미국 계약법상 특정이행에 대한 고찰—미국 계약법 보통법전집 규정을 중심으로—

When a party to a contract fails to perform as agreed, a breach of contract occurs. In most cases, the remedy for breach of contract is damages. In exceptional cases, the law allows for specific performance to force the other party to fulfill the contract (Article 389 of the Korean Civil Code). However, as an exceptional remedy, specific performance under the Civil Code has not worked well. In that regard, this article examines specific performance in U.S. contract law. In related areas, injunctions will also be dealt with. Under American contract law, specific performance and injunctions are substitutes for damages by enforcing the contract. As remedies, specific performance and injunctions originated in courts of equity, where it is within the discretion of the court to order these remedies. However, the Restatement (Second) of Contracts has imposed several limitations on such specific performance and injunctions. For example, specific performance or injunctions are not authorized where damages are the appropriate remedy. Other limitations on the availability of these specific performance and injunctive remedies include uncertainty of the contract terms (Restatement (Second) of Contracts § 362), insecurity of the agreed exchange (§ 363), unfairness (§ 364), public policy (§ 365), and difficulty of enforcement (§ 366). This author has focused on the provisions of the Restatement (Second) of Contracts authorizing specific performance and injunctive relief in cases of breach of contract. In addition, this author has explained the meaning of the provisions, considers the relationship between specific performance and injunctive relief in specific cases, and finally proposed the implications for current Korean civil law.