Bus Law C - 12
quantum merit
"as much as he deserves" a common law principle on which fees are based. the promise by the patient to pay the doctor as much as he or she deserves for labor
specific performance (equitable remedy)
-a decree from a court ordering a contracting party to carry out the promises made in a contract -the courts order SP only when the subject matter of a contract is unique or rare
accord and satisfaction
-a new agreement resulting from a bona-fide dispute between the parties as to the terms of their original agreement -the mutual agreement to the new terms is the accord -performance of the accord is the satisfaction -the accord is not binding until the satisfaction has been made
restrictions on personal and professional service contracts
-a party may not delegate the duties of a personal or professional nature. -musicians or artists could not delegate their services to someone else because they are chosen for their ability or artistic talent (personal) - doctors, lawyers, accountants, ministers are selected for their special abilities (professional)
compensatory damages
-a sum of money equal to the real financial loss suffered by an injured party. also called actual damages -actual damages
intended beneficiary
-a third party in whose favor a contract is made -are in privity or a mutual relationship to the same rights of property
donee beneficiary
-a third party who provides no consideration for the benefits received and who owes the contracting parties no legal duty -insurance beneficiaries
form of assignment
-assignment may be accomplished through written, oral or implied agreements between the assignor and the assignee -parties to the assignment must observe the requirement provided by the equal dignities rule
restrictions imposed by law
-assignments in special circumstances may be restricted by law or declared void because it is contrary to public policy. -members of the armed services may not assign any part of their pay except to a spouse or family member
tender of payment
-is presenting the money to the seller at the agreed time. -it is important to make tender even if one knows that the other party is not going to perform the contract -it tests the other parties readiness and willingness to perform
consequential damages
-losses that do not flow directly from an act but only from some of the consequences or results of the act -result indirectly from the breach because of special circumstances
restrictions on assignments
-on personal and professional contracts -imposed by original contract -imposed by law -employment contracts are not assignable
operation of law
-some law that causes the parties to be discharged by their obligations -bankruptcy or statutes of limitations
construction breaches
1. Before Performance has begun: Contractor can recover profits 2. During Performance: Contractor can recover profits plus costs incurred 3. After Performance: Contractor can recover the entire contract price plus interest
tender of performance
An offer to do what one has agreed to do under the terms of a contract.
condition concurrent
a condition that requires both parties to perform at the same time
condition subsequent
a condition where the parties agree that the contract will be terminated depending on a prescribed event occurring or not occurring (super bowl)
injunction
a court order preventing someone from performing a specific act
commercial impracticability
a doctrine under which the courts may excuse the performance of one party to a contract because an unforeseen and very SEVERE HARDSHIP has arisen that would place an enormous amount of hardship on that party
general release
a document expressing the intent of a creditor to release a debtor from obligations to an existing and valid debt
misrepresentation
a false statement innocently made by one party to a contract with no intent to deceive
assignor
a person who assigns rights or delegates duties under the assignment
third parties
a person who in some way may be affected by a contract but who is not one of the contracting parties
termination by terms of the contract
a professional athlete my contract with management that the agreement will be terminated if for any reason the player becomes either physically or mentally incapable
warranty
a promise, statement or other representation that a thing has certain qualities
actual damages
a sum of money equal to the real financial loss suffered by an injured party. also called compensatory damages
beneficiary
a third party receiving benefits from a contract made between two other parties
third party beneficiary
a third party receiving benefits from a contract made by others
outside party
a third party that is at times given benefits from a contract made by two or more other parties
fraudulent conveyance
a transfer of property with the intent to defraud creditors
fraud
a wrongful statement , action, or concealment pertinent to the subject matter of a contract knowingly made to damage the other party
condition precedent
an act or promise that must take place or be fulfilled before the other party is obligated to perform his or her part of the agreement.
notice of assignment
an assignment is valid at the time it is made, as a measure of protection against subsequent assignments, the assignee should give notice of the assignment to the obligor
tender of payment
an offer by the buyer of goods to turn the money over to the seller
tender of performance
an offer to do what one has agreed to do under the terms of a contract.
tender
an offer to turn goods over to a buyer
incidental beneficiary
an outside party for whose benefit a contract was not made but who would substantially benefit if the agreement were performed according to its terms and conditions
creditor beneficiary
an outside party to whom one or both contracting parties owe a continuing debt of obligation arising from a contract
mutual rescission
both parties to a contract agree to rescind the contract and return to the other any consideration already received or pay for any services or materials already rendered
fraudulent
cheating, deceitful, deception, swindle
speculative damages
damage computed on losses that have not actually been suffered and that cannot be proved; they are based entirely on an expectation of losses that might be suffered from a breach; the courts do not allow speculative damages
liquidated damages
damages agreed to by the parties to a contract in the event of a breach
incidental damages
damages awarded for losses indirectly, but closely, attributed to a breach to cover any expenses paid out by an innocent party to prevent further loss
punitive damages
damages in excess of actual losses suffered by the plaintiff awarded as a measure of punishment for the defendants wrongful act. also called exemplary damages
exemplary damages
damages in excess of actual losses suffered by the plaintiff awarded as a measure of punishment for the defendants wrongful act. also called punitive damages
warranties to the obligor
if the assignor delegates to an assignee duties owed the obligor, there is an implied warranty that the duties delegated will be carried out in a complete and satisfactory manner
insurance beneficiary
insurance policies ensure that after a loss proceeds will go to the beneficiary
discharge by agreement
means that people can end a contract by mutual agreement
injunction relief (equitable remedy)
no damages, sought because class was treated alike
equitable remedies
non-monetary damages awarded for breach of contract when monetary damages would be inadequate or impracticable
anticipatory breach
occurs when a party to a contract either expresses or clearly implies an intention not to perform the contract even before being required to act. also called constructive breach.
assignment
one of the parties transfers rights or interests under a contract to another person
impossibility
performance of the contract is rendered impossible by some event or condition not reasonably foreseeable at the time the contract was formed ("Act of God")
repudiation
refusal to acknowledge or pay a debt or honor a contract (especially by public authorities)
frustration-of-purpose doctrine
releases a party from a contractual obligation when performing the obligations would be thoroughly impractical and senseless - example when 911 happened, New Years was cancelled at times square. no need for hotel room over-looking times square
obligor
remaining party to the original contract
deliberate breach of contract
results when one of the parties fails to do what was agreed to under the terms of the contract
restrictions imposed by original contract
some courts have held that a restriction against the assignment of a debt owed by the obligor robs the assignor of a property right guaranteed by law and would be contrary to public policy
warranties to the assignee
the assignor is bound by an implied warranty that the obligor will respect the assignment and make the performance, as required by the original agreement between the assignor and the obligor
liabilities and warranties of the assignor
the assignor is obligated to any express and implied warranties that serve to protect either the assignee or the obligator
consideration
the mutual promise to exchange benefits and detriments between parties
assignee
the outside third party
most contracts are discharged by performance
the parties do what they agreed to do under the terms of the contract
novation
the parties to a contract mutually agree, to replace one of the parties with a new one
privity
the relationship that exists between two parties of a contract giving each a recognized interest in the subject matter of the contract so that they are bound to the contract
termination by waiver
the situation that exists when a party to a contract with the right to complain of the other party's unsatisfactory performance or nonperformance fails to complain
complete performance
the situation that exists when both parties to a contract have fully accomplished every term, condition, and promise to which they agreed.
satisfactory performance
the situation that exists when either personal taste or objective standards determine the contracting parties have performed their contractual duties according to the agreement.
performance
the situation that exists when the parties to a contract have done what they have agreed to do
substantial performance
the situation that results when a party to a contract, in good faith, executes all the promised terms and conditions of the contract with the exception of minor details that do not affect the real intent of their agreement.
reasonable time
the time that may conveniently be required to do the task that is to be done, with regard to attending circumstances
assignment
the transfer of a contract right from one person to another
delegation
the transfer of a contractual duty
rights and duties of the assignee
they are the same by those previously held by the assigner under the original contract. it is fair to say that the assignee "steps into the shoes"of the assignor. claims the assignor had against the obligor now belong to the assignee
nominal damages
token damages awarded to parties who have experienced an injury to their legal rights but no actual loss
abandonment of contractual obligations
when a party to a contract stops performance once it has begun (breach)
equitable remedies
when money in the form of damages is not enough to provide a fair and just award to the injured party, the court may grant this...a court compels the breaching party to perform an act or refrain from an act
discharge by breach of contract
when there is a breech of contract, the injured party has the right to remedy in court
Death
will cancel only a personal contract