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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. 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.

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4887 E. La Palma Ave. Suite 708
Anaheim, CA 92807

Tel. (714) 693-9456
Fax. (714) 693-8498
info@californiaclassicproperties.com

 
   
 
 
   
 
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