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Bollenback v Continental Casualty Company, 1965 Oregan SC

Facts:

P had health insurance and was hospitalized. P had paid premiums on the policy, but D had told P at one time that the policy has lapsed. The D refused to pay P. P elected to rescind the contract

Issue(s):

When can a contract be treated as rescinded or repudiated? What is the proper relief to the plaintiff for rescission of the contract?

Ratio:

In calculation of restitution, P is entitled to recover consideration for which no benefit was received.
**When an insurance contract is rescinded the insured is entitle to recover premiums paid less any benefit they may have received while the contract was in force.
You can only elect rescission or damages, not both.

Analysis:

When one party repudiates a contract or commits a total breach the injured party can:
*Sue for damages.
*Sue for specific performance – to carry out contract.
*Treat the contract as if it as ended and sue for restitution - Rescission.
The breach must be SUBSTANTIAL before a party is justified in rescinding it

Holding:

P able to recover some premiums (after the day D said policy lapsed and P paid premiums)


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