Specific performance has long been recognized in contract law as the fundamental alternative to monetary relief, when such relief is deemed inadequate. Historically, however, the general rule has been to deny decrees for specific performance when a contract to construct or repair is involved. Reasons traditionally advanced for these denials include the availability of damages as an adequate remedy at law, the lack of sufficient contractual details necessary to fashion a meaningful decree, and the practical difficulties underlying supervision of the contract by the court. Some modern courts, on the other hand, have suggested that the difficulties envisioned by the traditionalist courts are more imagined than real, and have routinely granted specific performance even when rather complex building contracts are at issue.
This article will explore the development of these two conflicting approaches and the rationales advanced to support them. Following an examination of the relevant historical context which shaped the traditionalist approach into its present form, the methods and reasoning of both views will be analyzed with the objective of determining which is more properly suited to serve the needs of a highly industrialized modern society. To the extent that the roots of the traditionalist approach are grounded in the history of the High English Court of Chancery, the concerns advanced during that period as reasons to deny specific performance of construction contracts are largely without foundation today. This article will conclude, therefore, that a more liberalized view toward construction contracts and specific performance is both warranted and desirable in order to serve more adequately and efficiently the needs of an increasingly complex society.
Axelrod, Eliot L.
"Judicial Attitudes toward Specific Performance of Construction Contracts,"
University of Dayton Law Review: Vol. 7:
1, Article 3.
Available at: https://ecommons.udayton.edu/udlr/vol7/iss1/3
Eliot L. Axelrod is an Associate Professor at Baruch College, the City University of New York. B.S., New York University 1964; J.D., New York Law School 1968.