Issues to consider in the context of commercial contracts in order to survive Covid-19 restrictions and plan for the future. As with all fair remedies, orders for a particular service are discretionary, so their availability depends on their suitability in the circumstances. Such an order is issued when the damage is not an appropriate remedy, and in some cases such as the country (which is considered unique). Since, to the extent possible, financial damages are awarded, it is also crucial that the claimant demonstrates that the uniqueness of the asset in question requires specific performance and that financial damages would not be sufficient. The goods that the courts have found to support a particular service include works of art, custom items, and goods that are extremely rare. The service in question must not be illegal. This is particularly important for the restrictions imposed by the government regarding COVID-19 and how and when these restrictions can be eased in the future. Specific service is a fair remedy in contract law, in which a court makes an order requiring a party to perform a specific act, para. B example to complete the performance of the contract. It is usually available in sales law, but is not generally available if damage is an appropriate alternative. Some service is almost never possible in the case of personal services contracts, although enforcement can also be ensured by the threat of contempt of court prosecution. In most cases, damages are a reasonable remedy if the innocent party could easily enter into a replacement contract for a service equivalent to that promised by the defaulting party. The innocent party would then be reasonably compensated by damages based on the difference between the performance price in the original contract price and the price agreed in the replacement contract.
Classic examples are the sale of real estate, as each plot of land is considered unique, and the performance of a concert by an artist with unique talent. Examples of rare or unique themes can be the sale of a stake in a plot of land (since no two plots are the same) or a single antique vase. In both scenarios, damages may not be an appropriate remedy because there is no market replacement and, therefore, the innocent party would not be able to achieve equivalent performance (regardless of the price). A particular service is an act aimed at forcing a party who has breached a contract to perform the contract as promised. The subject matter of the contract must be unambiguous, otherwise an action for damages would be the appropriate remedy. Measures for a particular service are generally permitted under a contract involving the sale of a particular asset; and a contract for the sale of a specific business. A particular service is not permitted under a contract for the sale of personal property, unless the property is unique in any way, such as an antique, coin collection or works of art. In other words, a court may order a particular service in the form of replevin (delivery of real property) as compensation in a contractual dispute if cash damages are not sufficient.
There is no statute of limitations for a particular claim for benefits, but practice suggests that the innocent party should file the claim as soon as possible. The court examines the reasons and cause of the delay, as well as the disadvantages suffered by the defaulting party. In general, a party cannot obtain the specific performance of personal services contracts or employment contracts. That`s because the Thirteenth Amendment prohibits involuntary servitude. However, the breach of a service or employment contract may result in an action for damages on the part of the injured party. Another advantage of a remedy in a particular service is that the innocent party does not have to prove any damage caused by the breach; it is sufficient to prove that the obligation has not been fulfilled (or is not fulfilled). In the United States, Section 2 of the Uniform Commercial Code replaces the traditional rule of adapting the law of the sale of goods to the realities of the modern commercial market. If the goods are identified in the purchase contract and are in the possession of the seller, a court may order that the goods be delivered to the buyer after payment of the price. This is called Replevin. In addition, the Code allows a court to order a particular service if “the goods are unique or in other reasonable circumstances,” so the question of what circumstances are appropriate must be developed by case law.
Specific performance relief is equitable relief, which is usually curative or protective in nature. In civil law (the law of continental Europe and much of the non-English-speaking world), specific service is considered a fundamental right. Monetary damage is a kind of “specific service for compensation”. In fact, it has been suggested that the replacement of the specific service also better explains the contractual rules of the common law, see (Steven Smith, Contract Law, Clarenden Law). Most states have adopted the Uniform Commercial Code (UCC), which meets certain performance criteria, including California. This is called a specific service and this article deals with the current Basic Law. Specific performance is a margin of discretion and there are many grounds for refusal, even if a contract is legally binding and damages are not a sufficient remedy. However, if the exceptions do not apply, it is an effective remedy to force a party to comply with its obligations if reasonable damages would not be appropriate.
A specific service is granted if the contract includes a single movable property; the court decides whether a movable property is unique. A rare stamp collection is a unique piece of furniture for the purpose of a particular performance, while stocks listed on the New York Stock Exchange or the U.S. Stock Exchange are not unique. Antiques, family heirlooms or unique pieces are considered unique because money cannot replace their value to the applicant. The assertion that an object has sentimental value for the applicant is not in itself sufficient to justify a particular service. If the personal feeling or desire for the object is based on facts and circumstances that give the object a particular value, so that it becomes a family legacy, a certain service is granted. However, the limits of specific performance in other contexts are narrow. In addition, enforcement is rarely ordered by the court on the basis of the personal judgment or the jurisdiction of the party to whom the claim is addressed. The reason for this is that the forced party often achieves results below the party`s usual standard when it is able to do so. Instead, financial damages are usually awarded. A particular service is an adverse remedy used by the courts if no other remedy (e.B. financial damages) adequately compensates the party seeking legal protection.
If a sum of money (commonly referred to as a “remedy”) does not place the injured party in the situation it would have been in if the contract had been fully performed, the court will instead make an order requiring the defendant to act (commonly referred to as a “fair remedy”). The most common reason why courts award a particular service is that the subject matter of the contract is unique and that a reasonable fair remedy requires more than a transfer of money and/or when the actual amount of damage is unclear. For example, if a contract involves the sale of a single asset, a simple pecuniary damage may not be able to remedy the buyer`s situation. Contract for personal property: The concrete execution of an agreement on the transfer of personal property depends on the application and proof of the facts of the inadequacy of the remedy. B, for example, the uniqueness of the property or its lack of determinable market value. (See Emirzian v. Asato (1913) 23 C.A. 251, 256, 137 P. 1072) After all, the usual rules of remoteness and reduction apply only to damages, not to certain services. In the legal literature, there is an ongoing debate about the advisability of a particular achievement.
Economists generally believe that a particular performance should be reserved for exceptional situations because it is costly to manage and can discourage promisors from engaging in effective violations. Professor Steven Shavell, for example, argued that some services should only be reserved for property transfer contracts and that, in all other cases, the pecuniary damages would be higher. [9] On the other hand, many jurists from other philosophical traditions believe that a particular achievement should be preferred because it is closest to that promised in the Treaty. [10] Empirical research also suggests uncertainty as to whether a particular benefit offers greater value to promises than monetary harm, given the difficulties of application. [11] If a particular benefit is not possible or if the pleadings or evidence do not justify such recourse, the court may award damages in lieu of a specific benefit if the claim sufficiently asserts the pecuniary damage suffered. In some situations, damages may not be considered an appropriate remedy by the innocent party, and they may consider seeking a court order to force the defaulting party to deliver what they agreed at the time of entering into the contract. The courts have the power to order the performance of specific contractual obligations, but this is a difficult process. Example: Rina offers to buy Beth`s house and accepts Beth, but later decides to keep the property. Real estate is considered unique.
Since there is no other land or house exactly like Beth`s, Rina may be entitled to a specific performance of the contract. Beth would be forced to make the sale. Courts will only apply a particular performance if the underlying contract was “fair and equitable”. It is up to the plaintiff to prove that the contract was reasonable and lawful, with each party receiving reasonable consideration for performance. .