ABSTRACT
In the common law of contracts, specific performance is only available as an equitable – and therefore, exceptional and, at least in theory, discretionary – remedy. The standard legal remedy for breach is expectation damages. This fact raises important theoretical questions. These questions are heightened by expectation damages’ under-compensatory aspects. But even assuming an ideal version of the expectation remedy, according to which the remedy does what it should, making the promisee financially indifferent between performance and breach, the theoretical puzzles persist. These puzzles include, for instance, the question of why, if the promisee seems to be entitled to performance, the only remedy they can get in the standard case is monetary; concerns about the divergence between the remedial regime and the morality of promise; and doubts about parties’ inability to contract for specific performance. I will analyze some familiar justifications for the common law’s stance on specific performance, which also act as potential rejoinders to the philosophical puzzles raised by it. Yet the deeper answer to these puzzles, I will suggest, requires questioning the inference from primary rights to remedies.
Jiménez, Felipe, Specific Performance (March 6, 2023) in Mindy Chen-Wishart and Prince Saprai (eds), Research Handbook on the Philosophy of Contract Law (Elgar Publishing) Forthcoming; USC CLASS Research Paper No 23-4.
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