N.C.P.I.—Civil 503.03

NOTE WELL: Specific performance is a remedy

available to a party aggrieved by a breach of contract.

However, at common law, the decision to decree

specific performance is addressed to the sound

discretion of the court. Hutchins v. Honeycutt, 286

N.C. 314, 210 S.E.2d 254 (1974); Harborgate Property

Owners Ass'n., Inc. v. Mountain Lake Shores

Development Corp., 145 N.C. App. 290, 551 S.E.2d 207

(2001); Munchak Corp. (Delaware) v. Caldwell, 46 N.C.

App. 414, 265 S.E.2d 654, review allowed, 301 N.C. 94,

modified and affirmed, 301 N.C. 689, 273 S.E.2d 281

(1980).1 It is not a matter of right in equity. Tillery v.

Land, 136 N.C. 537, 48 S.E. 824 (1904). While one

seeking specific performance must allege and prove

certain predicate facts such as the formation of a valid

contract, a breach of that contract by the other party

and performance (or readiness and ability to perform)

by the party seeking specific performance, these facts

are found by the jury pursuant to the 501.00 and

502.00 series. Once those predicate facts are

determined, whether specific performance will be

decreed is a non-jury question. This note is inserted in

the remedy series to prevent the court from

inadvertently instructing the jury on this remedy.