Contracts - Remedies for an Unexcused NonPerformance Flashcards
Three types of nonmonetary remedy for unexcused nonperformance?
(1) Specific performance/injunction
(2) Seller’s reclamation from an insolvent buyer of goods
(3) Entrustment (need to look up)
What are the three situations where you can get specific performance/injunction for nonperformance?
Equitable remedy - Look for adequacy of remedy at law or unclean hands, or other parties’ equities
(1) Contracts for SALE of real estate.
(2) Contract for the sale of unique goods (i.e. antiques, art, custom products)
(3) Contract for services - No specific performance available (against public policy), possible injunctive relief.
When can a seller reclaim proper from an insolvent buyer of goods?
(i) Buyer must have been insolvent at the time that it received the goods;
(ii) Seller demands return of goods within 10 days of receipt (10 day rule becomes a reasonable time rule if before delivery, there had been an express representation of solvency by the buyer); and
(iii) buyer still has goods at time of demand.
What are the key words for essay on money damages for breach of contact?
(1) Compensate
(2) Expectation interest
(3) Expect no breach
(3) Same dollar position as if no breach
Can a seller with significant volume recover if a buyer breaches and they sell the item to someone else?
Yes, they can recover provable lost profit. Not necessarily the sale price.
What else can a party receive if the counterparty breaches in addition to expectation damages?
(1) Incidental damages - costs incurred in dealing with the breach, such as costs of storing rejected goods in sale of goods. [ALWAYS RECOVERABLE]
(2) Plus forseeable consequential (special) damages.
Limited to damages arising from P's special circumstances and recovery of these damages is limited to situations in which D had reason to know of these special circumstances at the time of the contract.
What are two limitations on P’s potential recovery?
(1) Avoidable damages - no recover for damages that could have been avoided without undue burden on P. [Burdens of pleading and proof on D]
(2) No recovery for damages that cannot be established with reasonable certainty. [Reliance recovery is an alterantive.
What test applies to determining if liquidated damages are too high?
(1) Damages were difficult to forecast at time contract was made
(2) Provision is a reasonable forecast.
* A single liquidated damages amount is likely not to be reasonable.
