KEY TO FALL 1997 CONTRACTS MIDTERM 2 -- PROF. FERRIELL

ORG Is your answer organized clearly? Did you work through the issues in a systematic, step-by-step, manner? Did you analyze the L-B contract first noting that analysis of the L-DAWGS recovery depended on an analysis of the damages owed by Landscape on the L-B agreement?

A Did you analyze the Landscape-Builder Agreement?

B Did you note the mixed goods & services nature of the contract and the question of whether the UCC or the common law applied?

C Did you assert and apply the "predominant purpose" test for determining whether the contract was for goods or services?

D Did you discuss the enforceability of the $1000 per day agreed remedy provision?

E Did you assert and apply the "reasonable forecast of anticipated damages" test to the agreed remedy provision?

F Did you assert and apply the impact of the difficulty proving actual damages on the enforceability of the agreed remedy provision?

G Did you assert and apply the difference in value and cost of performance formulas for Landscape's potential breach?

H Did you discuss the speculative nature of Builder's damages as it would affect its ability to recover them? How about Landscape's strategy in raising or ignoring this issue and the impact such might have on the enforceability of the agreed remedy provision?

I Did you fully analyze Landscape's forseeability of the lost profit to Builder from a loss of customers?

J Did you address Landscape's avoiding harm by mitigating? Buying its own lawn dogs, adopting a different theme for the house, or otherwise taking reasonable steps to avoid harm that might occur as a result of the missing dogs (such as simply forgetting about it)?

K Did you discuss the right of Landscape to restitution for the work it had completed even though it might end up in breach?

L Did you discuss the measure of restitution: value of the work done - the cost to finish?

M Did you discuss Landscape's ability to recover the full $10,000 price due to its arguable substantial performance of the job despite the missing lawn dogs?

N Did you discuss the $500 bonus as an agreed remedy provision arguably unenforceable as a penalty? I'll bet you didn't!

O Did you anaylze the remedies in the Landscape-DAMD Contract?

P Did you analyze whether the agreement was for goods or services, indicating that because the subject matter was things moveable at the time of "identification" to the contract, that it was for the sale of goods and thus governed by article 2 of the UCC?

Q Did you outline Landscape's alternatives including cancelling the contract, recovering the downpayment, getting damages, etc.?

R Did you specifically indicate that the UCC permits recovery of the $600 down payment?

S Did you explain how the cover/contract price formula applied and analyze whether covering with the bronze dogs would be in good faith, without unreasonable delay (or too fast in this case), and was otherwise reasonable, mentioning that the extra value of the bronze dogs would not benefit Landscape in any way (technically bronze lawn dogs leaves Landscape still in breach)?

T Did you discuss the alternate formula based on the market price, noting that because this is a repudiation case that the market might be measured at different times by different courts?

U Did you note that Landscape seems to have incurred some incidental damages in its effort to locate substitute lawn dogs and that costs associated with this effort would be recoverable?

V Did you discuss Landscape's potential liability to Builder as a consequential damage item?

W Did you analyze whether Landscape's liability to Builder was forseeable by DAMD under the "Reason to Know" test of the UCC, explaining how the facts might affect this analysis; Did you indicate that the $500 bonus was not communicated and thus probably not contemplated by DAMD; nor was the agreed remedy in the Builder-Landscape agreement?

X Did you discuss how Landscape might otherwise mitigate its damages against DAMD, such as by attempting to negotiate a settlement with Builder over the lawn dogs?

Y Did you discuss the availability of Specific Performance or another equitable remedy, since DAMD appears to have some lawn dogs?

Z Did you assert and apply the rule that equitable remedies are available only if the remedy at law is inadequtae?

AA Did you analyze whether the concrete dogs were "unique" or if the unavailability of cover made the legal remedy inadequate?

BB Did you discuss obtaining an injunction or temporary restraining order, preventing DAMD from disposing of its available lawn dogs in the contract with its other customer and how the absence of a negative covenant might limit the availability of such an injunction?