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

2. When might damages not suffice? 2

3.  Things of idiosyncratic value to a purchaser 3

4. 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”

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

6. When do damages not suffice?  Things of idiosyncratic value to a purchaser Beyond that? Sedmak 880 6 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” 7

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

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 9

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? 10

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

12. When do damages not suffice?  Klein v. Pepsico 12 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? 13

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? 14

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? 15

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”? 16

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 17

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? 18

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

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

21. When do damages not suffice?  Monetary Specific Performance: Bander v. Grossman 884 21 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 22

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 23

24. When do damages not suffice?  Marketing Contracts: Playgirl 886 24 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”? 25

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 26

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

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? 28

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

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

31. When do damages not suffice?  Personal Services http://www.youtube.com/watch?v=iXw9olWJ0Ak 31 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 32

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