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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 112777
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I entered into an agreement trade . Unfortunately,

Customer Question

I entered into an agreement for a trade for services. Unfortunately, the party I bartered with as not performed properly.
Therefore, I recently filed a small claims court action against the individual. I am looking for legal precedents that I can bring to court next week to support my request for cash in lieu of non-performance. Can you help me, or directly to a resource?
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
It is breach of contract, regardless of whether or not your contract was for payment of money or barter for service. If he is not performing, the court will first order specific performance and you could still ask for the value of the services if specific performance is no longer available or they will not perform and this depends on your agreement if it is in writing with regard to non-performance damages.
Your choices for case law research for your state are limited without paying for access (westlaw and lexisnexis require payment for access unless you go to your local court library where they have free access). You can research the cases in your state for barter contracts at http://www.findlaw.com.
In a breach of contract case, which this is, the non-breaching person is entitled to specific performance under the contract or the actual damages incurred as a result of the breach.
Customer: replied 1 year ago.
I understood prior to asking the question that this is a breach of contract. As stated in my question, I need at least
a couple of precedents to cite in small claims court. Thank you, ***** ***** ***@******.***
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
I have no idea of even what state you are in, as you never told us, so I could not even begin to try to help with providing a case to get you started. Also, you asked if we could do the research, which is beyond the scope of this service, or provide you a resource, which I did do above in my answer.
Customer: replied 1 year ago.
Sorry - North Carolina
Customer: replied 1 year ago.
I also checked the resource you provided but could find nothing that applied to case law, or directed me to precedents.
I will be happy to do the research if you can direct me. Thank you
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
The court treats a contract for barter no differently than any other contract. The services bartered have a cash value. It is also an unfair and deceptive trade practice under NC law to accept services for barter and not to perform the other end of the deal. To establish a prima facie claim for unfair trade practices under NC law, you must show: (1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, N.C. Gen.Stat. § 75-1.1, and (3) the act proximately caused injury to plaintiff. See: Pleasant Valley Promenade v. Lechmere, Inc., 120 N.C.App. 650, 664, 464 S.E.2d 47, 58 (1995). "`[T]he unfair and deceptive acts and practices forbidden by G.S. 75-1.1(a) are those involved in the bargain, sale, barter, exchange or traffic.'" Cameron v. New Hanover Memorial Hospital, 58 N.C.App. 414, 444-45, 293 S.E.2d 901, 919 (1982) (quoting Edmisten, Attorney General v. Penney Co., 292 N.C. 311, 316-17, 233 S.E.2d 895, 899 (1977)), appeal dismissed, cert. denied, 307 N.C. 127, 297 S.E.2d 399 (1982). The UDTPA is intended to apply "`"to dealings between buyers and sellers at all levels of commerce."'" ***** ***** Corp. v. Carter, 351 N.C. 27, 32, 519 S.E.2d 308, 311 (citations omitted), reh'g denied, 351 N.C. 191, 541 S.E.2d 716 (1999). This Court has held that "it is not necessary for the plaintiff to show fraud, bad faith, deliberate or knowing acts of deception, or actual deception," but "plaintiff must . . . show that the acts complained of possessed the tendency or capacity to mislead, or created the likelihood of deception." Overstreet v. Brookland, Inc., 52 N.C.App. 444, 452-53, 279 S.E.2d 1, 7 (1981).
Thus, it is under regular breach of contract case law. "The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract." Branch v. High Rock Lake Realty, Inc., 151 N.C. App. 244, 250, 565 S.E.2d 248, 252 (2002). Damages for breach of contract may include loss of prospective profits where the loss is the natural and proximate result of the breach. To recover lost profits, the claimant must prove such losses with "reasonable certainty." Although absolute certainty is not required, damages for lost profits will not be awarded based on hypothetical or speculative forecasts. See: McNamara v. Wilmington Mall Realty Corp., 121 N.C. App. 400, 466 S.E.2d 324 (1996)
Customer: replied 1 year ago.
Thank you for these citations but unfortunately they will not help me. We are not talking about unfair trade practices in this case. THIS IS ABOUT NOT PROVIDING BARTER SERVICES ON A TIMELY BASIS, AS WELL AS SOME SERVICES THAT WERE INCOMPETENTLY PERFORMED. THEREFORE , I AM SUING FOR THE REMAINING BALANCE OF BARTER SERVICES DUE - IN CASH - RATHER THAN SERVICES. I believe this is straight case of compensation. The dentist and I had a signed agreement which ended up with her owing me $15,000 for services I fulfilled. She has provided approximately $8,000 in dental services which included long delays between treatments and two teeth extracted which were unnecessary and will now require implants. As a result I have no faith in this dentist to perform future procedures and want the balance of $7,000 due in cash - not services. This should better explain the nature of precedents I am looking for.
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your reply.
Did you read the second set of cases? The second cases were about breach of contract and that is what you have to prove. There are no specific NC cases that specifically deal with this type of barter, they are all based on the general breach of contract which is the second set of cases I provided above in addition to the unfair and deceptive practices (and we can differ on opinion, but if the dentist provided less than the same value of services and they agreed to provide more it is also unfair and deceptive practices as well as breach of contract).