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.
|