In our last post, we discussed when monetary damages might be applicable in breach of commercial real estate contract cases and, if monetary damages are not applicable, what other types of remedies are available. Additional remedies would include:

  • Restitution;
  • Rescission;
  • Reformation; and
  • Specific performance.

If monetary damages do not apply to your case, you may still be able to compensate for the breach via one of these four legal means. Our Birmingham real estate attorneys at Cloud Willis & Ellis can help you review your options and determine which is best for your situation. 


Restitution is designed to return the offended party to the position in which he or she was pre-contract negotiations. Parties who are interested in restitution do not want damages for lost earnings; rather, they just want to be compensated, really, for their waste of time. Restitution typically applies when contracts are voided due to defendants’ incompetence or incapacity (Section 8-1-170), and when such a void has made the plaintiff worse off than before he or she entered the contract.


Rescission refers to a remedy that essentially terminates the contractual duties of both parties. Rescission may occur when one or both parties enter the contract by undue influence, fraud, duress, or even mistake. A contract that was formed under fraudulent misrepresentation is never valid in the U.S. If rescission applies, the plaintiff may be able to recover benefit-of-the-bargain damages, which is a monetary amount equal to the value of what the plaintiff would have gained had the contract been fulfilled.


Reformation refers to the remedy that grants courts the right to modify the content of a commercial real estate contract to make it enforceable and/or not-fraudulent. A judge might choose this option if the person who fraudulently misrepresented him or herself or the building did so unintentionally and via a simple miswording. That said, courts are hesitant to rewrite contracts to echo both parties’ intentions, as the parties can do that themselves.

Specific Performance 

Specific performance is the second most commonly used remedy in breach of commercial real estate contract cases. Specific performance simply means that the court forces both parties to follow through with all of or specific provisions of the contract. This type of remedy is only available when monetary damages will not suffice to compensate the plaintiff.

Retain the Help of a Commercial Real Estate Attorney 

Breach of contract almost always causes headache for the party that intended to follow through with the contract. This is especially true when commercial real estate is involved. As we mentioned in our last post, commercial real estate is not easy to come by, and it is not easy to sell. Then there is the amount of time invested in contract negotiations and the handling of other transaction details. If you feel that you are in a worse position because of a breach of a real estate contract, reach out to the Alabama real estate attorneys at Cloud Willis & Ellis to learn more about your legal options.