Contracts §1, Fall 1998 Grading Form Professor Kalodner

Question I (34 points)

B: Our agreement was either a modification or an accord, in either event substituting a debt of $12,000 in lieu of a debt for $24,000	(5 pts)
L: Whether that “agreement” was a purported modification or an accord, it was not supported by consideration; before the agreement, you owed $24,000 immediately; under the agreement you would owe only $12,000 payable over another year - no legal detriment by you supporting my “agreement”	(5 pts)
B: That agreement is supported by consideration - my giving up of my legal right to file for bankruptcy	(4 pts)
L: No court should recognize forbearance to file for bankruptcy as consideration; the court would be encouraging threats to file bankruptcy as a way of providing consideration for a promise to pay a lesser amount - bad public policy	(4 pts)
B: If no consideration, then the court should nevertheless enforce L’s promise to accept $12,000 under the theory of §90 of RS2d; L should have known that I would detrimentally rely on his promise and I did	(4 pts)
L: Maybe other lenders relied detrimentally, there is no detrimental reliance on your part other than a momentary hope that I wouldn’t sue you for the $24,000 you owe	(3 pts)
RS89(a): B might try to argue a fair and equitable modification agreed to in the aftermath of unanticipated circumstances; L would respond that even if that is an acceptable rule of law, not applicable here because not executory on both sides	(3 pts)
L: You extracted the promise to accept $12,000 by threatening bankruptcy and that is not in good faith and maybe constitutes duress created by you	(3 pts)
Miscellaneous	(3 pts)

Total Question I (of 34 pts)............................ ______

Question II (34 points)

B: Seller has breached by nondelivery so I am entitled to cover under 2-712 or difference between market price and contract price under 2-713; I tried to cover but could not, so I can demand my 2-713 damages	(7 pts)
B: I suffered foreseeable consequential damages which could not have been avoided by cover and therefore under 2-715(2) I am entitled to my loss of profits on my Comics deal at $100 per computer	(7 pts)
B: Since these cables that I ordered are unique, I could seek specific performance under 2-716(1), but on these facts it doesn’t sound as though that would help me	(5 pts)
B: In addition to 2-713 damages and my loss of profits under 2-715(2), I am entitled under 2-715(2) to sue Seller for any damages I have to pay to Comics because of my breach because these damages were foreseeable and unavoidable by cover	(5 pts)
S: I am liable under 2-713 (though I doubt that there is much difference between our contract price and the market price for these cables, but I had no knowledge that you had such a short delivery date on your contract with Comics and I thought my offer to deliver in February would be fine; I certainly had no knowledge of Comics possible losses (which are also too speculative); so no 2-715(2) damages	(7 pts)
Miscellaneous	(3 pts)

Total Question II (of 34 pts)........................... ______

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