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This article provides a brief summary of the factual and legal issues which must be established when one of the parties to a contract seeks specific performance of agreement against another.
A decree of specific performance is an equitable remedy granted at the discretion of a trial court. It can be granted only when: 1) the plaintiff is clearly entitled to it, 2) there is no adequate remedy at law, and 3) the judge believes that justice requires it. In order to invoke the remedy of specific performance, the plaintiff must do more than merely prove his case by a preponderance of the evidence. He must prove the contract as alleged in his complaint by competent and satisfactory proof which must be clear, definite, and certain. Otherwise, the trial court has no discretion to award specific performance. Thus, the plaintiff must prove that as a condition precedent to specific performance it has either paid the contract sum; tendered it, was ready, willing and able to do so; or was excused from so doing.
A plaintiff can prove it was financially ready and able to buy if it had (1) had the needed cash in hand, or (2) was personally possessed of assets-which in part may consist of the property to be purchased-and a credit rating which would enable it with reasonable certainty to command the requisite funds at the required time, or (3) had definitely arranged to raise the necessary money or as much thereof as it is unable to supply personally by obtaining a binding commitment for a loan to it for that purpose by a financially able third party, irrespective of whether such loan be secured in part by the property to be purchased.Contact Us
With extensive courtroom, arbitration and mediation experience and an in-depth understanding of commercial litigation, elder abuse, exploitation and securities law, our firm provides all of our clients with the personal service they deserve. Handling cases worth $25,000 or more, we represent clients throughout Florida and across the United States, as well as for foreign individuals that invested in U.S. banks or brokerage firms. Contact us to arrange your free initial consultation.