Select Page

University of Mississippi School of Law
Barnes, Richard L.

The meaning of Enforce
The word contract refers to a written pact containing terms of an agreement, or it refers to a promise, or a set of promises that the law will enforce
Two fundamental assumptions of the court when enforcing promises, one is that the law is concerned with the relief of promises to redress the breach and not with the punishment of promisor to compel performance, another is that the relief granted to the aggrieved promisee should generally protect the pomisee’s expectation by attempting to put the plaintiff in the position in which they would have been had the promise been performed.
United States Naval Institute v. Charter Communications, Inc.
      The naval institute is suing charter for the breach of an agreement with respect to the publications of a book
      Charter was not to publish the book prior to October so as not to damage the sales of the hardback. 
      Charter sent its shipments for October early, allowing those retail outlets to begin selling the paperback edition of the book in September. 
      It can be surmised that the success of the paperback edition hurt the potential sale of the hardback
Rule of Law: The central objective behind the system of contract remedies is compensatory not punitive; $356. Agreement attempting to fix damages in amount vastly greater than what approximates actual loss would be unenforceable as imposing a penalty. Punitive damages are not recoverable for breach of contract unless conduct constituting the breach is also a tort, for which damages are recoverable; $355. Charter did not infringe the copyright because of the exclusive licensee
      It is reasonable to calculate the potential loss to naval by the hardback’s sales figures from the previous month.
      Despite the potential for error in this calculation it is better to error on the side of the injured party and not in favor of the breaching party.
      The courts assumption of 7,760.12 dollars of profit for Charter is presumptuous and cannot be applied.
      Conclusion is that naval is awarded damages, but not part of Charter’s profit.
The economics of remedies
Pareto superior-a relocation of resources in society that is efficient if that relocation will make some unit better off without making some other unit worse off.
An economists argues for a set of rules to apply this relocation of resources to society.
An efficient breach is one that is made to the betterment for both parties in a contract.
Example: charter shipped its paperback’s early because it recognized the potential for overwhelming profit, so much as to compensate Naval for its loss while still retaining profit for themselves.
Sullivan v. O’Connor
      The plaitiff(patient) claims that she entered into a contract with the defendant to receive plastic surgery on her nose to improve her beauty, instead she has received pain, her nose is malformed
      The second claim is that the defendant is guilty of malpractice, charging that the defendant was guilty of negligence in performing the sugury.
      An issue that arises in this case is the individuality of the patient and the uncertainty of the outcome of the procedure weighed against the optimistic opinions of the doctor as to the conclusion of the operation.
Rule of Law: Some cases have taken the simple view that the promise by the physician is to be treated like an ordinary commercial promise, and accordingly that the successful plaintiff is entitled to a standard measure of recovery for breach of contract- compensatory (expectancy) damages or restitution damages; Contracts $ 329, 347, 384.
      One way to deal with this breach of contract is to award the plaintiff damages equal to their loss according to all of their property, so that after the award they are no better or worse off than they were at the beginning of their agreement with the defendant reliance recovery.
      Other ways to deal with this breach is to award the plaintiff damages as make them equal to what they should have been at the end of the operations had it been successful, an expectancy recovery
      Another way is to simply award them restitution for their lost fees
      Restatement of Restitution $1(1937) states that one who has been unjustly enriched at the expense of another is required to make restitution to the other
After showing proof the jury must decide how to award damages
1.      Expectation – to be awarded damages to compensate for the desired end of the deal
The 3rd operation costs, pain and suffering from the third surgery,    disfigurement (mental anguish) beyond the third surgery, mental anguish for worsened condition
2.      Reliance – doctor fees of 622.00, all med. Expenses, all pain and suffering for all surgeries
3.      Restitution – the doctor fees of $622.00, meager award
Damages are not usually awarded for breach of contract, except under the condition that the defendant has exhibited tortious conduct that is sufficiently outrageous
The first case was simply how to award the wronged for their damages, the second case is how to award a plaintiff if the damages are somewhat subjective.
The court said Sullivan was entitled to out of pocket expenses, damages for disfigurement and consciousness, loss of income, pain and suffering from the third operation.
Appellate court said that income was not to be figured, appellate court said that t

e of action to regain damages to a person or property due to consensual undertaking. The underlying theme is misfeasance.
When the courts extended this to nonfeasance they established that the injured party must suffer a detriment in the ordeal to recup damages.
By the end of the medieval period assumpsit had replaced debt
 A person must show how the defendant benefited from the breach of a deal
The idea of quid pro quo of debt morphed into the concept that there must be an exchange arrived at by way of bargaining
Categories of agreements
            Contracts for the sale of goods
            Real estate transactions
            Construction contracts
            Employment agreements
            Family Contracts
Family contracts are often informal, verbal, and without much detail or economic import
Hamer v. Sidway
      Uncle Story promised his nephew that if he continued to be well mannered and behaved he would give him 5000 dollars on his 21st birthday
      Nephew agreed Uncle should keep money after 21st birthday to accrue the interest
      Uncle died, nephew wants money and the interest on the money since his birthday
      Defendant contends that the promise was one of word to benefit the plaintiff and in no way does it benefit the defendant
      Regardless of this fact the exchequer chamber in 1875 defined consideration as follows: A valuable consideration in the sense of the law may consist either in some right interest profit or benefit a….it is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him.
Rule of Law: In general, a waiver of any legal right at the request of another party is sufficient consideration for a promise. “Parsons on Contracts, 444.
      Any damage or suspension or forebearence of a right, will be sufficient to sustain a promise. Kent, Vol. 2, 465, 12th ed.
      Uncle owes him money,
Fiege v. Boehm
      Plaintiff alleges that she had sexual intercourse with defendant, and upon this act became pregnant. 
Upon learning of the effects of their sexual encounter, the defendant