Specific Performance

Question 1

Specific Performance Requirements

Answer 1

1: There must be a K (valid K or parties agree it exists)
2: Terms must be sufficiently certain
3: Conditions must be satisfied or excused
4: Damages must be inadequate
5: Relief must be equitable
6: Enforcement must be feasible

Question 1

4: Damages must be inadequate

Answer 1

Common for land, art, heirloom.

Availability of other remedies (trover, restitution) doesn’t bar SP

Question 2

5: Relief must be Equitable

Answer 2

SP will be denied if unfair, unjust, or against good conscience.

Factors:
(a): sharp practices by P (misrep/duress)
(b): unreasonable hardship on D caused by post-K events; or
(c): grossly inadequate consideration

Question 3

6: Enforcement Must be Feasible

Answer 3

Can’t Embroil Court in Ongoing Supervision of Performance of K

Question 4

Land Sale Specific Performance - Seller’s Inability to Fully Perform

Answer 4

Seller/Buyer can seek SP w/ Abatement of purchase price.

Abatement must be ASCERTINABLE.

Question 5

SP for Land Sale when Statute of Frauds bars Oral K

Answer 5

Oral K unenforceable due to SoF? P can obtain SP if:

(1): Seller admits to the existence of the K
(2): Seller has accepted full or partial payment of the purchase price, or
(3): buyer made improvements to real proper

Question 6

SP for Personal Property

Answer 6

Usually not avail.

Only avail if unique/personally significant to plaintiff, or

Defendant insolvent wont allow for damages

Question 7

SP for Employment K

Answer 7

Not allowed. Only money damages.

Question 8

Who is Covered under GA Non-Compete Statute

Answer 8

Employer/Employee (or ind. contractor)
Distributor/Manufacturer
Lessor/Lessee
Partnership/Partner
Franchisor/Franchisee
Seller/Buyer of a Business

Question 9

Non-Compete Rules for Employer/Employee

Answer 9

Only attaches if (while employed), the employee:

(1): customarily/regularly solicited customers for employer;
(2): customarily/regularly made sale, orders, or Ks for products/services to be performed by others
(3): Performed manager duties; OR
(4): performed duties of a key employee or professional

Question 10

Restrictions DURING business relationship

Answer 10

allowed even if no limits on scope/duration/area.

must be in writing

Question 11

Restrictions AFTER business relationship

Answer 11

Can Specifically Enforced if reasonable in:
(1): Time/Duration
(2): Geographic Area
(3): Scope

Question 12

Non-Compete Duration: Employment Relationship

Answer 12

Less than two years = presumed reasonable

Two years or more = presumed unreasonable

Question 13

Non-Compete Duration: Owner/Seller of Business

Answer 13

Presumed reasonable on Seller if no longer than:
(1): Five Years, OR
(2): Time period which payments are made to Seller

Question 14

Non-Compete Duration: Generally/other categories

Answer 14

Former Distributor – no more than 3 years is presumed reasonable.

Question 15

Non-Compete Geographic Scope Reasonability

Answer 15

Reasonable if either:
(1): is areas where employer does business during the relationship and total area is reasonable; OR
(2): list specific competitors the employee cant work for

Question 16

Non-Compete Scope of Activities Reasonability

Answer 16

Measured by type of business. Based on a good faith estimate.

Question 17

Customer Non-Solicitation Provision

Answer 17

prevents employee from soliciting employer’s customers that employee had MATERIAL CONTACTS with.

Enforceable if for a reasonable period of time. Dont need geog. scope.

Question 18

Nondisclosure of confidential information provision

Answer 18

Agreement to maintain information as confidential or as a trade secret enforceable even if not restricted by time or geographic area