USA
357 Availability of Specific Performance and Injunction
1. Subject to the rules stated in §§ 359-69, specific performance of a contract duty will be granted in the discretion of the court against a party who has committed or is threatening to commit a breach of the duty.
2. Subject to the rules stated in §§ 359-69, an injunction against breach of a contract duty will be granted in the discretion of the court against a party who has committed or is threatening to commit a breach of the duty if
- the duty is one of forbearance, or
- the duty is one to act and specific performance would be denied only for reasons that are inapplicable to an injunction.
358 Form of Order and Other Relief
1. An order of specific performance or an injunction will be so drawn as best to effectuate the purposes for which the contract was made and on such terms as justice requires. It need not be absolute in form and the performance that it requires need not be identical with that due under the contract.
2. If specific performance or an injunction is denied as to part of the performance that is due, it may nevertheless be granted as to the remainder.
3. In addition to specific performance or an injunction, damages and other relief may be awarded in the same proceeding and an indemnity against future harm may be required.
359 Effect of Adequacy of Damages
1. Specific performance or an injunction will not be ordered if damages would be adequate to protect the expectation interest of the injured party.
2. The adequacy of the damage remedy for failure to render one part of the performance due does not preclude specific performance or injunction as to the contract as a whole.
3. Specific performance or an injunction will not be refused merely because there is a remedy for breach other than damages, but such a remedy may be considered in exercising discretion under the rule stated in § 357.
360 Factors Affecting Adequacy of Damages
In determining whether the remedy in damages would be adequate, the following circumstances are significant:
- the difficulty of proving damages with reasonable certainty,
- the difficulty of procuring a suitable substitute performance by means of money awarded as damages, and
- the likelihood that an award of damages could not be collected.
361 Effect of Provision for Liquidated Damages
Specific performance or an injunction may be granted to enforce a duty even though there is a provision for liquidated damages for breach of that duty.
362 Effect of Uncertainty of Terms
Specific performance or an injunction will not be granted unless the terms of the contract are sufficiently certain to provide a basis for an appropriate order.
363 Effect of Insecurity as to the Agreed Exchange
Specific performance or an injunction may be refused if a substantial part of the agreed exchange for the performance to be compelled is unperformed and its performance is not secured to the satisfaction of the court.
364 Effect of Unfairness
1. Specific performance or an injunction will be refused if such relief would be unfair because
- the contract was induced by mistake or by unfair practices,
- the relief would cause unreasonable hardship or loss to the party in breach or to third persons, or
- the exchange is grossly inadequate or the terms of the contract are otherwise unfair.
2. Specific performance or an injunction will be granted in spite of a term of the agreement if denial of such relief would be unfair because it would cause unreasonable hardship or loss to the party seeking relief or to third persons.
365 Effect of Public Policy
Specific performance or an injunction will not be granted if the act or forbearance that would be compelled or the use of compulsion is contrary to public policy.
366 Effect of Difficulty in Enforcement or Supervision
A promise will not be specifically enforced if the character and magnitude of the performance would impose on the court burdens in enforcement or supervision that are disproportionate to the advantages to be gained from enforcement and to the harm to be suffered from its denial.
367 Contracts for Personal Service or Supervision
1. A promise to render personal service will not be specifically enforced.
2. A promise to render personal service exclusively for one employer will not be enforced by an injunction against serving another if its probable result will be to compel a performance involving personal relations the enforced continuance of which is undesirable or will be to leave the employee without other reasonable means of making a living.
368 Effect of Power of Termination
1. Specific performance or an injunction will not be granted against a party who can substantially nullify the effect of the order by exercising a power of termination or avoidance.
2. Specific performance or an injunction will not be denied merely because the party seeking relief has a power to terminate or avoid his duty unless the power could be used, in spite of the order, to deprive the other party of reasonable security for the agreed exchange for his performance.
369 Effect of Breach by Party Seeking Relief
Specific performance or an injunction may be granted in spite of a breach by the party seeking relief, unless the breach is serious enough to discharge the other party's remaining duties of performance.