Canadian Wild Rice & Cottage Painting: Contractual Obligations & Goods Delivery Case Study, Lecture notes of Law

Download Canadian Wild Rice & Cottage Painting: Contractual Obligations & Goods Delivery Case Study and more Lecture notes Law in PDF only on Docsity! California First-Year Law Students’ Examination Essay Questions and Selected Answers June 2018 The State Bar of California Committee of Bar Examiners / Office of Admissions 180 Howard Street • San Francisco, CA 94105-1639 • (415) 538-2300 845 South Figueroa Street • Los Angeles, CA 90017-2515 • (213) 765-1500 ESSAY QUESTIONS AND SELECTED ANSWERS JUNE 2018 CALIFORNIA FIRST-YEAR LAW STUDENTS’ EXAMINATION This publication contains the four essay questions from the June 2018 California First- Year Law Students’ Examination and two selected answers for each question. The answers were assigned high grades and were written by applicants who passed the examination. The answers were produced as submitted by the applicant, except that minor corrections in spelling and punctuation were made for ease in reading. They are reproduced here with the consent of the authors. Question Number Subject 1. Contracts 2. Torts 3. Contracts 4. Criminal Law QUESTION 1: SELECTED ANSWER A Food Bank's ability to enforce the valid contract between Buyer and Seller will be determined by whether there has been a breach of that contract and whether Food Bank's rights had vested. APPLICABLE LAW Article 2 of the UCC governs contracts for the sale of goods. Goods are all movable chattel. Here, the contract is for the sale of pounds of rice. Pounds (or kilogram sacks) of rice are movable chattel. Thus, the UCC applies. Merchant Some provisions of the UCC apply only to merchants. A merchant is one who regularly deals in goods of the kind sold in the contract. Here, Seller is in the business of selling imported food products to local distributors. Buyer is a local food distributor. They both regularly deal in the sale of commercial foods. Thus, both Buyer and Seller are merchants. FORMATION A valid contract is formed where there is mutual assent (evidenced by an offer and acceptance), consideration, and no defenses. The Statute of Frauds is a defense to formation that requires certain agreements--including those for the sale of goods valued at over $500--be in a writing signed by the party to be bound in order to satisfy the Statute. Here, the contract was for the sale of 2,500 pounds of rice valued at $15,000, which is within the Statute of Frauds. The facts tell us, however, that the contract was written and valid. Thus, the Statute is satisfied and there is an enforceable contract between Buyer and Seller. PERFECT TENDER RULE Under the UCC, where a seller accepts a buyer's offer by promise to ship, the perfect tender rule applies. The seller's delivery must conform exactly to the buyer's order and the tender must be perfect. Where the seller accepts an offer by prompt shipment rather than promise to ship, the seller is entitled to ship an accommodation rather than an absolute perfect tender, so long as the seller includes a note to the buyer qualifying the shipment as such. Here, Seller delivers to buy 2,500 pounds of Canadian wild rice packed in 50-kilogram sacks containing 110.2 pounds each rather than the contracted-for 100-pound sacks. Because the facts tell us, through Buyer's communication with Food Bank, that the seller had "promised" to ship, the Seller was bound to a perfect tender. Thus, Seller's delivery of 50 kilogram/110 pound sacks rather than 100 pound sacks (even though it was very close to the 100-pound sacks) was an imperfect tender and a breach of its contract with Buyer. THIRD PARTY RIGHTS Third Party Beneficiary A third party beneficiary (TPB) is one who is not a party in the making of the contract but who is named and is to receive a benefit conferred under that contract. A TPB must be an intentional, rather than an incidental, beneficiary in order to have rights under the contract. A donee beneficiary is one to whom the promisee (Buyer) intends to confer its benefit under the contract; a creditor beneficiary is one to whom the promisee owes a debt and intends to have its benefit conferred as a repayment of that debt. Here, Buyer and Seller's contract names Food Bank and provides that Food Bank will receive 200 pounds of rice. This delivery of rice is complimentary and was therefore a benefit to be conferred as gift by Buyer. Thus, Food Bank is an intended, donee beneficiary under the contract between Buyer and Seller. Vested Rights A TPB's rights must first have vested before the TPB has contractual rights. A TPB's rights vest when it (i) assents to the terms of the contract; (ii) brings suit; or (iii) changes position in reliance on the contract. Here, Food Bank, after being informed by Buyer of the 200 pounds of rice, planned to use it as part of its upcoming fundraising campaign. Not only did it plan to use the rice, but it proceeded to purchase 200 one-pound bags at a cost of $300 to package the rice into "thank you" tokens for would-be donors in this fundraising campaign. This $300 expenditure shows that Food Bank changed position in reliance on the delivery of that 200 pounds of rice. Thus, by changing position in reliance on delivery of the rice, Food Bank's rights as a TPB vested and it may enforce the contract between Buyer and Seller. SELLER'S DEFENSES Impossibility A party's performance is excused if performance has become impossible due to an unforeseen event, the nonoccurrence of which was a basic assumption of the parties at the time of the contract. The impossibility must affect the party's ability to perform--a mere increase in cost or inconvenience would not suffice. Here, Seller will argue that delivery of the 2,500 pounds of rice in 100-pound sacks had become impossible because its producer had switched to metric weights. If the seller could prove that due to this change, he was actually unable to otherwise package the rice into 100-pound sacks, he will be able to raise the defense of impossibility. However, it is likely that he could have simply incurred an additional expense to have QUESTION 1: SELECTED ANSWER B 1. Can Food Bank enforce the contract between buyer and seller? Governing Law UCC is the governing law for contracts mainly dealing with the sale of goods, which are movable, tangible materials. This contract is mainly dealing with the sale of the food product of wild rice. Therefore, UCC will be the governing law. Merchants Merchants are parties to a contract that regularly deal in the buying or selling of the type of good identified in the contract. Seller is described as one who "sells imported food products to local food distributers like Buyer". Buyer is described as a "local food distributer". Therefore, both parties are regularly dealing with the sale of such food products, like wild rice, and are merchants for the purposes of this contract. Formation A valid contract formation requires an offer, acceptance, and consideration. The facts state that "seller and buyer entered into a valid written contract...". Therefore, it is likely that the contract is validly formed. UCC requires quantity to be stated in a contract. This contract does state a quantity of "2,500 pounds of Canadian Wild Rice", and it does have the clear and definite terms that the contract needs. 3rd party beneficiary When 2 parties make a contract to benefit a third party, the third party can enforce the contract if they have properly accepted their rights under the contract. A donee beneficiary can accept their rights by detrimental reliance that was reasonably foreseeable. Seller and Buyer entered into a valid written contract... Buyer... insisted on a provision in the contract stating, "in addition to the quantity of goods to be delivered by Seller to buyer under this contract, Seller agrees to deliver free of any charge an additional 200 pounds of the identical product to Food Bank." The facts state that "immediately after Buyer informed food bank of seller's promise to deliver the 200 pounds of wild rice... food bank spent $300 for 200 one-pound bags that were labeled". Therefore they did detrimentally rely on this contract by Buyer and Seller. Additionally, Food Bank will argue that this detrimental reliance is reasonably foreseeable, because Buyer informed them of this contract. Seller will argue that this reliance is not reasonable because they never explicitly agreed to this provision. However, as will be discussed below, because of UCC [merchant's] additional terms, it is still likely that the provision will be part of the contract. UCC [merchant's] additional terms Under the UCC, an acceptance of a contract with additional terms can still be a valid acceptance. Whether or not the additional terms will be part of the contract depends on if all of the following elements are met: (1) both parties must be merchants, (2) the additional terms must not be a material change from the offer, (3) there must not have been a rejection of the additional terms from the other party within 10 days, (4) the original offer must not have excluded any other terms outside of its own Although the provision that Buyer insisted on, for 200 additional pounds to be given for free to Food Bank, is not an insignificant amount, and there is no additional consideration for this amount, it is still likely that this amount can be considered not to be a "material change". Therefore, it is likely that this provision does meet all 4 elements: both parties are merchants (discussed above), there was no rejection by Seller, and the facts don't state of any exclusivity from the original offer. Since it is likely that this provision meets all 4 requirements, it is likely that the provision will be part of the contract. Since the provision is likely part of the contract between Buyer and Seller, Food Bank can argue that it was not unreasonable for Food Bank to detrimentally rely on this deal for them to receive 200 pounds. Therefore, Food Bank likely validly accepted their benefits under the legally formed Buyer-Seller contract. Defenses to formation Statute of Frauds Statute of Frauds requires contracts for the sale of goods for $500 or more to be written and signed by the parties to be charged. As discussed above, the switch of the amount in the sacks was possibly unforeseeable. Seller will argue that both switching the sacks to 100 pounds, and giving Food Bank 200 pounds after Buyer reneged on the agreement are prohibitively expensive to them. Seller will argue that they would only be financially able to give Food bank the 200 pounds if Buyer actually accepted the purchase, (which Seller is arguing they wrongfully refused to do). This argument is likely to succeed. Frustration of purpose When unforeseen circumstances frustrate the purpose of a contract, and the purpose was known to the parties of the contract. As discussed above, the switch of the amount in the sacks was possibly unforeseeable. Seller will argue that the purpose of the agreement to deliver to Food Bank 200 pounds is frustrated by the actions of Buyer, who Seller is arguing to be in wrongful breach. 3. What relief can food bank seek? Expectation damages Damages that place plaintiff in the financial position they would have been in had the contract been fully performed. Food Bank will argue that they should receive the monetary value of the 200 pounds of wild rice (or the 200 pounds of rice, itself). If Seller is found to be in breach, they will be forced to pay this amount. If Buyer is found to be in breach, they might be charged to pay this amount for the 200 pounds of the rice Food Bank was owed. Reliance damages Damages that place the plaintiff in the financial position they would have been in had the contract never been made. It is usually calculated by the amount plaintiff reasonably spent in reliance of the contract being performed. Food Bank spent $300 for 200 one-pound bags as part of a campaign they believed would raise money. Since they were likely reasonable to detrimentally rely on the contract (as discussed above) it is possible for them to recover [from the party found to be in breach]. Consequential damages In addition to expectation damages, a party can seek consequential damages for that was known or reasonably foreseeable to be lost as a consequence of breach of contract. Food Bank expected their campaign with this rice to raise $10,000, with the letters and rice bags sent to contributors. However, this amount was not foreseeable or known at the time of contract formation between Seller and Buyer. Therefore, this amount is not likely to be collected. Mitigated damages A party has the responsibility to do what they reasonably can to mitigate damages they suffer. The amount a party can collect depends on how much they could have reasonably mitigated. The facts state that "food bank was unable to find any other affordable source and had to suspend the fundraising effort". This implied they reasonably tried to mitigate damages, but were unable to do so. Specific Performance A party can enforce injunction on another party to perform a specific performance if: there is a valid contract, conditions are met, inadequacy of legal remedy, mutuality of remedies, and no defenses. It is unlikely that specific performance will be given/forced because legal remedy can arguable be adequate. Here, it would appear that Carole would have a possible claim against the manufacturer, distributor or retailer depending on the facts. Therefore, Carole would have a claim for products liability. Negligence Larry may be held liable to Carole for negligence if it can be determined that Larry owed a duty to Carole, Larry breached that duty, and Carole suffered damages that were actually and proximately caused by Larry's breach. Duty The defendant owes a general duty of care to the plaintiff not to create a risk of harm to the plaintiff. The standard of care is based on what a reasonable person is expected to react to in the same or similar circumstances. Here, Larry owed Carole a duty of care to not cause her harm. Special Duty Certain relationships such as employer-employee, attorney-client establish a special duty of care. Here, in September 2016, Carol hired Larry to represent her in negotiating with her health insurance provider and to file an action against Swim Wonder. Therefore, Larry owed Carole a special duty based on the standard of care of a professional attorney. Breach If the defendant owes a duty of care to the plaintiff and his conduct falls below the standard of care then the defendant has breached that duty of care. Here, Larry who was hired in September 2016 to file suit against Swim Wonder failed to file a lawsuit within the statute of limitations. Therefore, Larry breached the duty of care to Carole. Damages In order to prevail in a negligence action the plaintiff must have suffered damages. Here, Carole suffered damages because her claim was barred by the statute of limitations. Therefore, Carole suffered damages due to Larry's breach. Actual Cause But for Larry's failure to file Carole's lawsuit timely against Swim Wonder, Carole was forever barred from filing her cause of action. Therefore, Larry is the actual cause of Carole not being able to seek relief by filing her lawsuit. Proximate Cause Since Larry is an attorney it should have been foreseeable to Larry that if he did not file a lawsuit timely on Carole's behalf she would be forever barred from filing her suit. Therefore, Larry is the proximate cause of Carole's damages. Defenses Contributory Negligence If the plaintiff's conduct contributed to her injury then she is barred from recovery. Here, the facts do not indicate that Carole contributed to her damages and thus Larry will not be able to utilize this defense. Comparative Negligence This is an apportionment of the liability based on the relative fault of the plaintiff and defendant. Here, as discussed supra, there appear to be no facts to support Carol's negligent conduct. Therefore, this defense will not be available to Larry. Assumption of Risk When the plaintiff has knowledge, comprehension and appreciation of the risk and chooses to ignore or proceed then she has assumed the risk. Here, there are no indication that Carole assumed any risk by hiring Larry. Conclusion As discussed supra, Larry was negligent in filing Carole's lawsuit against Swim Wonder but the court will have to determine if Carole's original claim against Swim Wonder would have been successful for her to recover. 2. If Carole does prevail, how will her damages be determined? Discuss If Carole can prove to the court that but for Larry's negligent act of not filing her lawsuit timely she would have definitely prevailed against Swim Wonder then she will be able to recover from Larry the damages she would have recovered from Swim Wonder. She would be able to recover general damages and special damages which would include pain and suffering, medical bills both current and future, out of pocket medical expenses, loss of earnings etc. demonstrate the cause of the breach as they were in complete control. Further facts need to be elicited on Carole's dive into the swimming pool to evaluate if she was also negligent. Therefore, there may be a breach if Larry is correct. Actual Cause Actual cause is the but for or direct cause of the plaintiff's injuries. But for Carole diving into a swimming pool manufactured by Swim Wonder, she would not have been injured. Therefore, Swim Wonder is the actual cause. Proximate Cause Proximate cause is found when the injury is caused by a direct and foreseeable consequence of the defendant's actions with no intervening acts breaking the chain of causation. There are no facts to indicate that any defect in Swim Wonder's swimming pool caused Carole's injuries. But if the design defect made it foreseeable that Carole would be injured, they may be the proximate cause. Foreseeability (Wagon Mound) jurisdictions In these jurisdictions, if it is found Carole's injures were foreseeable, then Swim Wonder may be liable. Direct (Polemis) jurisdictions In these jurisdictions, if it is found Carole's injuries were a direct result of Swim Wonder's design defect, they will be liable. Therefore, Swim Wonder may be the proximate cause of Carole's injuries. Damages Damages are both special, which are pecuniary in nature, and general, which are non- pecuniary in nature. Carole has special damages due to her medical bills. Carole has general damages due to her pain and suffering from a broken neck. Therefore, Carole has damages. Strict Liability in Tort Under Products Liability, strict liability in tort will be found if a manufacturer or seller releases an unreasonably dangerous product into the stream of commerce and the product is defective in manufacturing, design, or warning, and the defect is the cause of the plaintiff's injures when used in a foreseeable or anticipated manner. To prevail in strict liability in tort, 1) the product must have been manufactured by the defendant (Proper Defendant) 2) the product must be defective 3) the product must be the actual and proximate cause of the plaintiff’s injuries (Proper Plaintiff) 4) the product was defective when it left the manufacturer's hands The facts stipulate that the product was manufactured by Swim Wonder, the proper defendant. Per Larry, a lawyer, the product was defective in design. Actual Cause: Defined and discussed supra. Proximate Cause: Defined and discussed supra. The product, if defective in design, was likely defective when it left Swim Wonder's hands. Nevertheless, because Swim Wonder's swimming pool was not the proximate cause of Carole's injuries, they will not be liable for strict liability in tort. Negligence of Larry Defined supra. Duty Standard of Care An attorney owes a duty to his or her clients as customary in the profession. Because Carole hired Larry, a lawyer, Larry has a duty to perform as other attorneys in his profession. Therefore, Larry owes Carole a duty under the standard of care. Breach Defined supra. When Larry informed Carole that he intended to file her claim, but as of September 2017 did not, he failed to conform to his duty owed. Because two years passed, he did not fulfill his obligations to Carole, since now due to the two-year statute of limitations, he is unable to proceed with his case. A reasonable attorney after being hired believing there to be a claim would file such a claim on their client's behalf. Actual Cause Defined supra. But for Larry not filing Carole's claim, no lawsuit was filed. Therefore, Larry is the cause of Carole's damages. Proximate Cause QUESTION 3 For some time, Alex has owned an old, wooden cottage that needs repainting about every 5 years. Brad paints houses for a living and had seen Alex’s cottage, although he had never painted it. Alex called Brad and offered to pay Brad $10,000 to paint Alex’s cottage, provided that he could do so within the next 30 days. Alex told Brad that “the reason that I always get my cottage painted every 5 years is that it has always only needed one coat of paint.” Brad then agreed orally to paint Alex’s cottage within the next 30 days for $10,000. The next day Brad signed a written contract and left it with Alex. The contract did not specify how many coats of paint would be needed, only that Brad would paint Alex’s cottage within the next 30 days for $10,000. Alex never signed the contract, but watched later that week as Brad began painting the cottage. Brad painted the cottage in one week, but by that time the wood had soaked up the first coat of paint, so the cottage looked unpainted and terrible. The cottage would have looked fine with one more coat of paint, but Brad demanded $10,000 for his work and refused to add another coat of paint unless Alex paid another $10,000. Alex is unhappy and refuses to pay Brad anything. Alex then hires Charles who puts the second coat of paint on the cottage for $7,500. Brad sues Alex for $10,000 and Alex files a counterclaim for $7,500. 1. What arguments can Brad reasonably make in support of his lawsuit and against Alex’s counterclaim? Discuss. 2. What arguments can Alex reasonably make in support of his counterclaim and in response to Brad’s lawsuit? Discuss. 3. What will be the likely outcome of Brad’s lawsuit and of Alex’s counterclaim? Discuss. QUESTION 3: SELECTED ANSWER A Applicable Law Transactions for the sale of goods are governed by the Uniform Commercial Code (UCC). All other transactions are governed by the common law. Here the transaction in question is for services painting a house. Therefore it will be governed by the common law. Formation Formation is an offer, acceptance, and consideration. Offer An offer is a manifestation of present contractual intent communicated to the offeree with sufficient clear and definite terms that a reasonable objective person would assume assent would form a bargain. Here Alex called Brad and offered to pay Brad $10,000 to paint Alex's cottage, provided he could do it within the next 30 days. Alex is the offeror and Brad is the offeree. The fact that Alex called Brad satisfies the communication aspect of the offer. Additionally, the clear and definite terms necessary are present. Brad is to paint one house (quantity and subject matter), within 30 days (time of performance), for Alex (identity of parties), for $10,000 (price). The present contractual intent was manifested. Therefore, there was an offer. Acceptance Acceptance is unequivocal assent to the terms of the offer. Here the facts state that Brad agreed orally to paint Alex's cottage within the next 30 days for $10,000 and the next day signed a written contract. Therefore there is an acceptance. Consideration Consideration is a bargained for exchange of legal detriments. Here Alex is giving up $10,000 to which he had a legal right and Brad is giving up his time to paint the cottage to which he additionally had a legal right. Therefore there is consideration. 1. What arguments can Brad reasonably make in support of his lawsuit and against Alex's counterclaim Defenses to formation Statute of Frauds The statute of frauds is the requirement that certain contracts be in writing. These are contracts for the sale of goods over $500, consideration of marriage, that take over one year to perform, to provide surety on debt, or as the executor of an estate. Here the contract is for none of these things and Brad signed a written contract. Therefore the statute of frauds is no defense. Parol Evidence Rule The Parol Evidence Rule is that oral evidence will not be admitted to contradict or add to a contract that is intended as an integration (a full representation of the intention of the parties). Here, Alex said to Brad that "the reason that I always get my cottage painted every 5 years is that it has always only needed one coat of paint." Brad may have taken this statement as representing his promise to Alex to be to put one coat of paint on the house and would want to submit evidence that this conversation happened. However, if the contract was an integration this evidence may be barred. However, no merger clause is included in the facts. Additionally, because of the vague language of the contract and Alex's failure to sign it is unlikely that language this formal would be included. A trier of fact will have to determine if this conversation indicated that Brad's performance was complete upon the application of a single coat of paint. Quasi Contract A party will be able to recover in quasi contract if no contract was formed, but they detrimentally relied on the promise or where one party would be unjustly enriched. Here because Brad is arguing that no contract was formed, but he partially performed he will be seeking recovery in quasi contract, because Alex would be unjustly enriched if he received the value of Alex's performance for free. Therefore, Brad will recover in quasi contract. Reliance Damages Reliance Damages attempt to put the party in the position they would have been in had the contract not been formed. Here if reliance damages are recovered Brad will be able to receive the price that he paid for the necessary paint. Restitution Damages Restitution Damages compensate for the reasonable value of the work that they have done. Here if restitution damages are recovered Brad will be able to receive the difference between the value of the cottage prior to the paint job and the value after the first coat of paint was applied. Expectation Damages Expectation Damages attempt to put the parties in the position they would have been in had the parties performed the contract. Expectation Damages are generally not allowable in quasi contract Therefore Brad will not receive expectation damages. Alex's claim for $7,500 It's worth noting that while Alex will be unlikely to succeed in his theories of breach as Brad will be able to void the contract that in the unlikely event he is able to succeed he would still not receive $7,500 because, as he has not paid Brad the $10,000 on the contract, he will not be able to recover and in fact experienced no damages as he got the whole job done for less than he originally contracted with Brad. Therefore, Alex will not receive any damages even in the case that he prevails. QUESTION 3: SELECTED ANSWER B 1. What arguments can Brad reasonably make in support of his lawsuit and against Alex's counterclaim? Brad v Alex Applicable Law The Uniform Commercial Code (UCC) governs contracts for the sale of goods. The common law governs contracts for services and land. Here the contract is for "cottage painting", a service. Therefore, the common law controls. Merchants If parties are merchants a higher duty is owed for good faith and fair dealings, as well as special rules governing contract formation and performance. Here Brad is someone who "paints houses for a living", therefore he will be construed as a merchant. Alex is just an owner of an "old wooden cottage". Nothing in the facts indicates there is a business involved, therefore he will likely not be a merchant. Formation Under contract theory, for a valid formation of a contract to exist, you must have offer, acceptance, consideration, proper identification of 3rd parties, legal capacity and no defenses. Offer A valid offer exists when you have an outward manifestation of present contractual intent with definite and certain terms - that a reasonable objective observer would believe assent to form a bargain. as evidence because it was not a direct order for Brad to only use one coat of paint. Rather that he expected Alex, a merchant, to operate under a standard of good faith and fair dealing and to adequately paint the house to a conforming standard and appropriate regarding the price of $10,000. It is likely the court will allow the admission of Parol Evidence to clarify this ambiguity. Performance - Covenants / Conditions - 30 days Under contract theory a covenant is a promise to act, the failure of which is construed as a minor breach. A condition is a requirement of a contract, the failure to satisfy may excuse the other party from performance. Here an express condition states "the cottage must be painted within 30 days". Brad in fact painted the cottage "later that week". Therefore the condition has been satisfied. Covenants / Conditions - 1 coat of paint Under contract theory a covenant is a promise to act, the failure of which is construed as a minor breach. A condition is a requirement of a contract, the failure to satisfy may excuse the other party from performance. Here Brad will argue that the use of 1 coat of paint was a covenant under the contract, which he fulfilled. Alex will counter that this was not a valid covenant, and rather that he should use a reasonable merchant standard to ensure the quality of his work. This will depend on whether or not the court bars this evidence under the Statute of Frauds or Parol Evidence Rule. Performance When a party has substantially or fully performed under their contractual obligations, they will not be found to be in breach, or if only substantial performance, than a minor breach at most. Here Brad will argue that he has fully performed under the contract, because he painted the cottage within the 30 day requirement. Alex will counter that "the cottage looked unpainted and terrible" and therefore Brad has not substantially performed under the contract. It is likely that while the courts may find Brad technically performed, he may only have satisfied substantial performance rather than full performance, depending on the evidence allowed, discussed above. Good Faith / Laches Under merchant theory the parties must act in good faith and fair dealings. Here as Brad is a merchant (as defined above), he will hold out that he has acted in good faith by providing one coat of paint as discussed in the initial talk. Alex will counter that Brad has not acted in good faith because as a professional he didn't satisfy and "the cottage looked unpainted and terrible". Therefore, while Brad technically performed under the contract, he may be found to have acted in bad faith by not performing to a professional, reasonable standard as compared to other painters in his field and location. Breach A major breach occurs when one party fails to substantially perform their contractual duties. A minor breach occurs when one party has substantially, but not fully, performed. Here Brad will argue that Alex is in major breach because he has not performed the payment of $10,000. Alex will counter that he is not in breach because Brad has not fully satisfied performance. If the courts allow evidence to determine that only 1 coat of paint was needed, then Alex will be in major breach for refusing to tender payment for services received. Unjust Enrichment Unjust enrichment occurs when one party has conferred a benefit to another, and it would be unjust to prohibit the laboring party from receiving compensation. Here Alex will fall back on a theory of unjust enrichment because he conferred a benefit (the painting of the cottage), unto Alex (who wanted his cottage painted. Therefore a valid claim of unjust enrichment can be made. Damages - Expectation - No Breach Expectation damages are monetary amounts that would be awarded to the plaintiff to put them into the position they would have been in if the contract had been fully performed. Here Brad will be entitled to damages in the amount of $10,000 - the contract price, if he is found to have fully performed. Damages - Expectation - Breach Expectation damages are monetary amounts that would be awarded to the plaintiff to put them into the position they would have been in if the contract had been fully performed. If a party is found to have committed a minor breach, then they may only be entitled to recover a portion of the original contract price. If Brad is found to have only partially and not fully performed under the contract, he may only be eligible to receive a reduced damage award, that is equal to the amount of work he put in. For example, if the court finds he only performed 50% of his duties, then his damage award will be proportionately to only $5,000. Additionally this award may be reduced further, if Alex had to pay out of pocket to another contractor, such as Charles, and Brad must reimburse those costs. Damages - Incidental Incidental damages are for small fees incurred during the process of the claim such as postage. Here Brad will be entitled to any nominal damages he incurred as a result of Alex's breach. Damages - Restitution Restitution damages may be awarded when one party has been unjustly enriched by the other. Here Alex benefitted from a single coat of paint being applied to his cottage, by Brad, in his field. If found liable, this would be a major breach. Brad will counter that at most he is liable for a minor breach, because he did substantially perform the contract by applying the paint of coat, within the 30 days, as specified. Therefore it is likely the courts will construe this as a minor breach, as public policy favors avoiding complete frustration of a contract. Damages Damages may be calculated by the additional cost incurred to fully perform the services which the breaching party failed, including reasonable incidentals. If Alex prevails in his lawsuit against Brad, he will be entitled to recover the $7,500 he paid to Charles, the amount it cost to see the performance through to a satisfactory state. Furthermore, he may only be liable to pay Brad a reduced amount, equal to the cost of his efforts, but not the full $10,000 originally contracted for. 3. What will be the likely outcome of Brad's lawsuit and of Alex's counterclaim? Verdict - Brad's lawsuit For all of the reasons discussed above, it is most likely that the courts will determine Brad has substantially or fully performed, particularly if they allow in the evidence of the phone call, prior to the writing which didn't specify the number of coats of paint. As the oral conversation stated that historically a single coat of paint was adequate, Brad relied on that information when painting the cottage and agreeing to the contract. Failure to recognize this could determine a lack of mutual assent, which would be a complete frustration of the contract. As specified, public policy dictates that courts prefer to avoid a major breach and frustrating the entire contract, when one can construe a minor breach instead. Therefore, it is likely Brad will win his lawsuit and be entitled to expectation damages in the amount of $10,000 since he performed the contract as specified. Verdict - Alex's lawsuit / counterclaim For all of the reasons discussed above, it is likely that Alex will not prevail in his lawsuit, as Brad has fully or at least substantially performed. If found to have substantially but not fully performed, Brad may be liable for damages Alex incurred to cure Brad's non- performance. QUESTION 4 Al, Bob, and Carl are members of a group opposed to nuclear power. They decide to break into the Gigantic Power Company (GPC) headquarters at night, remove a model of a proposed nuclear plant, and hang it in effigy in a conspicuous location. Unknown to Al and Carl, Bob intends to plant a bomb in the headquarters at the same time. Two hours before they are to leave for GPC’s headquarters, Al tells Bob and Carl that he will not participate in the break-in. Bob and Carl respond that they will go ahead without him. Bob and Carl break into GPC’s headquarters and remove the model. Bob, unseen by Carl, plants a small bomb, which is set to explode at 4:00 a.m., when Bob believes the building will be unoccupied. As Bob and Carl are driving away, they are spotted by GPC’s security personnel, who drive after them. After a short pursuit, Bob and Carl jump from their car and run toward an apartment building. Bob pulls out two guns (which Carl did not know Bob had) and tosses one to Carl. Bob then grabs apartment tenant Hostage, who is walking to his car, and forces him back toward the building. Carl pleads with Bob to let Hostage go, but Bob says, “Get in here or I’ll shoot you.” Bob turns his back and takes Hostage into the building and Carl follows. The police arrive, and Bob shoots at them; Carl does not. Carl finally convinces Bob to let Hostage go. As Hostage is running from the building, he is shot and killed by the police who mistake him for a suspect. At GPC headquarters, the bomb fails to explode and is safely disarmed by the bomb squad. 1. With what crimes, if any, can Al be reasonably charged, and what defenses, if any, can he reasonably raise? Discuss. 2. With what crimes, if any, can Bob be reasonably charged, and what defenses, if any, can he reasonably raise? Discuss. 3. With what crimes, if any, can Carl be reasonably charged, and what defenses, if any, can he reasonably raise? Discuss. Bob and Carl break into GPC's headquarters. GPC's headquarters is a structure of another. We are told this occurs at night. Bob intends to plant a bomb in the headquarters, which could rise to arson (or attempted arson if he is unsuccessful), a felony. Bob and Carl also intend to steal the nuclear plant model, which would be larceny, though depending on the jurisdiction and the value of the model this larceny may not rise to a felony. Bob also brings guns, though it is not stated what he intends to use them for. Bob can reasonably be charged with burglary of GPC headquarters. Defenses Lack of intent to commit felony We are not told what Bob intends to blow up with the bomb. If he intended to blow up some equipment or other contents only, and not to char the structure, he can argue that he did not intend to commit arson but rather destruction of property that may not rise to a felony. Likewise, he can argue that the intended larceny of the model would not rise to a felony. However, setting off a bomb in a structure at the very least demonstrates reckless disregard of the possibility of burning the structure, and Bob will likely be found to have had intent to commit a felony within the structure. Attempted Arson Arson is the malicious burning of a dwelling house of another. Modernly, the structure can be any building. Malice can be shown through intent or recklessness. Attempt is taking a substantial step toward a crime with intent to commit the crime. Bob plants a small bomb within GPC headquarters, a structure of another. Setting off a bomb in a structure at the very least demonstrates reckless disregard of the possibility of burning the structure, if not intent to burn the structure. Bob sets a bomb to explode at 4:00 am. Setting the bomb is a substantial step toward arson. The only reason Bob does not succeed is that the bomb fails and the bomb squad disarms the bomb. He took a substantial step and went past the point of probable desistance. Bob can reasonably be charged with attempted arson of GPC headquarters. Defenses Bob does not have any reasonable defenses to the charge of attempted arson. Larceny Larceny is the trespassory taking away of the property of another with intent to permanently deprive the owner of possession. Bob and Carl take the model from the headquarters. The model is the property of another, and Bob and Carl do not have permission. They do seem to intend to permanently deprive the owner of the property. Bob can reasonably be charged with larceny of the model. Defenses Lack of intent to permanently deprive Bob and Carl plan to "hang [the model] in effigy in a conspicuous location." They can argue that this shows that they did not have intent to permanently deprive GPC of the model. The model would be noticed from its conspicuous location, and presumably then be recovered by GPC. Depending on where they intended to hang the model, Bob and Carl may be able to reasonably raise this defense. Assault with a Deadly Weapon Hostage Assault is (i) an act that intentionally places another in reasonable apprehension of an imminent harmful or offense contact, or (ii) attempted battery. Bob takes Hostage at gunpoint. Pointing a gun at a person would reasonably place them in apprehension of an imminent harmful contact, i.e. being shot. A gun is a deadly weapon. Bob can reasonably be charged with assault with a deadly weapon of Hostage. Carl Furthermore, Bob tells Carl "Get in here or I'll shoot you" while holding a gun. This reasonably places Carl in apprehension of an imminent harmful contact, i.e. being shot. A gun is a deadly weapon. Bob can reasonably be charged with assault with a deadly weapon of Carl. Police Furthermore, Bob shoots at the police. This is attempted battery with a deadly weapon (if not also attempted murder, discussed below). Bob can reasonably be charged with assault with a deadly weapon of the police. Defenses Bob does not have any reasonable defenses to the charge of assault with a deadly weapon, of Hostage, of Carl, or of the police. Kidnapping Kidnapping is the unlawful confinement by force or threat of force of another to a bounded area, with movement or concealment of the victim. Bob grabs Hostage while holding a gun, and forces him back toward the building. The grabbing constitutes force, and the open brandishing of the gun constitutes threat of force. Hostage has no reasonable means to leave the bounded area, and Bob moves him back toward the building. Bob can reasonably be charged with kidnapping. Defenses Bob does not have any reasonable defenses to the charge of kidnapping. Attempted Murder Homicide is the unlawful killing of a human being by another. Murder is homicide committed with malice aforethought. Attempt is taking a substantial step toward a crime with intent to commit the crime. Malice can be shown in four ways: (i) intent to kill, (ii) intent to commit serious bodily harm, (iii) reckless indifference to human life ("depraved heart"), or (iv) felony murder. First-degree murder is a murder committed with deliberate premeditation, or committed in the commission of a dangerous felony. Second-degree murder encompasses all other murders. Larceny Larceny is the trespassory taking away of the property of another with intent to permanently deprive the owner of possession. Bob and Carl take the model from the headquarters. The model is the property of another, and Bob and Carl do not have permission. They do seem to intend to permanently deprive the owner of the property. Carl can reasonably be charged with larceny of the model. Defenses Lack of intent to permanently deprive Bob and Carl plan to "hang [the model] in effigy in a conspicuous location." They can argue that this shows that they did not have intent to permanently deprive GPC of the model. The model would be noticed from its conspicuous location, and presumably then be recovered by GPC. Depending on where they intended to hang the model, Carl may be able to reasonably raise this defense. Co-Conspirator Liability for Bob's Additional Crimes (Attempted Arson, Assault with a Deadly Weapon, Attempted Murder, Kidnapping) Co-conspirators are liable for each other's reasonably foreseeable crimes committed in furtherance of the conspiracy. As discussed above, Bob and Carl conspired to commit the theft of the model. Bob's other crimes, discussed above, were committed during the course of the conspiracy. Carl can reasonably be charged as a co-conspirator to Bob's crimes. Defenses Crimes not reasonably foreseeable Crimes must be reasonably foreseeable crimes committed in furtherance of the conspiracy in order to result in co-conspirator liability. Carl can argue that the conspiracy was merely to commit the theft of a model, which is arguably a misdemeanor, not to blow up the building or commit any of his other crimes. He can argue that the intended crimes were minor and non-violent. Carl can reasonably argue that Bob's crimes were not a reasonably foreseeable part of furthering the conspiracy. Duress Crimes committed under threat of death or serious harm can be defended on the grounds of duress. Once things go sideways, Carl tries to leave and to get Bob to release the hostage. Bob, holding a gun, tells Carl to "get in here or I'll shoot you." Carl can reasonably raise the defense of duress. Felony Murder Felony murder is a reasonably foreseeable death that occurs during the commission of a violent felony (burglary, rape, robbery, arson, kidnapping). The commission of a crime begins when attempted and ends when the perpetrator reaches a place of temporary safety. First-degree murder is a murder committed with deliberate premeditation, or committed in the commission of a dangerous felony. Second-degree murder encompasses all other murders. Carl had not yet reached a place of temporary safety from his commission of burglary. Police shot and killed hostage, mistaking him for a suspect. Even though the police, not Carl, killed Hostage, Hostage's death was a reasonably foreseeable result. Liability for felony murder extends to accidental death of innocent victims by police. Carl can reasonably be charged with felony murder of Hostage. It will likely be first- degree murder. Defenses Carl can argue he was not committing a violent felony, if as discussed above the larceny did not rise to the level of a felony and therefore does not support a charge of burglary. He can also argue that any other violent felonies committed were committed under duress, as discussed above. If he is successful in these defenses, then he can reasonably claim he was not committing a felony when the death of Hostage occurred, and so would not be guilty of felony murder. Involuntary Manslaughter Involuntary manslaughter is the death of another caused during the commission of a misdemeanor (misdemeanor manslaughter), or through criminal negligence. Carl was at the very least committing a misdemeanor in stealing the model. Police shot and killed hostage, mistaking him for a suspect. It is foreseeable that police would respond even to a misdemeanor larceny. Carl can reasonably be charged with involuntary manslaughter. Defenses Carl does not have any reasonable defenses to the charge of involuntary manslaughter. PINKERTON'S RULE Defined supra. Here, B will be liable for all crimes committed by co-conspirators A and C that are in furtherance and within the scope of the conspiracy. LARCENY Larceny is the trespassory taking and carrying away of the personal property of another with intent to permanently deprive. Here, there was a trespassory taking because B and C removed the model without the consent of the GPC company. They carried it away when they removed it from the headquarters. The model was the property of GPC. B and C had intent to permanently deprive when they planned to hang it in effigy in a conspicuous location. Therefore, B can be charged with larceny. BURGLARY COMMON LAW Under common law burglary is the breaking and entering into the dwelling house of another in the night with intent to commit a felony. Here, there was a breaking because the facts state B and C broke into GPC headquarters. B entered because the facts imply they were inside when they removed the model. This entry was at night. The structure was not a dwelling house because it was a nuclear power company business. B and C had intent to commit a felony because they planned to remove a model of a proposed nuclear plant, the larceny discussed supra. Therefore, B will not be charged with burglary at common law. BURGLARY MODERN LAW Modernly, burglary is any trespassory entry into any structure at any time of day with intent to commit a crime. Here, all elements are satisfied (infra), and the nuclear headquarters will satisfy the element of any structure. Therefore, B can be charged with burglary under modern law. ASSAULT Assault under common law was an attempted battery, and modernly is threatening conduct with intent to injure or frighten. Here, when B had a gun when he approached the hostage as he walked to his car. This would be threatening conduct and the hostage was likely frightened as they approached. Therefore, B will be charged with assault which will merge with the larger crime of battery. BATTERY Battery is the unlawful application of force to another without consent or privilege. Here, B grabbed the apartment tenant and took him hostage. This grabbing and forcing him towards the building was an unlawful application of force. The hostage did not consent and B was not privileged. Therefore, B will be charged with battery. FALSE IMPRISONMENT False imprisonment is the unlawful confinement of another without consent or privilege. Here, B grabbed the hostage and had a gun. The facts state B took the hostage into the building. This would satisfy the element of an unlawful confinement. Therefore, B will be charged with false imprisonment. KIDNAPPING Kidnapping is an unlawful transportation of another against their will. Here, the hostage was heading to their car when B approached and forced him back towards the building. The movement of the hostage from the parking lot to the building was unlawful and without consent or privilege. Therefore, B will be charged with kidnapping. HOMICIDE A homicide is an unlawful killing of a human being by another human being. SECOND DEGREE MURDER All murder that is not first degree is second degree. If burglary does not satisfy the felony murder rule based on common law, then B will be charged with second degree murder. INVOLUNTARY MANSLAUGHTER Involuntary manslaughter is an unintentional homicide done with criminal negligence or during a malum in se crime. Here, B did not intend to kill H. B may argue his theft of the model was done as a member of a political group and the model had low value and would only be petty larceny. Further he may argue his acts of letting the hostage go only posed an unreasonable risk of harm to H. B may be able to mitigate his murder charge to involuntary manslaughter. STATE v. CARL CONSPIRACY Defined and discussed supra. PINKERTON'S RULE Defined and discussed supra. Therefore, C will be charged with all the crimes of B discussed supra. ACCOMPLICE A principal in the second degree is a person who is present at the crime. Modernly this is classified as an accomplice. An accomplice is one who aids the principal with knowledge, intent and active assistance. Here, C had knowledge of B's crimes because they discussed plans to break into GPC. C had intent to assist B because he also took the gun when B tossed it to him in their attempt to flee and get a hostage. C had active assistance because he went to GPC and removed the model with B. Therefore, C is an accomplice. ACCOMPLICE LIABILITY An accomplice is liable for crimes committed by co-felons. Under common law liability was to the extent of foreseeable crimes. Under the MPC liability extends to those crimes that were intended by the principal. It was foreseeable B would commit larceny and burglary. C will argue that B did not intend to commit assault, battery, false imprisonment, kidnapping and murder. Therefore, C may be charged with the crimes of B (supra). WITHDRAWAL Withdrawal may be a defense to accomplice liability under the MPC if there was timely notice and law enforcement was notified. Here, C will argue he did not know B had a bomb or guns. Further he will argue he convinced B to let the hostage go. However, the state will argue this was not timely because the hostage was already taken in, and C never attempted to notify law enforcement but in fact fled in a pursuit. Therefore, this defense for C will fail. DURESS Duress is a defense if there is an imminent threat of harm. When B took in the hostage he stated to C "get in here or I'll shoot you." This may be a defense to the kidnapping and false imprisonment of the hostage because C was threatened with a gun. It will not be a defense to the homicide of H because duress does not allow one person to be killed when another was threatened.