1. UCC vs. Common Law (Restatement)?
2. What is the contract? What is to be enforced?
- Is there ambiguity in the contract? Is the contract "integrated"? (i.e. fully expressed)
- If ambiguity or not integrated, parol evidence can be used to refine contract.
- Also look to express terms, course of prior dealings, course of prior performance, and trade usage.
- Are there any conditions precedent?
- Did either side waive any such conditions through precedent?
3. Who had the first material breach?
- Any "bad faith"?
- Was there a repudiation/renunciation?
- Did one side demand "adequate assurances?" And did other side give them?
- Changed circumstances/impossibility/impracticability
- Check "duty to mitigate"--cannot "run-up" damages.
- Consequential vs. incidental damages.
- Willful breach? Material?
- Generally, damages are expectancy--"benefit of the bargain"
- Can otherwise be: "restitution" or "reliance" (anticipated profits are too speculative)
- Check: if trivial and not willful, can be "loss in value" vs. cost of replacement.