What are the two types of non-monetary damages?
1. Specific performance/injunction
2. Reclamation from insolvent buyer
What are the two requirements for specific performance/injunction?
1. Money damages must be inadequate
2. Party seeking it must have superior equities
Is specific performance available in a real estate contract?
Yes, unless there is another buyer who is a BFP
Why is specific performance not allowed where the other buyer is a BFP?
Because a BFP will always have the most superior equities
Is specific performance available for the sale of custom goods?
Yes
Is specific performance available for a services contract?
No
In a services contract, what non-monetary remedy could be sought?
An injunction to prevent the party from acting for a competitor
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
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
What is the purpose of money damages?
Compensate plaintiff, not punish defendant
What are money damages intended to protect?
Exceptation; look for anticipation of profit
How do we determine damages?
Difference between $ value of performance with and without breach
What is the purpose of sale of goods money damages?
To put the innocent party in the position they would be without breach
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
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
How do we calculate money damages if buyer breaches and buyer keeps goods?
Damages are the price of the contract
How do we calculate money damages if buyer breaches and seller has goods?
Contract price minus resale
How do we calculate money damages if buyer breaches, and seller has goods but cannot resell them?
Contract price plus provable lost profits
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
What are incidental damages?
Costs incurred in dealing with a breach
What are two examples of incidental damages?
1. Storing the goods
2. Finding a replacement in a services contract
Are incidental damages recoverable?
Always
What are consequential damages?
Damages arising from the plaintiff's special circumstances
Are consequential damages recoverable?
Only if defendant had reason to know of P's special circumstances
What are two examples of avoidable damages?
1. Continuing to perform after other party breaches
2. Turning down other comparable opportunities after breach
Are avoidable damages recoverable? How come?
No, party should have avoided them
What facts will suggest to us damages that cannot be established with reasonable certainty?
New business activity with no showable past profits
Where damages cannot be established with reasonable certainty, how can a party recover for out of pocket expenses?
Reliance damages
What sort of liquidated damages clauses will not be valid?
Where damages are a fixed amount, irrespective of the extent of the breach
