Remedies Flashcards
The court abhors . . .
Forfeiture
Forfeiture
Where D is capable and ready to fully comply, they will not be forced into a forfeiture
Unless they negligently, willfully, or fraudulently breached their duty
Recission (Buyer)
the return of deposits/payments made on the property when Seller cannot perform at the time of closing
Recission (Seller)
Seller gets to keep the downpayment made by the buyer, and the contract becomes VOID
Benefit of the Bargain Damages (Buyer)
Recovery of damages/benefits that would have been received if the contract was entirely performed; fair market value at the time of close
Benefit of Bargain (Minority v. Majority)
English Rule (Majority): when the seller breaches Executory Land K in bad faith, B is entitled to the benefit of the bargain damages
American Rule (Minority): buyer can recover for either good faith or bad faith breach by the seller
Specific Performance (Buyer)
Where legal damages are insufficient to make the other party whole; requires a bad faith breach on the part of the seller
Equitable Conversion (Buyer)
Equitable conversion will not be applied where an unjust or inequitable hardship would result (i.e., the frustration of purpose) but only where specific performance fulfills the parties’ mutual intent
Equitable Conversion cannot be enacted before the Vendor has completed all contract conditions
Risk of Loss (Act of God)
Majority Rule: Buyer bears the risk of loss, but the Vendor may also be liable for any loss they could have reasonably prevented
Massachusetts Rule: Vendor is liable for the risk of loss (failure of consideration/bargain)
Insurance (Risk of Loss)
Both parties SHOULD have insurance on the property
Where Seller has insurance, the money received by Seller becomes a credit towards Buyer’s purchase price
Death of Party
Seller Death: Equitable conversion turns Seller’s interest (money owed) into personal property (beneficiary of the personal property receives the purchase price) – contract for sale with supersede the Will
