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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