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Flashcards in Remedies Deck (27):
1

Specific Performance

an equitable remedy where the court orders specific performance of the obligation.

2

Specific performance is __________ available for sale of land contracts.

always

3

Specific performance is also available when the goods in question are _________ or _________ at the time performance is due.

rare; unique

4

Is specific performance available for service contracts?

No

5

What are the three big defenses to specific performance?

1) laches; 2) unclean hands; and 3) sale to a bona fide purchaser.

6

Laches

a claim that the plaintiff has delayed bringing an action and that the delay has prejudiced the defendant.

7

Unclean Hands

a claim that the party seeking performance is guilty of wrongdoing in the transaction being sued upon.

8

Is specific performance enforceable against a bona fide purchaser?

No.

9

If the buyer fails to make a payment due on or before delivery, the seller may . . .

withhold delivery of the goods.

10

When can a seller force a buyer to buy goods?

only where the seller cannot sell the goods to others at a reasonable price.

11

What is a party's best remedy where there are circumstances which suggest a possibility of nonperformance by the other party, but it is not clear that the other party will not perform?

the party should make a written demand for assurances, as is their right.

12

What is the standard type of damages a nonbreaching party is entitled to when there is a breach?

expectation damages

13

How are expectation damages measured?

the cost of acquiring substitute performance.

14

If a plaintiff's expectation damages are too speculative, what kind of damages might she want to pursue instead?

reliance damages

15

How are reliance damages measured?

the cost of her performance; i.e. whatever actions she took must be compensated.

16

When are consequential damages awarded?

when the nonbreaching party loses profits due to the other party's nonperformance.

17

When are incidental damages awarded?

in a sale of goods contract where the buyer incurs costs in anticipation of receiving the goods.

18

When are punitive damages awarded?

punitive damages are usually not awarded in contract cases, because damages in contract are not intended to punish the defendant, but to compensate the plaintiff.

19

When are nominal damages awarded?

where there is a breach of a contract but no real damages.

20

Liquidated Damages

damages that are agreed between the parties to be paid in the event of a breach. These must be reasonable.

21

What are the requirements for enforcing a liquidated damages clause?

the damages must be 1) difficult to ascertain at the time the contract was formed; and 2) the amount agreed on must be a reasonable forecast of compensatory damages in the case of breach.

22

Can liquidated damages be awarded even if there is not actual monetary loss by the nonbreaching party?

Yes

23

What is the measure of restitution damages?

the value of the benefit conferred.

24

Rescission

a remedy whereby the original contract is considered voidable and rescinded.

25

What are the grounds for rescission?

generally, mistake, mutual mistake, and misrepresentation.

26

For sales of goods contracts, the UCC provides a _____ year statute of limitations.

4

27

Can parties to a sale of goods contract shorten the statute of limitations period by agreement?

yes, but cannot shorten it to less than one year. They cannot lengthen it.