Specific Performance

1
Specific Performance

• A Nonsubstitutionary Remedy in the Form of a
  Mandatory Injunction

2
Bias toward Substitutionary

• Breach of Contract
• Expectancy
• Reliance
• Restitution
• Award of specific performance puts innocent party
  where should be, but denies efficient breach and
  involves court in on-going relationships.

• Specific Performance only when

3
Conditions for Spec Perf

• (1)
• Van Wagner case
• (2)
• 115 n. 4 Henderson
• (3)
• GA Equity will not decree against a purchaser
  specific performance of a contract where by the
  terms of the contract no specific performance
  could be decreed against the seller.
• Well see an exception, however, in Henderson
• (4)
• Dover Shopping Henderson cases
• (5)
• Channel 17 case

4
Inadequate remedy at law

• Land transfer contracts
• Presumption. 99
• Beyond that
• More likely to find damages inadequate where
  (99), e.g.
• Why those circumstances?

• Focus on whether uncertainty of valuation is
  high, or property is unique.
• See Van Wagner for why this is so.

5
Inadequacy Van Wagner

• Is a lease of real property treated like a
  purchase or sale of real property?
• Why is fact that one building is not same as
  another not enough to show uniqueness?
• On other hand, why is economic interchangeability
  not test for uniqueness?
• Rule Uniqueness turns on whether the relevant
  information is ____ and ______ because then there
  is a substantial risk the plaintiff will be
  ________ compensated.

• Facts?
• What was involved?
• Where was space?
• Why did lease get canceled?
• Who was suing, and for what?

6
Van Wagner Inadequacy

• So, does the fact that this was a unique
  location for the particular advertising purpose
  intended by the parties mean inadequate remedy at
  law?
• What evidence showed the value of the space could
  be determined with reasonable certainty?

• Balancing
• What was the inequity to SM that specperf would
  cause?

7
Mutuality Henderson (105)

• Facts?
• 1952
• 7/24/59
• 8/11/59
• 8/29/59
• Plaintiffs arent really seeking spec perf, are
  they?

8
Henderson

• (1) Why inadequate remedy?
• Whats their QM remedy? Why isnt it adequate?
• Consideration?
• -- Measured as of the date of ________________
• -- The consideration must be ____________________
  _ given the _________ between the parties.
• Mutuality?
• -- Exception ________ by one party of its
  obligations makes K enforceable despite lack of
  mutuality.
• (4) Certainty The court must know _____ to
  enforce.
• Is best efforts certain enough? (109)
• Why is certainty required?

9
More Inadequate Thoughts

• Suppose defendant agrees to let Pepsi put
  machines in the law school lounge, but then
  reneges.
• Presumed inadequate remedy?
• What evidence might show value with reasonable
  certainty?

• Suppose defendant agrees in that contract
• Defendant agrees that any remedy at law will be
  inadequate and acknowledges that the vending
  space here is unique in terms of the law.
• Split
• Majority (incl. GA)
• Minority

10
Inadequacy Exception? Flipping Land

• Suppose Seller agrees to sell land for 100k.
  Buyer has a third-party lined up to re-sell it
  the next day for 110k. Seller breaches.
• Specific performance?
• How is there uncertainty as to damages?

11
Mutuality Personal Service Ks

• Emily agrees to work for Buddy for 1 month. Buddy
  breaches.
• Specific performance?
• Buddy agrees that he wont work for any other DQ
  in Macon, except Emilys, for 1 year. Buddy goes
  to work for Ryans DQ. (119)
• Enjoin Buddy?
• To be enforced, clause must be
• (1)
• (2)
• (3)

12
Definite Dover Shopping (111)

• Facts?
• What kind of lease was it?
• Had defendant ever received more than minimum?
• Why did defendant want out?
• Isnt that an efficient breach?
• Did defendant keep paying rent?

13
Dover Inadequacy Balancing

• What argument did court accept as showing
  inadequacy?
• What if it had been a sunglasses kiosk? The
  anchor tenant?

• What did order require?
• (1)
• (2)
• (3)
• (4)

14
Dover

• What reluctance did this order overcome?
• Generally, no spec perf where the duty to be
  enforced ____________________ and is
  _________________.
• However, they will do so where there is a ______
  breach and the _______________________ are not
  _________ when compared to the ___________________
  ______.
• In determining difficulty of enforcement, courts
  weigh the burden to the ______ with the benefit
  to the _____.
• Why did the order fit within the exception?
• Did plaintiff make a mistake in getting this
  order?

15
Identicality Channel 17 (122)

• Facts?
• Inadequate remedy at law?
• Is order really identical to contract?
• Is the tower really a small part of the deal?

• What was the alleged mistake?
• Based on what weve learned, even without
  paragraph 7.1(b), would spec perf be improper if
  7.1(a) was present?
• Does 7.1(b) bind the court to order spec perf?

16
Isnt this all backwards?

• If the goal is putting aggrieved party in
  position she should have been in absent breach,
  shouldnt specific performance be the norm, and
  the defendant would have to prove damages suffice?

• Why is it not that way?