Definition of Assignment
voluntary transfer to a third party of the benefits arising from a contract so that the assignor's right to receive the performance is terminated
party making an assignment.
party to whom contract rights are assigned.
- party owing a duty to the assignor under the original contract.
party to whom a duty of performance is owed under a contract
Requirements of an Assignment
include intent but not consideration.
Revocability of Assignment
- if assignee does give consideration, assignor may not revoke the assignment without the assignee's consent; otherwise may be revocable.
Most contract rights are assignable, except:
1.assignments that materially increase the duty, risk, or burden upon the obligor
2.-assignments of personal rights
3.-assignments expressly forbidden by the contract
4.assignments prohibited by law
Rights of Assignee
the assignee stands in the shoes of the assignor.
Notice - is not required but is advisable.
Defenses of Obligor
- may be asserted against the assignee.
Notice - is not required but is advisable.
Definition of Delegation
transfer to a third party of a contractual obligation.
party delegating his duty to a third party.
third party to whom the delegator's duty is delegated.
party to whom a duty of performance is owed by the delegator and delagatee.
Most contract duties may be delegated, except:
1.duties that are personal
2.duties that are expressly nondelegable
3.duties whose delegation is prohibited by statute or public policy
Duties of Parties
Delegation - delegator is still bound to perform original obligation, unless there is a novation or release.
contract, to which the obligee is a party, substituting a new promisor for an existing promisor, who is consequently no longer liable on the original contract and is not liable as a delegator.
Third-Party Beneficiary Contracts
a contract in which one party promises to render a performance to a third person (the beneficiary).
a third party intended to receive a benefit from the contract as a gift.
a third person intended to receive a benefit from the agreement to satisfy a legal duty owed to her.
Rights of Intended Beneficiaries
an intended donee beneficiary may enforce the contract against the promisor; an intended creditor beneficiary may enforce the contract against either or both the promisor and the promisee.
Vesting of Rights
if the beneficiary's rights vest, the promisor and promisee may not thereafter vary or discharge these vested rights.
Defenses Against Beneficiary
in an action by the intended beneficiary of a third-party contract to enforce the promise, the promisor may assert any defense that would be available to her if the action had been brought by the promisee.
- third party whom the two parties to the contract have no intention of benefiting by their contract and who acquires no rights under the contract; the benefit is mere happenstance. Incidental beneficiaries lack standing to sue and cannot enforce any rights.
Definition of a Condition
an event whose happening or non-happening affects a party's duty to perform under the contract.
contingency explicitly stated in the contract.
contingency understood by the parties to be part of the agreement, though not expressed.
contingency not contained in the contract but imposed by law; also called a constructive condition.
an event that terminates a duty of performance.
an event that must (or must not) occur before performance is due.
conditions that are to take place at the same time.
a condition that is the requirement that one party perform prior to the other is fulfilled upon that performance.
a condition that requires an event outside the control of the party is fulfilled when it occurs.
- a wrongful failure to perform mandatory duties under a contract.
nonperformance that significantly impairs the injured party's rights under the contract and may discharge the injured party from any further duty under the contract.
Prevention of Performance
one party's substantial interference with or prevention of performance by another; is a material breach and discharges the other party
*Dependent vs. Independent Covenants
where a contract involves mutual covenants (promises), discharge depends on whether the covenants are mutually dependent; only dependent duties are discharged
incomplete performance that does not defeat purpose of the contract; does not discharge injured party but entitles him to damages.
an inability or refusal to perform, before due; treated as a breach, allowing the non-repudiating party to bring suit immediately.
an agreement between the parties to terminate their respective duties under the contract.
a new contract accepted by both parties in satisfaction of the parties' duties under the original contract.
Accord and Satisfaction
substitution of new duty under a contract (accord) and the discharge of the prior contractual obligation by performance of the new duty (satisfaction).
traditionally, a substituted contract involving a new third-party promisor or promisee.
the most common way a contractual duty is discharged is by performance. That is, the party does what it is obligated to do.
performance of contract cannot be done.
the promisor but not all promisors cannot perform; does not discharged
no promisor could perform; generally discharges the promisor.
*Destruction of Subject Matter
discharges contract if it occurs without the promisor's fault.
if performance becomes illegal or impractical as a result of a legal change, the duty is discharged.
*Frustration of Purpose
principal purpose of a contract cannot be fulfilled because of a subsequent event.
performance can be accomplished only under unforeseen and unjust hardship; the contract is discharged under the Code and the Restatement.
discharged if debtor obtains an order of discharge by the bankruptcy court
*Statute of Limitations
after the statute of limitations has run, debt is not discharged, but a creditor cannot bring an action against debtor.
Contract damages placing the injured party in as good a position as if the other party had performed; equals loss of value - cost avoided + incidental damages + consequential damages.
Lost Value or "Profits"
value of promised performance minus value of actual performance
loss or costs the injured party avoids by not having to perform
arise directly out of a breach
not arising directly out of a breach but arising as a foreseeable result of the breach
a small sum ($1 or similar) awarded where a contract has been breached but the loss is negligible or unproved.
a set amount, reasonable under the circumstances, agreed in advance by the parties to a contract.
contract damages placing the injured party in as good a position as she would have been in had the contract not been made.
Typically involves compensation for expenses incurred in preparation for or performance under the contract, or for lost opportunities. The sole remedy in promissory estoppel situations
Restoration of injured party to position s/he was in before the contract was made, generally by returning value given to other party. Available to:
1.Party Injured by Breach - if other party breaches the contract by nonperformance or repudiation
2.Party in Default - for any benefit conferred in excess of the loss caused by the breach
Restitution is appropriate if the contract is not enforceable due to statute of limitations or statute of frauds.
- a party who has avoided a contract is entitled to restitution for any benefit conferred on the other party
Foreseeability of Damages
potential loss that the party now in default had reason to know of when the contract was made.
Certainty of Damages
damages are not recoverable beyond an amount that can be established with reasonable certainty.
Mitigation of Damages
injured party may not recover damages for loss he could have avoided by reasonable effort.
court order requiring breaching party to render promised performance.
court order requiring a party to do, or prohibiting a party from doing, a specific act.
court order correcting a written contract to conform with the original intent of the contracting parties.
Election of Remedies
if remedies are not inconsistent, a party injured by a breach of contract may seek more than one; however, a party may not get a double recovery.