Contracts/Specific performance: Difference between revisions

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Definition of Specific performance

In the law of remedies, a specific performance is a demand of a party to perform a specific act. While specific performance can be in the form of any type of forced action, it is usually used to complete a previously established transaction. It is the opposite of an injunction. 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 courts 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 writ 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.

Use of the Specific performance

Specific performances (SP) are used when damages are not adequate, when the damages are not ratable, and in some specific cases such as land sale. Specific performances are discretionnary for the judge, there is no right to be awarded a SP. The judges have to survey the execution of SP, because of what SP are sometimes difficultly to award.

Even in cases where a SP could be awarded, the judge may not award one if:

1. the SP would cause a severe hardness
2. the contract was unbalanced
3. the party had a misbehavior (no clean hands)
4. the SP is impossible
5. the SP consists in a personal service
6. the contract is too vague

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.

In cases where the ownership of land is in dispute, the plaintiff can often obtain a certificate of lis pendens to advise any prospective purchaser of the property that the person holding legal title may not have good equitable title to the property. However, if the plea for specific performance is denied, filing such a lis pendens constitutes a slander of title, which may allow the defendant to sue for any profit lost from his inability to sell the land.

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.

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.