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89 Cards in this Set
- Front
- Back
Tort
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CIVIL wrong other than breach of contract
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Tort law seeks to
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compensate injured party
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2 Types of Torts
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-Intentional
-Unintentional |
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Unintentional Torts
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- Negligence
- Strict Liability - Product Liability |
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Types of Intentional Torts
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- Assault & Battery
- False Imprisonment - Defamation - Invasion of Privacy - Fraud - Intentional Infliction of Emotional Distress |
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Defamation
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injuring a person's good character by making false statements about them
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2 types of defamation
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-Slander - oral publication
-Libel- written publication |
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Fraud
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Intentional Deciet for personal gain
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Negligence
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victim suffers injury caused by failure of person to exercise duty of care
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To prove Negligence must prove 4 Elements:
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-Duty of Care
-Breach of the Duty -Causation -Damages |
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Causation
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- Actual
- Proximate |
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Duty of Care
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- owed only to "forseeable" plaintiffs
- "reasonable person standard" |
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Breach of Duty of Care
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- no duty to rescue people in danger unless you have a responsible relationship with that person
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Actual Cause
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- must prove actually did negligent act
-"But For" |
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"But For" Test
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-Sine qua non
- if it weren't for the negligent act of the defendant then the injury would not have occured |
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Plaintiff =
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victim
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Proximate Cause
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-Was the injury resulting from this negligent act FORSEEABLE?
-If it wasn't forseeable then there is no liability |
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Malpractice
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Negligence of a professional in their professional duties
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Defenses to Negligence Claims
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- Assumption of Risk
- Comparative Negligence - Contributory Negligence |
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Comparative Negligence
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amount of damages is split between the plaintiff and defendant according to how much each one is responsible forex: 90 % Defendant
10 % Plaintiff |
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Contributory Negligence
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- draconian results
- complete defense for defendant - If plaintiff is at all responsible, they receive NOTHING |
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Product Liability grew out of
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Strict Liability
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Product Liability 3 parts
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-Negligence
-Strict Liability -Product Liability |
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Product Liability- Negligence
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owed duty of care to consumer and this was breached causing the consumer injury
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Product Liability- Strict Liability
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high- risk activities
ex: maintaining dangerous animals |
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Restatement (3rd) of Torts 3 Defects
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- Manufacturing Defects
- Design Defects - Warning Defects |
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Manufacturing Defects
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Actual product departs from intended Design
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Design Defects
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- Forseeable risk of harm could have been reduced or avoided by ALTERNATIVE design
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Warning Defects
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- Forseeable risk of harm could have been reduced or avoided by ADDITIONAL REASONABLE WARNINGS OR INSTRUCTIONS
ex: Microwave cat Mc Donalds Coffee |
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Defenses to Product Liability Claims
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- Assumption of Risk
- Product Misuse - Contributory Negligence - Comparative Negligence |
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Product Misuse Claims
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The defendant must still guard against forseeable misuse
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Contributory & Comparative Negligence
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** Only for arguments based on NEGLIGENCE not defect
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Promise
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Assurance that one will or will not do something
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Contract
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An agreement based on a mutual exchange of promises that can be enforced by law
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2 Fundamental Contract Principles
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- Freedom of Contract
- Objective theory of Contracts |
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Freedom of Contract
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- based on common law and implied in U.S. Constitution
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Objective Theory of Contracts
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- What would a reasonable person do under these circumstances?
-Take into consideration everything |
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Elements of a Contract
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- Agreement
- Consideration - Capacity - Legality |
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Agreement
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- Offer
- Acceptance - Termination of Offer Prior to Acceptance |
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Offer
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- Seriousness of offer
- Definiteness of Terms - Communication to Offeree |
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Acceptance
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- Mirror Image Rule
- Mailbox Rule |
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Mirror Image Rule
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Acceptance must occur on both sides- both must benefit
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Mailbox Rule
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Once you accept you can't undo
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Termination of Offer Prior to Acceptance
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- Termination by action of parties - Revocation & Rejection
- Termination by operation of law |
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Consideration
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-"adequacy" of consideration
-What you get in return for what you are offering - Leagally beneficial to Promisee - Leagally Detrimental to Promisor - Not a Pre- Existing Duty |
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Capacity of Parties
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- Legal ability to enter into contractual relationship
- Minor - Mentally Incompetent |
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Legality of Subject Matter
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- Tortious or Criminal Acts
- Contrary to Public Policy |
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Bilateral Contract
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mutual exchange of promises
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Unilateral Contract
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offeree can accept offer only by performing
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Executory Contract
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Not fully performed by one or both parties
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Express Contract
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terms espressly, explicitly stated in words
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Lack of geniune assent
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-makes otherwise valid contract unenforcable
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Misrepresentation
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- of material fact
- Intent to deceive - Innocent party justifiable relies ** Fraud by one party |
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Lack of Assent
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- Misrepresentation
- Undue Influence - Duress - Mistake - Unilateral Mistake - Bilateral Mistake |
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Undue Influence
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- One party's great influence overcomes the other's free will
** agreement not entered into freely |
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Duress
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If one party is forced into the agreement there is no mutual assent
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2 Types of Mistake
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- Unilateral - made by 1 party
- Bilateral- made by both parties ~ No meeting of the minds - contract VOID |
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Raffles v. Wichelhaus
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- "Peerless" ship- confusion makes contract void- bilateral mistake
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Promissory Estoppel
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- enforce contract if it would be UNJUST not to
- definite promise - promisor knew that promisee JUSTIFIABLY relied on ex: beach house Goff- Hamel Case |
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Performance Types
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-Complete
- Substantial - Material Breach of Contract |
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Complete Performance
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- performance is exactly as agreed
-no problem |
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Substantial Performance
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- in good faith
-provides other party with essential elements of contract - innocent party entitled to damages for failure to completely perdorm ex: Jacobs & Young, Inc. v. Kent |
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Material Breach of Contract
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- Party breaches contract so innocent party has no duty to perform
- party has not substantially performed |
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Naked Promise
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- One way offer made
- Gore building example |
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Discharge by Agreement
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- Mutual Recession
- Novation |
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Mutual Recession
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- Agreement by parties to terminate prior agreement (making a new contract)
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Novation
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- Agree to substitute 3rd party for one of orignal parties
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2 Types of Remedies
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- Specific Performance
- Money Damages |
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Specific Performance
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- court orders breaching party to do what they agreed to do (or stop doing what they agreed not to do)
**when money damages will not solve problem **EQUITABLE REMEDY |
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Examples of Specific Performance`
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- Sale of Real Estate
- Sale of goods which are rare or unique |
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Specific performance never ordered in:
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Case of personal service/ employment contracts
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Damages
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monetary compensation to non-breaching parties
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Compensatory Damages
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- "Cost of Loss"
- Pay what your losses are worth |
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Consequential Damages
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-"forseeable losses"
- caused by special circumstances ex: Hadley v. Baxendale |
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Hadley v. Baxendale
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- Hadley argued Consequential damages but didn't tell Baxendale of special circumstances so losses were not forseeable so didn't win
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Types of Damages
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- Compensatory Damages
- Consequential Damages - Punitive Damages - Nominal Damages - Liquidated Damages |
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Punitive Damages
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RARE
- Punish wrongdoing - not about money |
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Nominal Damages
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- recognize breach even when there is no loss
- Rare |
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Liquidated Damages
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- agreed upon in advance
- Sepcific Dollar amounts |
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Liquidated Damages recognized by court if:
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- actual damages were difficult to estimate
- amount is reasonable not excessive |
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Mitigation of Damages
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- injuured party has legal obligation to reduce "mitigate" damages
ex: Parker v. 20th century Fox |
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Contracts that MUST be in writing
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- involving land
- Performace cannot be completed in 1 year - Promises made in consideration of marriage - Under UCC sale of goods over $500 |
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UCC
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-50 diff states, 50 diff UCCs
- attempt to unify the common commercial contract law of 50 states |
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UCC increases
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efficiency of businesses
**merchant to merchant |
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Written Contracts:
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-handwriting over typing
-typing over printing |
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Argue Compensatory or Consequential
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breaching party- compensatory
innocent party- consequential |
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Goff- Hamel v. Hastings
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- promisory estoppel
- made a promise which Goff- Hamel JUSTIFIABLY relied on |
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Greenman v. Yuba Power Products
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- Defect in Design
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Hadley v. Baxendale
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- Not awarded consequential damages because didn't tell Baxendale about special cirumstances
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