Remedies for Unexcused Nonperformance

Question 1

NonMONEYTARY REMEDIES

Answer 1

Specific Performance, Reformation, Reclamation

Question 2

Specific Performance

Answer 2

Courts reluctant to give out, historically only awarded if legal remedy was inadequate.

Courts likely to give specific performance for: real estate contracts, contracts for the sale of UNIQUE GOODS (antiques, art, custom-made)

NEVER GIVEN FOR SERVICE CONTRACTS (BUT MAYBE INJUNCTIVE RELIEF)

Question 3

Reformation (Equitable Remedy)

Answer 3

Changing a written contract:

Look for Mistake in Writing, Fraudulent Misrepresentations (what is in the writing is because of fraud)

Question 4

Reclamation

Answer 4

Right of Unpaid Seller to get Goods back:

Buyer was insolvent when the goods were received,

Seller must demand the return in 10 days

seller must show that buyer is still in possession.

Question 5

Equitable Defenses

Answer 5

Laches, Unclean Hands, Sale to a Bona Fide Purchaser

Laches: plaintiff has delayed in bringing suit AND THAT DELAY HAS PREJUDICED THE DEFENDANT

Question 6

Buyer’s Remedy for a Prepayment

Answer 6

Buyer made partial payment and seller has not delivered, buyer may replevy goods:

seller has become insolvent within 10 days after receiving buyer’s payment OR goods were purchased for personal, family or household purposes.

BUYER MUST TENDER OUTSTANDING PORTION OF PAYMENT

Question 7

Seller’s Right to Withhold Goods

Answer 7

Buyer fails to make a payment due on or before delivery

Goods sold on credit and before delivery seller finds buyer is insolvent.

Question 8

Expectation Damages

Answer 8

Monetary Damage (Default Remedy)

Puts plaintiff in the same economic position as if Contract had been performed.

Question 9

Reliance

Answer 9

Monetary Remedy: Puts Plaintiff in the same economic position as if the Contract had never happened

Question 10

Restitution Damages

Answer 10

Monetary Remedy: Puts Defendant in the same economic position as if the contract never happened (PREVENTS UNJUSTENRICHMENT)

Question 11

Damages Rule for Sales of Goods

Answer 11

Who Breached AND Who has the Goods

Question 12

Seller breaches and Buyer keeps goods

Answer 12

FMV if perfect - FMV as delivered

Question 13

Seller Breaches and Seller Keeps the Goods

Answer 13

Market Price At the Time of Discovery of the Breach - Contract Price

OR

Replacement price - Contract Price

Question 14

Buyer Breaches, Buyer Keeps Goods

Answer 14

Contract Price

Question 15

Buyer Breaches and Seller Keeps Goods

Answer 15

Contract price - Market Price at the Time and Place of Delivery

OR

Contract price - Resale Price

Question 16

Loss Volume Seller

Answer 16

Seller of goods with a lot of the same goods:

Damages are whatever their PROVABLE LOST PROFITS ARE

Question 17

Incidental Damages

Answer 17

Costs incurred in dealing with breach ARE ALWAYS RECOVERABLE

Question 18

Consequential Damages

Answer 18

Losses resulting from the breach that ANY REASONABLE PERSON would have FORESEEN would occur from a breach at the time of the entry into the contract.

Question 19

Certainty Rule

Answer 19

Plantiff must prove that losses suffered were certain in their nature and NOT SPECULATIVE

Question 20

Punitive Damages

Answer 20

Generally not awarded in contract law (CONTRACT LAW REMEDY NOT MEANT TO PUNISH DEFENDANT, MEANT TO COMPENSATE PLAINTIFF)

Question 21

Liquidated Damages

Answer 21

Contract provision regarding damages: damages would have been DIFFICULT TO ESTIMATE OR ASCERTAIN AT THE TIME OF THE CONTRACT WAS FORMED AND AGREED UPON AMOUNT WAS A REASONABLY FORECAST

(CANNOT BE A PENALTY CLAUSE)

Question 22

Duty to Mitigate

Answer 22

No recovery for damages that could have been avoided WITHOUT UNDUE BURDEN ON PLAINTIFF

Defendant bears burden to prove Plaintiff could have mitigated.