Difference between the two Doctrines and Their Application to Construction Cases - Essay Example

DOCTRINES OF SPECIFIC PERFORMANCE AND PARTIAL PERFORMANCE AND THEIR RELEVANCE TO CONSTRUCTION CONTRACTS Introduction: As the world modernizes so is the drive of the people to cope up with the fast changing lifestyle. To cope up, people build and erect modern, highly commendable architectural designs in the buildings and houses. Verily, the construction of these buildings takes a lot of process involving preparation where paper works started to fill in and later execution of contracts for building or houses. This essay will try to enlighten the readers on the two doctrines that were rarely ordered in breach of construction contracts. These doctrines are specific performance and partial performance. When and how these doctrines were invoked and why they are rarely ordered in construction cases are the major points to consider in this essay. Doctrine of Specific Performance This doctrine of specific performance is a remedy granted by the court in cases where there is breach of duty or contract committed either by the owner or by the contractor. It is an equitable remedy that compels a party to execute a contract according to the precise terms agreed upon or to execute it substantially so that, under the circumstances, justice will be done between the parties ( Hill, 2005). It is the right of the party to a contract to demand that the defendant (the party who it is claimed breached the contract) be ordered in the judgment to perform the contract. Specific performance may be ordered instead of (or in addition to) a judgment for money if the contract can still be performed, and money cannot sufficiently reward the plaintiff (Ibid). The basis for the grant of this remedy is equity. Doctrine of Partial Performance The doctrine of partial performance is an exception to the requirement prescribed by the Statute of Frauds that any agreement to transfer land must be written and executed. Partial Performance of an oral agreement can render it as a binding contract (Gervais et al, 2010). The essence of this doctrine was that if the plaintiff could show that he or she had acted under the contract - had partly performed the contract - then a court of equity would enforce the contract even though a court of law would not. The doctrine of part performance requires that the plaintiff must be able to show that he or she has made a substantial commitment to the contract so that it would be unconscionable to allow the defence. Note that it must be the acts of the plaintiff. The doctrine is based on the idea of unconscionability generated by the plaintiffs reliance on the existence of a contract. It does not matter whether the acts of the defendants clearly show that there is a contract (Heffey et al. 1998). Difference between the two doctrines and their application to construction cases The invocation of Specific Performance is based on a written contract or any agreement entered into by the parties. And non-performance of any provision or stipulation in the contract will make the erring party liable for breach of contract and an action for specific performance will be granted as in the case of Kasten Construction Co. v. Maple Ridge Construction Co. There is no blanket prohibition against a court ordering the equitable relief of specific performance in a case involving breach of a construction contract as held in the case of Granite Broadway Dev. LLC v. 1711 LLC. However, this doctrine of specific performance is rarely a remedy in construction cases. If a contractor fails to perform or renders defective performance, it is unlikely than the owner will want the court to order the same contractor to continue the work. Instead, contract damages are the primary remedy in construction cases (Wanek, nd). The doctrine of partial performance on the other hand is invoked based on the intention of the parties strengthened by the fact that it was partially performed. In Elsberry v. Sexton, the Supreme Court of Florida unequivocally held that part performance is an equitable doctrine only and is not available in actions for damages at law. The basis of the claim of part performance is not the contract itself but the ‘equities resulting from the acts done in execution of the contract’ (JC Williamson Ltd v Lukey & Mulholland). To invoke the doctrine of part performance a party must prove by clear and convincing evidence (1) that the parties did enter into a contract; (2) that the party seeking to enforce the contract partially performed the contract; and (3) that the performance was induced by the other party’s misrepresentations, which may include acquiescence or silence (Sullivan vs. Porter). In construction cases, courts do not normally order specific performance of construction contract because money damages are usually adequate to remedy the breach ad because of perceived difficulties in supervising and enforcing long-term building contract (Cushman et al., 2001). Both these doctrines work in favor of the plaintiff who has shown that he/she has complied all the obligations in the contract and have clean hands, meaning the plaintiff has not acted in such a way as to cause the breach by the defendant (Dunham 2009). Conclusion As discussed above, a party to a contract has remedy in case of breach of contract where the other party has reneged or failed to perform his duty under the terms stipulated in the agreement whether oral or written. The remedy for written agreement is the doctrine of specific performance, which the court grants based on equity and in case of oral contracts, the doctrine of partial performance as long as the requirements are complied with before being granted. The court was given wide discretion in the grant of these remedies. Verily, these are viable only if the one seeking it has nothing to do with the breach committed by the other party to the contract. However, these doctrines are rarely the first intention of the party filing an action for breach of construction cases, which is usually the recovery of damages. Word count: 1001 Reference List Gerard N. Hill and Kathleen T. Hill. Specific Performance. Available at The Free Dictionary by Farlex. [Accessed: May 4, 2011]. Website: http://legal-dictionary.thefreedictionary.com/Specific+performance Borden Ladner Gervais et al. When part performance can make an unexecuted agreement binding. Date Published: January 28, 2010. Available at Association of Corporate Counsel Website. [Accessed: May 4, 2011]. Website: http://www.lexology.com/library/detail.aspx?g=17e5daab-d3c4-4580-8c98-beb99b6125ce Heffey, Patterson and Locker. Contract Commentary and Materials. 8th Edition 1998. LBC Information Services. [Accessed on May 4, 2011]. Website: http://law.anu.edu.au/colin/Lectures/writing.htm Kasten Construction Co. v. Maple Ridge Construction Co., 245 Md. 373, 226 A.2d 341, 1967 Md. Available at Law Riot Website. [Accessed on May 4, 2011]. Website: http://lawriot.com/2010/03/kasten-construction-co-v-maple-ridge-construction-co-case-brief/ Granite Broadway Dev. LLC v. 1711 LLC , 845 N.Y.S.2d 10 (N.Y. App. Div. 2007). Available at Find Law for Legal Professional Website. [Accessed on May 4, 2011]. Website: http://caselaw.findlaw.com/ny-supreme-court-appellate-division/1467661.html Peter J. Wanek, State of Louisiana Construction Law Compendium. McCranie,  Sistrunk,  Anzelmo,  Hardy,  Maxwell  &  McDaniel,  PC. Retrieved from http://www.uslaw.org/files/public/LA_Construction_09.pdf. [Accessed on May 4, 2011]. Elsberry v. Sexton, 61 Fla. 162 (1911), 54 So. 592. [Accessed on May 4, 2011]. Retrieved from http://law.justia.com/cases/federal/appellate-courts/F2/947/455/153598/ JC Williamson Ltd v Lukey & Mulholland, 45 CLR 282 (1931). [Accessed on May 4, 2011]. Retrieved from http://www.australiancontractlaw.com/cases/jcwilliamson.html Joan Sullivan et al., vs. Merval Porter Jr. et al., 861 A.2d 625 (2004). [Accessed on May 4, 2011]. Retrieved from http://www.lawnix.com/cases/sullivan-porter.html Robert Frank Cushman, John D. Carter and Paul J. Gorman. Construction Dispute: representing the contractor. (2001). [Accessed on May 4, 2011]. Website: http://books.google.com.ph/books?id=rlqG2hhmaH8C&lpg=PA129&ots=Jdc3zlWn0k&dq=specific%20performance%20of%20construction%20contracts&pg=PA822#v=onepage&q=specific%20performance%20of%20construction%20contracts&f=false Beth Walston-Dunham. Introduction to Law 5th Edition. (2008) Delmar Cengage Learning. [Accessed on line on May 4, 2011]. Website: http://books.google.com.ph/books?id=mleVxfhOUHIC&pg=PA442&lpg=PA442&dq=specific+performance+favors+the&source Table of Contents Page Introduction 1 The Doctrine of Specific Performance 1 The Doctrine of Partial Performance 1 Difference between the two doctrines and their Applications to Construction Cases 2 Conclusion 3 Reference List Read More