Law School Discussion

Poll

I quit my job so that I would be able to study for finals to bring up my grades for my Gpa am I-

Stupid, how are you going to pay rent
1 (4.2%)
An Idiot- If you can't take 21 credits and work 40 hours a week how are you oing to survive in law school
4 (16.7%)
Smart- you realise GPA matters to get into Law School
4 (16.7%)
Practical- You know whats best for your grade and GoodLuck
15 (62.5%)
Looney- You need to check yourself into a madhouse because what you did was dumb!!
0 (0%)

Total Members Voted: 17

Torts v. contracts

Re: Torts v. contracts
« Reply #10 on: October 29, 2004, 06:47:47 AM »
JD - check out UCC 2-209 (1) , in that situation a breach would not be in her best interest, and the offeror would recover heavy damages.  However, in this situation, assuming good faith, offeree could modify the contract for "impracticability" if:
- Contract excutory, not executed (which it is)
- Modifications are fair and equitable...
- in view of the circumstances not anticipated when contract was formed.

But it has already been decided that in certain circumstances, a breach is something that the courts will encourage, for economic reasons alone.  Is this a tort however?  Perhaps, technically, but that is still a stretch... however, there is a tort for inducing one to breach, I believe.

Yes, good point.  I knew I would screw that hypo up somehow.   :)

Re: Torts v. contracts
« Reply #11 on: October 29, 2004, 07:21:33 AM »
JD - check out UCC 2-209 (1) , in that situation a breach would not be in her best interest, and the offeror would recover heavy damages.  However, in this situation, assuming good faith, offeree could modify the contract for "impracticability" if:
- Contract excutory, not executed (which it is)
- Modifications are fair and equitable...
- in view of the circumstances not anticipated when contract was formed.

This modification would have to be mutually agreed upon, would it not?

taterstol

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Re: Torts v. contracts
« Reply #12 on: October 29, 2004, 10:26:10 AM »
The simplest rule is that breach of contract is almost never a tort. If it were a true or false question on a torts exam, the answer would be false.

The reason breach is almost never a tort isn't just because somebody said so. Pain and suffering is almost never reasonably expected to follow from a breach, and awarding punitive damages goes against the ideas of economic efficiency that contract law loves so much. If you can just get the money you were going to get anyway, why should you be entitled to punitive damages? It does nothing to advance the expectation, reliance, or restitution interest.

Courts have awarded pain and suffering where it was an expected consequence of a breach. Think burial contracts, funeral services, etc. They've awarded punitive damages if the breach was particularly egregious, like fraud, extortion, perjury in court related to the contract, etc. Damages for personal injury are sometimes awarded if they flow naturally from the breach.

But generally breach of contract is almost never a tort becuase usually money damages directly related to the contract, or an order of specific performance, are adequate to remedy the situation.


jeffjoe

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Re: Torts v. contracts
« Reply #13 on: October 29, 2004, 10:36:52 AM »
Courts have awarded pain and suffering where it was an expected consequence of a breach. Think burial contracts, funeral services, etc. They've awarded punitive damages if the breach was particularly egregious, like fraud, extortion, perjury in court related to the contract, etc. Damages for personal injury are sometimes awarded if they flow naturally from the breach.

I may be oversimplifying, but the breach in the burial examples are not directly related to the tort.  In other words, they could have met the requirements of the contract and still committed a tort and vice versa.

taterstol

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Re: Torts v. contracts
« Reply #14 on: October 29, 2004, 10:42:31 AM »
Right. Another way to think of it is that a duty that arises out of law is tort, and a duty that arises out of a contract is contract. You can fulfill the contract while breaching some other totally separate duty that results in having committed a tort.

But, at least to me, the interesting question is when the breach of the contract itself is also a tort.

I think the other thing that's important to remember is the whole "test" of when a breach of contract is a tort is a highly manipulable part of the doctrine. You can make the test come out whichever way you need it to in most situations. I think that a lot of the time, what dictates how the "test" comes out is how the court wants it to come out.

Re: Torts v. contracts
« Reply #15 on: October 29, 2004, 01:31:03 PM »
JD - check out UCC 2-209 (1) , in that situation a breach would not be in her best interest, and the offeror would recover heavy damages.  However, in this situation, assuming good faith, offeree could modify the contract for "impracticability" if:
- Contract excutory, not executed (which it is)
- Modifications are fair and equitable...
- in view of the circumstances not anticipated when contract was formed.

This modification would have to be mutually agreed upon, would it not?


           I would hope there would be assent to the modification, and I would look very hard for it.  That the offeror is the offeror, and he *wants* this building built, so badly that he enters into a 1 million dollar contract, and it's clear now that offeree wants to finish it, however needs to modify the original contract in good faith, in a fair and equitable manner in view of the circumstances not anticipated, I do not see how the offeror would *have* to assent to it, especially since there is definite detrimental reliance on the offeree (assuming he is not going to be paid until full performance).  Then again, if offeror said "stop with the building and here is your money" then offeree would have a tough case against offeror to say, "I won't stop until it is complete, I am modifying this contract and you give me another million." 

I found this buried in my notes:
UCC 2-209 View:  You just have to show there was an agreement to modify.  If a party is coerced into agreeing into a modification, that party is protected by the requirement of good faith.   
   Comment (2) a modification must meet the test of good faith imposed by this act.
UCC 1-201:  Honesty in Fact.  Observance of reasonable commercial standards of fair dealing in the trade.


Important to note:  The modification is *only*  for the Sale of Goods (it's article 2).  The reason for 2-209 is to get around the legal technicalities of always making the courts find consideration, a meeting of the minds, and the like, which slows the actual building of the building. 

swifty

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Re: Torts v. contracts
« Reply #16 on: October 29, 2004, 07:00:16 PM »
Right. Another way to think of it is that a duty that arises out of law is tort, and a duty that arises out of a contract is contract. You can fulfill the contract while breaching some other totally separate duty that results in having committed a tort.

But, at least to me, the interesting question is when the breach of the contract itself is also a tort.

I think the other thing that's important to remember is the whole "test" of when a breach of contract is a tort is a highly manipulable part of the doctrine. You can make the test come out whichever way you need it to in most situations. I think that a lot of the time, what dictates how the "test" comes out is how the court wants it to come out.

I spoke with her again, and she said the better question to put forth is:

A tort can result form which of the following:

A.  Breach of a duty
B.  Breach of a duty of reasonable care
C.  Punching someone purposely
D.  Breach of contract
E.  All of the above.

I think E would be the "best" answer because breaching a contract can be a result of "fraud" which is, indeed, an intentional tort. 

Does that make sense?  It's starting to for me. 

DOWNY

Re: Torts v. contracts
« Reply #17 on: October 29, 2004, 08:00:51 PM »
E is correct