Pg 22 Flashcards
What is the only type of law that specific performance applies to?
Contracts
When is specific performance awarded in a contract?
When there is a breach of the contract
What does specific performance do?
It compels a party to a contract to perform his contractual promise.
Is specific performance discretionary?
Yes, courts have discretion whether or not to order this
What happens if a person was ordered to specifically perform and they didn’t?
That is punishable by contempt
What are the elements of specific performance?
Don’t Ignore My Final Diploma – definite and certain contracts – inadequate remedy - mutuality – feasibility – defences
What is involved in the element of specific performance that requires a definite and certain contract?
The contract must be unequivocal in its terms. This looks at whether there’s enough information in the contract for the court to fashion a specific performance decree. The court needs to be sufficiently certain about the contractual obligation.
If a contract says the sales woman must use her “best efforts,” will the court be able to enforce this through specific performance?
No, because they do not know what that means and it cannot be monitored because the terms are not definite and certain enough
What is an inadequate legal remedy as an element of specific performance?
This can be gotten by a unique item, defendant being insolvent, multiplicity of suits, inadequate remedy, speculative damages, etc.
What is the most common situation for specific performance when the element is about an inadequate legal remedy?
When the contract involves something that is so unique that replacement cannot be easily bought or done. I.e.: a contract involves a personal service by an artist or an athlete
If there was a land sale contract that ended up getting breached, but the buyer of the property just intended to resell the property, will specific performance be ordered?
Even though land is unique, because the buyer was just going to resell it, probably not
What is the split on mutuality as an element of specific performance?
- common law: mutuality of remedy
– modern majority rule: mutuality of performance
What is mutuality of remedy for specific performance?
At common law specific performance had to be available to both parties. I.e.: if the plaintiff contracted to buy a unique item from the defendant who then refused to sell it, the plaintiff could not get specific performance because if the situation was reversed, a money amount would have fully compensated the seller for not being able to sell the item to the plaintiff. So since there isn’t any mutuality on both sides here, this element wouldn’t be established
What is the mutuality of performance as an element of specific performance?
Under the modern majority rule, this just requires that the party seeking specific performance have already substantially performed his contract or obligation, or satisfactorily assure that performance will be rendered. This requires more than just promising to perform. I.e.: P contracted to buy a unique item from D who then refused to sell it, if P hadn’t paid for the unique item, then he hasn’t substantially performed, and just promising to perform is not enough. But if he had already paid the money in an escrow account just waiting for delivery, that satisfies the requirement because it puts performance beyond his control and satisfactorily assures the court the performance will be rendered.
What is involved in the element of specific performance that requires feasibility?
It must be feasible for the court in the sense that they must have jurisdiction over the parties and property in the suit and they must be able to enforce their decree by being able to supervise what the defendant is doing to make sure he’s living up to his contractual promise.
