Certainty of Damages. Contracts – Prof. Merges April 14, 2011. Fera. Facts Procedural History. Fera. What was “the deal” Look at lease terms. Fera. What was “the deal” Look at lease terms $1000 min. plus % of receipts over $240,000 Why structured this way?. Fera.
Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author.While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server.
Contracts – Prof. Merges
April 14, 2011
Why structured this way?
Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable certainty.
Independent-film producer, who had planned to use e-mail account to promote his newest film, sued Internet-service provider (ISP) after ISP incorrectly included him on its list of e-mail abusers and cancelled his e-mail account. Summary dismissal of consequential-damages claim was appropriate where producer did not present any reasonably reliable evidence of anticipated profits or any objective evidence of damages to producer's career and business opportunities due to film's failure.
Medical laboratory sued equipment supplier for breach of contract, breach of warranty, and consumer fraud after supplier provided faulty equipment that prevented laboratory from operating. Trial court entered judgment on a jury verdict awarding plaintiff damages, including lost profits. Affirmed: questioning “new business rule,” and holding it inapplicable here.
Why was this important to the Township?
(1) Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss. A term fixing unreasonably large liquidated damages is unenforceable on grounds of public policy as a penalty.
(1) Damages for breach by either party may be liquidated in the agreement but only at an amount that is reasonable in the light of the anticipated or actual harm caused by the breach and, in a consumer contract, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy.
(b) Except as provided in subdivision (c), a provision in a contract liquidating the damages for the breach of the contract is valid unless the party seeking to invalidate the provision establishes that the provision was unreasonable under the circumstances existing at the time the contract was made.
(c) [Presumed void in consumer K or lease]