Examples to Show How Different and Better Dean's Law Dictionary Has Become.

See also Remedies (specific performance) and all its subcategories. While the usual remedy in Anglo-American law has been damages, rather than compensation 'in kind' (see, Holmes, The Path of the Law, 10 Harv L Rev 457, 462 [1897]; Holmes, The Common Law, at 299-301 [1881]; and Gilmore, The Death of Contract, at 14-15), the current trend among commentators appears to favor the remedy of specific performance (see, Farnsworth, Legal Remedies for Breach of Contract, 70 Colum L Rev 1145, 1156 [1970]; Linzer, On the Amorality of Contract Remedies -- Efficiency, Equity, and the Second Restatement, 81 Colum L Rev 111 [1981]; and Schwartz, The Case for Specific Performance, 89 Yale LJ 271 [1979]), but the view is not unanimous (see, Posner, Economic Analysis of Law § 4.9, at 89-90 [2d ed 1977]; Yorio, In Defense of Money Damages for Breach of Contract, 82 Colum L Rev 1365 [1982]). 

 

Whether or not to award specific performance is a decision that rests in the sound discretion of the trial court. Considering first the nature of the transaction, specific performance has been imposed as the remedy for breach of contracts for the sale of real property (Judnick Realty Corp. v 32 W. 32nd St. Corp., 61 NY2d 819, 823; Da Silva v Musso, 53 NY2d 543, 545; S.E.S. Importers v Pappalardo, 53 NY2d 455). While specific performance is available, in appropriate circumstances, for breach of a commercial or residential lease, specific performance of real property leases is not awarded as a matter of course (see, Gardens Nursery School v Columbia Univ., 94 Misc 2d 376, 378). But see, 5A Corbin, Contracts § 1143, at 131; at 7, n 62 [1971 Pocket Part]; 11 Williston, Contracts § 1418A [3d ed]; Pomeroy and Mann, Specific Performance of Contracts § 9, at 18-19 [3d ed 1926]; Restatement [Second] of Contracts § 360 comment a, illustration 2; Restatement [Second] of Contracts § 360 comment e; cf. City Stores Co. v Ammerman, 266 F Supp 766, affd Per Curiam 394 F2d 950. 


The word 'uniqueness' is not, however, a magic door to specific performance. A distinction must be drawn between physical difference and economic interchangeability. Putting aside contracts for the sale of real property, where specific performance has traditionally been the remedy for breach, uniqueness in the sense of physical difference does not itself dictate the propriety of equitable relief. 


By the same token, at some level all property may be interchangeable with money. Economic theory is concerned with the degree to which consumers are willing to substitute the use of one good for another (see, Kronman, Specific Performance, 45 U Chi L Rev 351, 359), the underlying assumption being that 'every good has substitutes, even if only very poor ones', and that 'all goods are ultimately commensurable' (id.). Such a view, however, could strip all meaning from uniqueness, for if all goods are ultimately exchangeable for a price, then all goods may be valued. Even a rare manuscript has an economic substitute in that there is a price for which any purchaser would likely agree to give up a right to buy it, but a court would in all probability order specific performance of such a contract on the ground that the subject matter of the contract is unique. 


The point at which breach of a contract will be redressable by specific performance thus must lie not in any inherent physical uniqueness of the property but instead in the uncertainty of valuing it: ' What matters, in measuring money damages, is the volume, refinement, and reliability of the available information about substitutes for the subject matter of the breached contract. When the relevant information is thin and unreliable, there is a substantial risk that an award of money damages will either exceed or fall short of the promisee's actual loss. Of course this risk can always be reduced -- but only at great cost when reliable information is difficult to obtain. Conversely, when there is a great deal of consumer behavior generating abundant and highly dependable information about substitutes, the risk of error in measuring the promisee's loss may be reduced at much smaller cost. In asserting that the subject matter of a particular contract is unique and has no established market value, a court is really saying that it cannot obtain, at reasonable cost, enough information about substitutes to permit it to calculate an award of money damages without imposing an unacceptably high risk of undercompensation on the injured promisee. Conceived in this way, the uniqueness test seems economically sound.' (45 U Chi L Rev, at 362.) This principle is reflected in the case law (see, e.g., Erie R. R. Co. v City of Buffalo, 180 NY 192, 200; St. Regis Paper Co. v Santa Clara Lbr. Co., 173 NY 149, 160; Dailey v City of New York, 170 App Div 267, 276-277, affd 218 NY 665), and is essentially the position of the Restatement (Second) of Contracts, which lists 'the difficulty of proving damages with reasonable certainty' as the first factor affecting adequacy of damages (Restatement [Second] of Contracts § 360 [a]). 


Thus, the fact that the subject of the contract may be 'unique as to location for the particular advertising purpose intended' by the parties does not entitle a plaintiff to the remedy of specific performance. 


Specific performance, it is true, is not a matter of absolute or arbitrary right, but is addressed to the reasonable and sound discretion of the court. First Nat. Bank v. Roanoke Oil Co., supra, 169 Va. at p. 116, 192 S.E. at p. 771. But it is likewise true that the discretion which may be exercised is not an arbitrary or capricious one, but one which is controlled by the established doctrines and settled principles of equity; and, generally, where a contract is in its nature and circumstances unobjectionable, it is as much a matter of course for courts of equity to decree a specific performance of it as it is for a court of law to give damages for a breach of it. Bond v. Crawford, 193 Va. 437, 444, 69 S.E.(2d) 470, 475. 


It is within the trial court's equitable powers to apply the remedy of specific performance when a legal remedy is either inadequate or impractical. Ludington v. LaFreniere, 1998 ME 17, ¶ 7, 704 A.2d 875, 878. 


Generally, the determination of whether or not to order specific performance of a contract lies within the sound discretion of the trial court. Landau v. St. Louis Public Service Co., 364 Mo. 1134, 273 S.W.2d 255, 259 (1954). However, this discretion is, in fact, quite limited; and it is said that when certain equitable rules have been met and the contract is fair and plain 'specific performance goes as a matter of right.' Miller v. Coffeen, 365 Mo. 204, 280 S.W.2d 100, 102 (1955), quoting, Berberet v. Myers, 240 Mo. 58, 77, 144 S.W. 824, 830 (1912). 


A remedy in equity that allows a court to give the specific bargain in a contract if a breach is such that the remedy at law is inadequate to compensate the party for the breach. (1) Equity is granted only when the terms of the contract are sufficiently certain so that the court can determine what it must order each party to do to carry out the agreement. (2) Equity will be granted only if the plaintiff has complied with all conditions precedent to the defendant's obligation to perform. (3) Equity will not be granted if the enforcement will cause great hardship. (4) The enforcement must be feasible for the court. See also Remedies (specific performance) and all its subcategories.