1. Performing Contracts and Breach OBE 118, Section 3 Fall 2004 Professor McKinsey What happens if a party does not perform to the satisfaction of another party to whom performance was owed?

2. A Valid Enforceable Contract 1)Mutual Agreement 2)Consideration 3)Capacity 4)Legality 5)Genuineness of Assent 6)Writing

3. Performance Each enforceable promise in a valid enforceable contract creates a duty that must be discharged by performance, breach, agreement, or law. Two types of promises: Absolute Promises Conditioned Promises Duty

4. Discharge by Performance _________________________ is usually enough. Checklist for Substantial Performance Sometimes contract requires _______________. 1. Exact performance called for not a material term. 2. Performance close to complete. 3. Substantially the same benefits created.

5. Whose Satisfaction? Performance of personal contracts can be specified to be to the satisfaction of a party. Performance of contracts dealing with mechanical fitness or utility must only be satisfactory to a reasonable person.

6. Discharge by Breach A material breach discharges the other party’s duty. Anticipatory repudiation discharges the other party’s duty Material breach occurs when performance is not substantial or when strict performance was called for and performance is not exact. Party rejects, refuses, or denies performance and other party treats it as a breach.

7. Discharge by Agreement Parties can agree to discharge one or more duties. Compromise - Novation - Mutual Rescission – Accord and Satisfaction –

8. Discharge by Operation of Law The law can also discharge a duty by: Statute of Limitations Bankruptcy Impossibility

9. Objective impossibility may discharge a duty Death or disablement Party to a personal contract dies or becomes disabled Destruction of Subject Matter Must be the specific subject matter Intervening Illegality

10. Breach of Contract Material Breach Anticipatory Repudiation Other party can stop performance and seek remedies (Damages) Minor Breach? (less than perfect performance?)

11. Contract Remedies Damages for breach: –Compensatory – usually the expectation interest, the direct damages –Consequential – indirect damages that were foreseeable by breaching party –Incidental – small costs caused by the breach

12. Contract Remedies Equitable Remedies –Reliance interest – through promissory estoppel, no contract required –Restitution- “make whole again”, where one party is would get a benefit they do not deserve. –Specific Performance – where $ will not do justice, real property or unique personal property –Injunction – Stop the party from doing something –Reformation – rewrite the contract –Rescission – undue or cancel the contract as if it never happened (usually includes restitution above)