Editing Contracts/Specific performance

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'''Specific performance''' is an non-monetary remedy; it is equitable remedy in the law of [[contract]], whereby a  court issues an order requiring a party to perform a specific act, such as to complete performance of the contract. 

Specific performance is typically available in the sale of [[land law]], but otherwise is not generally available if damages are an appropriate alternative. Specific performance is almost never available for contracts of personal service, although performance may also be ensured through the threat of proceedings for [[contempt of court]].

Specific performance is commonly used in the form of injunctive relief concerning confidential information or real property. While specific performance can be in the form of any type of forced action, it is usually to complete a previously established transaction, thus being the most effective remedy in protecting the expectation interest of the innocent party to a contract. It is usually the opposite of a prohibitory  [[injunction]], but there are mandatory injunctions that have a similar effect to specific performance.

At [[common law]], a claimant's rights were limited to an award of damages. Later, the [[court of equity]] developed the remedy of specific performance instead, should damages prove inadequate. Specific performance is often guaranteed through the remedy of a right of possession, giving the plaintiff the right to take possession of the property in dispute.

As with all equitable remedies, orders of specific performance are discretionary, so their availability depends on its appropriateness in the circumstances. Such order are granted when damages are not an adequate remedy and in some specific cases such as [[real property|land]] (which is regarded as unique).

==Exceptional circumstances==
An order of specific performance is generally not granted if any of the following is true:

* Specific performance would cause severe hardship to the defendant.
* The contract was [[unconscionable]].
* Common Law damages are readily available or the detriment suffered by the claimant is easy to substitute, then damages are adequate.<ref name="Dougan v Ley">{{cite AustLII|HCA|3|1946|litigants=Dougan v Ley |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1946/3.pdf (1946) 71 {{abbr|CLR|Commonwealth Law Reports}} 142] |courtname=auto}}.</ref><ref name="Loan Investment v Bonner">{{cite BAILII |litigants=Loan Investment Corporation of Australasia v Bonner |year=1969 |court=UKPC |num=33 |format=1}} {{cite NZLII |court=NZPC |num=1 |year=1969 |parallelcite=[1970] [[New Zealand Law Reports|NZLR]] 724 |courtname=[[Judicial Committee of the Privy Council|Privy Council]] (on appeal from New Zealand)}}.</ref>
* The claimant has misbehaved ([[unclean hands]]).
* Specific performance is impossible.
* Performance consists of a personal service <ref name="Patricks v MUA">{{cite AustLII|HCA|32|1998|litigants=[[Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia]] |parallelcite=(1998) 195 [[Commonwealth Law Reports|CLR]] 1 |date=4 May 1998 |courtname=auto}}.</ref>
* The contract is too vague to be enforced.
* The contract was terminable at will (meaning either party can renege without notice).
** Note that [[consumer protection law]]s may disallow terms that allow a company to terminate a [[consumer contract]] at will  (e.g. [[Unfair Terms in Consumer Contracts Regulations 1999]]<ref>(c)making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone, http://www.legislation.gov.uk/uksi/1999/2083/schedule/2/made</ref>)
* The contract required constant supervision.<ref name="CIS v Argyll">{{cite BAILII |court=UKHL |year=1997 |num=17 |litigants=Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd |parallelcite=[1998] [[Appeal Cases Law Reports|AC]] 1 |courtname=auto}}.</ref>
* Mutuality was lacking in the initial agreement of the contract.
* The contract was made for no [[consideration]].
* Specific performance will not be granted for contracts which are void or unenforceable. The exception to this (in equity) is in relation estoppel or part performance.<ref name="Goldsbrough v Quinn">{{cite AustLII|HCA|20|1910|litigants=Goldsbrough, Mort and Co Ltd v Quinn |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1910/20.pdf (1910) 10 {{abbr|CLR|Commonwealth Law Reports}} 674] |courtname=auto}}.</ref>
* Where an injunction to restrain an employee from working for a rival employer will be granted even though specific performance cannot be obtained. The leading case is ''[[Lumley v Wagner]]'', which is an English decision.<ref>{{cite BAILII |litigants=[[Lumley v Wagner]] |year=1852 |court=EWHC |division=Ch |num=J96 |parallelcite=(1852) 64 [[English Reports|ER]] 1209 |courtname=[[High Court of Chancery]] (England and Wales)}}.</ref>

Additionally, in [[England and Wales]], under s. 50 of the [[Senior Courts Act 1981]], the [[High Court of Justice|High Court]] has a discretion to award a claimant damages ''in lieu'' of specific performance (or an [[injunction]]). Such damages will normally be assessed on the same basis as damages for breach of contract, namely to place the claimant in the position he would have been had the contract been carried out.

==Examples==
In practice, ''specific performance'' is most often used as a remedy in transactions regarding land, such as in the sale of land where the vendor refuses to convey title. The reason being that land is unique and that there is not another legal remedy available to put the non-breaching party in the same position had the contract been performed.

However, the limits of ''specific performance'' in other contexts are narrow. Moreover, performance based on the personal judgment or abilities of the party on which the demand is made is rarely ordered by the court. The reason behind it is that the forced party will often perform below the party's regular standard, when it is in the party's ability to do so. Monetary damages are usually given instead.

Traditionally, equity would only grant specific performance with respect to contracts involving [[Personal property|chattels]] where the goods were unique in character, such as art, heirlooms, and the like. The rationale behind this was that with goods being [[fungibility|fungible]], the aggrieved party had an adequate remedy in damages for the other party's non-performance.

In the United States, Article 2 of the [[Uniform Commercial Code]] displaces the traditional rule in an attempt to adjust the law of sales of goods to the realities of the modern commercial marketplace. If the goods are identified to the contract for sale and in the possession of the seller, a court may order that the goods be delivered over to the buyer upon payment of the price. This is termed ''[[replevin]]''. In addition, the Code allows a court to order specific performance where "the goods are unique or in other proper circumstances", leaving the question of what circumstances are proper to be developed by [[case law]].
The relief of Specific Performance is an equitable relief which is usually remedial or protective in nature. 
In the [[Civil law (legal system)|civil law]] (the law of continental Europe and much of the non English speaking world) specific performance is considered to be the basic right.  Money damages are a kind of "substitute specific performance."  Indeed, it has been proposed that substitute specific performance better explains the common law rules of contract as well, see (Steven Smith, ''Contract Law'', Clarenden Law ).

== Legal Debate ==
There is an ongoing debate in the legal literature regarding the desirability of specific performance. Economists, generally, take the view that specific performance should be reserved to exceptional settings, because it is costly to administer and may deter promisors from engaging in [[efficient breach]]. Professor Steven Shavell, for example, famously argued that specific performance should only be reserved to contracts to convey property and that in all other cases, money damages would be superior.<ref>{{Cite journal|title = Specific Performance versus Damages for Breach of Contract|ssrn = 868593|date = 2005-11-01|location = Rochester, NY|first = Steven|last = Shavell}}</ref> In contrast, many lawyers from other philosophical traditions take the view that specific performance should be preferred as it is closest to what was promised in the contract.<ref>{{Cite journal|title = The Divergence of Contract and Promise|ssrn = 959211|date = 2007-01-24|location = Rochester, NY|first = Seana|last = Shiffrin}}</ref> There is also uncertainty arising from empirical research whether specific performance provides greater value to promisees than money damages, given the difficulties of enforcement.<ref>{{Cite journal|title = Contract Remedies in Action: Specific Performance|ssrn = 1641438|date = 2015-01-16|location = West Virginia Law Review|first = Yonathan A.|last = Arbel}}</ref>

==See also==

*[[Tort]]
*''[https://scholar.google.com/scholar_case?case=18047423494759334829 Clyatt v. United States]'', 197 U.S. 207 (1905) no specific performance on employment contracts
*''[[Beswick v Beswick]]''
*''[[Tamplin v James]]''

==References==
{{reflist}}

==Sources==
*A Kronman, ‘Specific Performance’ (1978) 45 University of Chicago LR 351
*S Schwartz, ‘The Case for Specific Performance’ (1979) 89 Yale Law Journal 271
*I Macneil, ‘Efficient Breach of Contract: Circles in the Sky’ (1982) 68 Virginia LR 947


==External links==
*[http://www.darlingtons.com/blog/specific-performance-property-contracts/ Guide to specific performance in property contracts]