orderofthings wrote: TheFutureLawyer wrote:
Extension_Cord wrote:I offer you $100 to paint my house, but I ask for you performance, not your promise. You begin to paint but have a heart attack which prevents you from finishing the last 1% of the job. I paint it myself. Could you recover? Would it have to be in restitution? If we say the value of your services were $1,000, would I have to pay 990?
I know if it was a bilateral K and the painter breached, he would be limited to restitution damages offset by the K agreement. What happens in unilateral K's?
I think you got mixed up (or I did). Bilateral K is promise for promise. In that case, you couldn't get restitution, as it doesn't apply to Ks. The situation you described is a unilateral K, of a binding option K. There is no K stating that offeror will pay offeree UNTIL offeree finishes the work, then that K comes into existence. But it never happened. So I think it's just a straight Restitution claim.
Why couldn't you have restitution damages for a bilateral K? "Restitution seeks to return to the plaintiff the value of any benefit conferred on the defendant under the breached contract." That seems like it could be an appropriate route to try and get damages. Is it because the homeowner didn't breach?
This has to be my last response here, but I got this under Rest: "there was no express agreement or promise made – duty to compensate is implied". You can get Rest. in an implied in fact K, which is sortta like a K, or an implied in law K, which is not really a K at all. Either way, there is no real K.
In this hypo, what would have been the K?
You need to look up bilateral K: "bargain for mutual promises – a promise for a promise." In the hypo, there is a promise (of giving offeree sole authority to complete the performance) for a partial performance (though part perform does usually also contain implied or express promise to complete, this doesn't matter in terms of making a bilateral K b/c the offeror isn't seeking a promise at all, and so there is no consideration for that)(see Restat 45). This is a unilateral K.
The K of a promise (of money) for a complete performance is never made. Thus, no K for this.
This is what I have for Rest:
based on concept of unjust enrichment – person performs services that are known to and accepted by another, law implies promise to pay for such services (if person expects compensation) – elements:
a) D benefited from the services of P
b) when P performed services he intended to be compensated (if intent was purely gratuitous or charitable, then no restitution – no good Samaritan restitution) – would reasonable person expect to be compensated?
c) reasonable person in D’s position would have known that P intended to be compensated.
d) unjust enrichment – it is unjust /inequitable for D to retain benefit w/o compensating P