Specific performance: Difference between revisions
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{{a|contract|}}{{specific performance capsule}} | {{a|contract|}}{{specific performance capsule}} | ||
Specific performance is common in commercial construction contracts, but less so for | Specific performance is common in commercial construction contracts — where me winding up with the house you promised to build me is a lot more important than me getting the liquidated value, in cash, of the house you promised to build me — but less so for for personal service contracts where bleeding-heart liberal types — and let’s face it, the whole law of [[equity]] oozed from the bleeding hearts of bleeding-heart liberal types — would fret that requiring a poor indentured soul to [[specific performance|specifically perform]] as promised in the paid advancement of ''one'' employer’s affairs might restrict that individual’s human rights to perform specifically in the advancement of ''another’s''. | ||
A court is less apt to grant [[specific performance]] where the contractual obligations are not clearly defined or it would have to supervise the performance over a period of time. | A court is less apt to grant [[specific performance]] where the contractual obligations are not clearly defined or it would have to supervise the performance over a period of time. | ||
===Confidentiality agreements=== | |||
Specific performance is also the dirty little secret of the NDA. You will see the acknowledgment routinely rehearsed in an NDA that “damages may not be an adequate remedy”, and that it may be reasonable to seek injunctions, and other mortal horrors of the Courts of Chancery. What this means is that, in almost all cases, the provider of confidential information ''doesn’t suffer any loss''. | |||
{{sa}} | {{sa}} | ||
*[[Performative]] | |||
*[[Adequacy of damages]] | |||
*[[Equitable remedy]] | *[[Equitable remedy]] | ||
Latest revision as of 16:39, 8 January 2022
Specific performance one of the great equitable remedies for breach of contract — designed to wrap an innocent, clean-handed contractual counterparty with the warm blanket of the courts of chancery when the cold economic rationalism of the common law leave his moral senses — and those of the Ch.D — still outraged. All it really amounts to is a court order directing a contracting party to do what it has promised to do, where the court has plausible grounds to think that it might not — most likely, where “damages would not be an adequate remedy” — you will hear that phrase chucked about a lot — and the innocent party cannot find someone else to perform the contract in the breaching party’s stead (and thus have a clear and adequate measure of loss for a damages claim).
Specific performance is common in commercial construction contracts — where me winding up with the house you promised to build me is a lot more important than me getting the liquidated value, in cash, of the house you promised to build me — but less so for for personal service contracts where bleeding-heart liberal types — and let’s face it, the whole law of equity oozed from the bleeding hearts of bleeding-heart liberal types — would fret that requiring a poor indentured soul to specifically perform as promised in the paid advancement of one employer’s affairs might restrict that individual’s human rights to perform specifically in the advancement of another’s.
A court is less apt to grant specific performance where the contractual obligations are not clearly defined or it would have to supervise the performance over a period of time.
Confidentiality agreements
Specific performance is also the dirty little secret of the NDA. You will see the acknowledgment routinely rehearsed in an NDA that “damages may not be an adequate remedy”, and that it may be reasonable to seek injunctions, and other mortal horrors of the Courts of Chancery. What this means is that, in almost all cases, the provider of confidential information doesn’t suffer any loss.