Alternative Remedies — Specific Performance + Restitution

Money damages are the default remedy because they are easy to administer and do not require ongoing court supervision. But the default fails in three recurring situations, and the law has a substitute for each. When no money sum can replace the thing promised, equity orders specific performance. When the plaintiff’s profit is too speculative to prove, the reliance measure recovers what was spent. When the breaching party has been enriched at the other’s expense, restitution disgorges that benefit.

Specific performance

R2d § 359. Specific performance will not be ordered if damages would be adequate to protect the expectation interest of the injured party. The operative question is the adequacy of damages, not the physical uniqueness of the subject matter. Land and one-of-a-kind goods are the classic cases because no market substitute exists. Courts decline to compel personal services, both because supervision is impractical and because forced labor offends policy; the remedy there is an injunction against competing performance, not an order to perform.

UCC § 2-716. For the sale of goods, specific performance may be decreed where the goods are unique or “in other proper circumstances.” The official comment names inability to cover as the paradigm “other proper circumstance” — so even fungible goods can support specific performance when a market shortage leaves the buyer unable to obtain substitutes at any reasonable price.

Reliance and restitution

R2d § 349. The injured party may recover damages based on the reliance interest — expenditures made in preparation for or performance of the contract — less any loss the breaching party can prove the injured party would have suffered had the contract been performed. Reliance is the second-best measure when expectation fails the certainty filter (§ 352): a new venture that cannot prove lost profits can still recover what it spent. Recovery may not exceed the contract price.

R2d § 370. Restitution requires that a benefit have actually been conferred on the other party. Mere expenditures in preparation that confer no benefit do not give rise to a restitution interest.

R2d § 373. On the other party’s breach, the injured party may recover any benefit conferred by way of part performance or reliance, measured as the reasonable value of that benefit. Restitution looks to the breacher’s gain, not the plaintiff’s loss, and can exceed the contract price; it is the measure of choice where the contract was a losing one.

Cases

The deck works Van Wagner Advertising v. S&M Enterprises as the negative case: billboard space at a unique location, yet the court denied specific performance because damages were computable and advertising substitutes existed. Uniqueness is necessary but not sufficient — inability to cover, not physical singularity, is the operative test.

What you should be able to do

Choose the right remedy: damages first; reliance when profits are too speculative; restitution when the breacher would be unjustly enriched; specific performance when no money measure works. State the adequacy test of § 359 and the broader “other proper circumstances” branch of § 2-716. Distinguish reliance (plaintiff’s out-of-pocket) from restitution (benefit conferred on the breacher). Next class: all four remedies assume the plaintiff is a party — what about someone the contract was meant to benefit who never signed it?