IV. Specific Requirements: For Specific Performance of Contracts

Question 1

Nature of Specific perofrmance

Answer 1

party to a contract is orders to perform according to its terms

Question 2

Obtaining Specific Perofrmance

Answer 2

• Must satisfy general requirements for equitable relief
• Plus specific requriements

Question 3

Specific Reqruiements

Answer 3

1. Existence of a Contract
2. Fufillment by the plaintiff of all conditions precedent
3. Mutuality of Rmedy

Question 4

Establishing a Valid Contract

Answer 4

1. CERTAIN TERMS: must be cetain as to its material terms which include: (may require greater certainity b/c of equity)
   
   1. identity of the parties
   2. existence as consideration
   3. time nad manner of payment
   4. subject matter of contract
2. EXISTENC OF CONSIDERATION: must be supported by consideration–inadquacy is so extreme that contract is unconscionable

Question 5

Have all Conditions been fufilled

Answer 5

• TIME IS OF THE ESSENCE CLAUSE: can prevent specific enforcment unless court determines to loosely interpreted b/c 1) loss to other party is minimal; 2) undue hardship to perform with time; 3) waiver of right to timely performance; OR 4) Tardiness is Diminimus
• SUFFICIENCY OF TITLE: must have marketable title unless deficiency is minor or deficiency is severable–can reduce price to reflect deficiencys

Question 6

Does mutuality of remedy exist

Answer 6

• Means one party to a k is not entitled to specific perofrmance unless the other parties would also be entitled to have specific perofrmance
• Most states now use pragmatic approach. Remedies mutual if 1) both parties are capable of performing; and 2) court can secure plaintiff’s counterperformance

Question 7

Application of Specific Perofrmance to Land Contracts

Answer 7

• if K to sell real estate enforceable by speciifc enforcement, doctrine of equitable conversion takes effect
  
  • buyer considered owner of property upon executing the contract
  • seller retains only a security title until purchase paid
• RIsk of Loss:
  
  • MAJ (GA): absent an agreement to contrary, buyer has risk of loss if building damaged or destoryed before colosing. Seller entitled to SP without reducion. May have right to any insurance proceeds
  • MIN: seller has risk of loss until possesion delivered

Question 8

Problems of Feasibility of Enforcement in Land Contracts