specific performance essay

• OBLB Series
• Submission guidelines
• Submission template

Specific Performance

Hanoch Dagan Stewart and Judy Colton Professor of Legal Theory and Innovation & Director, Edmond J Safra Center for Ethics, Tel-Aviv University

Michael Heller Lawrence A Wien Professor of Real Estate Law, Columbia Law School

Time to read

OBLB categories

OBLB keywords

When should specific performance be available for breach of contract? Civil law systems make it the primary remedy for breach, while the common law treats it as a humble exception with limited application. The same sharp split exists in legal theory, with philosophers tending to endorse the civil law tradition and economists praising the common law. The net result: the law and theory of specific performance oscillates between incompatible reforms and values.

There is a better approach. Autonomy, rightly understood, makes sense of the current law of specific performance and offers well-grounded reforms that can bring the doctrine closer to its animating principles. By anchoring this contract remedy in a conceptually coherent and normatively attractive framework, our recent  article breaks the decades-long logjam in one of the field’s foundational debates.

Our work here builds on  The Choice Theory of Contracts  and on our responses to the  law-and-economics ,  philosophical , and  contract theory  critiques it attracted (see also our previous OBLB post  engaging with Prof. Oren Bar-Gill’s critique). We showed how contract is an empowering practice that is, and should be, guided by an autonomy-enhancing mission. Contract’s operative doctrines—including the choice of remedy—allow people legitimately to recruit others to their future plans by committing their own future selves in return. This commitment necessarily curtails the self-determination of the promisor’s future self—and it’s the key to understanding specific performance.

• The Compensation Baseline . Contract-keeping is justified because and only to the extent that the claimed dominion of the present self over the future self can itself be justified. This seemingly simple proposition encapsulates both the moral premise of the common law and its challenges. The common law baseline of compensation—and not specific performance—serves as a stronghold for the autonomy of the promisor’s future self. Covering a promisee’s expectation interest is qualitatively less imposing on the future self’s self-determination. Therefore, other things being equal, contract’s autonomy-enhancing mission requires that disappointed promisees should be entitled to damages, rather than specific performance.  The requirement that ‘other things being equal’ must be unpacked. Most contracts can achieve their mission of facilitating promisees’ plans by liquidating breach into money. Where this is true, imposing on the promisor the obligation specifically to perform the promise, rather than to cover its value, cannot be justified by reference to the promisee’s self-determination. This means, at least for liberal contract law, that it cannot be justified, period.  
• Three Challenges . Other things, however, are not always equal. The first challenge therefore is to identify categories of cases in which liquidating the promisor’s performance does significantly frustrate contract’s function as a planning tool. Those categories, at least a priori, do justify specific performance. For the most part, the common law correctly identifies these categories. A second, related challenge is to help parties signal cases in which they consider the contract’s actual performance significant for their own particular plans, even though their contract does not fall within the usual categories. Here, the common law falls substantially short. Parties have a hard time ensuring they will get specific performance when that is what they want from their contracts. The third challenge pushes in the opposite direction. Here, contract law faces categories of cases, notably involving employment, where specific performance is bound to threaten the self-determination of the future self to such a degree that it cannot be justified—even if excluding such a remedy diminishes contract’s empowering potential.  
• Three Doctrinal Takeaways . These challenges in turn yield three practical takeaways. First, the so-called ‘uniqueness’ exception—covering cases in which specific performance is regularly provided—should be refined so it tracks its normative foundation. As a practical matter, this means, distinguishing in real estate transactions between sales of residential and commercial property, and between breaches by sellers and buyers. Second, the common law should not categorically reject parties’ attempts to opt into specific performance (and to penalty clauses) to remedy breach. In particular, specific performance should be more readily available when an employer breaches a promise to continue to employ an employee. Finally, the doctrine should be even more skeptical in enforcing non-compete agreements that overly facilitate the current self’s pursuit of its welfarist interests at the expense of the future self’s autonomy.  
• Our Bottom Line . Let us state our bottom line plainly. From the standpoint of autonomy, (1) specific performance must not be the default remedy. (2) Specific performance should nonetheless be available where monetary recovery cannot substantially avoid the disruption breach causes to a promisee’s plan. (3) Translating (2) into a workable rule implies that specific performance should be the default if the promisee is a buyer of a unique good for personal use, paradigmatically, a personal residence. (4) Because (3) is only a proxy for (2), parties should be able to opt into specific performance, so long as they do not violate (5). (5) Specific performance should not be awarded against providers of personal services.  
• Autonomy Versus Law and Economics . The dominant economic analysis of specific performance also arrives at these five principles, raising the question whether our account is just economic analysis in disguise. It is not. Our five principles derive from contract’s autonomy-based telos and lead to a distinct reform agenda. In our account, (2) and (3) are normative defaults. Contra the economists, they do not arise from or depend upon the current majoritarian preferences of contracting parties. On (4), relational justice constrains party opt-in, an autonomy-regarding floor missing from the economic account. Finally, (5) yields a mandatory rule. Contra the economists, it is not contingent on people’s imperfect foresight, which technology may ameliorate.

In sum, we offer an understanding of specific performance firmly grounded in the most fundamental normative commitments of contract law in a liberal polity. The common law baseline deserves moral praise—contra the economists’ pragmatic apology and the philosophers’ moral condemnation.

Hanoch Dagan  is Stewart and Judy Colton Professor of Legal Theory and Innovation & Director of the Edmond J Safra Center for Ethics, Tel-Aviv University. 

Michael Heller  is Lawrence A Wien Professor of Real Estate Law, Columbia Law School.

YOU MAY ALSO BE INTERESTED IN

The Contextual Interpretation of Contracts and Priority Clauses in Current Case Law: Precedence in Reverse

31 July 2024

by Patrick Ostendorf

Sustainability and Competition Law: The Limits of Sustainability Regulation in Consumer Law

29 July 2024

by Felix Pflücke

With the support of

Legal Dictionary

The Law Dictionary for Everyone

Specific Performance

The term “specific performance” refers to literal performance of one’s obligations under a contract. Should a party default on his obligation, a court may issue an order for specific performance, requiring a party to perform a particular action. The action is usually one that has been previously detailed in a contract. Specific performance is an alternative to a court’s decision to award damages and it is commonly used as injunctive relief in cases involving real property or the disclosure of confidential information. To explore this concept, consider the following specific performance definition.

Definition of Specific Performance

• The performance of a legal contract strictly or substantially according to its terms.
• Compliance with one’s contractual obligation, as ordered by a court.

What is Specific Performance

While specific performance is technically the performance of a contractual obligation, it is most commonly referred to in relation to a court order to fulfill such an obligation.

Specific performance is a directive ordered by a court wherein a party to a contract must perform a specific action as outlined in an existent contract. Specific performance can refer to any kind of forced action, though it is usually enforced so as to complete a transaction that had been previously agreed to.

For example, specific performance is usually ordered in cases wherein an award of damages would not be enough to remedy the situation, such as cases involving the sale of real property. A specific performance remedy is up to the discretion of the court. Therefore, its availability relies heavily upon whether its award is appropriate when considering the facts of the case.

History of Specific Performance

Insofar as the history of specific performance is concerned, such a remedy was not initially permitted under common law . A litigant’s rights were limited to his being able to collect damages for his loss or suffering. However, the history of specific performance saw the courts of equity realizing that real property made for unique cases. As such, damages were not always adequate insofar as compensation for someone’s loss.

Specific performance was therefore established so as to guarantee a party the remedy of the right to possession of the land. Specific performance allowed the plaintiff in a case the right to take ownership over the property at the center of the dispute. Insofar as performance contracts are concerned, however, the threat of contempt of court was sometimes used to enforce a party’s ownership, rather than specific performance.

Circumstances in Which Specific Performance Might Be Ordered

There are certain circumstances in which specific performance might be ordered. For example, specific performance will be enforced only in cases where the underlying contract was both fair and equitable . Examples of specific goods that have been at the center of cases wherein the courts have ordered specific performance include works of art, and products that were custom-made specific to the buyer’s request.

California has its own circumstances in which specific performance might be ordered. For instance, specific performance is ordered if the court decides that it is an appropriate remedy for the situation at hand. Another circumstance in which specific performance might be ordered is in a situation wherein a party agrees to perform an action in the future which had been previously detailed in the contract at issue.

Exceptional Circumstances Barring Specific Performance

The award of specific performance is never a guarantee. There exist exceptional circumstances barring specific performance, which influence a court’s decision. Some examples of these exceptional circumstances barring specific performance include:

• Such an order would cause the defendant severe hardship.
• The underlying contract is found to be unconscionable , or too vague to enforce.
• Damages would be enough to remedy the plaintiff’s loss.
• The claimant has “unclean hands,” meaning he has misbehaved in some way.

If the court finds any of these exceptional circumstances barring specific performance to be true, then specific performance will not be ordered.

Buyer’s Right to Specific Performance or Replevin

A buyer’s right to specific performance or replevin is determined by three main factors. First, specific performance may only be ordered when the goods are unique. Second, an order of a buyer’s right to specific performance or replevin may include terms and conditions that the court feels are just insofar as the payment of damages or other relief. Finally, a buyer’s right to specific performance or replevin of goods identified in a contract is confirmed if, after reasonable effort, he is still unable to recover what he has lost.

If the buyer has purchased goods for the purposes of household or personal use, or for members of his family, then his right of replevin is fulfilled upon his acquiring special property. This is true even if the seller refused to fulfill his end of the contract or simply failed to deliver as was promised.

The right of replevin is the right of an individual to recover goods or chattel that were wrongfully taken, after having given them for security. This is different from repossessing the property.

For example:

Jill bought a used car just over a year ago. She financed the car through the car lot, and only made payments for the first eight months. Jill has been hiding the car, expecting the creditor to repossess it, and her brothers have threatened violence when a tow truck showed up at her apartment to take it. In this case, the creditor is unable to repossess the car without breaching the peace, or without risking injury.

The creditor may apply to the court for replevin, asking the court to order Jill to return the car. If Jill were to refuse to comply with an order of replevin, she risks a charge of contempt of court. In addition, she would likely be ordered to pay the creditor the balance owed on the car loan, as well as any fees and costs associated with the recovery.

Specific Performance Example Involving an Oral Contract

An example of specific performance occurred in April 10, 1959, when Harold Weldon , a driller, was in E.C. Joachim’s store on April 10, 1959 when the two entered into an oral contract to transfer the interest in an oil and gas lease. Weldon alleged that the deal hinged on Weldon’s securing a drilling contractor to drill a well on the property leased by Joachim. For such services, Weldon alleged that Joachim agreed to convey to him the royalty interest in the lease, but ultimately refused to make the transfer. Weldon then sued Joachim for breach of contract , and Joachim countersued with a general denial.

Weldon finally found a contractor, Paul Hammer, who drilled the well and obtained an assignment of the lease from Joachim. On the same day that Joachim assigned the lease to Hammer and his partner, Weldon demanded that Joachim assign him the interest he had been promised. Joachim, however, ultimately refused to uphold his end of the bargain. Joachim testified that he never had any conversation with Weldon insofar as drilling the well, nor did he have an oral or written contract with Weldon.

At trial , the contractor testified that he would not have taken the contract if it hadn’t been for Weldon’s efforts. Upon the completion of the trial in the matter, the court found that the parties had indeed entered into an oral contract, and that Weldon had upheld his part of the contract. As such, the court felt that Weldon was entitled to specific performance and ordered in his favor.

Joachim moved for a new trial, which was overruled, and so he appealed the trial court’s decision to the Supreme Court of Oklahoma. Joachim’s argument was that the evidence relied on by Weldon to establish the contract at issue was not clear nor forcible to bring it within the rule that applies to specific performance cases involving oral contracts.

The Supreme Court of Oklahoma, however, disagreed, holding specifically:

“The evidence in the instant action is cogent, clear and forcible as to leave no reasonable doubt that plaintiff and defendant entered into an oral agreement wherein defendant would give plaintiff an interest in the lease if plaintiff would find somebody to drill the lease. That plaintiff fully completed his part of the contract by finding a party who drilled the lease. We therefore conclude that plaintiff and defendant entered into an oral contract as contended by plaintiff and the trial court did not err in so finding.”

As such, the findings of the trial court were affirmed, in that the Supreme Court of Oklahoma held that Weldon did perform on the oral contract as agreed and further, that the trial court did not err in its decision to enforce specific performance.

Related Legal Terms and Issues

• Contempt of Court – A willful act of disobedience to an order of the court; deliberately being rude or disrespectful to the judge or the court.
• Court of Equity – A court that is authorized to apply the principles of equity, rather than the law, to the cases that are brought before it.
• Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
• Injunctive Relief – A court-ordered act or prohibition against an act or condition.
• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit , or criminal proceedings.
• Replevin – A procedure providing for seized goods to be returned to their owner pending the outcome of a case wherein the rights of the interested parties are determined.
• Trial – A formal presentation of evidence before a judge and jury for the purpose of determining guilt or innocence in a criminal case, or to make a determination in a civil matter.
• Unclean Hands – The act of having done something unethical regarding the subject of a lawsuit.
• Unconscionable – Shockingly unfair or unjust; shocking to the conscience; extremely wrong.

Every Property is Unique! Why Specific Performance Matters in Real Estate

Leticia dubois, ph.d., the legal significance of specific performance in real estate/property contracts.

Like other intricate sectors, the realm of real estate and property law is filled with its lexicon and concepts that parties involved in property transactions need to understand.

One such vital principle is the remedy of “specific performance.”

This article seeks to shed light on why specific performance matters in real estate and the legal significance of specific performance in real estate contracts.

What is Specific Performance?

Specific performance is an equitable remedy that the court may award when monetary damages are deemed inadequate to compensate a party for a breach of contract.

Essentially, this remedy compels the defaulting party to perform their obligations as stated in the contract.

Instead of just paying damages for not performing, the breaching party is ordered to fulfil their original contractual obligations.

Why Specific Performance Matters in Real Estate Transactions?

The fundamental reason specific performance in real estate is significant is that every piece of real estate is unique, with distinct characteristics such as location, architecture, and history.

As a result, if a party defaults on a real estate contract, it is often impossible to find an exact substitute on the market.

Therefore, monetary damages might not adequately remedy the aggrieved party. Recognising this, courts might opt for specific performance to ensure justice and fairness.

When Can Specific Performance be Awarded in Real Estate Contracts?

The remedy for specific performance in property is not handed out liberally. For it to be granted, certain conditions must be met:

• The uniqueness of the Property: As previously noted, one of the primary reasons specific performance in real estate contracts is considered is the uniqueness of each property. The party seeking this remedy must prove that no money could adequately compensate for the property’s distinct value to them.
• Clean Hands Doctrine: This principle implies that a party seeking an equitable remedy must be free from fault in the contractual dispute. If a party has acted dishonestly or unfairly, they might not be granted specific performance.
• Feasibility of Enforcement: Courts are generally hesitant to order specific performance in real estate contracts if the enforcement would be too complicated, burdensome, or lead to continued supervision of the parties’ conduct.

How is a property deemed ‘unique’ for specific performance?

The concept of uniqueness does not merely revolve around a property’s physical attributes, such as its architecture, layout, or size. Rather, it delves deeper into intrinsic characteristics that cannot be quantified easily in monetary terms.

A property’s location, for instance, can render it unique due to its proximity to vital establishments, natural features, or historical significance.

Similarly, the historical context of a property—like a home that has been in a family for generations or has a notable past—contributes to its distinctive nature.

Furthermore, subjective factors also play a role. For a buyer, the emotional attachment, the envisioned future, or specific personal reasons for wanting that property can amplify its unique value.

For the courts, this means that no amount of money can adequately substitute or compensate for the loss of that specific property.

Therefore, in instances where the uniqueness of a property is evident, specific performance becomes a more fitting remedy than mere monetary damages, as it addresses the irreplaceability of the asset in question.

Limitations and Concerns of Specific Performance in Property Contracts

While specific performance stands as a potent remedy, it isn’t without its constraints:

• Mutuality: The contract must be mutual for a specific performance to be awarded. This means both parties must have the same understanding of the obligations and be capable of performing their duties.
• Contractual Ambiguities: If the contract is too ambiguous, a court might refrain from awarding specific performance because of the complexities involved in interpreting the exact obligations of the parties.
• Undue Hardship: If a specific performance would cause undue hardship or inequity to the defaulting party, the court might reconsider.

See article : When Was My Property Built? 4 Ways To Ascertain the Age of Your Property

Importance for Contracting Parties

Given the above, here’s what parties entering into real estate contracts need to be aware of:

• Precise Drafting: To avoid ambiguities, it’s crucial to have clear, precise, and detailed contracts. This clarifies both parties and fortifies the position if one seeks specific performance as a remedy.
• Conduct Matters: Since equity pays significant heed to fairness, parties must maintain clean conduct throughout the transaction. Any semblance of unfairness or dishonesty might jeopardize one’s chances of obtaining a specific performance.
• Alternative Remedies: While specific performance in property contracts is a sought-after remedy, it is not always granted. Parties should be prepared for alternative resolutions, including monetary damages or rescission.
• Professional Counsel: Given the complexities involved and the significant consequences of specific performance in property transactions , consulting with legal professionals experienced in the field is paramount. They can provide guidance, ensure fair terms, and resolve disputes.

Does specific performance apply only to the buyer?

Specific performance is not exclusive to the buyer in real estate transactions.

While buyers commonly seek it when sellers fail to convey the agreed-upon property, sellers too can invoke this remedy under certain circumstances.

For instance, if a buyer breaches their obligations , a seller might seek specific performance to compel the buyer to complete the purchase, especially when a significant monetary deposit or unique financing arrangements are involved.

The crux of the matter is the irreplaceability of the contractual obligation for either party.

Whether it is a buyer’s unique attachment to a specific property or a seller’s particular reliance on the agreed-upon terms, the principle remains that specific performance can be a recourse for either party when monetary damages fail to address the breach’s impact adequately.

What happens if the property is damaged or changed during litigation for specific performance?

Suppose a property undergoes alterations or incurs damage while the case progresses.

In that case, the court must evaluate the nature and extent of the change to determine whether to grant specific performance in the real estate contract.

Significant alterations or damage might render the property fundamentally different from what was initially agreed upon in the contract.

In such cases, specific performance in property might no longer provide an adequate or just solution, as the buyer would not receive the property they had originally bargained for.

Consequently, the court may decide that monetary damages are a more suitable remedy.

Alternatively, if the changes are repairable or minor, the court could mandate restorations as a precondition to the execution of a specific performance. The underlying principle remains to ensure fairness to the aggrieved party.

Both parties should be diligent during litigation, with the aggrieved party monitoring the property’s state to maintain its integrity.

In contrast, the defaulting party refrains from actions that might complicate or jeopardise the proceedings.

What if the property value increases or decreases during the litigation?

A significant change in value can impact both parties’ positions with respect to specific performance in real estate contracts.

If the property appreciates, the buyer stands to benefit from the increased value, underscoring their desire for specific performance over monetary damages.

Conversely, the seller might argue that they are at a financial disadvantage, given that they could potentially sell the property for a higher price in the open market.

On the other hand, if the property’s value decreases, the buyer might be obliged to proceed with the purchase at the originally agreed-upon price, even though the property is now worth less.

In this case, the seller may be more inclined to push for specific performance to secure the initially agreed amount.

It is worth noting that courts typically hold buyers to the original contract price instead of granting any specific performance in real estate contracts, viewing market fluctuations as inherent risks in real estate transactions.

However, significant market changes or unforeseen events can sometimes be grounds for contract renegotiation or termination, depending on jurisdictional laws and the specific terms of the contract.

Conclusion: Why Specific Performance Matters in Real Estate

Specific performance occupies a crucial position within real estate contracts due to the unique nature of properties. While it offers a promising solution for aggrieved parties, it’s laden with intricacies.

As such, contracting parties must be diligent, informed, and, ideally, consult professional expertise when navigating the intricate waters of real estate transactions.

See article : Selling a Tenanted Rental Property: An Essential Guide to Selling a House With Tenants

Table of Contents

Read Other Articles

3 things in-house lawyers need to know about corporate governance.

Corporate governance plays a fundamental role in the effective management and direction of companies, and it is essential for in-house lawyers to have a comprehensive understanding of its principles and practices. This article aims to provide an in-depth analysis of

Labour Party vs Conservative Party: Differences, History, Ideologies and Policies

What is the Labour Party and Conservative Party? The Labour Party is a centre-left political party in the United Kingdom that promotes social democracy and democratic socialism, while the Conservative Party is a centre-right political party in the UK that

The Democratization of Analytics: Laws and Regulations

What is Democratization of Analytics? The democratization of analytics refers to making data analysis tools and capabilities accessible to non-experts, enabling a wider range of individuals and organisations to utilise data-driven insights for decision-making without needing specialised skills in data

Juristopedia is a Law Encyclopedia and Legal Educational Guide in Concise English.

Registered Address : 71-75 Shelton St, London WC2H 9JQ, United Kingdom

WEBSITE Information

• Privacy and Cookie Policy
• Terms and Conditions

WEBSITE CONTENT

• Legal Dictionary

Join Thousands of Subscribers Who Read Our Legal Opinions And Case Analysis.

•   Home

Welcome to the Yale Law School Legal Scholarship Repository. This repository provides open, global access to the scholarship of Yale Law School faculty and journals, as well as a selection of unique collections. 

Communities in Yale Law School Open Scholarship Repository

Select a community to browse its collections.

Recently Added

The SCALES project: Making federal court records free

Lawyerless litigants, filing fees, transaction costs, and the federal courts: Learning from scales

Multiparenthood

The Multicultural State: Progress or Tragedy?

Foreign Affairs, Nondelegation, and Original Meaning: Congress's Delegation of Power to Lay Embargoes in 1794.

Export search results.

The export option will allow you to export the current search results of the entered query to a file. Different formats are available for download. To export the items, click on the button corresponding with the preferred download format.

By default, clicking on the export buttons will result in a download of the allowed maximum amount of items.

To select a subset of the search results, click "Selective Export" button and make a selection of the items you want to export. The amount of items that can be exported at once is similarly restricted as the full export.

After making a selection, click one of the export format buttons. The amount of items that will be exported is indicated in the bubble next to export format.

IPSA LOQUITUR

Contract: Specific Performance

Specific performance, what is specific performance.

Specific performance is a court order which obliges the defendant to perform their outstanding obligations under the law. For example, any contractual duties the defendant has yet to perform or an equitable duty which has arisen. 

When Will Specific Performance Be Granted?

Specific performance will only be granted if damages are an inadequate method of compensating the claimant:  Cohen v Roche  [1927] 1 KB 169; Co-op insurance v Argyll Stores   [1997] 2 WLR 898. Damages are only considered inadequate in this context if one of two conditions is met:

1. The goods are unique, meaning that there is no market for them in which the claimant could acquire substitute performance: Cohen v Roche  [1927] 1 KB 169

For example, pieces of art or land are unique:  Falcke v Gray  (1859) 62 Eng Rep 250. There is a market if the goods are available elsewhere, even if on worse terms or at a higher price.

2. The harm to the claimant is intrinsically impossible to calculate in economic terms or their interest in performance is incapable of economic valuation:  Beswick v Beswick  [1968] AC 58.

Damages are not considered inadequate merely because they are difficult (but not impossible) to calculate or because the seller does not have the funds to pay them:  Societe des Industries Metallurgiques SA v The Bronx Engineering Co Ltd  [1975] 1 Lloyd’s Rep 465.

When Will Specific Performance be Refused?

As an equitable remedy, specific performance is discretionary: the court can refuse to grant it even if damages are inadequate. The following are common circumstances in which specific performance will not be granted: 

Personal Labour

Specific performance cannot be ordered where this would involve ordering personal labour on the part of the defendant (this being akin to slavery).

Undue Hardship

Specific performance may not be granted if the order would cause substantial and undue hardship to the defendant:  Denne v Light (1857) 8 DM & G 774. That hardship does not need to be the claimant’s fault:  Patel v Ali  [1984] 1 All ER 978.

Long-Term Supervision

The courts will generally not grant specific performance if enforcing the performance is impossible or would need ongoing or long-term supervision by the court:  Co-op insurance v Argyll Stores  [1997] 2 WLR 898.

Unjustified Delay

The courts may refuse specific performance where they consider that there has been unjustified delay in bringing the claim:  Milward v Earl Thanet   (1801) 5 Ves 720. 

Inequitable Conduct

Since specific performance is an equitable remedy, the usual equitable bars apply. The courts may refuse the remedy if the claimant acts inequitably or does not intend to perform their end of the bargain:  Chappell v Times Newspapers [1975] 1 WLR 482.

Specific performance will not be granted if the obligation it would enforce is conditional on the claimant performing some obligation which is not itself specifically enforceable and which the claimant has yet to perform:  Price v Strange  [1977] 3 All ER 371.

Contract Remedies Quiz

Test yourself on the principles which determine when contract remedies are available.

What is the default measure of damages in contract?

Incorrect .

Laura contracts Stephen to arrange for someone to ghost-write her memoirs. For various reasons, it is not possible for Laura to obtain another person to do this. The relationship falls apart and Stephen refuses to perform. Writing the book in accordance with the contract would take time and require supervision. Can Laura obtain an order for specific performance?

Incorrect . Specific performance is not available where it would require long-term supervision by the court: Co-op insurance v Argyll Stores .

Alice contracts Bill to install new fans in her restaurant. Bill completes the work late, causing Alice considerable stress. Can Alice recover damages for her stress?

Incorrect . Emotional loss is not normally recoverable: Addis v Gramophone.

What are the elements for determining whether a mandatory injunction should be granted? (Four answers)

Incorrect . See Nottingham Building Society v Eurodynamics Systems .

Micah contracts with John for a package holiday. In breach of contract, John fails to make the appropriate reservations, leaving Micah stranded abroad without a hotel for several days. Micah suffers a severe stress reaction as a result. Can Micah recover damages for her emotional distress?

Incorrect . While emotional damages are not normally recoverable in contract, there is an exception where the purpose of the term breached was to provide enjoyment, amenity or peace of mind:  Jarvis v Swan Tours. 

Alice contracts Bill to install new fans in her restaurant. Bill completes the work defectively, causing a fan to fall on Alice's head. She suffers a brain injury and develops depression as a result. Can Alice recover damages for her mental illness and emotional distress?

Incorrect . Emotional loss is not normally recoverable, but there is an exception where it is consequent on physical injury or inconvenience: Perry v Sidney Phillips.

Arthur contracts for a private car from Celestine, stressing that he needs to arrive before three o'clock. He does not explain the reason why, which is that if he is late he will miss a meeting with an important client and lose a valuable deal. Celestine drives painfully slowly and does not get Arthur to his destination on time. Arthur loses the deal. Can Arthur recover damages for the lost contract?

Incorrect . Unusual losses are normally considered too remote unless the other party is specifically made aware of them at the time of contracting: Victoria Laundry (Windsor) Ltd v Newman Industries Ltd.

Is it a failure to mitigate to refuse to terminate a contract in response to a repudiatory breach, where this refusal leads to further loss?

Incorrect . An unreasonable refusal to terminate the contract in response to a repudiatory breach is not considered a failure to mitigate unless the claimant has no legitimate interest in continuing the contract:  White & Carter v McGregor.

What two elements must the claimant show to obtain the cost of cure measure of damages?

Emmy purchases a new fish tank filter from Lee. The filter is defective, and it shuts down. Emmy's incredibly rare and expensive fish die as a result. Lee argues that he should not be liable as it was unforeseeable that the breach would cause such a high degree of loss. Is he correct?

Incorrect . There is no need for the degree of the loss to be foreseeable, only its broad type:  Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd.  In this case the death of fish was foreseeable, so Lee is liable.

In what two scenarios is a loss sufficiently non-remote to be recovered in an action for breach of contract?

Pierre agrees to rent a priceless painting from Sophie to display in his house, on condition that he first pay a deposit of several million. He has yet to pay the deposit. Sophie is now saying that she will refuse to hand over the painting. Can Pierre obtain an order for specific performance?

Incorrect . Specific performance will not be granted if the obligation it would enforce is conditional on the claimant performing some obligation which is not itself specifically enforceable and which the claimant has yet to perform:  Price v Strange.

Pierre agrees to buy a priceless painting from Sophie to display in his house, for several million pounds. He does not intend to pay. Sophie is now saying that she will refuse to hand over the painting. Can Pierre obtain an order for specific performance?

Incorrect . Since specific performance is an equitable remedy, the usual equitable bars apply. The courts may refuse the remedy if the claimant acts inequitably or does not intend to perform their end of the bargain:  Chappell v Times Newspapers.

A claimant suing for breach of contract can claim both the market difference measure and the reliance loss measure at the same time. True or false?

Incorrect . These two measures are alternatives to each other.

When is the hypothetical fee measure of damages available in contract?

Incorrect . See Morris-Garner v One Step (Support) Ltd.

When can a claimant obtain a consumer surplus award of damages?

Incorrect . See Ruxley Electronics and Construction Ltd v Forsyth.

Laura contracts Stephen to personally ghost-write her memoirs. Since Stephen knows her best, it is not possible for Laura to obtain another person to write the book. The relationship falls apart and Stephen refuses to write the book. Can Laura obtain an order for specific performance?

Incorrect . Specific performance is not available where it would require personal labour by the defendant: Cohen v Roche.

What is the purpose of general contract damages?

Incorrect . The purpose of damages as a contractual remedy is to put the claimant in the position they would be in had the contract been properly performed: Robinson v Harman (1848) 1 Ex 850. If the claimant has not suffered any loss, they are only entitled to nominal damages.

When is specific performance available as a remedy to a breach of contract?

Incorrect . See Cohen v Roche.

Sophie hires Anne to install a storm drainage system in her garden. Anne's work is defective, meaning that it does not drain water properly. That summer, an unexpected storm hits and causes considerable water damage to Sophie's garden. The storm was not forecast, and is described in the media as a 'freak' occurrence. Anne argues that the storm was an unforeseeable act of nature, meaning that her breach did not cause Sophie's loss. Is Anne correct?

Incorrect . While unforeseeable natural events or third-party acts can break the chain of causation, this will not be the case if the nature of the defendant's contractual duty was to guard against that kind of natural event or act: London Joint Stock Bank Ltd v Macmillan.

What are the elements for determining whether a prohibitory injunction should be granted? (Three answers)

Incorrect . See American Cyanamid Co v Ethicon Ltd.

When is a liquidated damages clause void under the penalty clause rule?

Incorrect . A penalty clause is one which imposes a penalty on the other party which is 'out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation':  Cavendish Square Holding BV v Makdessi.

Darrel makes a contract with Pierre, agreeing that he will tend to Pierre's garden while Pierre is away. Instead of performing, Darrel goes on holiday. During this time, there is a freak storm which floods Pierre's garden and causes a lot of damage. Can Pierre obtain damages from Darrel for the damage to his garden?

Incorrect . The claimant can only recover damages which were caused by the breach. But for Darrel going on holiday, the garden would still have been damaged. In addition, even if 'but for' causation is established, the defendant is normally not liable for unforeseeable acts of nature such as a freak storm: The Monarch Steamship.

When are damages considered inadequate for the purposes of obtaining specific performance as a remedy? (Two answers)

A claimant suing for breach of contract can claim both the market difference measure and the cost of cure measure at the same time. True or false?

When will an injunction be refused despite the relevant test being met? (Three answers)

Complete this sentence: Damages are assessed according to the circumstances existing...

Incorrect . See Suleman v Shahsavari.

Your score is

Share this:

• Search Menu

Sign in through your institution

• Browse content in Arts and Humanities
• Browse content in Archaeology
• Anglo-Saxon and Medieval Archaeology
• Archaeological Methodology and Techniques
• Archaeology by Region
• Archaeology of Religion
• Archaeology of Trade and Exchange
• Biblical Archaeology
• Contemporary and Public Archaeology
• Environmental Archaeology
• Historical Archaeology
• History and Theory of Archaeology
• Industrial Archaeology
• Landscape Archaeology
• Mortuary Archaeology
• Prehistoric Archaeology
• Underwater Archaeology
• Urban Archaeology
• Zooarchaeology
• Browse content in Architecture
• Architectural Structure and Design
• History of Architecture
• Residential and Domestic Buildings
• Theory of Architecture
• Browse content in Art
• Art Subjects and Themes
• History of Art
• Industrial and Commercial Art
• Theory of Art
• Biographical Studies
• Byzantine Studies
• Browse content in Classical Studies
• Classical History
• Classical Philosophy
• Classical Mythology
• Classical Numismatics
• Classical Literature
• Classical Reception
• Classical Art and Architecture
• Classical Oratory and Rhetoric
• Greek and Roman Epigraphy
• Greek and Roman Law
• Greek and Roman Papyrology
• Greek and Roman Archaeology
• Late Antiquity
• Religion in the Ancient World
• Social History
• Digital Humanities
• Browse content in History
• Colonialism and Imperialism
• Diplomatic History
• Environmental History
• Genealogy, Heraldry, Names, and Honours
• Genocide and Ethnic Cleansing
• Historical Geography
• History by Period
• History of Emotions
• History of Agriculture
• History of Education
• History of Gender and Sexuality
• Industrial History
• Intellectual History
• International History
• Labour History
• Legal and Constitutional History
• Local and Family History
• Maritime History
• Military History
• National Liberation and Post-Colonialism
• Oral History
• Political History
• Public History
• Regional and National History
• Revolutions and Rebellions
• Slavery and Abolition of Slavery
• Social and Cultural History
• Theory, Methods, and Historiography
• Urban History
• World History
• Browse content in Language Teaching and Learning
• Language Learning (Specific Skills)
• Language Teaching Theory and Methods
• Browse content in Linguistics
• Applied Linguistics
• Cognitive Linguistics
• Computational Linguistics
• Forensic Linguistics
• Grammar, Syntax and Morphology
• Historical and Diachronic Linguistics
• History of English
• Language Acquisition
• Language Evolution
• Language Reference
• Language Variation
• Language Families
• Lexicography
• Linguistic Anthropology
• Linguistic Theories
• Linguistic Typology
• Phonetics and Phonology
• Psycholinguistics
• Sociolinguistics
• Translation and Interpretation
• Writing Systems
• Browse content in Literature
• Bibliography
• Children's Literature Studies
• Literary Studies (Asian)
• Literary Studies (European)
• Literary Studies (Eco-criticism)
• Literary Studies (Romanticism)
• Literary Studies (American)
• Literary Studies (Modernism)
• Literary Studies - World
• Literary Studies (1500 to 1800)
• Literary Studies (19th Century)
• Literary Studies (20th Century onwards)
• Literary Studies (African American Literature)
• Literary Studies (British and Irish)
• Literary Studies (Early and Medieval)
• Literary Studies (Fiction, Novelists, and Prose Writers)
• Literary Studies (Gender Studies)
• Literary Studies (Graphic Novels)
• Literary Studies (History of the Book)
• Literary Studies (Plays and Playwrights)
• Literary Studies (Poetry and Poets)
• Literary Studies (Postcolonial Literature)
• Literary Studies (Queer Studies)
• Literary Studies (Science Fiction)
• Literary Studies (Travel Literature)
• Literary Studies (War Literature)
• Literary Studies (Women's Writing)
• Literary Theory and Cultural Studies
• Mythology and Folklore
• Shakespeare Studies and Criticism
• Browse content in Media Studies
• Browse content in Music
• Applied Music
• Dance and Music
• Ethics in Music
• Ethnomusicology
• Gender and Sexuality in Music
• Medicine and Music
• Music Cultures
• Music and Religion
• Music and Media
• Music and Culture
• Music Education and Pedagogy
• Music Theory and Analysis
• Musical Scores, Lyrics, and Libretti
• Musical Structures, Styles, and Techniques
• Musicology and Music History
• Performance Practice and Studies
• Race and Ethnicity in Music
• Sound Studies
• Browse content in Performing Arts
• Browse content in Philosophy
• Aesthetics and Philosophy of Art
• Epistemology
• Feminist Philosophy
• History of Western Philosophy
• Meta-Philosophy
• Metaphysics
• Moral Philosophy
• Non-Western Philosophy
• Philosophy of Science
• Philosophy of Language
• Philosophy of Mind
• Philosophy of Perception
• Philosophy of Action
• Philosophy of Law
• Philosophy of Religion
• Philosophy of Mathematics and Logic
• Practical Ethics
• Social and Political Philosophy
• Browse content in Religion
• Biblical Studies
• Christianity
• East Asian Religions
• History of Religion
• Judaism and Jewish Studies
• Qumran Studies
• Religion and Education
• Religion and Health
• Religion and Politics
• Religion and Science
• Religion and Law
• Religion and Art, Literature, and Music
• Religious Studies
• Browse content in Society and Culture
• Cookery, Food, and Drink
• Cultural Studies
• Customs and Traditions
• Ethical Issues and Debates
• Hobbies, Games, Arts and Crafts
• Natural world, Country Life, and Pets
• Popular Beliefs and Controversial Knowledge
• Sports and Outdoor Recreation
• Technology and Society
• Travel and Holiday
• Visual Culture
• Browse content in Law
• Arbitration
• Browse content in Company and Commercial Law
• Commercial Law
• Company Law
• Browse content in Comparative Law
• Systems of Law
• Competition Law
• Browse content in Constitutional and Administrative Law
• Government Powers
• Judicial Review
• Local Government Law
• Military and Defence Law
• Parliamentary and Legislative Practice
• Construction Law
• Contract Law
• Browse content in Criminal Law
• Criminal Procedure
• Criminal Evidence Law
• Sentencing and Punishment
• Employment and Labour Law
• Environment and Energy Law
• Browse content in Financial Law
• Banking Law
• Insolvency Law
• History of Law
• Human Rights and Immigration
• Intellectual Property Law
• Browse content in International Law
• Private International Law and Conflict of Laws
• Public International Law
• IT and Communications Law
• Jurisprudence and Philosophy of Law
• Law and Politics
• Law and Society
• Browse content in Legal System and Practice
• Courts and Procedure
• Legal Skills and Practice
• Legal System - Costs and Funding
• Primary Sources of Law
• Regulation of Legal Profession
• Medical and Healthcare Law
• Browse content in Policing
• Criminal Investigation and Detection
• Police and Security Services
• Police Procedure and Law
• Police Regional Planning
• Browse content in Property Law
• Personal Property Law
• Restitution
• Study and Revision
• Terrorism and National Security Law
• Browse content in Trusts Law
• Wills and Probate or Succession
• Browse content in Medicine and Health
• Browse content in Allied Health Professions
• Arts Therapies
• Clinical Science
• Dietetics and Nutrition
• Occupational Therapy
• Operating Department Practice
• Physiotherapy
• Radiography
• Speech and Language Therapy
• Browse content in Anaesthetics
• General Anaesthesia
• Browse content in Clinical Medicine
• Acute Medicine
• Cardiovascular Medicine
• Clinical Genetics
• Clinical Pharmacology and Therapeutics
• Dermatology
• Endocrinology and Diabetes
• Gastroenterology
• Genito-urinary Medicine
• Geriatric Medicine
• Infectious Diseases
• Medical Toxicology
• Medical Oncology
• Pain Medicine
• Palliative Medicine
• Rehabilitation Medicine
• Respiratory Medicine and Pulmonology
• Rheumatology
• Sleep Medicine
• Sports and Exercise Medicine
• Clinical Neuroscience
• Community Medical Services
• Critical Care
• Emergency Medicine
• Forensic Medicine
• Haematology
• History of Medicine
• Browse content in Medical Dentistry
• Oral and Maxillofacial Surgery
• Paediatric Dentistry
• Restorative Dentistry and Orthodontics
• Surgical Dentistry
• Browse content in Medical Skills
• Clinical Skills
• Communication Skills
• Nursing Skills
• Surgical Skills
• Medical Ethics
• Medical Statistics and Methodology
• Browse content in Neurology
• Clinical Neurophysiology
• Neuropathology
• Nursing Studies
• Browse content in Obstetrics and Gynaecology
• Gynaecology
• Occupational Medicine
• Ophthalmology
• Otolaryngology (ENT)
• Browse content in Paediatrics
• Neonatology
• Browse content in Pathology
• Chemical Pathology
• Clinical Cytogenetics and Molecular Genetics
• Histopathology
• Medical Microbiology and Virology
• Patient Education and Information
• Browse content in Pharmacology
• Psychopharmacology
• Browse content in Popular Health
• Caring for Others
• Complementary and Alternative Medicine
• Self-help and Personal Development
• Browse content in Preclinical Medicine
• Cell Biology
• Molecular Biology and Genetics
• Reproduction, Growth and Development
• Primary Care
• Professional Development in Medicine
• Browse content in Psychiatry
• Addiction Medicine
• Child and Adolescent Psychiatry
• Forensic Psychiatry
• Learning Disabilities
• Old Age Psychiatry
• Psychotherapy
• Browse content in Public Health and Epidemiology
• Epidemiology
• Public Health
• Browse content in Radiology
• Clinical Radiology
• Interventional Radiology
• Nuclear Medicine
• Radiation Oncology
• Reproductive Medicine
• Browse content in Surgery
• Cardiothoracic Surgery
• Gastro-intestinal and Colorectal Surgery
• General Surgery
• Neurosurgery
• Paediatric Surgery
• Peri-operative Care
• Plastic and Reconstructive Surgery
• Surgical Oncology
• Transplant Surgery
• Trauma and Orthopaedic Surgery
• Vascular Surgery
• Browse content in Science and Mathematics
• Browse content in Biological Sciences
• Aquatic Biology
• Biochemistry
• Bioinformatics and Computational Biology
• Developmental Biology
• Ecology and Conservation
• Evolutionary Biology
• Genetics and Genomics
• Microbiology
• Molecular and Cell Biology
• Natural History
• Plant Sciences and Forestry
• Research Methods in Life Sciences
• Structural Biology
• Systems Biology
• Zoology and Animal Sciences
• Browse content in Chemistry
• Analytical Chemistry
• Computational Chemistry
• Crystallography
• Environmental Chemistry
• Industrial Chemistry
• Inorganic Chemistry
• Materials Chemistry
• Medicinal Chemistry
• Mineralogy and Gems
• Organic Chemistry
• Physical Chemistry
• Polymer Chemistry
• Study and Communication Skills in Chemistry
• Theoretical Chemistry
• Browse content in Computer Science
• Artificial Intelligence
• Computer Architecture and Logic Design
• Game Studies
• Human-Computer Interaction
• Mathematical Theory of Computation
• Programming Languages
• Software Engineering
• Systems Analysis and Design
• Virtual Reality
• Browse content in Computing
• Business Applications
• Computer Security
• Computer Games
• Computer Networking and Communications
• Digital Lifestyle
• Graphical and Digital Media Applications
• Operating Systems
• Browse content in Earth Sciences and Geography
• Atmospheric Sciences
• Environmental Geography
• Geology and the Lithosphere
• Maps and Map-making
• Meteorology and Climatology
• Oceanography and Hydrology
• Palaeontology
• Physical Geography and Topography
• Regional Geography
• Soil Science
• Urban Geography
• Browse content in Engineering and Technology
• Agriculture and Farming
• Biological Engineering
• Civil Engineering, Surveying, and Building
• Electronics and Communications Engineering
• Energy Technology
• Engineering (General)
• Environmental Science, Engineering, and Technology
• History of Engineering and Technology
• Mechanical Engineering and Materials
• Technology of Industrial Chemistry
• Transport Technology and Trades
• Browse content in Environmental Science
• Applied Ecology (Environmental Science)
• Conservation of the Environment (Environmental Science)
• Environmental Sustainability
• Environmentalist Thought and Ideology (Environmental Science)
• Management of Land and Natural Resources (Environmental Science)
• Natural Disasters (Environmental Science)
• Nuclear Issues (Environmental Science)
• Pollution and Threats to the Environment (Environmental Science)
• Social Impact of Environmental Issues (Environmental Science)
• History of Science and Technology
• Browse content in Materials Science
• Ceramics and Glasses
• Composite Materials
• Metals, Alloying, and Corrosion
• Nanotechnology
• Browse content in Mathematics
• Applied Mathematics
• Biomathematics and Statistics
• History of Mathematics
• Mathematical Education
• Mathematical Finance
• Mathematical Analysis
• Numerical and Computational Mathematics
• Probability and Statistics
• Pure Mathematics
• Browse content in Neuroscience
• Cognition and Behavioural Neuroscience
• Development of the Nervous System
• Disorders of the Nervous System
• History of Neuroscience
• Invertebrate Neurobiology
• Molecular and Cellular Systems
• Neuroendocrinology and Autonomic Nervous System
• Neuroscientific Techniques
• Sensory and Motor Systems
• Browse content in Physics
• Astronomy and Astrophysics
• Atomic, Molecular, and Optical Physics
• Biological and Medical Physics
• Classical Mechanics
• Computational Physics
• Condensed Matter Physics
• Electromagnetism, Optics, and Acoustics
• History of Physics
• Mathematical and Statistical Physics
• Measurement Science
• Nuclear Physics
• Particles and Fields
• Plasma Physics
• Quantum Physics
• Relativity and Gravitation
• Semiconductor and Mesoscopic Physics
• Browse content in Psychology
• Affective Sciences
• Clinical Psychology
• Cognitive Psychology
• Cognitive Neuroscience
• Criminal and Forensic Psychology
• Developmental Psychology
• Educational Psychology
• Evolutionary Psychology
• Health Psychology
• History and Systems in Psychology
• Music Psychology
• Neuropsychology
• Organizational Psychology
• Psychological Assessment and Testing
• Psychology of Human-Technology Interaction
• Psychology Professional Development and Training
• Research Methods in Psychology
• Social Psychology
• Browse content in Social Sciences
• Browse content in Anthropology
• Anthropology of Religion
• Human Evolution
• Medical Anthropology
• Physical Anthropology
• Regional Anthropology
• Social and Cultural Anthropology
• Theory and Practice of Anthropology
• Browse content in Business and Management
• Business Strategy
• Business Ethics
• Business History
• Business and Government
• Business and Technology
• Business and the Environment
• Comparative Management
• Corporate Governance
• Corporate Social Responsibility
• Entrepreneurship
• Health Management
• Human Resource Management
• Industrial and Employment Relations
• Industry Studies
• Information and Communication Technologies
• International Business
• Knowledge Management
• Management and Management Techniques
• Operations Management
• Organizational Theory and Behaviour
• Pensions and Pension Management
• Public and Nonprofit Management
• Social Issues in Business and Management
• Strategic Management
• Supply Chain Management
• Browse content in Criminology and Criminal Justice
• Criminal Justice
• Criminology
• Forms of Crime
• International and Comparative Criminology
• Youth Violence and Juvenile Justice
• Development Studies
• Browse content in Economics
• Agricultural, Environmental, and Natural Resource Economics
• Asian Economics
• Behavioural Finance
• Behavioural Economics and Neuroeconomics
• Econometrics and Mathematical Economics
• Economic Systems
• Economic History
• Economic Methodology
• Economic Development and Growth
• Financial Markets
• Financial Institutions and Services
• General Economics and Teaching
• Health, Education, and Welfare
• History of Economic Thought
• International Economics
• Labour and Demographic Economics
• Law and Economics
• Macroeconomics and Monetary Economics
• Microeconomics
• Public Economics
• Urban, Rural, and Regional Economics
• Welfare Economics
• Browse content in Education
• Adult Education and Continuous Learning
• Care and Counselling of Students
• Early Childhood and Elementary Education
• Educational Equipment and Technology
• Educational Research Methodology
• Educational Strategies and Policy
• Higher and Further Education
• Organization and Management of Education
• Philosophy and Theory of Education
• Schools Studies
• Secondary Education
• Teaching of a Specific Subject
• Teaching of Specific Groups and Special Educational Needs
• Teaching Skills and Techniques
• Browse content in Environment
• Applied Ecology (Social Science)
• Climate Change
• Conservation of the Environment (Social Science)
• Environmentalist Thought and Ideology (Social Science)
• Management of Land and Natural Resources (Social Science)
• Natural Disasters (Environment)
• Pollution and Threats to the Environment (Social Science)
• Social Impact of Environmental Issues (Social Science)
• Sustainability
• Browse content in Human Geography
• Cultural Geography
• Economic Geography
• Political Geography
• Browse content in Interdisciplinary Studies
• Communication Studies
• Museums, Libraries, and Information Sciences
• Browse content in Politics
• African Politics
• Asian Politics
• Chinese Politics
• Comparative Politics
• Conflict Politics
• Elections and Electoral Studies
• Environmental Politics
• Ethnic Politics
• European Union
• Foreign Policy
• Gender and Politics
• Human Rights and Politics
• Indian Politics
• International Relations
• International Organization (Politics)
• Irish Politics
• Latin American Politics
• Middle Eastern Politics
• Political Methodology
• Political Communication
• Political Philosophy
• Political Sociology
• Political Behaviour
• Political Economy
• Political Institutions
• Political Theory
• Politics and Law
• Politics of Development
• Public Administration
• Public Policy
• Qualitative Political Methodology
• Quantitative Political Methodology
• Regional Political Studies
• Russian Politics
• Security Studies
• State and Local Government
• UK Politics
• US Politics
• Browse content in Regional and Area Studies
• African Studies
• Asian Studies
• East Asian Studies
• Japanese Studies
• Latin American Studies
• Middle Eastern Studies
• Native American Studies
• Scottish Studies
• Browse content in Research and Information
• Research Methods
• Browse content in Social Work
• Addictions and Substance Misuse
• Adoption and Fostering
• Care of the Elderly
• Child and Adolescent Social Work
• Couple and Family Social Work
• Direct Practice and Clinical Social Work
• Emergency Services
• Human Behaviour and the Social Environment
• International and Global Issues in Social Work
• Mental and Behavioural Health
• Social Justice and Human Rights
• Social Policy and Advocacy
• Social Work and Crime and Justice
• Social Work Macro Practice
• Social Work Practice Settings
• Social Work Research and Evidence-based Practice
• Welfare and Benefit Systems
• Browse content in Sociology
• Childhood Studies
• Community Development
• Comparative and Historical Sociology
• Disability Studies
• Economic Sociology
• Gender and Sexuality
• Gerontology and Ageing
• Health, Illness, and Medicine
• Marriage and the Family
• Migration Studies
• Occupations, Professions, and Work
• Organizations
• Population and Demography
• Race and Ethnicity
• Social Theory
• Social Movements and Social Change
• Social Research and Statistics
• Social Stratification, Inequality, and Mobility
• Sociology of Religion
• Sociology of Education
• Sport and Leisure
• Urban and Rural Studies
• Browse content in Warfare and Defence
• Defence Strategy, Planning, and Research
• Land Forces and Warfare
• Military Administration
• Military Life and Institutions
• Naval Forces and Warfare
• Other Warfare and Defence Issues
• Peace Studies and Conflict Resolution
• Weapons and Equipment

• < Previous chapter
• Next chapter >

40122 Specific performance

• Published: June 2019
• Cite Icon Cite
• Permissions Icon Permissions

Specific performance is an equitable remedy which enforces a defendant’s positive contractual obligations: that is, it orders the defendant to do what he or she promised to do. It is therefore a remedy protecting the claimant’s expectation interest, the justification for such protection resting ultimately on the morality of promise-keeping. Prohibitory injunctions also enforce contractual promises, but differ in that the promises in question are there negative. However, if what is in form a prohibitory injunction, in substance orders specific performance, or if the courts consider that in practice the injunction amounts to specific performance, it is governed by specific performance principles and is dealt with in this chapter.

Signed in as

Institutional accounts.

• GoogleCrawler [DO NOT DELETE]
• Google Scholar Indexing

Personal account

• Sign in with email/username & password
• Get email alerts
• Save searches
• Purchase content
• Activate your purchase/trial code
• Add your ORCID iD

Institutional access

Sign in with a library card.

• Sign in with username/password
• Recommend to your librarian
• Institutional account management
• Get help with access

Access to content on Oxford Academic is often provided through institutional subscriptions and purchases. If you are a member of an institution with an active account, you may be able to access content in one of the following ways:

IP based access

Typically, access is provided across an institutional network to a range of IP addresses. This authentication occurs automatically, and it is not possible to sign out of an IP authenticated account.

Choose this option to get remote access when outside your institution. Shibboleth/Open Athens technology is used to provide single sign-on between your institution’s website and Oxford Academic.

• Click Sign in through your institution.
• Select your institution from the list provided, which will take you to your institution's website to sign in.
• When on the institution site, please use the credentials provided by your institution. Do not use an Oxford Academic personal account.
• Following successful sign in, you will be returned to Oxford Academic.

If your institution is not listed or you cannot sign in to your institution’s website, please contact your librarian or administrator.

Enter your library card number to sign in. If you cannot sign in, please contact your librarian.

Society Members

Society member access to a journal is achieved in one of the following ways:

Sign in through society site

Many societies offer single sign-on between the society website and Oxford Academic. If you see ‘Sign in through society site’ in the sign in pane within a journal:

• Click Sign in through society site.
• When on the society site, please use the credentials provided by that society. Do not use an Oxford Academic personal account.

If you do not have a society account or have forgotten your username or password, please contact your society.

Sign in using a personal account

Some societies use Oxford Academic personal accounts to provide access to their members. See below.

A personal account can be used to get email alerts, save searches, purchase content, and activate subscriptions.

Some societies use Oxford Academic personal accounts to provide access to their members.

Viewing your signed in accounts

Click the account icon in the top right to:

• View your signed in personal account and access account management features.
• View the institutional accounts that are providing access.

Signed in but can't access content

Oxford Academic is home to a wide variety of products. The institutional subscription may not cover the content that you are trying to access. If you believe you should have access to that content, please contact your librarian.

For librarians and administrators, your personal account also provides access to institutional account management. Here you will find options to view and activate subscriptions, manage institutional settings and access options, access usage statistics, and more.

Our books are available by subscription or purchase to libraries and institutions.

• About Oxford Academic
• Publish journals with us
• University press partners
• What we publish
• New features  
• Open access
• Rights and permissions
• Accessibility
• Advertising
• Media enquiries
• Oxford University Press
• Oxford Languages
• University of Oxford

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide

• Copyright © 2024 Oxford University Press
• Cookie settings
• Cookie policy
• Privacy policy
• Legal notice

This Feature Is Available To Subscribers Only

Sign In or Create an Account

This PDF is available to Subscribers Only

For full access to this pdf, sign in to an existing account, or purchase an annual subscription.

Specific Performance Doctrine in Legal Cases Essay

According Rotteinstein Law Group (RLG) (n.d.), a specific performance is a court order that authorizes a party that breaches a contract to perform certain acts. In addition, a court orders a specific performance when it perceives that damages will inadequately compensate the plaintiff (Kane, n.d.). Just like an injunction, a specific performance is not ordered in every civil law case (RLG, n.d.). This essay not only discuses the elements of Specific Performance but also analyzes whether or not scenarios provided are covered under the doctrine of Specific Performance.

It is worth noting that a court uses its own discretion to award a specific performance (Kane, n.d). Therefore, some cases qualify for specific performance while others do not. Instances where specific performance remedy applies include suits where unique goods, personalities and land are involved (Kane, n.d.). On the other hand, specific performance cannot be granted in cases where it impossible to order it, the plaintiff fails to honor part of the bargain, the contract can be terminated and supervision of the defendant is required (RLG, n.d.).

In the first Scenario, Tarrington enters in to contract with Rainier to sell her house. Afterwards, on finding another suitable buyer, she refuses to sell the house to Rainier. Houses are built on lands, therefore, contracts breaches relating to their sale take the same dimensions as land. While haggling over the price of a house, buyers and sellers generally consider the unique features of a land. This means that contracts breaches relating to the sale of houses can only be settled adequately through specific performance (Kane n.d.).

In the second case, Marita refuses to perform after she contracts, for a month, with Horace’s nightclub. This scenario can also be covered under the doctrine of specific performance because personalities have unique capabilities (Kane, n.d.). People are gifted differently and, therefore, cannot be substituted for others (Kane, n.d.). According to Tufal (n.d.), a court cannot force an actress to act for a plaintiff. However, it can impose an injunction to persuade her to honor a contract by preventing her to perform elsewhere (Tufal, n.d.).

The third Scenario features Juan who enters in to a contract to buy a rare coin from Edmund. This is possible, at that moment, because Edmund decides to do away with his coin collection. However, Edmund chooses to keep his coins. In this case, the court may revert to specific performance and order Edmund to turn over the coin to Juan.This is because the coin is a rare commodity since replacing it with another will not be adequate to compensate Juan.

Lastly, Cary enters in to a contract to sell his 4% share holding in Astro Computer Corp to DeValle. He however, refuses to reassign the shares to him. According to the Blanchard (1997), specific performance is not available unless the damages adequately compensate a plaintiff. However, in this scenario, Devalle can be compensated adequately with money. Therefore, the court cannot order a specific performance by Cary to hand over the shares to him.

In conclusion, specific performance does not apply to all cases involving contracts. Kane (n.d.) reiterates that it is only granted in civil laws suits where damages inadequately compensate the plaintiff. These civil law suits mostly involve rare goods, personalities and land.

Rotteinstein Law Group LLP. (n.d). What is “specific performance”? Web.

Blanchard, J. T. (1997). California remedies: commentary, materials and problems (3rd ed.). Web.

Kane, S. ( n.d). Specific performance . Web.

Tufal, A. (n.d.) . Cases on equitable remedies . Web.

• Breach of Contract & Subsequent Lawsuit Settlement
• Business Organization and Alternative Dispute Resolution
• United States of America vs. Apple, Inc. and Seven Other Publishers
• Edmund Botsford, a Baptist Minister
• Statistics: The Theory of Probability
• Contract Law: The Impossibility of Performance
• Negotiations: Rights and Liabilities Associated
• Contract Law: Selling Legal Encyclopedias
• Contract: Definition, Elements, Obligations
• J.C. Durick Insurance v. Peter Andrus Law Case
• Chicago (A-D)
• Chicago (N-B)

IvyPanda. (2022, May 2). Specific Performance Doctrine in Legal Cases. https://ivypanda.com/essays/specific-performance-doctrine-in-legal-cases/

"Specific Performance Doctrine in Legal Cases." IvyPanda , 2 May 2022, ivypanda.com/essays/specific-performance-doctrine-in-legal-cases/.

IvyPanda . (2022) 'Specific Performance Doctrine in Legal Cases'. 2 May.

IvyPanda . 2022. "Specific Performance Doctrine in Legal Cases." May 2, 2022. https://ivypanda.com/essays/specific-performance-doctrine-in-legal-cases/.

1. IvyPanda . "Specific Performance Doctrine in Legal Cases." May 2, 2022. https://ivypanda.com/essays/specific-performance-doctrine-in-legal-cases/.

Bibliography

IvyPanda . "Specific Performance Doctrine in Legal Cases." May 2, 2022. https://ivypanda.com/essays/specific-performance-doctrine-in-legal-cases/.

• To find inspiration for your paper and overcome writer’s block
• As a source of information (ensure proper referencing)
• As a template for you assignment

IvyPanda uses cookies and similar technologies to enhance your experience, enabling functionalities such as:

• Basic site functions
• Ensuring secure, safe transactions
• Secure account login
• Remembering account, browser, and regional preferences
• Remembering privacy and security settings
• Analyzing site traffic and usage
• Personalized search, content, and recommendations
• Displaying relevant, targeted ads on and off IvyPanda

Please refer to IvyPanda's Cookies Policy and Privacy Policy for detailed information.

Certain technologies we use are essential for critical functions such as security and site integrity, account authentication, security and privacy preferences, internal site usage and maintenance data, and ensuring the site operates correctly for browsing and transactions.

Cookies and similar technologies are used to enhance your experience by:

• Remembering general and regional preferences
• Personalizing content, search, recommendations, and offers

Some functions, such as personalized recommendations, account preferences, or localization, may not work correctly without these technologies. For more details, please refer to IvyPanda's Cookies Policy .

To enable personalized advertising (such as interest-based ads), we may share your data with our marketing and advertising partners using cookies and other technologies. These partners may have their own information collected about you. Turning off the personalized advertising setting won't stop you from seeing IvyPanda ads, but it may make the ads you see less relevant or more repetitive.

Personalized advertising may be considered a "sale" or "sharing" of the information under California and other state privacy laws, and you may have the right to opt out. Turning off personalized advertising allows you to exercise your right to opt out. Learn more in IvyPanda's Cookies Policy and Privacy Policy .

Scali Rasmussen

Specific performance.

Enforcement of real property purchase agreements

Contributors

Jeffrey W. Erdman

Julie S. Pearson

“Specific Performance” is a powerful legal remedy afforded to parties to certain contracts where there has been a failure of performance on one side. In California, the remedy is established by statute in the California Civil Code at Sections 3384 to 3395. Most commonly, a court action for specific performance is used to compel performance of either the buyer or the seller of real property, enforcing the specific terms of the real estate purchase agreement. This remedy is often pursued regardless of whether other monetary remedies may be available to the party not in breach.

The scenarios in which an action for specific performance can be employed are numerous. Imagine a situation where auto dealer holds the assets of an auto dealership in one corporation but holds the real property where the dealership operates in another corporation, also controlled by the same dealer, subject to a lease to the dealership. The dealer decides to sell the dealership to a buyer, who is granted a long-term lease on the dealership property and who is also granted an option to purchase the real property at a future date. A few years later, the buyer decides to timely exercise the option to purchase the real property at the option price but the seller now believes that the option price is too low and does not want to sell. As long as the buyer can show that the option contract is not so ambiguous as to be unenforceable and that the buyer is able to perform and pay the full option price, the buyer can obtain a court judgment against the seller forcing the sale to the buyer -- regardless of whether the option price is now considered to be below the value of the property.

This is primarily because the law has long recognized real property as unique in such a way that monetary recovery would not fully compensate a buyer for being unable to purchase the property. In fact, California law – like many other states – provides for a legal presumption that monetary recovery would be inadequate to compensate for a breach of a real property purchase agreement. The law imposes a conclusive presumption with regard to residential property when the buyer intends to occupy the property and, in all other instances, a presumption shifting the burden of proof as to the adequacy of monetary remedies. (Cal. Civ. Code § 3387.)

Is the right to specific performance limited to buyers?

No. Although it is unusual, a seller also has a legal right to bring an action for specific performance against a defaulting buyer under California law. Many real property purchase agreements provide for “exclusive” remedies to sellers. Commonly, such a remedy provides exclusively for the payment of liquidated damages resulting from a buyer’s breach (i.e. a specific sum or method of calculation for money that is payable by the buyer of the buyer breaches), in which instance the purchase agreement itself may prohibit an action for specific performance. However, in cases where the seller’s specified remedy is not exclusive, the remedy of specific performance is considered to be held mutually by the buyer and seller. This means that the seller can typically elect whether to pursue monetary remedies or the remedy of specific performance. (Cal. Civ. Code § 3389 and § 1680.) Nevertheless, in the alternative to an action for specific performance, a seller may prefer to pursue a sale to a different buyer and merely seek monetary damages against the breaching buyer. For example, a seller may seek damages such as the difference between a lower price paid by a second buyer as versus what the first buyer agreed to pay in a downward market and/or the interest on the unpaid purchase price between the date of performance and the date of judgment.

Can a buyer who succeeds at compelling specific performance also obtain damages?

Yes. If the buyer of real property brings an action for specific performance, that buyer may also obtain a damages award for any consequential damages caused by the seller’s refusal to perform. For example, with rental property, the buyer is losing out on rent payments made during the period between the date for closing and the date the buyer is finally able to take ownership. These lost rents are a consequence of the seller’s breach. Similarly, in our scenario above, to the extent the buyer with the option continues to pay rent for the property the buyer optioned to buy, beyond what the buyer would have paid if able to close on the option, the excess rents payments may be a consequential injury to the buyer (subject perhaps to an offset of what the buyer would have paid on any financing). Also, if the cost of the buyer’s financing increased during the period of breach, and the buyer had to pay a higher interest rate for the same loan, that may be considered a consequential injury to the buyer. Of course, interestingly, the breaching seller may seek to offset interest that the seller may have made on the purchase funds had they been paid when intended. In this way, the court effectively conducts an “accounting” between the parties to render each whole in the end.

It is important to note, however, that the attorney’s fees and costs incurred in pursuing or fighting an action for specific performance are not considered a consequential loss associated with the breach. Rather, under California law, only a prevailing party may recovery attorney’s fees and costs if such is provided by the real property purchase agreement executed by the parties. (Cal. Civ. Code § 1717.)

When can specific performance be denied by the court?

First, it should be noted that many types of contracts are not subject to an order for specific performance, including contracts pertaining to personal services and contracts that are not “sufficiently certain to make the precise act which is to be done clearly ascertainable.” (Cal. Civ. Code § 3390.) Second, even in instances in which the type of contract would ordinarily be subject to a remedy of specific performance, the party seeking performance must be able to establish an ability to fully perform both at the time the contract was entered into and at the time any judgment for specific performance is rendered. That is, under California law, specific performance “cannot be enforced in favor of a party who has not [or cannot] fully and fairly performed all of the conditions precedent on his party to the obligation the other party,” unless the failure to perform is only partial and is either “entirely immaterial” or “capable of being fully compensated…” (Cal. Civ. Code § 3392.) For example, if a buyer is unable secure necessary funding, he may be denied specific performance or conversely, if a seller is unable to timely deliver over clean and clear title, the seller may be denied specific performance against a buyer.

Even if a party can meet this legal standard, a court may also deny specific performance against a party where that party can establish it would not be “just and reasonable” (Cal. Civ. Code § 3391(2) – although that does not necessarily merely mean that the deal previously struck was a bad deal for the breaching party. Rather, such a defense would be more likely successful if forcing the transaction would unduly imperil the breaching party and subject them to bankruptcy, receivership or other such detriment. Finally, the breaching party may successfully defend an action for specific performance if that party can establish the underling agreement was the product of fraud or unfair business practices or the result of a “mistake, misapprehension, or surprise” (unless the contract specifically provides for compensation in the event of mistake). (Cal. Civ. Code § 3391(3)-(4).)

How do you prevent the seller from selling the real property before the court decides the case?

As we have explained in an earlier published article , the most significant protection a buyer has to try to ensure that property is not sold to someone else while an action for specific performance is being sought is the power of the lis pendens or Notice of Pendency of Action.

“The significance of a Notice of Pendency of Action is that, by giving notice of a pending legal action involving claims affecting real property identified in the Notice, it protects the interests of the named parties. Once recorded against the property, making the Notice apparent to those who review property title records, the Notice also gives priority to any judgment obtained by the party who recorded the Notice as of the date the Notice is recorded, over subsequent interests obtained which affect the real property. California Civil Procedure Code (CCP) §405.01 et seq. Thus, the Notice can effectively deter subsequent transfer or encumbrance of the identified real property, since it indicates that property ownership rights are in dispute, and the rights of the party who recorded the Notice will have priority, if successful in their claims.”

Final thoughts:

Real estate contracts can be fraught with pitfalls for the unwary. Contract terms and conditions may be included that provide – intentionally or unintentionally – ways to evade performance of a contract in a way that specific performance cannot prevent or remedy. Or, as noted above, the terms may not be sufficiently certain so as to be enforceable by a court. Parties entering into any substantial transaction should seek representation from a qualified professional. At Scali Rasmussen PC, we can provide superior legal counsel at front end (such as the preparation or negotiation of buy-sell agreements) and we can be there if things go wrong during the transaction through our experienced team of litigators. Indeed, in some instances, the best remedy is to pursue the legal right of rescission – essentially the opposite of specific performance in which a transaction is reversed or unwound rather than ordered to be performed. (Watch for an upcoming Ahead of the Curve article on the remedy of rescission.)