VIII. Remedies

Question 1

Non-Monetary Remedies

Answer 1

• Specific Performance
• Under ARticle 2 for Buyer
  
  • Cancellation
  • Replevy identified goods
  • specific perofrmance
• Seller’s under article 2
  
  • withhold goods
  • recover goods
  • force goods on buyer
  • demand assurances

Question 2

Non Monetary REmedies Generally

Answer 2

Available only if remedieas at law not adequate

Question 3

Defenses to Non-Monetary Remedies

Answer 3

1. Unclean hands
2. IMpossibility and hardship
3. Laches (delay in bringing action has increased cost of performance or made it difficult)

Question 4

Specific Performance

Answer 4

• available for land and rare or unique goods
• never for services
• Will grant injunction not to work somewhere such as covnenant not to compete as long as services are unique and covenant is rasonable (legitimate interset public, reasonable scope and duration, not harm pulbic)

Question 5

Equitable Recission

Answer 5

Performance duty is excused b/c of impossibility impractiablity or frustration of purpose.

Also used where K is void or voidable on mutal mistake

Question 6

Reformation

Answer 6

where agreement is improperly recorded

Question 7

Cnacellation (art 2)

Answer 7

rejects goods b/c do not confrom to K

Question 8

Reasonable grounds for insecurity adquate assurance of performance (art 2)

Answer 8

either party

in writing demand assurance of performance and may suspend performance untl receives writing. NOt received in 30 days, treated as repudiation

Question 9

Buyer’s Right to Replevy Identified Goods (Art. 2)

Answer 9

• if made prepayment and selller has become insolvent after payment or were purhcased for personal purposes
• Or if unable to secure adequate substitute

Question 10

Buyer’s right to specific perofrmance (art 2)

Answer 10

even where goods have not been identified and when goods are unique or in other proper circumstances

Question 11

SEller’s Right to withold goods (art 2)

Answer 11

Payment not made or finds that buyer is insolvent

Question 12

Sellter’s Right to Recover Goods

Answer 12

Allowed to do if

it is a credit sale

buyer is insolvent when it receives goods

demand for return is made w/in 10 days of the receipt of goods or withn a reasonable time if buyer made false represenations of solvency

Question 13

Seller’s ability to force goods on buyer

Answer 13

limited to an action for price when seller is unable to resll goodes to others at reasonable price

Question 14

Monetary Damages

Answer 14

• compensatory
• punitive
• nominal
• liquidated
  *

Question 15

Compensatory Damages

Answer 15

• put non-breaching party where she would have been had the promise been performed
• Standard measure: what woudl it take to substitute
• Reliance Damages: damages that assess what damages the palintiff had for relying on K. Put them in position had K never existed
• Consequential Damages: damages that any reasonable person would have foreseen. ONly a buyer may do this in sale of goods
• Incidental Damages–Sale of Goods: reaonbly incurred to assess the goods
• Certainty: losses must be certain not speculative

Question 16

Punitive Damages

Answer 16

generally not awarded

Question 17

Nominal Damages

Answer 17

where breach occurs but not actual loss is proven

Question 18

Liquidated Damages

Answer 18

To enforce:

1) damages for contract must be difficult to estimate or ascertain at time of formation; AND
2) the amount agreed on must have been a reaonabel forecast of comepnsatroy damages in the case of breach

look at what was probable at formation

will be upheld even if no loss as long as not construed as a penalty when viewed as whether it was reasoanble at time of formation

Question 19

Buyer’s Monetary Damage in Sale of Goods

Answer 19

• 1) Seller does not deliver or buyer rjects goods or revokes acceptanc
  
  • difference b/w K price and either 1) mkt price or 2) cost of replacement less expenses saves as a result of breach
  • measured at time he learns of breach
• 2) Seller Delivers nonconforming GOods that Buyer Accepts
  
  • Warranty Damages: diff b/w value as delivered and what they are according to K
  • NOtice: must notify of defect in reasonable amount of time of discovery
• 3) SEller’s anticipatory breach
  
  • diff b/w mp at time learned of breach and Kp
• 4) Consequential Damages
  
  • seller liable if he had reason to know of general or particular requeiontments and lsos reasultiong from those needs could not reasonalbye be presented by cover
  • Applies when in resale or manufacture

Question 20

Seller’s Monetary Damages in Sale of Goods

Answer 20

1. Buyer repudiates or refuses to accept
   
   1. diff b/w mp at time of delivery & cp
   2. resell goods and reocver diff b/w CP and resale price
   3. Loss profits diff b/w CP and Cost to seller–only used when others will not put him in as good a position–if lost volume seller always appropriate (supply of goods unlimited for seller)
2. Where buyer accepted goods
   
   1. unable to resell or damaged at reasonable pirce, may maintain action for full CP

Question 21

Contracts for Sale of Land

Answer 21

diff b/w CP and FMV of land

Question 22

Employment K

Answer 22

Employer breach: full CP irrespective of when it occurs but reduced by failure to mitigate

Employee breach: costs to replace employeee minus unpaid amount for work done to the day of breach

Question 23

Construction K

Answer 23

Owner breach: builder entitled to profits that would have resulted + costs

Builder Breach: cost of completion plus reasonable comp for deelay

Question 24

Installment K

Answer 24

Revcoverd only missing payment.

If acceleration clause, may recover full amount on K

Question 25

Mitigation

Answer 25

party who is breached against must mitigate damages. Failure to do so will reduce the amount of their award.

Employment: reaonable care to find similar position

Sale of Goods: resold or find replacement

Manufacturing: not coninuing work after breach

Construction: builder should not conitue work

Question 26

Restitution

Answer 26

• prevent unjust enrichment
• Cna be used when one exists, when uneforecable or where no relationshp esists
• Done in quasi contract
• Measured by the vlaue of hte benefit conferred (detriment or benefit)
• Where K Breached:
  
  • Not available on K when plaintiff has fully perofrmed
  • often desireable where there is a losing K
  • may not be avilable if P intentionall beaches
• K uneforceable–compensate unjust enrichment–replaces voided K
• No Contract:
  
  • P has conferred a benefit
  • Conferred benefit with expectation of being compensated
  • D knew or had reason to know of epxectation AND
  • D would be unjust enriched

Question 27

Recission

Answer 27

remedy when K is consdered voidalbe and rescinded. Left as though it had never been made

• Must occur before time K was entered into
• Grounds
  
  • mutual mistake
  • unilateral mistake if other party knew
  • unilateral mistake if hardship by mistaken party is so extreme
  • mispreresenation fo fact or law
  • other grouds: duressu, influence, illegality, capacity, fialure of consdieartion
• Equitable defenses available

Question 28

Reformation

Answer 28

changes so that it conforms to the original intent

usually based on mutal mistake or undisclosed unilateral mistake

Clear and convincing evidence

parol evidence and SofF does not apply

equitable defenses and existence of bona fide purchaser work

Question 29

SofL under UCC

Answer 29

four year sofL for sales–may shorter by no less than one year but may not lengthen

runs when breach occurs

Breach of warranty runs when goods are delivered