Specific Performance

Proceeding by which a court compels an obligor to carry out his contract rather than make him pay damages in money for the breach of it. In English-American law the phrase is used almost exclusively in reference to a contract to convey land at a future time or upon compliance with given terms. Rabbinical law was well acquainted with methods for compelling a defendant to obey decrees, and the phrase "they compel him" () is often found in the Mishnah. The compulsion might be by excommunication, by imprisonment, or by flogging; there are, for instance, circumstances under which a man might be compelled to give a bill of divorce to his wife (Ket. vii. 10). But compulsion might not be applied to enforce a contract to convey or to buy land, or to complete a purchase or sale of anything in the future, because all such contracts were held to be void. There might be an action for not building or conveying a house, or for not transferring a garden of given dimensions (see Sale of Lands), which action would sound in damages; but there was no remedy, even in damages, for failure to sell or convey a specified house or lot; and the more efficient remedy of specific performance was out of the question. The codes ("Yad," Mekirah, i.; Shulḥan 'Aruk, Ḥoshen Mishpaṭ, 189), at the very opening of the chapters on purchase and sale, declare that, unless title ("ḳinyan") has been conferred in the manner proper to each kind of property (see Alienation), either party to a contract may recede therefrom (lit. "turn back"). B. M. iv. 1 and the Gemara commenting thereon are conclusive for this position.

W. B. L. N. D.