6. Remedies for Unexcused Non-Performance Flashcards Preview

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Flashcards in 6. Remedies for Unexcused Non-Performance Deck (29)
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1

What are the two types of non-monetary damages?

1. Specific performance/injunction

2. Reclamation from insolvent buyer

2

What are the two requirements for specific performance/injunction?

1. Money damages must be inadequate

2. Party seeking it must have superior equities

3

Is specific performance available in a real estate contract?

Yes, unless there is another buyer who is a BFP

4

Why is specific performance not allowed where the other buyer is a BFP?

Because a BFP will always have the most superior equities

5

Is specific performance available for the sale of custom goods?

Yes

6

Is specific performance available for a services contract?

No

7

In a services contract, what non-monetary remedy could be sought?

An injunction to prevent the party from acting for a competitor

8

What are the three requirements for a seller to get goods back from an insolvent buyer?

1. Buyer must have been insolvent when it received the goods

2. Seller must demand goods back within 10 days of receipt

3. Buyer must still have goods at the time of the demand

9

When might the 10 day period be extended regarding reclamation from an insolvent buyer?

If the buyer made an express representation of solvency to the seller, the period becomes a reasonable time

10

What is the purpose of money damages?

Compensate plaintiff, not punish defendant

11

What are money damages intended to protect?

Exceptation; look for anticipation of profit

12

How do we determine damages?

Difference between $ value of performance with and without breach

13

What is the purpose of sale of goods money damages?

To put the innocent party in the position they would be without breach

14

How do we calculate money damages if seller breaches and buyer has goods?

Market value if perfect minus market value as delivered + any cost of repair

15

How do we calculate money damages if seller breaches and seller has goods?

Market price when breach is discovered minus contract price

OR

Reasonable replacement price minus contract price

16

How do we calculate money damages if buyer breaches and buyer keeps goods?

Damages are the price of the contract

17

How do we calculate money damages if buyer breaches and seller has goods?

Contract price minus resale

18

How do we calculate money damages if buyer breaches, and seller has goods but cannot resell them?

Contract price plus provable lost profits

19

Where buyer breaches and seller has goods, what is the consequence if the goods were from seller's regular inventory?

Even if seller resells goods, buyer is still liable for the cost of his breach, because regular inventory indicates seller would have made two sales but for the breach

20

What are incidental damages?

Costs incurred in dealing with a breach

21

What are two examples of incidental damages?

1. Storing the goods

2. Finding a replacement in a services contract

22

Are incidental damages recoverable?

Always

23

What are consequential damages?

Damages arising from the plaintiff's special circumstances

24

Are consequential damages recoverable?

Only if defendant had reason to know of P's special circumstances

25

What are two examples of avoidable damages?

1. Continuing to perform after other party breaches

2. Turning down other comparable opportunities after breach

26

Are avoidable damages recoverable? How come?

No, party should have avoided them

27

What facts will suggest to us damages that cannot be established with reasonable certainty?

New business activity with no showable past profits

28

Where damages cannot be established with reasonable certainty, how can a party recover for out of pocket expenses?

Reliance damages

29

What sort of liquidated damages clauses will not be valid?

Where damages are a fixed amount, irrespective of the extent of the breach