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Specific Performance

In the law of remedies, an order of specific performance is an order of the court which requires a party to perform a specific act, usually what is stated in a contract. While specific performance can be in the form of any type of forced action, it is usually used 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 which have a similar effect to specific performance.

Under the common law, specific performance was not a remedy, with the rights of a litigant being limited to the collection of damages. However, the courts of equity developed the remedy of specific performance as damages often could not adequately compensate someone for the inability to own a particular piece of real property, land being regarded as unique. 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. However, in the case of personal performance contracts, it may also be ensured through the threat of proceedings for contempt of court.

Orders of specific performance are granted when damages are not an adequate remedy, and in some specific cases such as land sale. Such orders are discretionary, as with all equitable remedies, so the availability of this remedy will depend on whether it is appropriate in the circumstances of the case.

There are certain circumstances where an order of specific performance would not be granted. Such circumstances include:

  • specific performance would cause severe hardship to the defendant
  • the contract was unconscionable
  • the claimant has misbehaved (no clean hands)
  • specific performance is impossible
  • performance consists of a personal service
  • the contract is too vague
  • contracts terminable at will
  • contracts requiring constant supervision
  • contract lacking mutuality.
  • contract made for no consideration.
  • Additionally, in England and Wales, under s. 50 of the Supreme Court Act 1981, the 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.

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