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What NON-MONETARY remedies are available?
- Specific performance
- Seller's right to reclaim
When is SPECIFIC PERFORMANCE available?
- Real property
- Goods are "unique" (e.g., no substitute goods in market)
- Covenants not to compete (e.g., prevent you from working for a competitor)
- Can NEVER require performance of services (tantamount to slavery)
When can an UNPAID SELLER RECLAIM GOODS (Art 2)?
1) WITHIN 10 DAYS (of buyer's receipt) if buyer was INSOLVENT when goods were RECEIVED and seller demands return within 10 DAYS
2) ANY TIME if buyer misrepresented its solvency to seller in a writing within 3 MONTHS BEFORE delivery
What MONETARY REMEDIES are available
- LIQUIDATED damages
- Common law EXPECTATION damages (generally applied)
- BUYER'S Article 2 expectation damages (cover, market, loss in value)
- SELLER'S Article 2 expectation damages (resale, market, lost profit for lost-volume sellers, contract price)
- INCIDENTAL damages
- CONSEQUENTIAL damages
BUYER'S ARTICLE 2 EXPECTATION DAMAGES. How do you calculate
3) Loss in value?
1) COVER = Cover price – K Price (if cover made in good faith) [usual measure]
2) MARKET = Market Price – K Price (if cover not in good faith, or no cover at all)
3) LOSS IN VALUE = Value as PROMISED – value AS DELIVERED
SELLER'S ARTICLE 2 EXPECTATION DAMAGES. How do you calculate
3) Lost profit?
4) Contract price?
1) RESALE = K price – Resale price (in good faith) [usual measure]
2) MARKET = K price – MARKET price (resale not in good faith, no resale at all)
3) LOST PROFIT = PROFIT lost from K breach where seller has an INVENTORY of goods (always on MBE)
4) CONTRACT PRICE = if seller can't resell the goods (no market exists)
What COSTS be recovered as INCIDENTAL DAMAGES?
- Arranging a substitute transaction
- Transport of goods
- Storage (care) of goods
When are CONSEQUENTIAL DAMAGES available?
Consequential damages are available when
- 1 ) THIS PARTICULAR damage
- 2) to THIS plaintiff was
- 3) REASONABLE FORESEEABLE to the breaching party
- 4) WHEN K WAS MADE
***Note, consequential damages are not available to a seller under Article 2
Can a party recover damages he could have avoided ("mitigated")?
NO—Not if the damages could have been avoided with REASONABLE EFFORT.
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