It may also be ordered in contracts for the purchase of rare or sentimental items which are unique and irreplaceable.
Availability of Specific Performance and Injunction
- Subject to the rules stated in §§ 359-69, specific performance of a contract duty will be granted in the discretion of the court against a party who has committed or is threatening to commit a breach of the duty.
- Subject to the rules stated in §§ 359-69, an injunction against breach of a contract duty will be granted in the discretion of the court against a party who has committed or is threatening to commit a breach of the duty if
- the duty is one of forbearance, or
- the duty is one to act and specific performance would be denied only for reasons that are inapplicable to an injunction.
- Specific performance or an injunction will not be ordered if damages would be adequate to protect the expectation interest of the injured party.
- The adequacy of the damage remedy for failure to render one part of the performance due does not preclude specific performance or injunction as to the contract as a whole.
- Specific performance or an injunction will not be refused merely because there is a remedy for breach other than damages, but such a remedy may be considered in exercising discretion under the rule stated in [R2C § 357].
Effect of Uncertainty of Terms
Effect of Unfairness
- Specific performance or an injunction will be refused if such relief would be unfair because
- Specific performance or an injunction will be granted in spite of a term of the agreement if denial of such relief would be unfair because it would cause unreasonable hardship or loss to the party seeking relief or to third persons.
Effect of Public Policy
Effect of Difficulty in Enforcement or Supervision
A promise will not be specifically enforced if the character and magnitude of the performance would impose on the court burdens in enforcement or supervision that are disproportionate to the advantages to be gained from enforcement and to the harm to be suffered from its denial.
Contracts for Personal Service or Supervision
- A promise to render personal service will not be specifically enforced.
- A promise to render personal service exclusively for one employer will not be enforced by an injunction against serving another if its probable result will be to compel a performance involving personal relations the enforced continuance of which is undesirable or will be to leave the employee without other reasonable means of making a living.
Buyer's Right to Specific Performance or Replevin.
- Specific performance may be decreed where the goods are unique or in other proper circumstances.
- The decree for specific performance may include such terms and conditions as to payment of the price, damages, or other relief as the court may deem just.
- The buyer has a right of replevin for goods identified to the contract if after reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the security interest in them has been made or tendered. In the case of goods bought for personal, family, or household purposes, the buyer's right of replevin vests upon acquisition of a special property, even if the seller had not then repudiated or failed to deliver.
In addition to ordering a "positive injunction" requiring parties to complete a contract, a court may also issue a negative prohibitory injunction, forbidding a party from doing a particular action in violation of a contract.
Specific restitution is a remedy to place the parties in the positions they would have been in had the contract not been entered into by disgorging unjust enrichment gained by the contract. It is available if restitution relief should be awarded,but restiutionary damages are not adequate. Usually it involves a rare or sentimental item being restored to the plaintiff.