Specific Performance

59 Pages Posted: 19 Oct 2020 Last revised: 18 Dec 2020

See all articles by Hanoch Dagan

Hanoch Dagan

Tel Aviv University - Buchmann Faculty of Law

Michael Heller

Columbia University - Columbia Law School

Date Written: July 9, 2020

Abstract

When should specific performance be available for breach of contract? This question has engaged generations of legal economists and philosophers, historians and comparativists. Yet none of these disciplines have provided a persuasive answer. This Article provides a normatively-attractive and conceptually-coherent account. Respect for the autonomy of the promisor’s future self explains why expectation damages are, and should be, the ordinary remedy for contract breach. Also, this same normative commitment to the contracting parties’ autonomy best justifies the “uniqueness exception,” where specific performance is typically awarded, and the personal services exclusion, where it is not. For the most part, the boundaries of specific performance track the common law’s underlying commitment to autonomy. But not entirely. There’s still work to be done, and this Article points the way with concrete doctrinal reforms that can better align specific performance with its animating principles.

Suggested Citation

Dagan, Hanoch and Heller, Michael, Specific Performance (July 9, 2020). Columbia Public Law Research Paper No. 14-674, Columbia Law and Economics Working Paper No. 631, Available at SSRN: https://ssrn.com/abstract=3647336 or http://dx.doi.org/10.2139/ssrn.3647336

Hanoch Dagan (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv, 69978
Israel
+972 3 640 7302 (Phone)

Michael Heller

Columbia University - Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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