CA Bar Exam 練習答案: Remedies (July 2007)

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問題文

July 2007 Question 5
https://nwculaw.edu/pdf/bar/July%202007%20Essays%20and%20Sample%20Answers.pdf

Paula, a recent art-school graduate, was trying to establish a reputation as an art acquisition agent, i.e., one who finds works of art for collectors interested in buying particular works. It is a business where reliability and confidentiality are critical.

Paula’s first commission was to find for City Museum (“Museum”) any one of the three originals in a series of paintings by Monay, titled “The Pond.” Museum agreed to pay as much as $300,000 for it and to pay Paula $15,000 upon acquisition. The works of Monay are rare and held by private collectors, and none had been on the market in recent years.

Paula eventually tracked down Sally, a private collector who owned the three originals of Monay’s “The Pond.” After some negotiations, in which Sally expressed offhandedly how proud she was that she only sold to private collectors, Sally orally agreed to sell to Paula for $200,000 whichever of the three paintings she selected. Paula agreed that, as soon as she could make the selection, she would transfer the purchase money into Sally’s bank account. Paula immediately called the curator at Museum, who told her to select the first of the three in the series, and the curator immediately caused Museum’s bank to wire-transfer $200,000 into Sally’s account to cover the purchase.

The next day, when Paula went to tell Sally which painting she had selected and to pick it up, Sally declined to go through with the sale. Sally accused Paula of deceit, saying it was only when she learned that the money for the purchase had come from Museum, that she realized the painting would no longer be held privately. Sally tendered to Paula a certified check, which she had signed and drawn from her bank account, refunding the $200,000. In the notation line of the check, Sally had written, “Refund on 1st of Monay
Pond series.”

Paula refused to accept the check and insisted on getting the painting. She explained that she had not disclosed her principal’s identity because she was bout by confidentiality and that, unless she could deliver the painting to Museum, her budding career as an art acquisition agent was over. Sally told Paula, “That’s too bad. Our contract wasn’t in writing, so you can’t force me to sell the painting. Besides, you deceived me about why you wanted to buy it.”

Can Paula obtain specific performance of Sally’s agreement to sell Paula the painting? Discuss.

答案