13.4 SPECIFIC PERFORMANCE
13.401 In General. Because the goal of remedies for breach of a valid contract is, as explained above, to place the plaintiff in as good a position as if the contract had been fully performed, it should come as no surprise that the usual remedy for breach is money damages and that specific performance is viewed as an extraordinary remedy. "Specific performance of a contract does not lie as a matter of right, but rests in the discretion of the chancellor, and may be granted or refused under established equitable principles
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and the facts of a particular case." 206 Reiterating this rule in a 2017 case, the Virginia Supreme Court said, "The most striking feature of the remedy of specific performance is, that it is not regarded as a strict right which the court is bound to enforce, but as an extraordinary act of grace on the part of the court, to be granted only where the plaintiff makes out his case fully." 207
Specific performance and injunction are related remedies. In specific performance, the court orders the defendant to perform a positive obligation under the contract; an injunction is used to enforce a negative covenant in an agreement.
If parties, for valuable consideration, with their eyes open, contract that a particular thing shall not be done, all that a court of equity has to do is to say by way of injunction that which the parties have already said by way of covenant, that the thing shall not be done; and in such case the injunction does nothing more than give the sanction of the process of the court to that which already is the contract between the parties. It is not, then, a question of convenience or inconvenience, or of the amount of damage or injury—it is the specific performance, by the court, of that negative bargain which the parties have made, with their eyes open, between themselves. 208
13.402 Specific Performance Under the UCC. As noted above, despite the enactment of section 8.2-716, Virginia law disfavors specific performance as a remedy for breach of contracts for the sale of goods. 209 As the court explained in Klein v. PepsiCo, Inc., 210 although section 8.2-716 "permits a jilted buyer of goods to seek specific performance of the contract if the goods sought are unique, or in other proper circumstances," it "does not
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abrogate the maxim that specific performance is inappropriate where damages are recoverable and adequate." 211
13.403 Specific Performance of Real Estate Contracts. In contrast to goods, real estate has long been held by Virginia courts to be "unique," and thus specific performance has been freely granted in contracts involving real estate. "It has long been the law in Virginia that each piece of real property has 'a peculiar value.' Because the law recognizes the unique nature of real property, the right to enforce title in real property can be specifically enforced." 212
The plaintiff need not prove the "uniqueness" of the real estate in any conventional sense; the mere fact that the plaintiff considers it unique is sufficient. The rule favoring specific performance of real estate contracts also applies where there is a deficiency in what is to be conveyed. "Generally, when there is a deficiency in title, quantity, or quality of an estate, the purchaser has the option to require the seller to convey such part as the seller is able, with an abatement of the purchase price for any deficiency." 213 However, this rule is subject to an exception where the purchaser is not demanding specific performance of the contract "as far as the vendor is able," but is instead asking the court to substitute a new agreement for the one the parties actually made. 214
Restrictive covenants are routinely enforced by injunction, but as a practical matter the injunction is the equivalent of specific performance. "'[I]n such case[s], the injunction does nothing more than give the sanction of the process of the court to that which already is the contract between the parties,' and the injunction is merely 'the specific performance . . . of that negative bargain which the parties have made, with their eyes open, between themselves.'" 215
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The party need not show that the land is of peculiar value or that he could not be adequately compensated in damages for the loss of it. It is enough that he so considers and prefers to have the land in specie. That he does so is conclusively shown by his suit for specific performance. His right to bring such a suit in all cases is founded on the nature of the subject and on the advantage of having a general rule and the difficulty and inconvenience of forming exceptions thereto. 216
In a 2014 case, the Virginia Supreme Court stated that "an injunction is the appropriate remedy for enforcement of a real property right" and that "a party seeking to enforce a real covenant is generally entitled to the equitable remedy requested upon showing the validity of the covenant and its breach." 217 According to the court, "[a] defendant may avoid the imposition of the equitable remedy sought for violation of a real covenant 'if such a remedy would create a hardship or injustice that is out of proportion to the relief sought, if performance by the defendant would be impossible, or if the enforcement of the decree would be unusually difficult for the court.'" 218 The traditional balancing of the equities test does not apply in such cases. 219
13.404 Specific Performance of Other Types of Contracts. Virginia courts have developed default rules with regard to the specific performance of certain categories of contracts. For example:
| | Contracts for personal services or contracts that require the exercise of personal skill, labor, and judgment generally will not be specifically enforced. 220 (However, Virginia courts will enjoin the violation of covenants not to compete, as discussed below.) |
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| | Although partnership agreements will not be specifically enforced as a matter of course, the courts will enjoin violations of the agreement that jeopardize the rights of the remaining partners. 221 | |
| • | Domestic agreements and "family settlements" will generally be enforced specifically. 222 |
13.405 Establishing the Right to Specific Performance. In order to obtain specific performance of a contract, the plaintiff must establish that (i) there is a valid, enforceable contract between the parties; (ii) the appropriate individuals (either the parties to the contract or their privies) are before the court; (iii) the...
