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d. Imposing Terms and Conditions on Specific Performance If the court grants specific performance, the court may impose any terms and conditions that it deems to be just, including conditions as to damages, paying the price, or other relief. For instance, the court may order the buyer to pay the seller the purchase price upon receiving the goods. [U.C.C. § 2-716(2) (1951); 2 Hawkland UCC Series § 2-716:1, Westlaw (database updated June 2021).] 6. Buyer’s Right to Replevin Broadly speaking, replevin refers to a lawsuit to obtain or repossess goods that the defendant has wrongfully taken or held. Article 2 gives the buyer a right of replevin if (1) the goods are identified to the contract and (2) one of two additional requirements is satisfied. This right, of course, assumes that the seller has breached the contract. Of course, if the court awards replevin, it will likely require the buyer to pay the purchase price. [U.C.C. § 2-716(3) (1951); Software Customizer, Inc. v. Bullet Jet Charter, Inc. , 177 B.R. 593 (Bankr. N.D. Ill. 1995); replevin , Black’s Law Dictionary (11th ed. 2019).] a. Unavailability or Futility of Cover The buyer has a right of replevin against the seller, as to goods identified to the contract, if either (1) the buyer cannot effectuate cover, even after reasonable effort, or (2) these efforts would be unavailing, as indicated by the circumstances. Put another way, the buyer has a right of replevin as to identified goods if the buyer cannot reasonably obtain replacement goods. This analysis seems similar to that for deciding whether the goods are unique or scarce, or whether the buyer can effectuate cover, for purposes of specific performance. [U.C.C. § 2-716(3) (1951); Software Customizer, Inc. v. Bullet Jet Charter, Inc. , 177 B.R. 593 (Bankr. N.D. Ill. 1995); Difficulty of Obtaining Substitute Performance via Money Awarded as Damages, supra .] Example : A private aviator contracted to purchase an identified airplane from a dealer. On the date set for delivery, the dealer could not tender the plane. A mechanic was lawfully holding the plane to collect on an unpaid maintenance bill. The dealer repudiated the contract by demanding that the aviator pay the maintenance bill, in addition to the agreed contract price. The airplane was rare. Its condition was exceptional, and hardly anyone except the dealer had access to a similar aircraft. If the aviator could obtain a similar aircraft at all from a third party, he could do so only at unreasonable expense, delay, and inconvenience. The aviator sued for replevin of the plane. Here, the aviator is likely entitled to replevin. The airplane was identified to the contract. Under the circumstances, the aviator could not reasonably obtain a replacement for the airplane. [ Adapted from Software Customizer, Inc. v. Bullet Jet Charter, Inc. , 177 B.R. 593 (Bankr. N.D. Ill. 1995).]
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