Nonmonetary Remedies Flashcards
1
Q
Specific Performance
A
- can seek if legal remedy ($) inadequate
- order from ct to breaching party to perform or face contempt of ct charges
2
Q
Specific Performance - Exam Tip
A
- look for fact patterns where party trying to specifically enforce K containing liquidated damages clause
-> such clause does not make legal remedy inadequate
3
Q
When Specific Performance Available
A
- always available for land sale Ks, b/c all land is unique
- also available for goods that are rare or unique at time performance is due
- NEVER available for service Ks
4
Q
Service Ks - Injunctions
A
- ct CAN enjoin breaching employee from working for competitor throughout duration of K if services contracted for are rare or unique
5
Q
Covenant Not to Compete
A
- most cts will grant order of spec perf to enforce K not to compete if:
1) services to be performed are unique ($ damages inadequate)
2) covenant is “reasonable”
6
Q
What needs to be true for non-compete covenant to be reasonable?
A
- 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
7
Q
Equitable Defenses Available in Response to Specific Performance
A
- laches
- unclean hands
- sale to a bona fide purchaser
8
Q
Laches
A
- claim that pl has delayed bringing the action + that the delay has prejudiced def
9
Q
Unclean Hands
A
- claim that the party seeking specific performance is guilty of wrongdoing in the transaction being sued upon
10
Q
Sale to a Bona Fide Purchaser
A
- claim that the subject matter has been sold to a person who purchased for value + in good faith
11
Q
UCC - Buyer’s Nonmonetary Remedies
A
- cancellation
- right to replevy identified goods
- specific performance
12
Q
UCC - Buyer’s Remedy - Cancellation
A
- if buyer rightfully rejects goods b/c don’t conform to K, one of her options is simply to cancel the K
13
Q
UCC: Buyer’s Right to Replevy Identified Goods - On Buyer’s Prepayment
A
- 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
14
Q
UCC: Buyer’s Right to Replevy Identified Goods - On Buyer’s Inability to Cover
A
- buyer can replevy undelivered, identified goods from seller if buyer, after reasonable effort, is unable to secure adequate substitute goods (i.e. cover)
15
Q
UCC: Buyer’s Right to Specific Performance
A
- 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
16
Q
Seller’s Right to Withhold Goods
A
- 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
17
Q
Seller’s Right to Recover from Buyer on Buyer’s Insolvency
A
- 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
18
Q
Seller’s Right to Recover Shipped or Stored Goods from Bailee on Buyer’s Insolvency
A
- 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
19
Q
Seller’s Right to Recover Shipped or Stored Goods from Bailee on Buyer’s Breach
A
- 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
20
Q
Seller’s Ability to Force Goods on Buyer
A
- LIMITED -> limited to an action for price when seller is unable to resell the goods to others at a reasonable price
21
Q
Right to Demand Assurances
A
- 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
22
Q
Assurances vs. Anticipatory Repudiation
A
- 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
