Re: Painter Hypo

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On 12/05/08, Renn wrote:
> I entered a contract for the commission of a portrait as a
> wedding gift to my sister and I wanted to sample the
> artist's work first, so I told him to sketch my sister and
> that we would decide by July 1. The contract said he would
> be entitled to $1000 if we liked his work enough to order a
> fully painted piece and that we would notify him if we
> didn't like it by July 1. Otherwise, he would paint and
> deliver the portrait by November 1.
*****
It appears that you entered into a contract for a portrait
with a condition precedent. Your condition precedent is
that you like his work as evidenced by the sketch he has
agreed to do. In return for doing the sketch you have
promised to notify him by July 1 if the condition precedent
is satisfied and, if it is, to go forward with the contract
terms. Here is the tricky part of your hypo. You have
agreed that notice the condition precedent has been
satisfied may be made by your silence. Silence is not
usually a valid form of acceptance or notice. However if
both parties agree ahead of time, without misunderstanding,
that silence is to be a valid form of acceptance or notice,
then it can be. Here silence is agreed to indicate
satisfaction of the condition precedent and it sounds like
you both understood exactly what your silence meant. This
is not unheard of in contracts. Satisfaction is often a
condition precedent to payment and it is common to stipulate
that if satisfaction is not denied within a certain length
of time, performance is fully executed and payment is due.
(e.g., "Try it for 30 days and if not satisfied you pay
nothing." Under these terms after 30 days you are validly
bound by your silence or inaction.) I think your silence
communicated satisfaction of the condition precedent and
bound you to an enforceable contract for painting a portrait.
*****
> My sister realized that she didn't like the sketches on
> July 4th (past the notification date) and we emailed him
> not to bother finishing. He said we didn't notify him in a
> timely enough manner, and continued to work on the
> portrait and mailed it to us anyway.
*****
Parties to a contract are required to "mitigate" their
damages in the case of a breach. Here it looks like the
painter did not attempt to mitigate his damages and
stubbornly continued to incur damages after being notified
of your intent to breach the contract. This would be a very
fact specific determination and we do not have enough facts
in your hypo to determine if mitigation was possible.

Let me know what grade I got on this hypo exam question.
*****
> Now we're stuck with a painting we don't want and he is
> demanding the $1000. What do you suggest? How would a
> court treat our case?

Only sure way to find out is to go to trial.

> I'm thinking the painter is still owed the $1000, in terms
> of expectation damages for his performance, but because he
> continued to work after being notified that we did not want
> the portrait, the $1000 should be reduced by the amount of
> the portrait's worth.

Mitigation of damages is your only real issue for trial.
You may have a viable issue but it could cost you more to
win than you will win. Know what I mean?