The Rant: Business Law (part 18)

Friday, January 24, 2020

Business Law (part 18)

Termination of Contracts (part B)

Charles Lamson

Remedies for Breach of Contract

If a breach of contract occurs, the innocent party has three courses of action that may be followed:

Sue for damages
Rescind the contract
Sue for specific performance

Sue for Damages

The usual remedy for breach of contract is to sue for damages or a sum of money to compensate for the breach. A suit for damages really consists of two suits in one. The first requires proving breach of contract. The second requires proving damages. Four kinds of damages include: (1) nominal, (2) compensatory, (3) punitive, and (4) liquidated.

Nominal Damages. If the plaintiff in a breach of contract suit can prove that the defendant broke the contract but cannot prove any loss was sustained because of the breach, then the court will award nominal damages, generally one dollar, to symbolize vindication of the wrong done to the plaintiff.

Compensatory Damages. The theory of the law of damages is that an injured party should be compensated for any loss that may have been sustained but should not be permitted to profit from the other party's wrongdoing. When a breach of contract occurs, the law entitles the injured party to compensation for the exact amount of loss, but no more. Such damages are called compensatory damages. Sometimes the actual loss is easily determined, but at other times it is very difficult to determine. As a general rule, the amount of damages is a question for the jury to decide.

Punitive, or Exemplary, Damages. In most breach-of-contract cases, the awarding of compensatory damages fully meets the ends of justice. Cases occur, however, where compensatory damages are not adequate. In these instances the law may permit the plaintiff to receive punitive damages. Punitive damages are damages paid to the plaintiff in order to punish the defendant, not to compensate the plaintiff. Punitive damages are more common in tort and contract actions. For example, if a tenant maliciously damages rented property, the landlord may frequently recover as damages the actual cost of repairs plus additional damages as punitive damages.

Liquidated Damages. When two parties enter into a contract, in order to avoid the problems involved in proving actual damages, they may include a provision fixing the amount of damages to be paid in the event one party breaches the contract, such a provision is called liquidated damages. Such a clause in the contract specifies recoverable damages in the event that the plaintiff establishes a breach by the defendant. Liquidated damages must be reasonable and should be provided only in those cases where actual damages are difficult or impossible to prove. If the amount of damages fixed by the contract is unreasonable and in effect the damages are punitive, the court will not enforce this provision of the contract.

Rescind the Contract

When a contract is breached, the aggrieved party may elect to rescind the contract, which releases this party from all obligations not yet performed. If this party has executed the contract, the remedy is to sue for recovery of what was parted with. If the aggrieved party rescinds a contract for the sale of goods, damages for the breach may also be requested.

Sue for Specific Performance

In some cases neither a suit for damages nor rescission will constitute an adequate remedy. the injured party's remedy under these circumstances is a suit and equity to compel specific performance; that is, the carrying out of the specific terms of the contract.

This remedy is available in limited cases. This includes most contracts for the sale of real estate or any interest in real estate and for the sale of rare articles of personal property, such as a painting or an heirloom, the value of which cannot readily be determined. There is no way to measure sentimental value attached to a relic. Under such circumstances mere money damages may be inadequate to compensate the injured party. The court may compel specific performance under such circumstances.

As a general rule, contracts for the performance of personal services will not be specifically ordered. This is both because of the difficulty of supervision by the courts and because of the constitution's prohibition of involuntary servitude except as a criminal punishment.

Malpractice

A professional person, such as a lawyer, accountant, or doctor, who takes a contract to perform professional services has a duty to perform with the ability and care normally exercised by others in the profession. A contract not so performed is breached because of malpractice.

An accountant is liable to a client who suffers a loss because the accountant has not complied with accepted accounting practices.

In some cases, a person other than a party to the contract may sue a professional person for malpractice. In the case of a contract for accounting services, a third-party may, under certain circumstances, recover when the negligence or fraud by the accountant causes a loss to that party.

Internet Resources for Business Law

Name	Resources	Web Address
Uniform Commercial Code 2-209	LII, maintained by Cornell Law School, provides a hypertext and searchable version of UCC 2-209, Modification, Rescission, and Waiver.	www.law.cornell.edu/ucc/2/2-209.html
Legal Information Institute (LII)---Contract Law Materials	LII provides an overview for contract law, links to federal government statutes, treaties, and regulations, federal and state judicial decisions regarding contract law (including Supreme Court decisions), state statutes, and other materials.	www.law.cornell.edu/topics/contracts.html
Uniform Commercial Code 2-309	LII provides a hypertext and searchable version of UCC 2-309, Absence of Specific Time Provisions, Notice of Termination.	www.law.cornell.edu/ucc/2/2-309.html

*SOURCE: LAW FOR BUSINESS, 15TH ED., 2005, JANET E. ASHCROFT, PGS. 139-145*

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The kingdom of God is among you

Luke 17:20-25 Asked by the Pharisees when the kingdom of God was to come, Jesus gave them this answer, ‘The coming of the kingdom of God does not admit of observation and there will be no one to say, “Look here! Look there!” For, you must know, the kingdom of God is among you.’ He said to the disciples, ‘A time will come when you will long to see one of the days of the Son of Man and will not see it. They will say to you, “Look there!” or, “Look here!” Make no move; do not set off in pursuit; for as the lightning flashing from one part of heaven lights up the other, so will be the Son of Man when his day comes. But first he must suffer grievously and be rejected by this generation.’

Live Adoration Feeds from U.S.A., U.K., and Poland

Adoration, also known as Eucharistic Adoration, is a Catholic prayer in front of the Blessed Sacrament. It is a sign of devotion and worship to Jesus Christ, who is believed to be present in the consecrated host. During adoration, Catholics pray to Jesus Christ before the Eucharist at their local parish. The Eucharist is typically kept in a tabernacle at the parish church, and may be presented in front of a closed tabernacle or in front of the exposed host in a monstrance. A monstrance is a vessel used in Roman Catholic, Anglican, High Church Lutheran, and Old Catholic churches. It is a stand made of precious metal that holds the Blessed Sacrament during adoration. The word "monstrance" comes from Latin and means "to show".

Love

1 Corinthians 13:4-7: Love is always patient and kind; it is never jealous; love is never boastful or conceited; it is never rude or selfish; it does not take offence, and is not resentful. Love takes no pleasure in other people’s sins but delights in the truth; it is always ready to excuse, to trust, to hope, and to endure whatever comes. 1 Corinthians 13:8-9,13: Love does not come to an end. But if there are gifts of prophecy, the time will come when they must fail; or the gift of languages, it will not continue for ever; and knowledge – for this, too, the time will come when it must fail. For our knowledge is imperfect and our prophesying is imperfect. In short, there are three things that last: faith, hope and love; and the greatest of these is love. Colossians 3:14-15: Over all these clothes, to keep them together and complete them, put on love. And may the peace of Christ reign in your hearts, because it is for this that you were called together as parts of one body. Always be thankful.

It is not peace I have come to bring, but a sword

Jesus instructed the Twelve as follows: ‘Do not suppose that I have come to bring peace to the earth: it is not peace I have come to bring, but a sword. For I have come to set a man against his father, a daughter against her mother, a daughter-in-law against her mother-in-law. A man’s enemies will be those of his own household. ‘Anyone who prefers father or mother to me is not worthy of me. Anyone who prefers son or daughter to me is not worthy of me. Anyone who does not take his cross and follow in my footsteps is not worthy of me. Anyone who finds his life will lose it; anyone who loses his life for my sake will find it. ‘Anyone who welcomes you welcomes me; and those who welcome me welcome the one who sent me. ‘Anyone who welcomes a prophet will have a prophet’s reward; and anyone who welcomes a holy man will have a holy man’s reward. ‘If anyone gives so much as a cup of cold water to one of these little ones because he is a disciple, then I tell you solemnly, he will most certainly not lose his reward.’ When Jesus had finished instructing his twelve disciples he moved on from there to teach and preach in their towns.

The beheading of John the Baptist

Matthew 14:1-12 Herod the tetrarch heard about the reputation of Jesus, and said to his court, ‘This is John the Baptist himself; he has risen from the dead, and that is why miraculous powers are at work in him.’ Now it was Herod who had arrested John, chained him up and put him in prison because of Herodias, his brother Philip’s wife. For John had told him, ‘It is against the Law for you to have her.’ He had wanted to kill him but was afraid of the people, who regarded John as a prophet. Then, during the celebrations for Herod’s birthday, the daughter of Herodias danced before the company, and so delighted Herod that he promised on oath to give her anything she asked. Prompted by her mother she said, ‘Give me John the Baptist’s head, here, on a dish.’ The king was distressed but, thinking of the oaths he had sworn and of his guests, he ordered it to be given her, and sent and had John beheaded in the prison. The head was brought in on a dish and given to the girl, who took it to her mother. John’s disciples came and took the body and buried it; then they went off to tell Jesus.

Psalms 9:16

The LORD is known by the judgment which he executeth: the wicked is snared in the work of his own hands. Higgaion. Selah - Question: What does Higgaion and Selah mean? Answer: Both Higgaion and Selah are used numerous times in the Old Testament. They occur together in Psalm 9:16. The meanings of these words are uncertain. We observe Higgaion in such passages as Psalm 9:16; 19:14; 42:3; Lamentations 3:63. In Arabic, the root gives a deep vibrating sound, like the murmering sound of a harp (Psa. 92:3). The International Standard Bible Encyclopedia states that it may be derived from the Greek versions of Psalm 9:16 and takes it to mean an instrumental interlude. It may also mean a soliloquy or meditation such as concerning the judgment of God (Psa. 9:16), the words and work of God (Psa. 19:14), and the loving kindness and faithfulness of God (Psa. 92:2-3). In the Septuagint, Selah is translated as daplasma (meaning a division). It occurs in Habakkuk 3:3, 9, 13 and 71 times in the Psalms. It is used in 39 of our 150 psalms. Of those 39 psalms, 31 they are ones handed over to "the chief Musician." So, pause and meditation may be the predominate idea. In addition, it may mean to lift up (Hebrew, salal) or, in some definitions, a repetition, end of a strophe, or a recurring symphony. In his sermon named "HIGGAION!" about Psalm 9:16, Archibald G. Brown, on August 17, 1873, at the East London Tabernacle said this: "When the psalmist wrote this verse, and reached the words 'The wicked shall be snared in the work of his own hands', he seemed to be overpowered at the terror of the thought, and so put a full stop and wrote in the word 'Higgaion!' As much as to say, 'O my soul, meditate on the tremendous truth my hand has penned, and let all who read the same meditate.' And then after 'Higgaion' he puts 'Selah'. He would have there to be a solemn pause. Oh, I would that there could be just one moment's solemn pause in our meeting tonight. Would that there could be a Selah, a Higgaion! Friends, shall there be? I put it to you. 'The Lord is known by the judgment which he executes; and the wicked shall be snared in the work of his own hands!" Now let us just for a moment meditate on that. Let there be a solemn Higgaion, and let every heart ask itself the question, 'How do I stand in reference to this tremendous truth?' *Answer by Dr. Joseph R. Nally, Jr. (https://thirdmill.org/answers/answer.asp/file/47892)*

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Friday, January 24, 2020

Business Law (part 18)

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