The Case for Specific Performance

The purpose of contract remedies is to place a disappointed promisee in as good a position as he would have enjoyed had his promisor performed.'Contract law has two methods of achieving this "compensation goal": requiring the breaching party to pay damages, either to enable the promisee to purchase a substitute performance, or to replace the net gains that the promised performance would have generated; or requiring the breaching party to render the promised performance.Although the damages remedy is always available to a disappointed promisee under current law, the remedy of specific performance is available only at the discretion of the court.Moreover, courts seldom enforce contract clauses that explicitly provide for specific performance in the event of breach.This Article argues that the remedy of specific performance should be as routinely available as the damages remedy.Part I reviews the current doctrine governing specific performance.Part II argues that the damage remedy is undercompensatory more often than is generally supposed and establishes that promisees have economic incentives not to elect specific performance unless the damage remedy is likely not to provide adequate compensation.Thus, expanding the availability of specific performance would not give promisees an incentive to exploit breaching promisors.Part III goes on to show that making specific performance generally available is unlikely to result in the efficiency losses predicted by other commentators. 2 Part IV argues that expand-