Specific Performance

Question 1

specific performace

Answer 1

• second most common used and tested on the bar exam
• makes the defendant perform as laid out in the contract
• all real property assumed unique, specific performance likely

Question 2

3 basic requirements for specific performance

Answer 2

• a valid contract exists, including offer and acceptance
• all contract conditions have been met
• mutuality of remedy exists

Question 3

Specific Performance Requirement 1: A valid contract exists

Answer 3

• terms of the contract must be reasonably definite (e.g. important terms in there).
• If so, contract valid.
• some consideration must exist, but it need not be a lot

Question 4

Specific Performance Requirement 2: All contract conditions have been met

Answer 4

• not often tested.
• two conditions most commonly tested:
  
  1. time of the essence provision
  2. Marketable title

Question 5

Time of the essence provision

Answer 5

• Example: closing of the property must take place on a specific date
• failure to comply with this condition can prevent specific performance unless court chooses to ignore strict enforcement of this clause because:
  
  • the delay was very slight, at most a few hours or day
  • the other party suffered no injury on account of the delay
  • invalidating the contract would work extreme hardship on the late party, or
  • the requirement has been waived
    
    • e.g. party agreed to a different date before closing happened

Question 6

Marketable Title

Answer 6

• seller must have marketable title to the property
• If not, defendant cannot deliver
  
  • exceptions:
    
    • deficiency in title is minor
      
      • specific performance may be granted with a reasonable reduction in the price, or. buyer waives deficiency (common)
    • specific performance granted with a reasonable reduction in the price.
      
      • e.g. title says easement, but buyer buys property anyway
      • if buyer wants specific performance, court could grant it though, but would effectively be a waiver.

Question 7

Specific Performance Requirement 3: Mutuality of remedy exists

Answer 7

• one side can compel performance only if the other side can as well
• 2 factors:
  
  1. both parties are able to perform
     
     • e.g. seller still owns the property and hasn’t sold it to someone else/property hasn’t been destroyed
  2. And both parties can be bound to the k
     
     • e.g. can’t enforce if one party is a minor, incompetent, or out of state