REMEDIES (for unexcused nonperformance)

Question 1

Specific Performance/ Injunction (3)

Answer 1

1. sale of land
2. sale of UNIQUE goods (antiques, art, etc)
3. services, no spec perform- posible INJUNCTIVE RELIEF

Question 2

Buyer Insolvency (sellers rights) (3)

Answer 2

1. B insolvent at time of receiving goods
2. seller demands return wi/in 10 days (or reasonable time if buyer expressly represents insolvency)
3. buyer still has goods at time of demand

Question 3

Money damages for breach (7)

Answer 3

1. EXPECTATION
2. incidental
3. CONSEQUENTIAL
4. avoidable
5. certainty
6. reliance
7. liquidated

Question 4

General Expectation Approach (3)

Answer 4

1. dollar value of performance w/out breach
2. dollar value of performance w/ breach
3. compare the two

Question 5

Seller’s Breach (buyer remedy) (2)

Answer 5

1. buyer keeps goods
   [FMV perfect] - [FMV as delivered or cost of repair]
2. seller has goods
   [MKT $ at time of discovery of breach - K price]
   or
   [reas replacement $ - K price] WHICHEVER IS GREATER

Question 6

Buyer’s Breach (seller remedy)(2)

Answer 6

1. buyer keeps goods - CONTRACT PRICE
2. seller has goods
   [K price - resale] if no resale [K PRICE] and in some cases [provable lost profits]

Question 7

Incidental Damages

Answer 7

FORESEEABLE costs incurred from dealing w breach (storing rejected goods in a sale of goods, finding replacement in a services contract)

Question 8

Consequential Damages (2)

Answer 8

1. P’s special circumstances

2. D had reason to know of these circumstances at time of K

Question 9

Avoidable damages

Answer 9

no recovery for damages that could have been avoided without undue burden on P

Question 10

Liquidated damages (2)

Answer 10

1. damages difficult to forecast at time K made

2. provision is reasonable forecast

Question 11

Damages generally

Answer 11

Expectation + FORESEEABLE incidental + FORESEEABLE consequence - avoidable - uncertain damages

Question 12

Anticipatory Repudiation

Answer 12

unambiguous statement or conduct that repudiating party will not perform made prior to time performance due

*immediate claim for damages, unless claimant already finished performance - WAIT UNTIL DATE

Question 13

Retraction of Antic Repud

Answer 13

can be w/drawn so long as there has not been a material change in position by the other party
(duty to perform reimposed but can be delayed until adequate assurance is provided)

Question 14

Demand for adequate assurances (3)

Answer 14

1. reasonable grounds for insecurity
2. written demand for adequate assurance
3. an commercially reasonable to stop performance

Question 15

Material Breach Rule (CL)(4)

Answer 15

1. damages can be recovered for any breach
2. material by ONE excuses OTHER
3. if breach is material is QUESTION OF FACT
4. if there is substantial performance, breach NOT material (and vice versa)

Question 16

Material Breach (2 types)

Answer 16

1. quality of performance

2. quantity (amount) of performance

Question 17

Divisible Contract Corollary

Answer 17

there can be a contract law recovery for SUBSTANTIAL PERF of a divisible part even though there has been a material breach of entire K

*look at whether price is stated as LUMP SUM or on PER PERF basis

Question 18

Express Conditions

Answer 18

strict compliance for satisfaction

EXCEPTION: condition of personal satisfaction “HONEST and GF” dissatisfaction

Question 19

Express Condition (elimination) (2)

Answer 19

1. WAIVER- person benefitting from/protected by condition, gives up benefit
2. PREVENTION - person protected by condition hindering or preventing the occurrence of the express condition

Question 20

Excuse by LATER CONTRACT (4)

Answer 20

1. rescission
2. accord and satisfaction (substit performance)
3. modification (substituted agreement)
4. novation

Question 21

Accord and Satisfaction

Answer 21

if the accord isn’t performed, other party can receive on either ORIGINAL obligation or ACCORD

Question 22

Novation

Answer 22

agreement btwn BOTH parties to an existing K to the substitution of a new party (same performance, different party)

• excuses original performer to the K
• differs from delegation

Question 23

Damage/Destruction of subj matter of K (excuse of perf)

Answer 23

CL–> depends on item

UCC–> (risk of loss buyer) buyer pays
(risk of loss seller) buyer does not have to pay, damage recovery depends on facts

Question 24

Death (excuse)

Answer 24

death does not excuse performance unless “special person”

Question 25

Subsequent law/regulation (excuse)

Answer 25

1. later law makes performance of contract illegal-IMPOSSIBLE
2. later law makes mutually understood purpose of contract illegal- FRUSTRATION OF PURPOSE

Question 26

Impracticability ((FLORIDA))

Answer 26

1. circumstances
2. made performance vitally different
3. K reasonably can’t govern