CV2101 Issues in a breach of contract case.

[Name of plaintiff] claims that [he] had a contract with [name of defendant] for [list purpose or description of the contract]. [Name of plaintiff] also claims that [name of defendant] breached the contract by not performing [his] obligations and that [name of plaintiff] has been damaged as a result. [Name of plaintiff] wants [name of defendant] to pay [him] money to compensate [him] for the damages [he] claims to have suffered.

[Name of defendant] denies [name of plaintiff]’s claims and in [his] defense claims that [list affirmative defenses].

MUJI 1st Instruction

26.1

CV2102 Elements for breach of contract.

In order to recover damages, [name of plaintiff] must prove each of these four things:

(1) that there was a contract between [name of plaintiff] and [name of defendant];

(2) that [name of plaintiff] did what the contract required [him] to do, or that [he] was excused from performing [his] contract obligations;

(3) that [name of defendant] breached the contract by not performing [his] obligations; and

(4) that [name of plaintiff] was damaged because [name of defendant] breached the contract.

References

Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 14, 20 P.3d 388, 392.

MUJI 1st Instruction

26.1

CV2103 Creation of a contract.

You must decide whether [name of plaintiff] and [name of defendant] had a contract. A contract is an agreement between two or more parties. It can be either oral or written, or a mixture of both.

To create a contract, what the parties have promised to do for each other has to be spelled out well enough that they can tell what it is they have each promised to do for the other. If you cannot tell what it is they have promised to do for each other, then there is no contract.

References

Glacier Land Co., L.L.C. v. Claudia Klawe & Associates, L.L.C., 2006 UT App 516, 154 P.3d 852.
Golden Key Realty, Inc. v. Mantas, 699 P.2d 730 (Utah 1985).

MUJI 1st Instruction

26.2; 26.3

Committee Notes

A contract also requires consideration, which is conceptually different for bilateral and unilateral contracts. Instruction CV2107, Consideration should be read in conjunction with this instruction if the contract at issue is a bilateral contract.


CV2104 Offer.

To create a contract, the parties have to agree on the terms of the contract. Whether they have agreed on the terms of the contract depends on whether [party’s name] made an offer that was accepted by [other party’s name].

A party makes an offer when [he] invites the other party to accept [his] terms in such a way that the party accepting the offer realizes that if [he] accepts the terms, both parties will become obligated to each other. The terms of the offer have to be clear and definite.

All of the important terms of the offer have to be accepted unconditionally. If the accepting party accepts some terms of the offer, but not others, or proposes different or additional terms, this becomes a counteroffer which then must be accepted unconditionally by the other party before a contract is formed.

References

DCM Investment Corp. v. Pinecrest Investment Co., 2001 UT 91, ¶ 12, 34 P.3d 785, 788-89.
Nunley v. Westgates Casing Services, Inc., 1999 UT 100, ¶ 26, 989 P.2d 1077, 1086 (citing Engineering Assoc. v. Irving Place Assoc., 622 P.2d 784, 787 (Utah 1980)).
Cal Wadsworth Construction v. City of St. George, 898 P.2d 1372 (Utah 1995).
Equitable Life & Cas. Ins. Co. v. Ross, 849 P. 2d 1187, 1192 (Utah Ct. App. 1993).

MUJI 1st Instruction

26.6; 26.7; 2611

CV2105 Acceptance.

A party accepts an offer when [he] agrees unconditionally to all of the terms. Unless an offer specifies that the terms need to be accepted in a certain manner, acceptance can be shown by something in writing, or orally, or by the conduct of the party who accepts the offer.

In order to decide whether the offer was accepted in this case, ask yourself whether [party’s name] communicated [his] acceptance of the offer so that an objective, reasonable person would understand that a contract had been made.

References

Nunley v. Westgates Casing Services, Inc., 1999 UT 100, ¶ 27, 989 P.2d 1077. 1086.
Cal Wadsworth Construction v. City of St. George, 898 P.2d 1372, 1376 (Utah 1995).
Engineering Assoc. v. Irving Place Assoc., 622 P.2d 784, 787 (Utah 1980).

MUJI 1st Instruction

26.6; 26.10; 26.13; 26.17

CV2106 Withdrawal of offer.

An offer can be withdrawn at any time before it is accepted, but not afterwards.

References

Jones v. New York Life Insurance Co., 15 Utah 522, 50 P. 620 (1897).

MUJI 1st Instruction

26.8

CV2107 Consideration.

To create a contract, each party must promise to do something for the other party in exchange for something of value. This is called “consideration.” It can be a promise to do some act in exchange for the other party’s act. “Value” doesn’t necessarily have to be money, but it can be.

If you find that either party did not agree to give something of value in exchange for the other party’s promise to perform [his] obligations under the contract, then there is no contract.

References

Resources Management Co. v. Weston Ranch & Livestock Co., 706 P.2d 1028 (Utah 1985).
Latimer v. Holladay, 103 Utah 152, 134 P.2d 183 (1943).
Restatement (Second) of Contracts § 71 (1979).

MUJI 1st Instruction

26.14

Committee Notes

This instruction, which applies only to bilateral contracts, is intended to address the concept of consideration in a way that will be plainly understood by jurors. Consideration in a bilateral contract is typically a return promise that is usually express, but may be implied. Consideration for a unilateral contract is not a return promise, but some performance by the promisee. E. Allen Farnsworth, Contracts, § 2.3 (1982).


CV2108 Simultaneous duty to perform.

[Name of plaintiff] and [name of defendant] agree that their contract required both parties to perform their contract obligations at the same time. Consequently, [name of defendant] had to do what [he] promised to do only if [name of plaintiff] [did/was ready to do] what [he] promised to do.

References

Collard v. Nagle Construction, Inc., 2002 UT App 306, ¶ 19, 57 P.3d 603, 607-08.
Century 21 All Western Real Estate and Inv., Inc. v. Webb, 645 P.2d 52, 55-56 (Utah 1982).
Restatement (Second) of Contracts § 238 (1981).

MUJI 1st Instruction

26.31

CV2109 Unspecified time of performance.

When a provision in a contract requires an act to be performed without specifying the time to perform the act, the act must be done within a reasonable time under the circumstances.

Because the contract does not require [name of party] to [describe the act] by a particular date or time, you will need to decide, based on all of the circumstances, what a reasonable date or time was for [name of party] to [describe the act].

References

Coulter & Smith, Ltd. v. Russell, 966 P.2d 852 (Utah 1998).
Bradford v. Alvey & Sons, 621 P.2d 1240, 1242 (Utah 1980).

MUJI 1st Instruction

26.29

CV2110 Substantial performance.

[Name of plaintiff] claims that even though [he] did not do everything exactly as the contract required, [he] should still recover damages from [name of defendant] because [name of defendant] breached the contract. [Name of plaintiff]’s failure to do everything exactly as promised under the contract does not prevent [him] from recovering damages unless

(1) [he] acted in bad faith or

(2) what [he] failed to do was important to fulfilling the purpose of the contract. A failure was not important to fulfilling the purpose of the contract, if it was minor and could be fixed without difficulty.

References

Reliance Ins. Co. v. Utah Dep't of Transp., 858 P.2d 1363, 1370 (Utah 1993).

MUJI 1st Instruction

26.21

CV2111 Occurrence or failure of condition precedent.

[Name of plaintiff] and [name of defendant] agree that their contract did not require [party’s name] to [describe the obligation] unless [describe the condition] occurred. You must decide whether this condition occurred. If it did, then [party’s name] had to [describe the obligation]. If the condition did not occur, then [party’s name] did not have to perform [his] contract obligations.

References

Baxter v. Saunders Outdoor Advertising, Inc., 2007 UT App 340, 171 P.3d 469.

MUJI 1st Instruction

26.26; 26.27

CV2112 Disputed condition precedent.

[Party’s name] claims that [he] did not have to [describe the obligation] unless [describe the alleged condition] occurred first. Based on the evidence, you must decide whether the parties intended that this condition was part of the contract. If you decide that this condition was part of the contract, then [party’s name] had to [describe the obligation] before [other party’s name] was required to perform his contract obligations.

References

Fairbourn Commercial, Inc. v. American Housing Partners, Inc., 2004 UT 54, ¶ 10, 94 P.3d 292, 295.
Young v. Wardley Corp., 2008 UT App 104, ¶ ¶ 10-13, 182 P.3d 412, 415.
State v. Ison, 2006 UT 26, ¶¶ 46-48, 135 P.3d 864, 873.
Baxter v. Saunders Outdoor Advertising, Inc., 2007 UT App 340, 171 P.3d 469.
McBride-Williams v. Huard, 2004 UT 21, ¶ 13, 94 P.3d 175, 178.

MUJI 1st Instruction

26.26; 26.27

Committee Notes

This instruction should only be used concerning a written contract if the court has determined as a matter of law that the contract is ambiguous. Otherwise, the terms of the condition precedent are a matter of law for the court’s determination. This instruction is also appropriate when the terms of an oral or implied contract are disputed.


CV2113 When performance is not excused by other party’s non-performance.

[Name of Party] cannot by a willful act or omission make it difficult or impossible for [name of other party] to perform [describe obligation] and then be excused from performing the obligation because [name of other party] did not perform.

If you decide that [name of party] was willing and able to perform [his] obligation, but that [he] could not perform the obligation because of something that [name of other party] purposely did or failed to do, then [name of party] was excused from performing [his] obligation.

References

Baxter v. Saunders Outdoor Advertising, Inc., 2007 UT App 340, ¶ 15, 171 P.3d 469, 473.
Saunders v. Sharp, 840 P.2d 796, 805-806 (Utah Ct. App. 1992).
Cahoon v. Cahoon, 641 P.2d 140, 144 (Utah 1982).

MUJI 1st Instruction

26.39; 26.40; 26.42; 26.43

CV2114 Promissory estoppel.

[Name of party] claims that [name of other party] must perform as promised even though there was no contract between them. To succeed on this claim, [name of party] must prove that:

(1) [name of other party] was aware of all the important facts;

(2) [name of other party] promised to [describe promise];

(3) [name of other party] knew or should have expected that this promise would lead [name of party] to act or not act;

(4) [name of party] reasonably relied on the promise;

(5) [name of party]’s action or inaction resulted in damages.

References

Nunley v. Westates Casing Services, Inc., 989 P. 2d 1077 (Utah 1999)
Restatement (Second) of Contracts § 90(1981).

MUJI 1st Instruction

26.15

Committee Notes

This instruction uses the term “important facts” rather than “material facts.” The Committee made this change because jurors are more likely to understand the former term, and because Utah case law defines materiality in terms of importance. See, e.g., Yazd v. Woodside Homes Corp., 143 P.3d 283 ¶ 34 (Utah 2006) (“To be material, the information must be ‘important.’”).


CV2115 Breach of the contract.

[Name of plaintiff] claims that [name of defendant] breached their contract. A party to a contract breaches the contract if [he] fails to do what [he] promised to do in the contract.

References

Restatement (Second) of Contracts § 235(1981).

MUJI 1st Instruction

26.22

CV2116 Material breach.

You must decide whether there was a material breach of the contract. A breach is material if a party fails to perform an obligation that was important to fulfilling the purpose of the contract. A breach is not material if the party’s failure was minor and could be fixed without difficulty.

If you decide that [name of defendant] materially breached the contract, then [name of plaintiff] was excused from doing what [he] had promised to do under the contract.

However, if you decide that what [name of defendant] failed to do was not important to fulfilling the purpose of the contract, then [name of plaintiff] was not excused from doing what [he] promised to do in the contract.

References

Eggett v. Wasatch Energy Corp., 2004 UT 28, ¶ 22, 94 P.3d 193, 199.
Polyglycoat Corp. v. Holcomb, 591 P.2d 449, 451 (Utah 1979).
Black’s Law Dictionary (8th ed. 2004) (defining breach of contract).

MUJI 1st Instruction

26.41

CV2117 Partial breach.

If [name of defendant] did some but not all of the things [he] promised to do under the contract, then [name of plaintiff] may recover damages related only to what [name of defendant] failed to do under the contract.

References

Restatement (Second) of Contracts § 236(1981).

MUJI 1st Instruction

26.23; 26.24

CV2118 Anticipatory breach.

When a party is supposed to perform his contract obligations at some time in the future, that party breaches the contract if he indicates to the other party that when the time comes for him to perform his obligations, he will not do so. The contract obligations must be important to fulfilling the purpose of the contract. It is not a breach of the contract if the party merely indicates that he doesn’t want to perform his contract obligations, or that he has misgivings about the contract. Rather, the party must indicate positively and unequivocally that he does not intend to perform his contract obligations.

A party who has indicated that he is not going to perform his contract obligations is allowed to change his mind before his performance is due, but only if he lets the other party know before the other party files a lawsuit or otherwise relies on the statements and significantly changes his position.

[Name of defendant] breached the contract if you find that [he]

(1) made statements that could be reasonably interpreted to mean that he positively and unequivocally refused to perform his contract obligations, and

(2) did not change his mind and notify [name of plaintiff] before [name of plaintiff] either filed a lawsuit or otherwise relied on the statements and significantly changed his position.

References

Cobabe v. Stanger, 844 P.2d 298, 303 (Utah 1992).
Kasco Services Corp. v. Benson, 831 P.2d 86, 89 (Utah 1992).
Hurwitz v. David K. Richards & Co., 436 P. 2d 794 (Utah 1968).
Scott v. Majors, 980 P. 2d 214, 218 (Utah Ct. App. 1999).
OLP, LLC v. Burningham, 2008 UT App 173, ¶¶ 43-44, 185 P.3d 1138, 1149.
Amoco Oil Co. v. Premium Oil Co., 313 F.Supp. 2d 1233, 1238 (D. Ut. 2004).
Lantec v. Novell, 306 F.3d 1003, 1014 (10th Cir. 2002).
Restatement (Second) of Contracts §§250, 253(1981).
Restatement (Second) of Contracts § 319(1981).

MUJI 1st Instruction

26.35; 26.36; 26.37; 26.38

Committee Notes

The doctrine of anticipatory breach is not applicable to unilateral contracts. Greghuhn v. Mutual of Omaha Ins. Co., 461 P.2d 285 (Utah 1969).


CV2119 Implied covenant of good faith and fair dealing.

All contracts contain an unwritten or implied promise that the parties will deal with each other fairly and in good faith. This means that [name of plaintiff] and [name of defendant] have promised not to intentionally do anything to injure each other’s right to receive the benefits of the contract. To decide if [name of defendant] violated this unwritten promise, you should consider whether [his] actions were consistent with the agreed common purpose and justified expectations of [name of plaintiff] in light of the contract language and the dealings between and conduct of the parties.

There are some limits to this unwritten promise that you need to keep in mind.

First, this unwritten promise between the parties to deal fairly with each other and in good faith does not establish new, independent rights or duties that [name of plaintiff] and [name of defendant] did not agree to.

Second, this unwritten promise does not create rights and duties that are inconsistent with the actual terms of the contract.

Third, this unwritten promise does not require either party to use a contract right in a way that will be harmful to themselves simply to benefit the other party.

Finally, you cannot use this unwritten promise to achieve an outcome that you believe is fair but is inconsistent with the actual terms of the contract.

If you find that [name of defendant] violated this unwritten promise to deal fairly and in good faith, then [name of defendant] breached the contract.

References

Young Living Essential Oils, LC, v. Marin, 2011 UT 64
Mark Technologies Corp. v. Utah Resources International, Inc., 2006 UT App 418, ¶ 7, 147 P.3d 509, 512.
St. Benedict’s Dev. Co. v. St. Benedict’s Hosp., 811 P.2d 194, 199 (Utah 1991).
Oakwood Village, LLC v. Albertsons, Inc., 2004 UT 101, ¶ 45, 104 P.3d 1226, 1240.

MUJI 1st Instruction

26.30

Committee Notes

The duty of good faith and fair dealing as it applies to insurance contracts is addressed in MUJI 2d, 2400 series.

The committee notes that there has been no judicial definition of “justified expectations.”


CV2120 Accord and satisfaction.

[Name of defendant] claims that [he] did not have to perform [his] [describe old contract obligations] because [he] and [name of plaintiff] had a disagreement about the contract that they resolved by entering into a new contract that replaced the first contract. [Name of defendant] claims that the new contract required [describe the new obligation(s)] and that [he] has fully performed or is performing these obligations.

To succeed on this claim, [name of defendant] must prove that:(1) [name of plaintiff] and [name of defendant] had a dispute about the original contract that they resolved by entering into a new contract; and

(2) [name of defendant] fully performed or is performing [his] obligations under the new contract.

If you decide that [name of defendant] has proved both of these things, then [name of defendant] is released from performing [describe obligations] under the original contract.

References

Cannon v. Stevens School of Business, Inc., 560 P.2d 1383 (Utah 1977).
Stratton v. West States Constr., 440 P.2d 117 (Utah 1968).
Restatement (Second) of Contracts § 281(1981).

MUJI 1st Instruction

26.44

CV2121 Novation.

[Name of defendant] claims that [he] did not need to perform [his] [describe old contract obligations] under the old contract because of a new contract that substitutes [name of new party] who will perform in [his] place,.

To succeed on this claim, [Name of defendant] must prove all of the following:

(1) There was a contract between [name of plaintiff] and [name of defendant].

(2) There is a new contract, agreed to by all of the parties, that replaces the old contract and substitutes the performance of a new party in place of [name of defendant].

(3) [Name of plaintiff] intended to accept the new party as a substitute for [name of defendant] and to release [name of defendant] of [his] obligations under the old contract.

References

First American Commerce Co. v. Washington Mut. Sav. Bank., 743 P.2d 1193, 1195 (Utah 1987).
Horman v. Gordon, 740 P. 2d 1346, 1352 (Utah Ct. App. 1987).
Kennedy v. Griffith, 95 P. 2d 752 (Utah 1939).

MUJI 1st Instruction

26.45

CV2122 Duress.

[Name of defendant] claims that [his] contract with [name of plaintiff] is not binding because [he] was forced to enter into the contract. To succeed on this claim, [name of defendant] must prove that [he] did not intend to enter into the contract, and:

Either [Instruct only on the elements for which there is some evidence.]

(1) [he] was physically forced to enter into the contract by [name of plaintiff or plaintiff’s agent]; or

(2) [he] was influenced to enter into the contract by an improper threat by [name of plaintiff or plaintiff’s agent] that left [him] no reasonable alternative but to agree; or

(3) [he] was influenced to enter into the contract by an improper threat by [someone other than plaintiff or plaintiff’s agent] that left [him] no reasonable alternative but to agree. This, however, will not relieve [name of defendant] from the contract if [name of plaintiff] in good faith and without reason to know of the improper threat either gave up something of value or relied on the contract in a significant way.

References

Andreini v. Hultgren, 860 P.2d 916 (Utah 1993).
Brinton v. IHC Hospitals, Inc., 973 P.2d 956 (Utah 1998).
Restatement (Second) of Contracts §§ 174-176(1981).

MUJI 1st Instruction

26.20

CV2123 Improper threat.

For purpose of the instruction I just read, a threat is “improper” if [use only those relevant to the case] what was threatened is:

(1) a crime [identify the criminal violation and, if necessary, the elements thereof] or a tort [identify the tort and, if necessary, the elements thereof], or the threat itself would be a crime or a tort if it resulted in obtaining property;

(2) a criminal prosecution;

(3) a lawsuit and the threat is made in bad faith, or

(4) a breach of the unwritten or implied promise to deal fairly and in good faith in a contract with the recipient.

A threat is also “improper” if [use only those relevant to the case] the resulting exchange is not on fair terms, and:

(1) the threatened act would harm the recipient and would not significantly benefit the party making the threat,

(2) the effectiveness of the threat in influencing the agreement is significantly increased by prior unfair dealing by the party making the threat, or

(3) what is threatened is otherwise a use of power for illegitimate ends.

References

Andreini v. Hultgren, 860 P.2d 916 (Utah 1993).
Brinton v. IHC Hospitals, Inc., 973 P.2d 956 (Utah 1998).
Restatement (Second) of Contracts §§ 174-176(1981).

MUJI 1st Instruction

26.20

Committee Notes

Counsel are advised to consult the case law and Restatement (Second) of Contracts §§174-176 and to tailor this instruction to the specific facts and circumstances of the case.


CV2124 Fraudulent inducement.

[Name of defendant] claims that no contract was created because [he] was induced to enter into the contract by fraud. To succeed on this claim, [name of defendant] must prove all of the following by clear and convincing evidence:

(1) [Name of plaintiff] made the following representation: [insert the representation];

(2) The representation was about a presently existing fact that was important;

(3) The representation was false and [Name of plaintiff] either knew that the representation was false or made the representation recklessly without sufficient knowledge upon which to base the representation;

(4) [Name of plaintiff] made the representation to induce [name of defendant] to agree to the contract

(5) [Name of defendant] reasonably relied on this representation without knowledge of its falsity;

(5) [Name of defendant] entered into the contract;

(6) [Name of defendant] would not have entered into the contract if [he] had known that the representation was not true.

References

Armed Forces Ins. Exch. v. Harrison, 2003 UT 14, ¶ 16, 70 P.3d 35, 40.

CV2125 Impossibility/Impracticability.

[Name of defendant] claims that [his] performance under the contract was made impossible or highly impracticable by an unforeseen supervening event.

“Highly impracticable” means that performance under the contract can be done only at an excessive and unreasonable cost.

A “supervening event” is an event that creates a major change in the expected circumstances.

[Name of defendant] makes this assertion based on the following circumstances:

To prevail on this claim defendant must show:

[Insert description of circumstances, such as death of essential participant, destruction of essential property, unforeseen change of law, act of God, etc.]

If you decide that [name of the defendant] has proved these circumstances just described are a supervening event, unforeseen at the time the contract was entered into and occurred through no fault of [name of defendant] and that the circumstances rendered [name of defendant]’s performance of the contract impossible or highly impracticable, then [name of defendant]’s obligations under the contract are excused.

References

Holmgren v. Utah-Idaho Sugar Co., 582 P.2d 856, 861 (Utah 1978).
Commercial Union Associates v. Clayton, 863 P.2d 29, 38 (Utah Ct. App. 1993).

CV2126 Frustration of purpose.

[Name of defendant] claims that [his] performance under the contract is excused because of the following circumstances:

[Insert description of circumstances which frustrated that purpose.]

To determine if defendant is excused from performance under the contract, you must decide:

(1) the original purpose of the contract contemplated by the parties;

(2) whether the circumstances just described are a supervening event, unforeseen at the time the contract was entered into;

(3) whether the circumstances occurred through no fault of [name of defendant]; and

(4) whether the new circumstances have made the purpose of the contract useless.

References

Castagno v. Church, 552 P.2d 1282 (Utah 1976).
Diston v. EnviroPak Medical Products, Inc., 893 P.2d 1071 (Utah Ct. App. 1995).

CV2127 Substantive unconscionability.

[Name of party] claims that the contract [or, alternatively, the following terms of the contract (list terms)] is unenforceable because it is substantively unconscionable.

Substantive unconscionability focuses on the terms of the contract. It requires you to examine the relative fairness of the contract at the time it was entered into. Even if a contract is unreasonable or more advantageous to one party, the contract, without more, is not unconscionable. Rather, in order to find that the contract [or contract terms] is substantively unconscionable, you must find that [name of party] proved the following by clear and convincing evidence:

(1) That the contract terms are so one-sided as to oppress or surprise an innocent party, or

(2) That the contract terms result in an overall imbalance in the parties’ obligations and rights that is inconsistent with accepted customs and business practices at the time and place the contract was made.

References

Commercial Real Estate v. Comcast, 2012 UT 49.
The Cantamar, L.L.C. v. Champagne, 2006 UT App 321, ¶¶ 31-36, 142 P.3d 140, 151-52.
Ryan’s v. Dan’s Food Stores, Inc., 972 P.2d 395, 402 (Utah 1998).
Sosa v. Paulos, 924 P.2d 357 (Utah 1996).
Equitable Life & Cas. Ins. Co. v. Ross, 849 P.2d 1187, 1190 (Utah Ct. App. 1993).
Klas v. Van Wagoner, 829 P.2d 135 (Utah Ct. App. 1992).
Resource Management Co. v. Weston Ranch & Livestock Company, Inc., 706 P.2d 1028 (Utah 1985).

CV2128 Procedural unconscionability.

[Name of party] claims that the contract is unenforceable because it is procedurally unconscionable.

Procedural unconscionability focuses on the negotiation of the contract and the circumstances of the parties. In order to succeed on this claim, [name of party] must prove by clear and convincing evidence that at the time the contract was entered into, [name of other party] had an unfairly superior bargaining position and that he overreached in his negotiation with [name of party]. You may consider the following circumstances, keeping in mind that the purpose of procedural unconscionability is to prevent oppression and unfair surprise:

(1) whether each party had a reasonable opportunity to understand the terms and conditions of the agreement;

(2) whether there was a lack of opportunity for meaningful negotiation;

(3) whether the agreement was printed on a duplicate or boilerplate form drafted solely by the party in the strongest bargaining position;

(4) whether the terms of the agreement were explained to the weaker party;

(5) whether the [aggrieved party] had a meaningful choice or instead felt compelled to accept the terms of the agreement;

(6) whether the stronger party employed deceptive practices to hide key contractual provisions.

(7) [describe other circumstances raised by the evidence that show procedural unconscionability.]

References

The Cantamar, L.L.C. v. Champagne, 2006 UT App 321, ¶¶ 31-36, 142 P.3d 140, 151-52.
Ryan’s v. Dan’s Food Stores, Inc., 972 P.2d 395, 402 (Utah 1998).
Sosa v. Paulos, 924 P.2d 357 (Utah 1996).
Equitable Life & Cas. Ins. Co. v. Ross, 849 P.2d 1187, 1190 (Utah Ct. App. 1993).
Klas v. Van Wagoner, 829 P.2d 135 (Utah Ct. App. 1992).
Resource Management Co. v. Weston Ranch & Livestock Company, Inc., 706 P.2d 1028 (Utah 1985).

Committee Notes

The court should instruct on the circumstances showing procedural unconscionability that are supported by the evidence. Case law suggests that “While a determination of substantive unconscionability may by itself lead to our concluding the contract was unconscionable, procedural unconscionability alone ‘rarely render[s] a contract unconscionable.’” Ryan’s v. Dan’s Food Stores, Inc., 972 P. 2d 395, 402 (Utah 1998); see also, Resource Management Co. v. Weston Ranch & Livestock Company, Inc., 706 P.2d 1028, 1043 (Utah 1985). Accordingly, the parties may wish to include separate interrogatories on the verdict form.


CV2129 Mutual mistake.

[Name of defendant] claims that the contract is not enforceable because both parties were mistaken about [describe mutually mistaken important fact].

For [name of defendant] to succeed on this claim, you must find that [he] proved the following by clear and convincing evidence:

(1) that at the time the contract was entered into both [name of defendant] and [name of plaintiff] were mistaken about these facts, and

(2) that these facts were a basic assumption or an important fact upon which they based their bargain.

References

England v. Horbach, 944 P.2d 340 (Utah 1997).
Despain v. Despain, 855 P.2d 254 (Utah Ct. App. 1993).
Robert Langston Ltd. v. McQuarrie, 741 P.2d 554 (Utah Ct. App. 1987).
Restatement (Second) of Contracts §§ 151, 152 (1979).

MUJI 1st Instruction

26.18

Committee Notes

Mutual mistake of fact makes a contract voidable, and is a basis for equitable rescission. See Robert Langston Ltd. v. McQuarrie, 741 P.2d 554, 557 (Utah Ct. App. 1987). To reform a contract due to a mutual mistake in the integration, the party claiming mistake must prove “that the minds of both parties had been in agreement on a term which they mutually failed to incorporate into the writing.” R.L.Warner v. Sirstens, 838 P. 2d 666, 669 (Utah Ct. App. 1992)(quoting Ingram v. Forrer, 563 P.2d 181, 183 (Utah 1977).


CV2130 Unilateral mistake.

[Name of defendant] claims the contract is not enforceable because [he] was mistaken about [insert description of unilateral mistake of fact].

For [name of defendant] to succeed on this claim, you must find that [he] has proved each of the following by clear and convincing evidence:

(1) [name of name of defendant] was mistaken about [insert description of mistake];

(2) [his] mistake has such serious consequences that to enforce the contract would be unconscionable;

(3) the matter about which the mistake was made related to an important feature of the contract;

(4) the mistake occurred even though [name of defendant] made a reasonable effort to understand the circumstances about which he was mistaken; and

(5) [name of plaintiff] can be put back in the same position [he] was in before the contract, losing only the benefit of the bargain.

References

Guardian State Bank v. Stangl, 778 P.2d 1, 4-5 (Utah 1989).
Equitable Life & Casualty Insurance Co., 849 P.2d 1187 (Utah Ct. App. 1993).
Klas v. Van Wagoner, 829 P.2d 135 (Utah Ct. App. 1992).

MUJI 1st Instruction

26.19

Committee Notes

When giving this instruction the court should also read Instruction CV2127, Substantive Unconscionability and/or Instruction CV2128, Procedural Unconscionability, as appropriate.


CV2131 Third-party beneficiary.

[Name of plaintiff] claims that [he] is a third party beneficiary of a contract between [list parties to the contract]. To be a third party beneficiary of a contract, [name of plaintiff] must prove:

(1) that the parties to the contract intended that [name of plaintiff] benefit from the contract, and

(2) the intention of the parties to benefit” the third party must be clear from the terms of the contract.

References

Wasatch Bank v. Surety Ins. Co., 703 P.2d 298 (Utah 1985).
Tracy Collins Bank & Trust v. Dickamore, 652 P.2d 1314 (Utah 1982).
Rio Algom Corp. v. Jimco Ltd., 618 P.2d 497 (Utah 1980).

MUJI 1st Instruction

26.46

CV2132 Assignment.

[Name of party/assignee] claims that [assignor’s name] assigned to [assignee’s name] [assignor’s name]’s right under the contract to [specify contractual right assigned]. An assignment transfers a party’s rights under a contract to another.

[Assignor’s name] was permitted to assign [her] rights under the contract to [Assignee’s name] either orally or in writing unless such an assignment was prohibited by the contract or unless the assignment makes important changes to the duties, risks, or value of the contract to [Other Party].

If you find [name of party/assignee] has proved that [assignor’s name] assigned his rights under the contract to [assignee’s name], then [assignee’s name] had the right to demand that [name of other party] do [specify contractual right assigned].

References

Winegar v. Froerer Corp., 813 P.2d 104, 107 (Utah 1991).
First American Commerce Co. v. Washington Mut. Sav. Bank, 743 P.2d 1193, 1194 (Utah 1987).
Restatement (Second) of Contracts §§ 317, 324, 336 (1981).

Committee Notes

This instruction addresses the assignment of contract rights, only. It does not address the delegation of duties or the assumption of the assignor’s liabilities, the latter requiring proof by clear and convincing evidence. Winegar v. Froerer Corp., 813 P.2d 104 (Utah 1991).


CV2133 Modification.

[Name of party] claims that [he] and [name of other party] changed their contract. To change a contract, both parties must agree on the new terms. If you find that both parties agreed to change the contract, then any old terms that conflict with the new terms cannot be enforced.

References

R.T. Nielson Co. v. Merrill Cook, 2002 UT 11, ¶ 13 n.4, 40 P.3d 1119, 1124.
Richard Barton Enterprises, Inc. v. Tsern, 928 P.2d 368, 373 (Utah 1996).
Copper State Leasing Co. v. Blacker Appliance & Furniture Co., 770 P.2d 88, 90 (Utah 1988).
Restatement (Second) of Contracts § 149 (1981).

Committee Notes

Counsel and the court should consider the statute of frauds according to the particular circumstances of the case. “[I]f an original agreement is within the statute of frauds, a subsequent agreement which modifies the original agreement must also satisfy the statute of frauds to be enforceable.” In re Olympus Construction, LC, 2007 UT App 361, ¶ 11, 173 P.3d 192, cert. granted by Matthews v. Olympus Co., 186 P.3d 957 (Utah Feb. 14, 2008).


CV2134 Abandonment.

[Name of party] claims that [he] and [name of other party] abandoned their contract. To succeed on this claim [name of party] must prove by clear and convincing evidence either that:

(1) the parties agreed to abandon their contract; or

(2) the parties acted as if the contract no longer existed.

If you find that the parties abandoned their contract, then the parties have no further obligation to do what they promised to do.

References

Parduhn v. Bennett, 2002 UT 93, ¶ 11, 61 P.3d 982, 985.
Timpanogos Highlands, Inc. v. Harper, 544 P.2d 481, 484 (Utah 1975).
Restatement (Second) of Contracts § 283 (1981).

CV2135 Expectation damages - General.

If [name of party] is damaged by a breach of a contract, then [he] has a right to recover damages that follow naturally from the breach as follows:

(1) the loss of the benefits from the contract caused by [name of party]’s breach; minus,

(2) any cost or other loss that [name of party] has avoided by not having to perform.

References

Black v. Allstate Ins. Co., 2004 UT 66, ¶28, 100 P.3d 1163, 1170.
Ford v. Am. Express Fin. Advisors, Inc., 2004 UT 70, ¶ 39, 98 P.3d 15, 26.
Mahmood v. Ross (In re Estate of Ross), 1999 UT 104, ¶ 19, 990 P.2d 933, 937.
Thurston v. Workers Comp. Fund of Utah, 2003 UT App 438, ¶¶ 21-22, 83 P.3d 391, 397.
Restatement (Second) of Contracts § 347 (1981).

MUJI 1st Instruction

26.48

Committee Notes

This instruction is intended to be read in conjunction with Instruction CV2136, Consequential damages where appropriate.


CV2136 Consequential damages.

If a party recovers damages for the benefits [he] expected to receive from the contract, then that party is also entitled to recover “consequential” damages caused by [name of defendant]’s breach.

Consequential damages are those losses or injuries reasonably within the contemplation of the parties, that is, they could have considered them or reasonably foreseen them, at the time the contract was made.

In order to decide whether a loss or an injury was foreseeable at the time the contract was made, you should examine the nature and language of the contract and the reasonable expectations of the parties. A loss may be foreseeable because it follows from the breach

(1) in the ordinary course of events, or

(2) as a result of special circumstances, beyond the ordinary course of events, that [name of defendant] had reason to know.

References

McCleve Properties v. Hult Family, 2013 UT App 185 (direct and consequential damages distinguished).
Mahan v. UNUM Life Ins. Co. of Am., 2005 UT 37, ¶ 17, 116 P.3d 342, 346.
Black v. Allstate Ins. Co., 2004 UT 66, ¶ 28, 100 P.3d 1163, 1170.
Berube v. Fashion Centre, 771 P.2d 1033, 1050 (Utah 1989).
Gardiner v. York, 2006 UT App 496, ¶ 14, 153 P.3d 791, 795.
Restatement (Second) of Contracts § 351 (1981).

MUJI 1st Instruction

26.51

CV2137 Reliance damages.

Instead of damages based on the benefits [name of plaintiff] expected to receive from the contract, [name of plaintiff] has a right to recover the reasonable expenditures that [name of plaintiff] would have sustained if [name of defendant] had performed the contract as agreed. It is up to [name of defendant] to prove with reasonable certainty the loss [name of plaintiff] would have sustained.

References

Ranch Homes v. Greater Park City Corp., 592 P.2d 620, 624 (Utah 1979).
Skanchy v. Calcados Ortope SA, 952 P.2d 1071, 1078 (Utah 1998).
Restatement (Second) of Contracts § 349 (1981).

MUJI 1st Instruction

26.49

CV2138 Damages for non-performance.

[Name of plaintiff] is entitled to recover damages from [name of defendant] if [name of plaintiff] did everything [he] had promised to do under the contract and [name of defendant] failed to do what [he] had promised to do under the contract.

References

Restatement (Second) of Contracts § 235 (1981).
Smith v. Grand Canyon Expeditions Co., 2003 UT 57, ¶ 27, 84 P.3d 1154, 1161.

MUJI 1st Instruction

26.47

Committee Notes

This instruction should be used only in the absence of any defenses.


CV2139 Mitigation and avoidance.

[Name of plaintiff] had a duty to mitigate, that is, to minimize or avoid, the damages caused by the breach. [Name of plaintiff] may not recover damages that [he] could have avoided without undue risk, burden or humiliation. Likewise, [name of plaintiff] may not recover the damages for losses that were caused by or made worse by [his] own action or inaction.

[Name of plaintiff] has a right to recover damages if [he] has made a reasonable but unsuccessful effort to avoid loss.

[Name of plaintiff] had no obligation to mitigate [his] damages by taking action which [name of defendant] refused to take. If [name of defendant] had the primary responsibility to perform [list the act] and had the same opportunity to perform [the act] and the same knowledge of the consequences as [name of plaintiff], [name of defendant] cannot succeed in a claim that [name of plaintiff] failed to perform [the act].

References

Commercial Real Estate v. Comcast, 2012 UT 49.
Alexander v. Brown, 646 P.2d 692 (Utah 1982).
Mahmood v. Ross (In re Estate of Ross), 1999 UT 104, ¶ 31, 990 P.2d 933, 940.
Covey v. Covey, 2003 UT App 380, ¶ 30, 80 P.3d 553, 561.
Restatement (Second) of Contracts § 350 (1981).

MUJI 1st Instruction

26.50

CV2140 Damages. Reasonable certainty.

Damages are only recoverable for loss in an amount that the evidence proves with reasonable certainty, although the actual amount of damages need not be proved with precision. Any alleged damages which are only remote, possible or a matter of guess work are not recoverable.

References

Sunridge Development v. RB&G Engineering, 2013 UT App 146, ¶¶ 13-14 (loss of profits).
Traco Steel Erectors, Inc. v. Comtrol, Inc., 2007 UT App 407, ¶ 58, 175 P.3d 572, 582.
Sawyers v. FMA Leasing Co., 722 P.2d 773, 774 (Utah 1986).
Winsness v. M.J. Conoco Distributors, Inc., 593 P.2d 1303, 1305 (Utah 1979).
Graham v. Street, 2 Utah 2d 144, 149, 270 P.2d 456, 459 (Utah 1954).
Schwartz v. Adair, 2007 UT App 75 (unpublished opinion).
Restatement (Second) of Contracts § 352 (1981).

MUJI 1st Instruction

26.52

CV2141 Nominal damages.

A party damaged by the other party’s breach of the contract has a right to recover the damages caused by the breach. However, if [name of plaintiff] has not proved any actual or substantial damages caused by the breach, or if [he] has not proved the amount of damages, then you may award as damages a small or nominal sum such as one dollar.

References

Bair v. Axiom Design, L.L.C., 2001 UT 20, ¶ 18. 20 P.3d 388, 392-93 (2001).
Turtle Management v. Haggis Management, 645 P.2d 667, 670 (Utah 1982).
Snyderville Transp. Co. v. Christiansen, 609 P.2d 939, 941-942 (Utah 1980).
Restatement (Second) of Contracts § 346 (1981).