A. Under the common law, when can an injured party seek the remedy of specific performance?

Question

b. How does the Code change the common law rule?
c. Compare and contrast the remedies of replevin and specific performance.

Answer 1

a. Specific performance is an equitable remedy compelling the party in breach to perform the contract according to its terms. At common law, specific performance is available only if legal remedies are inadequate.
b. The Code seeks to further a more liberal attitude toward the availability of specific performance. It does not expressly require the remedy at law to be inadequate. Instead, the Code states that "specific performance may be decreed where the goods are unique or in other proper circumstances." Section 2-7161.. The Code comment to that section explains that the test of uniqueness must be made in view of the total situation characterizing the contract.
c. Replevin is a legal remedy, whereas specific performance is an equitable one. The two are similar in that they both result in a court order directing that the goods be turned over to the aggrieved party. Replevin does not require that the goods be unique. It is frequently used in cases involving a security interest where the debtor has defaulted on the loan agreement and refuses to turn over the goods to the holder of the security interest.