Black-letter propositions
- 01
Specific performance requires inadequate legal remedy, sufficiently certain terms, feasible enforcement, and equitable conduct; land and unique goods often qualify.
- 02
Personal services are not specifically enforced, but a valid negative covenant may sometimes be enjoined without coercing service.
- 03
Liquidated damages are enforceable when actual loss was difficult to estimate and the amount was a reasonable forecast or measure under the governing test, not a penalty.
- 04
A UCC buyer may cover, recover market damages, obtain identified goods in limited cases, or seek specific performance for unique goods.
- 05
A UCC seller may resell, recover market damages, sometimes recover the price, or obtain lost-volume profit when ordinary resale does not replace the lost sale.
Use this attack sequence under time
Frame the issue
Explain why damages are adequate or inadequate.
Resolve the next checkpoint
Check certainty, feasibility, mutuality concerns, and defenses.
Resolve the next checkpoint
For liquidated damages, identify estimation difficulty and proportionality.
Finish the conclusion
For sales, choose buyer or seller formula and relevant market time and place.
Common wrong turns
- A high stipulated sum triggered by any breach is likely a penalty.
- Specific performance is discretionary, not automatic for every land contract.
- Seller resale proceeds do not necessarily eliminate lost-volume profit.
Worked example
A contract sets $100,000 damages for any breach, including one-day delay, when likely losses were easy to estimate at $500 per day.
The clause is punitive rather than a reasonable estimate and likely unenforceable. The injured party may recover proven actual damages instead.
Practice this topic
Equitable and agreed remedies
UCC 2-716(1) says specific performance may be decreed where the goods are unique or in other proper circumstances, and 2-716(3) gives a right of replevin for goods identified to the contract if the buyer cannot cover after reasonable effort. Cornell describes specific performance as a remedy ordering a party to fulfill obligations as closely as possible to what was promised, often when damages are inadequate and the subject matter is unique.
UCC 2-718(1) says damages may be liquidated in the agreement but only at an amount reasonable in light of the anticipated or actual harm, the difficulty of proving loss and the inconvenience of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.
Seller's remedies and limitations
UCC 2-703 lists the aggrieved seller's remedies: withhold delivery, stop delivery, resell and recover damages, recover damages for non-acceptance or in a proper case the price, and cancel. Section 2-709 permits an action for the price of accepted goods and of certain goods the seller cannot resell at a reasonable price.
UCC 2-719(1) lets the agreement provide for additional or substitute remedies and limit the measure of damages. Section 2-719(2) says where an exclusive or limited remedy fails of its essential purpose, remedy may be had as provided in the Act. Section 2-719(3) says consequential damages may be limited or excluded unless unconscionable, and limiting them for personal injury in consumer goods is prima facie unconscionable.
Frequently asked questions
What is the controlling rule for specific performance, liquidated damages, and ucc remedies?+
Specific performance addresses inadequate damages, while liquidated damages must reasonably estimate difficult loss rather than punish, and Article 2 supplies transaction-specific buyer and seller remedies.
When may specific performance be decreed for goods?+
Where the goods are unique or in other proper circumstances, under UCC 2-716(1).
When is a liquidated damages clause enforceable?+
When the amount is reasonable in light of anticipated or actual harm, the difficulty of proving loss and the inconvenience of obtaining an adequate remedy, under UCC 2-718(1).
What remedies does UCC 2-703 give an aggrieved seller?+
Withholding or stopping delivery, resale with damages, damages for non-acceptance or the price in a proper case, and cancellation.
What if a limited remedy fails of its essential purpose?+
Remedy may be had as provided in the Act, according to UCC 2-719(2).