George Mason School of Law. Contracts II Specific Performance F.H. Buckley fbuckley@gmu.edu. When will specific performance be granted?. And why are money damages the presumptive remedy?. Restatement § 359(1): The primacy of money damages.
Une image / un lien ci-dessous est fourni (tel quel) pour télécharger la présentation
Politique de téléchargement : le contenu du site vous est fourni TEL QUEL pour votre information et votre usage personnel ; il ne peut être vendu, concédé sous licence ni partagé sur d’autres sites sans l’accord de son auteur.Le contenu vous est fourni TEL QUEL, pour votre information et votre usage personnel uniquement.Téléchargez la présentation en cliquant sur ce lien.Lors du téléchargement, si vous ne parvenez pas à télécharger une présentation, l’éditeur a peut-être supprimé le fichier de son serveur.Pendant le téléchargement, si vous ne parvenez pas à obtenir une présentation, le fichier a peut-être été supprimé par l’éditeur.
Equitable remedies are discretionary • The clean hands maxim • Restatement 364(1)(a) Specific performance or an injunction will be refused if such relief would be unfair because the contract was induced by mistake or by unfair practices...or
Equitable remedies are discretionary • The court’s supervisory power • Restatement 365: Specific performance or an injunction will not be granted if the act or the forbearance … is contrary to public policy
Equitable remedies are discretionary • Difficulty of enforcement • Restatement 366: Where the character and magnitude of the performance would impose on the court burdens in enforcement or supervision that are disproportionate to the advantage to be gained from enforcement and to the harm that would be suffered by ots denial
When money doesn’t suffice • Restatement § 360 In determining whether the remedy in damages would be adequate, the following circumstances are significant: • (a) the difficulty of proving damages with reasonable certainty, • (b) the difficulty of procuring a suitable substitute performance by means of money awarded as damages, and • (c) the likelihood that an award of damages could not be collected.
What about personalty? • On a sale of goods, when can the parties enforce the bargain? • Formerly, special rights when property has passed
What about personalty? • The UCC unpacks the idea of property and substitutes “identification”
What about personalty? • After identification • Seller’s action for the price • Buyer’s action in replevin
Seller’s action for the price under 2-709(1) • When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under the next section, the price • (a) of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; and • (b) of goods identified to the contractif the selleris unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.
Seller’s action for the price under 2-709(1) • When the buyer fails to pay the price as it becomes due the seller may recover, together with any incidental damages under the next section, the price • (a) of goods accepted or of conforming goods lost or damaged within a commercially reasonable time after risk of their loss has passed to the buyer; and • (b) of goods identified to the contractif the selleris unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.
Buyer’s action in Replevin: UCC § 2-716(3) • The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.
Buyer’s action in Replevin: UCC § 2-716(3) • The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.
Buyer’s action in Replevin: UCC § 2-716(3) • The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.
So when does identification happen? UCC § 2-501: • In the absence of explicit agreement identification occurs (a) when the contract is made if it is for the sale of goods already existing and identified; (b) if the contract is for the sale of future goods other than those described in paragraph (c), when goods are shipped, marked or otherwise designated by the seller as goods to which the contract refers
So when does identification happen? UCC § 2-501 • In the absence of explicit agreement identification occurs (a) when the contract is made if it is for the sale of goods already existing and identified; (b) if the contract is for the sale of future goods other than those described in paragraph (c), when goods are shipped, marked or otherwise designated by the seller as goods to which the contract refers
Specific Performance for buyers in the UCC • Why “proper circumstances” in Sedmak? • Limited production and availability problems • Rise in price? • Why wouldn’t cover and damages suffice? 42
Buyer’s action in Replevin: UCC § 2-716(3) • The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered.
