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SPECIFIC PERFORMANCE OF CONTRACTS.

INTRODUCTORY CHAPTER.

SECTION 1. The Specific Performance of Contracts is purely a remedy administered by courts having equitable jurisdiction, and the right to it, held and enforced by a contracting party, is purely a remedial right. All the private rights and duties comprised in the municipal law-except in that very small portion which simply defines the status of persons-are separated, from their intrinsic nature, into two generic classes, primary and remedial-or, to use the somewhat fanciful nomenclature of Bentham and his school, substantive and adjective. Primary rights and duties flow from the commands or rules which constitute the great body of the private law; they are the objects and ends for which the law itself is established; they apply to and regulate all the normal relations of the individual with his fellows; they do not result from any delicts or violations of the law, but exist prior to and wholly independent of all such wrongful acts or omissions. If obedience to the law were absolutely perfect, these primary rights and duties are the only ones with which jurisprudence would be practically concerned. Disobedience, however, is possible and constant; primary rights are violated and primary duties unperformed. Hence there arises the second grand division of remedial rights and duties, which spring immediately and exclusively from those acts and omissions which are violations of primary rights and duties, that is, from delicts, wrongs, or offenses. A remedial right is, therefore, a right to obtain some remedy, conferred by the law upon the holder of a primary right which has been broken, and a remedial duty is the corresponding duty to grant or permit such remedy, devolving upon the wrong-doer, as the consequence of his delict. (1) In the English system of administering justice, which

(1) See Austen, Lect. on Jurisp. vol. 2, pp. 450-453 (Eng. ed. of 1863); Pomeroy on Remedies, §§ 1, 2.

prevails throughout the United States, all civil remedies and the corresponding remedial rights, except a very few special kinds, are separated into two divisions, respectively denominated the legal and the equitable, because during the integrity of the system, while its peculiar methods were kept unaltered, and before the sweeping reforms introduced by modern legislation, the one class were administered by the courts of law alone, and the other by the courts of equity. The change recently made in the very principles of the old procedure, which has consolidated the two courts into one tribunal, and which permits legal and equitable remedial rights to be enforced and legal and equitable remedies to be obtained in the same action, will doubtless tend to obliterate the line which has hitherto distinguished the two classes in our legal nomenclature, although all the individual remedies themselves will remain unaffected by the statutory modifications which relate solely to the means of obtaining them through judicial action.

SEC. 2. In every contract, however simple or however complicated, the primary right of the party who is to receive the benefit, is always a right to have the very thing done or omitted which the other party has promised to do or to omit-a right to the specific acts or forbearances for which the agreement stipulates; and the corresponding primary duty of the party on whom the obligation rests, is to do or to omit exactly what he has undertaken to do or to omit. In other words, the terms of the contract itself in every instance define the nature and extent of the primary rights and duties-varying beyond the possibility of description or enumeration-which result from it. If the contract is merely for the payment of a certain sum of money, the right is to receive such payment; if it is for the conveyance of a tract of land, the right is to obtain such conveyance; if it is for the erection of a house in a specified manner, the right is to have the house erected in that manner; if it is for prescribed personal services to be rendered by the other party, the right is to those very services as stipulated; and so on through the numberless forms in which persons may bind themselves by their agreements. When, however, the contract is broken, by the party upon whom the obligation of it rests, and the primary right, whatever it may be, of the other party is invaded, a remedial right at once accrues to him, and a remedial duty is imposed upon the former, both of which the law will enforce by means of a judicial proceeding. From the dual nature of the English law courts, from the highly technical and arbitrary forms of its actions and pleadings, and no doubt from a certain narrowness and

rigidity which pervaded the entire system itself, the common law gave and still gives but one kind of remedy, one species of remedial right and duty for the breach of all contracts. This single remedy is a sum of money paid by the wrong-doer; this single remedial right is the right to compel such payment; this single remedial duty is the duty to make such payment. If the contract consists, on the one side, simply of a promise or obligation to pay a definite sum of money-in other words, if it creates a debt-the remedial right of the creditor is identical with his primary right; and the remedy is in reality a specific performance. In all other possible contracts, the remedy is in the nature of damages given purely as a compensation, and the remedial right is plainly a substitute, or rather an equivalent, for the primary right which has been violated. (1) This legal remedial right is universal and absolute. Whenever a contract, valid and binding at law, has been broken, the right to recover either the debt or the compensatory damages in some amount, although perhaps only nominal, invariably arises, and will constitute a sufficient ground of action in a court of law.

SEC. 3. In the innumerable variety of relations incident to modern society, contracts will necessarily be made for whose breach this mere pecuniary payment would be an utterly inadequate and often impracticable relief; and a system of municipal law, which provided no other kind, would fail in maintaining and dispensing the justice which is the great object of all enlightened jurisprudence. As the law courts were either unable or unwilling to deviate from the methods which they had originally adopted, the court of chancery was compelled to supply the deficiency, and to administer the only remedy which is just and adequate and even practicable in many classes of violated agreements. Hence there arose at an early day the jurisdiction of chancery to enforce the equitable remedy of specific performance, as applied to contracts. (2) It consists in the contracting party's exact

(1) See language of V. C. STUART, in Ord v. Johnston, 1 Jur. N. S. 1063, 1064. (2) The nature and object of this equitable remedy was summed up in one sentence by Ld. Chan. SELBORNE, in the recent case of Wilson v. Northampton, etc. R'y Co., L. R. 9 Ch. 279, 284: "The principle which is material to be considered is, that the court gives specific performance instead of damages, only when it can by that means do more perfect and complete justice." The foundation and measure of the jurisdiction is the desire to do justice, which the legal remedy would fail to give. This justice is primarily due to the plaintiff, but not exclusively, for the equities of the defendant are also taken into consideration and protected. Specific performance is therefore a conscious attempt on the part of the court to do complete justice to both the parties with respect to all the juridical relations growing out of the contract between them.

fulfillment of the obligation which he has assumed-in his doing or omitting the very acts which he has undertaken to do or omit. The remedial right and duty are thus made identical with the primary right and duty, and the party is thereby deprived of the option, which the law practically gives him, to disregard the actual obligation by which he is bound, and to pay a sum of money in place thereof. While law and equity remained in their original condition, as two distinct and partially independent systems, the remedy of specific performance could only be obtained by means of a suit brought for that purpose in a court possessing the equity jurisdiction. Under the reformed procedure it may still be obtained by a party plaintiff in a similar manner; but it will also be granted to the defendant in a legal action who sets forth a proper case for the affirmative equitable relief in his answer or counterclaim.

SEC. 4. The right to this equitable remedy, however, is neither universal nor absolute. Specific performance has not supplanted the legal relief of compensation, nor has it been extended to all kinds of contracts. It is strictly an ancillary and supplementary remedy, and is confined to those classes of agreements for whose breach the mere payment of pecuniary damages is acknowledged to be either impracticable or inadequate. The reasons which first led the court of chancery to interfere and specifically enforce the terms of any contract, have been steadily kept in view by the tribunals of equitable jurisdiction in all their subsequent applications of the doctrine to new relations and under new circumstances, and have constantly guided and restrained them in the administration of this particular branch of their judicial functions. Furthermore, the right to the remedy of specific performance is not absolute, even within the species of contracts to which it has been confined. In the common but somewhat misleading language of the decided cases, it is said to be "discretionary." The exact meaning of this term, or rather the conditions and limitations which it is intended to express, will be fully discussed and explained in the subsequent chapters; it is enough now to say that courts may be prevented or deterred from decreeing the specific performance of a valid and binding contract by circumstances and contingencies connected with its subject-matter, its terms, or the relations of its parties with each other, or with third persons, which would not constitute the slightest obstacle or objection to the recovery of a judgment for damages in courts of law. In the absence, however, of any of these circumstances or contingencies, it may be said to be as much a matter of course for courts of equity to specifically enforce

certain varieties of agreements-especially those for the sale of lands as for these courts to grant any other relief within the range of their jurisdiction. The two propositions which have been thus stated in a general manner, that specific performance is not universal, but is an equitable remedy ancillary and supplementary to the legal relief of damages, and that it is not legally absolute but discretionary to the extent of being controlled by equitable considerations, are fundamental; from them are derived, more or less directly, nearly all the subordinate rules which make up the head of equity jurisdiction, to be discussed in the present work.

SEC. 5. The discussion of the principles and doctrines which I have thus briefly indicated, will be pursued in the following order: I. The nature, extent, and limitations of the remedial right to a specific performance of contracts. II. The nature, elements, and incidents of contracts, in order that they may be specifically enforced. III. Acts or omissions of the parties, and other facts, done or occurring subsequently to the conclusion of the contract, which affect the right to a specific performance. IV. Rules of procedure, which are peculiar to the suit for a specific performance, and special statutory provisions of the various states, either regulating the general jurisdiction or prescribing summary proceedings in certain cases.

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