In contract law, specific performance is an equitable remedy in which a court order requires one party to perform a specific act in order to complete performance of the contract.

Orders for specific performance come about after two parties have contracted with one another but one party has failed or refuses to perform as agreed in the contract.

When May a Court Order Specific Performance?

Specific performance is only ordered when money damages are an insufficient remedy for the party’s failure to perform a contract. Thus, specific performance orders are usually for unique items such as real estate, antiques, heirlooms and artworks.

Even though real estate can be a unique item, land sale transactions are frequently compensated through money damages. Physical tasks such as a massage or common home renovations are rarely ordered as it would be too difficult for the court to oversee and can be easily compensated through money damages. 

What Do I Need to Show to Get Specific Performance Ordered?

The following is a list of things you need to show the court in order to be successful in a specific performance order.

  • A valid and enforceable contract must be produced. If the contract is found to be invalid or unenforceable, then you will not recover anything.
  • You must show a breach of the contract occurred by the other party. Usually, the breach is the failure to perform. Make sure you have upheld your end of the contract.
  • Specific performance requires you to show that monetary damages are inadequate to compensate your claim. The item in question must be so unique that a monetary value does not adequately address the harm caused by the failure to perform. So, if you can purchase another similar item elsewhere, then specific performance is not likely the remedy.
  • Enforcement of the specific performance order must be practical. Performing a service such as a painting your house, is not practical for the court to oversee but ordering a legal title to be exchanged is practical.
  • The party who refused to perform has no legal defenses for their failure.

Are there any Defenses to Specific Performance?

Yes. The most common defense is showing that one or more of the above elements was not met by the party seeking specific performance. Additionally, affirmative defenses are available against specific performance such as:

  • Statute of Frauds: Some contracts that fall within the statute of frauds are required to have a writing, signature of the party charged with the performance and sufficient content. If this applies, then the defendant may use any such failures as an affirmative defense to specific performance.
  • Unclean Hands: If the defendant can show that the party seeking enforcement of the contract did something unethical in the formation of or during the contract, the court may not assist the plaintiff with “unclean hands.”
  • Laches: If the party seeking specific performance unreasonably delayed in bringing suit then their claim may be defeated by this defense.
  • Undue Hardship or Burden: If the defendant can show that specific performance would create an undue hardship or burden on them then this defense may be successful.
  • Mistake or Innocent misrepresentation: If the defendant made an unintentional error in forming the contract they may be able to use this defense to specific performance.

When Should I Consult a Lawyer?

Enforcing a contract and specific performance as a remedy can be complicated to prove. A local business lawyer can help you and evaluate the merits of your claim and the possibility of specific performance. They can also file your claim and represent you in court. You should consider consulting a lawyer in deciding how to proceed when a contract fails to be performed.