Can party agreements for specific performance or injunction or agreements that damages will not be an adequate remedy for breach of contract serve any purpose other than delusion or wishful thinking? Even when they are included as a term of a contract, remedial preference in the face of breach and commercial pragmatism coupled with orthodox legal advice is likely to weigh heavily against party reliance on these terms. This article examines what legal purpose, if any, is served by parties expressly stipulating for specific performance of their contractual obligations, including by injunction. While acknowledging that party agreements of this nature cannot oust or bind the exercise of judicial discretion, it argues that both theoretical and practical considerations indicate that these terms should be a significant factor in the decision whether or not to order specific performance or to grant an injunction for breach of contract.
Robyn Carroll, ‘Agreements to Specifically Perform Contractual Obligations’ (2012) 29 Journal of Contract Law 155.