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The Remedy of Specific Performance

Thursday, 23 February 2012

Specific performance is a discretionary remedy that may be ordered by a court in the context of a contractual dispute. The remedy is used to compel a party to a contract to carry out its obligations under the contract where damages would not be adequate.

Specific performance is wider than an action for damages because it may be granted before a breach of contract has occurred. It requires that a valid, enforceable contract exists and it will not be ordered if a contract is invalid or unenforceable due to a defect such as illegality or mistake.

Even where a contract is valid and not defective, specific performance may not be ordered. The primary condition that must exist before it can be considered is that that the claimant will not obtain sufficient remedy in a judgment for damages. By way of example, a failure to deliver ubiquitous goods or services that are easily substituted (albeit at a higher cost) such as a water boiler or its repair can be sufficiently remedied with damages. By contrast, failure to deliver a unique object or service, such as a "one-off" work of art, which cannot readily be found in the market place even at greater expense, may justify specific performance because the defendant is uniquely placed to provide that good or service and damages would not resolve that issue for the claimant.

If you would like more information on the remedy of specific performance or contract disputes generally, please contact James Crighton on 0207 611 4848.