Specific Performance

Question 1

To obtain specific performance, a P must show that:

Answer 1

1. A contract exists,
2. P has performed or is ready, willing, and able to perform,
3. The legal remedy is inadequate,
4. Enforcement is feasible, and
5. There are no defenses available to the D.

Question 2

When will specific performance issues arise?

Answer 2

For time of the essence clauses in Ks and for deficiencies in land sale Ks

Question 3

Deficiencies in land sale Ks - specific performance for seller

Answer 3

If there is a deficiency, the seller may get specific performance only if the deficiency is minor.

Question 4

Deficiencies in land sale Ks - specific performance for buyer

Answer 4

Can get specific performance despite substantial deficiencies but will be unable to get specific performance if the deficiency is very large.

In any case, if SP is granted, there must be an abatement in price for the deficiency.

Question 5

Time of the essence clauses - if K is wholly executory

Answer 5

If the K is wholly executory, the clause will be strictly enforced.

Question 6

Time of the essence clauses - if K is partially executed

Answer 6

If the K is partially executed, the court will seek to avoid the effect of the clause so as to avoid forfeiture.

The court will be likely to avoid the effect of the clause if (1) the loss to the other party is small, (2) the forfeiting party would suffer undue hardship, (3) tardiness is de minimis, or (4) the seller has performed acts giving rise to a waiver situation.

Also look to see if judicial sale might be appropriate.

Question 7

SP not granted if:

Answer 7

1. If the thing bargained for is rare or unique, such as land, personal property, personal services (someone can be prevented from working for someone else), or
2. Money damages are adequate.

Question 8

When are money damages inadequate?

Answer 8

When damages are speculative, the D is insolvent, or multiple suits would be necessary.

A liquidated damages clause can make the legal remedy adequate if it provides that it is the exclusive remedy of the parties.

Question 9

Standard K defenses available

Answer 9

Statute of Frauds, inadequate consideration, misrepresentation, impossibility, and mistake

Question 10

Part performance doctrine

Answer 10

May operate to take a K out of the SoF.

An oral K for the sale of land may be enforced if there is part performance that unequivocally indicates that the parties have contracted for the sale of land

Florida law requires: payment, possession, and valuable improvements.

Question 11

Misrep

Answer 11

Must go to a material factor

Concealment of a material fact will prevent SP as long as the party concealing this info stands in a confidential relationship to the other contracting party.

Question 12

Mistake

Answer 12

Must be bilateral, material, and a mistake of fact rather than law (but mistake of law allowed if the terms of K are unfair).

Unilateral mistake is a defense to SP only if the nonmistaken party either knew or reasonably should have known of the mistake.

Question 13

Equitable defenses

Answer 13

Include unclean hands, laches, and unconscionability (tested at the time of K formation).

The test for unconscionability is a strict one; will not be found merely because the D made a bad bargain.