Specific performance

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The basic principles of contract

A Jolly Contrarian tiptoe through the tulips of consensus™

Formation: capacity and authority · representation · misrepresentation · offer · acceptance · consideration · intention to create legal relations · agreement to agree · privity of contract oral vs written contract · principal · agent
Interpretation and change: governing law · mistake · implied term · amendment · assignment · novation
Performance: force majeure · promise · waiver · warranty · covenant · sovereign immunity · illegality · severability · good faith · commercially reasonable manner · commercial imperative · indemnity · guarantee
Breach: breach · repudiation · causation · remoteness of damage · direct loss · consequential loss · foreseeability · damages · contractual negligence · process agent
Remedies: damages · adequacy of damages ·equitable remedies · injunction · specific performance · limited recourse · rescission · estoppel · concurrent liability
Not contracts: Restitutionquasi-contractquasi-agency

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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, but less so for contracts for personal services where bleeding-heart liberal types — and let’s face it, the whole law of equity sprung from the brow of bleeding-heart liberal types — would fret that specific performance in the paid advancement of one person’s affairs might restrict that individual’s freedom 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.

See also