than D’s damages as a result of breach)
-	B/ here there was liquidated damages clause setting damages at downpaymt, or 10% of purchase price: will be hard for P to rebut that this clause is an unreasonable estimate of damages (at the time of breach, n/ in light of the property’s later appreciation)

§4. Contractual Controls on the Damage Remedy

Liquidated damages clauses
-	Advantages: predictability and ease of calculation of damages.  Can s/t avoid litigation
-	B/ they a/n supposed to discourage breach: that’s a penalty
-	Liq damages are an exception to the normal rule that cts w/n scrutinize terms agreed to btw the parties

-	Enforceable where:
1.	damages are hard to approximate
2.	they bear reasonable relationship to actual damages (Pacheco)
-	there’s a tension btw those two
-	In most j/ds, the proponent of the clause must show its validity (unlike Vines)
-	2 approaches to reasonableness:
1.	Some j/ds hold only that the liq damages must be reasonable at the time the K was made (Vines) and d/n look at hindsight
2.	B/ Restmt 2d and UCC 2-718(1) say liq damages must be reasonable in light of anticipated or actual harm.  This expands the basis for allowing liq damages clauses.  So this means that if the liq damages clause is valid from either perspective it will be upheld?
-	If the damages are difficult to prove, more latitude is allowed in the approximation of anticipated damages in the liq damages clause
-	B/ damages that are unreasonably large will be void as a penalty
-	Blunderbus clauses may be unenforceable: 1 undifferentiated liq damages clause for any possible breach (Wilt).  Shows that it’s a penalty, esp where the breach caused little damage b/ the clause is for bigger sum.
-	B/ may be enforceable under 2-718 if actual damages are close to damages in liq damages clause
-	If liq damages clause contemplates one kind of breach b/ another is committed, the clause may be unenforceable
-	Parties can limit liability by K: indemnification.  That’s n/ the same as liq damages. (Fretwell, alarm company)
-	UCC 2-719: Parties can limit liability or consequential damages unless it’s unconscionable
-	Limitation of personal injury liability is prima facie unconscionable b/ limitation of commercial damages i/n`

-	Pacheco v Scoblionko, ME 1987: where P paid in full tuition for child’s summer camp, and where P defaulted, and where there was clause setting liq damages at full tuition, ct gave P full recovery of tuition: D failed to prove any damages, and had burden to do so as proponent of the clause
-	City of Rye v Public Service Mutual Insurance Co., NY 1974: developers posted bond as surety against construction delays in apartment co-ops.  K held that $200/day is liq damages.  City sought to recover full amt of $100,000 bond, b/ this was unenforceable b/c it was a penalty, and the city’s harm was minimal and speculative.
-	Here, developers w/n in equal bargaining position and their delay w/n willful
-	Yockey v Horn, 7th Cir 1989: where K fixed liquidated damages at $50,000 if D participated in litigation against P, and D breached by giving deposition in litigation, liq damages awarded b/c this was difficult damages to estimate and the clause was reasonable when made.
-	Collins says this was an atypical decision
-	Wilt v Waterfield, MO 1954: where P pd 10% downpaymt b/ D sold farm to another purchaser, and there was liq damages clause was 10%, clause was held to be a penalty b/c a variety of things were stipulated in the K, of varying degrees of damage, so the 10% must be a penalty b/c it was undifferentiated.  So Ps entitled to actual damages.
-	Fretwell v Protection Alarm Co, OK 1988: Negligence action where alarm co failed to secure property and P’s home was robbed.  K btw D and Ps limited liability to $50.  This w/n liq damages b/ was limitation of tort liability;  it was upheld.

§5. Enforcement in Equity

-	Rstmt position of factors affecting adequacy of legal damages:
1.	difficulty of proving damages (eg Eastern Rolling Mill)
2.	difficulty of procuring suitable substitute performance (Curtice Bros, Manchester Dairy System)
3.	likelihood that damages award c/n be collected
-	S.p. given in sale of real property: historical remnant (Gartrell), b/ still the general rule, except in ID
-	B/ typically n/ in leases unless there i/n adequate remedy at law—ie uncertainty in valuation (Van Wagner)
-	Equity cts treat VOs of real property as trustees who hold property for the benefit of VEs, until title passes, when VEs become legal owners
-	If A buys land b/ then title is conveyed to B, if B is bona fide purchaser (d/n know or have reason to know about A), then seller will probably give money damages to A (“equitable clean-up”) b/ if B i/n bona fide, then B will have to convey title to A.
-	S.p. in sale of goods: UCC 2-716: s.p./replevin for buyer: given where goods are unique (eg Sedmak) or c/n cover or “other proper circumstances” (an expansion of s.p. to historical adequacy test as in Rstmt)
-	No s.p. in personal svc Ks (Fitzpatrick).  B/c:
1.	forced service is obnoxious to the EO, who is therefore getting no consid, and like enslavement for EE
2.	hard for equity to enforce this, esp so that EO gets good svc
3.	unique performance s/t enforced through negative covenant (Lumley, Dallas Cowboys)
4.	pre-expiration injunction may be enforced for unique performance, b/ n/ post-expiration unless there is an express provision in the K (Wolf)
5.	anti-competitive covenant: enforced unless it’s unconscionable (ie wld prevent s/o from getting livelihood)
-	Unconscionability in UCC 2-302:
a)	judges decide;
b)	looks at position of parties when K made
c)	cts can reshape the K or enforce only certain parts or whatever is needed
-	Part performance is a doctrine in equity cts:
-	Part performance can s/t get around S/F problem (this comes up in Boone)
-	in historical S/F, part receipt of goods or payment for goods took the K entirely out of the statute
-	Under UCC 2-201, partial performance is limited: you only have to pay for the goods you accepted, n/ the rest of the goods in the unenforceable K
-	Part performance also relieves S/F problem for people who got property and made improvements
-	Ct w/n provide equity relief if there’s a question as to whether it can be carried out (Northern Delaware Industrial Development Corp)
-	Arbitration: US has pro-arbitration policies and statutes.  Usually where there’s arbitration clause, any dispute is sent to arbitrator, whose decision is binding and final (no appeals).  Cts tend to enforce arbitrators’ decisions, even where they contradict previous decisions of the court (such as overbroad restrictive covenant or punitive damages in K)

-	Van Wagner Advertising Co v S&M Enterprises: S.p. properly denied in K to lease “unique” billboard space where damages are an adequate remedy and equitable relief wld impose a disproportionate burden on defaulting landlord
-	Here, as lessees of lots of billboards, P cld valuate the billboard space
-	Curtice Bros v Catts, NJ 1907: where D farmer had K w/ D canning plant to sell his entire crop, s.p. ordered b/c D c/n find a substitute on the mkt w/in the 6-wk packing season.  “Irreparable injury” w/o performance.
-	Manchester Dairy System v Hayward, NH 1926: Where P co-op had K w/ P farmer for all his dairy, s.p. given b/c of unique nature of a co-op: if one farmer breaches, the system breaks down.
-	Liquidated damages clause w/n exclusive remedy.
-	Eastern Rolling Mill v Michlovitz, MD 1929: where P was to buy from D all scrap metal produced by D for 5 yrs (output K), and where D breached, s.p. was granted b/c quantity is uncertain and damages wld be speculative
-	Sedmak v Charlie’s Chevrolet, MO 1981: where P had K to buy limited edition 1977 Corvette, s.p. granted b/c the car was unique and buyer c/n get another w/o considerable hassle if at all.
-	Gartrell v Stafford, NB 1882: where D vendor of real estate refused to convey in breach of written K, P was awarded specific performance b/c land generally considered unique.
-	Fitzpatrick v Michael, MD 1939: where P and D contracted for P to move in w/ him and take care of him and his house, and D agreed to give her in his will a life estate in the house and title to his cars, and where D repudiated the K, s.p. was denied: verbal K, so S/F problem w/ the house, and w/ the fact that the K is for longer than a year.  Part performance can overcome the S/F problem, b/ equity w/n enforce a K for personal svc.
-	Lumley v Wagner, Eng ???: Ct decreed negative covenant against opera singer who breached svc K.  An example of unique quality, exception in personal svc equity actions.
-	Dallas Cowboys Football Club v Harris, TX 1961: where P asked for injunction that D play only for Cowboys, s.p. granted b/c D was “unique” w/in appropriate defn” a player of a certain skill level who wld be difficult to replace.  Although there might be equal or better players, they w/n avl to the Cowboys at that time.
-	ABC v Wolf, NY 1981: where D breached obligation to negotiate good faith agreement w/ ABC prior to negotiating w/ other networks (b/ where D d/n violate right of first-refusal clause, an overly nice reading of his actions), no s.p. (injunction) awarded to P b/c the K has already expired.
-	If K h/n expired, D cld have been enjoined, b/ after expiration, it’s denying D his livelihood.  Post-expiration negative relief will only be granted w/ an express provision.
-	P can seek legal relief (monetary damages), b/ that wld probably be speculative damages.
-	Northern Delaware Industrial Development Corp v EW Bliss Co, DE 1968: where D’s work on construction K i/n progressing fast enough, P asked for s.p. of the K: providing 300 workers for second shift.  Ct w/n supervise this, and the K provision is imprecise.

Chapter 2. Grounds for enforcing promises
Introduction

-	Historically, the seal made a K enforceable
-	in action for debt, had to be unilateral promise, b/ seal made bilateral promise enforceable
-	formalities began to recede, replaced w/ L.S.
-	this was dangerous: people were binding themselves legally w/o knowing it
-	Most states abolished effect of seal, incl NY
-	Seal is still s/t used as subst for consideration (eg MA); in some states it’s a rebuttable presumption of consideration
-	2-203: seal invalid in sale of goods
-	Common law now provides no methods to make a K enforceable by a formality

§1. Formality

-	Defns of consid:
-	S/th bargained for
-	B/ Rstmt 2d: the fact that what is bargained for d/n induce the making of a promise, or that the promise d/n induce performance or return promise, d/n mean it’s n/ consideration
-	This is a modern limit on the bargained for test of consid.  S/t parties have other goals in mind.
-	Promise and the consid must be, or purport to be, the motive for each other.  Reliance alone (a detriment w/o a promise) i/n enough.
-	Development of PE:
-	At first, used reliance as a substitute for consid to get a valid K
-	Then PE became enforced as reliance remedy even where there is no enforceable K
-	Reliance is a modern doctrine as a basis for enforcing Ks.  Driven by Rstmt 2d.
-	Rstmt 2d: charitable subscriptions and marriage settlements are enforceable w/o reliance.  B/ n/ many cts have followed that.

-	Congregation Kadimah Toras-Moshe v DeLeo, MA 1989:  There was no consideration in decedent’s oral promise to give $25,000 to P b/c there was no benefit to PO nor detriment to PE; and no reliance.  No enforceable K.

§2. Exchange through bargain

-	In modern doctrine, either benefit to the PO or detriment to PE (Hamer) will generally suffice as consid.
-	Consid can be a promise for a promise (Earle), promise in return for performance
-	In 19c, exchge through bargain emerged as core of consid doctrine.
-	Consid must still be bargained for (Whitten), although there can be other motives, and the cts often w/n scrutinize the detriment to the PE, unlike in Whitten.
-	Rstmt 2d 71(1): consid is s/th bargained for
-	Rstmt 2d 81(1): consid need n/ be why the K was formed (ie, s/th actually rather than purportedly bargained for)
-	No nominal consid (Fischer), b/ cts w/n look at the relative exchge value of the consid (Batsakis, Embola)
-	Adequacy i/n tested, b/ sufficiency (that there’s a bargain) is tested—b/ n/ too closely
-	Equity courts have traditionally reviewed transactions more closely than cts at law: equity w/n enforce promise where there’s gross inadequacy of consid

Waiving a claim as consid:
-	Traditional view:
1.	good faith that there’s a claim
2.	there’s at least a colorable claim, even if it’s really bad
-	Rstmt 2d:
1.	good faith belief only is needed, even if a claim is invalid; or if claim is uncertain b/c of uncertainty as to facts or law
2.	written instrument surrendering a claim is consid, even if the party knows it’s n/ a valid claim

Implied Ks:
-	Implied in fact: axns show a promise (ie if there’s a common understdg that s/o is doing s/th in order to get pd) (Collins)
-	Implied in law: ct constructs a promise as a matter of law, even if n/ intended by parties (eg robber example)
-	Purpose is to prevent unjust enrichment: it’s restitution
-	If there’s no consid—ie if P volunteers—there’s no K implied in fact or law (Martin)

Problem of past consid: where detriment induced a promise, b/ the promise d/n induce the detriment.
-	Past consid is legally worthless (Mills)
-	Except if there is a prior unenforceable obligation
-	eg debts discharged through bankruptcy, promises made by minors, Ks where S/L has run
-	A new promise by a debtor to pay a portion of past unenforceable debt is only enforceable to the extent of the new promise.  
-	And a promise to pay more than debt, w/o other consid, is only enforceable up to the amt of the old debt
-	Acknowledgmt of a debt started the S/L running on the debt all over again
-	Some j/ds (incl NY) now require an acknowledgmt in writing of past debts to be enforceable
-	Rstmt 2d allows past consid to serve as consid in exceptional situations to prevent injustice where PO has directly benefited (eg Webb situation)

-	Hamer v Sidway, NY 1891: K enforceable where consid was that nephew wld refrain from drinking, smoking or gambling until age 21 in exchge for $5,000.  Detriment to PE (waiving of a legal right) was enough, even w/o benefit to PO.
-	This was a promise in return for an act or forebearance (performance)
-	Earle v Angell, MA 1892: where P agreed to attend aunt’s funeral in exchge for $500, there was a promise for a promise.  That’s consid.
-	Whitten v Greeley-Shaw, ME 1987: agreement btw P and D, lovers, where D agreed to pay P’s mortgage, and P’s promise n/ to call D at home, w/n enforceable.  D d/n seek P’s promise, so it w/n bargained for.
-	Fischer v Union Trust Co, MI 1904: where father of P, “incompetent” daughter, gave her title along w/ promise to pay mortgage in exchge for $1, this was nominal consid, and the agreement w/n enforceable (so the father’s estate d/n have to pay off the mortgage)
-	Batsakis v Demotsis, TX 1949: where P agreed to pay D $2000 later, in exchge for 500,000 drachma, equiv to US$25 during WW2, there was consid.  Consid was sufficient, although exchge values n/ equal.  P got what she wanted at the time.
-	Embola v Tuppel, WA 1923: where P prospector agreed to pay D $10,000 if he recovered lost gold rush property in exchge for $50, there was consid.  P considered the exchge fair at the time.  Also, there was uncertainty in recovering the property.
-	Martin v Little, Brown Co, PA 1981: where P volunteered information about a book of D’s that had been plagiarized, and D pursued copyright infringemt claim, P requested a percentage of the claim b/ was denied.  P volunteered the info, so there’s no K implied in fact or in law.
-	Collins v Lewis, CT 1930: where P sheriff kept wandering cows for D, and notified D that he expected to get pd, D’s leaving the cows w/ P allowed ct to find K implied at law (presumably unjust enrichment for D to n/ have to pay for cows’ upkeep at P’s expense)
-	Mills v Wyman, MA 1825: where D promised to pay for P’s expenses in caring for his dying son, and D later backed out, this promise w/n enforceable.  P’s detriment d/n induce the promise, which was made later.
-	Webb v McGowin, AL 1935: ct enforced D’s promise to pay for P’s upkeep despite past consid: P threw himself off a barn to save D’s life.

§4. Reliance on a Promise

-	Equitable estoppel: prevents contradiction by one party of representations about the past or present on which another party has relied
-	Promissory estoppel: prevents contradiction by one party of representations about future action on which another party has relied

-	Some cts were slow to acknowledge PE’s detriment in reliance on the promise as making the promise enforceable.
-	Early cases: Ricketts (where ct called a future promise equitable estoppel, even though that applies only to past or present circumstances)
-	Key case was Allegheny College v National Bank, NY 1927, where Cardozo found consid in P’s request to have her name on a scholarship—detriment to PE
-	Cardozo also positioned prom estop as w/in consid doctrine: reliance is detriment to PE too
-	(Note: Rstmt 2d §90 allows charitable subscription promises to be enforced w/o reliance, b/ many cts h/n followed this position)
-	Cts will enforce a promise if PE relied on it to her detriment (East Providence Credit Union, b/ prom estop stuff was dicta there)
-	Some cts will even give reliance on prom estop where the K c/n be enforced (b/c of vagueness or whatever), eg Red Owl, WI 1965.  Red Owl goes further than most cts.
-	Emp context too: it’s at-will, so there’s n/ really a K, b/ cts enforce based on reliance a/w.
-	Rstmt 2d §90(1): where PO should reasonably expects promise to induce action or forebearance by PE, and where action is induced, then enforcement can be granted if necessary to avoid injustice.  Remedy may be limited as justice requires.
-	So if you tell s/o “d/n rely on this promise,” they c/n claim prom estop.

Statute of Frauds
-	Part performance as a way around S/F in real estate (ie improvements on land) functions like prom estop: there was reliance by PE (Seavey), and it shows that the promise w/n fraudulent
-	Paymt of partial price i/n enough for part performance b/c that is subj to restitution.  Usually entry and improvements are needed.
-	In some cts, entry alone will suffice
-	Rstmt 2d §139 adopts the view that reliance overcomes an S/F bar (for a/th, n/ just real estate) if enforcement of K is needed to avoid injustice.
-	Some cts h/n adopted this view (Stearns)
-	Previously only equity cts enforced, b/ since merger, cts at law enforce too (Seymour)
-	And part performance has merged w/ detrimental reliance (Monarco)

Prom estop in employmt context
-	PE can be given in promises for employmt, b/ note at-will problems (Forrer)
-	In Forrer, “permanent emp” interpreted as at-will
-	Add’l consid—beyond just the work performed—must be given by EE in Ks for lifetime emp (true permanent employmt)
-	Reliance n/ used to get around S/F in emp Ks in some cts: it’s too easy to show reliance by change in position (ie changing jobs).

Recovery under prom estop
-	Rstmt 2d §90(1) allows cts to limit the enforcement of prom estop to what is required by justice
-	b/ most cts just enforce the promise that induced the detrimental reliance (ie expectation)
-	In Red Owl, due to vagueness of K and speculativeness of damages, ct gave reliance
-	Or if it’s appropriate in another way, cts will give reliance only (Goodman: franchise K terminable at will)
-	See above, Rstmt position: remedy may be limited as justice requires.

Modifications to the K
-	Old rule: “legal-duty” rule: to modify a K, there must be consid (Levine)
-	Most cts or legislatures have abolished and allow parties to modify a K w/o consid
-	Some j/ds require this in writing
-	The agreement modifying the K falls under S/F if the K falls under S/F
-	UCC 2-209(1) abandons legal duty rule b/ comment states that there is a requirement of good faith 

-	Ricketts v Scothorn, NB 1898: where grandfather gave note to P to quit working in exchge for $2,000, and P quit, her detrimental reliance made the K enforceable
-	East Providence Credit Union v Geremia, RI 1968: where P promised to pay for insurance renewal and add it to the car note, and P d/n, and there was a wreck, ct noted that this cld be enforced in PE, b/ also b/c there was consid (the interest paid on additional money added to the car note)
-	Seavey v Drake, NH 1882: where P’s father gave him land, and P occupies land and has improved it, action was barred by S/F b/c no writing.  B/ part performance removed the bar b/c it’s a denial of fraud, and there is consideration for the promise (PE’s improvements in reliance on promise).  Also, this was a K b/c P’s reliance was consid.
-	Seymour v Oelrichs, CA 1909: where police captain left position to become head of security under 10-yr oral K.  When he was terminated, K was barred by S/F b/ cts enforced it a/w and gave expectation damage remedy: part performance, and detrimental reliance, got around the bar.
-	Monarco v Lo Greco, CA 1950: where P’s stepfather told P that he cld have the farm after he died if he stayed on it and worked there, the promise was enforced b/c of P’s reliance in staying on the farm
-	Forrer v Sears Roebuck, WI 1967: ct found prom estop where P left a job on promise from employmt w/ D.  P was later fired.  Ct held this d/n violate the agreemt b/c the promise was for regular, at-will emp, which D cld terminate at any time.  PE’s detriment n/ enough to avoid at-will termination.
-	Stearns v Emery-Waterhouse Co, ME 1991: where D breached oral K of employment for more than 1 yr, axn barred by SF, notwithstanding P’s detrimental reliance.  The ct d/n adopt Rstmt 2d §139 position (reliance avoids S/F) unless equitable estoppel (actual misrepresentation by the EO about current or past facts) was in play
-	Goodman v Dicker, DC Cir 1948: where Ds promised Ps they wld get Emerson radio franchise, and Ps acted in relance by making expenditures, b/ Ds d/n have power to grant franchise, Ps rec’d reliance damages b/ n/ expectation b/c all franchise Ks are terminable at will.
-	Levine v Blumenthal, NJ 1936: where D claimed that there was promise that P wld discharge unpd rent, and P sued to get unpd rent, there was no consid for this agreement to abate the K, so agreement n/ enforceable
-	This can be gotten around easily: pay more, pay in a different place, etc.  Just about a/th wld be consid.

§5. Promises of limited commitment.

-	Issue is: how far can someone go in retaining discretion while still having a valid K?
-	Arises from consideration doctrine: if you have too much discretion, perhaps you haven’t given up anything.  There’s no detriment to you, and so there’s no consideration, and thus no K.
-	No lip service promises and no completely discretionary performance.
-	The situation arises where there’s a bilateral K: a promise given in exchange for a promise
-	Regarding bilateral Ks: a promise is only consideration if the performance promised would be consideration if it alone were bargained for (Davis)
-	Unilateral K: K is formed when one side performs (Obering)
-	Cancellation clauses are okay if there’s notice or some length of time before they are operative, b/c they are at least binding in some way (Gurfein)
-	B/ terminable at will has no mutuality
-	Rstmt 2d adopts mutuality position: A promise is not consideration if the promisor reserves a choice of alternative performances unless each of the alternative performances would have been consideration if bargained for (or one is consid and it looks like the other alternative w/n be an option by the time of performance).
-	Mutuality position is a minority position.
-	Where a K is conditional on party’s “satisfaction” w/ s/th, there’s requirement of good faith (Omni)
-	Good faith can be objective or subjective.  Typically, if it’s commercial K, it’s objective or there’s a third party’s judgment that is appealed to.  Individual Ks are typically subjective good faith.
-	Comment on p. 306 discusses how to make pricing flexible in Ks without rendering the promise illusory.  Example: percentage leases in retail (basing rent on volume of business).
-	Existing-requirements K n/ void for lack of mutuality b/c is based on existing requirements of a business, which can be estimated (Lima Locomotive).  Trad view was that there was lack of mutuality here.
-	Agents for people typically have obligation to use good faith/best efforts.  Like in Lucy Lady Duff Gordon.
-	Good faith in entire outputs K:  D can stop production entirely, b/ must be for good-faith reason (ie entire mkt has dried up), b/ b/c it was a bad K or D will lose money (Feld, UCC 2-306)
-	Franchise Ks:  Good faith limitation typically held to apply to K performance, n/ K formation.  So franchise Ks where mfr has right to cancel are upheld, typically.
-	Some statutes have placed more limitations on mfrs in franchise Ks.

Employmt context
-	Emp at-will has been challenged: cts now say that thee is a limitation of at-will emp for wrongful or retaliatory discharge (Sheets).  NY d/n allow wrongful discharge axn.
-	There must be a source that makes the discharge wrongful.  Cld be statute or public policy.
-	Eg Price: EE fired for filing health ins claim w/n wrongfully discharged.  This was a private matter, n/ in contravention of pub policy.

-	Davis v. General Foods Corp., S.D.N.Y. 1937: Where P sent a recipe to D, and D wrote a letter back saying whether they would use it or pay her for it was solely at their discretion, there was no binding agreement because the promise was too indefinite for legal enforcement.  Also no quantum meruit b/c P was a volunteer.
-	Nat Nal Service Station v. Wolf, NY Court of Appeals, 1952: Where there was an ongoing oral agreement between P and D (which provided that when P purchased gas through D, D would give P a discount), each transaction constituted its own unilateral K.  There was no overall K.
-	Obering v. Swain-Roach Lumber Co., App. Ct of IN, 1927: Where P and D signed K (which provided that in the event that P bought a plot of land, P would then sell it to D at an agreed price but reserve the timber on the land), and where P performed by buying land but D refused to buy the land in turn, the court upheld the K (and gave specific performance).  This was unilateral K that became binding when P purchased the land.
-	Gurfein v. Webelovsky, CT 1922: Where seller of glass refused to ship an order, on a contract where the buyer had the right to cancel during the time between when an order was ordered and when it was shipped, the K was enforceable because the buyer had only a limited option to cancel: there was consideration.
-	Wood v. Lucy, Lady Duff-Gordon, NY Ct of Apps, 1917: K for P to market D’s endorsement exclusively.  In return, D was to get half of all profits and revenues from endorsements that D arranged.  When D breached by making her own endorsements, and said that there was no K b/c it w/n binding on P, ct said that b/c of exclusive right of P to make endorsements, there was implied obligation.
-	Omni Group, Inc. v. Seattle-First National Bank, Ct of Apps of WA, 1982: Where P signed earnest money agreement with D (providing that P would purchase land if engineer’s and architect’s feasibility reports were satisfactory), and P decided to forego feasibility study, and D refused to proceed with the sale, the K was binding and specific performance was given.  Promise for a promise is binding if there’s n/ too much discretion.  Here, P couldn’t back out of the K for just any old reason.  That the feasibility study had to be unsatisfactory for P to back out is enough.  It’s not illusory: P has to exercise “good faith.”
-	Lima Locomotive v. National Steel Castings Co., 6th Cir. 1907: Where the buyer was to purchase all the castings it needed from seller, the K was not void for lack of mutuality (in that buyer had too much discretion in placing orders).  The total amount, i.e. “all the castings it needed,” was specific enough because it referenced the buyer’s regular business requirements.
-	Feld v. Henry S. Levy & Sons, Inc., Ct of Appeals of NY, 1975: P agreed to buy all of the bread crumbs produced by D (as a subsidiary business), b/ D stopped producing bread crumbs (after requesting a price increase).  This was a binding K but whether it was enforceable would depend on whether D’s decision to stop producing bread crumbs was in good faith.  This was an application of UCC §2-306.
-	Sheets v. Teddy’s Frosted Foods, Inc., CT Sup. Ct., 1980: Where P was discharged in retaliation for his efforts to make D comply with food labeling and licensing statutes, the court allowed a tort claim for wrongful discharge.  Despite the fact that P was an at-will employee, the court holds that D can be liable for damages if there was a demonstrably improper reason for dismissal.
-	Price v. Carmack Datsun, Inc., IL 1985: Where P was terminated for filing a health insurance claim, the court dismissed his tort action for retaliatory discharge, despite P’s claim that a public policy against such termination was at stake.  The court held that there was not a clearly mandated public policy here, just a private grievance.

Ch. 3. The making of agreements
§1. Mutual assent

-	The objective manifestations of parties’ intent, n/ actual intent, governs whether a K is formed (Embry)
-	Wld a reas person think there was an agreemt?  That’s the real test.
-	Obj rule of Ks is major change from common law doctrine of “meeting of the minds” (mutual intent)
-	Rstmt position: K is formed when the words are said, whether or n/ there was reliance

-	Embry v Hargadine-McKittrick Dry Goods, MO 1907: where there was a conflict over the subst of conversation and whether it formed an extension of emp K, intent of the parties d/n matter.  What’s important is whether the words wld make a reas person think there was an agreement.

Expectation	Labor and materials expended plus lost profit on the whole job	
Reliance	Expenditures and preparation less any loss that the party wld have suffered had the K been performed 	
Medical Ks	Reliance is typical (Sullivan)
Hawkins: gave expectation	
Construction Ks: contractor’s breach	Abandonment: cost of completion if it’s n/ disproportionate; otherwise difference in value.  Also, look to what owner will do w/ the property. (Advanced, Rstmt 2d)
-	Groves: cost of completion
-	Peevyhouse: difference in value.
-	Cost of completion rather than benefit of the bargain (Louise Caroline)
Mental distress damages, even in K for construction of house, n/ recoverable
Breach w/ substantial performance: if owner accepts the work, contractor is entitled to K price less difference in value (n/ cost of completion) (Pinches)	
Service Ks
(including construction): owner’s breach	Expectation (costs plus lost profits) up to the point of repudiation or breach, b/ contractor has a duty to mitigate (Rockingham County)
-	Overhead is generally n/ included: it’s assumed that it’s fixed (Leingang)
New business generated after breach d/n offset lost profits: it’s assumed that contractor’s business is expandable (Kearsage)
Quantum meruit is avl if K breached by owner and contractor h/n performed fully or almost fully (Algernon Blair)	
Service Ks: personal svc	There is duty to mitigate: find another job, b/ P d/n have to take employment of a different or inferior kind (Parker)
-	Whether D gets offset from collateral source payments varies by j/d
No mental distress damages (Valentine)
If worker breaches, can still recover in quantum meruit up to the value of the K, less damages (Britton)
No s.p. b/c of personal nature of the svc (Fitzpatrick), except for negative covenants for unique svces (Lumley)	
Sale of goods K: either party	UCC 2-610: W/ anticipatory repudiation, either party can cover right away or can wait until actual breach to cover
UCC 2-611: Repudiation can be retracted unless other party has already changed position
UCC 2-203: seal has no effect	
Sale of goods Ks:
Seller’s breach	UCC 2-713: where buyer d/n cover, damages are difference btw mkt price at time and K price at time when buyer learned of breach + incidental/consequential damages less expenses saved b/c of breach
-	UCC 2-712: Where buyer covers, damages are difference btw cover price and K price + incidental/consequential less expenses saved.
UCC 2-716: s.p./replevin for buyer: given where goods are unique or c/n cover or “other proper circumstances”
UCC 2-715: incidental is shipping costs, storage costs, etc.  Consequential is a/th seller had reason to know of at time of K (unless parties limit consequential in K)
Pre-UCC: difference btw mkt price and K price at time and place of delivery
-	Buyer c/n get diff btw K price and cover price (Missouri Furnace)	
Sale of goods Ks:
Buyer’s breach	UCC 2-708(1): when buyer breaches, measure of damages for seller is difference btw mkt price at time and place for tender and the unpaid K price plus incidental less expenses saved
UCC 2-708(2): if this is inadequate, measure of damages is lost profits including reas overhead, plus incidental damages (Neri): used for fixed-price sellers
-	Lost volume issue: if retailer sells the product in the interim, he can still get lost profits if he can prove he wld have sold an additional unit (w/ volume sellers any loss is a lost profit)
UCC 2-706: Seller’s resale: damages are diff btw price rec’d and K price + incidental less expenses saved
UCC 2-709: Action for the price: special remedy if goods delivered or if seller c/n resell (specific performance)
UCC 2-718(2): where buyer breaches, and seller withholds goods, buyer is entitled to restitution to downpaymt less liquidated damages or the lesser of 20% of total performance or $500, subject to offsets under 2-708. 	
Gain from breach	Typically n/ allowed (Acme Mills); exception in Laurin
Typically subsumed in expectation recovery
Exception is where there’s a fiduciary relationship	
Real estate Ks	Flureau doctrine (15 states): where VOR makes good-faith breach, VEE can recover reliance only
No emotional distress damages
Note S/F provisions, and that part performance can get around S/F (Seavey)
Where P defaults, can recover restitution of downpaymt if breach i/n willful and if P can show that D was unjustly enriched (Vines)—b/ n/ in all j/ds, incl NY (no recovery)
S.p. will typically be given, b/ typically n/ in leases	

Statute of frauds

-	Comes from Eng’s S/F from 1677; all states have a version of it today.
-	Some Ks unenforceable unless there’s a writing signed by the person to be charged.  Can be subsequent if it reflects the terms of the K.
-	5 classes of agreement where S/F typically operates:
1.	real estate Ks (comes from importance of land in 17c)
2.	sale of goods Ks exceeding a certain amt ($500 in UCC 2-201)
3.	suretyship or guaranty promises (to answer for the debt of another)
4.	Ks n/ to be performed w/in 1 yr
5.	Ks in consideration of marriage
-	Rstmt 2d §139 and some cts: reliance on promise avoids the S/F bar if it’s necessary to prevent injustice
-	Consider the degree of the harm that will result and whether the reliance shows that the promise w/n fraudulent
-	Initially this was only applied in equity actions, b/ now applied at law often