Contracts Law — Remedies/Damages.  An equitable remedy whereby plaintiff asks the court to enter judgment ordering defendant to perform the contract, rather than award money damages caused by the defendant’s failure to perform the contract.  In order to get specific performance, the plaintiff must prove that money damages would be inadequate.  This is most often the case when the subject of the contract is “unique.”  Like a piece of land or an antique, and the defendant refuses to carry out an agreement to sell the item in question to the plaintiff.  See, e.g., California Civil Code § 3387 (“It is to be presumed that the breach of an agreement to transfer real property cannot be adequately relieved by pecuniary compensation.  In the case of a single-family dwelling which the party seeking performance intends to occupy, this presumption is conclusive.”).

Courts have held that, “[s]pecific performance is not a matter of absolute right, but rests within the sound discretion of the court, and is to be granted only in accordance with established principles of equity and always with reference to the facts of the particular case.” Pasqualetti v. Galbraith, 200 Cal. App. 2d 378, 382 (1962).

In addition, courts have refused to order specific performance for certain types of contracts, including but not limited to the following:

Contracts Requiring A Succession of Acts

First, specific performance of contracts requiring a succession of acts is generally not be granted. “The rule is settled that contracts which by their terms stipulate for a succession of acts, whose performance cannot be consummated by one transaction are not enforceable in equity.” Moklofsky v. Moklofsky, 79 Cal. App. 2d 259, 262 (1947). Specific performance is only available for contracts that are capable of “being embraced in one order and [are] immediately enforceable.” Id. Courts “will not decree specific performance when the duty to be performed is a continuous one, extending possibly over a long period of time ….” Id.see also Lubin v. Lubin, 144 Cal. App. 2d 781, 791 (1956) (finding that an obligation to pay premiums on insurance policies for ex-wife’s benefit constituted a “series of acts extending over the balance of his life,” and was therefore not subject to specific performance); Long Beach Drug Co. v. United Drug Co., 13 Cal. 2d 158, 171 (1939) (“It is … ‘the cognate rule that courts of equity will not decree the specific performance of contracts which by their terms stipulate for a succession of acts whose performance cannot be consummated by one transaction, but will be continuous and require protracted supervision and direction’ ”).

In Thayer Plymouth Center, Inc. v. Chrysler Motors Corp., 255 Cal. App. 2d 300 (1967), a California court determined that, despite the overtures of the plaintiff to the contrary, “the provisions of the contract [were] multiple in number and contemplate[d] almost daily transactions between the parties.” Id. at 304-305. Specifically, the “contract provide[d] for maintenance of extensive dealership records, the processing of orders for new cars, production scheduling by Chrysler; delivery terms, maintenance of adequate dealership facilities, the establishment of prices for new models and potential price changes, rebates to dealers, incentive sales programs, the handling of discontinued models, liability for breach of warranty provisions, and extensive advertising campaigns.” Id. Consequently, “[n]ot only [was] the contract voluminous, but the contract between parties must necessarily be continuous in nature.” Id.

Contracts Requiring Parties to Make Further Agreement.

Second, where contracts reserve an essential element “for the future agreement of both parties,” the promises contained therein “can give rise to no legal obligation until such future agreement.” ETCO Corporation v. Hauer, 161 Cal. App. 3d 1154, 1158 (1984).  Consequently, it has been held that an “agreement which leaves an essential term to future agreement is not enforceable.” Id.  Furthermore, “[t]here is no dispute that neither law nor equity provides a remedy for breach of an agreement to agree in the future.” (Autry v. Republic Productions, 30 Cal. 2d 144, 151 (1947).

This rule also applies to contracts requiring parties to make further agreements with third parties. California Civil Code § 3390 establishes that certain agreements “cannot be specifically enforced,” including an “agreement to procure the act or consent… of any other third person.” The California Court of Appeal has observed that “[i]t has been held that a contract, performance of which is dependent on the consent of third parties who are not parties to the contract, cannot be specifically enforced.”  Forde v. Bank of Finance, 136 Cal. App. 3d 38, 45 (1982); see also Casady v. Modern Metals Spinning & Manufacturing Co., 188 Cal. App. 2d 728, 731 (1961) (“Where the defendant’s performance depends on the consent or approval of one not a party to the contract who is free to withhold his consent, specific performance of the contract will not be decreed where it does not appear that such consent or approval has been or can be obtained, or where it appears that such consent or approval is withheld or refused or has become impossible.”).

Cooperation Clauses

Third, courts refuse to enforce a cooperation clause against an unwilling party.  “A contract which requires a continuing series of acts and demands cooperation between the parties for the successful performance of those acts is not subject to specific performance.” (Thayer, 255 Cal. App. 2d at 303.) This is particularly so where the parties expected to cooperate with each other are instead engaged in litigation. See id. at 304 (cooperation between the contracting parties “rendered impossible by reason of the pendency of the lawsuit”); Woolley v. Embassy Suites, Inc., 227 Cal. App. 3d 1520, 1534 (1991) (denying specific performance of contract with cooperation clause where the “mutual cooperation and trust” between the parties “ceased to exist in the wake of rancorous litigation between the parties”).

Contracts Requiring Protracted Court Supervision

Fourth, specific performance is not available for contracts requiring protracted court supervision. Courts of equity “will not decree specific performance when,… in order that the performance may be made effectual, will necessarily require the constant personal supervision and oversight of it by the court.” Moklovsky v. Moklovsky, 79 Cal. App. 2d 259, 262 (1947); Thayer Plymouth Center, Inc. v. Chrysler Motors Corp., 255 Cal. App. 2d 300, 304 (1967) (“Courts of equity will not decree the specific performance of contracts which, by their terms,… require [] protracted supervision and direction… inasmuch as such a decree would impose upon the court the impossible task of supervising continuous performance by the parties”); Long Beach Drug Co. v. United Drug Co., 13 Cal. 2d 158, 171 (1939) (“court would be constrained to deny equitable relief” where compelling the performance of the contract for goods between plaintiff and defendant “would impose upon the court a duty well nigh impossible of performance”).

No Mutuality of Remedy

Fifth, specific performance will not be ordered if it cannot be rendered obligatory upon both parties.  See Hupp v. Lawler, 106 Cal. App. 121, 125 (1930) (“The remedy of specific performance must be mutual, and the test of mutuality of remedy is applied by considering whether the agreement under which the remedy is asserted is of such a character that at the suit of either a court of equity would decree specific performance against the other.”).

In Lind v. Baker, 48 Cal. App. 2d 234 (1941), the Court of Appeal denied specific performance of a contract to mine and mill for ship ore for a period of twenty years on the basis that the contract lacked mutuality.  Id. at 246-247 (because the contract was “lacking in mutuality of enforcement and [was] manifestly unenforceable as to the appellant, she may not enforce it as to the respondents”).

Vague Contracts

Finally, the sixth principle of equity precluding specific performance is that performance that is not clearly ascertainable cannot be specifically performed. Cal. Civ. C. § 3390 (agreements that do “not sufficiently [make certain] the precise act which is to be done clearly ascertainable” cannot be specifically enforced).  Additionally, a “Court of Equity is always chary of its power to decree specific performance, and will withhold the exercise of its jurisdiction in that respect, unless there is such a degree of certainty in the terms of the contract as will enable it at one view to do complete equity.” Morrison v. Rossignol, 5 Cal. 64, 65-66 (1855); see also Los Angeles Soda Works v. Southern California Aquazone Co., 103 Cal. App. 105, 107 (1930) (courts will not grant specific performance of an agreement where “it is too indefinite to enable a court of equity to specifically enforce it”).

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