Specific Performance (of K)

Question 1

Generally, spec. perf of a K ordering a party to perform his/her contractual duties will be available if the following elements are present:

Answer 1

1) inadequacy of legal remedies
2) the K terms are sufficient
3) there is mutuality of performance
4) court supervision will not be excessive
5) court feasibly can craft the order
6) public interest weighs in favor of Spec. perf.

Question 2

Legal Remedy is Inadequate

Answer 2

Specific performance will likely be granted if the legal remedies are inadequate. Some common ways to establish inadequacy is if the item in question was (unique) and if the (equitable remedies are superior). *enter any pardee. v. camden list

Question 3

Sufficient certainty of K terms

Answer 3

Valid K formation requires offer, acceptance and consideration. In addition, for specific performance, the terms must be sufficiently certain (clear and definite) (to a reasonable degree). W/out sufficient terms the court will find it hard to define what the specific performance would be.

here, assuming there was a valid K, the terms are sufficien/insufficient….

Question 4

Mutuality of Performance (Modern Rule)

Answer 4

Both sides were supposed to perform.

Exam:
“Traditionally court would/not award due to….”
“Today, courts will award b/c mutuality of remedies is not req…“√Mutuality of Perf is enough

Question 5

Traditional Rule (Mutuality of Remedy)

Answer 5

π would only be able to get specific performance if ∆ could have obtained it as well in event of K breach.
TODAY–No such req. exists
(**Mutuality of remedy does not require that each party to an agreement should have precisely the same remedy, either in form, effect or extent. In a fair and reasonable contract, it is sufficient that each party has the possibility of compelling the performance of the promises which were mutually agreed upon. **)

Question 6

reasonable certainty=

Answer 6

to prove damages! (**NOT SAME FORE Spec. Perf)

π must prove to a reas. certainty the 1) existence and 2)measure of damages

Question 7

SUFFICIENT Certainty=

Answer 7

Terms? #quantities?
CERTAINTY of TERMS w.in Contract ITSELF
Court hard to deduce what to order if terms were not sufficiently certain to begin with

Question 8

Specific Performance defined:

Answer 8

To do the act promised

Question 9

Van Wagner Advertising v. S&M
(Billboard/NY)
A tricky uniqueness argument…***

Answer 9

Specific performance is only proper if there is no other adequate remedy available; it is not appropriate where monetary damages are adequate and specific performance would impose a disproportionate burden on the breaching party.
-Here, although the façade is unique, which can be a reason for awarding specific performance, all property is unique to some extent, and “uniqueness in the sense of physical difference” does not itself mean that specific performance is appropriate. On the contrary, the value of the unique qualities of the façade can be fixed with reasonable certainty. The value of the building’s façade to Van Wagner is fixed in its advertising contract with the third party

Question 10

Uniqueness argument

Answer 10

If the value of it can be fixed to a reasonable certainty—than money can replace it and spec. perf not allowed.
Look for some type of value mentioned elsewhere (lease K, 3rd party K?)

Question 11

Land…

Answer 11

the default remedy for land in a K is specific performance since land is presumed unique. However….leases and (—-_) that have a fixed value…can be replaced with money.

Question 12

Personal services K

Answer 12

Normally courts will refuse specific performance because we don’t like slavery and bc the courts do not want to police behavior. However, if if it finds that person possesses special skills and abilities not readily obtainable elsewhere and if the breach caused irreparable injury specific perf MAY Be awarded.

Question 13

FACTS to look out for….

Answer 13

• Floating price or quantity of terms
• *considerable expense
• *Not enough time to find alternate supplier
• *indefinite time
• **Difficult for court to estimate legal damages

Question 14

Feasibility of Court Supervision

Answer 14

Spec. performance will be less likely granted if enforcement by court would not be feasible, ie. excessive.

Question 15

Court’s ability to craft decree

Answer 15

Specific Performance will less likely be granted if the awarding court has difficulty crafting a decree.
Here, no prob bc all the order needs if for π to (deliver,,,,) to ∆

Question 16

Public Interest

Answer 16

Spec. perf will less likely be granted if the public interests in granting the order are outweighed by public interests in denying the order.
Here,,,,,public interest will weigh more in favor of…
In addition, failure to enforce this K would further disfavor public policy allowing…..
By contrast, ∆ might argue that there is a public interest in ….

Question 17

Don’t forget to Craft Order

Answer 17

DO IT!

Question 18

Lack of certainty of terms

Question 19

Imprecise terms argument (uncertain terms)

Answer 19

(co-op ins society v. argyll)
the obligation is not sufficiently precise enough for specific performance of K.

Says nothing about:
√level of trade, area of premises (FIND THINGS MISSING IN K)

Question 20

Courts don’t love ____ & _____, so ____

Contracts of adhesion; payday/title loans

Answer 20

promissory estoppel and unconscionability.
So make unfairness argument
1) substantively
2)procedurally

Question 21

Adhesion Contracts

Answer 21

Generally, a standardized K’s, drafted unilaterally are contracts of adhesion. They are not per se unenforceable, as there are good uses for them such as
√a quicker exchange of commerce and
√efficient way to do business.
But typically they are not bargained for and on a take-it-or-leave-it basis and may contain oppressive provisions.

Question 22

Rudbart’s 4 factor analysis for Adhesion Contracts
(PROCEDURAL factors) (unconscionability)
(*signing away arbitration rights)
(muhammed v. County bank)

Answer 22

Courts look at the take-it-or-leave-it nature or the standardized form of K, but also to:

1) the subject matter of the K
2) the parties’ relative bargaining positions
3) the degree of economic compulsion motivating the “adhering” party, and
4) the public interests affected by the K

Question 23

Mutuality of Performance.

Answer 23

Modern Courts have turned to mutuality of performance.
A court of equity will not compel a ∆ to perform unless can be assured of getting the performance promised by π.
**there will usually always be mutuality of performance unless performance has already been done.

Question 24

Question for adhesion K?

Answer 24

should it be deemed unforceable for public policy reasons? (public interest?)

Question 25

Do a ______ & _______ analysis for unconscionability.

Answer 25

procedural & substantive

Question 26

The positives of adhesion K

Answer 26

Ad. K…. are not per se unenforceable. They are used for a quicker exchange of commerce and an efficient way to get business done.
However, ….
typically - Xare not bargained for
√take it or leave it √ may contain oppressive provisions.

Question 27

Adhesion K –factor 4 argue

muhammed v. County bank

Answer 27

√we want people to enter in to fair K so they don't fall into traps
√ we don't want private K to interfere with statutory rights or obligations (such as here, right to class action suit or a remedy)

Question 28

Adhesion K–substantive argument

unconsc

Answer 28

analyze subject matter of k (blends w/element 1)
here, √illusory- $200 not enough to warrant a lawsuit but the K was drafted to preclude her form a class action suit (the only thing suitable to address her harm)

√Rights……x, y, z were..
√ she only spent 200

also think campbell/carrots—K had clause that no recourse for wentz if campbell rejected carrots)

Question 29

adhesion K