Remedies Flow Chart

What did P seek to gain from the contract/performance? value? Intangible benefits to
argue for specific relief? Difficult to calculate like Epstein’s research assistant hypo?

Limiting $ damages:
Avoidable loss?
Avoided costs? Remedies Argue efficient breach for ct to provide
substit remedy rather than specific relief?
Unforeseeable loss?
Uncertain loss? UCC Equitable – when remedy
Legal
at law is inadequate** §360

Remember, theme is to
DAMAGES SPECIFIC RELIEF
compensate P for its loss, not
punish D, not reward P

Injunction 357(2)
Is there a liquidated Damages Walgreen: usually
Clause in the contract? §356 needs to show Specific Performance 357(1)
injunction but if
temporary, just show
Yes was inadequate

No
Are liquidated damages fair estimate
of expectation damages? Cf. O’brian;
Reasonable? Under UCC2-718 Leerjet
No
Look to Expectation Damages which are
benefit of bargain, intended to put victim
where would be if k had been performed §345:
Are they either:
 $0 or negative in amount;
 Uncertain (i.e., new venture) Hollywood; or
 Excessive given circumstances?
No
Expectation Damages awarded to put victim where he
would be had contract was performed.
(general expec, incidental=natural/direct costs,
consequential [not always. Cf. RoC 351 Hadley – needs
to have been communicated. /UCC 2-715(2) Heim x-ray
case – Consequential damages not recoverable if
reasonably can prevented by cover, but doctor ok b/c
relied on seller’s promises to fix. Don’t say “foreseeable
consequential cost” for UCC, but ok in RoC case]**)
awarded ONLY if:
 Contract is clear (can k away?!)
 Seek intangible benefits
 Difficult to find substitutes §360(b)
 Difficult to calculate damages
Yes with reas. Certainty §360(a)
 Uniqueness makes it imposs to
assess damages §2-716(1)
(land lease Van wagner says its not
Court will uniqueness but uncertainty in
enforce calculating damages/finding substitute)
liquidated
damages
Shouldn't be too high vs. freedom to contract
Yes Reliance damages awarded to put victim he would
be had the contract never been made. 349/2-715(1)
If jx treats PE as 17(2) contract, may award expec
damages. But In jx that doesn’t treat PE as K law,
may only give reliance instead of expec damages.
These can include:
 Cost of preparation/performance minus
breaching party’s showing w/ reasonable
certainty that non-breaching party would have
incurred had K performed (avoided costs)
 Difference between market $ and value as is

Cf. Panorama (defective roof, P showed new would

be cheaper than repair, so cost of replacement)
- reasonable $ of completing performance
- remedying defects (O.W.Grun color roof, fixing
wouldn’t solve issue so new roof cost)
- could ask repair $, new roof, new roof $
Cf. Hawkins’s diminution in value (promised- now).
Peevy: where breach incidental and full performance
work would give disproportionate econ benefit to P,
damage is diminution in $ instead of $ of completion)
NOTE:
 Can’t be disproportionate to probable loss in value of
property (PeevyHouse)
 No punitive damages
Peevy’s Economic benefit test: If construction
/bdg contract, if defect can be repaired without
undue expense, cost of performance is proper
measure of damages, but if defect can’t be
remedied without cost disproportionate to the
end to be attained, diminution in value rule

Contracts Page 1