Taylor & Taylor: Contract Law Directions 
Glossary
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Chapter 12 Question 4
Question
Specific performance should be the primary remedy for breach of contract. Discuss.
Answer
This is how you might plan your essay, paragraph by paragraph (take about 5-10 minutes for this in an exam, depending on how long you have to answer the question):
Paragraph 1 - Introduction: brief outline of the current law. The questions asks should specific performance be the primary remedy and so you should focus on this normative question, but you cannot sensibly do this until you have introduced the current law.
Paragraph 2 - Justification for the current law. By explaining why damages are currently the primary remedy for breach of contract you introduce reasons against the statement posed.
Paragraph 3 - Is this a compelling justification? Here you can attack the current position in order to produce a balanced argument.
Paragraph 4 - How can the position be improved to address your criticisms?
Conclusion - Wrap up what you have argued in a short neat one or two sentence paragraph. It's good if this can relate to your introduction so that the essay has come full circle.
Paragraph 1 - Current Law
Primary remedy is damages - aim is to put C in position as though contract performed (protect expectation interest) - limits to this e.g. duty to mitigate loss and remoteness rules. Specific performance is secondary remedy available at courts discretion - limited to where damages are inadequate - other limits e.g. personal contracts, supervision, mutuality, etc.
Paragraph 2 - Justification
Two reasons:
Damages encourage efficient breach e.g. breach contract and provide service to person who values service more.
Damages contain duty to mitigate loss so C encouraged to put himself in the position as though contract performed - parties move on quickly from a breach - specific performance encourages C to do nothing and rely on court to bring him to position of full performance.
Paragraph 3 - Compelling justification?
Not really - aim of damages is to put C in position as though contract performed but the most obvious way of doing this is to order specific performance - currently damages do not accurately compensate lost performance even if they do provide efficient and quick solution to breach.
Paragraph 4 - Improvements
Damages need to match performance more accurately - e.g. 'consumer surplus cases' Ruxleygive cost of cure to more accurately reflect performance consumer bargained for? Skinner already gives damages for non-pecuniary loss - more accurately compensates for lost performance.
Paragraph 5 - Conclusion
Aim of contract law to protect performance - damages appropriate as primary remedy because of incentive provided by duty to mitigate and efficient breach theory - despite specific performance being the more obvious choice for protecting performance.
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