12.2 Limitations and Defenses to Specific Performance
3 min read•july 22, 2024
is a powerful remedy, but it comes with limitations. Courts consider factors like , , and the nature of when deciding whether to grant it. Balancing the interests of both parties is crucial.
Judges have discretion in awarding specific performance, weighing the adequacy of , uniqueness of the subject matter, and . This equitable approach ensures fairness while avoiding or on either party.
Limitations and Defenses to Specific Performance
Undue hardship in specific performance
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Courts aim to avoid imposing unreasonable burdens on the defendant ensures fairness and for both parties
Factors courts consider in determining undue hardship:
Difficulty or expense of performance for the defendant (obtaining rare materials, complex construction)
Disproportionate cost compared to the benefit to the plaintiff (excessive expenses, minimal gain)
making performance more burdensome (unexpected market shifts, natural disasters)
Significant increase in cost of materials or labor (steel prices, skilled workforce shortage) can constitute undue hardship
Unforeseen obstacles or complications in performance (regulatory changes, supply chain disruptions) may be considered
Severe on the defendant (bankruptcy, liquidity issues) can be a
Impact of defendant's insolvency
Defendant's as they become due can affect the availability of specific performance
Courts may be reluctant to grant specific performance if the defendant is insolvent due to:
Inability to comply with the court's order (lack of financial resources)
Increased or delayed performance (defaulting on obligations)
Potential unfairness to other creditors (preferential treatment, limited assets)
Monetary damages, if available, may be preferred in cases of insolvency allows for among creditors
Limitations for personal service contracts
Contracts involving unique or specialized skills, talents, or expertise (artists, athletes, consultants) are generally not subject to specific performance
Reasons for denying specific performance in personal service contracts:
Difficulty in enforcing and supervising performance (ensuring quality, monitoring compliance)
Potential for or forced labor (, violation of personal autonomy)
Concerns about the under compulsion (lack of motivation, resentment)
Courts may grant in limited circumstances:
Preventing the breaching party from performing elsewhere (non-compete agreements)