Specific Performance

Question 1

Requirements for Specific Performance

Answer 1

1. There must be a valid, enforceable contract
2. Terms must be sufficiently certain
3. Conditions by the plaintiff must be satisfied or excused
4. Damages must be inadequate
5. Relief must be equitable
6. Enforcement must be feasible

Question 2

If damages are adequate for part of a contract, will that prohibit specific performance?

Answer 2

No

Question 3

Factors consider to determine if performance should be denied:

Answer 3

1. Sharp practices by the plaintiff (whether the P has acted shady)
2. Unreasonable hardship to the defendant caused by post-formation events; or
3. Grossly inadequate consideration

Question 4

Affect of specific performance if a seller is unable to perform under a land sale contract?

Answer 4

Either the seller or the buyer can seek specific performance of the contract with an abatement (i.e., reduction) of the purchase price

Question 5

The amount of the abatement in a land sale contract must be __________ or the parties cannot seek specific performance and will have to seek damages

Answer 5

ascertainable

Question 6

If an oral contract is unenforceable due to the SOF, plaintiff can obtain specific performance if:

Answer 6

1. Seller admits to the existence of the contract
2. Seller has accepted full or partial payment of the purchase price; or
3. Buyer has made improvements to the property

Question 7

Specific performance under a K is only available for personal property if:

Answer 7

1. The personal property is unique or or of personal significance to the plaintiff; or
2. The defendant’s insolvency precludes the recovery of damages

Question 8

Can an employee enforce a promise to employ?

Answer 8

No, because the employer’s promise it to pay money to the employee. So money damages is an adequate remedy at law

Question 9

T or F: Specific performance is not available to enforce an agreement for an employee performing personal services

Answer 9

True, even if no one else could provide the services

Question 10

In GA, which parties can enter into NCA?

Answer 10

1. Employee and Employer
2. Distributor and Manufacturer
3. Lessor and Lessee
4. Partnership and Partner
5. Franchisor and Franchisee
6. Seller and Buyer of Business

Question 11

What type of employee and employer relationships can enter into NCAs?

Answer 11

If while employed, the employee:
1. Solicited customers
2. Made sales or obtained or contracts
3. Performed managerial duties; or
4. Performed the duties of a key employee or a professional

Question 12

In term restriction

Answer 12

Restrictions on competition during a business relationship. Will not be considered unreasonable even if it lacks specific limitation on scope, duration, or geographic area

Question 13

What is required to enforce an out of term NCA?

Answer 13

If it is reasonable in scope, time, and geographic area, and scope of prohibited activities

Question 14

Duration of employment relationships

Answer 14

Less than two years is presumed reasonable. More than two years is presumed unreasonable

Question 15

Durational restriction on competition by seller of a business is presumed to be reasonable if it spans no more than the longer of:

Answer 15

a. 5 years
b. The time period during which payments are made to the seller

Question 16

For all other relationships or former distributors, the reasonableness presumption is for ______

Answer 16

Three years

Question 17

Restriction on geographic territory is reasonable if it either:

Answer 17

1. Include areas in which the employer does business at any time during the parties’ relationship and the total area is reasonable; or
2. Lists specific competitors the employee is prohibited from working for

Question 18

Restriction on scope of competition is measured by type of business of the employer (or other relationship) based on a __________________

Answer 18

good-faith estimate