K remedies

Question 1

3 contract remedies

Answer 1

1) Specific Performance
2) Rescission
3) Reformation

Question 2

specific performance memorize

Answer 2

(old- Joe Bidden) Vice President Is From Delaware

1) V: Validity
2) P: P’s performance
3) I: Inadequacy
4) F: Feasibility
5) D: Defenses

Question 3

general specific performance and whose burden on parts

Answer 3

SP requires the D to perform the terms of the K.

5 part test. First 4 burden on P then last 1 on D

Question 4

first rule for specific performance

Answer 4

VALIDITY

• P must be able to show the K is valid
• court more likely to require the terms of the K are clear and that the consideration is fair.

Question 5

second rule for specific performance

Answer 5

P’s Performance

- P must able able to show that they ALREADY PERFORMED or is READY TO PERFORM

Question 6

second rule of specific performance (time of essence clause)

Answer 6

If the P does not comply with this clause, SP will be unavailable UNLESS

1) P’s tardiness diminenous (not big deal)
2) P would suffer undue hardship
3) D’s loss due to tardiness is slight
4) condition has been waived

Question 7

second rule of specific performance (P’s already performed- marketable title to land)

Answer 7

In a land sale, S must be able to convey marketable title. If the P cannot satisfy this condition, the court will not award SP UNLESS

1) Defiance is minor
2) condition has been waived

-if court does award SP, it will also order a REASONABLE REDUCTION in price to account for deficiency

Question 8

in a SP action for marketable title of land and there is a deficiency but court allows SP what will the court do

Answer 8

it will also order a REASONABLE REDUCTION in price to account for deficiency

Question 9

step 3 for SP

Answer 9

INADEQUACY

- P must be able to show there is no viable remedy alternative. Usually money not good enough

Question 10

common rules for inadequacy

Answer 10

1) damages too speculative
2) D is insolvent
3) breach is continuing/ ongoing
4) subject of K is UNIQUE

Question 11

inadequacy of assessing uniqueness (real property)

Answer 11

Real Property: IS ALWAYS UNIQUE.

• does not matter if the facts say it is the same as others
• Even if B breaches, S can get SP

Question 12

inadequacy of assessing uniqueness (personal property)

Answer 12

Gr: personal property is NOT unique (and damages are adequate)

x/c

1) items is RARE (hard to get on market)
2) item has SPECIAL VALUE TO BUYER
3) item is unique due to MARKET CONDITIONS

Question 13

x/c for uniqueness of GR that personal property is not unique

Answer 13

1) items is RARE (hard to get on market)
2) item has SPECIAL VALUE TO BUYER
3) item is unique due to MARKET CONDITIONS
- ex: oil prices go crazy due to war
- uniqueness is tested at time of litigation

Question 14

step 4 of specific performance

Answer 14

Feasibility
- P must be able to show that is feasible to enforce the K

1) PERSONAL SERVICE K: GR: not available
x/c courts will enforce a covenant not to compete if
(a) services at issue are UNIQUE and
(b) terms of the covenant are reasonable with respect to (1) GEOGRAPHY and (2) DURATION

Question 15

step 4 of specific performance (feasibility of Personal service K)

Answer 15

Gr: SP is NOT AVAILABLE

Question 16

what will courts grant if certain criteria are met for covenants not to compete and what is the steps to consider to grant it or not

Answer 16

1) enforcement for a covenant no to compete is injunction

courts will enforce a covenant not to compete if

(a) services at issue are UNIQUE and
(b) terms of the covenant are reasonable with respect to (1) GEOGRAPHY and (2) DURATION

Question 17

step 4 of specific performance (feasibility of land sale K)

Answer 17

Feasability depends on location of the parties and land
No issue if
1) both parties and land are located w/i forum
2) both parties are located in forum and land outside
3) buyer and the land are w/i the forum but seller is outside

problem if

1) S and the L are w/i the forum but B is outside
- cannot reach the B unless specific jurisdiction

Question 18

step 5 for specific performance

Answer 18

DEFENSES
Equitable defenses
1) unclean hands
2) laches

K defenses

1) mistake
2) misrepresentation
3) SOF

Question 19

once again Specific Performance memorizer

Answer 19

Vice President Is From Delaware

1) V: validity
2) P: P’s performance
3) I: Inadequacy
4) F: Feasibility
5) D: Defenses

Question 20

generally what is rescission

Answer 20

when the original K is VOIDABLE and is rescinded. Any previously rendered performance will be unwound through RESTITUTION

Question 21

what always comes with rescission

Answer 21

restitution

Question 22

steps for rescission

Answer 22

1) Grounds: never deal to begin with
- P must show that there was a defect relating to the FORMATION of the K

2) DEFENSES: normal equitable remedies
- but P’s negligence is NOT a valid defense to rescission

Question 23

examples of grounds for rescission during K formation

Answer 23

1) mistake
2) misrepresentation
3) coercion
4) undue influence
5) lack of capacity
6) failure of consideration
7) illegality

Question 24

grounds for rescission (mutual mistake)

Answer 24

GR: is mutual mistake is available if it relates to a MATERIAL FACT
-material: willingness to buy and purchase price

• GR: rescission is NOT available if the mutual mistake is COLLATERAL

Question 25

grounds for rescission (unilateral mistake)

Answer 25

GR: rescission based on unilateral mistake is NOT AVAILABLE

Question 26

X/C for when grounds for rescission (unilateral mistake) is allowed

Answer 26

1) when the non-mistaken party
a) KNEW or
b) SHOULD HAVE KNOWN of the mistake

2) if the mistaken party would suffer UNDUE HARDSHIP

Question 27

grounds for rescission (misrepresentation)

Answer 27

GR: rescission based on a misrepresentation will be granted if the misrepresentation was

1) material and
2) P relied upon it

Question 28

reformation

Answer 28

court changes the written agreement to the original understanding of the parties

Question 29

reformation steps

Answer 29

1) VALIDITY: P must demonstrate the existence of a valid K

2) GROUNDS:
(a) mutual mistake: if the defect in writing is result of mutual mistake reformation will be granted

(b) unilateral mistake: reformation will be DENIED
x. /c if non-mistaken party KNEW of the mistake, reformation will be granted)
- NOT SHOULD HAVE KNOWN

(b) misrepresentation: if the defect in written agreement is result of misrepresentation, reformation will be GRANTED.
- Regardless if was intentional or innocent

Question 30

reformation mutual mistake

Answer 30

if the defect in writing is result of mutual mistake reformation will be granted

Question 31

reformation unilateral mistake GR

Answer 31

reformation will be DENIED

Question 32

reformation unilateral mistake x/c

Answer 32

if non-mistaken party KNEW of the mistake, reformation will be granted)
- NOT SHOULD HAVE KNOWN

Question 33

reformation misrepresentation

Answer 33

if the defect in written agreement is result of misrepresentation, reformation will be GRANTED.
- Regardless if was intentional or innocent

Question 34

reformation defenses

Answer 34

normal equitable defenses
- unclean hands, laches,`etc.

In addition court will NOT reform K if doing so would adversely affect the rights of a BFP

Question 35

what does IL look for specific performance of a noncompetion clause

Answer 35

IL will grant Specific Performance of a noncompetition clause if the clause

1) serves a legitimate interest of the employer
2) does not impose undue hardship on the employee and
3) not injurious to the public.

Question 36

how does IL courts look for TOC to see if noncompetion clause services a legitimate business interest

Answer 36

1) w/e the employer is seeking to protect long-term relations with customers,
2) w/e the employee has received confidential information through employment
3) the geographic scope of the covenant and
4) its duration

Question 37

in IL what amount of consideration is needed for covenant not to compete

Answer 37

need consideration: continued employment for SUBSTANTIAL PERIOD OF TIME
- at least 2 years. So even if employee quits w/i 2 years it will not be enforceable because did not work for at least 2 years