LAW 506-002 – Contracts II

Specific Performance


Specific performance is a remedy by which the court orders a party to perform the unfulfilled promises in the contract, rather than ordering payment of the value of those performances.

Specific performance is most common in real estate contracts. Because real estate is understood to be unique in most cases, specific performance will usually be the remedy used.

It may also be ordered in contracts for the purchase of rare or sentimental items which are unique and irreplaceable.

Restatement Second of Contracts § 357

Availability of Specific Performance and Injunction

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  1. 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.
  2. 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
    1. the duty is one of forbearance, or
    2. the duty is one to act and specific performance would be denied only for reasons that are inapplicable to an injunction.
Restatement Second of Contracts § 359

Effect of Adequacy of Damages

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  1. Specific performance or an injunction will not be ordered if damages would be adequate to protect the expectation interest of the injured party.
  2. 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.
  3. 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].
Restatement Second of Contracts § 360

Factors Affecting Adequacy of Damages

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In determining whether the remedy in damages would be adequate, the following circumstances are significant:

  1. the difficulty of proving damages with reasonable certainty,
  2. the difficulty of procuring a suitable substitute performance by means of money awarded as damages, and
  3. the likelihood that an award of damages could not be collected.
Restatement Second of Contracts § 362

Effect of Uncertainty of Terms

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Specific performance or an injunction will not be granted unless the terms of the contract are sufficiently certain to provide a basis for an appropriate order.

Restatement Second of Contracts § 364

Effect of Unfairness

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  1. Specific performance or an injunction will be refused if such relief would be unfair because
    1. the contract was induced by mistake or by unfair practices,
    2. the relief would cause unreasonable hardship or loss to the party in breach or to third persons, or
    3. the exchange is grossly inadequate or the terms of the contract are otherwise unfair.
  2. 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.
Restatement Second of Contracts § 365

Effect of Public Policy

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Specific performance or an injunction will not be granted if the act or forbearance that would be compelled or the use of compulsion is contrary to public policy.

Restatement Second of Contracts § 366

Effect of Difficulty in Enforcement or Supervision

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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.

Restatement Second of Contracts § 367

Contracts for Personal Service or Supervision

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  1. A promise to render personal service will not be specifically enforced.
  2. 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.
UCC § 2-716

Buyer's Right to Specific Performance or Replevin.

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  1. Specific performance may be decreed where the goods are unique or in other proper circumstances.
  2. 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.
  3. 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.