ER Worksheet 5

Specific Performance & part-performance

Topic outline:
 The remedy of specific performance
 The nature of the remedy of specific performance
 The effect of an order of specific performance on other remedies
 Conditions for considering the remedy of specific performance
 Grounds for refusal of specific performance
 Specific performance with respect to third parties
 Defences to the remedy of specific performance
 The doctrine of part-performance

Learning outcomes:
1. Define the remedy of specific performance;
2. Describe the nature of the remedy of specific performance;
3. Identify the effect of an order of specific performance on other remedies;
4. Discuss the conditions for considering the remedy of specific performance;
5. Evaluate the grounds for refusal of specific performance;
6. Evaluate the grounds for refusal of specific performance;
7. Outline the principles of specific performance with respect to third parties;
8. Illustrate the defences to the remedy of specific performance;
9. Summarize the features of the doctrine of part-performance;
10. Explain and effectively adopt in both problem and essay questions – by
means of case law, legislation and secondary sources – the core principles
relating to the remedy of specific performance.

Required readings:
 Glister & Lee. Hanbury and Martin on Modern Equity, pp. 715-750
AND
 Ben McFarlane and Charles Mitchell, Hayton and Mitchell on the Law of
Trusts & Equitable Remedies: Text, Cases & Materials, pp. 785-808

DRE pg. 1
Recommended readings:
 Richard Clements and Ademola Abass, Equity and Trust: Text, Cases and
Materials, 4 ed. (Oxford University Press, 2013), pp. 644 – 650

 Philip H. Pettit. Equity and the Law of Trusts 12 ed. (Oxford University
Press, 2012), pp. 668 – 670; 628 –655

KEY CASES:

 Cooperative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1

 Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch
116
 De Francesco v Barnum (1890) 45 Ch 430
 Lumley v Wagner (1852) 1 De G.M. & G. 604
 Warner Bros Inc v Nelson [1937] 1 KB 209
 Warren v Mendy [1989] 1 WLR 853
 Page One Records v Britton 1967 3 All ER 822
 Posner v Scott-Lewis [1987] Ch 25
 Whitwood Chemical Co. v Hardman [1891] 2 Ch 416
 Rely-A-Bell Burglar and Fire Alarm Co. Ltd v Eisler [1926] 1 Ch. 609
 Hill v Parsons & Co Ltd [1972] Ch 305
 Walsh v Lonsdale [1882] 21 Ch D 9
 Sky Petroleum v V.I.P. Petroleum [1974] 1 WLR 576
 Penn v Lord Baltimore [1750] 1 Ves Sen 444
 Tito v Waddell (No. 2) [1977] Ch 106
 Price v Strange [1977] 3 All ER 371
 Beswick v Beswick [1968] AC 58
 Verral v Great Yarmouth Borough Council (1981) QB

DRE pg. 2
The Remedy of Specific Performance
 specific performance is one of the most significant of equitable remedies
– the other being the injunction (Martin, 2009 : pp. 34 – 36)

 specific performance has been described as “an order of the court directing a
party to a contract to perform his obligations thereunder according to its
terms” (Pettit, 2001 : pp. 628)

 specific performance is a discretionary remedy for the enforcement of

contracts

o the court’s discretion cannot be fettered by the contract

see Quadrant Visual Communications Ltd v Hutchinson Telephone

(UK) Ltd [1993] BCLC 441 at 451

 the distinction thus is drawn between executory and executed contracts

o an executory contract is one that requires the execution of an

instrument, or the doing of an ‘act in the law’, which will put the parties in
the position relative to each other which the contract contemplates

for example:
o an agreement to assure an interest in property such as a contract to sell
land

o an order to carry out a promise to carry out a partnership deed

o An executed contract is one that does not require the execution of an

instrument, or the doing of an act in the law, for the purpose of placing the
parties in the position contemplated – the contract in itself does so

DRE pg. 3
  while the courts have drawn a distinction between executory and executed
contracts, there is some disquiet as to whether there is any practical
significance (Meagher, Gummow and Leeming: 2002, pp. 824 – 825)
 specific performance is granted mainly due to the inadequacy of the common
law remedy of damages to the breach of contract, although the court must
order “... specific performance ... only when it can by that means do more
perfect and complete justice ...”

see Wilson v Northampton and Banbury Junctions Rly Co (1874) 9 Ch App

279

The Nature of the remedy of Specific Performance

 specific performance is, like all equitable remedies, an action in personam,

and as such, can be granted to lands outside the jurisdiction

see
o Penn v Lord Baltimore [1750] 1 Ves Sen 444
o Seven Seas Properties Ltd v Al Essa [1989] 1 All ER 164 but see
o Re Hawthorne (1883) 23 Ch D 743

 specific performance, like other equitable remedies, is only given as a matter

of discretion – although the discretion is established in accordance with
settled principles

o it is only awarded on equitable grounds – the determining factor

being whether in equity and good conscience (within clearly defined
principles), the court should specifically enforce the contract because
monetary damages would not adequately compensate the plaintiff for
the loss

o thus there are some cases, notably contracts for the sale of land,
where the claimant may expect to obtain specific performance as a

DRE pg. 4
 matter of course, and other cases such as the contract for personal
services, where (s)he may expect not to (see grounds for the refusal of
the remedy of specific performance, slides 69 – 141 below)
 equitable remedies are only available where common law remedies are
inadequate, but specific performance will not be available if, on the true
construction of the contract, the parties have agreed that a specific sum of
money is to be paid as an alternative to performing the contract

 in relation to specific performance, equity always acts in personam – and

therefore an order of specific performance issues against the individual
defendant

o if the defendant is within the jurisdiction of the court ad can be

compelled personally to carry out his obligation the court may order
him to do so, even if the subject matter of the contract is outside the
jurisdiction of the court

 the court will never issue an equitable remedy unless it can ensure that the
remedy will be observed

o as equity does not act in vain, specific performance will ordered only
where the defendant is in a position to comply

see
o Jones v Lipman [1962] 1 W.L.R. 832
o Elliott v Pierson [1948] Ch. 452

 unlike injunctions, the remedy of specific performance is confined to the

enforcement of positive contractual obligations

o thus, while an injunction may be obtained on an interlocutory basis,

specific performance cannot

DRE pg. 5
 see
• Sky Petroleum VIP Petroleum Ltd [1974] 1 W.L.R. 576
• Astro Exito Navegacion SA v Southland Enterprise Co Ltd (No 2)
[1983] 2 A.C. 787
• Peninsular Maritime Ltd Padseal Ltd (1981) 259 E.G. 860
• Parker v Camden LBC [1986] Ch 162

 equity will not enforce a contract that is without valuable consideration even
if under deed

 while specific performance is a remedy for breach of contract, it may in some

circumstances be obtained before the time for performance is obtained

 equity will not enforce a contract that is indefinite and so imprecise or so

vague in its terms that equity cannot determine what it must order each party
to perform – equity does not act in vain

 damages may be awarded either in addition to OR in substitution for

specific performance

see
o Lord Cairns’ Act 1858, s. 2
o Judicature Act 1873, s. 16

read: Glister & Lee. Hanbury and Martin on Modern Equity, 20 ed., pp.
743 – 746

 similarly, there are some cases involving mis-description in contracts for sale
of land, where the court may grant specific performance with compensation in
the form of an abatement in the purchase price

see Seven Seas Properties Ltd v Al Essa [1989] 1 All ER 164

 specific performance may be granted with compensation

DRE pg. 6
 o this is an exception to the requirement of mutuality – i.e. if by reason of
personal incapacity, the nature of the contract of any other matter A
cannot obtain specific performance against B, then B will not be granted
specific performance against A even though, taking A’s obligation by itself
would be an appropriate remedy

see
• Price v Strange [1977] 3 All ER 371 at 374, CA per Goff LJ read
• Pettit. Equity and the Law of Trusts 12 ed., p. 642

 In an appropriate case, a court which has made an order for specific

performance, could, by a separate freezing injunction, restrain the vendor
from dealing with all or some of the purchase money

see Seven Seas Properties Ltd v Al Essa [1989] 1 All ER 164

The effect of the remedy of specific performance on other remedies

 if specific performance is granted, but enforcement subsequently becomes

impossible, the question arises as to what remedies are available to the
claimant

o common law remedies are not excluded

o damages are also available in lieu of specific performance under

Lord Cairns’ Act

o the control of the court is exercised according to equitable principles

– the relief sought by the claimant will be refused if it is unjust to the
other party to grant it

DRE pg. 7
  if specific performance is granted, but enforcement subsequently becomes
impossible, the question arises as to what remedies are available to the
claimant

o although the contract still exists after specific performance and does not
merge into an order until the legal title has been conveyed, the rights
under the contract may be affected by the order

 by applying specific performance, the claimant puts into the hands of the court
how the contract is to be carried out – i.e. the performance of the contract is
regulated by the provisions of the order and not those of the contract

Recap: Damages under the Lord Cairns’ Act

 by section 2 of the Chancery Amendment Act 1858 (commonly referred to as
Lord Cairns’ Act), the chancery courts were empowered

o at its discretion, in all cases where it could entertain an application for an

injunction or specific performance, to award damages in addition to or in
substitution for an injunction or specific performance

 the provisions under the Lords Cairns’ Act which were re-enacted in the
supreme court legislation went further

o the Act not only empowered the newly fused courts to award damages
as an adjunct to specific performance or an injunction, but most
significantly, to award damages in substitution, and in making such order
in substitution, for such damages [to] be assessed in such manner as the
court may direct

see: Leeds Industrial Co-operative Society Ltd v Slack [1924] AC 851

DRE pg. 8
  by the combined effect of the savings provisions of the Statute Law Revision
Act, as well as the Supreme Court Act 1873, the provisions of Lord Cairns’ Act
were retained
 the construction of the words ‘in substitution’ must necessarily cover not only
injury already accrued/sustained, but also injury that would be inflicted in the
future by the commission of the act threatened – in other words, that the
expression ‘in substitution’ in Lord Cairns’ Act, conferred on the courts not
only the power to give damages in respect of past injury which was in itself a
useful extension of jurisdiction but the enactment went further

o it gave the courts the power to substitute damages for an injunction

which empowered the courts not only to adequately compensate the
plaintiff by damages for injury already accrued at the commencement of
proceedings but also for a wrong threatened injury which has not yet
occurred or as the Lord Chancellor put it, the power to give the equivalent
for what is lost by the refusal of the injunction

 Lord Cairns’ Act did not create a new type of damages apart from common
law damages

 Instead it helped fill a gap where common law damages might not be
available for example where a tort is threatened but has not been committed

 while it is true that the measure of damages remains the same, the inclusion
of the ‘in substitution’ provision in Lord Cairns’ Act has substantially impacted
on the quantum of damages awarded.

Damages in substitution:
 this power to extend the award of damages to future and continuing losses, by
the words “in substitution”, is based on the rationale that the courts of equity’s
power to give damages in lieu of an injunction implicitly imported to equity, the
power to award the equivalent for what was lost by the refusal of an injunction
or specific performance

DRE pg. 9
  this statutory authority can, in the appropriate case! significantly increase the
quantum of damages awarded which would otherwise have been nominal or
substantially less
see
o Leeds Industrial Society Ltd v Slack [1924] AC 851 at 870
o Surrey CC and Mole DC v Bredero [1993] 1 WLR 1361 at pp 1367-
1368
o Johnson v Agnew [1980] AC 367

 circumstances of award of damages under the Lord Cairns’ Act

o there are several examples where the courts have historically

measured loss not by the strict yardstick of compensation for the
plaintiff’s loss in the law of torts

 these include cases of:

o trespass to land where the landowner has suffered no financial loss

but damages are measured by the benefit received by the trespasser

o detention of land where damages are assessed not based on the

actual loss suffered which would be a nominal amount but on the basis
that a wrongdoer who uses land belonging to another for his own
purposes

o wrongful detention of goods

o infringement of patent rights and other intellectual property rights

 common factors in these types of cases are:

o the applicant has satisfied the requirements for an order of specific

performance OR injunction BUT the court declines to grant the order

DRE pg. 10
 o the defendant has benefited significantly as a result of his wrong-
doing or breach of the applicant’s rights, which concerns the subject
matter of the application for the injunction or specific performance order

Conditions for considering the remedy of specific performance:

 it is a fundamental rule that specific performance will not be granted where the
claimant would be adequately compensated by the common law remedy of
damages

 there are some situations – few in number, in which it is settled that the
claimant may expect to obtain specific performance

 there are also numerous situations in which it can firmly be said that the
claimant will not be awarded specific performance (see the grounds for refusal
of the remedy of specific performance below)

 it is argued that may of the arguments for restricting specific performance are
no longer wholly convincing, and that the trend is towards the expansion of
the remedy

Compare
 A.S. Burrows, ‘Specific Performance at the Crossroads’ (1984) 4 (1) Legal
Studies 102
With
 Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] A.C .
1

Grounds for refusal of the remedy of specific performance:

 there are also numerous situations in which it can firmly be said that the
claimant will NOT be awarded specific performance

DRE pg. 11
  circumstances in which the claimant may not be awarded an order of specific
performance are as follows:
1. contracts for the sale of land
2. contractual licenses
3. contracts relating to personality
4. contracts requiring constant supervision of the court
5. contracts to carry on a business or any comparable series of activities
6. contracts for personal services
7. adequacy of legal remedy
8. contracts lacking mutuality
9. volunteers
10. where specific performance would be futile
11. contracts to transfer goodwill
12. contracts to lend or advance money
13. contracts for transient or terminable interests
14.contracts to leave property by will
15.contracts to refer to arbitration
16.contracts capable of partial performance only

1. contracts for the sale of land

 under the Law of Property Act 1925 (U.K), a contract needs to be evidenced
in writing for a claimant to seek specific performance, but an oral contract
could be enforced under the doctrine of part-performance (see slide 185 –
194 below)

o this rule could therefore cure evidentiary defects

 currently, in the U.K. a claimant seeking specific performance of a sale of land

(or any other disposition) of land must first satisfy s. 2 of the Law of Property
(Miscellaneous Provisions) Act 1989

2. contractual licenses

DRE pg. 12
  it was at one time thought that specific performance would not be granted to a
contractual licence to occupy land, on the ground that the licence created no
estate in the land
 this view has now been seen as inconsistent with the court’s power to grant
an injunction to restrain the wrongful revocation of the a contractual licence

see: Verrall v Great Yarmouth Borough Council [1981] Q.B. 202

3. contracts relating to personality

 in general, specific performance of a contract relating to land, as a general
rule specific performance will not be granted as a matter of course, but it is
settled at an early date that specific performance would not as a general rule
be granted as a contract relating to other forms of property, primarily on the
ground that damages is an adequate remedy

 thus, where contracts relate to money per se, save in exceptional

circumstances, specific performance will not be decreed

 even where land is involved, the breach of such contracts must not be
remediable by damages alone for specific performance to apply

4. contracts requiring constant supervision of the court

 the principle

o it is settled court that a court will not grant specific performance where the
order will require constant supervision by the court

see Ryan v Mutual Tontine Westminster Chambers Association [1893] 1

Ch 116

 but see the effect of later decisions

see

DRE pg. 13
 o Giles (CH) & Co Ltd v Morris [1972] 1 W.L.R. 307 at 318 o Shiloh Spinners Ltd
v Harding [1973] A.C. 691 at 724
o Tito v Waddell (No. 2) [1977] Ch 106 at 321
o Posner v Scott Lewis [1987] Ch 25
 however, the House of Lords in Co-operative Insurance Society Ltd v Argyll
Stores (Holdings) Ltd considered that the dicta in Shiloh Spinners has been
too widely interpreted

 the reason is that supervision would be impracticable, and because equity

does not act in vain; it will not issue orders it cannot enforce

see
o Beswick v Beswick [1968] A.C. 58
o Sky Petroleum Ltd v VIP Petroleum Ltd [1974] W.L.R. 576
o Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd
[1998] A.C 1

 the construction cases

o the court does not as a rule, order specific performance of a contract to

build or repair

see
o Wheatley v Westminster Brymbo Coal Co (1869) L.R. 9 Eq.
538
o Haywood v Brunswick Building Society (1881) 8 Q.B.D. 403

 however, there are some exceptional cases:

• the requirements were outlined in Wolverhampton Corp v

Emmons (1901)

 the exception is said to be based on a “balance of convenience”

DRE pg. 14
 o historically, this originates in a series of cases relating to the early days of
railways

o these specialized cases have been given more general application, and the
formulation in Wolverhampton Corp v Emmons was further extended in
Carpenters Estates v Davies (1940)

 enforcement of leasehold covenants

o the “construction contracts” exceptions was extended to cover a landlord’s

repairing covenant in Jeune v Queens Cross Properties Ltd (1974) where it
was found that the 3 conditions laid down in Wolverhampton Corp v Emmons
were satisfied

o it has since been established that contrary to the previous understanding,

specific performance of a tenant’s repair covenant may be granted in rare
cases where there is no other adequate remedy

see: Rainbow Estates Ltd v Tokenhold Ltd. [1999] Ch. 64

5. contracts to carry on a business or any comparable series of activities

 though it is a matter for the judge’s discretion, it is a settled practice of the
court not to grant a decree of specific performance which would have the
effect of compelling the defendant to carry on a business indefinitely, or
indeed, any comparable series of activities

o this is because such an order will require constant supervision, and was
only enforceable by the quasi-criminal procedure of punishment for contempt,
and might cause injustice by allowing the plaintiff to enrich himself at the
defendant’s expense if the defendant was forced to run a business at a loss

see: Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd

[1998] A.C .1

DRE pg. 15
 but see:
• Barrow v Chappell and Co Ltd. [1976] RPC 355
• Posner v Scott Lewis [1987] Ch 25

6. contracts for personal services

 the general principle is that the court will not grant specific performance in a
contract for personal services

see
o Lumley v Wagner (1852) 1 De G.M. & G. 604
o Warner Bros Inc v Nelson (1937)

 the basis for this, is that as a general rule, equity will not order acts
that it cannot supervise

o in many instances, specific performance is denied where courts will

be unduly burdened with the task of supervising the performance

see
o De Francesco v Barnum (1890) 45 Ch 430
“... the courts ... are bound to be jealous, lest they should turn into
a contract of slavery…”

 the general principle is that the court will not grant specific performance in a
contract for personal services

compare the approach in:

o Whitwood Chemical Co. v Hardman
o Rely-A-Bell Burglar and Fire Alarm Co. Ltd v Eisler (1926)
o Warren v Mendy (1989)
o Page One Records v Britton (1968)

 difficulties in reconciling Warner Bros with later case law

DRE pg. 16
 o difficult to reconcile with Warren v Mendy (1989) and Page One Records
v Britton (1968)

• deciding factors

- length of time of the contracts: 20 weeks (Warner Bros) vs

2 years (Warren v Mendy)

- issues of mutual trust and confidence – if any remains, the court will
more likely grant an injunction (Hill v Parsons & Co Ltd (1972))

 equity would not normally order specific performance of a contract of

employment, whether at the instance of employer or employee, nor could the
same result be achieved indirectly by means of an injunction

 in addition to the ordinary contract of service, such as the employment of a

valet, coachman or cook referred to in Johnson v Shrewsbury and
Birmingham Rly Co, specific performance has been refused on this ground of
a contract between a company and its managing director, of an agreement to
compose and write reports of cases in the court of Exchequer, of an
agreement to supply drawings or maps, of a claim to fill the office of receiver
to the Bishop of Ely, of an agreement to sing at a theatre and of articles of
apprenticeship

 the general principle is that the court will not grant specific performance in a
contract for personal services

see:
o Ryan v Mutual Tontine Westminster Chambers Association [1893] 1
Ch 116
o Posner v Scott-Lewis [1987] Ch 25 at 34
o CH Giles & Co Ltd v Morris [1972]1AllER960
o Wolverhampton Corp v Emmons [1901] 1 K.B. 515

DRE pg. 17
 o Cooperative Insurance Society Ltd v Argyll Stores (Holdings) Ltd
[1998] AC
o Hill v CA Parsons & Co Ltd [1972] Ch. 305

Read: Petit. Equity and the Law of Trusts 12 ed. P. 637 -640
 the general principle is that the court will not grant specific performance in a
contract for personal services

see also
o Thomas Marshall (Exports) Ltd v Guinlee [1979] Ch. 227
o Provident Financial Group plc v Haywood [1989] 3 All ER
298 at 302
Read: A.S. Burrows, ‘Specific Performance at the Crossroads’ (1984) 4 (1)
Legal Studies 102 at 112 – 114

7. adequacy of legal remedy

 specific performance will be denied where money adequately compensates
the plaintiff for his loss

 in making this determination the court considers the following factors:

o the subject matter of the contract – if there is some particular rarity or

beauty to the item, as opposed to the item being “common place”

see
• Pusey v Pusey (1684) 1 Vern 273 – the hunting horn of
King Canute

• Adderley v Dixon 57 ER 239 – case of shares

 in making this determination the court considers the following factors:

o damages difficult to estimate

o where damages nominal

DRE pg. 18
8. contracts lacking mutuality
 English judges and writers commonly state and apply the general rule that
specific performance will not be granted unless the remedy is mutual i.e. if by
reason of personal incapacity the nature of the contract or any other matter, A
cannot obtain specific performance against B, the B will not be granted
specific performance against A even though taking A’s obligation by itself, this
would be an appropriate remedy

 specific performance may be denied on the grounds of mutuality where the

situation is one in which that remedy could not be available to the other party

 the defence of specific performance may be waived

 the absence of mutuality does not deprive the court of the jurisdiction to award
damages in lieu of specific performance under Lord Cairns’ Act 1858

 two exceptions to the requirement of mutuality may be noted:

o it has been said that the holder of an option to purchase may be able to
obtain specific performance even though the other party may have no such
right against him

o an exception arises in connection with a grant of specific performance with

compensation, a special variant of the remedy limited to cases of mis-
description in a contract for sale of land, whether mis-description relates to
title, or the quantity of land.

9. volunteers
 specific performance will not be awarded to a volunteer

o indeed unless the contract is by deed, consideration is necessary for the

validity of the contract itself

DRE pg. 19
  parties to a deed of covenant may sue at law, even though there is no
consideration, but they will not be able to obtain specific performance

 problems commonly arise in this connection in relation to covenants to make

family settlements

 inadequacy of consideration is not a bar to specific performance, but may be

relevant to the exercise of the court’s discretion

10. where specific performance would be futile

 the court will not grant an order of specific performance if, in the court’s
opinion, to do so would be useless

o examples include a refusal to grant an order of specific performance for

parties to enter into a partnership that would dissolve almost immediately

 apart from the above, the general bases for denying equitable interest such as
delay and acquiescence and conduct of parties apply to specific performance

11. contracts to transfer goodwill

 a contract to sell the goodwill of a business alone is not specifically
enforceable, because the subject matter of the contract is too uncertain

 but specific performance will be granted of a contract to transfer the goodwill

together with the premises or other assets of a business

12. contracts to lend or advance money

 contracts to pay money are normally not specifically enforceable because
damages will usually be an adequate remedy

 exceptionally however, specific performance may be obtainable in the

following situations:

DRE pg. 20
 o where the contract is to pay money to a third party, so that any damages
awarded would be nominal

o where the contract is for payment of an annuity or other periodical sums

o a contract with a company to take up and pay for debentures

 exceptionally however, specific performance may be obtainable in the
following situations:

o a contract of indemnity, unless the obligation is merely to repay the

debtor a sum of money after it has been paid – in which case,
damages will then be an adequate business

o as has been seen, in the case of a contract for the sale of land, the
vendor will be granted specific performance of the purchaser’s
obligation to make a money payment

•although the remedy of damages should be adequate specific

performance is allowed because of the mutuality principle

o a contract to pay a debt out of specific property segregated by the

debtor for the purpose is specifically enforceable, and creates an
equitable interest in the specific property, unless there is evidence of a
contrary intention

13. contracts for transient or terminable interests

 as equity does not act in vain, specific performance will not be granted of an
agreement for a lease which has already expired by the date of the hearing,
nor of an agreement for tenancy at will or a partnership at will

 an agreement for a tenancy from year to year is specifically enforceable, but

in Lavery v Pursell specific performance of an agreement for a lease for one
year was refused, one ground being that, although rights should not be

DRE pg. 21
 prejudiced by delays in litigation, it is normally impossible to get the action
heard and the order made within the year

 however, the nineteenth-century authorities on transient interest must now be

treated with caution

see: Verrall v Great Yarmouth Borough Council (1991)

• in this case the defendant wrongfully repudiated the contract, but sought to
avoid specific performance partly on the ground that the licence was a
transient interest – and argument which was rejected by the Court of Appeal,
which granted an order of specific performance for the performance of a
contractual licence for a short duration

• authorities to the contrary were inconsistent with the decision of the House
of Lords in Winter Garden Theatre (London) Ltd v Millennium Productions Ltd,
whereby an injunction could be granted to restrain the wrongful revocation of
the licence

• thus while specific performance remains inappropriate in respect to an

interest which is already expired or which is revocable at the will of the
defendant, the mere fact that the interest is of short duration is no longer a bar
to specific performance, which may be granted at the discretion of the court in
the appropriate case

14. contracts to leave property by will

 the remedy for breach of such a contract is normally damages, for any other
result would amount to an interference with testamentary freedom

 but specific performance might be ordered as was indicated obiter by the

Court of Appeal in Synge v Synge

 in Schaefer v Schuhmannn, Lord Cross treated it as established that where

there is a contract to leave specific property by will, the claimant

DRE pg. 22
 o [c]an obtain a declaration of his right to have it left to him by will and an
injunction to restrain the testator from disposing of it in breach of contract:
Synge v Synge. No doubt if the property is land he could also register the
contract or a caution against the title

 if the testator retains the property until his death, but dies insolvent,
the promise can only rank as a creditor for the value in competition
with other such creditors

 finally, it seems that specific performance will not be granted of a

contract by the donee of a testamentary power of appointment to
exercise the power in favour of the claimant

15. contracts to refer to arbitration

 such contracts are not specifically enforceable

 but if the claimant sues on a contract which includes an arbitration provision,

the defendant may ask for a stay of proceedings under the Arbitration Act
1996 (U.K), s. 9 so that the claimant may proceed with the arbitration or be
left without a remedy

 the court will however enforce the arbitrator’s award

16. contracts capable of partial performance only

 a court will not usually order specific performance of any part of the contract
unless it can order performance of the whole

 the rule is not absolute however, as it may be possible to construe a contract

which contains several parts as being in effect several separate and distinct
contracts, so that the enforcement of one part is independent of the others

 this question often arises where several lots of land are sold and the question
is whether there is one sale of several lots, or several sales of individual lots

DRE pg. 23
NOTE: Partial Performance
 a distinction is to be drawn between partial performance and the doctrine of
part performance

o in Thames Guaranty Ltd v Campbell [1985] QB 210 at 235, Slade J

explained partial performance as “ ... a purchaser may obtain specific
performance with compensation against a vendor under of a contract of sale
where the vendor is unable to fulfil the exact terms of the bargain, but the
difference in value between the actual subject matter and that stated in the
contract can be measured by the court, and form the subject of abatement in
the amount of the purchase money ...”

17. contracts capable of partial performance only

 as a general rule, the court will not decree specific performance of an
agreement to perform ad carry out a partnership, for this will involve the court
in constant superintendence of the partnership affairs

 exceptionally it seems that where there has been part performance of the
partnership agreement, the parties may be compelled specifically to perform a
term to execute a partnership deed, incorporating any subsequent variations
to the original agreement which may have been made between partners

Specific performance & third parties:

 claims for specific performance are usually made between parties to the
contract, and in such a case, all the parties to the contract must be parties to
the action

 however, difficulties arise where the issue is between assignees, or where the
person to be benefitted is not a party to the contract

o difficulties have arisen as to whether the right to (or liability to)

specific performance passes to an assignee of the agreement

DRE pg. 24
 o these problems mainly arose in the context of agreements for leases,
where the questions was whether the assignee of either party could sue or
be sued on the obligations of the agreed lease
 in contracts for the sale of land, problems have often arisen where purchaser
has sought specific performance against a vendor who is unable to a good
title without the consent of some third person, or where he has contracted to
give vacant possession and some third person is in possession

see Wroth v Tyler [1973] 1 All ER 897 at 913

 a different question is whether specific performance may be obtained for the

benefit of a third party, as where A has contracted with B to confer a benefit to
C

o C may now be able to enforce the contract on their own right under
the Contracts (Rights of Third Parties) Act 1999 (UK) or similar
legislation such as the Consumer Guarantees Act 2002 (Barbados)

see: Beswick v Beswick [1968] A.C. 58

 contracts to pay an annuity is specifically enforceable

see Adderly v Dixon (1824) 1 Sim. & St. 607 at 611

read:
• Martin. Hanbury and Martin on Modern Equity, 18 ed., pp. 787– 791,
• Pettit. Equity and the Law of Trusts 12 ed., p. 637 – 640

Defences to the remedy of specific performance:

DRE pg. 25
  there are situations, where the discretion of the court is unlikely to be
exercised in favour of specific performance, although the contract is of a type
to which the remedy is appropriate

 most of the illustrations relate to land, for which few contracts outside this
area are enforceable

 it will be noted that in some of the circumstances discussed below – such as

hardship or delay, the contract is unaffected, and the defendant remains liable
in damages – the claimant is merely denied specific performance

 in others, as in some cases of mistake and misrepresentation, the contract

may be rescinded in equity, which is of course the defence to specific
performance, and which will preclude enforcement of law

 in cases of substantial misdescription or lack of good title, the vendor may be

in breach – not only is the vendor unable in such circumstances to obtain
specific performance and they may not be liable in damages to the
purchasers

Defences to specific performance are as follows:

1. mistake and misrepresentation
2. the conduct of the claimant
3. laches or delay
4. public policy
5. hardship
6. mis-description of the subject matter

1. mistake and misrepresentation

DRE pg. 26
  there are situations in which equity, although refusing to rescind a contract, or
cancel a deed for mistake or misrepresentation, will not give the other party
positive equitable help in enforcing it

 the claimant will be left to his remedy in damages

see Mortlock v Buller (1804) 10 Ves. Jr. 292 per Lord Eldon

 the court is not bound to order specific performance in every case in which it
will not set aside the contract, nor to set aside every contract that it will not
specifically enforce

see Wood v Scarth (1855) 2 K & J 33

 a defendant usually cannot usually resist specific performance by alleging

merely his own fault and mistake nor on the ground that he was mistaken as
to the legal effect of the agreement, although “unilateral mistake may in some
circumstances, afford an answer to a claim of specific performance’’

o generally, equity will hold the defendant to enforcement of his

bargain unless it can be shown that this would involve real
hardship amounting to injustice

mistake and misrepresentation see

 Van Praagh v Everidge [1902] 2 Ch. 266
 Webster v Cecil (1861) 30 Beav. 62
 Tamplin v Jones (1880) 15 Ch. D. 215
 Malins v Freeman (1837) 2 Keen 25
 Craddock Bros v Hunt [1923] 2 Ch. 136
 Solle v Butcher [1950] 1 KB 671
 Great Peace Shipping Ltd v Tsavliris Salvage (Int.) Ltd [2003] QB 679 CA

2. the conduct of the claimant

DRE pg. 27
  the claimant must come to equity with clean hands, and before specific
performance may be ordered in his favour, he must show that he has
performed all his obligations under the contract or has tendered performance
or is willing to perform them

 this doctrine cannot be ousted by the terms of the contract: Quadrant Visual
Communications Ltd v Hutchinson Telephone (UK) Ltd., (1991)

 except the most trivial ones: Dyster v Randall [1926] Ch. 932 at 942 – 943 see
o Lamare v Dixon (1873) L.R. 6 H.L. 414
o Jones v Lipman [1962] 1 WLR 832
o Culverhouse v Waith (1939) 7 Trin. LR 176

 for example, a person holding under an agreement for lease is not entitled to
specific performance of the lease if he himself is in breach of one of its
covenants

see
o Walsh v Lonsdale (1882) 21 Ch. D. 9
o Coatsworth v Johnson (1886) 55 L.J.Q.B. 220
o Mountford v Scott [1975] Ch 258

 the conduct in question must be connected to the contract of which specific

performance is sought

see van Gestel v Cann The Times, August 7 1987

 if both parties have “unclean hands”, there is no question of balancing

misconduct of one against the other – the ‘clean hands’ defence is concerned
with the conduct of the claimant alone, although all the circumstances,
including the conduct of the defendant are relevant to the exercise of
discretion

DRE pg. 28
 see Sang Lee Investment Co Ltd v Wing Kwau Investment Co Ltd, The
Times, April 14, 1983

3. laches or delay
 generally, in equity, time is not held to be the essence of contract, thus
specific performance may be ordered although the contractual date for
performance has passed

see Easton v Brown [1981] 3 All ER 278

 failure to complete on the contractual date may, however, render the delaying
party liable to damages for breach of contract

 the fact that time is not of essence in equity does not negative the breach of
contract in such a case

 it means that the breach does not amount to a repudiation of the contract

 thus, the delaying party, although liable for damages, does not lose the right
to seek specific performance, nor will he forfeit his deposit, provided (s)he is
ready to complete within a reasonable time

see
o Raineri v Miles [1981] A.C. 1050
o Oakacre Ltd. v Claire Cleaners (Holdings) Ltd [1982] Ch. 197
o United Scientific Holding Ltd v Burnley BC [978] A.C. 904 – as to rent
review clauses

 the defendant may rely on the doctrine of laches, so that a claimant who
delays unreasonably in bring an action for specific performance may lose his
claim

see
o Southcomp v Bishop of Exeter (1847) 6 H. 213

DRE pg. 29
 o Eads v Williams (1854) 4 de G.M. & G. 674
o Lazard Bros & Co Ltd v Fairfield Property Co (Mayfair) Ltd (1977)
121 SJ 793
o Watts v Assets Co Ltd (1905) AC 317

 the modern approach is not to look at the principles of previous cases to see if
the circumstances fitted into them, but to ask whether, broadly considered, the
claimant’s actions were such as to render unconscionable for him to assert his
rights

see Frawley v Neill The Times, April 5,1999

 where the claimant has delayed, but specific performance is refused for
another reason, the effect of this delay may be that the date for assessing
damages in lieu of specific performance under the Lord Cairns’ Act is moved
back from the date of judgement upon which the matter is disposed of

see Malhtra v Choudhury [1980] Ch. 52

 finally, in cases where time is of the essence, specific performance is not

normally available after the stipulated date

see
o Legione v Hateley (1983) 57 A.L.J.R. 292 and compare
o Union Eagle Ltd v Golden Achievements Ltd [1997] A.C. 514

4. public policy
 the court will not order specific performance of a contract where the result
would be contrary to public policy

see
o Wroth v Tyler [1973] 1 All ER 897 at 913
o Verral v Great Yarmouth Borough Council (1981) QB 20

5. hardship

DRE pg. 30
  in general, specific performance may be refused in the discretion of the court
where it would cause unnecessary hardship to either of the parties or a third
party

 in the case of hardship, the court may refuse to grant the plaintiff specific
performance, where the actual consequence of a decree would operate
harshly and oppressively towards the defendant

 inadequacy of price is not, standing by itself, a ground for refusing specific

performance, but it may be evidence of other factors, such as fraud or undue
influence which will render enforcement inequitable

see Patel v Ali [1984] Ch. 283

 the concept of unfairness is deemed to exist where rights have been obtained
by the plaintiff by reason of a position of advantage so that it would be unjust
to grant him the equitable remedy of specific performance

o examples include the defendant’s drunkenness, senility, illness,

emotional dependence, illiteracy

see
• Clark v Malpas 45 ER 1238 – poor and ill-educated defendant
• Johnson v Buttress (1936) 56 CLR 113 – illiterate, aged, emotionally
dependent on plaintiff

6. Mis-description of the subject matter

 if the property agreed to be sold is incorrectly described in the contract – for
example an inaccurate measurement in a plan – the vendor cannot fulfil his
promise to transfer property which corresponds exactly with that which he
contracted to convey

DRE pg. 31
 o a misdescription is a term of the contract – the vendor is therefore in
breach

 to deny him specific performance on that account would introduce a rigid rule
capable of producing injustice

 equity adopts a more flexible approach – the circumstances may be such that
justice will not be done by compelling completion, notwithstanding the error,
compensating the purchaser by allowing him a reduction in the price he had
agreed to pay

 on the other hand, the mis-description may be so serious that to order specific
performance would be in effect to force the purchaser to take some wholly
different from what he intended

see Cedar Holdings Ltd v Green [1981] Ch. 129

 the rule is this that a purchaser will not be forced to take something different in
substance from that which he agreed to buy

 differences in quality or quantity will not by themselves suffice as a defence to

an action of specific performance (although of course they will give rise to a
claim of compensation) unless they can fairly be said to make the property, as
it in fact is, different in substance from that contracted to be sold

read
Martin. Hanbury and Martin on Modern Equity, 18 ed., pp. 774– 784
Pettit.EquityandtheLawofTrusts12ed., p.647–655

Thinking Point:
 equity, like nature, does nothing in vain: it proceeds like a wise parent dealing
with their children – it is best not to issue orders unless you are absolutely
sure of effecting compliance

DRE pg. 32
 o consider the implications of this statement, with reference to the
remedy of specific performance

The doctrine of part-performance

 the doctrine of part performance gets its origins form to the fourth section of
the Statute of Frauds, 1677

 part performance is an equitable remedy which allows an aggrieved party to

obtain enforcement of an oral contract in spite of the failure to comply with the
written requirements prescribed by statute

 the basis of the doctrine is the prevention of injustice see

o Maddison v Alderson (1883) L.R. 8 App Cas 467

 the doctrine of part performance provides a way around the statutory bar to
the enforcement of an oral contract

 when it applies, a party can establish the existence of a contract despite the
lack of any written evidence

 in such a case, proof of the contract may be sufficient even though it is made
entirely by parol evidence

 nonetheless, a party must still meet the burden of proving the existence of the
contract by clear and convincing evidence

 the enforcement of an oral contract always involves two evidentiary steps

 first, a party must convince the court that the alleged acts of part performance
of the contract are sufficient to excuse compliance with the writing
requirement of the statute of frauds! in other words, the evidence presented
must convince a court that the doctrine of part performance is satisfied

DRE pg. 33
  second, the party must prove all the elements normally required for
recognition of a contract between the parties

 the evidence must show a meeting of the minds based on an offer and a
sufficient acceptance, as well as the consideration necessary for a valid
contract

 there must also be no proof of mistake, misrepresentation, or illegality that

would otherwise invalidate the contract

1. acts may be preferable to some contract or possibly love or affection

see
o Wakeham v Mackenzie [1968] 1 WLR 1175
o Kingswood Estate v Anderson [1963] 2 QB 169 CA o Steadman v
Steadman [1974] QB 161

2. mere payment of money may not constitute a sufficient evidence of part

performance

see
o Wakeham v Mackenzie [1968] 1 WLR 1175
o Chaproniere v Lambert [1917] 2 Ch 356 o Steadman v Steadman
[1974] 3 WLR 56

3. conduct of the defendant must be such as to render it inequitable for him to

take advantage of the failure of the contract to comply with the written
requirements provision

o the contract must be one which is enforceable by the courts

4. there must be proper parole evidence of the contract

DRE pg. 34
 see
o Chaproniere v Lambert [1917] 2 Ch 356
o Re Windle [1975] 1 WLR 1628
o Kingswood Estate Co Lrd v Anderson [1963] 2 QB 169

Tutorial Questions
Answer BOTH (a) and (b):
Idris and Irene Idiotic, own an apartment building in Burbajos which was built two
years ago. The following events occur:

(a) Idris and Irene are owed BJS 100,000.00 by Tania, a tenant who is in arrears by
six months. They intend to bring proceedings against Tanis for payment of these
arrears. However, they have learned that Tania is in the process of arranging to sell
a one-of-a-kind Cacique headdress that once belonged to the warrior queen Yva and
her Black Panther collectibles which have dramatically increased in value because of
the popularity of the movie. Idris and Irene believe that these items are Tania’s main
assets, and are concerned that if they are sold, Tania is unlikely to be able to satisfy
a judgement enter against her.

Advise Idris and Irene of any equitable remedies they may be able to obtain in this
situation. (15 marks)

Answer BOTH (a) and (b):

Idris and Irene Idiotic, own an apartment building in Burbajos which was built two
years ago. The following events occur:

(b) Ximena took a long lease on the top flat of the apartment building. The service
contract which lists Idris and Irene as the freeholders, requires them to undertake
external building repairs, to have the outside of the windows cleaned once a month,
and to install an elevator within a reasonable period of time. A recent rainstorm has
dislodged some of the tiles from the roof, and the rain now leaks into Ximena’s

DRE pg. 35
apartment. Despite numerous requests by Ximena, the roof has not been repaired,
the windows were never cleaned, and the elevator has not been installed.

Advise Ximena of any equitable remedies which may be available to her against Idris
and Irene. (15 marks)

Total: 25 marks

Past Examination Questions

Isabella contracts Meizling to paint a portrait of her mother Iris for a BDS $ 10,
000.00 contract price. Meizling is Iris’ favourite artist, and the painting will be a
present for her birthday on April 17, 2017. Meizling begins the portrait, but is then
approached by Camille, who offers her BDS$15,000.00 if Meizling will stop the
portrait of Iris, and paint Camille in her Miss University of the Best Indies pageant
gown for April 7, 2017. Meizling informs Isabelle that she cannot complete Iris’
portrait by her birthday.

Isabelle has given Meizling some diaries belonging to Iris, which contains intimate
details of her life, so she could get a ‘feel’ for Iris’ character. Iris is a politician and is
about to stand for re-election. The diaries contain details of several affairs Iris has
had during her life and some details of political indiscretions.

Isabelle has been told by a friend that Meizling has approached the Talkative Tattler
to sell some of the details. The story is in fact on its way to press, when Isabelle finds
out about the sale. Meizling has a bank account in Burbajos, and owns homes in
New Fork and Zondon.

With reference to decided cases, advise Isabelle on any equitable remedies she may
have available to her.

TOTAL: 25 marks
Taken from the May 2016 examination

DRE pg. 36
Bright Inc. produces videos and tapes of lectures and accompanying notes for the
purpose of teaching law to overseas students by distance learning. Ten (10)
members of staff are employed by Bright Inc. on a full-time basis. Nia Nymone, a
senior member of staff, and author of a leading textbook on energy law, is employed
on a five (5) year contract to develop new materials in her field. Nia’s contract
requires her not to work with any other firm of law tutors during the period of her
contract, and for one (1) year after the end of the contract. Nia is a member of the
National Union of Law Teachers (NULT).

Negotiations over conditions of service between Bright Inc. and its staff have broken
down. The following circumstances have occurred:

a) Nia, who has three (3) years left to run on her contract, writes a letter of
resignation to Bright Inc. She accepts an offer of employment with the tutorial firm
Law the Lazy Way – which is based in The Pyjamas but headquartered in New Fork!

And

Negotiations over conditions of service between Bright Inc. and its staff have broken
down. The following circumstances have occurred:

b) All the materials that Nia had been working disappear from Bright Inc.’s office, and
the company fears that they may now be in the possession of Law the Lazy Way.
Bright Inc. has also discovered that its current students have received advertisement
material from Law the Lazy Way and believes that Nia took a list of clients with her.
Bright Inc. also believes that Law the Lazy Way has bank accounts in The Pyjamas
and New Fork, and that all monies received are transferred on a regular basis to the
New Fork account!

And

Negotiations over conditions of service between Bright Inc. and its staff have broken
down. The following circumstances have occurred:

DRE pg. 37
c) after conducting a ballot in which the majority of staff members voted in support of
industrial action, NULT has called a strike on Bright Inc.’s premises as a result of the
breakdown in negotiations. Picketing is taking place on a regular basis.

Advise Bright Inc. of any equitable remedies it may be able to obtain in the scenarios
outlined in (a), (b) and (c) above.

Taken from the May 2015 examination

DRE pg. 38