George Mason School of Law

1. George Mason School of Law Contracts II Specific Performance F.H. Buckley fbuckley@gmu.edu

2. When might damages not suffice?

3. When might damages not suffice? • Things of idiosyncratic value to a purchaser

4. When do damages not suffice? • Things of idiosyncratic value to a purchaser • Land: Lucy v. Zehmer “Tis the only thing worth fighting for, worth dying for”

5. When do damages not suffice? • Things of idiosyncratic value to a purchaser • Heirlooms The Pusey Horn

6. When do damages not suffice? • Things of idiosyncratic value to a purchaser • Beyond that? Sedmak 880 1978 Corvette Pace Car

7. 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”

8. When do damages not suffice? • Things of idiosyncratic value to a purchaser • Beyond that? Sedmak • Was there a contract? • Statute of Frauds?

9. 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

10. When do damages not suffice? • Why “proper circumstances” in Sedmak? • Limited production and availability problems • Rise in price? • Why not monetary damages for this?

11. When do damages not suffice? • Klein v. Pepsico 107 The Law School’s Gulfstream G-II “The Efficient Breach”

12. When do damages not suffice? • Klein v. Pepsico Donald Kendall pours Nikita Krushschev a Pepsi as Richard Nixon observes, 1959

13. When do damages not suffice? • Klein v. Pepsico • Was the plane unique? • What about the price increase?

14. 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?

15. 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 §§ 2-712, 2-715?

16. 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”?

17. 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

18. 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?

19. When do damages not suffice? • Triple A Baseball Club 883 The Maine Phillies

20. When do damages not suffice? • Triple A Baseball Club Doug Jones, 303 saves in the majors

21. When do damages not suffice? • Monetary Specific Performance: Bander v. Grossman 884 Aston Martin DB-5

22. When do damages not suffice? • Monetary Specific Performance: Bander v. Grossman • Purchase price of $40,000 • Price at breach of $60,000 • Resale for $225,000 • Price at trial of $80,000

23. When do damages not suffice? • Monetary Specific Performance: Bander v. Grossman • 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

24. When do damages not suffice? • Marketing Contracts: Playgirl 886 Centerfold Winner Sen. Scott Brown (R. MA)

25. 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”?

26. 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

27. When might damages suffice? • When damages are wholly compensatory, might SP overcompensate?

28. When might damages suffice? • When damages are wholly compensatory, SP might overcompensate • Jacob and Youngs v. Kent: what result if SP had been available?

29. When might damages suffice? • When damages as wholly compensatory, SP might overcompensate • Costs of judicial supervision of performance

30. When might damages suffice? • When damages as wholly compensatory, SP might overcompensate • Costs of judicial supervision of performance • Interference with liberty interests

31. When do damages not suffice? • Personal Services http://www.youtube.com/watch?v=iXw9olWJ0Ak Anita Baker

32. When do damages not suffice? • Personal Services • No SP, no injunction • Damages remedy against Warner http://www.youtube.com/watch?v=iXw9olWJ0Ak

33. George Mason School of Law Contracts II Reliance Damages F.H. Buckley fbuckley@gmu.edu