Contract: Specific Performance

Specific Performance

What is Specific Performance?

Specific performance is a court order which obliges the defendant to perform their outstanding obligations under the law. For example, any contractual duties the defendant has yet to perform or an equitable duty which has arisen. 

When Will Specific Performance Be Granted?

Specific performance will only be granted if damages are an inadequate method of compensating the claimant: Cohen v Roche [1927] 1 KB 169. Damages are only considered inadequate in this context if one of two conditions is met:

1. The goods are unique, meaning that there is no market for them in which the claimant could acquire substitute performance: Co-op insurance v Argyll Stores [1997] 2 WLR 898.

For example, pieces of art or land are unique: Falcke v Gray (1859) 62 Eng Rep 250. There is a market if the goods are available elsewhere, even if on worse terms or at a higher price.

2. The harm to the claimant is intrinsically impossible to calculate in economic terms: Beswick v Beswick [1968] AC 58.

Damages are not considered inadequate merely because they are difficult (but not impossible) to calculate or because the seller does not have the funds to pay them: Societe des Industries Mtallurgiques SA v The Bronx Engineering Co Ltd [1975] 1 Lloyd’s Rep 465.

When Will Specific Performance be Refused?

As an equitable remedy, specific performance is discretionary: the court can refuse to grant it even if damages are inadequate. The following are common circumstances in which specific performance will not be granted: 

Personal Labour
labour, employment, work, shop

Specific performance cannot be ordered where this would involve ordering personal labour on the part of the defendant (this being akin to slavery): Cohen v Roche [1927] 1 KB 169.

Undue Hardship
hardship

Specific performance may not be granted if the order would cause substantial and undue hardship to the defendant: Denne v Light (1857) 8 DM & G 774. That hardship does not need to be the fault of the claimant: Patel v Ali [1984] 1 All ER 978.

Long-Term Supervision
supervision, surveillance, watching, eye

The courts will generally not grant specific performance if enforcing the performance is impossible or would need ongoing or long-term supervision by the court: Co-op insurance v Argyll Stores [1997] 2 WLR 898.

Unjustified Delay
Clock, delay, time

The courts may refuse specific performance where they consider that there has been unjustified delay in bringing the claim: Milward v Earl Thanet (1801) 5 Ves 720. 

Inequitable Conduct
inequitable, crime, immoral, criminal

Since specific performance is an equitable remedy, the usual equitable bars apply. The courts may refuse the remedy if the claimant acts inequitably or does not intend to perform their end of the bargain: Chappell v Times Newspapers [1975] 1 WLR 482.

Mutuality
mutual, contest

Specific performance will not be granted if the obligation it would enforce is conditional on the claimant performing some obligation which is not itself specifically enforceable and which the claimant has yet to perform: Price v Strange [1977] 3 All ER 371.


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Contract Remedies Quiz

Test yourself on the principles which determine when contract remedies are available.

1 / 27

Darrel makes a contract with Pierre, agreeing that he will tend to Pierre's garden while Pierre is away. Instead of performing, Darrel goes on holiday. During this time, there is a freak storm which floods Pierre's garden and causes a lot of damage. Can Pierre obtain damages from Darrel for the damage to his garden?

2 / 27

Pierre agrees to buy a priceless painting from Sophie to display in his house, for several million pounds. He does not intend to pay. Sophie is now saying that she will refuse to hand over the painting. Can Pierre obtain an order for specific performance?

 

3 / 27

In what two scenarios is a loss sufficiently non-remote to be recovered in an action for breach of contract?

4 / 27

Emmy purchases a new fish tank filter from Lee. The filter is defective, and it shuts down. Emmy's incredibly rare and expensive fish die as a result. Lee argues that he should not be liable as it was unforeseeable that the breach would cause such a high degree of loss. Is he correct?

 

5 / 27

What are the elements for determining whether a mandatory injunction should be granted? (Four answers)

6 / 27

When are damages considered inadequate for the purposes of obtaining specific performance as a remedy? (Two answers)

7 / 27

A claimant suing for breach of contract can claim both the market difference measure and the cost of cure measure at the same time. True or false?

 

8 / 27

Alice contracts Bill to install new fans in her restaurant. Bill completes the work late, causing Alice considerable stress. Can Alice recover damages for her stress?

 

9 / 27

Pierre agrees to rent a priceless painting from Sophie to display in his house, on condition that he first pay a deposit of several million. He has yet to pay the deposit. Sophie is now saying that she will refuse to hand over the painting. Can Pierre obtain an order for specific performance?

 

10 / 27

When will an injunction be refused despite the relevant test being met? (Three answers)

11 / 27

Alice contracts Bill to install new fans in her restaurant. Bill completes the work defectively, causing a fan to fall on Alice's head. She suffers a brain injury and develops depression as a result. Can Alice recover damages for her mental illness and emotional distress?

 

12 / 27

Arthur contracts for a private car from Celestine, stressing that he needs to arrive before three o'clock. He does not explain the reason why, which is that if he is late he will miss a meeting with an important client and lose a valuable deal. Celestine drives painfully slowly and does not get Arthur to his destination on time. Arthur loses the deal. Can Arthur recover damages for the lost contract?

 

13 / 27

When is a liquidated damages clause void under the penalty clause rule?

14 / 27

Complete this sentence: Damages are assessed according to the circumstances existing...

15 / 27

What are the elements for determining whether a prohibitory injunction should be granted? (Three answers)

16 / 27

What is the default measure of damages in contract?

17 / 27

Laura contracts Stephen to arrange for someone to ghost-write her memoirs. For various reasons, it is not possible for Laura to obtain another person to do this. The relationship falls apart and Stephen refuses to perform. Writing the book in accordance with the contract would take time and require supervision. Can Laura obtain an order for specific performance?

 

18 / 27

When is specific performance available as a remedy to a breach of contract?

19 / 27

Sophie hires Anne to install a storm drainage system in her garden. Anne's work is defective, meaning that it does not drain water properly. That summer, an unexpected storm hits and causes considerable water damage to Sophie's garden. The storm was not forecast, and is described in the media as a 'freak' occurrence. Anne argues that the storm was an unforeseeable act of nature, meaning that her breach did not cause Sophie's loss. Is Anne correct?

20 / 27

What is the purpose of general contract damages?

21 / 27

When is the hypothetical fee measure of damages available in contract?

22 / 27

Micah contracts with John for a package holiday. In breach of contract, John fails to make the appropriate reservations, leaving Micah stranded abroad without a hotel for several days. Micah suffers a severe stress reaction as a result. Can Micah recover damages for her emotional distress?

 

23 / 27

A claimant suing for breach of contract can claim both the market difference measure and the reliance loss measure at the same time. True or false?

 

24 / 27

Laura contracts Stephen to personally ghost-write her memoirs. Since Stephen knows her best, it is not possible for Laura to obtain another person to write the book. The relationship falls apart and Stephen refuses to write the book. Can Laura obtain an order for specific performance?

 

25 / 27

Is it a failure to mitigate to refuse to terminate a contract in response to a repudiatory breach, where this refusal leads to further loss?

26 / 27

What two elements must the claimant show to obtain the cost of cure measure of damages?

27 / 27

When can a claimant obtain a consumer surplus award of damages?

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