Remedies for Breach Flashcards
Specific Performance
only if LEGAL REMEDY would be inadequate
Typically only available for land or rare and unique goods
NOTE: if subsequent sale to BFP, cannot get specific performance for land
NOT available for services, even if rare or unique. Involuntary Solitude concerns. Instead, injunction can be remedy to prevent breaching party from providing services for competitors if rare/unique
Unclean hands
a claim that the party seeking specific performance is guilty of wrongdoing in the transaction being sued upon is a defense to SP even for unique goods
Laches
Claim that P has delayed bringing the action and that the delay and unfairly prejudiced the D can be a defense to SP even for unique goods
Insolvent Buyer
Unpaid seller who sold on credit can get goods back:
(1) B must be insolvent AT THE TIME that it received the goods, (2) S demands return of goods within 10 days of receipt, and (3) B still has goods at time of demand
NOTE: 10 days becomes “reasonable time” if, before delivery, there had been an express representation of solvency by the B
NOTE: if buyer promises to tender cash upon delivery, must still deliver. If seller doesn’t, he will be in breach.
Buyers right to replevy
if Buyer has made part payment on purchase price that seller has not delivered, buyer may REPLEVY the goods from seller in two circumstances:
(1) seller becomes insolvent within 10 days after receiving buyer’s first payment; OR (2) goods were purchased for personal, family, or household purposes
obviously can always just cancel the K
Expectation
put the nonbreaching party in the position she would have been in had the promise been performed
UCC: seller breach, buyer keeps the goods
FMV of perfect tender - FMV as delivered or cost of repair
UCC: seller breaches, seller keeps the goods
GREATER BETWEEN:
Market Price at time of discovery of breach - contract price
OR
reasonable replacement price - contract price
UCC: Buyer breaches, buyer keeps the goods
Contract Price
UCC: Buyer breaches, seller has the goods
Contract price - resale,
BUT: if seller cannot resell, seller can recover the contract price and lost profits, if applicable
If seller resales for more, can still get lost profits, if applicable
Lost Profits
Triggered by seller’s supply: if unlimited (can obtain all that he can sell), then he is a lost volume seller
can include provable lost profits in damages
NOTE: if resale ends up being for more than original contract, then can still recover lost profits as your damages
Incidental damages
may be added to damages measure
Costs incurred in dealing with the breach (e.g. costs of storing rejected goods or finding a replacement in services K)
Always recoverable
Consequential Damages
Damages arising due to special circumstances
Recovered if breaching party knew or had reason to know of the special circumstances giving rise to damages
ONLY A BUYER can recover consequential damages
Avoidable Damages
damages will be reduced by any amount that could have been avoided w/o undue burden on plaintiff
(continue service or turning down other, comparable opportunities)
Uncertain damages
P’s damages will be reduced by amount that she cannot prove with certainty
Triggers: P engaged in a new business or a new business activity. However, modern view is to observe similar business in the area or other businesses owned by the same party.
Reliance damages can be an alternative in this case
