Remedies: Non-Monetary Flashcards
What is “specific performance”?
“specific performance” = an order from court to breaching party to perform or face contempt of court
In general, when is “specific performance” available?
Generally, it is available when there is no adequate legal remedy
What specific issues arise re: specific performance?
- land and rare/unique goods
- covenant not to compete
- equitable defenses
What is the rule re: specific performance and land contracts?
specific performance is always available for land sale contracts.
What is the rule re: specific performance and rare/unique goods?
specific performance is available for goods that are rare/unique at the time performance is due
What is the rule re: specific performance and serviceS?
Specific performance is NOT available for services, even if they are rare or unique
IN CONTRAST –> court MAY enjoin a breaching EE from working for a competing company throughout duration of K if his services are rare or unique
What is the rule re: specific performance and covenant not to compete?
Most courts will grant an order of specific performance to enforce a K not compete IF:
- services to perform are unique (thus rendering money damages inadequate); AND
- covenant is REASONABLE:
(i) must be necessary to protect a legitimate interest
(ii) reasonable in geographic scope and duration; and
(iii) does not harm public
What equitable defenses are available in action for specific performance?
In addition to standard contract defenses:
- “Laches” - claim that:
(i) P has delayed bringing the action; AND
(ii) delay has prejudiced Def - “Unclean Hands” - claim that party seeking specific performance is guilty of wrongdoing in the transaction being sued upon;
- “Sale to a bona fide purchaser” - claim that subject matter has been sold to a person who purchased FOR VALUE and IN GOOD FAITH
Under UCC, what are buyer’s non-monetary remedies?
- Cancellation
- Buyer’s right to replevy identified goods
- Buyer’s right to specific performance
What is buyer’s right of cancellation?
If buyer rightfully rejects non-conforming goods, one of her options is to simply CANCEL the contract
In general, under UCC, what are the two circumstances under which Buyer may replevy identified goods?
- Buyer’s prepayment
2. Buyer’s inability to cover
What is buyer’s right to replevy identified goods due to Buyer’s prepayment?
If buyer has made at least PART payment of goods that have IDENTIFIED under a K, and seller HAS NOT DELIVERED, Buyer may replevy under two circumstances:
- seller becomes insolvent within 10 days after receiving buyer’s 1st payment; OR
- goods were purchased for personal, family, or household purposes
EITHER WAY –> Buyer must tender any unpaid purchase price to seller
What is buyer’s right to replevy identified goods due to Buyer’s inability to cover?
Buyer may replevy undelivered, identified goods from the seller IF
- Buyer, after reasonable effort, is unable to secure adequate substitute goods (“cover”)
What is Buyer’s right to specific performance?
Buyer has right to specific performance if “goods are unique, or in other proper circumstances”
-this is true EVEN where goods have not been identified to the K by seller
Under UCC, what are Seller’s non-monetary remedies?
- Seller’s right to withhold goods
- Seller’s right to recover goods
- Seller’s ability to force goods (limited to action for price)
Under UCC, what is Seller’s right to withhold goods?
Seller may withhold delivery of goods IF:
- Buyer fails to make payment due on or before delivery;
- Goods are sold on credit, and Seller discovers buyer is INSOLVENT prior to delivery of goods (unless Buyer tenders cash)
Under UCC, what is Seller’s right to recover goods from Buyer on Buyer’s insolvency?
If Seller learns that Buyer has received delivery of goods on credit while insolvent, Seller may reclaim goods upon demand made within 10 days of Buyer’s receipt of goods.
HOWEVER –> 10 day limitation does not apply if:
- a MISREPRESENTATIOn of solvency
- has been made IN WRITING to the particular seller
- within 3 months before delivery
Under UCC, under what two circumstances does Seller have the right to recover shipped or stored goods from bailee?
- On Buyer’s insolvency
2. On Buyer’s breach
Under UCC, what is Seller’s right to recover shipped or stored goods from bailee on Buyer’s insolvency?
Seller may stop delivery of goods in possession of carrier or other bailee IF he discovers that Buyer is insolvent.
EXCEPTION –> must deliver goods if seller tenders cash
Under UCC, what is Seller’s right to recover shipped or stored goods from bailee on Buyer’s breach?
Seller may stop delivery of goods if:
- Buyer Breaches K; Or
- Seller has right to withhold performance pending receipt of assurances (ie.,there are reasonable grounds for insecurity with respect to party’s performance)
What is the right to demand assurances?
Actions or circumstances that increase the risk of non-performance by a party BUT do not clearly indicate that performance will not be forthcoming CANNOT be treated as an anticipatory repudiation.
INSTEAD –> if there are REASONABLE GROUNDS FOR INSECURITY with respect to a party’s performance, the other party may demand IN WRITING assurances that performance will be forthcoming.
IF proper assurances are not given within a reasonable time, he may then treat K as repudiated
