Section 4.25 Mutuality of Obligation and Remedy

• Library: Contracts 2016 Supp

3. (§4.25) Mutuality of Obligation and Remedy

Plaintiffs have argued for specific performance when the defendant could perform, even when an adequate remedy at law was available. Eisenbeis v. Shillington, 159 S.W.2d 641 (Mo. 1941). This is known as the doctrine of affirmative mutuality. The Restatement of Contracts (1932) held that this was not a sufficient reason for granting specific performance, but that it could be a factor in determining whether specific performance should be granted. Restatement of Contracts § 372(2).

The courts are in agreement that “lack of mutuality” is sufficient grounds for refusing to grant specific performance. They are not in agreement, however, on what that phrase means. The early law held that if, at the time the contract was entered into, the plaintiff’s breach would not have entitled the defendant to specific performance, specific performance would be denied to the plaintiff. Thus, a plaintiff’s lawyer who had performed his part of the contract was denied specific performance of a...