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What is the difference between specific performance and a mandatory injunction?My...
What is the difference between specific performance and a mandatory injunction?
My course notes describe a mandatory injunction as "requiring some act to be done" and specific performance as "requiring the performance of the obligations of the parties" - is that not the same thing?
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This is a complex question but let me see if i can hit the high points. Both are known as remedies as opposed to causes of action. Specific performance is a remedy based in contract law. Ordinarily, when there is a breach of contract, the damages one usually claims is money. That is known as a legal remedy. But what if money doesn't serve as a complete remedy? One may seek fora judge to fashion a unique remedy. This power in the court to make up or create a remedy specific to the parties is known as equity.
As a general rule one may not seek an equitable remedy if a remedy at law is available. One equitable remedy is specific performance. It is asking the court to make a breaching party to a contract to specifically perform what he/she was supposed to perform. One common specific performance is a seller's breach of an agreement of sale for real estate. Real estate is considered unique enough that money damages does not offer a complete remedy. So a judge can direct that the seller convey the property. An equitable court order is referred to as a decree.
An injunction is a remedy that covers a much broader spectrum. Typically injunctions are sought to prevent someone from performing a duty, such as keeping a government entity from enforcing a law. One requirement of an injunction is irreparable harm.
Posted by rienzi on March 25, 2012 at 9:20 PM (Answer #1)
The term MANDATORY may be a misnomer, as an Injunction is only mandatory when a court rules on it.
While one court would issue an Injunction, Temporary or Permanent, another may not.
Judical Discretion is the key here. IF a ruling is wrong, the party appealing will cite errors in law, mostly known as an "Abuse of Discretion".
"Abuse" does not mean a deliberate malicious ruling opposite of what the law is, but simply an error.
Posted by bor on March 26, 2012 at 5:37 AM (Answer #2)
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