Specific Performance, Certain Terms

Specific performance is an order and/or judgment from the Court compelling a party to a contract to perform his, her or its contractual duty(ies). It is typically ordered in lieu of damages for breach of contract. An order in specific performance, however, presumes that there is an underlying contract and that there are certain agreed-upon terms.

A contract is not complete until the proposition of one is presented to the other and accepted as presented. Revere Copper & Brass v. Manufacturers’ Metals & Chemicals, 662 S.W.2d 866, 870 (Mo. Ct. App. 1983). It is sometimes unclear when a contract has been accepted. A signature on a contract remains the “common, though not exclusive, method of demonstrating agreement.” Morrow v. Hallmark Cards, Inc., 273 S.W.3d 15, 22-23 (Mo. Ct. App. 2008). “Assent can be shown in other ways, such as by the parties’ conduct.” Heritage Roofing, LLC v. Fischer, 164 S.W.3d 128, 134 (Mo. Ct. App. 2005). By adding terms to an offer, however, this can constitute a rejection of the offer and counteroffer. Londoff v. Conrad, 749 S.W.2d 463, 465 (Mo. Ct. App. 1988).

To obtain specific performance, the requesting must meet its burden by clear, convincing and satisfactory evidence. Landmark Bank v. First National Bank in Madison, 738 S.W.2d 922, 923 (Mo. Ct. App. 1987).

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