VIII. Remedies Flashcards
Non-Monetary Remedies
- 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
Non Monetary REmedies Generally
Available only if remedieas at law not adequate
Defenses to Non-Monetary Remedies
- Unclean hands
- IMpossibility and hardship
- Laches (delay in bringing action has increased cost of performance or made it difficult)
Specific Performance
- 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)
Equitable Recission
Performance duty is excused b/c of impossibility impractiablity or frustration of purpose.
Also used where K is void or voidable on mutal mistake
Reformation
where agreement is improperly recorded
Cnacellation (art 2)
rejects goods b/c do not confrom to K
Reasonable grounds for insecurity adquate assurance of performance (art 2)
either party
in writing demand assurance of performance and may suspend performance untl receives writing. NOt received in 30 days, treated as repudiation
Buyer’s Right to Replevy Identified Goods (Art. 2)
- if made prepayment and selller has become insolvent after payment or were purhcased for personal purposes
- Or if unable to secure adequate substitute
Buyer’s right to specific perofrmance (art 2)
even where goods have not been identified and when goods are unique or in other proper circumstances
SEller’s Right to withold goods (art 2)
Payment not made or finds that buyer is insolvent
Sellter’s Right to Recover Goods
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
Seller’s ability to force goods on buyer
limited to an action for price when seller is unable to resll goodes to others at reasonable price
Monetary Damages
- compensatory
- punitive
- nominal
- liquidated
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Compensatory Damages
- 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
Punitive Damages
generally not awarded
Nominal Damages
where breach occurs but not actual loss is proven
Liquidated Damages
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
Buyer’s Monetary Damage in Sale of Goods
- 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
Seller’s Monetary Damages in Sale of Goods
- Buyer repudiates or refuses to accept
- diff b/w mp at time of delivery & cp
- resell goods and reocver diff b/w CP and resale price
- 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)
- Where buyer accepted goods
- unable to resell or damaged at reasonable pirce, may maintain action for full CP
Contracts for Sale of Land
diff b/w CP and FMV of land
Employment K
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
Construction K
Owner breach: builder entitled to profits that would have resulted + costs
Builder Breach: cost of completion plus reasonable comp for deelay
Installment K
Revcoverd only missing payment.
If acceleration clause, may recover full amount on K
Mitigation
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
Restitution
- 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
Recission
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
Reformation
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
SofL under UCC
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
