Question 1New City Drivers argues that it had no contractual obligation to pick up Photogr
apher on the day of his reservation. Is this argument likely to succeed? Explain, making s
ure to articulate the rationale behind the argument.The issue is whether Photographer anti
cipatorily repudiated his contract with New City Drivers, by emailing Driver to say that h
e would prefer an SUV. Anticipatory repudiation takes place where one party to a contract
unequivocally expresses the intent not to perform. The repudiation is itself a breach of t
he contract, which excuses the other party’s performance.New City Drivers would argue that
Photographer anticipatorily repudiated the contract when he emailed Driver about her car’
s small size, thus excusing New City Drivers from performing. Here, although Photographer
expressed concerns regarding the size of Driver’s vehicle, he did not unequivocally say th
at he would not perform under the contract; he merely expressed a preference for an SUV ra
ther than a car. Furthermore, Photographer certainly did not say that he refused to pay Dr
iver under the contract, or that he would not be requiring her services. Therefore, a cour
t would be unlikely to find that Photographer repudiated the contract. Without anticipator
y repudiation, New City Drivers was still obligated to perform, which means the anticipato
ry repudiation argument will probably fail.
Question 2New City Drivers argues in the altern
ative that, even if it breached the contract and Photographer’s estimate of his damages is
accepted by the court, it is not liable for any lost profits resulting from Photographer’
s missing his morning meetings. What will New City Drivers argue that Photographer should
have done? Is this argument likely to succeed? Explain.The issue is whether Photographer c
ould have mitigated his damages by finding another way to attend his morning meetings. A n
onbreaching party has a duty to mitigate damages by avoiding reasonably preventable losses
resulting from the breach. The nonbreaching party does not need to make extreme or undue
efforts or incur unreasonable risk to avoid loss, but if the breaching party can show that
the nonbreaching party could reasonably have prevented some of the requested damages, the
breaching party will not be held liable for those damages. New City Drivers will argue th
at Photographer could have mitigated his damages here—that is, he could have attended his
morning meetings without undue effort by using the alternative transportation that the con
cierge offered to provide.This argument seems likely to succeed here. Once Driver failed t
o arrive on time, the hotel concierge immediately offered to help Photographer obtain alte
rnate transportation that would have gotten him to his morning meetings on time. Even so,
Photographer insisted on using New City Drivers, which caused him to miss the morning meet
ings. Additionally, the facts do not suggest that this alternative transportation would ha
ve been unreasonably or prohibitively costly. Accordingly, New City Drivers’ mitigation ar
gument is likely to succeed, which should absolve New City Drivers of any liability for an
y lost profits resulting from the missed meetings.
Question 3Assume that New City Drivers’
arguments fail (rightly or wrongly), New City Drivers is found in at least partial breach,
and Photographer is asked to demonstrate why his requested $45,000 in damages is an accur
ate assessment of his damages. Is Photographer likely to obtain a judgment of $45,000 aris
ing from the missed meetings, and what will he need to show in order to obtain these damag
es? Explain.The issue is whether Photographer will be able to establish his damages with r
easonable foreseeability and certainty. In order to establish damages, the nonbreaching pa
rty must (1) prove that the damages were reasonably foreseeable and (2) establish the amou
nt of damages with reasonable certainty. Reasonable foreseeability means that either (1) t
he loss the nonbreaching party suffered would typically result from the breach or (2) the
breaching party was aware of unique circumstances that would permit a reasonable person to
foresee such losses (consequential damages). Reasonable certainty means that the nonbreac
hing party can establish both the amount of the loss and that the loss was actually caused
by the breach.Here, Photographer faces significant problems with both elements. As for re
asonable foreseeability, the facts do not indicate that missed work and lost profits are t
ypically the result of missed meetings. Additionally, although Photographer’s email to Dri
ver says that he will be bringing photography equipment to the meetings, nowhere do the fa
cts indicate that Photographer ever told Driver or New City Drivers that he was meeting wi
th potential clients. Indeed, it seems unlikely that New City Drivers would have had any r
eason to know that missing those meetings could cost Photographer work and future income.A
s for reasonable certainty, Photographer may indeed be able to prove that, had he signed c
ontracts with each of his morning clients, he would have made $15,000 profit per contract,
but that alone is not enough. Photographer must also show, with reasonable certainty, tha
t he would have signed contracts with all three morning appointments had he met with them.
This will be very difficult, if not impossible, to prove, especially because Photographer
signed contracts with only two of his three afternoon appointments. This indicates that P
hotographer’s signing contracts with all three morning appointments was by no means certai
n. Photographer is thus unlikely to win a judgment of $45,000 in damages from New City Dri
vers, arising from the missed morning meetings.