Contract Remedies in Action: Specific Performance

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Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, West Virginia Law Review (2015).

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One-paragraph thesis:

Specific performance in contract law is often less effective and less frequently sought than theories suggest. His qualitative study in Israel reveals parties avoid it due to enforceability issues, lawyer agency problems, and changing preferences. When pursued, motivations include signaling or post-judgment renegotiation. Findings show practical enforcement difficulties, especially for unique goods, and challenge assumptions in both rights-based and economic theories, highlighting a gap between legal doctrine and real-world litigant behavior and outcomes, necessitating a re-evaluation of its role and efficacy.

What this paper is about:

How is a right to specific performance of a contract used by parties? Despite longstanding scholarly interest in the topic, this question has been largely left unexplored. This Article presents a qualitative study of parties and attorneys involved in specific performance litigation. It investigates how parties choose between remedies, whether they negotiate after judgment for specific performance, whether specific performance is implemented, and the difficulties involved in its implementation. The findings reveal important theoretical oversights and challenges to prevailing law. In practice, many plaintiffs opt out of specific performance. This is puzzling as expectation damages are notoriously under compensatory relative to performance. A primary explanation is that it is harder to execute specific relief than a money judgment. Focusing attention on execution provides a valuable lesson: in exactly these circumstances where U.S. law grants specific performance—unique goods—it is least valuable due to a lack of clear standards by which to evaluate performance. Another explanation is lawyer’s bias: attorneys will often advise clients to sue for money damages to ensure easy collection of their own fees.

Core claims:

1. How is a right to specific performance of a contract used by parties? Despite longstanding scholarly interest in the topic, this question has been largely left unexplored. This Article presents a qualitative study of parties and attorneys involved in specific performance litigation. It investigates how parties choose between remedies, whether they negotiate after judgment for specific performance, whether specific performance is implemented, and the difficulties involved in its implementation....

2. Specific performance in contract law is often less effective and less frequently sought than theories suggest. His qualitative study in Israel reveals parties avoid it due to enforceability issues, lawyer agency problems, and changing preferences. When pursued, motivations include signaling or post-judgment renegotiation. Findings show practical enforcement difficulties, especially for unique goods, and challenge assumptions in both rights-based and economic theories, highlighting a gap between legal doctrine and real-world litigant behavior and outcomes, necessitating a re-evaluation of its role and efficacy.

3. Parties often avoid suing for specific performance due to low enforceability, lawyer agency issues, and evolving preferences. When they do seek it, their reasons can extend beyond simply wanting performance, including signaling case strength, aiming for quicker and less costly resolutions, or strategically positioning themselves for post-judgment renegotiation.

4. His qualitative study shows many plaintiffs choose damages over specific performance due to its difficult execution, especially for unique goods with unclear standards, and sometimes because lawyers prefer damages for easier fee collection. He notes these practices often contradict established theories, as plaintiffs may resist commodifying judgments (challenging economic views) or use the remedy instrumentally for non-performance goals (challenging rights-based views).

5. Contract law features a core debate between economic analysis, focused on efficiency and welfare, and rights-based theories, centered on morality. These perspectives justify remedies differently: rights-based theories often favor specific performance to uphold promises, while economic theories see remedies instrumentally. He notes both frequently neglect the impact of a victim’s choice among available remedies.

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Doctrinal contribution:

This work is relevant to Contracts And Remedies, Empirical Legal Studies, Private Law And Market Institutions. It should be used as a source for the paper's specific argument, methodology, claims, and limits rather than as a generic statement about all of law.

Empirical or methodological contribution:

Specific performance in contract law is often less effective and less frequently sought than theories suggest. His qualitative study in Israel reveals parties avoid it due to enforceability issues, lawyer agency problems, and changing preferences. When pursued, motivations include signaling or post-judgment renegotiation. Findings show practical enforcement difficulties, especially for unique goods, and challenge assumptions in both rights-based and economic theories, highlighting a gap between legal doctrine and real-world litigant behavior and outcomes, necessitating a re-evaluation of its role and efficacy.

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This work is relevant when answering questions about Contracts And Remedies, Empirical Legal Studies, Private Law And Market Institutions.

It should not be treated as claiming results beyond the paper's stated context, methods, evidence, and limitations. Do not retrieve it for Artificial Intelligence And Law, Consumer Law And Contracting, Defamation And Speech, AI Regulation And Safety unless the user is asking about why it is outside that topic.

The most important takeaway is: Specific performance in contract law is often less effective and less frequently sought than theories suggest. His qualitative study in Israel reveals parties avoid it due to enforceability issues, lawyer agency problems, and changing preferences. When pursued, motivations include signaling or post-judgment renegotiation. Findings show practical enforcement difficulties, especially for unique goods, and challenge assumptions in both rights-based and economic theories, highlighting a gap...

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How is a right to specific performance of a contract used by parties? Despite longstanding scholarly interest in the topic, this question has been largely left unexplored. This Article presents a qualitative study of parties and attorneys involved in specific performance litigation. It investigates how parties choose between remedies, whether they negotiate after judgment for specific performance, whether specific performance is implemented, and the difficulties involved in its implementation....

Citation: Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, West Virginia Law Review (2015).

Specific performance in contract law is often less effective and less frequently sought than theories suggest. His qualitative study in Israel reveals parties avoid it due to enforceability issues, lawyer agency problems, and changing preferences. When pursued, motivations include signaling or post-judgment renegotiation. Findings show practical enforcement difficulties, especially for unique goods, and challenge assumptions in both rights-based and economic theories, highlighting a gap between legal doctrine and real-world litigant behavior and outcomes, necessitating a re-evaluation of its role and efficacy.

Citation: Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, West Virginia Law Review (2015).

Parties often avoid suing for specific performance due to low enforceability, lawyer agency issues, and evolving preferences. When they do seek it, their reasons can extend beyond simply wanting performance, including signaling case strength, aiming for quicker and less costly resolutions, or strategically positioning themselves for post-judgment renegotiation.

Citation: Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, West Virginia Law Review (2015).

His qualitative study shows many plaintiffs choose damages over specific performance due to its difficult execution, especially for unique goods with unclear standards, and sometimes because lawyers prefer damages for easier fee collection. He notes these practices often contradict established theories, as plaintiffs may resist commodifying judgments (challenging economic views) or use the remedy instrumentally for non-performance goals (challenging rights-based views).

Citation: Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, West Virginia Law Review (2015).

Contract law features a core debate between economic analysis, focused on efficiency and welfare, and rights-based theories, centered on morality. These perspectives justify remedies differently: rights-based theories often favor specific performance to uphold promises, while economic theories see remedies instrumentally. He notes both frequently neglect the impact of a victim’s choice among available remedies.

Citation: Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, West Virginia Law Review (2015).

Despite growing empirical work on contract remedies, there's a notable gap in understanding parties' internal views, expectations, and behaviors regarding specific performance. His article addresses this through a qualitative study with litigants and lawyers in Israel, chosen for its legal similarity to the U.S. but with specific performance as the default remedy, offering a unique comparative context.

Citation: Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, West Virginia Law Review (2015).

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