Dalton took the SAT exam in May 1991. He retook the exam in November 1992 and scored 410 points higher. The Educational Testing Service (ETS), which administers the exam, has a policy of flagging score differentials greater than 350 points. After analyzing handwriting on the two tests, ETS concluded that someone else may have taken the exam for Dalton. Before the exam, Dalton signed a contract with ETS stating that if he was flagged for cheating, he had five options: Cancel the score, have a third party review it, go to an arbitrator, retake the test, or send in information relevant to whether or not he had cheated. Dalton sent in information showing that he had mononucleosis during the first test and that he had taken a prep course, and he provided affidavits from people who saw him at the test site. Testimony from the ETS showed that officials were convinced that the handwriting issue meant that Dalton had only the option to retake the test and, thus, they failed to consider the information he sent to them unless it dealt directly with the handwriting analysis. Dalton sued for specific performance to have the scores reported as official by ETS. He argued that by giving him the contractual option of sending in information relevant to the cheating accusation, the ETS had a good faith obligation under the contract to examine and fully consider what he had sent in.

CASE QUESTIONS

1. Who prevails and why?

2. Why is specific performance an option here as a remedy?