In the law of remedies,
a specific performance is a demand of a
party to perform a specific act. While specific
performance can be in the form of any type of forced
action, it is usually used to complete a previously
established transaction. It is the opposite of an
injunction. 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 writ 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.
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.
In cases where the ownership of land is in dispute, the
plaintiff can often obtain a certificate of lis pendens
to advise any prospective purchaser of the property that
the person holding legal title may not have good
equitable title to the property. However, if the plea for
specific performance is denied, filing such a lis pendens
constitutes a slander of title, which may allow the
defendant to sue for any profit lost from his inability
to sell the land.
However, the limits of specific performance in other
contexts are narrow. Moreover, performance that is based
on the personal judgment or abilities of the party on
which the demands are made is rarely ordered by the
court. The reason behind it is that the forced party will
often perform below their regular standard when it is in
their ability to do so. Monetary damages are usually
given instead.
Traditionally, equity would only grant specific
performance with respect to contracts involving chattels
where the goods were unique in character, such as art,
heirlooms, and the like. The rationale behind this was
that with goods being fungible, the aggrieved party had
an adequate remedy in damages for the other party's
non-performance.
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. |
