Did Plaintiff and Defendant agree to the terms of the contract?

Answer: _______________

QUESTION ______

Did Plaintiff fail to comply with the agreement?

Answer: _______________

Material Breach: A failure to comply must be material. The circumstances to consider in determining whether a failure to comply is material include:

a)The extent to which the injured party will be deprived of the benefit which he reasonably expected;
b)The extent to which the injured party can be adequately compensated for the part of that benefit of which he will be deprived;
c)The extent of which the party failing to perform or to offer to perform will suffer forfeiture;
d)The likelihood that the party failing to perform or to offer to perform will cure his failure, taking into account the circumstances including any reasonable assurances;
e)The extent to which the behavior of the party failing to perform or to offer to perform comports with standards of good faith and fair dealing.

In deciding whether the parties reached an agreement, you may consider what they said and did in light of the surrounding circumstances, including any earlier course of dealing. You may not consider the parties’ unexpressed thoughts or intentions.

QUESTION ______

Did Defendant fail to comply with the agreement?

Answer: _______________

Instruction on Formation of Agreement:

In deciding whether the parties reached an agreement, you may consider what they said and did in light of the surrounding circumstances, including any earlier course of dealing. You may not consider the parties’ unexpressed thoughts or intentions.

Instruction on Authority:

A party’s conduct includes the conduct of another who acts with the party’s authority or apparent authority.

Authority for another to act for a party must arise from the party’s agreement that the other act on behalf and for the benefit of the party. If a party so authorizes another to perform an act, that other party is also authorized to do whatever else is proper, usual, and necessary to perform the act expressly authorized.

Apparent authority exists if a party (1) knowingly permits another to hold himself out as having authority or, (2) through lack of ordinary care, bestows on another such indications of authority that lead a reasonably prudent person to rely on the apparent existence of authority to his detriment. Only the acts of the party sought to be charged with responsibility for the conduct of another may be considered in determining whether apparent authority exists.

Instruction on Ratification:

A party’s conduct includes conduct of others that the party has ratified. Ratification may be express or implied.

Implied ratification occurs if a party, though he may have been unaware of unauthorized conduct taken on his behalf at the time it occurred, retains the benefits of the transaction involving the unauthorized conduct after he acquired full knowledge of the unauthorized conduct. Implied ratification results in the ratification of the entire transaction.

Instructions on Ambiguous Provisions:

It is your duty to interpret the language of the agreement:

You must decide its meaning by determining the intent of the parties at the time of the agreement. Consider all the facts and circumstances surrounding the making of the agreement, the interpretation placed on the agreement by the parties, and the conduct of the parties.

Instructions on Time of Compliance:

Compliance with an agreement must occur within a reasonable time under the circumstances unless the parties agreed that compliance must occur within a specified time and the parties intended compliance within such time to be an essential part of the agreement.

In determining whether the parties intended time of compliance to be an essential part of the agreement, you may consider the nature and purpose of the agreement and the facts and circumstances surrounding its making.

Instructions on Offer and Acceptance:

In attempting to reach an agreement, one party may specifically prescribe the time, manner, or other requirements for the other party’s acceptance of the offer. If the offer is not accepted as prescribed, there is no agreement.

Instructions on Withdrawal or Revocation of Offer:

There is no agreement unless the party to whom an offer is made accepts it before knowing that the offer has been withdrawn

Defenses:

Basic Question:

QUESTION _____

If you believe there was an agreement, then was Defendant’s failure to comply excused?

Answer: _______________

Instruction on Anticipatory Repudiation:

Failure to comply by Defendant is excused by Plaintiff’s prior repudiation of the same agreement.

A party repudiates an agreement when he indicates, by his words or actions, that he is not going to perform his obligations under the agreement in the future, showing a fixed intention to abandon, renounce, and refuse to perform the agreement

Instructions on Waiver:

Failure to comply by Defendant is excused if compliance is waived by Plaintiff.

Waiver is an intentional surrender of a known right or intentional conduct inconsistent with claiming the right.

Instructions on Equitable Estoppel:

Failure to comply by Defendant is excused if all the following circumstances occurred:

1.         Plaintiff

a.         by words or conduct made a false representation or concealed material facts,

b.         with knowledge of the facts or with knowledge or information that would lead a reasonable person to discover the facts, and

c.         with the intention that Defendant would rely on the false representation or concealment in acting or deciding not to act; and

2.         Defendant

a.         did not know and had no means of knowing the real facts and

b.         relied to his detriment on the false representation or concealment of material facts.

Instructions on Duress:

Failure to comply by Defendant is excused if the agreement was made under duress caused by Plaintiff.

Duress is the mental, physical, or economic coercion of another, causing that party to act contrary to his free will and interest.

Instructions on Undue Influence:

Failure to comply by Defendant is excused if the agreement was made as the result of undue influence by Plaintiff.

“Undue influence” means that there was such dominion and control exercised over the mind of the person executing the agreement, under the facts and circumstances then existing, as to overcome his free will. In effect, the will of the party exerting undue influence was substituted for that of the party entering the agreement, preventing him from exercising his own discretion and causing him to do what he would not have done but for such dominion and control.

Instructions on Mutual Mistake of Fact:

Failure to comply is excused if the agreement was made as the result of a mutual mistake.

A mutual mistake results from a mistake of fact common to both parties if both parties had the same misconception concerning the fact in question. A mistake by one party but not the other is not a mutual mistake.

Instructions on Novation:

Failure to comply is excused if the agreement was made as the result of a mutual mistake.

A mutual mistake arises when parties to an agreement have identical intent and understanding of the terms to be embodied in a proposed written agreement, but, in the effort to reduce the agreement to writing, a mistake is made so that the writing does not present the intended agreement.

Instructions on Modification:

Failure to comply with one agreement is excused if the parties agreed that a new agreement would take its place.

Instructions on Accord and Satisfaction:

Failure to comply with an agreement is excused if a different performance was accepted as full satisfaction of performance of the original obligations of the agreement.

Instructions on Mental Capacity:

Failure to comply is excused if Defendant lacked sufficient mind and memory to understand the nature and consequences of his acts and the business he was transacting

Question on Promissory Estoppel:

QUESTION _____

Did Plaintiff substantially rely to his detriment on Defendant’s promise, if any, and was this reliance foreseeable by Defendant?

Answer: _______________

Question and Instruction on Quantum Meruit:

QUESTION ______

Did Plaintiff perform compensable work for Defendant?

One party performs compensable work if valuable services are rendered or materials furnished for another party who knowingly accepts and uses them and if the party accepting them should know that the performing party expects to be paid for the work.

Answer: _______________

Damages:

QUESTION ______

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate Plaintiff for his damages, if any, that resulted from such failure to comply with Agreement?

Consider the following elements of damages, if any, and none other.

Loss of the benefit of the bargain

Remedial damages

Loss of contractual profit

Loss of contractual profit plus expenses incurred before breach

Damages after mitigation

Mitigation expenses

Incidental damages

Do not add any amount for interest on damages, if any.

Answer separately in dollars and cents for damages, if any.

a.