# Propositions from Contract Remedies in Action: Specific Performance

**Citation:** Yonathan A. Arbel, Contract Remedies in Action: Specific Performance, 118 W. Va. L. Rev. 369 (2015)

**Source:** [2015 West Virginia Law Review article PDF](https://works.battleoftheforms.com/papers/ssrn-1641438/paper.pdf)

**Review status:** 35 model-drafted, source-checked; 0 human-reviewed. Page references use the printed pagination and, separately, the 1-based PDF page number.

## 1. Contract-remedy theory depends on contestable empirical assumptions about how litigants, lawyers, and courts actually choose, trade, and implement specific performance

**Location:** Abstract and Introduction, printed pp. 370-374 (PDF pp. 2-6)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 370–374, that the traditional contest between rights-based and economic accounts of contract remedies cannot be resolved at the level of moral principle or formal incentives alone. Both camps rely on beliefs about whether plaintiffs choose specific performance, whether decrees produce performance, whether parties renegotiate, and whether selecting a remedy affects judges or lawyers. His qualitative study asks actors inside specific-performance litigation how those remedial rights are actually used. This is significant because prescriptions about damages and performance can fail if their behavioral premises are false. It connects to law in action, empirical contract theory, specific performance, expectation damages, remedial choice, litigation behavior, and institutional design.

**Evidence anchor:** The abstract and introduction identify the theoretical dispute, enumerate its assumptions, and frame interviews with litigants and lawyers as the article's central contribution.

**Boundary:** The study is exploratory and qualitative, so it identifies mechanisms and challenges assumptions but does not estimate population-wide frequencies or causal effects.

**Connections:** law in action; empirical contract theory; specific performance; expectation damages; remedial choice; litigation behavior; institutional design

**Record:** `ssrn-1641438-p01` · `machine-drafted-source-checked`

## 2. Specific-performance litigation must be analyzed as a sequence of remedy choice, possible post-judgment trade, and practical execution, with distinct failures at each stage

**Location:** Introduction, Summary of Findings, printed pp. 372-374 (PDF pp. 4-6)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 372–374, that a decree's life has three analytically separate stages: plaintiffs choose among remedies, prevailing parties may renegotiate the judgment, and any remaining decree must be implemented. Interview evidence challenges theory at each point: many plaintiffs opt for damages, some seek performance strategically, some decline mutually beneficial renegotiation, and enforcement can be hardest for unique goods. This is significant because calling a legal outcome 'specific performance' collapses a chain of decisions that may never deliver the promised performance or equivalent value. It connects to process tracing, remedies, post-judgment bargaining, judgment enforcement, unique goods, strategic litigation, and legal implementation.

**Evidence anchor:** The introduction organizes results around choice, renegotiation, and execution and summarizes the principal mechanism identified at each stage.

**Boundary:** The three-stage synthesis previews interview findings whose prevalence and generality remain limited by the research design and jurisdiction.

**Connections:** process tracing; contract remedies; post-judgment bargaining; judgment enforcement; unique goods; strategic litigation; legal implementation

**Record:** `ssrn-1641438-p02` · `machine-drafted-source-checked`

## 3. Rights-based arguments for specific performance commonly assume that a decree yields performance, protects the promisee better than damages, and is used to obtain what was promised

**Location:** Part II.A, Rights-Based Theories, printed pp. 375-378 (PDF pp. 7-10)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 375–378, that diverse promise-, consent-, expectation-, and virtue-based theories often converge on a preference for specific performance but share three empirical shortcuts. They use the decree as shorthand for actual performance, presume it protects the promisee at least as well as expectation damages, and assume the entitlement will be used to secure performance rather than other strategic ends. This is significant because a moral argument from the duty to do X does not establish that a court order will cause X, adequately compensate the promisee, or remain confined to vindicating the promise. It connects to promissory morality, corrective justice, deontology, consent theory, expectation theory, compensatory adequacy, and instrumental use of rights.

**Evidence anchor:** Part II.A reviews leading rights-based accounts and isolates assumptions about decree-to-performance equivalence, relative compensation, and noninstrumental use.

**Boundary:** The theories are heterogeneous, and some expressly acknowledge supervision or enforcement costs; the claim identifies recurring tendencies rather than a universal position.

**Connections:** promissory morality; corrective justice; deontology; consent theory; expectation theory; compensatory adequacy; instrumental rights

**Record:** `ssrn-1641438-p03` · `machine-drafted-source-checked`

## 4. Economic accounts of specific performance depend on low-cost renegotiation, strong enforcement value, and an underexamined assumption that giving promisees a remedial choice has little strategic effect

**Location:** Part II.B, Economic Theories, printed pp. 379-381 (PDF pp. 11-13)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 379–381, that economic theory evaluates remedies by ex ante joint welfare and recognizes competing costs: inefficient compelled performance, hold-up, precautions, administration, damages measurement, and excessive breach. Yet influential arguments expect parties to renegotiate inefficient decrees because contractual transaction costs are low, expect the resulting value to equal or exceed performance value, and largely neglect how a plaintiff's remedial option changes plaintiff–lawyer and plaintiff–court interactions. This is significant because Coasean trade and neutral choice are behavioral predictions, not consequences of welfarism itself. It connects to efficient breach, Coasean bargaining, property rules, hold-up, transaction costs, ex ante welfare, strategic choice, and agency costs.

**Evidence anchor:** Part II.B reviews costs and benefits of specific performance and then specifies assumptions about post-judgment trade, promisee value, and the overlooked effects of choice.

**Boundary:** Economic models differ and often incorporate enforcement or bargaining frictions; the article targets recurrent assumptions rather than rejecting economic analysis as a whole.

**Connections:** efficient breach; Coasean bargaining; property rules; hold-up; transaction costs; ex ante welfare; strategic choice; agency costs

**Record:** `ssrn-1641438-p04` · `machine-drafted-source-checked`

## 5. Israel offers a comparative setting close enough to American contract law for useful inference but with specific performance unambiguously treated as the default and morally preferred remedy

**Location:** Part III, The Legal Framework, printed pp. 381-384 (PDF pp. 13-16)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 381–384, that United States law ordinarily makes expectation damages the default and conditions specific relief on inadequate damages, hardship, supervision, and public-interest constraints. Israeli private law mixes statutory, common-law, and American influences but reverses remedial prominence: aggrieved parties may elect specific performance unless statutory exceptions apply, and courts call it the 'first and foremost' remedy. Enforcement may proceed through contempt, a collection agency, or a receiver. This is significant because a default-specific-performance jurisdiction exposes ordinary rather than exceptional uses of the remedy while retaining meaningful legal comparability. It connects to comparative law, remedial defaults, UCC section 2-716, Restatement doctrine, Israeli contract law, contempt, receivership, and legal transplants.

**Evidence anchor:** Part III contrasts American adequacy doctrine with Israeli statutory priority, describes doctrinal similarity, and identifies the principal enforcement venues.

**Boundary:** Legal similarity does not eliminate cultural, procedural, institutional, or market differences between Israel and the United States.

**Connections:** comparative law; remedial defaults; UCC 2-716; Restatement of Contracts; Israeli contract law; contempt; receivership; legal transplants

**Record:** `ssrn-1641438-p05` · `machine-drafted-source-checked`

## 6. Maximum-variation interviews can identify mechanisms in experienced law but cannot estimate how frequently those mechanisms occur

**Location:** Part IV, Methodology, printed pp. 384-386 (PDF pp. 16-18)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 384–386, that an exploratory qualitative design is appropriate where scholarship lacks parties' internal accounts of legal experience. From randomly ordered database cases, he attempted contact in roughly sixty matters and obtained participation in eighteen: six private parties, eleven lawyers, and one enforcement magistrate, deliberately seeking variation rather than statistical representativeness. Semi-structured interviews reconstructed case facts, motivations, pre- and post-trial experiences, and hypothetical attitudes. This is significant because the method supports existence and mechanism claims while expressly withholding prevalence estimates. It connects to qualitative legal research, maximum-variation sampling, semi-structured interviews, law in action, purposive sampling, response bias, IRB review, and substantive representativeness.

**Evidence anchor:** Part IV explains case identification, recruitment, participant composition, maximum variation, the interview protocol, and the distinction between phenomena and distributions.

**Boundary:** The response rate was about 36 percent, defendants and losing parties were sparse, recollections may be biased, and the sample cannot quantify incidence.

**Connections:** qualitative legal research; maximum variation; semi-structured interviews; law in action; purposive sampling; response bias; IRB; substantive representativeness

**Record:** `ssrn-1641438-p06` · `machine-drafted-source-checked`

## 7. Many plaintiffs choose expectation damages even when specific performance is legally available and theoretically more valuable

**Location:** Part V.A, Why Parties Do Not Sue, printed pp. 386-388 (PDF pp. 18-20)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 386–388, that plaintiffs regularly opt out of Israel's specific-performance default. A supplementary case review found the remedy requested in 102 of 300 analyzed contract cases—roughly one third—and interviewed lawyers also reported advising damages in matters including settlements. The interviews identify three mechanisms: weak enforceability, lawyers' fee incentives, and changing client preferences during slow litigation. This is significant because ready legal availability and predicted bargaining value do not translate into routine demand for the remedy. It connects to revealed remedial preference, default effects, expectation damages, plaintiff choice, litigation selection, civil-law practice, lawyer advice, and enforcement risk.

**Evidence anchor:** Part V opens with the opt-out finding, describes the 300-case review, adds lawyer reports, and previews enforceability, agency, and temporal-preference explanations.

**Boundary:** The case review excludes settlements and the interview study is not frequency-representative; 'many' is supported, but a population rate is not.

**Connections:** remedial preference; default effects; expectation damages; plaintiff choice; litigation selection; civil-law practice; lawyer advice; enforcement risk

**Record:** `ssrn-1641438-p07` · `machine-drafted-source-checked`

## 8. Weak practical enforceability can make a specific-performance judgment a worse bargaining chip than an expectation-damages award

**Location:** Part V.A.1, Low Enforceability, printed pp. 388 (PDF pp. 20)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on page 388, that a plaintiff uninterested in actual performance cannot assume a decree will be saleable at a premium. If implementation is difficult, renegotiation may never occur; even if it does, a promisor who expects to evade enforcement will pay little for release. The settlement value can therefore fall below expectation damages. This is significant because the property-rule intuition that specific performance strengthens bargaining power depends on the credibility of the enforcement threat behind the entitlement. It connects to bargaining leverage, credible threats, judgment value, enforcement probability, outside options, property rules, undercompensation, and settlement.

**Evidence anchor:** Part V.A.1 explains the two channels—renegotiation failure and reduced settlement price—through which weak enforcement lowers the ex ante value of suing for performance.

**Boundary:** The section states an implication developed through later interview evidence; it does not estimate the discount that enforcement risk places on decrees.

**Connections:** bargaining leverage; credible threats; judgment value; enforcement probability; outside options; property rules; undercompensation; settlement

**Record:** `ssrn-1641438-p08` · `machine-drafted-source-checked`

## 9. Attorney compensation and collection rules can bias remedial advice toward damages even when specific performance better serves the client

**Location:** Part V.A.2, The Lawyers' Agency Problem, printed pp. 388-389 (PDF pp. 20-21)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 388–389, that plaintiff and lawyer may value remedies differently. Under contingency fees, designing and enforcing a decree adds uncompensated work and requires costly valuation of noncash performance; under other fee arrangements, a damages award supplies liquidity and supports a lawyer's lien, while a good or service does not. Attorneys therefore have a systematic private incentive to recommend money damages and may disguise self-interest as legal judgment. This is significant because remedial choice made through counsel need not reveal the promisee's own preferences or welfare. It connects to principal–agent problems, contingency fees, attorney liens, professional responsibility, liquidity, valuation costs, legal advice, and remedial design.

**Evidence anchor:** Part V.A.2 ties attorney preferences to uncompensated decree work, valuation difficulty, client liquidity, and lien security, supported by lawyer interviews.

**Boundary:** Interview evidence identifies a plausible and reported bias but cannot determine how often advice is self-interested rather than based on legitimate enforcement concerns.

**Connections:** principal-agent problems; contingency fees; attorney liens; professional responsibility; liquidity; valuation costs; legal advice; remedial design

**Record:** `ssrn-1641438-p09` · `machine-drafted-source-checked`

## 10. Long litigation makes specific performance expose plaintiffs to changes in taste and deteriorating relationships that damages avoid

**Location:** Part V.A.3, Preferences over Time, printed pp. 389-390 (PDF pp. 21-22)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 389–390, that the value of future performance is dynamically uncertain. A buyer of a delayed luxury car may no longer want that model or brand years later, and litigation itself can turn a once-benign contractual relationship into mistrust and animosity. Because a performance decree requires more future interaction than a damages award, those shifts reduce its relative value even when the promised item remains financially valuable. This is significant because remedy choice occurs before plaintiffs know their post-litigation tastes, needs, health, or relationship with the promisor. It connects to changing preferences, litigation delay, relational contracts, lock-in, real options, cy pres performance, temporal welfare, and remedial risk.

**Evidence anchor:** Part V.A.3 uses a luxury-car dispute and reports of litigation-induced animosity to show change in preferences over both the thing promised and the counterparty relationship.

**Boundary:** The mechanism is illustrated through interviews and examples rather than longitudinal measurement of preference change across a representative set of cases.

**Connections:** changing preferences; litigation delay; relational contracts; lock-in; real options; approximate performance; temporal welfare; remedial risk

**Record:** `ssrn-1641438-p10` · `machine-drafted-source-checked`

## 11. Choosing specific performance can signal good faith and case merit to a court, compelling plaintiffs to seek it even when they prefer money

**Location:** Part V.B.1, Signaling, printed pp. 390-391 (PDF pp. 22-23)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 390–391, that a plaintiff's remedy request can operate as evidence. Where contractual fault is contested and judges praise performance's moral superiority, opting for money may suggest that the plaintiff abandoned the bargain, behaves opportunistically, or is merely 'in it for the money.' A plaintiff may therefore request specific performance to signal sincerity and improve the chance of prevailing even if neither side ultimately wants the transaction performed. This is significant because the menu of remedies changes adjudicative behavior and can force costly signaling rather than simply satisfy remedial preference. It connects to signaling theory, good faith, litigation strategy, remedy choice, costly signals, judicial inference, procedural justice, and default effects.

**Evidence anchor:** Part V.B.1 reports counsel's concern that seeking damages communicates insincerity and explains why the signal can rationally influence both courts and plaintiffs.

**Boundary:** The evidence is based on lawyers' beliefs about judicial inference rather than a study of judges' actual decisions or causal effects of remedy requests.

**Connections:** signaling theory; good faith; litigation strategy; remedy choice; costly signals; judicial inference; procedural justice; default effects

**Record:** `ssrn-1641438-p11` · `machine-drafted-source-checked`

## 12. Specific-performance claims can reduce adjudication cost and delay by postponing or avoiding judicial quantification of damages

**Location:** Part V.B.2, Faster and Cheaper Resolution, printed pp. 391-392 (PDF pp. 23-24)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 391–392, that a performance suit may be procedurally cheaper and faster because it avoids expert-heavy valuation of loss. This advantage can survive an intention to renegotiate later if the parties are better than a court at pricing the entitlement but need the court to allocate fault. Interviewees described separating performance and damages proceedings because the early performance determination's speed outweighed the duplication cost. This is significant because a remedy aimed nominally at delivering a thing may be selected as a procedural device for sequencing adjudication and private valuation. It connects to damages measurement, bifurcation, comparative institutional advantage, litigation cost, delay, fault determination, private ordering, and procedural strategy.

**Evidence anchor:** Part V.B.2 explains avoided damages proof, comparative advantages in fault and valuation, and an interview example involving separated claims.

**Boundary:** Specific decrees can themselves be costly to formulate or supervise, and the relative savings depend on case-specific valuation and enforcement costs.

**Connections:** damages measurement; bifurcation; institutional competence; litigation cost; delay; fault determination; private ordering; procedural strategy

**Record:** `ssrn-1641438-p12` · `machine-drafted-source-checked`

## 13. Some plaintiffs seek specific performance in order to sell the resulting entitlement after judgment rather than to compel performance

**Location:** Part V.B.3, Post-Judgment Renegotiation, printed pp. 392 (PDF pp. 24)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on page 392, that interviews confirm at least some plaintiffs are motivated by the prospect of selling the decree back to the promisor. This instrumental use accords with economic accounts of property-rule bargaining even though earlier nuisance research found post-judgment trade scarce and rights-based accounts justify the remedy through the promised performance itself. This is significant because identical pleadings can express radically different objectives: vindication, actual delivery, litigation economy, signaling, or bargaining leverage. It connects to post-judgment renegotiation, property rules, hold-up, plaintiff motivation, remedy pluralism, efficient breach, bargaining chips, and stated versus revealed purpose.

**Evidence anchor:** Part V.B.3 reports interview evidence of ex post sale motives and contrasts it with both economic prediction and earlier empirical work on injunctions.

**Boundary:** The interviews establish that the motive exists in some cases but do not show its prevalence or whether anticipated trades ultimately succeed.

**Connections:** post-judgment renegotiation; property rules; hold-up; plaintiff motivation; remedy pluralism; efficient breach; bargaining leverage; revealed purpose

**Record:** `ssrn-1641438-p13` · `machine-drafted-source-checked`

## 14. Post-judgment renegotiation sometimes succeeds, but potential gains from trade do not ensure that parties will even try to bargain

**Location:** Part VI, Post-Judgment Renegotiation, printed pp. 392-394 (PDF pp. 24-26)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 392–394, that the interviews neither confirm universal Coasean bargaining nor the complete absence reported in earlier nuisance research. Two respondents described successful trades, including a house-title decree settled after years of avoidance for half its judgment value; another negotiation failed amid mistrust and hard bargaining; and some parties made no attempt despite apparent gains. This is significant because contract parties' prior ability to bargain does not guarantee that litigation survivors will renegotiate a sticky judicial entitlement. It connects to Coasean bargaining, gains from trade, post-judgment settlement, mistrust, litigation trauma, enforcement avoidance, bilateral monopoly, and judgment stickiness.

**Evidence anchor:** Part VI catalogs successful, failed, and unattempted renegotiations and uses the cases to motivate psychological explanations beyond transaction costs.

**Boundary:** The small, nonrepresentative set cannot estimate renegotiation rates, observe unrealized gains directly, or separate psychological from strategic bargaining failure.

**Connections:** Coasean bargaining; gains from trade; post-judgment settlement; mistrust; litigation trauma; enforcement avoidance; bilateral monopoly; judgment stickiness

**Record:** `ssrn-1641438-p14` · `machine-drafted-source-checked`

## 15. Litigation-induced animosity can both obstruct renegotiation through mistrust and encourage it by making continued interaction costly

**Location:** Part VI, Animosity, printed pp. 393-394 (PDF pp. 25-26)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 393–394, that animosity has no single directional effect on post-judgment bargaining. Entrenched mistrust and spite can make settlement offers look like legal traps and cause talks to collapse; yet a performance decree prolongs interaction, so mutual dislike can also increase both sides' desire to buy their way out. The net effect depends on the case. This is significant because psychological conflict cannot simply be inserted into a model as a fixed transaction-cost increase; it changes both the feasibility and the value of settlement. It connects to affective bargaining, mistrust, spite, relational breakdown, transaction costs, settlement incentives, litigation psychology, and ambiguous comparative statics.

**Evidence anchor:** Part VI describes a failed exchange treated as a trap and then explains the opposing bargaining effects of dislike when performance requires further contact.

**Boundary:** Interview narratives cannot isolate animosity from legal strategy, bargaining position, or information problems, and the combined effect remains explicitly indeterminate.

**Connections:** affective bargaining; mistrust; spite; relational breakdown; transaction costs; settlement incentives; litigation psychology; comparative statics

**Record:** `ssrn-1641438-p15` · `machine-drafted-source-checked`

## 16. A court victory can endow a plaintiff psychologically with the promised object and raise the price required to trade the decree

**Location:** Part VI, Endowment Effect, printed pp. 394-395 (PDF pp. 26-27)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 394–395, that litigation may intensify the endowment effect because a prevailing party experiences the judgment as earned, deserved, and fair. Specific performance makes the effect especially salient by attaching the entitlement to an actual good or service rather than undifferentiated money; interviewees spoke of judgments as things that belonged to them. This is significant because acquiring a decree can change subjective valuation without changing the object's attributes, narrowing the settlement range and potentially defeating mutually beneficial trade. It connects to the endowment effect, entitlement framing, reference dependence, earned ownership, behavioral law and economics, willingness to accept, settlement range, and judicial allocation.

**Evidence anchor:** Part VI links experimental literature on earned entitlements with parties' ownership rhetoric and explains how the resulting valuation gap can prevent renegotiation.

**Boundary:** The qualitative study cannot prove an endowment effect or distinguish created subjective value from bias and strategic overstatement.

**Connections:** endowment effect; entitlement framing; reference dependence; earned ownership; behavioral law and economics; willingness to accept; settlement range; judicial allocation

**Record:** `ssrn-1641438-p16` · `machine-drafted-source-checked`

## 17. Individual plaintiffs often resist commodifying specific-performance judgments, while corporate clients more readily translate them into money

**Location:** Part VI, Incommensurability Bias, printed pp. 395-396 (PDF pp. 27-28)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 395–396, that litigants may treat a decree as qualitatively different from cash even while conceding they would sell for a sufficiently high price. Individual plaintiffs attach symbolic meaning to a specific apartment, building, good, or fulfilled promise but do not actively seek a monetizing bargain; lawyers for large firms report that corporate clients find monetary conversion natural. He calls this an incommensurability bias. This is significant because perceived category boundaries, not merely bargaining expense, can make a legally tradable entitlement practically sticky and can vary by organizational form. It connects to commodification, incommensurability, symbolic value, corporate decision-making, monetary valuation, identity, property rules, and heterogeneity.

**Evidence anchor:** Part VI reports recurring resistance to monetary framing, hypothetical willingness to sell without active bargaining, and lawyers' contrasting descriptions of corporate clients.

**Boundary:** The term describes interview patterns rather than a validated psychometric construct, and corporations constitute a substantial share of litigation, limiting generalization from individuals.

**Connections:** commodification; incommensurability; symbolic value; corporate decision-making; monetary valuation; identity; property rules; heterogeneity

**Record:** `ssrn-1641438-p17` · `machine-drafted-source-checked`

## 18. Specific-performance decrees are frequently costly, incomplete, or ineffective and can undercompensate promisees even relative to damages

**Location:** Part VII, Implementing Specific Performance, printed pp. 396-398 (PDF pp. 28-30)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 396–398, that doctrine and theory often infer adequate compensation from an order to perform, especially when goods are unique and damages supposedly inadequate. Most interviewees, however, reported negative enforcement experiences; some decrees were delayed, deficient, or never fully implemented. Because compliance requires cooperation, quality control, and further expense, the realized value may fall below both promised performance and an expectation award. This is significant because equitable relief does not automatically cure damages' undercompensation and can create its own more severe shortfall. It connects to judgment execution, compensatory adequacy, equitable remedies, compliance, unique goods, underperformance, enforcement costs, and remedial comparison.

**Evidence anchor:** Part VII contrasts UCC and Restatement adequacy premises with interview reports that most parties encountered implementation problems and some orders were not fulfilled.

**Boundary:** The participant sample may overrepresent contested or difficult cases, and negative opinions do not yield a comparative expected-value estimate across remedies.

**Connections:** judgment execution; compensatory adequacy; equitable remedies; compliance; unique goods; underperformance; enforcement costs; remedial comparison

**Record:** `ssrn-1641438-p18` · `machine-drafted-source-checked`

## 19. Remedy comparison must recognize that ordinary contracts are sometimes underperformed and expectation damages can overcompensate relative to the degraded performance a resistant promisor would actually supply

**Location:** Part VII, The Proper Performance Baseline, printed pp. 397-398 (PDF pp. 29-30)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 397–398, that analysts use the wrong baseline when they compare a decree with perfect contractual performance. Even voluntary contracts can be underperformed, and breach signals increased performance cost that may encourage corner cutting; litigation can add spite. Expectation damages are undercompensatory in familiar doctrinal ways, but they can be overcompensatory relative to the low-quality output a reluctant promisor would have delivered because the award assumes full performance. This is significant because neither formal expectancy nor ordered performance maps cleanly onto the counterfactual value the promisee would have received. It connects to counterfactual baselines, substantial performance, quality shading, expectancy, efficient breach, moral hazard, compensatory measurement, and second-best remedies.

**Evidence anchor:** Part VII contrasts full-performance assumptions with ordinary quality shortfalls, increased breach cost, animosity, and the full-performance premise embedded in expectation damages.

**Boundary:** The relative magnitude of ordinary underperformance, post-breach degradation, and doctrinal damages discounts is not quantified.

**Connections:** counterfactual baselines; substantial performance; quality shading; expectation interest; efficient breach; moral hazard; compensatory measurement; second-best remedies

**Record:** `ssrn-1641438-p19` · `machine-drafted-source-checked`

## 20. Animosity does not inevitably prevent adequate performance, especially when ordinary business incentives and clear obligations remain operative

**Location:** Part VII.A, Animosity, printed pp. 398-399 (PDF pp. 30-31)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 398–399, that hostility's practical importance can be overstated. A firm that won enforcement of a multimillion-dollar finance agreement later reported excellent day-to-day cooperation with the bank, and a consumer eventually received a custom door installed exactly as ordered. These cases suggest that reputational, commercial, and specification-based drivers of ordinary performance can survive litigation, perhaps especially when organizations are involved. This is significant because courts should not presume either that compelled relationships always collapse or that judicial victory erases relational risk. It connects to relational repair, business reputation, repeat interaction, compelled cooperation, specific performance, organizational behavior, contract implementation, and case-specific equity.

**Evidence anchor:** Part VII.A describes the finance and custom-door cases and infers that ordinary performance drivers may continue after judgment.

**Boundary:** A handful of successful implementations cannot establish when animosity is harmless or whether business parties systematically perform better than individuals.

**Connections:** relational repair; business reputation; repeat interaction; compelled cooperation; specific performance; organizational behavior; contract implementation; equity

**Record:** `ssrn-1641438-p20` · `machine-drafted-source-checked`

## 21. Specific performance works best when courts can verify a finished product against clear standards, making uniqueness both a reason to grant the remedy and a reason it may fail

**Location:** Part VII.B, Costly Supervision and Lack of Standards, printed pp. 399-400 (PDF pp. 31-32)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 399–400, that continuous judicial supervision is not always necessary if completed work can be cheaply tested against detailed specifications, as the custom-door case illustrates. But when effort is hard to monitor and the output lacks close substitutes or objective standards, neither supervision nor ex post verification assures quality. This creates an irony: the uniqueness that makes damages hard to calculate also makes defective performance hard to detect and correct. This is significant because American doctrine directs specific relief toward the cases in which its quality-control technology may be weakest. It connects to verifiability, incomplete contracts, quality standards, unique goods, judicial supervision, performance measurement, information costs, and remedial fit.

**Evidence anchor:** Part VII.B contrasts costly ongoing monitoring with finished-product verification, uses the door specifications as a success, and explains the unique-good quality-standard problem.

**Boundary:** Some unique goods have detailed specifications and some standardized services remain hard to monitor, so uniqueness and verifiability are related but not equivalent.

**Connections:** verifiability; incomplete contracts; quality standards; unique goods; judicial supervision; performance measurement; information costs; remedial fit

**Record:** `ssrn-1641438-p21` · `machine-drafted-source-checked`

## 22. A receiver can sometimes enforce technically complex performance by directing the promisor's organization and using its embedded expertise

**Location:** Part VII.B, Receivership, printed pp. 399-400 (PDF pp. 31-32)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 399–400, that receivership supplies a third enforcement mechanism beyond judicial monitoring and end-product inspection. A receiver placed over a promisor's business can direct employees who possess the necessary know-how, even when the court lacks technical expertise; one studied case used the mechanism effectively, with the defendant bearing the receiver's salary. This is significant because organizational control may translate a general decree into specialized execution without requiring a judge to supervise every act. It connects to receivership, organizational knowledge, delegated enforcement, court administration, embedded expertise, compliance governance, cost shifting, and equitable discretion.

**Evidence anchor:** The end of Part VII.B describes the receiver mechanism, its use of employee expertise, its cost allocation, and one successful case.

**Boundary:** The evidence is one effective case, receivership is costly and intrusive, and the article calls for further analysis rather than general adoption.

**Connections:** receivership; organizational knowledge; delegated enforcement; court administration; embedded expertise; compliance governance; cost shifting; equitable discretion

**Record:** `ssrn-1641438-p22` · `machine-drafted-source-checked`

## 23. Specific-performance plaintiffs must actively coordinate, monitor, and finance enforcement after judgment, although doctrine tends to count public supervision costs instead

**Location:** Part VII.C, Post-Judgment Costs and Liquidity, printed pp. 400-401 (PDF pp. 32-33)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 400–401, that the private costs of implementation are systematically undercounted. Every successful collection in the interviews followed active plaintiff contact, while the one passive plaintiff received no performance. Coordination, administration, and monitoring consume money and time; unlike money judgments, specific relief lacks a broad collection industry. A plaintiff depleted by litigation may therefore own a valid decree but lack liquidity to realize it, as illustrated by a parking-space order unperformed six years later after the plaintiff became ill. This is significant because nominal victory transfers enforcement labor and solvency risk to the promisee. It connects to access to justice, judgment collection, plaintiff liquidity, enforcement industry, monitoring costs, legal mobilization, illness, and rights realization.

**Evidence anchor:** Part VII.C contrasts doctrinal focus on court cost with interview evidence on claimant activity, explains the missing enforcement market, and gives the unperformed parking-space case.

**Boundary:** The observed association between plaintiff activity and success does not prove that every passive decree fails or that additional action would have secured compliance.

**Connections:** access to justice; judgment collection; plaintiff liquidity; enforcement industry; monitoring costs; legal mobilization; illness; rights realization

**Record:** `ssrn-1641438-p23` · `machine-drafted-source-checked`

## 24. Specific performance is not a reliable answer to judgment-proof defendants because contempt is usually enforced financially and courts resist incarceration for contractual noncompliance

**Location:** Part VII.D, Capitalization and the Judgment-Proof Problem, printed pp. 401 (PDF pp. 33)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on page 401, that the supposed advantage of ordering an insolvent defendant to perform ignores how the order is enforced. Contempt formally permits monetary or criminal sanctions, but courts are highly reluctant to jail contract promisors; the remaining financial threat has little force against a poorly capitalized defendant. One lawyer described such defendants as literal 'outlaws' because ordinary legal pressure cannot reach them. This is significant because substituting an in-kind command for an uncollectible damages award does not create leverage when both ultimately depend on assets. It connects to judgment-proof defendants, contempt, insolvency, sanctions, deterrence, coercive enforcement, asset constraints, and remedial substitution.

**Evidence anchor:** Part VII.D contrasts the theoretical insolvency advantage with actual contempt practice and explains why financial sanctions lose force against undercapitalized promisors.

**Boundary:** Nonfinancial leverage, reputational capital, physical control of assets, or feasible receivership may still make performance enforceable in some low-capitalization cases.

**Connections:** judgment proof; contempt; insolvency; sanctions; deterrence; coercive enforcement; asset constraints; remedial substitution

**Record:** `ssrn-1641438-p24` · `machine-drafted-source-checked`

## 25. Reputational capital can make a decree enforceable even when it was insufficient to prevent the initial breach, so reputation operates in contingent and stage-specific ways

**Location:** Part VII.E, Defendant Reputation, printed pp. 401-402 (PDF pp. 33-34)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 401–402, that reputation can substitute for weak financial or criminal enforcement and reduce monitoring needs. Interviewees associated successful performance with defendants who had valuable reputations and failures with those who did not. Yet reputation did not prevent the contracts from being breached in the first place; it became strong enough only after a court judgment altered the stakes. This is significant because reputation is not a binary trait that either replaces law or does nothing; its force depends on the legal stage, audience, and threatened signal. It connects to reputational capital, relational enforcement, court judgments, repeat players, market sanctions, legal–social interaction, compliance, and stage dependence.

**Evidence anchor:** Part VII.E reports lawyers' emphasis on reputation, links strong reputation to successful cases, and notes its failure to deter breach but success in supporting obedience.

**Boundary:** Interview correlations do not identify the precise reputational audience or show that reputation, rather than capitalization or organization, caused compliance.

**Connections:** reputational capital; relational enforcement; court judgments; repeat players; market sanctions; legal-social interaction; compliance; stage dependence

**Record:** `ssrn-1641438-p25` · `machine-drafted-source-checked`

## 26. Social pressure can initially support compliance and later legitimate defiance as group composition and norms change

**Location:** Part VII.F, Social Norms and Pressures, printed pp. 402-403 (PDF pp. 34-35)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 402–403, that social norms are contingent sources of enforcement rather than reliably procompliance forces. A cooperative member initially felt shame while resisting a house-transfer decree, but drew strength when other indebted members joined him and recast the dispute as a collective division; five years later, the cooperative settled for about half the original debt. This is significant because the same community that stigmatizes nonperformance can normalize and coordinate it as identities and coalitions change. It connects to social norms, collective action, shame, norm cascades, cooperative governance, judgment resistance, informal enforcement, and endogenous preferences.

**Evidence anchor:** Part VII.F traces the Moshav member's changing social position, prolonged noncompliance, and discounted settlement to show the bidirectional force of norms.

**Boundary:** The proposition rests on one detailed case and does not specify when social environments will reinforce rather than undermine compliance.

**Connections:** social norms; collective action; shame; norm cascades; cooperative governance; judgment resistance; informal enforcement; endogenous preferences

**Record:** `ssrn-1641438-p26` · `machine-drafted-source-checked`

## 27. Rights-based theories must confront frequent instrumental uses of specific performance rather than dismiss them as immoral or marginal by-products

**Location:** Part VIII.A, Rights-Based Theories, printed pp. 403-405 (PDF pp. 35-37)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 403–405, that plaintiffs use performance decrees to hold up promisors, signal merit, or reduce procedural cost—not solely to obtain the promised act. A deontologist cannot answer simply that such uses are morally impermissible, because legal rights exist precisely where conduct cannot be trusted to remain moral and there is no cause of action against plaintiff hold-up. Nor can theory assume the effects are marginal when the study finds them repeatedly; that is an empirical premise requiring evidence. This is significant because a right justified by promise keeping may authorize outcomes not entailed by the promise. It connects to deontology, instrumental rights, moral hazard, hold-up, promissory obligation, legal entitlement, unintended consequences, and empirical jurisprudence.

**Evidence anchor:** Part VIII.A lists instrumental motives and rejects moral-impermissibility and marginal-by-product responses as inadequate without empirical support.

**Boundary:** The sample suggests instrumental motives are recurrent but cannot establish their overall frequency or settle how much consequence-sensitive weight a rights theory must assign them.

**Connections:** deontology; instrumental rights; moral hazard; hold-up; promissory obligation; legal entitlement; unintended consequences; empirical jurisprudence

**Record:** `ssrn-1641438-p27` · `machine-drafted-source-checked`

## 28. Corrective-justice theories cannot assume specific performance compensates, and giving the promisee a choice may itself cause signaling and agency harms

**Location:** Part VIII.A, Compensation and Remedial Choice, printed pp. 404-406 (PDF pp. 36-38)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 404–406, that costly policing, resistant promisors, and claimant illiquidity can make specific performance less compensatory than damages. Allowing promisees to choose seems to protect them, but choice is not neutral: judicial signaling may compel an unwanted performance claim, while lawyers may steer clients toward cash for private fee reasons. Combining performance and damages may sometimes help, yet rights-based theories still must explain the divergence between a legal right, actual performance, and promisee welfare. This is significant because formal autonomy over remedies can reduce rather than increase substantive autonomy or compensation. It connects to corrective justice, remedial election, agency costs, signaling, combined remedies, autonomy, undercompensation, and second-best design.

**Evidence anchor:** Part VIII.A applies enforcement, signaling, and lawyer-agency findings to compensation and explains why a remedy option or combined award remains theoretically incomplete.

**Boundary:** The article identifies opposing mechanisms but does not offer a complete rights-based ranking of choice, mandatory performance, damages, or hybrid awards.

**Connections:** corrective justice; remedial election; agency costs; signaling; combined remedies; autonomy; undercompensation; second-best design

**Record:** `ssrn-1641438-p28` · `machine-drafted-source-checked`

## 29. Weak enforcement means specific performance need not deliver performance-level value, strong deterrence, or insurance for subjective valuation

**Location:** Part VIII.B, Economic Theories, printed pp. 406-407 (PDF pp. 38-39)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 406–407, that economic analysis often overstates the decree's payoff. A system built mainly to collect money may lack expertise for in-kind relief, particularly with unique goods, thinly capitalized parties, or weak reputational and social pressure. The result may be neither performance nor a settlement above expectancy; promisors can be underdeterred from inefficient breach, and promisees do not receive reliable insurance for subjective value. This is significant because describing specific performance as analogous to a punitive sanction reverses reality when damages are easier to collect. It connects to deterrence, subjective-value insurance, enforcement technology, efficient breach, judgment collection, pecuniary remedies, risk aversion, and institutional capacity.

**Evidence anchor:** Part VIII.B applies the execution findings to transfer value, deterrence, and insurance and contrasts in-kind expertise with mature money-collection systems.

**Boundary:** Enforcement weakness varies across transactions, defendants, and institutions, so the finding supports conditional analysis rather than a universal preference for damages.

**Connections:** deterrence; subjective value; enforcement technology; efficient breach; judgment collection; money damages; risk aversion; institutional capacity

**Record:** `ssrn-1641438-p29` · `machine-drafted-source-checked`

## 30. Behavioral reluctance to commodify judgments can defeat post-judgment trade even when conventional transaction costs are low

**Location:** Part VIII.B, Judgment Stickiness, printed pp. 407 (PDF pp. 39)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on page 407, that animosity, endowment, and incommensurability can make decrees sticky in precisely the two-party contractual settings where economists expect low bargaining costs. If promisees refuse to negotiate or assign exceptionally high subjective prices after judgment, a wrongly allocated right will not be traded to its efficient user. This is significant because the Coasean prediction that parties 'already know how to bargain' omits preferences and frames created by litigation and entitlement. It connects to behavioral law and economics, Coase theorem, entitlement effects, commodification, bargaining breakdown, low transaction costs, inefficient allocation, and sticky rights.

**Evidence anchor:** Part VIII.B synthesizes the renegotiation findings and explains why contract familiarity and bilateral structure do not guarantee trade after judgment.

**Boundary:** Failed bargaining may reflect private information or strategic demands as well as the proposed psychological mechanisms, and the study cannot measure forgone surplus.

**Connections:** behavioral law and economics; Coase theorem; entitlement effects; commodification; bargaining breakdown; transaction costs; inefficient allocation; sticky rights

**Record:** `ssrn-1641438-p30` · `machine-drafted-source-checked`

## 31. Economic analysis should model opposing strategic effects of remedial choice, qualify flood-of-litigation fears, and target specific performance to verifiable domains

**Location:** Part VIII.B, Choice and Domain Refinement, printed pp. 407-408 (PDF pp. 39-40)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 407–408, that allowing plaintiffs to elect remedies pushes behavior in opposite directions: signaling can induce excessive performance claims, while lawyer incentives can induce excessive damages claims. Israel's low observed demand, echoed in other civil-law jurisdictions, also weakens predictions that liberal availability will flood courts with supervision-heavy suits. The enforcement evidence instead supports finer domain rules, such as favoring performance when clear quality standards exist. This is significant because optimal remedy design requires a holistic model of litigants, counsel, adjudication, and implementation rather than one formal choice variable. It connects to option design, litigation volume, judicial supervision, verifiability, strategic interaction, comparative evidence, domain rules, and welfare analysis.

**Evidence anchor:** Part VIII.B discusses signaling and lawyer bias, qualifies flood concerns with Israeli and comparative evidence, and proposes clear standards as a domain refinement.

**Boundary:** Low use in Israel does not directly predict the response to expanded American relief, and the article does not estimate the welfare weights of competing mechanisms.

**Connections:** option design; litigation volume; judicial supervision; verifiability; strategic interaction; comparative evidence; domain rules; welfare analysis

**Record:** `ssrn-1641438-p31` · `machine-drafted-source-checked`

## 32. Courts should strengthen implementation through calibrated financial sanctions, receivers, cost shifting, deficiency awards, and inexpensive quality-review mechanisms

**Location:** Part VIII.C, Enforcement Reform, printed pp. 408-409 (PDF pp. 40-41)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 408–409, that improving specific performance requires institutional machinery, not simply broader entitlement. Criminal contempt carries grave error and liberty costs, but more liberal financial sanctions and receivership may help. Because both damages and performance often undercompensate, courts can add deficiency awards, shift enforcement costs to promisors, and create inexpensive forums—potentially arbitrators or receivers—to identify substandard performance and impose adequate consequences. This is significant because a decree's remedial value is designed after judgment through monitoring, complaint, and sanction channels. It connects to remedial engineering, contempt, receivership, deficiency judgments, fee shifting, arbitration, quality review, and access to enforcement.

**Evidence anchor:** Part VIII.C weighs criminal, financial, and receivership sanctions and proposes supplemental compensation, claimant-cost allocation, and low-cost quality supervision.

**Boundary:** The proposals are exploratory, can increase administrative and error costs, and require comparative evaluation of institutional competence and funding.

**Connections:** remedial engineering; contempt; receivership; deficiency judgments; cost shifting; arbitration; quality review; enforcement access

**Record:** `ssrn-1641438-p32` · `machine-drafted-source-checked`

## 33. Courts should assess specific performance by verifiability and actual enforceability rather than presume that unique goods or uncollectible damages make it adequate

**Location:** Part VIII.C, Doctrinal Availability, printed pp. 408-409 (PDF pp. 40-41)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 408–409, that the two familiar gateways to equitable relief can point in the wrong direction. Unique subject matter makes market damages difficult but often deprives courts of standards for detecting poor performance; an insolvent defendant may be unable to pay damages but equally resistant to financially enforced contempt. Judges seeking compensation should compare remedies in the circumstances, including their ability to identify substandard performance, rather than treat inadequacy of damages as proof of adequacy of performance. This is significant because remedial doctrines need separate tests for the weakness of the legal remedy and the strength of the equitable one. It connects to equitable adequacy, unique goods, insolvency, verifiability, comparative remedies, UCC remedies, Restatement section 360, and judicial discretion.

**Evidence anchor:** Part VIII.C applies the unique-good and judgment-proof findings to American adequacy doctrine and urges comparative, circumstance-specific assessment.

**Boundary:** Case-by-case comparison may increase uncertainty and adjudication cost, and courts still need evidence and metrics for expected enforcement quality.

**Connections:** equitable adequacy; unique goods; insolvency; verifiability; comparative remedies; UCC remedies; Restatement 360; judicial discretion

**Record:** `ssrn-1641438-p33` · `machine-drafted-source-checked`

## 34. Remedy administration should account for distorted plaintiff choice, preference change during delay, and lawyers' conflicts of interest

**Location:** Part VIII.C, Choice, Timing, and Professional Ethics, printed pp. 409-410 (PDF pp. 41-42)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on pages 409–410, that judges should not assume plaintiffs select the best compensatory remedy when judicial signaling and attorney self-interest pull in opposing directions. If legal policy wants performance to remain valuable, courts must address the delay during which tastes and relationships change, perhaps through priority or interim relief. Professional-ethics rules should also confront lawyers' incentive to favor damages that increase remuneration and ease collection. This is significant because better substantive doctrine can still fail through procedure and conflicted advice before a decree is entered. It connects to judicial discretion, interim relief, docket priority, dynamic preferences, attorney conflicts, professional ethics, informed consent, and procedural design.

**Evidence anchor:** Part VIII.C recommends attention to judicial override, delay, interim remedies, and professional regulation of the lawyer-agency problem.

**Boundary:** Priority can delay other cases, interim measures create error costs, and ethics enforcement must distinguish self-serving advice from sound preference for collectable damages.

**Connections:** judicial discretion; interim relief; docket priority; dynamic preferences; attorney conflicts; professional ethics; informed consent; procedural design

**Record:** `ssrn-1641438-p34` · `machine-drafted-source-checked`

## 35. Contract-remedy theory needs contextual qualitative evidence about internal motivations and implementation, followed by broader comparative samples before definitive prescription

**Location:** Conclusion, printed pp. 410 (PDF pp. 42)

Professor Yonathan A. Arbel claims, in “Contract Remedies in Action: Specific Performance” on page 410, that studying litigation 'from the inside' reveals practices more complex than prevailing theory: parties respond to overlapping incentives, limits, relationships, and unintended effects at every remedial stage. The present interviews illuminate oversights but are neither exhaustive nor conclusive; future research should include damages recipients, more losing parties, and individuals and organizations of different sizes. This is significant because normative debate without empirical sensitivity risks remaining an intellectual exercise whose assumed remedy never resembles experienced law. It connects to qualitative empiricism, contextual jurisprudence, law in action, mixed-method research, comparative sampling, theory revision, external validity, and remedial realism.

**Evidence anchor:** The conclusion summarizes the inside perspective, identifies the study as nonconclusive, specifies missing comparison groups, and calls for empirically informed remedy theory.

**Boundary:** The article expressly calls for larger and more varied evidence before definitive measures or population claims are justified.

**Connections:** qualitative empiricism; contextual jurisprudence; law in action; mixed methods; comparative sampling; theory revision; external validity; remedial realism

**Record:** `ssrn-1641438-p35` · `machine-drafted-source-checked`