1 George Mason School of Law Contracts II Specific Performance F.H. Buckley

When might damages not suffice? 2

 Things of idiosyncratic value to a purchaser 3

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

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

When do damages not suffice?  Things of idiosyncratic value to a purchaser Beyond that? Sedmak Corvette Pace Car

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” 7

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

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 9

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

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

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

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

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? 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?  Would they make him whole under UCC §§ , 2-715? 15

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”? 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”? Do damages systematically undercompensate?  The American rule of costs 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? Does that explain why SP is sought?  Or denied? 18

When do damages not suffice?  Triple A Baseball Club The Maine Phillies

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

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

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 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 Damages of $20,000 awarded 23

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

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”? 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”? The Court: We think there are a lot of other magazines that cater to this market 26

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

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

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

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

When do damages not suffice?  Personal Services 31 Anita Baker

When do damages not suffice?  Personal Services No SP, no injunction Damages remedy against Warner 32

33 George Mason School of Law Contracts II Reliance Damages F.H. Buckley