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breach of contract

failure to perform contractual duties in accordance with the agreement

anticipatory breach

an announcement by one of the parties that the contract will not be performed prior to the date that the performance is due

anticipatory repudiation

What is the statement called when an anticipatory breach of contract is made?

anticipatory breach

occurs "before" the date that the performance is to occur, one of the parties states that he isn't going to do what he originally said he would do:

statement must be clear, definite, and unequivocal

what kind of statement does an anticipatory repudiation require?

1. ignore the repudiation and state that you are still expecting performance

2. treat the contract as if it had been cancelled

3. treat the contract as if breached and sue for damages

in event of an anticipatory breach, what can the non-breaching party do?

1. compensatory damages
2. consequential damages
3. nominal damages
4. punitive damages

What 4 types of monetary damages are available in the event of a breach of contract?

compensatory damages

damages that compensate you for your actual loss
---damages that flow directly from the breach of contract

1. direct damages
2. incidental damages

what are the 2 elements of compensatory damages?

consequential damages

damages that do not flow directly from the breach of contract
--damages that happened because of the breach and are reasonably foreseeable

nominal damages

$1 recovery , a trivial sum (usually $1.00) awarded as recognition that a legal injury was sustained (as for technical violations of a contract)

punitive damages

extraordinary damages
--damages imposed for the purpose of punishing and are in excess of the actual loss

mitigation damages

duty of the non-breaching party

mitigation damages

the law places a duty on nonbreaching party to take reasonable efforts to avoid or reduce the resulting damages from a breach of contract. to mitigate a breach of an emplyement contract, the nonbreaching party must only accept "comparable" employment

lessen or reduce damages (mitigate damages)

in the case of mitigation damages it is the duty of the non-breaching party to?

a reduction of the amount that is to be recovered by the non-breaching party

failure to mitigate damages will result in what?

equitable remedies

what are special damages that are available only in contracts?

1. rescission
2. specific performance
3. injunction
4. reformation

What are the 4 equitable remedies for breach of contract?


resend the contract, ask the court to resend the contract (cancel the contract)

one must also look at restitution if a contract is being recsended

what is the extra step that must be taken in rescission?

before a contract can be resended, we must 1st repay any consideration

why must we look at restitution before a contract can be rescinded?

specific performance

asking the court to make the other party do what they said they would do:

it is limited only if the subject matter is unique

how is recovery in specific performance limited?

land, antiquities

subject matter is unique...what is an example of subject matter that is always unique?

an injunction

ask the court to stop the other party from performing (stop what the other party is doing):

an injunction

what is the remedy that we would seek if a non-compete agreement has been violated?


ask court to rewrite agreement, or court on its own takes the action to rewrite the agreement:

rewrite (reform) the unconscionable contract, making the contract palatable to all the parties involved

if the contract is unconscionable, what can the court do?

liquidated damages

damages that are pre-agreed upon by the parties in event of a breach:

construction contract in the "public sector"

what is an example of liquidated damages?

1. damages must be reasonable, the amount cannot punish
2. Actual money damages are difficult to determine (at the time the contract is made)

what are the 2 restrictions to liquidation of damages?

an injunction

violation of a non-compete agreement is an example of a case that could involve what equitable remedy?


what equitable remedy is used in cases where fraud, duress, or ambiguity are present?

reformation; the parole evidence rule

what equitable remedy is highly disfavored by the courts? what rule supports the court's viewpoint?

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