The Dis-United States of America – Secession

Sep 03

It’s not uncommon that people’s views change over time, even with respect to promises they’ve made. Every day our courts of law are full of parties to contracts who haven’t satisfied the terms they agreed to fulfill. There are many arguments used to justify this breach of contract. Some of these arguments include fairness, changes in circumstances, non-conformance by the other party and even something as simple as a change of opinion. Regardless of the reason, a contract is a contract and a breach is a breach, or so say the courts of law. From an objective position it may be tempting to argue that many of these breaches are trivial, and that the contracts themselves are trivial to begin with. That doesn’t change the fact that a contract can be deeply personal and significant to the parties who originally entered into it. It’s also important to recognize that the courts are also busy from morning until night dealing with breaches of implicit contracts. These negligent claims stem from socially perceived “duties to care” which are generally accepted. This largely comes from common law. When it comes to the Constitution of the United States, a contract established and entered into by all citizens of this country, and which directs the affairs of the people, the government and the several states, is it possible to undo the contract and the obligations associated with it? Can an individual or a state argue against further need to comply with the terms imposed by the Constitution? From this standpoint it’s possible to examine the circumstances under which arguments might be made in favor of secession. A Platform for Secession Reference has already been made to some of the reasons that parties to a contract justify non-conformance, such as fairness, change in circumstance, breach by the other party, change of opinion, disagreement about the intention or meaning of the wording, ambiguity with respect to the terms, etc. It may be true that much of this confusion and disagreement could be avoided with increased clarity in the original contract. It is precisely that premise that has motivated lawyers to create contracts that are many pages long, spanning hundreds of pages in some cases. Despite these...

Read More

Remedies for Breach of Contract

Jun 07

At the end of lecture the other day the professor added, with emphasis, that “Chapter 16 is very important┬áto the rest of the course“. The topic of the chapter is Remedies for Breach of Traditional and E-Contracts. Performance and Breach The chapter contains starts of with a discussion of performance and breach. It was interesting that a distinction was made between ‘complete’ and ‘substantial’ performance. In other words, if one party to a contract completes most of the terms, the contract may be substantially performed. This would give rise to a minor breach. In other words, the court or jury are likely to consider partial remedies that related to the minor breach, rather than treat it as a full breach. The spectrum of possibilities deviates from the black and white view often given to contracts. Damages There are various ways to look at damages. This range from very little to enormous and serve various purposes. A summary list of types of damages should include Monetary damages Compensatory damages Consequential (or special) damages Nominal damages (typically $1) Liquidated damages (or penalty) Mitigation of damages was new to me. It makes perfect sense, but I didn’t know it had been articulated in the law. Mitigation of damages suggests that the person not in breach of the contract has a responsibility to reduce the overall damages if possible. For example, if I have a work contract with a term of three years and I’m laid off after one year, then I’m entitled to damages of pay equal to what I would have made during the remaining two years unless I find other employment equivalent to what I lost. Under mitigation of damages, I’m required to look for work to reduce the overall damages to the breaching party (my previous employer). If I don’t look for work, they may be able to get a reduction to the overall damages at court. Remedies and Torts The remainder of the chapter discusses remedies and torts related to contract law. Among remedies are garnishment of wages, compelling to perform, etc. Torts include intentional interference, covenants of good faith, etc. These play out much like you might...

Read More