Remedies Flashcards
Specific performance
if the legal remedy inadequate, the nonbreaching party may seek specific performance, order from the court to the breaching party to perform or fact contempt of court charges.
When is specific performance available?
For land and rare or unique goods.
NOT available for breach of a contract to provide services, even if the services are rare or unique.
injunction as alternate remedy
a court may enjoin a breaching employee from working for a competitor throughout the duration of the K if the services contracted for are rare or unique.
covenant not to compete
most courts will grant an order of specific performance to enforce a K not to compete if:
(1) the services to be performed are unique; and
(2) the covenant is reasonable.
when is a covenant not to compete reasonable?
- reasonably necessary to protect a legitimate interest of the person
- must be reasonable over its geographic scope and duration; and
- the covenant must not harm the public.
in addition to standard contract defense, an action for specific performance is subject to the equitable defenses of:
- laches
- unclean hands
- sale to a bona fide purchaser
buyer’s nonmonetary remedies
- cancellation
- buyer’s right to replevy identified goods
- buyer’s right to specific performance.
seller’s nonmonetary remedies
- seller’s right to withhold goods
- seller’s right to recover goods
- seller’s ability to force goods on buyer limited
right to demand assurances
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.
compensatory damages
put the nonbreaching party in the position they would have been in had the promise been performed.
standard measure of damages - expectation damages
most cases, the plaintiff’s standard measure of damages will be based on an “Expectation measure” that is, sufficient damages for them to buy a substitute performance.
reliance damage measure
if plaintiff’s expectation damages are too speculative, plaintiff may elect to recover those damages they have suffered based on their reasonable reliance on the contract.
Reliance damages designed to put P in position that would have been in had K never happened,
incidental damages
compensatory damages may also include incidental. Most commonly associated with Ks for sale of goods and typically include expenses reasonably incurred by a buyer in inspection, receipt, transportation, care, and custody of goods etc.
consequential damages
Special damages and reflect losses over and above standard expectation damages. May be recovered only if, at time K made, a reasonable person would have foreseen the damages as a probable result of a breach.
certainty rule
plaintiff must prove losses suffered were certain in their nature and not speculative.
