6th issue: Remedies for an unexcused NONperformance Flashcards
what are a parties NONmonetrary remedies (in Rem) when there is a breach (3)
1) specific performance/ injunction
2) sellers RECLAMATION from an insolvent buyer of goods
3) Entrustment
when is specific performance allowed
usually land, b/c all land is unique. Available when
1) no adequate remedy at law and
2) person ha superior equities
- clean hands and he who seeks equity must do equity
when is specific performance for K for sale of goods allowed
when UNIQUE goods
- antiques, art, custom made, or other appropriate circumstances
when is specific performance allowed for K for services
NEVER
-B/C that would create involuntary seritutde
is specific performance for contracts for the sale of services EVER allowed
NO
what is sellers reclamation from an insolvent buyer goods
where seller did not get paid for the sale
what is sellers reclamation from an insolvent buyer goods facts
1) B must be insolvent AT THE TIME THE GOODS RECEIVED and
2) S demands return of goods w/i 10 DAYS of receipt and
3) B still has goods
when does it matter when the B is insolvent for the S reclamation
When B AT THE TIME THE GOODS ARE RECEIVED
how many days does S have to get goods back for reclamation of insolvent b
10 days
- becomes “a reasonable time” of the BEFORE delivery there had been an express representation of solvency of the B
what is entrustment
essentially a bailment. Owner of goods VOLUNTARY leaves the goods for repair, cleaning, or storage with a business that is not only provides that service BUT also sells the goods
what type of store needs to be applied for entrustment to apply
with a business that is not only provides that service BUT also sells the goods
what is the original owners remedy when an entrustment situation
only remedy is CONVERSION action against the business it entrusted with goods
- Cannot go after BFP
what is the policy for measuring damages of breach of K
COMPENSATE the P, not punish the D
opening paragraph for essay dealing with damages
1) COMPENSATE: purpose of money damages is to compensate the P and not punish the D.
2) EXPECTATION: to compensate the P by legally recognized their expectation
3) the protectable expectation is that no breach would occur
4) $ damages MUST put non-breaching party as if there was no breach
the 5 areas where K law is different than real life
1) Settlement of Debt: when due and undisputed, promise to release is NOT consideration
2) leases for 1 year or less: do not need to be in writing
3) written authority to act for someone else: when action is under SOF, need written authority to act on it - equal dignity rule
4) Written evidence K modification: if modification is under SOF than modification must be in writing
5) GR: DUTIES are delegable
what is expectation
expectation means that people who K expect that other person will not breach
1) look to facts for dollar value of performance W/O breach
2) look to facts for dollar amount performance and
3) compare to
how to measure expectation damages
1) look to facts for dollar value of performance W/O breach
2) look to facts for dollar amount performance and
3) compare both to determine amount
generally how to determine the damage amount
1) compensation of P
2) by their expectation: what they would have received if K was not breached
what is the measure of damages if S breaches and B keeps goods
fairmarket value (if perfect) - fair market vale (as delivered) or (cost of repair)
what is the measure of damages if S breaches and S has goods
market price at time of discovery of breach - contract price (or) reasonable replacement price - K price (w/e is greater)
what is the measure of damages if B breaches and keeps goods
K price
what is the measure of damages if B breaches and S has goods
contract price - resale
what is the Lost profits for lost volume seller
where a seller is selling INVENTORY and B breached and they could have made another sale
what word to look for for lost profit for lost volume seller
INVENTORY
what is the damage amount allowed for lost profit for lost volume seller
PROVABLE LOST PROFITS
- No 0 or K price
what are incidental damages
costs incurred in dealing with breach such as cost of storing rejected goods in a sale of goods or finding a replacement in a service K
are incidental damages allowed
ALWAYS allowed
what are consequential damages
SPECIAL damages
when are consequential damages allowed (2 elements )
1) P’s SPECIAL DAMAGES and
2) D HAD REASON to know of these SPECIAL circumstances
3) AT THE TIME of the K
does D need to know of P’s special damages to get consequential damages
YES
when does D need to know of P’s special damages to get consequential damages
AT THE TIME OF THE K
what are the less AVOIDABLE damages rule
No recovery for damages that could have been avoided w/o undue hardship on P
what is avoidable damages
IT IS A DEFENSE for the D. To prove that the P could have avoided damages
if a party continues to perform after the other party breaches what does this mean
they have avoidable damages
what if a party after a breach turns down other COMPARABLE OPPROTUNITES
had duty to avoid damages. needs to be comparable opportunities
what must damages be for them to be allowed
damages must be CERTAIN
- must be REASONABLE CERTAINTY
what to look for when damages are not reasonably certain
1) novel K (not been done before)
2) new activity (new business)
when are reliance damages allowed
when the damages are not reasonable certainty and party gets “out of costs expenses”
what must happen for liqudation damages to be allowed (2) things
1) damages were difficult to forecast AT THE TIME OF K was made and
2) provision is REASONABLE FORECAST
when must damages be hard to determine for liquidated damages
at the time of K’ing
when will liquidated damages not be allowed
when the provision is too high- a penalty
simplified liquidated damages elements
1) where liquidated (provision fixing amount of damages
2) single FIXED #
- most likely a reasonably forecast concern
- If not formula than most likely suspect for reasonable forecast
what is a liquidation damages
K provision fixing amount of damages
what to know for essay of estoppel and reliance
some courts have LIMITED promissory estoppel recovery to reliance damages
in a sale of goods K, can the Seller recover consequential damages?
NO. In a sale of goods, K only a B can recover consequential damages
in a sale of goods K who is the only party that can recover CONSEQUENTIAL damages
BUYER is the only one in a sale of goods K who can recover consequential damages, not seller
what does specific performance not work against
BFP
1) for value
2) w/o knowledge
must a S deliver goods to insolvent B if B will pay cash at delivery
YES.
