Law Essay Example | Topics and Well Written Essays - 1000 words - 3

Law - Essay Example 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 pla intiff (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 plaintiff's reliance on the existence of a contract. It does not ma tter 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 c ontractor 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