Contract Remedies: Specific Performance

Question 1

What is “specific performance”?

Answer 1

“specific performance” = a mandatory decree or injunction that orders a contracting party to perform that which she promised to perform

Question 2

What are the requirements for “specific performance”?

Answer 2

1. K must be valid.
2. Terms must be MORE DEFINITE and CERTAIN than in action for money damages
3. P must have FULLY PERFORMED or be ready to fully perform
4. Legal remedy must be inadequate
5. must be FEASIBLE to enforce
6. No defenses

Question 3

With regards to specific performance, what feasibiliy issues arise?

Answer 3

• Personal services contracts,
• land contracts if land is out of state,
• construction contracts

Question 4

What are the defenses to “specific performance”?

Answer 4

1. Laches
2. Unclean hands (same trans)
3. Hardship
   - Sharp Practices
   - Disproportionate Hardship
4. Mistake and Misrepresentation

Question 5

With regards to defenses to “specific performance” and the defense of “hardship”, what are the grounds?

Answer 5

1. Sharp Practices - inadequate consideration that is EITHER
   (a) grossly inadequate; OR
   (b) coupled with an unconscionable contract or “sharp practices”
2. Disproportionate hardship –> NO specific performance if it will cause hardship to D or public that GREATLY OUTWEIGHs harm to P if specific performance were not granted

Question 6

With regards to defenses to “specific performance” and the defense of “hardship” and “sharp practices” - when is adequacy of consideration tested?

Answer 6

Adequacy of consideration is tested at the time K was entered into

Question 7

With regards to defenses to “specific performance” and the defense of “hardship” and “sharp practices” - what is the effect of subsequent hardship?

Answer 7

Example –> oil discovered after signing land sale contract

Majority view –> doesn’t matter
Minority view –> subsequent hardship = sufficient

Question 8

With regards to defenses to “specific performance” - what is the defense of “mistake or misrepresentation”

Answer 8

Mistake or misrepresentation –> is a defense to specific performance IF it’s:

1. of a type that results in hardship; OR
2. constitutes a basis for rescission