The Remedy of Specific Performance. Thus, the remedy of specific performance is in contrast with the remedy by way of damages for breach of contract, which gives pecuniary compensation for failure to carry out the terms of the contract. Specific performance is an equitable remedy, which means that it is awarded at the discretion of the court. Specific performance should only be available if it is the appropriate approach in the particular circumstances of the case [3] . Although the plaintiff can elect to claim specific performance from the defendant, the court has a discretion to grant or decline the order of specific performance. This note sets out when specific performance will be appropriate and the terms and features that may bar specific performance, as well as considering specific performance in contracts for the provision of services and where damages would be the appropriate remedy. For example, the Uniform Commercial Code (UCC), a set of laws adopted by all 50 states and D.C. that standardizes commerce laws between the states, does allow for specific performance as a remedy to the buyer in some cases. Introduction 163. This chapter will enable you to achieve the following learning outcome from the CILEx syllabus: 2 Understand equitable remedies. Alternatively, the innocent × specific performance 2.7 Specific performance and third parties 2.8 Summary. Specific performance is an equitable remedy available at the discretion of the judge. Specific performance is used to put the aggrieved party into the place they would have been had the contract not been breached. In the USA, see Thomas S Ulen, ‘The Efficiency of Specific Performance: Toward a Unified Theory of Contract Remedies’ (1984) 83 Mich L Rev 341. Specific performance is a form of mandatory injunction. Specific performance is the primary and natural remedy for breach of contract and is in principle available to the aggrieved contractant. Injunctions, decrees of specific performance, declaratory judgments, and constructive trusts are typical examples of some kinds of equitable remedies. Specific performance is an equitable remedy to a contract law dispute. inadequate. This is not to be confused with any monetary exchange, rather that the contract be fulfilled as agreed upon originally. An injunction is a remedy that prohibits a party from a particular act. The remedy of specific performance (“SP”) is available for the breach of contracts agreed in such diverse spheres as the sale and detention of goods, building and construction and for the purchase of items said to be essential and otherwise unavailable.1 1.2. It is an order by the court requiring one party to perform their contractual obligation. Specific reference to lease covenants are made. G de Vries, ‘Right to Specific Performance: Is There a Divergence between Civil- and Common-Law Systems and, If So, How Has It Been Bridged in the DCFR?’ (2009) 17 Eur Rev Private L 581. It is considered an equitable remedy and is used when traditional monetary damages do not suffice to resolve a legal dispute. to give a theatrical performance in a theatre). Parties are not automatically entitled to it. And that is the nature of most contractual obligations. Specific Performance as Remedy | Stimmel Law ... Introduction: Specific performance is a specific type of legal remedy intended to make an injured party whole again. The attorney can advise you about whether specific performance is a legitimate remedy for your dispute. A decree by the court to compel a party to perform its contractual obligations. In the High Court, it may be granted in addition to or instead of damages. Chapter 8: Comparison between the treatment of athletes’ contracts in South Africa and abroad 8.1. Specific performance is a remedy sought in civil court, instead of money. However, there are instances where the breach is such that the innocent party may seek equitable damages in addition to or in lieu of the equitable remedies of specific performance and injunctive relief (see Practice Note: The remedy of damages—general principles). The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in … The Remedy of Specific Performance for Breach. In the normal case a decree of specific performance will require the parties to a You can get a referral to an attorney by contacting your state’s bar association and asking for a referral. Specific performance is the primary remedy for breach of contract in civilian legal systems, whereas it is a secondary remedy in common law systems where damages is the primary remedy. denied).” Kleberg County v. They will be discussed in turn. Specific Performance. March 23, 2016 . Specific performance is an order of the court requiring a party to a contract to perform their obligations under the contract. Specific performance is an equitable remedy that requests the promised act be performed per the contract. Since the remedy is requiring the breaching party to perform the specific terms of the contract, it is important to know exactly what those specific terms imply. Specific performance vs injunction. was able to do this because of the equitable nature of specific performance and the court's consequent ability to give relief on terms. 英文契約書の作成，チェック（レビュー／審査），翻訳（英訳／和訳），修正の依頼を受ける際によく受ける相談・質問，「Specific Performance（特定履行）とは何ですか。」について，弁護士が解説し … App.–Fort Worth 2003, pet. This equitable remedy forms the backbone of the Specific reliefs and is one of the most prominent remedies that are granted by the courts. specific performance an equitable remedy for breach of contract where damages are felt to be an inadequate remedy. See Carrico v. Kondos, 111 S.W.3d 582, 588 (Tex. Specific Relief Act, 1963 adopts the remedy of Specific Performance of contracts from its predecessor, i.e., the 1877 Act. 2 Specific performance is the most efficient remedy The remedy that will achieve the greatest efficiency in the exchange and breach of contractual obligations is specific performance. Because specific performance is an equitable remedy available only when the legal remedy of damages is insufficient, when one brings a breach of contract suit, one must elect to sue for either money damages or specific performance. Thus the three remedies are closely related. It requires a defendant to actually go through with a certain action he promised to do, instead of just paying money for not keeping his promise. Specific performance is referred to under the law as an equitable remedy. An overview of the equitable remedy of specific performance of positive obligations under a contract. Specific performance is a remedy that orders the breaching party to comply with the terms of the contract. The remedy of specific performance and the Constitution of the Republic of South Africa 156. where there is a contract for the sale of land or shares in a private company the claimant might want the land or shares for their unique value and would regard damages as a poor substitute. The common law remedy of damages is available as of right, but it often proves . 7.5. When the court awards specific performance, the person who is attempting to breach a contract is forbidden from doing so and the contract is enforced by the court, who makes sure both parties carry out the obligations described in the contract. Specific performance is equitable relief, given by the court to enforce against a defendant, the duty of doing what he agreed by contract to do. Hiring a lawyer is important, but if there are solutions to the current problems, the individual may need to consider the situation specifically. This order emphasises the performance of contractual obligations. But in some cases an award of damages would be inappropriate, e.g. 2.1 Introduction. The remedy at common law for breach of contract is damages. and gave the purchaser an effective remedy without the need to maintain concurrent actions in tw19 Iot courts. 1 The general principle is that specific performance will only be awarded where damages would not offer a suitable remedy to the claimant. Contractual obligations most often require a contracting party to positively do something, rather than refrain from doing something. Situational Specific Performance Specific performance remedies may require strategic thinking. Because specific performance is not typically granted, you should meet with an attorney to discuss your case before filing a lawsuit. An injunction is a court order to restrain a party from doing a specific act. 17.5 Specific performance. Specific performance is a primary remedy for breach of contract available for the aggrieved party. It is available in respect of all contracts except positive contracts of a personal nature (e.g. Conclusion 160. [145] The number of cases in which damage awards are unable to fully compensate the promisee outnumbers the number of cases in which specific performance is granted. It involves holding the party in breach to their original obligations under the contract, and mandating that they carry them out. An equitable remedy available for breach of contract. Aims of this Chapter. It is a large expense to seek a legal resolution to contract breaches and problems within the courts. 8.2. Specific performance and injunctions are equitable remedies. It is submitted that specific performance should not be the primary remedy for breach of contract and that it is rightly restricted by the limitations currently in place. One of the traditional areas where this type of remedy is available is in real estate transactions. Specific performance is an equitable remedy that can be awarded for breach of contract, requiring the party to perform their obligations under the contract. Specific performance is a unique remedy that may be available in some cases. The remedy of equitable damages is a creature of statute available either in lieu of or in addition to the equitable remedies of specific performance and injunction. 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