LLMってどんな勉強をするのかな？という方のために、の予習・復習で作成したノートを順次共有します。

こちらは、Contracts: Cases and Doctrine [Connected Casebook] (Aspen Casebook) 6th Editionという名前のケースブックに準拠した契約法のノート第１回（救済概論）になります。日本語訳も付していますが、あくまで参考と言うことでご理解ください。

第１回　救済概論
Page 33 A. Why Study Remedies First? (text)
Pages 33-44 B. The Three Damage Interests
Farnsworth excerpt
Hawkins v. McGee
McGee v. United States Fidelity & Guaranty Co.
Roberts excerpt
Restatement (2d) of Contracts (R2K) section 347
Nurse v. Barns
Differentiating Damage Interests: A Problem
Pages 49-56 J.O. Hooker & Sons v. Roberts Cabinet Co.

★大雑把な論点：When should a particular type should be awarded?
1. Expectation Damages (most common)
2. Reliance Damages (used in estoppel cases)
3. Restitution (used in unconscionability and mistake cases)
4. Liquidated Damages (used in contracts wherein contracting parties provide for their own damages in the event of breach)
5. Specific Performance (used in real estate cases and cases involving sale of unique goods)

★損害の種別　Types of Damages for Breach of Contract
■ Monetary Damages
○ Expectation Damages（期待損害）
○ Reliance Damages（信頼損害）
○ Restitution（現状回復的損害）
○ Liquidated Damages（約定損害）
■ Non-Monetary Damages
○ Specific Performance（特定履行）

★論証　救済の種別　Types of remedies
Expectation Damages ＜契約履行されていたら置かれるべき地位との差額払え＞- Awarded to put promisee (non-breaching party) in the position that the promisee would have been in had the promise been performed; intended to put the injured party in as good of a position as if the breaching party fully performed its contractual duties.
☜The difference between where I was and where I thought I would be had you fulfilled the bargain.

Reliance Damages ＜信じて支出した分返せ！＞- Awarded to put promisee (non-breaching party) in the position that the promisee would have been in had the promise not been made; for losses suffered in reasonable reliance on a promise.

Restitution ＜profitを返せ！＞- Puts promisor back in the position that promisor would have been in had the promise not been made; often involves promisor disgorging money to prevent unjust enrichment, so amount of recovery is typically based on the breaching party’s gain
☜Damages = breaching party’s enrichment (or profit) (this is the amount that should go to non-breaching party)
→ deters efficient breach because breaching party won’t get to keep profits made due to breach.
→ Tension between wanting to promote efficient markets and wanting to people to rely on certainty of contracts.

Liquidated Damages ＜違約金払え＞- Awarded when a contract stipulates what damages are to be paid in the event of breach; must be reasonable with respect to actual/anticipated harm caused by breach.

Specific Performance ＜（限られた場合）特定の契約義務を履行せよ＞- Remedy in which court orders a party to actually perform its promise because monetary damages are somehow inadequate to fix the harm; most commonly ordered in cases involved unique property; never granted in employment/services context.

★期待損害（Expectation damages）のcasesについて

Hawkins v. McGee (Expectation damages)
■事案
Dr. McGee (D) told Hawkins (P) that he could make Hawkins’ burned hand perfect after surgery。
After surgery, Hawkins’ hand was not in the condition as Dr. McGee promised.
→ Hawkins がDr. McGeeを訴えた。

■本判決の意義
In Hawkins v. McGee The true measure of a buyer’s damages is the difference between the value of the goods as promised and the actual value at the time of sale, including any incidental consequences within the contemplation of the parties when they made their contract.
☜買主の損害賠償の尺度は、約定された商品の価値と販売時の実際の価値との差であり、これには、契約時に当事者が考えていた付随的な結果を含む。

■試験との関係での位置づけ
o Expectation Damages (court’s default): Aggrieved party will be entitled to amount that will restore him to the position he would have been in if the K had been fully performed
EXAMPLE: A patient with a hand injury contracts with his doctor for hand surgery. The doctor promises him a “100% perfect” hand, but instead the surgery makes the hand worse. The expectation interest of the patient is measured by the difference between the value of the promised “100% perfect” hand and the value of the hand worsened by surgery.　 手に怪我をした患者が、医師と手の手術の契約をした。医師は「100％完璧な手」を約束したが、手術はかえって手を悪化させた。患者の期待利益は、約束された「100%完璧な」手の価値と、手術によって悪化した手の価値との差によって測定される

McGee v. United States Fid. & Guar. Co., 53 F.2d 953 (1st Cir. 1931)
■事案
Malpractice insurance policy = Only covers torts claim?

Calculation Expectation damages
§347. Measure of Damages in General
Subject to the limitations stated in §§350-353, the injured party has a right to damages based on his expectation interest as measured by
(a) The loss in the value to him of the other party’s performance caused by its failure or deficiency, plus
(b) Any other loss, including incidental or consequential loss, caused by the breach, less (c) Any cost or other loss that he has avoided by not having to perform
Damages = Loss in Value + Incidental/Consequential Losses - Costs/Losses Avoided

Nurse v. Barns
■事案
Nurse (P) agreed to pay Barns (D) £10 for use of an iron mill for 6 months; D resumably breached the contract, so P sued D for breach.
■判決
Jury awarded damages of £500 “by reason of stock laid in” (this means that P has already put some stock (在庫) into the mill.
£500 = £10 (loss in value) £490 (Incidental/Consequential losses due to the breach “special damages”)

■本判決の意義
In Nurse v. Barns, the court held that the proposition that special/expectation damages may be awarded for breach of contract.

参照）UCC §2-713. Buyer’s Damages for Non-Delivery or Repudiation.
(1) Subject to the provisions of the Article with respect to proof of market price (Section 2- 723), the measure of damages for non-delivery or repudiation by the seller is the difference between the market price at the time when the buyer learned of the breach and the contract price together with any incidental and consequential damages provided by in this article (Section 2-715), but less expenses saved in consequence of the seller’s breach
(2) Market price is to be determined as of the place for tender or, in cases of rejection after arrival or revocation of acceptance, as of the place of arrival.

P. 43 Practice Problem（ざっくりした解説）
Book 15
Note 1 + copy 3
Pay 10
Damages:
Rest Damages 11 (Benefits basis)　与えた利益だからコピー代入らない
Reliance Damages 13 (Note 10+ copy 3)　信じてコピーした
Exp Damages: 15 (Value of the Book: 貰えるはずだった本がもらえていないので)

参考）腕の事件での演習（授業内）
Rest 500
Expectation 1500 = 2000(perfect hand) – 500 (hairy hand)
Reliance Damages Pre-on Hand 1500 – 500 (hairy hand) + 500 Fees

P. 47 Cabinet事件
Remove and install cabinet
Unilateral Contract
Not governed by U.C.C.

■キャビネット事件における各損害賠償請求の分類
Net Loss, countertops, laminate = reliance damages (change position) spending money to manufacture cabinets
Travel expenses, Storage costs of the cabinets = Incidental to the GC’ breach
Administrative Time = Salary: would have earned without breach / incidental damages but, Rest Dとして議論することも可能かもしれない。
Lost Profits = Expectation damages 利益率２６パーセントは高すぎ。