Henrietta, an elderly widow, who is in poor health asks her granddaughter, Susan, to move into her

house with her. Henrietta tells Susan that she does not expect to live much longer but that if she takes
care of her in her final days, she will leave the house by will to her. Susan, a nurse practitioner, on faith
of Henrietta’s oral promise, moves in with her and attends to her grandmother until she passes away
two years later. Henrietta then learns that her grandmother had failed to leave the house to her by will
as she had promised.

Advise Susan

Response:

Issue:
Whether the contract can be brought out of the purview of the Statute of Frauds?
Whether Susan can obtain the property promised to her by Henrietta?
Whether a valid contract would have been formed between Henrietta and Susan prior to
Henrietta’s Death?
If damages are adequate?
Whether Susan actions would be adequate to amount to part performance?

Rule:
- Specific Performance is an equitable remedy ordered by the court of equity that requires or which
requires a party to perform a specific act, usually what is stated in a contract
- It’s granted when damages are inadequate because ordinarily for a breach of contract damages is
awarded.
- Therefore, Specific Performance to be awarded, damages must not be an adequate remedy.
Examples where specific performance may be granted are Contracts for the sale of Land, as the
court regard every single parcel of land unique, in relation to unique chattels, for example share in
a private company.
- However, in Sky Petroleum v VIP Petroleum, the court reasoned that specific performance would
normally be refused on the basis that damages would be sufficient. however, where the defendant
was the only supplier and the only method which would enable the plaintiff to carry on their
business, an injunction would be granted as damages would no longer be a sufficient remedy.
- Specific Performance orders are Discretionary. As with all equitable remedies, the availability of
this remedy will depend on whether it is appropriate in the circumstances of the case. The
discretion is exercised based on established principles.

- The contract must be valid or enforceable at law. In Jeffrey v Jeffery the court established that the
consideration must be necessary. Also as established in Joseph v National Magazine Co. ltd , a
vague agreement will not be enforceable.

- Regarding Contracts which relate to the interest in land, by virtue of the statutes of frauds, the
agreement establishing the conveyance of land must be in writing. Hence, there must be a
memorandum in writing which must identify the land in question and also that the parol evidence
rule can be used to expand or clarify what is meant to be a part of the agreement. Its ca also be
correspondence between lawyers. In the case of Brown v Simpson, the court reasoned that the
nature of the agreement can be established by the exchange of correspondence between
attorneys.

- The control of the court is governed by equitable principles. The equitable relief sought by the
claimant will not be granted if it would be unjust to grant it. In Johnson v Agnew it was the
purchaser’s fault that it had become impossible to enforce the order making the vendor entitled to
its discharge and the termination of the contract in addition to damages at common law for breach
of contract.

- By applying for specific performance, the claimant puts into the hands of the court how the contract
is to be carried out. The performance of the contract is regulated by the provisions of the order and
not those of the contract. In Singh v Nazeer a purchaser was granted specific performance of a
contract for sale of land. The purchaser then delayed, so the vendor served a completion notice
and claimed damages and forfeiture of the deposit. The court held that the completion notice was
invalid. The machinery provisions of the contract, for example as to mode and date of completion,
were intended to apply to performance out of court.
- Due to the strictness of the requirement by the Statute of Frauds require that certain types of
contracts, wills, and grants, assignment or surrender of leases or interest in real property must be
in writing and signed to avoid fraud on the court by perjury and subornation of perjury and the court
will not enforce the oral agreement - some remedy other than specific performance ( damages)
would have to be sought. The doctrine of part performance is a creature of the courts of equity to
mitigate the hardships created by the strictness of the requirements of the Statute of Frauds.
- In order to withdraw a contract from the operation of the statute of frauds, the following
circumstances must be met
1. The acts of part performance must be such as to not only be referable to a contract such as that
alleged, but to be referable to no other title
- 2. They must be such as to render it a fraud in the defendant to take advantage of the contract not
being in writing
- 3. The contract to which they refer must be such as in its own nature is enforceable by the court
- 4. There must be proper parol evidence of the contract which is let in by the acts of part
performance

- In Maddison v Alderson, the plaintiff held there was an agreement that if she performed duties as a
housekeeper for him until his death for no wages, he would give her an interest in his house. The
court refused to uphold the agreement. Earl of Selbourne LC: the acts relied upon as part
performance must be unequivocally, and in their own nature, referable to some such agreement as
alleged.

- However, In Wakeman v McKenzie, the court reasoned that the giving up of the plaintiff's flat in
order to make her home at B's house, her moving into that house, her acts in looking after B and
the house and in paying for her board and coal were acts of part performance which must be
referred to some contract, and were referable to the contract that she alleged; accordingly the court
would decree specific performance of the oral contract by B with the plaintiff that she should have
his house and contents after his death.

- The current state of the law is established in the case of Steadman v Steadman where the court
was not as strict in the formalities of the doctrine of Part Performance. The held that: (i) In order to
 establish facts amounting to part performance it was necessary for a plaintiff to show that he had
acted to his detriment and that the acts in question were such as to indicate on a balance of
probabilities that they had been performed in reliance on a contract with the defendant which was
consistent with the contract alleged. There was no general rule that the payment of a sum of
money could never constitute part performance.

Application:
By virtue of the Statute of Fraud, Susan would not receive an interest in the property because it is
required that the conveyance or transfer of land must be in writing and her grandmother had
failed to leave the house to her by will as she had promised.
However, The Doctrine of Part Performance would have been able to rebut the strict formalities
required by the statute. Part Performance as Highlighted in Maddison states that the acts relied
upon as part performance must be unequivocally, and in their own nature, referable to some such
agreement as alleged. In order to withdraw a contract from the operation of the statute of frauds,
the following circumstances must be met.
Susan action did not amount to part performance because it was not referable to the contract of
the land. It was condition precedent to the formation of the contract.
In Maddison case, which is similar the present facts, there was an agreement that if the plaintiff
performed duties as a housekeeper for him until his death for no wages, he would give her an interest in his
house. The court refused to uphold the agreement because the act by the plaintiff was not referable to a
contract related to the land. Similarly, in the present facts, Susan’s actions are condition precedent to the
formation of the contract and go no further so as to indicate a pursuance of an executed contract.
In Wakeman v McKenzie, the court reasoned that the fact the plaintiff gave up her flat to live with that the
giving up of the plaintiff's flat in order to make her home at B's house, her moving into that house, her acts
in looking after B and the house and in paying for her board and coal were acts of part performance which
must be referred to some contract, and were referable to the contract that she alleged; accordingly the
court would decree specific performance of the oral contract by B with the plaintiff that she should have his
house and contents after his death.
Additionally, if she had done acts like those of the claimant in Phillip v Bisnott like building on the land and
making parameter fence, these may be sufficient acts to be able to refer to the contract in relation to the
land.
With reference to Steadman v Steadman , the court reasoned that In order to establish facts amounting to
part performance it was necessary for a plaintiff to show that he had acted to his detriment and that the acts
in question were such as to indicate on a balance of probabilities that they had been performed in reliance
on a contract with the defendant which was consistent with the contract alleged. If Susan wishes to
specifically perform the oral contract between herself and Henrietta she have to prove that her action were
clearly and unequivocally referable to the contract.
There was nothing in writing to refer to an executed contract and due to lack of facts, it is uncertain if
witnesses were present when the oral agreement was made. Therefore, there was no sufficient parol
evidence of the contract.
The court would be mindful of the fact that the defendant cannot fraudulently take advantage of the contract
by denying it specific performance. In these circumstances, her actions did not amount to sufficient act of
part performance and so it would be fraudulent on the part of the court to grant her part performance for an
invalid contract.

Conclusion:
- the contract cannot be brought out of the purview of the Statute of Frauds
- Susan cannot obtain the property
- There was no enforceable contract between Susan and Henrietta
- Susan would not amount to part performance
- Damages may be granted.