Specific performance

Specific performance is an order of a court which requires a party to perform a specific act, usually what is stated in a contract. It is an alternative to awarding damages, and is classed as an equitable remedy commonly used in the form of injunctive relief concerning confidential information or real property. While specific performance can be in the form of any type of forced action, it is usually used to complete a previously established transaction, thus being the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is usually the opposite of a prohibitory injunction but there are mandatory injunctions which have a similar effect to specific performance.

Under the common law, specific performance was not a remedy, with the rights of a litigant being limited to the collection of damages. However, the court of equity developed the remedy of specific performance as damages often could not adequately compensate someone for the inability to own a particular piece of real property, land being regarded as unique. Specific performance is often guaranteed through the remedy of a right of possession, giving the plaintiff the right to take possession of the property in dispute. However, in the case of personal performance contracts, it may also be ensured through the threat of proceedings for contempt of court.

Orders of specific performance are granted when damages are not an adequate remedy, and in some specific cases such as land sale. Such orders are discretionary, as with all equitable remedies, so the availability of this remedy will depend on whether it is appropriate in the circumstances of the case.

Exceptional circumstances

An order of specific performance is generally not granted if any of the following is true:

• Specific performance would cause severe hardship to the defendant.
• The contract was unconscionable.
• The claimant has misbehaved (unclean hands).
• Specific performance is impossible.
• Performance consists of a personal service ^[1]
• The contract is too vague to be enforced.
• The contract was terminable at will (meaning either party can renege without notice).
  • Note that consumer protection laws may disallow terms that allow a company to terminate a consumer contract at will (e.g. Unfair Terms in Consumer Contracts Regulations 1999^[2])
• The contract required constant supervision.^[3]
• Mutuality was lacking in the initial agreement of the contract.
• The contract was made for no consideration.
• Specific performance will not be granted for contracts which are void or unenforceable. The exception to this (in equity) is in relation estoppel or part performance.^[4]

Additionally, in England and Wales, under s. 50 of the Senior Courts Act 1981, the High Court has a discretion to award a claimant damages in lieu of specific performance (or an injunction). Such damages will normally be assessed on the same basis as damages for breach of contract, namely to place the claimant in the position he would have been had the contract been carried out.

Examples

In practice, specific performance is most often used as a remedy in transactions regarding land, such as in the sale of land where the vendor refuses to convey title. The reason being that land is unique and that there is not another legal remedy available to put the non-breaching party in the same position had the contract been performed.

However, the limits of specific performance in other contexts are narrow. Moreover, performance that is based on the personal judgment or abilities of the party on which the demand is made is rarely ordered by the court. The reason behind it is that the forced party will often perform below the party's regular standard when it is in the party's ability to do so. Monetary damages are usually given instead.

Traditionally, equity would only grant specific performance with respect to contracts involving chattels where the goods were unique in character, such as art, heirlooms, and the like. The rationale behind this was that with goods being fungible, the aggrieved party had an adequate remedy in damages for the other party's non-performance.

In the United States, Article 2 of the Uniform Commercial Code displaces the traditional rule in an attempt to adjust the law of sales of goods to the realities of the modern commercial marketplace. If the goods are identified to the contract for sale and in the possession of the seller, a court may order that the goods be delivered over to the buyer upon payment of the price. This is termed replevin. In addition, the Code allows a court to order specific performance where "the goods are unique or in other proper circumstances", leaving the question of what circumstances are proper to be developed by case law. The relief of Specific Performance is an equitable relief which is usually remedial or protective in nature. In the civil law (the law of continental Europe and much of the non English speaking world) specific performance is considered to be the basic right. Money damages are a kind of "substitute specific performance." Indeed, it has been proposed that substitute specific performance better explains the common law rules of contract as well, see (Steven Smith, Contract Law, Clarenden Law ).

In English law, in principle reparation must be done in specie unless another remedy is ‘more appropriate’.^[5]

Legal Debate

There is an ongoing debate in the legal literature regarding the desirability of specific performance. Economists, generally, take the view that specific performance should be reserved to exceptional settings, because it is costly to administer and may deter promisors from engaging in efficient breach. Professor Steven Shavell, for example, famously argued that specific performance should only be reserved to contracts to convey property and that in all other cases, money damages would be superior.^[6] In contrast, many lawyers from other philosophical traditions take the view that specific performance should be preferred as it is closest to what was promised in the contract.^[7] There is also uncertainty arising from empirical research whether specific performance provides greater value to promisees than money damages, given the difficulties of enforcement.^[8]

See also

• Damages
• Equitable remedy
• Tort
• Clyatt v. United States, 197 U.S. 207 (1905) no specific performance on employment contracts
• Beswick v Beswick
• Tamplin v James

Notes

1. Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia [1998] HCA 32 (http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1998/32.html?stem=0&synonyms=0&query=title(patrick%20stevedores%20operations%20and%20maritime%20union%20of%20australia%20))
2. (c)making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone, http://www.legislation.gov.uk/uksi/1999/2083/schedule/2/made
3. Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1
4. "Goldsbrough, Mort and Co Ltd v Quinn [1910] HCA 20; 10 CLR 674". BarNet Jade. Retrieved 6 March 2016.
5. per Lord Pearce, Beswick v Beswick [1968] AC 58
6. Shavell, Steven (2005-11-01). "Specific Performance versus Damages for Breach of Contract". Rochester, NY.
7. Shiffrin, Seana (2007-01-24). "The Divergence of Contract and Promise". Rochester, NY.
8. Arbel, Yonathan A. (2015-01-16). "Contract Remedies in Action: Specific Performance". West Virginia Law Review.

References

• A Kronman, ‘Specific Performance’ (1978) 45 University of Chicago LR 351
• S Schwartz, ‘The Case for Specific Performance’ (1979) 89 Yale Law Journal 271
• I Macneil, ‘Efficient Breach of Contract: Circles in the Sky’ (1982) 68 Virginia LR 947
• Goldsbrough, Mort and Co Ltd v Quinn [1910] HCA 20; 10 CLR 674 (https://jade.io/article/62012)

External links

• Guide to specific performance in property contracts