Published online by Cambridge University Press: 10 November 2010
The standard remedy for breach of contract is monetary damages. However, under certain circumstances – notably, when the subject matter of the contract is “unique” – the victim of a breach can obtain specific performance. There has been considerable debate about the appropriate scope of the specific performance remedy and about its efficacy relative to damages in varying contexts. Anthony Kronman (1978) argues that the uniqueness distinction is an appropriate one for demarcating the domain of the specific performance remedy. Steven Shavell (1984) emphasizes the distinction between contracts “to do” and contracts “to give.” Alan Schwartz (1979) and Thomas Ulen (1984) argue that the specific performance remedy should be routinely available to promisees. All of these invoke economic analysis to justify their conclusions. In Selection [5.1], William Bishop provides another economic analysis that proposes a slight modification of Shavell's distinction. I present some further thoughts on the specific performance remedy in Selection [5.2]. Part V concludes with Timothy Muris's [5.3] analysis of the merits of two alternative damage measures: the cost of completion versus diminution of value. Analytically, the problem turns out to be nearly the same as the specific performance versus damages question.
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