Third Party Rights
1. What rights may not be assigned?
The rights cannot be assigned:
when a statute prohibits the assignment; when a contract is personal by nature;
when an assignment will greatly change the risk of duties of obligators;
when a contract prohibits an assignment.
2. What duties may not be delegated?
Duties can be delegated: when the duties are personal in nature;
when the performance of the task by the third party will vary greatly from those that is expected by obligee;
when a contract prohibits delegation.
3. Distinguish a third party intended from a third party incidental beneficiary
An intended third party beneficiary means that a third party is rendered directly. It has a right to control the details of the contract and it can sue to enforce the contract, as it is designed a beneficiary in contract. In contrast, a third party incidental beneficiary does not have right in the contract, though it benefits from it. Its benefits are not mentioned in the contract, so it cannot sue to enforce the contract.
4. When is a contract discharged?
A contract can be discharged by agreement, by performance, by breach, by operations of law, by failure of a condition. A contract is discharged when the condition is not satisfied. In most cases, conditions are absolute and must be provided or else a party which promises the fulfillment of conditions will be in breach of contract. The contract is discharged by the performance if:
a party’s performance is not fully complete; the substantial performance varies greatly from the performance promised in the contract;
the performance does not satisfy a party;
A contract is also discharged if the performance cannot be considered to be substantial or one of the parties refuses to perform her or his obligations.
It leads to a breach of contract.
A contract can be discharged by mutual agreement:
by mutual rescission (when parties cancel a contract and occupy conditions which they had before agreement);
by novation (when a third party is substituted for one of the original parties);
by accord and satisfaction (when the parties agree to accept the performance different from those which was promised in the contract);
A contract is discharged by operations of law because of material alteration of the contract, bankruptcy, impossibility of performance, status of limitations.
Breach and Remedies
1. List the four broad categories of damages:
1. Compensatory damage covers direct losses and costs;
2. Consequential damage covers indirect and foreseeable losses which can be a result from the party’s breach of the contract;
3. Punitive damage is awarded to punish and deter wrongdoing;
4. Nominal damage is small in amount and can be awarded to the innocent party to highlight wrongdoing when there is no evident monetary loss.
2. How would a landlord mitigate damages?
A landlord would mitigate damages by leasing the premises to another tenant. In this …
