I.   BASES FOR ENFORCEMENT
A.   Requirement of a Basis for Enforcement
    General Principles:
   
1.   When a plaintiff sues a defendant for breach of contract, the plaintiff claims that the defendant made a promise and did not keep it, and the plaintiff asks the court to enforce the promise. E.g. Mills v. Wyman; Feinberg v. Pfeiffer.
2.   A court will not enforce the defendant's promise unless the plaintiff can show a basis for enforcement.
3.   The three modern bases for enforcement are consideration, reliance, and, in a few special cases, "moral obligation."
4.   In seeking to prevent enforcement, the defendant may argue that the plaintiff cannot show one of these three bases for enforcement.
B.   Consideration as a Basis for Enforcement
    General Rule: Consideration for the defendant's promise may be (1) either a promise or a performance that was (2) bargained for in exchange for the defendant's promise.
    Defendant's Arguments: The defendant will argue that there is no consideration because these two elements have not been met.
    Arguments for why there is no valid promise or performance:
   
a.   The promise given in exchange is a promise to settle an invalid claim, and the plaintiff did not have a good faith and reasonable belief in the possible validity of the claim. Cf. Fiege v. Boehm.
b.   The promise given in exchange is illusory because it does not impose any express or implied commitment. Strong v. Sheffield. But see Mattei v. Hopper; Wood v. Lucy, Lady Duff-Gordon.
    Arguments for why there is no valid bargained for exchange:
   
c.   The promise or peformance given by the plaintiff had already been received by the defendant, and thus was not given in exchange for the defendant's promise. Feinberg v. Pfeiffer.
d.   The promise or performance given by the plaintiff was not given until after the defendant's promise, and thus was not given in exchange for the defendant's promise. Feinberg v. Pfeiffer; Strong v. Sheffield. But see Central Adjustment v. Ingram.
e.   The defendant's promise was a conditional promise to make a gift. Although the plaintiff may have taken certain actions to satisfy the condition, the defendant did not seek these actions in exchange for the defendant's promise. Kirksey v. Kirksey.
f.   The purported bargained for exchange was just a sham.
    Invalid Arguments for why there is no consideration:
   
g.   The promise or performance given by the plaintiff cannot be consideration, even though it was bargained for, because it did not benefit the defendant or impose a detriment on the plaintiff. Hamer v. Sidway.
h.   The promise or performance given by the plaintiff cannot be consideration because it was less valuable than the defendant's promise. Cf. Fiege v. Boehm.
C.   Reliance as a Basis for Enforcement
    Definition: When a court enforces a promise on the basis of reliance, the court is said to be enforcing the promise by means of "promissory estoppel."
    General Rule: To enforce a promise based on reliance, the plaintiff must show not only reliance, but also four other elements.

In particular, the plaintiff must show that (1) the defendant made a promise; (2) the defendant could reasonably expect the plaintiff to take an action; (3) the plaintiff took an action; (4) the action was induced by (i.e., taken in reliance on) the promise; and (5) enforcement of the promise is necessary to prevent injustice. Restatement (Second) of the Law of Contracts § 90.
    Defendant's Arguments: The defendant will argue that the plaintiff cannot show one or more of these elements
    Examples:
   
a.   The promise did not induce the plaintiff to take any action that the plaintiff would not have taken anyway. Cf. Feinberg v. Pfeiffer.
b.   Enforcement of the promise is not necessary to prevent injustice. Cf. Feinberg v. Pfeiffer; Cohen v. Cowles Media.
D.   "Moral Obligation" as a Basis for Enforcement
    General Rule: A court will not enforce the defendant's promise merely because some people might think that the defendant acted immorally in breaking the promise. Mills v. Wyman.
    Recognized Special Cases: Even if the plaintiff cannot show consideration or reliance, three types of promises are said to enforceable on the basis of "moral obligation."

In particular, a court will enforce a new promise by the defendant to reaffirm an old obligation that was (1) discharged by a statute of limitations; or (2) discharged by bankruptcy proceedings; or (3) voidable because of infancy.
    Possible New Special Case: Some courts also will enforce a defendant's promise to pay the plaintiff money in recognition of a material benefit that the plaintiff conferred on the defendant. Webb v. McGowin. Other courts, however, reject this approach. Dementas v. Estate of Tallas.
    Defendant's Argument: The defendant will argue that the promise is not one of the special kinds of promises that courts will enforce on the basis of moral obligation.
E.   Restitution as a Substitute for Enforcement
    General Rule: When the plaintiff cannot prove that the defendant made an enforceable promise, the plaintiff may seek "restitution" from the defendant if the defendant has been unjustly enriched at the plaintiff's expense. The defendant must pay the reasonable value of any benefit received from the plaintiff. Cotnam v. Wisdom.
    Defendant's Arguments: The defendant will argue that there has been no unjust enrichment at the plaintiff's expense.
    Examples:
   
1.   There has been no enrichment because the plaintiff conferred the benefit as a volunteer, manifesting no expectation of compensation.
2.   There has been no enrichment because the plaintiff conferred the benefit as an ofificous intermeddler.
3.   The has been no unjust enrichment at the plaintiff's expense because the plaintiff has other remedies. Callano v. Oakwood Park


II.   CONTRACT FORMATION
A.   Assent
    General Rule: A court will not enforce the defendant's promise if the plaintiff actually knew or a reasonable person would have had reason to know that the defendant was not assenting to be bound. Cf. Lucy v. Zehmer.
B.   Offer and Acceptance
    General Rule: If the plaintiff alleges that the defendant made a promise as part of a bargain, a court will not enforce the promise unless the plaintiff can prove the existence of both an offer and acceptance.
    Specific Rules:
   
1.   An offer is a manifestation of willingness to enter a bargain, conditioned on the offeree's acceptance. Owen v. Tunison; Harvey v. Facey; Fairmount Glass v. Crunden-Martin.
2.   Advertisements generally are not offers unless they state a limited quantity or have other attributes indicating that the advertiser actually intended to make an offer. Lefkowitz v. Great Minn. Surplus Store.
3.   In general, an offer terminates and cannot be accepted after (1) the offer lapses because the passage of time; (2) the offer has been revoked by the offeror; (3) the offer has been rejected by the offeree, or (4) the offeror has died.
4.   An offer lapses after the time specified or after a reasonable time if no time is specified.
5.   Revocation of an offer is effective when communicated, directly or indirectly, to the offeree. Dickinson v. Dodds.
6.   An offeror generally can revoke an offer at any time before acceptance, unless the offeror has made an enforceable promise (called an "option contract") to keep the offer open. Dickinson v. Dodds.
7.   A few courts hold that an offeror cannot revoke an offer if the offeree has relied on the offer. Drennan v. Star Paving.
8.   A counteroffer is presumed to be a rejection of an offer. Minn. & St. Louis Rwy. v. Columbus Rolling Mill.
9.   Under the Mirror Image Rule, a purported acceptance of an offer that contains different or additional terms is treated as a rejection and a counteroffer. Minn. & St. Louis Rwy. v. Columbus Rolling Mill
10.   An offer terminates upon the death of the offeror, even if the offeree does not have notice of the offeror's death, unless the offeror has entered an option contract to keep the offer open. Cf. Earle v. Angell.
11.   Under the Mailbox Rule, unless the offer specifies otherwise, acceptance occurs upon dispatch of the acceptance.
12.   An offer may invite the offeree to accept either by rendering a complete performance or by promising to render a complete performance.
13.   If an offer invites acceptance by the rendering of a complete performance, acceptance does not occur unless and until the offeree completely performs. Cf. Carlill v. Carbolic Smoke Ball.
14.   An offeree may accept by making a promise to render complete performance either expressly with words or implicitly through some sort of conduct. The most common way to make an implicit promise to render complete performance by conduct is to start performing. White v. Corlies & Tift; Ever-Tite Roofing v. Green; Allied Steel v. Ford Motor.
15.   Even if an offer describes one manner of making a promise, the offer also may permit other manners. Allied Steel v. Ford Motor; International Filter v. Conroe Gin.
16.   The offeree's silence cannot be an acceptance, except in a few special cases, such as when the parties' course of dealing makes silence a proper method of acceptance. Hobbs v. Massasoit Whip Co.
17.   If the offer invites acceptance by making a promise, notice of acceptance is required unless it is waived. White v. Corlies & Tift; Ever-Tite Roofing v. Green; International Filter v. Conroe Gin.
18.   If the offer invites acceptance by rendering complete performance, notice of acceptance is not required unless requested. Carlill v. Carbolic Smoke Ball.
    Defendant's Arguments:
   
1.   There was no offer. Owen v. Tunison; Harvey v. Facey; Fairmount Glass v. Crunden-Martin; Lefkowitz v. Great Minn. Surplus Store.
2.   The offer lapsed before the attempted acceptance.
3.   The offer was revoked by the offeror before the attempted acceptance, and there was no valid option contract precluding revocation. Dickinson v. Dodds.
4.   The offer was expressly rejected by the offeree before the attempted acceptance.
5.   The offer was implicitly rejected by the offeree because the offeree made a counteroffer. Minn. & St. Louis Rwy. v. Columbus Rolling Mill.
6.   The offer terminated before the attempted acceptance because the offeror died. Cf. Earle v. Angell.
7.   The offer invited acceptance by the rendering of complete performance, and the offeree did not completely perform.
8.   The offer invited acceptance by a promise to render complete performance, and the offeree did not make such a promise either expressly with words or implicitly with conduct. White v. Corlies & Tift; Ever-Tite Roofing v. Green.
9.   The offer invited acceptance by a promise to render complete performance and, although the offeree made a promise, the offeree did not make the promise in a manner invited by the offer. Allied Steel v. Ford Motor.
10.   Although the offer invited acceptance by silence and the offeree was silent, the offeror could not insist that silence would be acceptance. Cf. Hobbs v. Massasoit Whip Co.
11.   The offer required notice of acceptance, and the offeree did not provide notice of acceptance. White v. Corlies & Tift; Ever-Tite Roofing v. Green; International Filter v. Conroe Gin. Cf. Carlill v. Carbolic Smoke Ball.
C.   Indefiniteness
    General Rule: A promise is too indefinite to enforce if the court cannot determine the existence of a breach or the appropriate remedy for a breach. Varney v. Ditmars; Toys, Inc. v. F.M. Burlington. A court may require less definiteness if the plaintiff seeks to enforce the promise by means of promissory estoppel. Hoffman v. Red Owl Stores.


III.   STATUTES OF FRAUDS
A.   Introduction
    Definition: Every state has enacted numerous statutes making many different kinds of promises unenforceable unless the promises are evidenced by a signed writing. These statutes are all called "statutes of frauds."
B.   Types of Promises Typically Covered
    General Rule: The kinds of promises that statutes of frauds require to be evidenced by a signed writing differ from state to state.

Many states have in common statutes of frauds covering the following six kinds of promises (which can be memorized using the acronym "MY LEGS"):
   
Marriage:   a promise the consideration for which is marriage (unless the promise is one of two mutual promises to marriage each other), such as a promise by A to pay $10,000 to B if B marries C;
Year:   a promise that cannot possibly be fully performed (as opposed to merely terminated) within one year, such as a promise by A to employ B for five years;
Land:   a promise to buy or sell land, such as a promise by A to sell a house to B;
    Provisions in statutes of frauds dealing with land contracts usually are subject to two exceptions:
   
1.   A promise to buy land is enforceable without a writing after the seller has conveyed the property.
2.   Under the "part performance" doctrine, the seller may not assert the statute of frauds as a defense if the buyer has substantially relied on the promise to sell. Most courts have said that merely paying the purchase price is not enough reliance, and typically have required the buyer also to have taken possession, made improvements, or performed substantial other actions. Johnson Farms v. McEnroe.
Executor:   a promise by an executor to pay the debts of the decedent's estate out of the executor's own pocket, such as a promise by executor A to pay B a debt owed to B by decedent C's estate;
Goods:   a promise to buy or sell goods for a price of $500 or more (subject to exceptions we will study later), such as a promise by A to sell a used computer to B for $800; and
Suretyship:   a promise made by a surety to a creditor to pay a debt that a debtor owes the creditor, such as a promise by A to pay C a debt that B owes C.
C.   Requisites of Writing and Signing
    General Rule: A statute of frauds typically requires the defendant's promise to be evidenced by (1) a writing that (2) states the essential terms of the promise with reasonable certainty, and that (3) is signed by the defendant.
D.   Pattern of Argumentation
    Plaintiff's Claim:
    The defendant made a promise and did not keep it.
    Defendant's Defenses:
    The promise is not enforceable because it falls within the scope of a statute of frauds and the requisites of writing and signing have not been met.

For example, there was no writing, or the writing does not state the essential terms, or the defendant did not sign the writing.
    Plaintiff's Responses:
   
1.   This promise actually does not fall within the scope of any statute of frauds.

For example, the promise does meet the definition of a suretyship promise, Longman v. Alumni Ass'n, or the promise in fact could be completely performed within a year, Coan v. Orsinger.
2.   The defendant is equitably estopped from denying the existence of a sufficient signed writing because the defendant asserted that a sufficient signed writing had been made, and the plaintiff relied on the defendant's assertion.
3.   Pursuant to the "part performance" exception for land contracts, the defendant may not assert the statute of frauds as a defense because the defendant promised to convey land, and the plaintiff substantially relied on the promise. Johnson Farms v. McEnroe.
4.   The defendant may not assert the statute of frauds as a defense because the plaintiff relied on the defendant's promise, and injustice can be avoided only by enforcement of the promise. Monarco v. Lo Greco. Note: Not all courts recognize this defense.


IV.   Status, Inducement, and Substance
A.   Rules Making Certain Promises Unenforceable
   
1.   Infancy. A promise made by a person under the age of majority (in most states, 18 years) is voidable until a reasonable time after the person reaches the age of majority. Kiefer v. Fred Howe Motors.
2.   Mental Infirmity (Traditional Test). A promise by a person who, by reason of mental infirmity, cannot understand the nature and consequence of the transaction is voidable. Cundick v. Broadbent.
3.   Mental Infirmity (Modern Test). In a few states, a promise by a person, who by reason of mental infirmity, cannot act in a reasonable manner in respect to the transaction is voidable, provided that the promisee has notice of the person's condition. Ortelere v. Teachers' Retirement Board.
4.   Public Policy. A promise is void if its enforcement would violate a strong public policy. For example, a court will not enforce a promise to commit a crime or tort. The public policies of each state may differ. Black v. Bush Industries; O'Callaghan v. Waller & Beckwith Realty; Henningsen v. Bloomfield Motors.
5.   Duress. A promise induced by an improper threat that leaves the promisee with no reasonable alternative is voidable. Improper threats include threats to commit crimes or torts and threats to break existing contracts in bad faith.
6.   Modification without Consideration. The "Pre-Existing Duty Rule" says that duties under existing contracts cannot serve as consideration for new promises. Accordingly, a promise by one party to modify an existing contract by unilaterally assuming additional duties lacks consideration, and is not enforceable. Alaska Packers' Ass'n v. Domenico.

The Pre-Existing Duty Rule, however, does not apply if the parties cancel their existing contract, and then form a new contract. Schwartzreich v. Bauman-Basch.

In addition, some courts will enforce promises to modifiy contracts without consideration if the modification is fair and reasonable in light of changed circumstances. Watkins & Sons v. Carrig.
7.   Fraudulent or Material Misrepresentation. A misrepresentation is a statement of fact (as opposed to mere opinion) that is not true. A promise induced by a fraudulent or material misrepresentation, upon which the promisee justifiably relied, is voidable.
8.   Active Concealment. A promise induced by an action intended to prevent the promisor from learning a fact is voidable to the same extent a promise induced by a misrepresentation of the fact would be voidable.
9.   Non-Disclosure of Facts in Special Circumstance. In general, a promise is not voidable merely because the promisee failed to disclose facts to the promisor. Swinton v. Whitinsville Savings Bank.

A promise may be voidable if it is induced by a half-truth, where the promisee misleads the promisor by disclosing some of the facts but not all of the facts. Kannavos v. Annino.

A promise also may be voidable if it is induced by a non-disclosure of facts where the promisor and promisee can expect full disclosure based on their "confidential" relation.

10.   Mutual Mistake. A mistake is an incorrect belief about what the facts currently are, as opposed to a poor prediction about what the facts later might turn out to be.

A promise induced by a mutual mistake as to a basic assumption that has a material effect is voidable, unless the promisor for some reason bore the risk of mistake. Sherwood v. Walker; Cf. Wood v. Boynton; Stees v. Leonard.
11.   Unilateral Mistake. In some states, a promise induced by a unilateral mistake of the promisor is voidable if enforcement would make the contract unconscionable.
12.   Unconscionability. A court may refuse to enforce a term of contract, or the complete contract, if the court finds that the term or the contract was unconscionable at the time the contract was made.
B.   Unenforceability as a Defense or a Basis for Rescission
    General Rule. A person who has made a promise that is unenforceable under one of the preceding rules may assert the rule as a defense or as a basis for rescission. The basic patterns of argumentation are as follows:
    Unenforceability as a Defense:
   
P's Claim:   The defendant made a promise and did not keep it.

(E.g., "Walker promised to sell Rose the Cow and then refused to convey her.")
D's Defense:   The promise is not enforceable under one the rules stated above.

(E.g. "The promise is not enforceable because it was induced by a our mutual mistake that Rose the Cow was sterile.")
    Unenforceability a Basis for Recission:
   
P's Claim:   The court should rescind the contract and restore the status quo because my promise was unenforceable under one of the rules states above.

(E.g., "The court should rescind my promise to pay Fred Howe Motors for a car, ordering Fred Howe Motors to return my money, because I was an infant at the time that I made the promise.")
C.   Restitution Upon Rescission
    General Rule: To obtain an equitable remedy like rescission, a plaintiff must do that which is equitable. Accordingly, a plaintiff seeking to rescind a contract often first must make restitution of any benefit conferred by the defendant. However, a court will not require a plaintiff to make restitution in situations where justice does not require it.
    Examples: An infant generally must make restitution when rescinding a contract based on infancy. But a court will not require an infant to make restitution if the subject matter of the contract is no longer available.

(One exception is that an emancipated infant must make restitution for necessaries conferred by the defendant even if the subject matter no longer is available.)
D.   Form Contracts
    Definition: Promises made on pre-printed forms often are called "form contracts." If the party who prepared the form refuses to agree to any changes in the form's terms, the form often is called a "contract of adhesion."
    General Rule: For the most part, promises made in form contracts are treated like other promises. Accordingly, a party may enforce a promise in a form contract, even if it is a contract of adhesion, provided that the party can show offer, acceptance, consideration, and compliance with any applicable statute of frauds, and the promise is not unenforceable for any of the reasons above.
    Special Rules:
    Three special rules or principles apply in litigation over form contracts:
   
1.   Adequate Notice. A person does not assent to terms printed on a form if the person did not have reason to know that the form contained contractual terms. Klar v. H & M Parcel.
2.   Strict Construction. In choosing among reasonable meanings for terms in a form contract, courts will select meanings that disfavor the person who drafting the form. Galligan v. Arovitch.
3.   Public Policy and Unconscionability. Courts are more likely to invalidate terms on grounds of public policy or unconscionability in adhesion contracts than in other types contracts. Henningsen v. Bloomfield Motors. But see O'Callaghan v. Waller & Beckwith Realty.
    Pattern of Argumentation:
    A plaintiff may sue to enforce a form contract, arguing that the defendant breached a promise that the defendant made in the form.

In many cases, the situation is reversed. The defendant wishes to rely on the form contract for a defense. The cases that we considered had the following pattern of argumentation:
   
P's Claim:   The defendant breached a contract or committed a tort.
D's Defense:   I am not liable, or my liability is limited, because of an exculpation clause in our form contract.
P's Replies:  
1.   The form contract is not enforceable because I did not have adequate notice that the form contained contractual terms. Klar v. H & M Parcel.
2.   The exculpation clause, when strictly construed, should be interpreted to mean X, and it therefore does not apply to this situation. Galligan v. Arovitch.
3.   The exculpation clause is unenforceable because it violates a strong public policy against X. Henningsen v. Bloomfield Motors.
4.   The exculpation clause is unenforceable on grounds of unconscionability because X.


V.   REMEDIES
A.   Specific Performance
    Definition. A court grants the remedy of specific performance by ordering the defendant to carry out the promise that the defendant made.
    Limitations:
    A court may deny specific performance for a variety of reasons. For example:
   
1.   Damages would be adequate. A court will deny specific performance if damages would be an adequate remedy.

In determining adequacy, courts consider whether damages can be proved with reasonable certainty, whether the plaintiff might obtain a substitute performance, and whether the plaintiff could collect an award of damages.

By tradition, courts have held that damages are not an adequate remedy for a breach of a contract to sell land.
2.   The bargain was unfair. A court will deny specific performance if, at the time the contract was made, the terms of the contract were unfair or the consideration for the defendant's promise was grossly inadequate.
B.   Expectation Damages
    General Rule. The plaintiff has a right to "expectation damages," which is the amount of money necessary to put the plaintiff in the position the plaintiff would have been in the defendant had not breached the contract.

Expectation damages equal the plaintiff's "loss in value" plus "other loss," minus the plaintiff's "costs avoided" and minus "other loss avoided."
    Definitions:
   
1.   "Loss in value" equals the difference between what the defendant promised and what the defendant actually delivered.

(For example, in Parker v. 20th Century Fox, the loss in value was $750,000 because 20th Century Fox promised to pay Parker $750,000 and actually paid her nothing.)
2.   "Other loss" includes any consequential or incidental harm caused by the defendant's breach.

(For example, in Hadley v. Baxendale, the other loss was the profit lost while the factory was shut down because of the delay in delivering the mill shaft.)
3.   "Cost of Avoided" equals the difference between the cost the plaintiff expected in performing and the cost the plaintiff actually incurred.

(For example, in Sullivan v. O'Connor, the cost avoided was zero because Mrs. Sullivan expected to pay Dr. O'Connor's fee and she paid the fee.)
4.   "Other Loss Avoided" equals any losses that would have been incurred incident to, or as a consequence of, the plaintiff 's performance but which were not incurred because of the breach.

(For example, in Sullivan v. O'Connor, the other loss avoided was zero because Mrs. Sullivan expected to undergo two operations and pay the hospital fees incident to her performance, and she did those things.)
    Limitations:
   
1.   Avoidability. The plaintiff may not recover damages that could be avoided without undue risk, burden, or humiliation. Rockingham County v. Luten Bridge.

The plaintiff may have to make substitute arrangement, such as undertaking comparable employment. Cf. Parker v. 20th Century Fox
2.   Incomplete or Defective Performance. In cases of incomplete or defective performance, the plaintiff always may recover the loss in market value.

As an alternative, the plaintiff may recover the cost to complete or remedy the defect unless that cost is grossly disproportionate to the probable loss in value to the plaintiff. Jacob & Youngs v. Kent; Peevyhouse v. Garland Coal. But see Groves v. John Wunder.
3.   Unforeseeability. The plaintiff may not recover damages for losses that were not forseeable at the time the contract.

Losses are foreseeable if they arise in the ordinary course of events or if the defendant has notice of the special circumstance giving rise to them. Hadley v. Baxendale.
4.   Uncertainty. The plaintiff cannot recover damages that the plaintiff cannot prove with reasonable certainty. Collatz v. Fox Wisconsin Amusements; Fera v. Village Plaza.
C.   Reliance Damages
    General Rule. As an alternative to expectation damages, the plaintiff may recover reliance damages which is the amount of money necessary to put the plaintiff in the same position the plaintiff would have been in if the contract had not been made.
D.   Nominal Damages
    General Rule. If the plaintiff proves the defendant breached the contract, but cannot prove the damages, a court may award the plaintiff nominal damages (traditionally, $1 or 6¢).
E.   Liquidated Damages
    General Rule. The court may award the plaintiff liquidated damages, which are damages that the parties stipulated in the contract.
    Limitations:
   
1.   Penalties. A court will not enforce a stipulated measure of damages that is unreasonably large in comparison to actual or anticipated loss. Cf. Dave Gustafson v. State.
2.   Unconscionability. A court will not enforce a stipulated remedy that is unconscionably small. Cf. Henningsen v. Bloomfield Motors.
F.   Pattern of Argumentation
P's Claim:   The defendant made a promise and did not keep it.
1st Possible
Remedy:
  Liquidated Damages. If the promise is enforceable, the court should order the defendant to pay the amount of damages stipulated in the contract.
D's Reply:   Penalty. The liquidated damage measure is unreasonably large in relation to both actual and anticipated damages and therefore cannot be enforced as a penalty.
2d Possible
Remedy:
  Specific Performance. If liquidated damages are not available, the court should order specific performance of the defendant's promise.
D's Replies:  
Damages are Adequate. The plaintiff is not entitled to specific performance because damages would be an adequate remedy.
Bargain was Unfair. The plaintiff is not entitled to specific performance because the bargain was unfair at the time that it was made. McKinnon v. Benedict; Tuckwiller v. Tuckwiller.
3d Possible
Remedy:
  Expectation Damages. If specific performance is unavailable, the defendant should pay expectation damages.

The defendant's breach has made me worse off because [describe "loss in value" plus "other loss"], although I grudgingly admit that I am better off because [describe "costs avoided" plus "other loss avoided"].

Expectation damages equal the difference between these two figures.
D's Replies:  
Avoidability. The court should reduce the expectation damages claimed based on avoidability.

The plaintiff has overstated the "other loss" because some of that loss could have been avoided.

The plaintiff also has understated the "costs of avoided" because the plaintiff could have avoided some additional costs. Rockingham County v. Luten Bridge; Parker v. 20th Century Fox
Incomplete or Defective Performance. The court should reduce the expectation damages claimed for an incomplete or defective performance.

For "loss in value," the plaintiff has attempted to use the cost to complete or remedy, but this amount is grossly disproportionate to the probable loss in value to the plaintiff. Jacob & Youngs v. Kent; Peevyhouse v. Garland Coal. But see Groves v. John Wunder.
Unforseeability. The court should reduce the expectation damages claimed because the "loss in value" was not foreseeable at the time the contract was made because the damages did not arise in the ordinary course of events and I had no notice of the special circumstance giving rise to the damages. Hadley v. Baxendale.
Uncertainty. The court should reduce the expectation damages claimed because the plaintiff cannot prove the "loss in value" or "other loss" with reasonable certainty. Collatz v. Fox Wisconsin Amusements. Cf. Fera v. Village Plaza
4th Possible
Remedy:
  Reliance Damages. If expectation damages are not unavailable, the defendant should pay reliance damages. I am worse off than if the contract had never been made because [state reasons].
5th Possible
Remedy:
  Nominal Damages. If no other remedy is available, the defendant at least should pay nominal damages.

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