Remedies: Non-Monetary

Question 1

What is “specific performance”?

Answer 1

“specific performance” = an order from court to breaching party to perform or face contempt of court

Question 2

In general, when is “specific performance” available?

Answer 2

Generally, it is available when there is no adequate legal remedy

Question 3

What specific issues arise re: specific performance?

Answer 3

1. land and rare/unique goods
2. covenant not to compete
3. equitable defenses

Question 4

What is the rule re: specific performance and land contracts?

Answer 4

specific performance is always available for land sale contracts.

Question 5

What is the rule re: specific performance and rare/unique goods?

Answer 5

specific performance is available for goods that are rare/unique at the time performance is due

Question 6

What is the rule re: specific performance and serviceS?

Answer 6

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

Question 7

What is the rule re: specific performance and covenant not to compete?

Answer 7

Most courts will grant an order of specific performance to enforce a K not compete IF:

1. services to perform are unique (thus rendering money damages inadequate); AND
2. 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

Question 8

What equitable defenses are available in action for specific performance?

Answer 8

In addition to standard contract defenses:

1. “Laches” - claim that:
   (i) P has delayed bringing the action; AND
   (ii) delay has prejudiced Def
2. “Unclean Hands” - claim that party seeking specific performance is guilty of wrongdoing in the transaction being sued upon;
3. “Sale to a bona fide purchaser” - claim that subject matter has been sold to a person who purchased FOR VALUE and IN GOOD FAITH

Question 9

Under UCC, what are buyer’s non-monetary remedies?

Answer 9

1. Cancellation
2. Buyer’s right to replevy identified goods
3. Buyer’s right to specific performance

Question 10

What is buyer’s right of cancellation?

Answer 10

If buyer rightfully rejects non-conforming goods, one of her options is to simply CANCEL the contract

Question 11

In general, under UCC, what are the two circumstances under which Buyer may replevy identified goods?

Answer 11

1. Buyer’s prepayment

2. Buyer’s inability to cover

Question 12

What is buyer’s right to replevy identified goods due to Buyer’s prepayment?

Answer 12

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:

1. seller becomes insolvent within 10 days after receiving buyer’s 1st payment; OR
2. goods were purchased for personal, family, or household purposes

EITHER WAY –> Buyer must tender any unpaid purchase price to seller

Question 13

What is buyer’s right to replevy identified goods due to Buyer’s inability to cover?

Answer 13

Buyer may replevy undelivered, identified goods from the seller IF
- Buyer, after reasonable effort, is unable to secure adequate substitute goods (“cover”)

Question 14

What is Buyer’s right to specific performance?

Answer 14

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

Question 15

Under UCC, what are Seller’s non-monetary remedies?

Answer 15

1. Seller’s right to withhold goods
2. Seller’s right to recover goods
3. Seller’s ability to force goods (limited to action for price)

Question 16

Under UCC, what is Seller’s right to withhold goods?

Answer 16

Seller may withhold delivery of goods IF:

1. Buyer fails to make payment due on or before delivery;
2. Goods are sold on credit, and Seller discovers buyer is INSOLVENT prior to delivery of goods (unless Buyer tenders cash)

Question 17

Under UCC, what is Seller’s right to recover goods from Buyer on Buyer’s insolvency?

Answer 17

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:

1. a MISREPRESENTATIOn of solvency
2. has been made IN WRITING to the particular seller
3. within 3 months before delivery

Question 18

Under UCC, under what two circumstances does Seller have the right to recover shipped or stored goods from bailee?

Answer 18

1. On Buyer’s insolvency

2. On Buyer’s breach

Question 19

Under UCC, what is Seller’s right to recover shipped or stored goods from bailee on Buyer’s insolvency?

Answer 19

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

Question 20

Under UCC, what is Seller’s right to recover shipped or stored goods from bailee on Buyer’s breach?

Answer 20

Seller may stop delivery of goods if:

1. Buyer Breaches K; Or
2. Seller has right to withhold performance pending receipt of assurances (ie.,there are reasonable grounds for insecurity with respect to party’s performance)

Question 21

What is the right to demand assurances?

Answer 21

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