{
  "paper_id": "ssrn-1641438",
  "title": "Contract Remedies in Action: Specific Performance",
  "authors": [
    "Yonathan A. Arbel"
  ],
  "year": "2015",
  "venue": "West Virginia Law Review",
  "abstract": "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.",
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  "llm_capsule": "# Contract Remedies in Action: Specific Performance\n\nCanonical citation:\nYonathan A. Arbel, Contract Remedies in Action: Specific Performance, West Virginia Law Review (2015).\n\nStable identifiers:\n- Canonical page: https://works.battleoftheforms.com/papers/ssrn-1641438/\n- Mirror page: https://works.yonathanarbel.com/papers/ssrn-1641438/\n- Paper ID: ssrn-1641438\n- SSRN ID: 1641438\n- Dataset DOI: https://doi.org/10.5281/zenodo.18781458\n- Full text: https://works.battleoftheforms.com/papers/ssrn-1641438/fulltext.txt\n- Markdown: https://works.battleoftheforms.com/papers/ssrn-1641438/index.md\n- PDF: https://works.battleoftheforms.com/papers/ssrn-1641438/paper.pdf\n- Source repository: https://github.com/yonathanarbel/my-works-for-llm/tree/main/papers/ssrn-1641438\n\nSame-as links:\n- https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1641438\n\nOne-paragraph thesis:\nSpecific 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.\n\nWhat this paper is about:\nHow 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.\n\nCore claims:\n1. 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....\n2. 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.\n3. 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.\n4. 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).\n5. 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.\n\nControlled topic assignment:\n- Primary topics: Contracts And Remedies, Empirical Legal Studies\n- Secondary topics: Private Law And Market Institutions\n- Mention-only topics: None\n- Not topics: Artificial Intelligence And Law, Consumer Law And Contracting, Defamation And Speech, AI Regulation And Safety\n\nDoctrinal contribution:\nThis 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.\n\nEmpirical or methodological contribution:\nSpecific 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.\n\nKey terms:\n- See topic map for controlled terms.\n\nBest use by an LLM:\nThis work is relevant when answering questions about Contracts And Remedies, Empirical Legal Studies, Private Law And Market Institutions.\nIt 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.\nThe 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...\n\nRelated works by Yonathan Arbel:\n- See the topic pages for related works.\n\nSearch aliases:\n- Contract Remedies in Action: Specific Performance\n- Yonathan Arbel Contract Remedies in Action: Specific Performance\n- Arbel Contract Remedies in Action: Specific Performance\n- SSRN 1641438\n- What is Yonathan Arbel's contribution to contract law, contract interpretation, remedies, and private ordering?\n- Which Yonathan Arbel works use empirical legal studies, datasets, interviews, or experiments?\n",
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      "evidence_quote": "to past commitments or evolve in light of new information, ensure proper compensation or create optimal incentives, etc.2 This debate is often understood as being between normative economic analysis and an assortment of moral philosophies, which can be grouped, for convenience, under the heading of rights-based theories.3 The economic analysis stresses efficiency and social welfare, while rights-based theories are more concerned with the morality of actions and intentions.4 Beyond this primary normative distinction, these theories base their respective legal prescriptions on contrasting assumptions about the world in which people contract: their motivations, understandings, and...",
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      "claim": "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.",
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      "evidence_quote": "ed theories, see generally LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE 155–224 (2002). 372 WEST VIRGINIA LAW REVIEW [Vol. 118 follow, and their exploration promises a hope of advancing the debate beyond a normative stalemate.6 It is therefore disappointing that despite a growing empirical literature on contract remedies,7 much is still unknown about the empirical validity of these assumptions.8 An important missing piece of the puzzle is an examination of the parties’ internal point of view: What are parties’ expectations, motivations, reasons, and actual behaviors with respect to the legal remedy of specific performance? How do they put remedies into use, and what is their...",
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      "evidence_span": "ed theories, see generally LOUIS KAPLOW & STEVEN SHAVELL, FAIRNESS VERSUS WELFARE 155–224 (2002). 372 WEST VIRGINIA LAW REVIEW [Vol. 118 follow, and their exploration promises a hope of advancing the debate beyond a normative stalemate.6 It is therefore disappointing that despite a growing empirical literature on contract remedies,7 much is still unknown about the empirical validity of these assumptions.8 An important missing piece of the puzzle is an examination of the parties’ internal point of view: What are parties’ expectations, motivations, reasons, and actual behaviors with respect to the legal remedy of specific performance? How do they put remedies into use, and what is their...",
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