Specific performance is an equitable remedy that requires a breaching party to fulfill their contractual obligations. It is an alternative to damages when damages are inadequate compensation. For a court to order specific performance, there must be a valid contract, the terms must be clear, the contract must not require personal services or constant supervision, and money damages must not adequately remedy the breach. The document outlines the factors courts consider when determining whether to order specific performance, such as the uniqueness of the subject matter, hardship on the defendant, and the claimant's conduct. It also discusses defenses to specific performance like mistake, misrepresentation, and laches.

1. Equitable remedies
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2.  1) Definition of SP:
 Order from court that a party fulfill obligation under the
contract
 Alternative remedy where damage is not adequate or not
beneficial (Harnett v Yeilding: Lord Reesdayle, “…damage
would not give the party the compensation he is entitled to as
if the agreement was specifically performed)
 Fulfill expectations interest of the innocent party
 2) Valid Contract:
 Breach of contract equals cause of action equals SP
 Contract must be valid for it to be enforced (eg land must be
sealed in a deed in accordance with doctrine of part
performance)
 2.1) Consideration and adequacy of consideration
 Consideration: Although under seal, contract must have
consideration (Jeffrey v Jeffrey: Lord Chancellor, “…the
court will not execute a voluntary contract…court withholds
assistance from the volunteer equally).
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3.  Adequacy of consideration:
 Court must be satisfied (mountfort v Scott: entering of
an agreement with the option to later purchase a house
for 1p entitled P to get SP, which was also irrevocable)
 Adequacy of consideration is not sufficient a reason to
resist SP, but relevant for undue influence/unfairness
(Clark v Malapas)
 2.2) Valid Contract terms:
 No enforcement of vague/indefinite/imprecise contract
terms (equity does not act in vain)
 Cases:
 Joseph v National Magazine Co –(Jade expert and purported
article) court could not order SP because terms were not
sufficient precise thus damages was adequate
 Barrow v Chappell: (Publication of music = no personal
serv ice) SP granted because contract was not for a personal
services as well as the terms were clear thus damages
inadequate 3

4.  2.3) legal Disability:
 Lumley v Ravenscroft: SP was not ordered because one of the
two parties to the contract was a minor at the time
 2.4) Privity of contract
 SP will not be granted to those who are not parties to the
contract
 Exception: lease assignment, SP may be granted under the
head lease.
 3) SP-action in personam
 Directed to the person to fulfill the obligation
 Thus privity is important (Re Hawthorne)
 Makes order against def personally
 4) SP – discretionary order
 a) Basis for Jurisdiction
 SP reward only on equitable ground (except in exceptional
circumstances)
 Def is within jurisdiction, thus basis is good conscience to
compensates P’s lost (Harnett v Yeilding) 4

5.  b) Common Instances:
 i) real property:
 Land is common instance because of its unique
character – ie value fluctuation over periods
 No SP where unjust
 Warmingthon v Miller: No SP because sub lease was
breach not to underlet, damage ordered instead
 ii) Unique Personal property:
 ordinary article of commerce with no specific value or
interest –damage would be sufficient
 If unique character exist or is developed then SP would
be ordered because damage would be insufficient
 Cohen v Roche: No SP because set of chairs were
ordinary articles of commerce with no value or interest
 New Brunswick v Canada: Shares were unavailable and
as such became unique, SP ordered
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6.  iii) Unjust enrichment:
 Person being enriched at the expense or detriment
of another
 Obligation to make restitution arises
 SP may be granted on this ground where third party
has a benefit and damages is inadequate (Beswick v
Beswick- damages would have been nominal and
nephew unjustly enriched if he retained the house)
 iv) Contractual terms:
 Terms indicate that there should be SP in default, a
matter for court to decide (Warner Brothers Pic v
Nelson – contract can be extended if P fails to
perform-no SP for personal service)
 c) Building Contracts
 Usually no SP because it is complex and
indefinite(and contracts must be precise) 6

7.  Exceptions:
 definite works with specific particulars
 Contract is of such importance that damages would be
inadequate (Wolverhampton v Emmons – SP ordered
because defs obligation was precise and damage would be
in adequate, p could not get another contractor)
 5) Factors considered:
 a) Ps conduct – clean hands:
 P must have entered contracted in good faith
 Unjust/fraudulent act/taken advantage of superior
bargaining position = no equitable relief (Jones v Lipman –
P tried to evade SP by conveying a house , he contracted to
buy to a company for the same purpose)
 NOTE: absence of clean hands not a complete bar
 b) Unfairness and hardship:
 Unfairness: unjust to grant SP to P who was at a position of
advantage (Def was drunk, sick, emotional)(Clark v Milpas-
def poor and ill educated)
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8.  Hardship: SP would operate harshly against the def.
(Patel v Ali: couple agreed to sell house then sickness
and children overtook, stated difficult to leave house
because neighbours assisted…no SP because of
hardship, damages instead)
 c) Futility of performance:
 No SP because impossible or futile to perform (Tito v
Waddell: court will not make an order where the issue
is a short tenancy, its futile; Castle v Wilkinson: sale
could not be completed because P had not obtained a
life deed)
 Impecuniosity in futility (having little money)
 Impossibility of performance because there is no
money or very little (Titanic Quarter v Rowe: sale of
house could not be completed because def suffered
hardship or impecuniosities)
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9.  d) Inadequacy of legal remedy:
 Damage is adequate, no SP
 Factors to consider:
 i. Subject matter of the contract (unique v common
instances)
 Common instance (property) -(warmingthon v
Miller – Damages sufficient, No SP case of a
breach of covenant not to underlet)
 Unique personal property (Cohen v Roche: set of
chairs were ordinary article with no value or
interest – no SP, property was not of value)
 ii. Damages difficult to estimate:
 Price of dividends cannot be determined (Adderly
v Dixon: damage at law would not be adequate and
so SP to sell the shares at a speculative price)
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10.  iii. Nominal damages (Beswick v Beswick)
 6) Contracts if personal Service
 Generally not enforceable (complexity, uncertainty,
public policy, undesirability, supervision problems, etc)
(Lumley v Wagner: court has no power to make her sing
but could make her not sing for the other person in
honouring the contract; Ryan v Mutual Tortine: porter
was of personal nature could not supervise; contrast with
Posner v Scott Lewis porter here was a resident and did
not require supervision)
 Distinguishing Ryan from Posner
 Supervision required was continuous, Posner did not
require
 Ryan personal Posner not
 One merely and agreement with such services(posner)
but not personal
 Personal services includes employee and agent partner
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11.  7) Contracts requiring constant supervision
 General rule: equity will not order acts it cannot
supervise = no SP (Ryan v Mutual Tortine; Posner v
Scott-Lewis; CH Giles v Morris: court considers human
nature and used the example that a person cannot be told
how to sing)
 c. Lack of mutuality
 Obligations must be mutual among the parties or equity
will not enforce-No SP (price v Strange: no mutuality at
the time of the contract because his obligation required
constant supervision)
 Perfect mutuality not essential
 Time of mutuality-time of the hearing
 Critical time for mutuality is at the time of the hearing
(Price v Strange: repairs and renovations done at the
time of the hearing mutuality was present at the date
of the hearing,
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12.  8) Defenses for Specific Performance
 a. Mistake and Misrepresentation: (Solle v Butcher:
equitable jurisdiction created by Lord Denning; Great
Peace: there is no equitable jurisdiction in common
mistake)
 b. Conduct of the claimant: cleans hands doctrine
(Coatsworth v Johnson: improper conduct constitutes
illegal not immoral conduct but must have relation with
the equity sued for)
 c. Laches:
 Time delay not of the essence as common law
 Time delay does not bar the party who failed from
asserting his right
 Unreasonable delay causes injury and may become
prejudicial to the matter
 Delay must be sufficient to amount to abandonment
or a waiving of P’s right, so that it becomes unjust to
order SP
 Lindsay Petroleum v Hurd (supports all the
abovementioned points) 12

13.  Unreasonable delay in seeking SP (Lazard Bros v
Fairfield Prop: equity wants P to assert his right with
sufficient speed=consideration of whether it would be
just to grant SP in the circumstances)
 d. Public policy consideration ( Verral v Great Yarmouth:
arrangements made of great magnitude that will affect
people will be enforced)
 9) Part Performance
 1. Doctrine of PP defined
 Principle engrafted in the Stature of fraud
 One party wholly/partially perform his obligations in
the contract and the other party has not
 Prevents the statute from being used as a vehicle of
fraud
 ER
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14.  Aggrieved party usually gets enforcement of the oral
contractor although its against the statute that indicates
it should be written
 2. Basis do the doctrine -Prevention of injustice
 Prevents the failing party from avoid his obligation
 SP only granted if fair:
 No undue influence
 No hardship
 Clean hands doctrine
 Madison v Alderson: traditional test “acts done in PP are
sufficient if agreement existed unequivocally (albeit oral)
 Criticism:
 Test tough
 Does not say who must do the act
 Only referable to a contract – only the one alleged
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15.  Steadman v Steadman: sufficient to show that the acts
done was in reliance to contract, but does not necessary
have to prove that there was a contract – must be more
probable than not
 Effect:
 relaxation of standards of the statute
 Payment of money cannot amount to PP (Steadman:
act relied on was the payment of money by the husband
under the oral contract)
 3. Components of the performance
 a. acts may be referable to some possible love/affection
(Steadman v Steadman: broken down marriage where
husband agrees yo pay maintenance if wife transfers her
share of the matrimonial home)
 b. payment does not constitute PP (Chaproinere v Lambert
suggest that payment is sufficient to constitute PP but
Steadman does not agree) 15

16.  c. Def conduct must be such that it is inequitable for
him to take advantage of the failure
 d. contract must be enforceable (maddison v Alderson)
 e. must have proper parole evidence (Chaproinere v
Lambert)
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