George Mason School of Law
Contracts II
Specific Performance
F.H. Buckley
fbuckley@gmu.edu
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When might damages
not suffice?
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When might damages
not suffice?
 Things of idiosyncratic value to a
purchaser
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When do damages
not suffice?
 Things of idiosyncratic value to a
purchaser
 Land: Lucy v. Zehmer
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“Tis the only thing worth
fighting for, worth dying for”
When do damages
not suffice?
 Things of idiosyncratic value to a
purchaser
 Heirlooms
The Pusey Horn
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When do damages
not suffice?
 Things of idiosyncratic value to a
purchaser
 Beyond that? Sedmak 880
1978 Corvette Pace Car
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When do damages
not suffice?
 Things of idiosyncratic value to a
purchaser
 Beyond that? Sedmak
 Deposit paid, sale at MSRP with options
 After the changes, dealer to provide a
“contract”
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When do damages
not suffice?
 Things of idiosyncratic value to a
purchaser
 Beyond that? Sedmak
 Was there a contract?
 Statute of Frauds?
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When do damages
not suffice?
 Things of idiosyncratic value to a
purchaser
 Beyond that? Sedmak
 Specific Performance
 UCC § 2-716(1): “unique goods or in other
proper circumstances”
 Comment 1
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When do damages
not suffice?
 Why “proper circumstances” in
Sedmak?
 Limited production and availability
problems
 Rise in price?
 Why not monetary damages for this?
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When do damages
not suffice?
 Klein v. Pepsico 107
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The Law School’s Gulfstream G-II
“The Efficient Breach”
When do damages
not suffice?
 Klein v. Pepsico
Donald Kendall pours Nikita Krushschev a Pepsi
as Richard Nixon observes, 1959
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When do damages
not suffice?
 Klein v. Pepsico
 Was the plane unique?
 What about the price increase?
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When do damages
not suffice?
 Klein v. Pepsico
 Was the plane unique?
 What about the price increase?
 Could money damages make the Π whole
with respect to the price increase?
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When do damages
not suffice?
 Klein v. Pepsico
 Was the plane unique?
 What about the price increase?
 Could money damages make the Π whole
with respect to the price increase?
 Would they make him whole under UCC §§ 2712, 2-715?
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When do damages
not suffice?
 Klein v. Pepsico
 Was the plane unique?
 What about the price increase?
 Who bears the risk of a cover? Is it solely the
buyer?
 Does the seller have an incentive to “cover”?
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When do damages
not suffice?
 Klein v. Pepsico
 Was the plane unique?
 What about the price increase?
 Who bears the risk of a cover? Is it solely the
buyer?
 Does the seller have an incentive to “cover”?
 Do damages systematically undercompensate?
 The American rule of costs
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When do damages
not suffice?
 Klein v. Pepsico
 Was the plane unique?
 What about the price increase?
 Who bears the risk of a cover? Is it solely the
buyer?
 Does the seller have an incentive to “cover”?
 Do damages systematically undercompensate?
 Does that explain why SP is sought?
 Or denied?
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When do damages
not suffice?
 Triple A Baseball Club 883
The Maine Phillies
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When do damages
not suffice?
 Triple A Baseball Club
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Doug Jones, 303 saves
in the majors
When do damages
not suffice?
 Monetary Specific Performance: Bander
v. Grossman 884
Aston Martin DB-5
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When do damages
not suffice?
 Monetary Specific Performance: Bander
v. Grossman




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Purchase price of $40,000
Price at breach of $60,000
Resale for $225,000
Price at trial of $80,000
When do damages
not suffice?
 Monetary Specific Performance: Bander
v. Grossman





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Purchase price of $40,000
Price at breach of $60,000
Resale for $225,000
Price at trial of $80,000
Damages of $20,000 awarded
When do damages
not suffice?
 Marketing Contracts: Playgirl 886
Centerfold Winner Sen. Scott Brown (R. MA)
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When do damages
not suffice?
 Marketing Contracts: Playgirl
 Is it indeed the case that “Playgirl alone and
uniquely provides an advertising audience
composed of young, malleable and affluent
females”?
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When do damages
not suffice?
 Marketing Contracts: Playgirl
 Is it indeed the case that “Playgirl alone and
uniquely provides an advertising audience
composed of young, malleable and affluent
females”?
 The Court: We think there are a lot of other
magazines that cater to this market
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When might damages suffice?
 When damages are wholly
compensatory, might SP
overcompensate?
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When might damages suffice?
 When damages are wholly
compensatory, SP might
overcompensate
 Jacob and Youngs v. Kent: what result if SP
had been available?
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When might damages suffice?
 When damages as wholly compensatory,
SP might overcompensate
 Costs of judicial supervision of
performance
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When might damages suffice?
 When damages as wholly compensatory,
SP might overcompensate
 Costs of judicial supervision of
performance
 Interference with liberty interests
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When do damages
not suffice?
 Personal Services
Anita Baker
http://www.youtube.com/watch?v=iXw9olWJ0Ak
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When do damages
not suffice?
 Personal Services
 No SP, no injunction
 Damages remedy against Warner
http://www.youtube.com/watch?v=iXw9olWJ0Ak
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George Mason School of Law
Contracts II
Reliance Damages
F.H. Buckley
fbuckley@gmu.edu
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