Case 2-2Contex Homes Corp.V. V. BoagQuestions and Answers

1. What are the claims of the plaintiff in this case?

Specific performance for the Boags to purchase the apartment on the terms agreed upon, or, alternatively, payment of the liquidated damages which, in its opinion, should be $6,870 in addition to the $525 deposit already paid.

2. On what grounds does the plaintiff base its claim (s)?

The subject matter of the contract is the purchase of real property （不动产） . For disputes arising out of real property sales the equitable relief of specific performance is available.

3.What is the rationale for equitable remedies in general?

Equitable remedy is granted where the remedy at law is inadequate.

4. What is the rationale for specific performance in cases where the buyer of real property is the plaintiff?

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Real property is unique, i.e. if seller breaches the contract, it is unlikely that the buyer will get an identical piece from elsewhere. That is the rationale for specific performance in real estate transactions.

5. What is the rationale for specific performance in cases where the seller of real property isthe plaintiff?

The rationale is mutuality, which means that if buyer can have specific performance in the event of seller’s default, seller should also have the remedy of specific performance if buyer defaults.

6. Is the remedy of specific performance applicable in this case? Why or why not?

No. Because the apartment the buyer has agreed to buy is not unique. There are thousands of almost identical apartments put up for sale by the developer. The developer uses model units in much the same way sellers of personal property use samples. In fact the apartments have many characteristics of personal property （ personal estate 个人财产， 动产）

7. What is the opinion of the court with regard to the second count （诉讼理由，争论点） of plaintiff's claim?

The court here dismissed the second count of plaintiff’s claim, which was for the payment of the $6,870 as liquidated damages, because the contract clause provided that money already paid at the time of default should be regarded as payment of liquidated damages. the $6,870 check was not “money already paid at the time of default”, because default occurred at the time when the defendant stopped payment on the check, and the only money already paid at that time was the $525 deposit.

8. What has the seller to prove in seeking specific performance of a real estate contract?

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He has to prove that without specific

performance, he would suffer at an economic injury for which no remedy at law would be adequate, or that equitable considerations would require that remedy of specific performance be granted .

9. Translate: "While the inadequacy of the damage remedy suffices to explain the origin of the buyer's right to obtain specific performance in equity, it does not provide a rationale for the availability of the remedy at the instance of the seller of real estate."

违约补偿金不够， 这一点已足以说明购买方为什么有权获得实际履行这种衡平救济， 但不能成为不动产的卖方获得这种救济的理由 .