Quick Reference Guide For Breach Of Contract

QUICK LESSON IN BREACH OF CONTRACT


Paul P. Cheng, Esq.

This quick summary is being sent as a memorandum to help other attorneys in understanding what a breach of contract is. Please continue to contact us with your questions or issues. This analysis is what we use in our offices when we approach any breach of contract case. The elements for breach of contract are strictly construed. It is imperative that you do not skirt around the elements when analyzing your client's case.

ELEMENTS OF A BREACH OF CONTRACT

1) INITIAL INFORMATION


In a breach of contract action, the plaintiff must plead the existence of a contract and its terms that establish the obligation at issue. The complaint must indicate on its face whether the contract is written, oral, or implied by conduct. If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint, or a copy of the written contract must be attached to the complaint and incorporated by reference.

2) PLAINTIFF'S PERFORMANCE OR EXCUSE FOR NON-PERFORMANCE


The plaintiff must prove that he has fulfilled his obligations and complied with any and all conditions and agreements of the contract that he is required to perform. If plaintiff was unable to perform because defendant prevented him from doing so, plaintiff must allege such excuse for non-performance in the complaint.

3) DEFENDANT'S BREACH


A breach is defined as defendant's unjustified or unexcused failure to perform. BAJI 10.85(3). The plaintiff must plead the facts constituting the breach in unequivocal language.

4) RESULTING DAMAGE


Any breach, total or partial, which causes a measurable injury, gives the injured party a right to compensatory damages.

SO WHAT HAPPENS WHEN YOU CAN PROVE THE ABOVE ELEMENT AND IT CAN BE CONCLUDED THAT THERE IS A BREACH OF CONTRACT?

Answer:


Generally, Compensatory Damages - the measure of damages for breach of contract is the amount which will compensate plaintiff for all detriment proximately caused by the breach or which, in the ordinary course of things, would be likely to result from the breach.

Other factors that need to be considered are:


• Certainty - damages must be clearly ascertainable in both nature and origin; but the fact that amount of damage is not susceptible of exact proof or is uncertain, contingent, or difficult to ascertain does not in and of itself bar recovery.


• Restoration - damages for breach of contract ordinarily include all amounts necessary to place plaintiff in same position as if breach had not occurred.


• Lost Profits - Note future profits can be recovered to extent they can be estimated with reasonable certainty; lost profits are recoverable to extent they are natural and the direct consequence of the breach.


• Rescission and Restitution - rescission and restitution are alternative remedies in action for damages where there has been repudiation or material breach of a contract, transfer of unique goods is involved, other remedies are inadequate, subject of contract still exists and interests of innocent purchasers for value and defendant's creditors will not be unjustly affected.


• Specific Performance - Note: specific performance is granted only when money damages are inadequate.


• Real Property - specific performance is given in land sale contracts on the assumption that every piece of property is unique and money damages are therefore inadequate.


• Injunction (Very Limited Availability) - injunctive relief is largely within discretion of the trial court, considering inadequacy of damages to plaintiff, as well as harm to defendant.

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Life Insurance Claim Denial- Don't Let it Happen to You

Insurance, especially life insurance, can be a very confusing topic for most Americans. We often pay various insurance premiums our whole lives. Understanding the nuts and bolts of your life insurance policies can benefit you and your family greatly in the unfortunate event of your death or the death of a family member.

Life insurance comes in a bewildering array of variations. There's whole life insurance, variable life insurance, and universal life insurance, all of which are collectively known as cash value life insurance policies. With these policies, a portion of the premium you pay goes to purchase insurance coverage, while another portion is used as an investment. Taxes on the investment portion of the policy are generally deferred until you collect the proceeds.

If you are married, especially if you have dependent children, or if you have debts such as a mortgage, car payment, or credit card balances, your family could be at serious financial risk if you should die suddenly and your income were suddenly no longer available. Spouses are often left unable to make all the payments, raise the children, educate them, etc. on a single income. Life insurance is your family's protection against the drastic lifestyle changes that occur in the event of your death.

We tend to think that if we buy life insurance and pay the premiums, then upon our death, collecting the life insurance will be easy for our beneficiary, but that is not always the case. Life insurance companies review each claim carefully before parting with their money and some life insurance claims are denied. Apart from fraud in the policy on the part of the policy holder, the most common ground life insurers use to deny claims is that there was a "material misrepresentation" on the life insurance application. That misrepresentation may occur in the original application for insurance or in a later amendment to the application.

A material misrepresentation sufficient to deny a claim cannot be just any misstatement. Under many states' laws, a material misrepresentation is one that, if fully and truthfully disclosed, would have led to refusal by the insurance company to issue the life insurance policy. Material misrepresentations accusations are commonly made about just about anything on the life insurance application including the person's employment history, age, income, other insurance in force, whether or not they smoke cigarettes, driving record, drinking history, hobbies, etc. The most commonly alleged misrepresentations involve the applicant's heath and medical history.

Recovering money from an insurance company that denies a life insurance claim is no easy task. Many life insurance claims are paid without much fuss on the part of the insurer, but there are times when claims are delayed and denied. The claims that are subject to the most suspicion are the ones filed in the first two years the policy is in force. In many states, the insurance company can deny the claim by retroactively rejecting the application if it finds that the application contained a "material misrepresentation".

Like most insurance companies, life insurance companies are regulated on the state level. If you have questions regarding your claim, its delay or its denial, contact your state department of insurance and an experienced life insurance claim denial attorney.

All About An Asbestos Mesothelioma Lawsuit

People who discover that they have developed mesothelioma as a result of asbestos exposure may be very angry, frustrated and confused. People feel the pain of the disease and the hurt of something deeper still. They ask themselves why they have been chosen for this fate. People who have worked hard all their lives to remain healthy find that something they did 20 years ago has negated all of their efforts to live comfortable lives. Because of this, they begin to lash out at the world in general, thinking that they are impotent to correct their situation. However, what if people used all this pent-up energy and emotion to bring those responsible to justice? We're not talking about a Batman-style vigilante justice, mind you. We are talking about a concentrated counterattack in the form of an asbestos mesothelioma lawsuit.

What exactly is involved in an asbestos mesothelioma lawsuit? In a sense, it would be like causing the people responsible for your ailment to own up to their responsibility to you. Although we all know that no one can truly pay for your health, an asbestos mesothelioma lawsuit would at least try to get the companies responsible for the full extent of the damages they caused. An asbestos mesothelioma lawsuit would show people that those who made you expose your health to asbestos are the ones responsible for the loss of your health, peace of mind, and productivity. In a sense, it would be like making the company pay for everything that their actions have been responsible for. However, how does one go about an asbestos mesothelioma lawsuit?

Well, the first requirement is that there should be the damage. Of course, in this case, the damage would be mesothelioma. Having mesothelioma doesn't automatically qualify you to litigate, however. You need to be able to show some proof that the asbestos exposure you obtained through the product or through working for one company led to your condition. With a great lawyer, you might be able to do this easily. The task is made even easier by the fact that almost all cases of mesothelioma are caused by asbestos exposure. Once you have this initial factor, you can go about preparing your asbestos mesothelioma lawsuit.

What are the things that you should do?

You have to do your research. Try to find information regarding exactly what happened to your body. Most people find that knowing exactly what is causing their conditions can be very calming. This is because people are more afraid of the unknown than anything else. Sure, you know that your illness is caused by asbestos fibers, but do you know what's really going on inside your body? Dread can quickly take over when ignorance is permitted to continue. You should also research the different laws surrounding asbestos mesothelioma lawsuits. Try to familiarize yourself with the terminology so that you won't get confused by your lawyer. Read up on different asbestos mesothelioma lawsuits and learn what made them fail or succeed. This will help you have a hand in planning the strategy of your own asbestos mesothelioma lawsuit.

The next step is to find a lawyer. If you want your asbestos mesothelioma lawsuit to succeed, you have to get great help. This means that you need to get a great lawyer. In order to look for a lawyer to help you handle your asbestos mesothelioma lawsuit, you should look for experience, creativity and knowledge.

Knowledge is the primary reason why you hire an attorney to handle your asbestos mesothelioma lawsuit. You hire a lawyer because he or she has more knowledge concerning the law than you do. Think of a lawyer as a pilot. Since you do not know your way around the law, a lawyer can guide you and help you find your way around the different paths, loopholes and sidetracks of laws which involve your suit. This is a most basic requirement for you to get the smallest of chances with your asbestos mesothelioma lawsuit.

Your asbestos mesothelioma lawsuit should also be handled by someone with experience. This is because only a lawyer with experience will be able to truly apply his or her knowledge in the right situations. Your asbestos mesothelioma lawsuit should have a higher chance of success if it is handled by someone who has already encountered a lot of cases like yours.

You should also know about the hidden art practiced by lawyers and that is interpretation. The law depends upon the interpretation of the people observing it - a fact unknown to many people. Getting a lawyer who can creatively interpret the law in order to get the best results for you is surely what you need.

A Lawyer Is Not God- Protect Yourself From Legal Malpractices

If you think a lawyer is above the reach of the law and you cannot do anything against him, you are highly mistaken! Let me tell you that your lawyer is not God!

It is very necessary to protect yourself from legal malpractices. Just like the US, many other countries have introduced laws that declare that lawyers are accountable for the actions they take.

The fact is that being a professional, every lawyer must behave professionally, responsibly, and ethically.

If you realize that the lawyer hired by you is not trustworthy or is not ethical or squeaky clean, you have the right to protect yourself from legal malpractices by suing your lawyer. That is it is your right to sue your lawyer in case of any malpractice.

Here are some basic facts regarding the same:

• You can sue your lawyer if he is engaged in malpractice, misrepresentation, inappropriate billing, negligence, breach of fiduciary duties, breach of contract etc.

• The procedure of suing a lawyer has to be very quick. The state bar association or court can assist you regarding the time limit of the same.

• Bear in mind that suing a lawyer is extremely expensive. Therefore, try to solve the dispute with the lawyer and think twice before you take the final decision.

Unfortunately, most of the lawyers seem to have forgotten the wows they took before taking the responsibility.

In the present scenario, law and malpractice go hand in hand. The people who claim to be the guardians of law have started to practice law unethically and unlawfully.

To conclude, being a responsible citizen, it is not only your right to ask for justice but also your duty to punish people who are involved in legal malpractices.

Mediation, Arbitration, and the Role of an Experienced Litigation Attorney

Mediation and Arbitration are also referred to as Alternative Dispute Resolution. Mediation and Arbitration can be used to assist parties reach a resolution without having to spend the time and money involved with going to court.

"There are many businesses and individuals that come to me to act as an arbitrator or mediator for a few different reasons," says Philip R. Brown, a litigation attorney in Honolulu, Hawaii. "Not only am I an experienced litigation attorney, but rising court costs and the time a lawsuit takes both make Arbitration and Mediation very attractive to people who are looking for a way to reach a resolution."

While both Arbitration and Mediation resolve issues between two or more parties outside the court, they are different in how the resolution is reached:

- Arbitration – During Arbitration, an experienced litigation attorney is appointed as the arbitrator. Then, both sides present their issues and arguments, and the neutral arbitrator makes a decision. The litigation attorney acting as the arbitrator decides on the resolution in a similar capacity to a judge. Arbitration can either be binding or non-binding. Binding Arbitration has the same result as a legal judgment, while non-binding Arbitration is used merely as an advisory opinion.

- Mediation – Mediation is another alternative to traditional litigation in the courtroom, and it is less formal than an arbitration proceeding. During Mediation, parties are able to discuss possible solutions without the confines of the litigation. With Mediation, a litigation attorney is appointed as the mediator and facilitates discussion of the problem between the two parties. After the Mediation process of discussing the issue, negotiations are made to reach a resolution, and the mediator offers their opinion about the best course of action. Unlike Arbitration, Mediation is not legally binding.

If you are looking for a way to resolve a conflict with another person or business, but would like to avoid the hassles of a drawn out legal process in the courtroom, you may want to consider Arbitration or Mediation from an experienced litigation attorney in your area.

Self-Esteem, Depression and Low Energy-Tips to Increase Your Self Esteem (Part 1)

Low self-esteem and depression create a cycle that can lead to a sense of hopelessness. Even a mild depression can cause feelings of inadequacy, low energy, and a sense of being overwhelmed, even by small tasks. Obviously, if you need medical help get it. But recognize other factors. For example, when our energy is low and we get less done it can contribute to our sense of worthlessness. Most of my life I've experienced cyclical times when my energy gets low. I've come to recognize the interplay it has on my self-esteem. Here are a few tips that have helped me.

1.Limit TV time. Television promotes images of "beautiful" people, who are all highly successful or extraordinarily dysfunctional. Most of these "beautiful" people have unlimited wealth, perfect health, a choice of desirable partners, and portray a work life that is full of excitement. This is fiction! Too much tv viewing can cause a person with low self-esteem to feel like they will never be enough. Additionally, tv viewing can be addictive and cause us to withdraw from life. That's the worst thing to do when you are feeling blue. Personally, I find tv, very addictive. I actually am entering a third period of my life where I'm giving up my television. Every time I give up my tv I lose weight, increase earning, and make more friends.

2.Find a nice way to easy into your day. Make a plan to spend a few minutes each morning doing something you love. If you love to read, wake up 30 minutes earlier than you need to and read a chapter of a novel. Maybe you like to be outside; spend 10 minutes weeding your garden, playing with your dog, or walk a couple blocks around your neighborhood before you get ready for work. Go to bed a half hour earlier if you need to.

3.When you are tired, rest. We live in a culture that is on 24/7. This is not natural. Many people take anti-depressants and other meds, when they may just need more rest.

4.Do one "chore" shortly after waking up. Something as simple as making your bed can make you feel like accomplished something. If you buy the right bedding material, it takes 2-3 minutes.

5.Break down tasks into smaller projects. Rather than saying, I'm going to clean my office, learn to clean out one drawer. This will give you something more manageable. The more manageable, the easier it is to complete a project. This helps bolster our self-esteem.