Nonmonetary Remedies

Question 1

Specific Performance

Answer 1

• can seek if legal remedy ($) inadequate
• order from ct to breaching party to perform or face contempt of ct charges

Question 2

Specific Performance - Exam Tip

Answer 2

• look for fact patterns where party trying to specifically enforce K containing liquidated damages clause
  -> such clause does not make legal remedy inadequate

Question 3

When Specific Performance Available

Answer 3

• always available for land sale Ks, b/c all land is unique
• also available for goods that are rare or unique at time performance is due
• NEVER available for service Ks

Question 4

Service Ks - Injunctions

Answer 4

• ct CAN enjoin breaching employee from working for competitor throughout duration of K if services contracted for are rare or unique

Question 5

Covenant Not to Compete

Answer 5

• most cts will grant order of spec perf to enforce K not to compete if:
  1) services to be performed are unique ($ damages inadequate)
  2) covenant is “reasonable”

Question 6

What needs to be true for non-compete covenant to be reasonable?

Answer 6

• must not harm the public
• must be reasonably necessary to protect legit interest of person benefited by the covenant (employer or purchaser of business)
• covenant must be reasonable as to its geographic scope + duration
  -> can’t be broader than benefited person’s customer base + typically can’t be longer than one or two yrs

Question 7

Equitable Defenses Available in Response to Specific Performance

Answer 7

• laches
• unclean hands
• sale to a bona fide purchaser

Question 8

Laches

Answer 8

• claim that pl has delayed bringing the action + that the delay has prejudiced def

Question 9

Unclean Hands

Answer 9

• claim that the party seeking specific performance is guilty of wrongdoing in the transaction being sued upon

Question 10

Sale to a Bona Fide Purchaser

Answer 10

• claim that the subject matter has been sold to a person who purchased for value + in good faith

Question 11

UCC - Buyer’s Nonmonetary Remedies

Answer 11

• cancellation
• right to replevy identified goods
• specific performance

Question 12

UCC - Buyer’s Remedy - Cancellation

Answer 12

• if buyer rightfully rejects goods b/c don’t conform to K, one of her options is simply to cancel the K

Question 13

UCC: Buyer’s Right to Replevy Identified Goods - On Buyer’s Prepayment

Answer 13

• if buyer has made at least part payment of the purchase price of goods that have been identified under K + the seller hasn’t delivered the goods, buyer may replevy the goods in 2 circs:
  i) seller becomes insolvent w/in 10 days after receiving buyer’s first payment OR
  ii) goods were purchased for personal, family or household purposes
• in either case, buyer must tender any unpaid portion of purchase price to seller

Question 14

UCC: Buyer’s Right to Replevy Identified Goods - On Buyer’s Inability to Cover

Answer 14

• buyer can replevy undelivered, identified goods from seller if buyer, after reasonable effort, is unable to secure adequate substitute goods (i.e. cover)

Question 15

UCC: Buyer’s Right to Specific Performance

Answer 15

• right closely related to buyer’s right to replevy = right to specific performance “where the goods are unique or in other proper circumstances”
• ct can order spec perf EVEN where goods haven’t yet been identified to K by seller

Question 16

Seller’s Right to Withhold Goods

Answer 16

• if buyer fails to make a payment due on or before delivery, seller may withhold delivery of the goods
• may also withhold goods when the goods are sold on credit and, before the goods are delivered, the seller discovers that the buyer is insolvent
  -> BUT in such a case, seller must deliver goods if buyer tenders cash for their payment

Question 17

Seller’s Right to Recover from Buyer on Buyer’s Insolvency

Answer 17

• if seller learns that buyer has received delivery of goods on credit while insolvent, seller may reclaim the goods upon demand made w/in 10 days after buyer’s receipt of goods
  -> BUT 10-day limitation doesn’t apply if a misrepresentation of solvency has been made in writing to the particular seller within 3 months before delivery

Question 18

Seller’s Right to Recover Shipped or Stored Goods from Bailee on Buyer’s Insolvency

Answer 18

• seller can stop delivery of goods in possession of a carrier or other bailee if they discover that the buyer is insolvent
• seller must deliver goods if buyer tenders cash for their payment

Question 19

Seller’s Right to Recover Shipped or Stored Goods from Bailee on Buyer’s Breach

Answer 19

• seller may stop delivery of carload, truckload, planeload, or larger shipments of goods if buyer breaches K or seller has right to withhold performance pending receipt of assurances

Question 20

Seller’s Ability to Force Goods on Buyer

Answer 20

• LIMITED -> limited to an action for price when seller is unable to resell the goods to others at a reasonable price

Question 21

Right to Demand Assurances

Answer 21

• CAN’T treat as anticipatory repudiation if actions/circs only increase risk of nonperformance by party but don’t clearly indicate that performance won’t be forthcoming
• instead, if there are reasonable grounds for insecurity with respect to a party’s performance, the other party may demand in writing assurances that the performance will be forthcoming at the proper time
  -> until they receive ad assur, party can suspend own assurances
• CAN treat as repudiated if proper assurances not given w/in reasonable time
• adequacy of assur depends on facts of case

Question 22

Assurances vs. Anticipatory Repudiation

Answer 22

• anticipatory repudiation requires MORE than nervousness -> need CLEAR indication
• vs. if there are only reasonable grounds for insecurity, just assurances
• ex: “I’m not going to perform” = anticipatory repudiation, but “I’m not sure if I can perform” most likely only warrants reason to demand assurances