Page 55 Flashcards
What is specific performance?
This puts the injured party in the position he would’ve been if the contract was performed by making the breaching party give the promised performance.
Specific performance is only available when?
The remedy at law is not adequate (like if subject matter is unique, like interests in land). Damages must be foreseeable and certain
Why will the court never order specific performance for a service contract?
Because it violates public policy to force people to work together, but they might prevent the party from working for others
What are the elements of specific performance?
- definite and certain CONTRACT (court can figure out what each party promised)
- INADEQUATE REMEDY at law (money damages won’t compensate properly)
- enforcement is FEASIBLE (the court doesn’t have difficulty enforcing it and it isn’t too expensive to supervise)
Why can you always get specific performance for land sale contracts?
Because land is unique
If a contract for real property doesn’t satisfy SOF, can specific performance be given?
Yes, under part performance or promissory estoppel.
Is specific performance proper for a personal property breach?
Only if the goods are unique: personalized items, works of art, heirlooms, items that can’t be covered because of market shortages, copyrights, etc. where a substitute can’t be found and damages are too uncertain or speculative
Can specific performance be given for personal services?
Yes, if they are unique: they involve a skill, knowledge, taste, experience, or reputation of the person providing them
What is the only way you can get specific enforcement for personal service contracts?
In the negative: courts enforce a covenant not to work for competitors of the injured party. Can’t force someone to perform services, can only enjoin them from performing elsewhere during a certain time
How does mutuality of remedy relate to specific performance?
If plaintiff has already substantially performed, he can get specific performance against the breacher
What are the defenses that apply to specific performance?
- unclean hands
- hardship
- laches
- impracticability
- insolvency
- indefiniteness
What are unclean hands?
The party has engaged in inequitable conduct and is trying to get specific enforcement for the same transaction - not allowed. UCC emphasizes good faith.
What is the defense of hardship for specific performance?
Specific performance will not be allowed if it will result in a hardship on the breaching party (injured party took unfair advantage of the breacher). Courts balance the hardship to the defendant against the benefits to the plaintiff if enforcement happens, and if the benefit is slight but the hardship is great, specific performance is denied.
What is the defense of laches to specific performance?
Specific performance is denied if the party wanting it unreasonably delayed asserting his rights and this caused prejudice to the breaching party (change of position, loss of evidence, death of a witness, increasing market value, etc.)
If a defendant is insolvent, what will the courts do for specific performance?
They will grant specific restitution if the other creditors aren’t adversely affected
- UCC: if seller finds out buyer got goods on credit while he was insolvent, seller can reclaim them by making a demand within 10 days after receipt
