5 there is no legal remedy available. Shreeve, 65, of Arizona, filed a lawsuit against Brita International Inc. in June 2012 after the company failed to deliver an estimated 500,000 bottles of water that she paid for online. The case was settled last month under confidential terms.
Specific Performance Requirements: Courts will only enforce specific performance if the underlying contract was "fair and equitable." It is incumbent to the plaintiff to show that the contract was suitable, legitimate, and that each party received fair compensation for performance. A court will look at several factors to determine whether a contract is fair and equitable, including the value of services to be performed by each party, their relative ability to perform these services, and whether there is any agreement as to who will pay for these services.
In addition, a court may refuse to order specific performance if it would be extremely difficult or impossible for one party to perform. For example, if land is all that is required to be done, but the other party does not have the ability to perform, then specific performance might not be available as a remedy.
Finally, a court may refuse to order specific performance if it would be highly inequitable to do so. For example, if one party is in default, then specific performance might not be available as a remedy.
The aggrieved party's principal remedy for violation of contract is specific performance. This directive places a premium on meeting contractual responsibilities. The plaintiff may opt to demand specific performance or damages for breach of contract from the defendant. If the plaintiff chooses specific performance, then the court will issue an injunction requiring the defendant to comply with the contract obligations.
In addition, the plaintiff can ask the court to award him or her attorney's fees if he or she wins the case. However, if the plaintiff does not win his or her case, the plaintiff cannot receive attorney's fees from the defendant.
Specific performance is different from relief in other forms of litigation because it is an equitable remedy that requires the court to make its own determination about what remedy would be most appropriate under the circumstances.
For example, if a party has breached a contract but the other party cannot be restored to its original position by means of monetary compensation, then the court might order specific performance instead. Specific performance can also include such actions as delivering documents or products, providing services, or transferring property.
If specific performance is chosen as the remedy for a breach, then the court will issue an injunction requiring the defendant to comply with the contract obligations. The plaintiff must file suit before any breach occurs so there is time to seek this remedy.
The term "possibility of performance" refers to the contract's ability to be completed, because legally binding contracts cannot be entered into to execute an impossible act. You also can't pay personnel to discover and return a nonexistent thing or person. In other words, there can be no possibility of performance if both parties agree that the contract cannot be performed.
A possibility of performance may exist even though there is no chance that the other party will perform. For example, let's say you offer to sell me a car for $10,000. Even though the car is obviously not worth $10,000, I can still pass up the opportunity and wait for it to go down in price before buying it. At some point, probably soon, it will be worth less than $10,000 and I can make a good deal on it. However, while the car was still worth more than $10,000, there was still a possibility of performance - i.e., a chance that I could buy it at that price. Source: http://www.lawschoolprep.com/law-terms/possibility-performance.html
In business, there are two types of possibilities of performance: legal and economic. A legal possibility of performance exists when there is a question as to whether a contract can be enforced by law.
Specified performance is an equitable remedy in contract law in which a court gives an order forcing a party to undertake a specific act, such as completing the contract's performance. The court may issue any appropriate relief, including specific enforcement or specific remedies.
The remedy of specific performance is available when there is a valid contract between the parties, the facts are sufficient to establish a breach by one party, and the other party will suffer substantial injury if the court does not enforce the contract. The remedy is a form of relief designed to give effect to the intentions of the parties. In addition, the court may take into account principles of equity in determining what relief should be granted.
Specific performance is generally not a matter of right but depends on the circumstances of the case. The court may refuse to grant this remedy even if both parties ask for it. Refusing to grant specific performance is called "refusing specific relief."
When one party to a contract refuses to perform his obligations under the contract, the other party can usually find a remedy. The aggrieved party can sue for breach of contract and seek any appropriate relief, including specific performance. If the injured party chooses to wait and see whether the non-performing party performs, then he can also sue for breach of contract after the time limit has passed.
From the start, performance is impossible. A contract is legitimate even if the assets to which it refers have already died at the time of contracting, with the result that original inability of performance is equivalent with impossibility happening after the contract's consummation. This does not mean that all contracts can be performed at a later date; rather, it means that any condition or requirement binding on one of the parties in order to render their agreement valid and enforceable has been satisfied.
For example, let's say I promise you a free pizza if you vote for me. I go ahead and put this in writing, sign it, give it to you, and tell you to keep it confidential until the election is over. Even though I am not able to provide you with a pizza before the election because there are no pizzerias around here, you have a valid contract with me if you vote for me. Once the election is over, I will perform by sending you a check for a free pizza.
As another example, let's say I hire you for one year at $50,000 per year. I would like you to work for me during that time, but I am not able to pay you until the end of the year. This is an option contract, which means that I can cancel it at any time before then. However, if I do so, I must provide you with two months' notice.