Taking Specific Performance Seriously: Trumping Damages as the Presumptive Remedy for Breach of Contract
TAKING REMEDIES SERIOUSLY/LES RECOURS ET LES MESURES DE REDRESSEMENT: UNE AFFAIRE SÉRIEUSE, p. 85, Robert J. Sharpe & Kent Roach, eds., Canadian Institute for the Administration of Justice, 2010
34 Pages Posted: 10 Feb 2012
Date Written: 2010
In this article, which canvasses the remedy of specific performance from a comparative perspective of both the civil and the common law traditions, the author explores both the theoretical and practical attributes of specific performance, and attempts to meet the objections to this remedy ranging from personal liberty concerns, arguments attributed to economic analysis, problems of imprecision and supervision and practical disadvantages. The author concludes with a proposal for treating the remedy as a presumptive remedy, as do many civilian jurisdictions, subject to some limitations that range from considerations of serious hardship, the good faith principle, and the will of the parties as demonstrated in contractually stipulated “damages only” clauses.
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