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Full-Text Articles in Law
Expecting Specific Performance, Tess Wilkinson-Ryan, David Hoffman, Emily Campbell
Expecting Specific Performance, Tess Wilkinson-Ryan, David Hoffman, Emily Campbell
Articles
Using a series of surveys and experiments, we find that ordinary people think that courts will give them exactly what they bargained for after breach of contract; in other words, specific performance is the expected contractual remedy. This expectation is widespread even for the diverse array of deals where the legal remedy is traditionally limited to money damages. But for a significant fraction of people, the focus on equity seems to be a naïve belief that is open to updating. In the studies reported here, individuals were less likely to anticipate specific performance when they were briefly introduced to the …
Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael A. Heller
Specific Performance: On Freedom And Commitment In Contract Law, Hanoch Dagan, Michael A. Heller
Faculty Scholarship
When should specific performance be available for breach of contract? This question — at the core of contract — divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has provided a persuasive answer. This Article provides a normatively attractive and conceptually coherent account, one grounded in respect for the autonomy of the promisor’s future self. Properly understood, autonomy explains why expectation damages should be the ordinary remedy for contract breach. This same normative commitment justifies the “uniqueness exception,” where specific performance is typically awarded, and …
Inefficiency Of Specific Performance As A Contractual Remedy In Chinese Courts: An Empirical And Normative Analysis, Lei Chen, Larry A. Dimatteo
Inefficiency Of Specific Performance As A Contractual Remedy In Chinese Courts: An Empirical And Normative Analysis, Lei Chen, Larry A. Dimatteo
UF Law Faculty Publications
This article investigates the values and latent policies, which have shaped the development of Chinese law in the area of the availability of specific performance (SP) as a contractual remedy. The National People’s Congress (Legislature) and Supreme People’s Court in China have addressed the remedial structure of Chinese contract law, namely, the availability of the remedy of SP as opposed to the awarding of damages-only. The law is clear that the remedies of SP and damages are ordinary remedies that a claimant is free to choose between. The question that is confronted in this article is whether in practice the …
Damages Versus Specific Performance: Lessons From Commercial Contracts, Theodore Eisenberg, Geoffrey P. Miller
Damages Versus Specific Performance: Lessons From Commercial Contracts, Theodore Eisenberg, Geoffrey P. Miller
Cornell Law Faculty Publications
Specific performance is a central contractual remedy but, in Anglo-American law, generally is subordinate to damages. Despite rich theoretical discussions of specific performance, little is known about parties' treatment of the remedy in their contracts. We study 2,347 contracts of public corporations to quantify the presence or absence of specific performance clauses in several types of contracts. Although a majority of contracts do not refer to specific performance, substantial variation exists in the rates of including specific performance clauses. High rates of specific performance use in the area of corporate combinations through merger (53.4 percent) or assets sales (45.1 percent), …
A Nihilistic View Of The Efficient Breach, Jeffrey L. Harrison
A Nihilistic View Of The Efficient Breach, Jeffrey L. Harrison
UF Law Faculty Publications
This article began as a reaction to an article by Daniel Makovits and Alan Schwartz in the Virginia Law Review, “The Myth of the Efficient Breach. . . .” In their article they offer what they call “new defenses” of the expectation interest as a contract remedy. Much of their analysis has been anticipated by others. Plus, in my view the law and economics concepts they seem to rely on lost their legitimacy years ago. Their article was the catalyst for this broader examination of forty years of writing about the efficient breach and an assessment of where it has …
Remedies: A Guide For The Perplexed, Doug Rendleman
Remedies: A Guide For The Perplexed, Doug Rendleman
Scholarly Articles
Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …
Ratification Of Sales Agreement Through Other Documents Referring To It: Behniwal V Mix, 2005, Roger Bernhardt
Ratification Of Sales Agreement Through Other Documents Referring To It: Behniwal V Mix, 2005, Roger Bernhardt
Publications
This article discusses a California case which held that vendors had effectively ratified a purchase agreement signed by their agent because they had signed disclosure statements that sufficiently referred to the agreement.
Buyers' Remedies In General And Buyers' Performance-Oriented Remedies (25th Anniversary Of The United Nations Convention On Contracts For The International Sale Of Goods), Harry Flechtner
Articles
This paper focuses on Articles 45, 46 and 28 of the CISG - provisions that, despite their importance in the substantive scheme of the Convention, have not generated a great deal of case law or controversy. Article 45, the lead provision of Section III ("Remedies for Breach of Contract by the seller") of Part III, Chapter II of the CISG, provides an overview or catalogue of an aggrieved buyer's remedies (Article 45(1)), along with a rule that coordinates buyers' remedies (Article 45(2)) and a rule of general applicability for all of the buyers' remedies (Article 45(3)). Article 46 provides for …
Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan
Tortious Interference And The Law Of Contract: The Case For Specific Performance Revisited, Deepa Varadarajan
Faculty Publications
What is the role of contract law in remedying breach? The question of the appropriate legal remedy, specific performance versus money damages, has provided adequate fodder for three decades of debate in the law and economics discourse. In the legal discipline at large, the topic has spurred centuries of debate, as illustrated by Oliver Wendell Holmes's famous line: “The only universal consequence of a legally binding promise is, that the law makes the promisor pay damages if the promised event does not come to pass.” Holmes's approach to contractual remedy would evolve during the latter half of the twentieth century …
Law And Equity In Contract Enforcement, Emily Sherwin
Law And Equity In Contract Enforcement, Emily Sherwin
Cornell Law Faculty Publications
No abstract provided.
Court Adjustment Of Long-Term Contracts: An Analysis Under Modern Contract Law, Robert A. Hillman
Court Adjustment Of Long-Term Contracts: An Analysis Under Modern Contract Law, Robert A. Hillman
Cornell Law Faculty Publications
No abstract provided.
The 'Right' To Break A Contract, Willard T. Barbour
The 'Right' To Break A Contract, Willard T. Barbour
Articles
It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is …
The 'Right' To Break A Contract, Willard T. Barbour
The 'Right' To Break A Contract, Willard T. Barbour
Articles
It is common knowledge that the fully developed common law affords no means to compel the performance of a contract according to its terms. Does it follow from this that there is no legal obligation to perform a contract, or if obligation there be, that it is alternative: to perform or pay damages? A note in the XIV MICH. L. REV. 480 appears to give an affirmative answer to this question and at least one court (Frye v. Hubbell, 74 N. H. 358, at p. 374) has taken the same view. Probably the most forcible exposition of this position is …