Specific performance elements are court ordered performances of contractual obligations. The court orders specific performance elements during a civil lawsuit in which it is determined that monetary compensation alone will not be a sufficient resolution. It is stipulated that the party so ordered must then perform these obligations or face penalty.

When Do Courts Order Specific Performance Elements?

The main cause for a specific performance elements order is a contract agreement that is broken by one of the parties: One party either does not start or fails to finish what was agreed to. If the other party has done substantially more work than the other or seeks a monetary damages award, other types of resolution such as rescission will not be possible. Thus a court will order the party in question to do what they have agreed to within the contract.

Often the threat of legal repercussion is enough to motivate the party into action without an actual court order, so if you consult an attorney and have a good case, you may be able to get specific performance elements without having the expense of a trial.

These contract cases often involve a unique object or piece of property that has value to the party other than monetary. Injunctions and arbitration, as well as monetary compensation, are often seen as legal alternatives to specific performance elements. Injunctions, however, refer to a variety of legal cases whereas specific performance elements refer only to contract cases. Arbitration also may not be enough to enforce, as one party has already shown unwillingness to fulfill its contractual obligations.

Specific Performance Elements Examples

Land and homes are each unique, therefore, real estate is often at the center of specific performance elements cases. The location, structures, flora, fauna, natural resources, views, condition and so forth are all difference for any piece of real estate. A contract is signed for a specific piece of real estate, with all elements considered by both parties and a final price agreed upon for that real estate alone. If the seller refuses to keep his part of the contract, including relinquishing the real estate, specific performance elements will likely be ordered.

High-value collectibles are also subject to specific performance elements. If a collector agrees to purchase a specific Tiffany lamp from a dealer, pays the agreed upon price, and then does not receive the lamp, the dealer will likely be ordered to turn over the Tiffany as agreed. In this case, the object is unique and money, or even a different Tiffany lamp, would not be a sufficient substitute.

When Specific Performance Elements Do Not Apply

When a contract case comes before a state court, specific performance will be weighed as an option against other outcomes. Courts overwhelmingly award monetary compensation over specific performance elements, since it is easier to enforce and because it does not require the losing party to do something they are unwilling to. Other reasons specific performance may not be awarded include:

  • Specific performance does not apply to the case in question
  • The contractual obligation is a service, which would likely be performed poorly on purpose
  • Ordering specific performance would inflict harm on the other party
  • The contract is unfair or unconscionable
  • Constant supervision would be necessary for the specific performance element
  • The plaintiff in the case failed to uphold their end of the contract as well
  • The contract is "at-will," meaning either party can cancel the contract by walking away

Obtaining Specific Performance Elements

Because monetary compensation is preferred by the courts, proving a case requires specific performance elements may be more difficult. Some evidence that will help your case:

  • A valid contract on hand signed by all parties
  • Demonstration of breach of the contract in whole or in part
  • The defending party has no affirmative defenses for its actions
  • Monetary damages must be shown to be inadequate; for example, the specific property or collector's item cannot be replaced
  • Enforcing specific performance elements must be reasonable

Specific performance elements will be denied by the court if any of these is not met. Even for real estate development, money is still considered adequate compensation in a majority of cases. In addition to proving monetary damages inadequate, the most difficulty plaintiffs experience is showing the defendant has no affirmative defense. 

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