(OT) Specific performance

John Cowan cowan at ccil.org
Mon Aug 27 15:01:01 UTC 2007

Arnoud Engelfriet scripsit:

> I've never understood the reason why specific performance is something
> special under common law.

Historically it arose because common law was king's law, and king's law
was often fairly weak, and simply didn't have the resources to enforce
specific performance.  Specific performance arose when common law *per
se* became extended by equity, where the standard was originally not to
allow what would shock the king's conscience.

Pragmatically, let's consider facio/do ut des contracts, where the
plaintiff is trying to get something.  If the something is land
or otherwise unique like a work of art, specific performance will be
enforced by common-law legal systems: the title will be handed over.
But otherwise it's complicated and messy to make sure that the *very same*
thing that was contracted is returned.  Consider contracts of locatio
conductio (bailments, basically, to common lawyers).  If a rented car
can't be returned because it's wrecked, it's unreasonable (and may be
impossible) to ask it to be fully repaired; instead, the replacement
cost of the car is the most you can ask.

On the do/facio ut facias side, you don't actually *want* specific
performance of services most of the time.  If your car has been fixed by
a mechanic who employs not ordinary skill but the skill of a left-handed
chimpanzee, you want damages from him so that you can get a real mechanic
next time.  Likewise, if a singer has a contract with you to sing in your
concert hall for nine nights, and walks out after three, you don't want
a substandard-quality singing job for the next six nights, you want to
cancel the series and collect damages for the lost tickets.

In practice, I suppose, the question of whether specific performance is
in lieu of damages, or damages are a substitute for specific performance,
probably doesn't affect all that much who is made to pay and who is made
to act in either kind of court system: a rough-and-ready rule of reason
will more or less tend to prevail.

In politics, obedience and support      John Cowan <cowan at ccil.org>
are the same thing.  --Hannah Arendt    http://www.ccil.org/~cowan

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