Remedies for unexcused nonperformance Flashcards
Name the three nonmonetary remedies (In Rem):
Specific performance, seller’s reclaimation from an insolvent buyer of goods, buyer’s recovery of identified, paid for goods from a seller who becomes insolvent within 10 days.
What type of remedy is specific performance?
An equitable remedy.
What must you say on an exam regarding specific performance?
Specific performance is an equitable remedy, and there is no adequate remedy at law, or unclean hands, or other parties’ equities.
Can specific performance be compelled in a sale of land contract?
Yes, as long as the sale would not infringe upon the rights of another (i.e. the land was later sold to another)
S contracts to sell Blackacre to B. S breaches and sells Blackacre to X, a bona
fide purchaser. Can B still get specific performance?
No. S sold to X, specific performance would be taking Blackacre away from bona fide purchaser X.
Is specific performance the right answer on MBE?
Not likely per Epstein’s words.
When can specific performance be compelled in a sale of goods contract?
If the goods are unique, art, custom-made, or other similar and appropriate circumstances.
Can you compel specific performance in a service contract?
No, but may have possible injunctive relief.
What is the rule regarding the seller’s reclaimation from an insolvent buyer of goods?
Right of an unpaid seller to get its goods back. Key facts are that (i) the buyer must have been insolvent at the time that it received the goods, and (ii) the seller demands return of goods within 10 days of receipt (this “10-day rule” becomes a “reasonable time rule” if, before delivery, there had been an express representation of solvency by the buyer), and (iii) the buyer still has the goods at the time of demand.
