| Posted: 31 Dec 2009 at 16:45 | IP Logged
|
|
|
Becker's answer says that patents are unique & hence considered. Its not elaborated anywhere else in the book.
However i just found something online:
Specific performance grants the plaintiff what he actually bargained
for in the contract rather than damages (pecuniary compensation for
loss or injury incurred through the unlawful conduct of another) for
not receiving it; thus specific performance is an equitable rather than
legal remedy. By compelling the parties to perform exactly what they
had agreed to perform, more complete and perfect justice is achieved
than by awarding damages for a breach of contract.
Specific performance can be granted only by a court in the exercise of its EQUITY
powers, subsequent to a determination of whether a valid contract that
can be enforced exists and an evaluation of the relief sought. As a
general rule, specific performance is applied in breach of contract
actions where monetary damages are inadequate, primarily where the
contract involves land or a unique chattel (PERSONAL PROPERTY).
Damages for the breach of a contract for the sale of ordinary personal
property are, in most cases, readily ascertainable and recoverable so
that specific performance will not be granted.
So my understanding from the above is:
1. That property must be bargained for in the contract
2. It must be unique - in the sense that it should not be available easily elsewhere & its value is not easily determinable
3. Compensation by monetary damages would not put the plaintiff back to his/her earlier position (basically when monetary damage of any value is itself inadequate)
Contract of employment, sale of fungible goods are not unique personal properties, given in Becker.
It makes better sense now, but i am hoping they don't ask this in my exam!
__________________
FAR-11/21/09 [97]
REG-02/06/10 [95]
BEC-04/03/10 [85]
AUD-07/07/10 [93]
Colorado board
I am done!
|
Active Topics 
Memberlist 
Search 
Help
Register 
Login
Topic: Damages
Topic Closed)
