But what if Seller does not?
What if Seller hands over the keys to a vintage Yugo, rather
than the ’57 Chevy I saw in the drive?
If I discover the car lacks an engine, an interior, tires,
or I don’t like the color?
I need a remedy.
The contract outlined does not contain any remedies, let
alone any warranties. As a result, my
only recourse is to the standard remedies provide by contract law:
Money damages.
The “benefit of the bargain,” or the money
I would have made had the deal gone through.
In this case, I am out the $100 I paid to Seller, but also planned to
sell the car for a $500 profit. Arguing
whether Seller is liable for that $500 would enrich the lawyers for both sides.
Restitution.
Full return of the money or property given
as consideration. Regarding the car,
Seller might simply offer to give me my money back.
Rescission.
The contract is set aside as the result of
fraud, mistake, duress or undue influence.
Rescission would not be available in the car transaction, as described. Money or other property given as
consideration is returned.
Reformation.
The court rewrites the contract to correct
errors or inequities. Courts are
reluctant to grant reformation, believing it is the duty of the parties to
their homework before executing an agreement.
More, the parties are always free to rewrite their contract privately,
without recourse to the courts.
Specific Performance.
The court orders one party to hand over
the goods or perform the services specified in the contract. Available only if money damages are
inadequate – for example if the goods or services are not available from any
other source. Generally not available,
however, in contracts for personal services, as courts regard compelling
someone to perform work against his or her will to be too close to slavery. Beyond that, who would want vital services
performed by someone not committed to doing their best?
These remedies are often insufficient, at least in the
context of an IT transaction. Remedy is available
only after the fact, generally after much litigation and is typically limited
to money damages. The advantages
expected from a new system, such as reduced costs, increased productivity or
competitive advantage, generally cannot be recovered, not to mention the value
of the time employees might have spent trying to correct a faulty system. To compound the loss, the costs of litigation
generally cannot be recovered.The statutory remedies, then, do little to address the needs of the aggrieved IT buyer, who needs a system that works, on time, and for the agreed price. Thus the best remedy for a faulty system, or a simple disagreement with the vendor, is diligence in identifying the business need the new system will address, in designing the system and in setting an implementation plan designed to identify and solve problembs before the system enters productive use.
