Printable Format84-2-716. Buyer's right to specific performance or replevin. (1) Specific performance may be decreed where the goods are unique or in other proper circumstances.
(2) The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.
(3) The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered. In the case of goods bought for personal, family or household purposes, the buyer's right of replevin vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.
History: L. 1965, ch. 564, § 112; L. 2000, ch. 142, § 141; July 1, 2001.
KANSAS COMMENT, 1996
1. This section gives the buyer a right to recover the goods from the seller comparable to the seller's right to the price under section 84-2-709. Subsection (1) expands and liberalizes the buyer's remedy of specific performance. This subsection still covers cases involving traditionally "unique" goods, but Article 2 extends the remedy into commercial settings as well. Official Comment 2 to this section directs courts to look at the "total situation" in evaluating uniqueness, with a focus on the commercial feasibility of replacement. Thus, an output or requirements contract that involves a particular or peculiarly available source or market is a typical case in which specific performance should be available under Article 2. See, e.g., Missouri Pub. Serv. Co. v. Peabody Coal Co., 583 S.W.2d 721 (Mo. App.), cert. denied, 444 U.S. 865 (1979). Similarly, Official Comment 2 states that inability to cover is strong evidence of other proper circumstances in which specific performance may be appropriate. See Zurn Constructors, Inc. v. B.F. Goodrich Co., 685 F. Supp. 1172 (D. Kan. 1988) (granting preliminary injunctive relief). Subsection (2) makes clear that the court may fashion a decree under such terms and conditions as the court deems just.
2. Subsection (3) states the buyer's right of replevin in terms that make the remedy available as of right, unlike specific performance, which under subsection (1) is discretionary with the court. Under subsection (3), a buyer may replevy goods that have been identified to the contract (see 84-2-501) when cover is not reasonably available or the goods have been shipped under reservation and the buyer has tendered satisfaction of the security interest in the goods.
Law Review and Bar Journal References:
"Remedies for Breach of Sales Contract Under the Code," Keith Hey, 7 W.L.J. 35, 39, 40 (1967).
"Deregulation and Natural Gas Purchase Contracts: Examination Through Neoclassical and Relational Contract Theories," Danton B. Rice, Michael A. Schlueter, 25 W.L.J. 43, 59 (1985).
CASE ANNOTATIONS
1. Preliminary injunction against termination of supply contract, though modified because of shortage and buyer's other supplier, examined. Zurn Constructors, Inc. v. B.F. Goodrich Co., 685 F. Supp. 1172, 1186 (D. Kan. 1988).