Remedies Outline

Only available on StudyMode
  • Topic: Damages, Tort, Judicial remedies
  • Pages : 73 (25666 words )
  • Download(s) : 74
  • Published : May 20, 2013
Open Document
Text Preview
Fall 2012 Remedies Outline
GENERAL PRINCIPLES GOVERNING DAMAGES
COMPENSATION 
Harris v. Peters
Compensatory damages are those awarded to a person as compensation, indemnity, or restitution for a wrong or injury sustained by him.  The purpose of compensatory damages is to make the injured party whole and restore him to the position he was in before the loss, but not to enable him to make a profit or windfall.  When personal property is destroyed or rendered useless, the measure of damages is the fair market value of the thing in question immediately prior to its destruction. DIRECT AND CONSEQUENTIAL DAMAGES

New Valley Corp v. United States
 For damages for breach of contract, the breach must be seen as the proximate cause of injury to the plaintiff.  Direct damages, or general damages, are damages measured by the loss of the value of the performance promised by the breaching party.  They are based on the value of the very thing to which the plaintiff was entitled, encompassing paper losses or unrealized losses and they are determined as of a particular date, usually by market measures. Consequential damages, or special damages, are damages that result as a secondary consequence on the defendant’s non- performance.  They arise from the interposition of an additional cause without which the act done would have produced no harmful result.  Consequential damages are distinguishable from general damages in that rather than being based on the value of the promised performance itself, they are based on the value of some consequence that that performance may produce.                 Section 2-719 of UCC: Liquidation and Limitation of Damages  p.32 CERTAINTY

Kenford Co, Inc. v. County of Erie
                A nonbreaching party is only entitled to damages within the contemplation of the parties at the time of contracting.  Damages which may be recovered by a party for breach of contract are restricted to those damages which were reasonably foreseen or contemplated by the parties during their negotiations or at the time the contract was executed. Fairfax County Redevelopment and Housing Auth. V. Worcester Bros Co Inc.                 When a breach by one party causes a delay on the ability of the other party to perform its obligations under a contract, the damages are to be measured by the direct cost of all labor and material, PLUS fair and reasonable overhead expenses properly chargeable during the reasonable time required to complete performance.  An absolute certainty as to the amount of the damages is not essential when the existence of such a loss has been established.  The quantum may be fixed when the facts and circumstances are such as to permit an intelligent and probable estimate thereof. Raishevich v. Foster

                Bigelow principle- when the defendant’s actions or wrongdoing prevents the plaintiff from establishing the exact measure of damages suffered, the factfinder may make a just and reasonable estimate of the damage caused based on relevant data.  If that is the case, when damages are at some unascertainable amount below an upper limit, the upper limit will be taken as the proper amount. AVOIDABLE CONSEQUENCES

Clark v. Marsiglia
                A party who has undertaken partial performance of a contract cannot continue to perform at a cost to the other party even after the other party notifies him of his repudiation.   Once a party has begun to perform, that party does not have a right to continue in full performance after the contract has been canceled.  “In all such cases the just claims of the party employed are satisfied when he is fully recompensed for his part performance and indemnified for his loss in respect to the part left unexecuted; and to persist in accumulating a larger demand is not consistent with good faith towards the employer.” Roberts v. Pilot Freight Carriers, Inc

                When a plaintiff's vehicle is damaged by the negligence of a defendant, the plaintiff is...
tracking img