Specific performance

Lore & Background

At common law, a claimant’s rights were originally limited to an award of damages. Courts of equity later developed the remedy of specific performance to address cases where damages proved inadequate. This equitable remedy is discretionary, meaning its availability depends on whether it is appropriate under the circumstances. It is typically available in the sale of land, as land is regarded as unique, but is not generally granted if damages are an adequate alternative. Specific performance is almost never available for contracts of personal service, though an injunction to restrain an employee from working for a rival may be granted instead, as in the leading case *Lumley v Wagner*. A court will not order specific performance if it would cause severe hardship to the defendant, if the contract was unconscionable, if the claimant has misbehaved (unclean hands), if performance is impossible, if the contract is too vague, if it requires constant supervision, or if mutuality was lacking in the initial agreement. The remedy is often guaranteed through a right of possession, allowing the plaintiff to take possession of the disputed property. In practice, specific performance is most often used in land transactions, where the vendor refuses to convey title, because land is considered unique and damages cannot put the non-breaching party in the same position. However, modern decisions in at least one common law jurisdiction argue that uniqueness is merely a proxy for a broader rule of justice, awarding specific performance wherever it better serves justice between the parties. Performance based on personal judgment or abilities is rarely ordered, as the forced party may perform below standard; monetary damages are usually given instead.

Reader's Guide

Specific performance is an equitable remedy in contract law, distinct from the common law’s original limitation to damages. Developed by courts of equity, it allows a court to order a party to perform a specific contractual act, such as completing a sale. Its availability is discretionary, depending on the circumstances. The remedy is most commonly applied to land transactions, where land is considered unique, making monetary damages inadequate. One traditional justification is that land’s uniqueness leaves no other legal remedy to place the non-breaching party in the same position as if the contract had been performed. However, some modern decisions argue that uniqueness is merely a proxy for a broader rule: specific performance is awarded wherever it better serves justice between the parties.

Courts will not grant specific performance in several exceptional circumstances. These include when damages are an adequate remedy, when performance would cause severe hardship to the defendant, when the contract was unconscionable, when the claimant has misbehaved (unclean hands), when performance is impossible, when the contract is too vague, when it requires constant supervision, or when it involves personal service. For personal service contracts, forcing performance often leads to substandard work, so monetary damages are typically given instead. However, an injunction to restrain an employee from working for a rival may be granted, as in the leading case *Lumley v Wagner*. Additionally, under certain legislation, a court may award damages in lieu of specific performance, assessed on the same basis as breach-of-contract damages. The remedy is also often guaranteed through a right of possession, giving the plaintiff the right to take possession of disputed property.

Did You Know?

• Specific performance is almost never available for contracts of personal service.
• In the United States, Article 2 of the Uniform Commercial Code allows specific performance where goods are unique or in other proper circumstances.
• In civil law systems, specific performance is considered the basic right, with money damages as a substitute.
• The leading case Lumley v Wagner involved an injunction to restrain an employee from working for a rival, though specific performance could not be obtained.