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 or their interest in performance is incapable of economic valuation: 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 Metallurgiques 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

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

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

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

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

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.

Contract Remedies Quiz

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

1 / 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?

2 / 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?

The law is not clear

Yes

3 / 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?

The law is not clear

Yes

4 / 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?

5 / 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?

6 / 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?

7 / 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?

8 / 27

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

Specific performance is not available in contract cases

Where damages would be an inadequate remedy

Only in land contract cases

In all cases

Where the consequences of the breach are or would be very serious

9 / 27

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

A limitation clause prevents the claimant from obtaining damages

The claimant will suffer intrinsically incalculable harm from non-performance

The goods are unique or have no market substitute

The defendant does not have the funds to pay full compensation

The goods can only be obtained at a great expense or difficulty

10 / 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?

11 / 27

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

Where the claimant is unlikely to win the case

Where the defendant would suffer undue loss if they succeeded at trial

If the claimant acquiesced in the wrong

Where the obligation or wrong involves the use of land

If the claimant acted inequitably

Where granting the injunction would amount to indirect specific performance

12 / 27

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

Where the degree of loss or the way in which it happened was foreseeable

The loss can reasonably be supposed to have been in the parties' contemplation when contracting

There is no unforeseeable act of nature or a third party interrupting the chain of causation

It is the kind of loss that happens naturally as a result of that type of breach

The loss is not unusual

13 / 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?

No, unless the consequences of the breach are relatively minor

Only if the claimant has no legitimate interest in affirming the contract

Only if the refusal to terminate is unreasonable

Yes

14 / 27

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

Is there a serious issue to be tried or has the claimant already succeeded at trial?

Has the claimant suffered pecuniary loss?

Where does the balance of convenience lie?

Are damages adequate to compensate either party?

Is there high degree of assurance that the claimant will succeed at trial or has the claimant already succeeded?

Does the risk of injustice to the claimant if the injunction is refused outweigh the risk of injustice to the defendant if the injunction is granted?

15 / 27

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

The market difference measure would leave them with no damages

It is reasonable to cure the defective performance

They intend to cure the defective performance

The claimant will suffer non-pecuniary loss if the defective performance is not remedied

The claimant values performance above the market value

16 / 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?

17 / 27

What is the default measure of damages in contract?

Hypothetical fee loss

The cost of cure

Reliance loss

The market difference measure

Consumer surplus

18 / 27

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

All liquidated damages clauses are void under this rule

If it is completely out of proportion to the innocent party's legitimate interests

If it is at least partially designed to punish the breaching party for their breach

If it is not a genuine pre-estimate of the innocent party's damages

19 / 27

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

Where the defendant has profited from the breach

Whenever they contract as a consumer with a business and the contract is breached

Where the claimant has suffered emotional loss or distress

Where the defendant has breached a proprietary or quasi-proprietary right

Where they suffer no economic loss and the cost of cure measure is unavailable

20 / 27

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

Does the risk of injustice to the claimant if the injunction is refused outweigh the risk of injustice to the defendant if the injunction is granted?

Is there high degree of assurance that the claimant will succeed at trial or has the claimant already succeeded?

Does the balance of convenience favour the grant?

Are damages adequate to compensate either party?

Is there a serious issue to be tried or has the claimant already succeeded at trial?

21 / 27

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

At the time litigation is initiated, unless this would be unjust

At the time litigation is initiated

At the time of the breach, unless this would be unjust

At the time of the breach

22 / 27

What is the purpose of general contract damages?

To compensate the claimant and strip the defendant of profits

To compensate the claimant and punish the defendant for wrongdoing

To compensate the claimant

23 / 27

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

Where the market difference and cost of cure measures are unavailable

Where the defendant has breached a proprietary or quasi-proprietary right

Where the market difference measure would grant no damages

Where the defendant has profited from the breach

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

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?

26 / 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?

27 / 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?

Your score is

Contract: Specific Performance

Specific Performance

What is Specific Performance?

When Will Specific Performance Be Granted?

When Will Specific Performance be Refused?

Personal Labour

Undue Hardship

Long-Term Supervision

Unjustified Delay

Inequitable Conduct

Mutuality

Like this:

Specific Performance

What is Specific Performance?

When Will Specific Performance Be Granted?

When Will Specific Performance be Refused?

Personal Labour

Undue Hardship

Long-Term Supervision

Unjustified Delay

Inequitable Conduct

Mutuality

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