Document Type

Working Paper

Publication Date

9-24-2015

SSRN Discipline

Legal Scholarship Network; Litigation, Procedure & Dispute Resolution eJournals; LSN Subject Matter eJournals; LSN Conferences & Meetings

Abstract

How is a right to specific performance of a contract used by parties Despite longstanding scholarly interest in the topic this question has been largely left unexplored This Article presents a qualitative study of parties and attorneys involved in specific performance litigation It investigates how parties choose between remedies whether they negotiate after judgment for specific performance if specific performance is implemented and the difficulties involved in its implementationbrbrThe findings reveal important theoretical oversights and challenges to prevailing law In practice many plaintiffs opt out of specific performance This is puzzling as expectation damages are notoriously under compensatory relative to performance A primary explanation is that it is harder to execute specific relief than a money judgment Focusing attention on execution provides a valuable lesson in exactly these circumstances where US law grants specific performance "” unique goods "” it is least valuable due to a lack of clear standards by which to evaluate performance Another explanation is lawyer's bias attorneys will often advise clients to sue money damages to ensure easy collection of their own feesbrbrAnother set of findings reveal that parties think about specific performance in ways that are inconsistent with both economic and rightsbased theories Sometimes plaintiffs will not negotiate a judgment as they will be reluctant to commodify it in contrast to economic theories and other times they will treat specific performance instrumentally to achieve other ends but performance of the contractual promise which is in tension with rightsbased theories The Article concludes by discussing the theoretical and policy implications of these findings and highlights the ways in which qualitative research could enrich challenge and contextualize contract theory

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