« on: December 17, 2008, 12:21:35 PM »
My study partner and I outlined this response. It seems like we're missing an argument for Alice being able to recover Nov. 14 damages.
Nov. 8 Flight
Charterís 1.5 hour delay is likely a breach.
Anticipatory Repudiation: discuss whether or not Aliceís breach was justified despite receiving assurances.
Assuming sheís justified: Aliceís Likely Recoverable Damages = Price she paid Charter + cost of commercial flight.
Materiality: time was of the essence, so a delay in performance is likely material. However, a good argument can be made otherwise.
However, Charterís failure to bring a claim for this weekís flight means they are potentially conceding that they breached by not having the flight ready on time.
Nov. 14 Flight
Charterís recovery for Aliceís breach on the remaining flights depends on whether or not Charterís Nov. 8 breach was material. If the Nov. 8 breach was material, Alice is justified in terminating the rest of the contract. If her termination is justified, she would be able to recover expectation damages for Nov. 14 and probably will not recover for Nov. 21 and 28 (based on commercial frustration).
Commercial Frustration: It will depend on whether or not the CFL games were a basic assumption on which the contract was based. Look at the contract language for this (further facts needed). If it says something like, ďflights to Canadian cities,Ē then the games are likely not a basic assumption. If the contract language is something like, ďcharters to CFL games,Ē then the games are a basic assumption. Good arguments could be made for either side.
If Charter tries to recover from Alice for Nov. 21 and 28, she can argue commercial frustration. If Alice tries to recover from Charter for Nov. 21 and 28, they can argue that she was commercially frustrated and that the flights wouldnít have happened regardless.
Foreseeability might be relevant here (as it is under impracticability), but my knowledge is limited.
Mitigation: Alice likely made reasonable efforts to mitigate damages after Charterís Nov. 8 breach.
Nov. 21 Flight
Charter likely cannot recover because the strike had already ended Ė Alice has a commercial frustration defense. The same applies for Alice.
Nov. 28 Flight
Again, based on commercial frustration, most likely no one will recover.