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SPECIFIC REMEDIES (Specific performance (Attica Sea Carriers v Ferrostaal…
SPECIFIC REMEDIES
Specific performance
SP = order of court directing party in breach to do what he has promised
SP = specific enforcement of primary obligation (contract must be “alive”)
Awarded or withheld on discretionary basis, i.e. court not bound to grant SP just because conditions for it exist (contrast with damages - available automatically)
Awarded where “damages are inadequate” or “where it is just and equitable to do so”. SP will not be decreed if there is an adequate remedy at law (Cud v Rutter (1720) 1 P Wms 570)
Usually not granted if...
- Subject matter of contract not unique, e.g. where goods are ordinary commercial articles which can be obtained elsewhere
- Constant supervision would be necessary to enforce SP
- Where what has to be done is not sufficiently defined
- Contract is for personal services - the court is not a slave driver and will not order a person to work against her will
- Contract is lacking in mutuality
- Claimant’s hands are not clean
- It would cause hardship to the defendant
- It would seriously prejudice the rights of a third party
Pre-condition: there must be a breach of contract
• Court cannot compel one party to specifically perform in one manner, when that party has validly chosen an alternative manner provided in the contract
• The contractual obligation sought to be specifically performed must have become due
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Injunctions
Mandatory (undo breach, restorative effect)
Prohibitory (prevent breach, granted to enforce negative promises)
“Test”: must not cause hardship to defendant that would be oppressive, “balance of convenience” - advantage to the plaintiff must be balanced against detriment to defendant.
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A preliminary question is whether the covenant is in restraint of trade and thus unenforceable – if so, no injunction will be granted in support of the covenant
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Warren v Mendy
Not realistic to say that nothing short of idleness and starvation is compulsive, and therefore no injunction which involves anything less than that can be said to infringe the principle that the court will not specifically enforce a contract of personal services.”
“… the court ought not to enforce the performance of the negative obligations if their enforcement will effectively compel the servant to perform his positive obligations under the contract"
The longer the injunction term sought, the more readily will compulsion be inferred. Also where the injunction is sought not against the servant but against a third party if either the third party is the only other available master or if it is likely that the master will seek relief against anyone who attempts to replace him. An injunction will less readily be granted where there are obligations of mutual trust and confidence, more especially where the servant’s trust in the master may have been betrayed or his confidence in him has genuinely gone
Pub 1997 v Scorpion
SGHC agreed with Warren v Mendy. No injunction, no
evidence that the defendants can perform alternative employment, and also the fact that Canto pop music trends come and go very quickly, such that an injunction would be fatal to their careers unless they performed solely for the plaintiff
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