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.
What are supervisional issues that need to be discussed under feasibility as an element of specific performance?
- ability
– personal service contracts
– special issues: abatement and implied covenant of marketable title
What is involved in the supervision issue of ability under the element of feasibility for specific performance?
The defendant must have the ability to perform the contractual promise. If the plaintiff contracts to buy land from the defendant but before closing the defendant sells it to a BFP, the plaintiff cannot get specific performance because the defendant no longer can perform his contractual promise.
If a contract is a personal service contract, can a court order a defendant to specifically perform on this?
No because of a feasibility problem in the sense that it requires the court to monitor how someone is performing a service and whether or not they are giving their best effort, plus it raises the 13th amendment concern of involuntary servitude that forces someone to perform a service for someone else
If an employee performing a personal service for his boss is wrongfully fired and wants to be reinstated, will courts order specific performance to do this?
No, because it isn’t feasible for them to monitor if the employee is being properly treated or allowed to do his job. Courts will not order a wrongfully terminated employee in a personal service contract to be reinstated
What is the exception for personal service contracts when courts may use specific performance to enforce them?
If the personal service contract has a negative covenant not to compete, courts can issue injunctions that prevent parties from breaching this negative covenant. This requires that the person performing will not work for someone else in that position. Ie: Shirley McClain had a contract with Disney to start a movie for them, but Paramount persuaded her to star in their movie instead. Disney sued for specific performance but the court said they couldn’t force her to star in Disney’s movie since it was a personal service contract, but they did prevent her from starting in Paramount’s movie by enjoining a breach of the negative covenant not to compete
Every land sale contract has an implied covenant of what?
Marketable title where the seller promises to deliver remarkable title to the buyer.
If a buyer contracts to buy land from the seller and then tries to back out, and the seller wants specific performance of the contract, what must the seller show before he can get specific performance?
The ability to deliver marketable title
If a seller contracts to sell 100 acres to the buyer for $100,000, but before closing a survey shows that the land is only 98 acres, can either party get specific performance?
- if the buyer seeks SP with an abatement: this is often given. The parcel is 2 acres smaller than promised, so $2000 is knocked off the price
– if the seller seeks SP with an abatement: this is only given if the deficiency is minor
Reasoning: if the buyer still wants to go through with the deal, then he doesn’t think the deficiency is a big problem, but if the seller is seeking SP, the buyer shouldn’t be forced to purchase land that has a deficiency unless the deficiency is very minor
What are different defences that a defendant can use to avoid specific performance being awarded against them?
- laches – estoppel – unclean hands – unconscionability – in pari delicto
What is rescission?
The act of cancelling or disaffirming an existing contract (making a contract no longer enforceable). This is both a legal and an equitable remedy that can be granted in either court. This only applies to contract causes of actions
If a plaintiff is seeking specific performance for a breach of contract or damages, what is he affirming?
That a contract exists and was breached. This is why you can never get both rescission and specific performance, but you can ask for both. SP affirms that a contract exists and rescission disaffirms the contract exists, so the plaintiff has to elect which way to proceed but he can sue for damages and rescission in the alternative on a breached contract, although before the remedy is given, he must elect which way to proceed based on which one is most advantageous to him
