Specific Performance

1
Specific Performance

• A Nonsubstitutionary Remedy

2
Conditions for Spec Perf (100)

• (1)
• (2)
• (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.
• (4)
• (5)

3
Inadequate remedy at law (86)

• Land transfer contracts
• Presumption. Henderson 99.
• Outside of land transfer contracts
• More likely to find damages inadequate where
  (87), e.g.
• (1)
• (2)
• (3)
• Why those circumstances?

• Focus on whether uncertainty of valuation is
  high, or property is unique.
• See Van Wagner for why this is so. (94)

4
Inadequacy Van Wagner (92)

• 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?

5
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?

6
Henderson (99)

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

7
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? (104)
• Why is certainty required?

8
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

9
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. (95
  n.2)
• Specific performance?
• How is there uncertainty as to damages?

10
SpecPerf of 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. (103)
• Enjoin Buddy?
• To be enforced, clause must be
• (1)
• (2)
• (3)

11
Scope of Equitable Relief

• Remember Equitable balancing occurs both in
  whether to order spec perf in fashioning relief.

12
Dover Shopping (106)

• 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? (107-08)
• 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 _____. (108-09)
• Why did the order fit within the exception?
• Did plaintiff make a mistake in getting this
  order?

15
Channel 17 (109)

• Facts?
• Inadequate remedy at law?
• Was this a transfer of land?
• Was this unique?
• Why isnt 900k damages enough?

• 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
Channel 17 (109)

• Facts?
• Inadequate remedy at law?
• Is Spec Perf 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?

17
Isnt this all backwards?

• If the goal is compensation, shouldnt specific
  performance be the norm?

• Why is it not?