As I discussed in class, I do not disclose or discuss grades
via email. Should you have any question
concerning your grade(s), please send me a message after the start of the
Spring semester and we will meet to discuss your grade or any other concerns
you may have. Please understand I do not
change any grade unless I have made a calculation error. Have a Happy Holiday! Rick Custin
Wednesday, December 18, 2013
Thursday, September 19, 2013
Material Breach, Defintion and Damages
Consider the following:
“When a party’s failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract. Normally the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question of fact. Whether a partial breach of a contract is material depends on ‘the importance or seriousness thereof and the probability of the injured party getting substantial performance.’ ‘A material breach of one aspect of a contract generally constitutes a material breach of the whole contract.’ ” Brown v. Grimes (2011) 192 Cal.App.4th
and as to determining whether a material breach has occurred:
In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. American Law Institute, Restatement (Second) of Contracts § 241
and as to damages:
One who has been injured by a breach of contract has an election to pursue any of following three remedies: "He may treat the contract as rescinded and may recover upon a quantum meruit so far as he has performed; or he may keep the contract alive, for the benefit of both parties, being at all times ready and able [30 Cal.2d 382] to perform; or, third, he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing." Sobelman v. Maier, 203 Cal. 1 [262 P. 1087]; McConnell v. Corona City Water Co., 149 Cal. 60, 64-65; Lemle v. Barry, 181 Cal. 1 [183 P. 150]; see, also, House v. Piercy, 181 Cal. 247 [183 P. 807].
“When a party’s failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract. Normally the question of whether a breach of an obligation is a material breach, so as to excuse performance by the other party, is a question of fact. Whether a partial breach of a contract is material depends on ‘the importance or seriousness thereof and the probability of the injured party getting substantial performance.’ ‘A material breach of one aspect of a contract generally constitutes a material breach of the whole contract.’ ” Brown v. Grimes (2011) 192 Cal.App.4th
and as to determining whether a material breach has occurred:
In determining whether a failure to render or to offer performance is material, the following circumstances are significant: (a) the extent to which the injured party will be deprived of the benefit which he reasonably expected; (b) the extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived; (c) the extent to which the party failing to perform or to offer to perform will suffer forfeiture; (d) the likelihood that the party failing to perform or to offer to perform will cure his failure, taking account of all the circumstances including any reasonable assurances; (e) the extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing. American Law Institute, Restatement (Second) of Contracts § 241
and as to damages:
One who has been injured by a breach of contract has an election to pursue any of following three remedies: "He may treat the contract as rescinded and may recover upon a quantum meruit so far as he has performed; or he may keep the contract alive, for the benefit of both parties, being at all times ready and able [30 Cal.2d 382] to perform; or, third, he may treat the repudiation as putting an end to the contract for all purposes of performance, and sue for the profits he would have realized if he had not been prevented from performing." Sobelman v. Maier, 203 Cal. 1 [262 P. 1087]; McConnell v. Corona City Water Co., 149 Cal. 60, 64-65; Lemle v. Barry, 181 Cal. 1 [183 P. 150]; see, also, House v. Piercy, 181 Cal. 247 [183 P. 807].
Thursday, August 8, 2013
Link to Debt Cancellation Article in Real Estate Taxation
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2232467
Link to Secured Transactions Lecture
http://www.youtube.com/watch?v=-Tk-eO13blk (or)
http://youtu.be/-Tk-eO13blk
http://youtu.be/-Tk-eO13blk
Thursday, August 1, 2013
Bitcoins and UCC 3-104(a)
Bitcoin is a digital currency not regulated by any government or central bank. UCC 3-104(a) provides that a negotiable instrument must promise or order payments in a governmental currency. Should the UCC be amended to include digital currencies? What issues might arise with such an amendment? Your thoughts?
Post-dated and stale checks
We discussed legal issues involving bank checks. A bank may accept post-dated and stale checks. Is a bank acting "commercially reasonable" by cashing these checks? Is the requirement to act "commercially reasonable" consistent with allowing a bank to cash a post-dated or stale check? Is selecting a future date for payment in electronic commerce the equivalent of post-dating a check? Your thoughts?
Friday, July 26, 2013
Lumber Sales v. Brown
Kris provided me with a case that addresses the issue presented in problem 10 on p. 510- Lumber Sales v. Brown. Please consider the following:
"The plaintiff contends and defendant admits that on or about the 6th day of November, 1968, the defendant agreed to purchase from plaintiff five carloads of lumber, which the plaintiff agreed to sell and deliver to defendant at a certain railroad siding near Radnor Yards in Nashville, Tennessee, which siding was known and designated by the railroad carrier as No. 609-A.
Plaintiff contends that all five carloads of lumber were delivered to defendant at said railroad siding in Nashville, Tennessee, and the defendant admits that four carloads thereof were received by him, but he denies that the fifth carload of lumber, which was to consist of two by four pine studs, was ever delivered to him or received by him.
The plaintiff's contention that this fifth carload of lumber was duly delivered to defendant and the defendant's denial that same was delivered to or received by him is the substance of the controversy between the parties...
The trial Court held that the risk of loss in this case did, in fact, pass to the defendant buyer...
This was an ordinary business day and the time of 11:07 A.M. was a reasonable business hour. If it was not convenient with the defendant to unload the lumber within the few hours after being duly notified of delivery, then he should have protected himself against risk of loss by directing someone to guard the cargo against loss by theft and other hazards.
To hold that the seller or the carrier should, under the circumstances existing in a case of this kind, continue to protect the goods until such time as the buyer may find it convenient to unload them would impose an undue burden upon the seller or the carrier and unnecessarily obstruct the channels of commerce...
... the judgment of the trial [***12] Court is affirmed."
"The plaintiff contends and defendant admits that on or about the 6th day of November, 1968, the defendant agreed to purchase from plaintiff five carloads of lumber, which the plaintiff agreed to sell and deliver to defendant at a certain railroad siding near Radnor Yards in Nashville, Tennessee, which siding was known and designated by the railroad carrier as No. 609-A.
Plaintiff contends that all five carloads of lumber were delivered to defendant at said railroad siding in Nashville, Tennessee, and the defendant admits that four carloads thereof were received by him, but he denies that the fifth carload of lumber, which was to consist of two by four pine studs, was ever delivered to him or received by him.
The plaintiff's contention that this fifth carload of lumber was duly delivered to defendant and the defendant's denial that same was delivered to or received by him is the substance of the controversy between the parties...
The trial Court held that the risk of loss in this case did, in fact, pass to the defendant buyer...
This was an ordinary business day and the time of 11:07 A.M. was a reasonable business hour. If it was not convenient with the defendant to unload the lumber within the few hours after being duly notified of delivery, then he should have protected himself against risk of loss by directing someone to guard the cargo against loss by theft and other hazards.
To hold that the seller or the carrier should, under the circumstances existing in a case of this kind, continue to protect the goods until such time as the buyer may find it convenient to unload them would impose an undue burden upon the seller or the carrier and unnecessarily obstruct the channels of commerce...
... the judgment of the trial [***12] Court is affirmed."
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