There are some contracts which cannot be specifically enforced due to potential restrictions and issues with the legality of the contract itself. For example, let’s assume that John enters into a contract with Mary to render personal services to her, such as creating a portrait of her dog. Mary cannot enforce performance under the contract, as courts will simply offer compensation for any money that Mary paid to John before he performed the job. Furthermore, any contract that requires some sort of skill or knowledge, i.e. singing, playing an instrument, etc., cannot be specifically enforced.

There are several other reasons as to why courts will not enforce contracts, and therefore, it is important to be mindful of such contractual issues so that you are aware of your rights before attempting to bring a lawsuit for “specific performance,” which is the court’s requirement that the breaching party perform what is required of him or her in the contract.

Unenforceable Contracts

The following types of contracts cannot be enforced:

  • A contract for the nonperformance (breach) in which compensation is proper relief
  • A contract that becomes too complex with too much detail involved
  • A contract that involves personal skill or knowledge (as mentioned above)
  • A contract that has uncertainty
  • A contract that is revocable
  • A contract that is made by a trustee who has no authority to enter into the contract
  • A contract involving a corporation or public company that is created for special purposes
  • A contract that involves the performance of continuous duty in which the court cannot possibly supervise on an ongoing basis

Compensatory Relief

If the injured party can be made whole again by receiving compensation for the non-performing party’s breach, then the court will not enforce the contract. Some examples of this could be a contract for the mortgage of immovable property, the contract for the sale of goods, and a contract for the repair, i.e. repair of appliance, television, flooring, etc. Therefore, if the breaching party doesn’t properly deliver the goods to the buyer, then the buyer can simply receive his or her money back. Furthermore, if the breaching party doesn’t repair the broken item, then the injured party can earn his or her money back, and subsequently hire another professional to repair the broken item.

Complex Contracts

An example of this could be a construction project, in which the contract has conflicting information. In this case, the court cannot possibly enforce such a contract, as the details identified in the contract are either conflicting or are otherwise too complex for a court to enforce.

Personal Skill or Knowledge

If the contract involves the personal skill or knowledge of one party, then the contract cannot be enforced. As previously noted, some examples of this include performance (acting, singing, instrumental), creating illustrations (drawings, paintings, etc.), or something similar.

Uncertainty in Contracts

If a contract has any uncertain provisions, then the court will not enforce it. This could include a contract that is not detailed enough, and doesn’t properly identify the scope of work to be done.

Revocable Contract

If a contract is revocable, then the court cannot enforce it. For example, if the parties explicitly agreed in the contract that it is revocable at any time, then the court will not acknowledge the contract or require specific performance.

Trustee with no Authority

If a trustee enters into a contract when he or she has no authority to do so, then the contract will be deemed invalid, and the court will not allow it nor will it grant specific performance.

Special Purpose Contract

If a contract is entered into by or on behalf of a corporation or other public entity, and is created for a special purpose, then it cannot be enforced by the court, particularly if those entering into the contract on behalf of the corporation don’t have the authority to do so.

Continuous Duty of Performance

If the duty of performance is to continue for more than three years, then the court will not enforce the contract or require specific performance. Some courts won’t require specific performance even if the length of time is less than 3 years. An example of this would be the execution of a sale deed every year.

If you need help ensuring that a contract can be enforced, or if you need help drafting a contract, you can post your legal need on UpCounsel’s marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.