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1. Subsections (2), (3), and (4) of §2-718, which are not reprinted here, deal with a defaulting buyer's right to recover down payments. Reconsider the Code provisions on damages reprinted supra p. 1132. Do you take it that a liquidated damage clause, although "reasonable," would nevertheless be unenforceable under §2-718(1) if one of the damage sections provided an "adequate remedy"? If that is so, can there ever be an enforceable liquidated damage clause under the Code?3
Under §§2-718(1) and 2-719, what result in Kemble v. Farren? McCarthy v. Tally? Better Food Markets v. American District Telegraph Co.? Priebe & Sons v. United States? Klar v. H. & M. Parcel Room, Inc.? Restatement Second §356(1) ("Liquidated Damages and Penalties") contains language that is nearly identical to U.C.C. §2-718(1).
June 02, 2014
Kessler, Gilmore & Kronman
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