Specific performance is a specialized remedy used by courts when no other remedy (such as money) will adequately compensate the other party . If a legal remedy will put the injured party in the position he or she would have enjoyed had the contract been fully performed, then the court will use that option instead.
What is an action for specific performance?
A contractual remedy in which the court orders a party to actually perform its promise as closely as possible , because monetary damages are somehow inadequate to fix the harm. Most commonly ordered in cases involving real property and rare chattels.
What is an action for specific performance and when will a plaintiff seek such an order from a court in Australia?
Specific performance – this is an order directing the breaching party to perform the contract in the way specified by the court . It will only be ordered if damages will not provide adequate compensation and will not be awarded in relation to contracts of personal service.
What must the plaintiff do to seek specific performance of a contract?
- A valid and enforceable contract must be produced. ...
- You must show a breach of the contract occurred by the other party. ...
- Specific performance requires you to show that monetary damages are inadequate to compensate your claim.
When can a court order specific performance?
Courts will enforce specific performance only if the underlying contract was “fair and equitable .” It is up to the plaintiff to demonstrate that the contract was an appropriate one, legal, with each party receiving fair consideration for performance.
How do I seek specific performance?
Specific performance is an order of the court requiring a party to a contract to perform their obligations under the contract. Before the court makes an order for specific performance , a party must establish that there is a binding contract on foot and that the other party has breached.
What are the two main types of remedies available to a court?
The two key types of remedies generally available for breach of contract are damages and specific performance . The most common remedy is damages, where the court determines the damage that the breach of contract caused, and directs the party who breached the contract to pay a sum of money.
How do you defend against specific performance?
Mistakes and misrepresentations in the terms of a contract might constitute a defense against specific performance. If such mistakes are sufficient to justify RESCISSION of a contract, they are sufficient to prevent the enforcement of the contract. A court will enforce only a contract with definite and certain terms.
What is an example of specific performance?
Specific Performance: Overview
When a contract is for the sale of a unique property , for instance, mere money damages may not remedy the purchaser's situation. Example: Rina offers to buy Beth's house and Beth accepts, but later decides to keep the property. ... Beth would be compelled to go through with the sale.
When can a buyer sue for specific performance?
Suing for Specific Performance as a Buyer
The buyer is allowed to sue for specific performance if the seller refuses to move forward with her obligations under the agreed upon contract .
What are the elements of specific performance?
- A valid contract on hand signed by all parties.
- Demonstration of breach of the contract in whole or in part.
- The defending party has no affirmative defenses for its actions.
Who can enforce specific performance?
“The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16.” Comment: The amendment in Section 10 has now reduced the discretionary jurisdiction of the Court in granting specific performance of contract.
Can a buyer get specific performance?
The buyer may pursue specific performance if the seller is unwilling to carry out his or her obligations under the contract. Specific performance is allowed in real estate contracts because each parcel of land is unique and monetary damages are not adequate.
Can I be sued for specific performance?
When Can Sellers Sue for Specific Performance? While sellers can sue for specific performance against a buyer over a failure to perform on a real estate contract, the remedy is rarely applicable and even more rarely sought.
How are court fees calculated for a suit for specific performance?
The suit for the relief of specific performance of an agreement, for the purposes of court fees, as per Section 7(x) of the Court Fees Act, 1870 is to be valued according to the amount of the consideration and the valuation thereof for the purpose of jurisdiction , as per Section 8 of the Suits Valuation Act, 1887, is ...
How do courts decide to grant specific performance?
Specific performance is ordered at the court's discretion where damages do not afford a complete remedy , or where specific performance would do ‘more perfect and complete justice'. Because of the unique nature of land, it is sometimes a preferred remedy for a buyer or tenant when a seller or landlord fails to complete.
