Remedies

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Specific Performance

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Specific performance is a contractual remedy by which a party to a contract is compelled by court order to render the promised performance or a substitute. Generally, it is not available unless there has been a breach of contract by nonperformance or repudiation. For a court to grant a plaintiff’s request for specific performance, the following requirements must be met: (i) there must be a contract; (ii) the contract terms must be sufficiently certain to provide a basis for the court order; (iii) the conditions required for the defendant’s performance must be satisfied; (iv) damages must be inadequate to protect the plaintiff’s expectation interest; (v) relief must be equitable; and (vi) enforcement must be feasible.

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Inadequacy of Damages

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Damages are inadequate if the property to be transferred is unique, such as land, a work of art, or a rare manuscript.

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Unfairness

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Specific performance will not be granted when such relief would be unfair. Such unfairness generally does not arise from a single factor but from a combination of factors, which include sharp practices, mistake, hardship, inadequate consideration and defenses of the defendant.

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Feasibility

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A court will not specifically enforce a promise if such enforcement would impose burdens on the court that are disproportionate to the advantages to be gained from its enforcement and the harm to be suffered from its denial. Performance that would entail long continuous supervision or that would involve judgment as to the suitability of the performance will generally not be ordered.

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Anticipatory Repudiation

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The doctrine of anticipatory repudiation is applicable when a promisor repudiates a promise before the time for performance arises or elapses. The repudiation must be clear and unequivocal(as opposed to mere insecurity) and may be by acts or words. Repudiation excuses the occurrence of any condition that would otherwise prevent the repudiating party’s duty from being absolute. Upon repudiation, the promisee can treat the repudiation as a breach or ignore it and demand performance.

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Compensatory Damages

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The award seeks to place the plaintiff in the same position that he would have been in had he not been harmed by defendant’s breach of contract.

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Consequential Damages

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In a breach of contract action, damages that arise naturally from the breach (i.e., general damages) are recoverable. Other consequential damages may be recovered only if they were within the contemplation of the contracting parties at the time that the contract was made. If such damages are not foreseeable, then they cannot be recovered.

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Laches

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The doctrine of laches is a failure to assert one’s rights in a timely manner, resulting in a claim being barred. Laches is applicable when a party fails to assert its claim in a reasonable amount of time, and as a result, the other party is prejudiced by the delay.

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Unclean Hands

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Under the unclean hands doctrine, the plaintiff is not entitled to obtain an equitable remedy because he is acting unethically or has acted in bad faith with respect to the subject of the complaint.

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Sharp Practices

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One factor in the denial of specific performance is if the plaintiff’s behavior does not rise to the level of a contract defense but only contains elements of such a defense, such as unconscionability, misrepresentation, duress, or undue influence. Such actions often are referred to as sharp practices.

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Anticipatory Repudiation (UCC)

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Under the UCC, anticipatory repudiation occurs when there has been an unequivocal refusal of the buyer or seller to perform, or when a party creating reasonable grounds for insecurity fails to provide adequate assurances within 30 days of demand for assurances. The repudiation can be retracted if the other party has not canceled the contract or materially changed position. Repudiation allows the non-repudiating party to resort to any remedy given by the contract or code. Upon repudiation, the promisee can treat the repudiation as a breach or ignore it and demand performance.

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Prejudgment Injunction

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A prejudgment injunction is often sought to prevent irreparable harm to the plaintiff until a court action is resolved. There are two main types of prejudgment injunctions: a temporary restraining order and a preliminary injunction. Since an injunction is an equitable remedy, a court generally has discretion as to the issuance of the injunction and its form. To obtain a prejudgment injunction, B will have to prove the following three factors: (i) B will suffer irreparable harm if the injunction is not issued; (ii) B’s hardships if the injunction is not issued will be significantly greater than the hardships on G and third parties if the injunction is issued, and (iii) a likelihood that B will succeed on the merits.

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TrO

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A TRO is an injunction for a short time, usually no more than ten days. A TRO may be obtained ex parte; that is, without notice to the defendant. The primary purpose of a TRO is to preserve the status quo until a preliminary injunction hearing can be held. A TRO cannot be appealed, but it is not effective until the defendant receives notice of it.

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Replevin

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When the plaintiff’s personal property is taken by the defendant, the plaintiff may pursue a replevin action. Through a replevin action, which is an action at law, the plaintiff can both regain possession of the property and recover damages for the loss of use of the property. A buyer has the right to replevin identified goods when the buyer is unable to effect cover or when the goods have been shipped under reservation

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Incidental Damages

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Incidental damages may be awarded to the non-breaching party as compensation for commercially reasonable expenses incurred as a result of the other party's breach. In the sale of goods, such damages may include the cost of inspecting, transporting, caring for, or maintaining custody over goods.

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Mitigation

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A party to a contract must avoid or mitigate damages to the extent possible by taking such steps as to not involve undue risk, expense, or inconvenience. The non-breaching party is held to a standard of reasonable conduct in preventing loss.

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Satisfaction of Conditions

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To compel specific performance by a defendant, any conditions precedent to that performance must have been satisfied or excused. In addition, if each party’s performance is a concurrent condition for the other party’s performance, then the plaintiff must have either performed the contractual obligations on which the defendant’s performance is conditioned or provided adequate security that he will do so.

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Partial Specific Performance

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In general, the buyer is entitled to seek specific performance of a real property contract. When the seller is unable to perform fully under the contract, such as when the amount of land called for in the contract is more than the seller owns, then either the seller or the buyer can seek specific performance of the contract with an abatement of the purchase price to reflect the flawed performance of the contract. While the seller is usually denied such relief when the flaw is material, the buyer is generally entitled to seek specific performance with abatement regardless of the flaw, unless the flaw is so substantial as to call into question whether the parties entered into an agreement at all. For the court to permit this remedy, the amount of the abatement must be ascertainable, such as by using pro rata reduction in the purchase price to reflect the reduction in the size of property transferred.