Remedies

Question 1

Specific Performance

Answer 1

an equitable remedy where the court orders specific performance of the obligation.

Question 2

Specific performance is __________ available for sale of land contracts.

Answer 2

always

Question 3

Specific performance is also available when the goods in question are _________ or _________ at the time performance is due.

Answer 3

rare; unique

Question 4

Is specific performance available for service contracts?

Answer 4

No

Question 5

What are the three big defenses to specific performance?

Answer 5

1) laches; 2) unclean hands; and 3) sale to a bona fide purchaser.

Question 6

Laches

Answer 6

a claim that the plaintiff has delayed bringing an action and that the delay has prejudiced the defendant.

Question 7

Unclean Hands

Answer 7

a claim that the party seeking performance is guilty of wrongdoing in the transaction being sued upon.

Question 8

Is specific performance enforceable against a bona fide purchaser?

Answer 8

No.

Question 9

If the buyer fails to make a payment due on or before delivery, the seller may . . .

Answer 9

withhold delivery of the goods.

Question 10

When can a seller force a buyer to buy goods?

Answer 10

only where the seller cannot sell the goods to others at a reasonable price.

Question 11

What is a party’s best remedy where there are circumstances which suggest a possibility of nonperformance by the other party, but it is not clear that the other party will not perform?

Answer 11

the party should make a written demand for assurances, as is their right.

Question 12

What is the standard type of damages a nonbreaching party is entitled to when there is a breach?

Answer 12

expectation damages

Question 13

How are expectation damages measured?

Answer 13

the cost of acquiring substitute performance.

Question 14

If a plaintiff’s expectation damages are too speculative, what kind of damages might she want to pursue instead?

Answer 14

reliance damages

Question 15

How are reliance damages measured?

Answer 15

the cost of her performance; i.e. whatever actions she took must be compensated.

Question 16

When are consequential damages awarded?

Answer 16

when the nonbreaching party loses profits due to the other party’s nonperformance.

Question 17

When are incidental damages awarded?

Answer 17

in a sale of goods contract where the buyer incurs costs in anticipation of receiving the goods.

Question 18

When are punitive damages awarded?

Answer 18

punitive damages are usually not awarded in contract cases, because damages in contract are not intended to punish the defendant, but to compensate the plaintiff.

Question 19

When are nominal damages awarded?

Answer 19

where there is a breach of a contract but no real damages.

Question 20

Liquidated Damages

Answer 20

damages that are agreed between the parties to be paid in the event of a breach. These must be reasonable.

Question 21

What are the requirements for enforcing a liquidated damages clause?

Answer 21

the damages must be 1) difficult to ascertain at the time the contract was formed; and 2) the amount agreed on must be a reasonable forecast of compensatory damages in the case of breach.

Question 22

Can liquidated damages be awarded even if there is not actual monetary loss by the nonbreaching party?

Answer 22

Yes

Question 23

What is the measure of restitution damages?

Answer 23

the value of the benefit conferred.

Question 24

Rescission

Answer 24

a remedy whereby the original contract is considered voidable and rescinded.

Question 25

What are the grounds for rescission?

Answer 25

generally, mistake, mutual mistake, and misrepresentation.

Question 26

For sales of goods contracts, the UCC provides a _____ year statute of limitations.

Answer 26

4

Question 27

Can parties to a sale of goods contract shorten the statute of limitations period by agreement?

Answer 27

yes, but cannot shorten it to less than one year. They cannot lengthen it.