Specific Performance
Specific performance is the court ordering a breaching party to actually do what the contract promised, instead of paying money for failing to do it.
19. Specific Performance
Specific performance is an unusual remedy for breach of contract, but it may be available when monetary damages are inadequate to compensate the injured party.
- Specific performance is available only when monetary damages will not adequately compensate the nonbreaching party.
- Specific performance is discretionary with the court. Any award will be based on the court’s consideration of the equity of awarding the relief.
- Specific performance is most common when a party breaches a contract for the sale of land, under the UCC for the sale of unique goods, or in other proper circumstances. The uniqueness of land or goods (or the inability to quantify damages) can make monetary damages inadequate to compensate the nonbreaching party.
- Courts rarely order specific performance of a personal service. Although these services may be unique, courts are reluctant to order a form of involuntary service or to compel a personal relationship after a breach.
- When a court orders specific performance, the breaching party must comply with the court order or face the possibility of sanctions for contempt of court.
Specific performance is the unusual remedy of ordering a breaching party to do what it promised. It is available only when monetary damages are inadequate, and even then it is discretionary with the court.
Specific performance is the court ordering a breaching party to actually do what the contract promised, instead of paying money for failing to do it. Start with the most important word in the scope: unusual. Money damages are the default remedy for breach of contract. Specific performance is the exception, not the rule, and a party does not get it just because the other side broke the promise. The gateway is inadequacy. Specific performance is available only when monetary damages will not adequately compensate the nonbreaching party. So before a court will even think about ordering performance, the injured party has to show that a check would not make them whole.
What makes money inadequate? Usually it is uniqueness, or the inability to quantify the loss. When the thing promised has no real substitute on the open market, you cannot just take the cash and buy an equivalent, so money does not actually fix the harm. That is why the remedy shows up most often in the contexts the scope names. Every parcel of land is treated as unique, so contracts for the sale of land are the classic home of specific performance. Under the UCC, the sale of unique goods qualifies, because a one-of-a-kind item cannot be replaced with damages. The scope also leaves room for other proper circumstances, but the engine is always the same: uniqueness or an unquantifiable loss is what makes monetary damages inadequate.
Even when damages are inadequate, the injured party still is not guaranteed the order. Specific performance is discretionary with the court. The court weighs the equity of awarding the relief, so it is an equitable, judgment-based decision rather than an automatic entitlement. That discretion is a second hurdle on top of inadequacy. And the order has teeth: when a court orders specific performance, the breaching party must comply with the court order or face the possibility of sanctions for contempt of court. The remedy is not a polite suggestion; ignoring it exposes the breaching party to the court's contempt power.
Personal-service contracts get special treatment. Courts rarely order specific performance of a personal service, even though the service may be genuinely unique. A court does not want to impose a form of involuntary service, or to force two people back into a personal working relationship after the trust between them has broken down. So uniqueness alone will not get a singer, a painter, or an employee ordered back to work.
"Money first, performance only when money won't do."
Specific performance is the unusual remedy, available only when monetary damages are inadequate, and even then it is discretionary (the court weighs the equity).
The gateway question is always: would a check make this party whole?
If yes, no specific performance.
What usually makes money inadequate is uniqueness or an unquantifiable loss, which is why land and unique goods are the classic homes for the remedy.
The one place uniqueness still loses: personal services, because courts will not compel involuntary service or force a broken relationship back together.
And the order is enforced by contempt, not a polite request.
An art collector contracts to buy a particular original painting from a gallery for a fixed price. The painting is one of a kind and the only one of its type in existence. Before delivery, the gallery refuses to hand it over because another buyer offered more. The collector sues, asking the court to order the gallery to deliver the painting rather than merely pay damages.
The collector can obtain specific performance. Now suppose the contract were for a mass-produced print available from many sellers at a market price. Now money is fully adequate, because the collector can buy an identical print, so specific performance is unavailable and the collector is left to damages.
An answer that lets the party get specific performance simply because the other side breached, or because the party prefers performance to a money payout.
Specific performance is available only when monetary damages will not adequately compensate the party; the mere fact of breach and the party's preference are not the standard. Inadequacy of money is the gateway.An absolute answer: a court will always order specific performance for a land sale, will never order it for goods, or will never order it for a personal service.
The remedy is discretionary and fact-sensitive; it is available in the named contexts and other proper circumstances, and courts rarely (not never) order it for personal services.An answer that reaches the right yes or no but rests it on the wrong driver, such as the breach being willful, the contract being in writing, or the price being high.
Name the operative reason: the inadequacy of monetary damages, usually from uniqueness, not a fact the remedy does not turn on.An answer that imports a rule from another area, such as treating the remedy as automatic once consideration exists, or applying a forfeiture or damages-measurement rule as the consequence or test.
The test is inadequacy of money damages plus the court's equitable discretion; consideration, forfeiture, and damages-measurement rules are not the standard.An answer that adds a sequencing requirement, such as that the party must first sue for and fail to collect damages, or wait until performance is impossible, before equity is available.
There is no such sequencing requirement; inadequacy of the legal remedy is assessed directly, and the party need not first pursue damages.An answer that points to a true but non-controlling fact: the breaching party is wealthy, the price was high, or the parties were merchants.
The controlling question is whether money damages adequately compensate the party, not the solvency or status of the parties or the size of the price.a party who wants the actual thing promised, not just a money payout, asks the court to compel performance after a breach.
Watch for a contract for the sale of land, a one-of-a-kind or unique good, or a personal service, and a stem that tempts you with breach alone, the plaintiff's preference for performance, or a sympathetic fact like the defendant's wealth or bad motive.
The instant you see a request to force performance, run the gateway check: would money damages adequately compensate this party?
If a damages check would make them whole (a fungible, replaceable item with a market price), specific performance is unavailable.
If the subject is unique or the loss cannot be quantified (land, a unique good), damages are inadequate and the remedy may be available, though still discretionary.
And if the contract is for a personal service, expect the court to refuse even when the service is unique, because it will not compel involuntary service or a broken relationship.
A land buyer signed a contract to purchase a specific residential parcel from a seller for a set price. Before closing, the seller changed his mind and refused to convey the parcel, even though he was financially able to perform. The buyer did not want a refund or a substitute property; she wanted this particular parcel, and she sued asking the court to order the seller to convey it rather than merely pay damages.
Is the court likely to find specific performance available to the buyer?
A buyer contracted to purchase a quantity of a standard, mass-produced industrial component from a manufacturer at a set price. The component is sold by many suppliers at a readily ascertainable market price, and identical units are available elsewhere. The manufacturer breached and refused to deliver. The buyer, who simply preferred to receive the goods from this manufacturer, sued and asked the court to order the manufacturer to deliver the components rather than pay damages.
Is the court likely to order specific performance for the buyer?
A renowned vocalist signed a contract to perform a series of concerts for a concert promoter. The vocalist's voice and stage presence are widely regarded as one of a kind and impossible to replicate. Shortly before the first show, the vocalist breached and refused to perform any of the dates. The promoter, insisting that no substitute could match the vocalist, sued and asked the court to order the vocalist to take the stage and perform the contracted concerts.
Is the court likely to order the vocalist to perform the concerts?
A collector contracted to buy a one-of-a-kind antique automobile, the only surviving example of its model, from its owner at an agreed price. After signing, the owner refused to deliver the car. The collector sued and asked the court to order the owner to turn over the automobile rather than pay damages. The trial judge found that the car is genuinely unique, that no equivalent could be purchased on the market, and that there was nothing inequitable about ordering the sale to go through.
On what basis is the court most likely to grant specific performance?
A court entered an order of specific performance directing a seller to convey a unique parcel of land to a buyer by a date certain. The date passed, and the seller, fully able to comply, simply refused to convey the parcel and ignored the court's order. The buyer returned to court to enforce the decree.
What consequence does the seller most directly risk by refusing to comply with the court's order?