REMEDIES SAMPLES PART 2
Specific performance is a significant remedy within the civil law. Analyse the nature of the remedy and
discuss why the application as a remedy for breach of contract tends to be limited.
Where common law remedies are inadequate to compensate the claimant, there is a range of equitable
remedies available. Specific performance is a significant equitable remedy, but it is to be noted that like
all equitable remedies, it is not available as of right as is awarded at the discretion of the court. The
judge takes into account the behavior of both the parties and the overall justice of the case to determine
whether the granting of the remedy is appropriate. Thus, in practice, the granting of the remedy is
subject to certain limitations.
An order of specific performance is a court order compelling a party under a contract to perform their
obligations. This is an important remedy in the situation that common law damages are inadequate. The
law restricts the availability of this remedy to contracts for unique property such as land which cannot
be replaced in the event of breach. In this instance, specific performance can be relied on as it is the
only way to uphold the expectation interest of the parties. Similarly, when damages awarded would
only be nominal, specific performance is the more appropriate remedy to prevent one party from being
unjustly enriched. In Beswick v Beswick, the claimants husband had a claim against his nephew for
payment of annuities during his life and after his death to his widow. Upon his death, his wife sued as
an executor of his estate and since the estate suffered no loss, the amount of damages awarded would
have been nominal. The court ordered specific performance to reverse the nephews unjust enrichment,
preventing him from keeping the whole benefit of the contract to himself. Thus, specific performance
is an important equitable remedy which ensures a remedy for the claimant in situations where the
claimant is disadvantaged by the common law.
As outlined above, this remedy is subject to the limitation of the subject matter of contract being unique.
Where the goods subject to the contract are freely available and an exact replacement of the property
can be acquired, the innocent party is restricted to claiming damages from the party in breach. This is
justified since it satisfies contract laws aim of allowing the parties to be compensated enough for them
to be in a position had the contract been performed. The measure of damages would be to satisfy the
expectation interest of the parties. There is no need in such an instance to compel performance of the
contract. Equity also aims to strike a balance between the interests of the claimant and the defendant
and thus in instances where the remedy proves to cause some hardship to the defendant, it will be denied.
In Patel v Ali, the husband of the seller of a house became disabled and bankrupt before the contract
for the sale of the house could be performed. The court refused specific performance despite it being a
unique property as moving in such circumstances would cause hardship. Equity means fairness and
these cases uphold the fact that the remedies in equity are granted based on notions of justice and good
conscience. The limitations exist to ensure that the defendants rights are equally taken into
consideration.
In furtherance to the equitable maxim ‘he who comes to equity must come with clean hands’, specific
performance is denied when a contract has been obtained through unfair means. In Walters v Morgan,
the defendant had agreed to grant the claimant a mining lease on land purchased. Since the claimant
had taken advantage of the fact that the defendant did not know the value of the lease at the time of the
agreement, specific performance was denied. In addition, there are some contracts which are not suitable
for the remedy of specific performance. One such contract is a contract of services or employment. The
justification for this is that it would be an infringement upon ones personal autonomy, liberty and
freedom of choice if one is compelled to perform a contract of service. Similarly, the court does not
grant specific performance for a contract which requires continuous duties. In Ryan v Mutual, the lease
of a flat promised tenants that there would be a porter ‘constantly in attendance.’ The court refused
specific performance since to uphold such a promise, constant supervision was required which is
impractical. However an opposite outcome was reached in Posner v Scott Lewis where the tenants
successfully enforced the landlords obligation of providing a resident porter. The court was willing to
balance the impracticality of supervision against the hardship caused if specific performance is not
granted. Thus, considerations of justice and freedom are also looked upon to decide whether specific
performance is justified.
Another reason for denying specific performance in such cases is that when an order of specific
performance is breached, it leads to a charge of contempt of court. For cases of continuous duties, the
courts would want to avoid a series of actions for contempt of court. In Cooperative Insurance society
Ltd, the claimants had granted the defendants a 35 yr lease for the operation of a supermarket in a
shopping centre with the objective of attracting more customers to the centre. The contract stipulated
that the supermarket would remain open during business hours, but the defendant shut down the market.
The HOL refused specific performance in such a case even though damages would indeed be an
inadequate remedy in this instance. The only tool to compel performance with the order was the
draconian criminal sanction of contempt of court which Lord Hoffman felt was an unsuitable rod to
hang over a commercial party being compelled to trade. Although the shopping society incurred losses
due to the breach, the result of ordering someone to run a business which was uneconomic would be
completely out of proportion to that caused by the original breach of contract. Thus, the order for
specific performance is limited due to these policy considerations.
Finally, it is also important to mention that specific performance may not be applied to a contract which
is vague as to the performance required, nor to a promise which is only supported by nominal
consideration or a promise contained in a deed. If the contract allows the innocent party to terminate
the contract, specific performance is not granted since the party could easily exercise their right to
terminate. The remedy is subject to the principle of mutuality which means that it is not ordered against
a defendant if it could not have been ordered against the claimant had he/she been the party in breach.
Thus, specific performance can never be ordered when the claimant is a minor because it cannot be
ordered against a minor to compel performance. These limitations once again aim to promote certainty
within the law such that the law is not contradictory.
In conclusion, equity with its discretionary remedy of specific performance mitigates the harshness of
the common law especially when common law damages prove inadequate. However, a number of
limitations are imposed to safeguard the freedom and autonomy of litigants, strike a balance between
claimants and defendants interests and uphold notions of justice and good conscience.