(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: 1953 Comp., § 50A-2-716, enacted by Laws 1961, ch. 96, § 2-716; 2001, ch. 139, § 132.

OFFICIAL COMMENTS

UCC Official Comments by ALI & the NCCUSL. Reproduced with permission of the PEB for the UCC. All rights reserved.

Prior uniform statutory provision. — Section 68, Uniform Sales Act.

Changes. — Rephrased.

Purposes of changes. — To make it clear that:

1. The present section continues in general prior policy as to specific performance and injunction against breach. However, without intending to impair in any way the exercise of the court's sound discretion in the matter, this article seeks to further a more liberal attitude than some courts have shown in connection with the specific performance of contracts of sale.

2. In view of this article's emphasis on the commercial feasibility of replacement, a new concept of what are "unique" goods is introduced under this section. Specific performance is no longer limited to goods which are already specific or ascertained at the time of contracting. The test of uniqueness under this section must be made in terms of the total situation which characterizes the contract. Output and requirements contracts involving a particular or peculiarly available source or market present today the typical commercial specific performance situation, as contrasted with contracts for the sale of heirlooms or priceless works of art which were usually involved in the older cases. However, uniqueness is not the sole basis of the remedy under this section for the relief may also be granted "in other proper circumstances" and inability to cover is strong evidence of "other proper circumstances".

3. The legal remedy of replevin is given the buyer in cases in which cover is reasonably unavailable and goods have been identified to the contract. This is in addition to the buyer's right to recover identified goods on the seller's insolvency (Section 2-502).

4. This section is intended to give the buyer rights to the goods comparable to the seller's rights to the price.

5. If a negotiable document of title is outstanding, the buyer's right of replevin relates of course to the document not directly to the goods. See Article 7, especially Section 7-602.

Point 3: Section 2-502.

Point 4: Section 2-709.

Point 5: Article 7.

"Buyer". Section 2-103.

"Goods". Section 1-201.

"Rights". Section 1-201.

The 2001 amendment, effective July 1, 2001, inserted the last sentence of Subsection (3).

Specific performance proper even though goods not unique. — Where the evidence shows that no seller was willing to make a long-term contract with the buyer on any basis other than the market price at the time of delivery and there was no way to predict the price the buyer might have to pay, specific performance is a proper remedy, even though the goods involved are not "unique" in the traditional sense of that term. United Nuclear Corp. v. General Atomic Co., 1980-NMSC-094, 96 N.M. 155, 629 P.2d 231, appeal dismissed, 451 U.S. 901, 101 S. Ct. 1966, 68 L. Ed. 2d 289 (1981).

Law reviews. — For article, "Special Property Under the Uniform Commercial Code: A New Concept in Sales," see 4 Nat. Resources J. 98 (1964).

For article, "Buyers and Sellers of Goods in Bankruptcy," see 1 N.M. L. Rev. 435 (1971).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 68A Am. Jur. 2d Secured Transactions § 42; 71 Am. Jur. 2d Specific Performance § 153.

Specific performance, or injunction against breach, of contract for sale of tangible personal property, 152 A.L.R. 4

Specific performance of contract which expressly leaves open for future agreement or negotiation the terms of payment for property, 68 A.L.R.2d 1221.

Specific performance of sale of goods under UCC § 2-716, 26 A.L.R.4th 294.

77 C.J.S. Replevin § 1 et seq.; 77A C.J.S. Sales § 389 et seq.; 81 C.J.S. Specific Performance § 65.