The purchaser of real estate has two general remedies where the seller refuses to convey according to the contract.
Considering now the case of a purchaser of real estate under a contract of sale which has not been carried out by the seller, that is, where no deed has been given by him, we may say that his remedy is either to sue for damages or to have specific performance. We know that in the ordinary case of a breach of contract there may be only a suit for damages but that in some classes of cases a court of equity will compel specific performance, that is, the carrying out of the contract as agreed upon. Sales of real estate constitute one of these classes.
A purchaser of real estate may compel the seller to give him the deed where the contract has been fair and the purchaser has done his part.
If the purchaser desires he may appeal to a court of equity where the seller refuses to give him a deed and have a decree of specific performance. He must in such a case show that he is not guilty of a breach of the contract and he must furthermore show that he has not driven a hard bargain. In case he has made an unjust contract the court will leave him to his remedy in an action for damages, yet the court will not refuse him specific performance for the simple reason that he has obtained a good bargain if there has been nothing unconscionable in his bargain.If the seller's title is defective but the buyer is willing to take it the buyer may have a decree for specific performance with a sum to be allowed him from the purchase price to offset the defect.
The buyer may sue for damages for breach of the contract by the seller and he will be allowed such damages as the seller should have foreseen would result from his breach.
If the buyer desires he may, instead of filing a bill for specific performance, file a suit for damages. Assuming that the buyer is not guilty of a breach of the contract he may have damages for breach by the seller. Damages will be allowed him which he has actually sustained and which the seller should have foreseen from all the circumstances that he would sustain if the contract were broken. These damages might be the difference between the contract price and the market price or there might be damages arising out of special circumstances in any given case.
The seller may have specific performance against the buyer.
Just as the buyer may have specific performance, so may the seller on his part have this same remedy in case of a breach by the buyer.
If the seller's remedy is defective he cannot compel the buyer to take it by specific performance because he cannot show that he is not in a condition to perform his part of the agreement but even in such a case it has been held that if the defects are slight the seller may still have specific performance if he allows a sum to offset the defect. In such a case, however, the defect must be trivial as compared with the whole value of the bargain and not of a serious or enduring nature.
If the buyer refuses to perform the seller may sue him in damages.
If the seller has performed his part of the agreement or made all proper tenders he may sue the seller for the damages which he has sustained from the loss of the bargain