Specific Performance

Question 1

Specific Performance Defined

Answer 1

Req’s D to perform the terms of the contract.

To see if available, apply 5 part test (first 4 part’s on P, last one on D).

1. Validity
2. Plaintiff’s performance
3. Inadequacy
4. Feasibility
5. Defenses

Question 2

Validity

Answer 2

P must show contract was valid

Question 3

P’s Performance

Answer 3

P must show he has already performed, or is ready to perform.
*if both parties can’t perform, court will deny specific performance based on “Negative Mutuality”

Question 4

Specific performance - Time is of the essence clause

Answer 4

If P does not comply with this clause, specific performance unavailable.  
Unless:
1.  P's tardiness is minimal
2.  D's loss due to tardiness is slight
3.  P would suffer undue hardship
4.  D has waived the clause

Question 5

Specific performance - Marketable title to land

Answer 5

In land sale, seller must convey marketable title. If they can’t, court won’t award specific performance
Unless:
1. Deficiency is minimal
2. D waived this req

Note: Court can order reasonable reduction in price

Question 6

Inadequacy

Answer 6

P must show there is no viable legal remedy (money dmg’s).

Common reasons for inadequacy:
i. Dmg’s too speculative
ii. D is insolvent
iii. Breach is ongoing
iv. Subject of K is unique or has special value to buyer
Can also be unique due to market circumstances. Uniqueness tested at time of litigation.

Question 7

Feasibility

Answer 7

P must show that it is feasible to enforce the K.

Question 8

Feasibility - Special situations

Answer 8

1. Unlawful competition
   Court’s may enforce a covenant not to compete if :

a. Covenant protects a legitimate business interest; and
b. Terms of covenant are reasonable w/ respect to scope and duration

(In FL, this includes trade secrets, business relationships, training etc.)
*If covenant unreasonable, court will modify or rewrite covenant and then enforce it.

**(timeline durations for covenants on pg 17 Equity Law handout book)

2. Land Sale K’s
   Feasible enforcement if land is in forum and buyer in forum. If buyer outside, court can’t reach both sides so specific performance unavail.

Question 9

Defenses to Specific Performance

Answer 9

Equitable:

1. Unclean Hands
2. Laches

K defenses:

1. Mistake
2. Misrepresentation
3. Statute of Frauds