Does the application of the affirmative mutuality of remedy rule in contract law vary by jurisdiction?
Question by DayinthePark: Does the application of the affirmative mutuality of remedy rule in contract law vary by jurisdiction?
I’m seeing specific performance questions on MBE practice exams, some right, some wrong, based on the application of the affirmative mutuality of remedy. I’m lost on how these answers will be graded on the bar, if the application of this rule varies by jurisdiction, or if it’s simply something that is a bit out of date in some MBE workbooks. Thanks
Affirmative mutuality of remedy applies when in a contract between two or three, one of the parties traditionally has a right in equity (specific performance). Affirmative mutuality of remedy holds that if that one party has a remedy in equity, all parties do as well. For example, historically a buyer of real property can seek specific performance if seller breaches, because the land is unique, and money damages may not adequately compensate. But traditionally, a seller’s right to specific performance wouldn’t exist becase he’s getting cash, and there is nothing unique about cash. Affirmative mutuality of remedy says the seller ALSO has the specific performance remedy. But in law text books and specifically older writings, the old one-sided idea seems to prevail. This seems to be common law as I’ve never seen a UCC reference to affirmative mutuality of remedy. Hope this clarifies.
looking at auzzie law as well as US law, I see several references, most suggesting that in both contries, mutuality of remedy is not jurisdictional, but is rather descretional. Courts can apply it whenever they feel inclined. While this is throughly interesting, it’s sure not the stuff for an MBE question.
Best answer:
Answer by gomanyes562
I don’t understand what affirmative mutuality of remedy means, but I’m sure everything varies by jurisdiction. It would be very unlikely for every country in the world to have the same rule on anything.
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