Specific Performance: an Explainer

What is specific performance?

Specific performance allows courts to order a party to do certain things to keep their promises in the contract. For example, if you made a binding contract with someone to purchase a block of land from them and they later refuse to give you the land, the court can order specific performance so that the person must sell you the land. There are certain conditions that need to occur before specific performance can be ordered.

Table of Contents

Requirements for specific performance

To get an order for specific performance you first have to prove that there is a binding contract. You also have to prove that the party to the contract has breached the contract. If you are seeking specific performance you are the plaintiff, leaving the other party as the defendant.

It is necessary to understand that contract law and the granting of specific performance orders is very complex and this article should not be used as a comprehensive guide. If concerned about your contract being upheld or any remedies available to you, reach out to expert contract lawyers.

The type of breach required

The breach has to be either actual or anticipated. An actual breach is where the party flat out refuses to perform their obligations under the contract. An anticipatory breach is where a party threatens that they will not perform their obligations. For the anticipatory breach, the threat has to be more than an idle threat, meaning it has to have a real possibility that the party will breach their contract.

Factors affecting the granting of specific performance

There are a wide range of considerations that the courts factor in to figure out whether to grant specific performance. Several of these include:

If damages are sufficient

As a general rule a court will only order specific performance where money is not enough to pay for the damages. Normally money is more than sufficient to pay for damages, however, certain things are one of a kind, like land and artworks. With one of a kind items, no matter the amount of money received as damages you still couldn’t purchase the item if the defendant refuses.

If it is clear what the obligations are

A court will not grant specific performance forcing a party to fulfill their obligations if they are not sure what those obligations are. This is why it is necessary to make sure the terms of the contract are easily identifiable and clear. If thinking about drafting a contract, check out our expertly crafted legal documents that can be moulded to fit your custom needs.

Whether it forces the defendant to maintain a relationship with the plaintiff

Generally specific performance will not be given if the obligation of the contract requires keeping a personal relationship between the parties. For example, this could be in terms of a contract requiring personal service, such as employment.

The hardship placed on the defendant

A court will not order specific performance if there is unconscionable hardship to the defendant. It is not enough to prove that some hardship would occur from it, it has to be unconscionable. Clearly defining unconscionable hardship is difficult as it is not defined in an act but throughout case law. As a starting point its best to think about it as particularly harsh or oppressive.

What happens if you don’t comply with specific performance?

Because specific performance is a court order it can have very serious consequences for someone who doesn’t comply. If the defendant does not respect the specific performance order, they may be found guilty of contempt of court. This could result in fines and imprisonment.

Conclusion

If you want to enforce the contract because money is not enough, specific performance is the ideal option. Compelling the defendant to fulfill their obligations is a powerful tool but does require check boxes. First there has to be a breach, either actual or apparent. Secondly, the main considerations are that money as damages has to be insufficient, the obligations have to be clear, and the obligations will not result in unconscionable hardship. If you wish to have a proper contract in place, check out our range of custom and easy to use documents.

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