20. Non-Monetary Remedies

Question 1

What is required for specific performance?

Answer 1

1) Legal remedy NOT adequate

2) Breach of contract

Question 2

When is specific performance available?

Answer 2

Land sale contracts
- NO damages (NOT adequate due to unique feature of land)

Sale of goods (Art 2)

• Unique/Rare
• Damages would not find substitute performance => Damages would not put innocent party in as good position as performance would have

Service contracts
- Unique/Rare (injunction - non-compete employment)

Existing non-compete covenant

1) Unique services
2) Reasonable covenant (benefitted party’s legitimate interest protection + reasonable geographic scope/location (1-2 years) + not harm public)

Question 3

When is specific performance not available?

Answer 3

Sale of goods (Art 2)
- NOT unique/rare

Service contracts

• NOT unique/rare
• Enforcement difficulties (court would find difficulty supervising performance)
• Involuntary servitude (forcing against one’s will to benefit another by coercion is prohibited by Constitution)

Defences (equitable)

• Laches claim (P delayed action)
• Unclean hands (P guilty of wrongdoing in transaction)
• Sale to BFP (good faith + for value)

Question 4

What are buyer’s remedies for sale of goods?

Answer 4

Cancel/Reject non-conforming goods

Recover ‘identified’ goods (Prepayment)
1) Buyer’s part payment
2) Seller’s failure to sell
3) Seller insolvent within 10 days after receiving part payment
4) Goods for domestic use
=> Buyer recovers identified goods + Seller receives remaining payment

Recover ‘identified’ goods (No security of adequate substitute goods after reasonable efforts)

Specific performance
- Unique/Rare

Resale

• Public sale
• Private sale + Notice re intent to resell to Seller

Question 5

What are seller’s remedies for sale of goods?

Answer 5

Withhold goods

• Buyer fails to pay by delivery date
• Goods sold on credit + Seller discovers Buyer’s insolvency before delivery
• UNLESS Buyer can pay by cash

Recover goods (Buyer’s insolvency)

1) Goods sold on credit
2) Seller discovers Buyer’s insolvency while delivering goods
3) Seller makes written demand to recover goods within 10 days after Buyer receives delivery
- UNLESS Buyer made written notice to Seller of misrepresented solvency within 3 months before delivery

Stop delivery to Buyer (shipped/shared goods)

• Carrier has goods + Seller discovers Buyer’s insolvency
• Carload/Plane/Truckload has goods + Buyer breached contract/Seller has right of assurance)

Force goods on Buyer

• Not resaleable for reasonable price
• Only force goods to original purchase price

Question 6

How can a party assert the right to demand assurance?

Answer 6

1) Prospective inability to perform
- Reasonable grounds
- UNLESS clear inability to perform => Repudiation (NO right to demand assurance)

2) Written request for adequate assurance
- Suspends requesting party’s performance

3) Assurance given within reasonable time after receiving request (30 days)