brotherdarkness wrote:Also, it doesn't really seem right to give the non-breaching party restitution damages in that situation. The extra dollar in profit that the breaching party made by repudiating the K and selling to someone else wasn't really a benefit conferred on him/her/it by the non-breaching party in the normal sense. I'm struggling to articulate my thoughts here, but it just doesn't seem equitable.
How does the analysis go in the following situation?
"A" and "B" agree that B will install a new porch on A's house for $1,000. B expects the materials to cost him $750 and expects to make a $250 profit. B begins building the porch and spends $500 to date. A calls B and tells B that he isn't going to go thru with the K -- anticipatory repudiation. B ceases performance and brings suit.
B would be awarded (a) expectation damages (the $250 profit); and (b) restitution (but that keys up discussing the various ways of measuring the benefit conferred: either the increase in value to A's house or the FMV of the work B did; and here we just have $500 in reliance damages?).
Or is that $500 of sunk cost factored into the expectation damages analysis, because not giving that money to B would prevent B from ending up where he expected (having covered his costs and made a $250 profit?).
There I'd call the $500 reliance damages, with $250 more in expectation damages.
atticus89 wrote:The way you're using restitution here is almost like punitive damages, i.e. punishing the seller for his breach, which isn't allowed in K remedies.
This probably right. Seller pulled a dick move so I thought you could get back at him by saying "sorry no profits on this one" but that doesn't really fit with the quantum meruit or quantum valebat restitution stuff.