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Topic 3- Specific Performance Contracts for the sale of land (Doctrine of…
Topic 3- Specific Performance
Contracts for the sale of land
NOTE= NOT AS IMPORTANT FOR EXAM PURPOSE
General Presumption
There is a general presumption that, as land has a unique and special value, damages would not be an adequate remedy for an aggrieved purchaser
P shows conditiosn for SP satisfied, D must demonstrate why remedy should be refused
Jodifern v Fitzgerald
: P must establish the making of an enforceable concluded agreement
Where agreement= verbal one, the p must establish not only concluded agreement but also the existence fo a note of memorandum of the agreement signed by D or his agent
1.Enforceable concluded Agreement
P must prove existence of a contract
Supermacs Ireland v Katesan
: All the erms, whether they be important or unimportant, must be agreed before there can be a concluded agreement
a) Deposit
A deposit does not have to have been paid for there to be enforceable agreement
s51(3) LCLRA 2009: For the avoidance of doubt, but subject to an express provision in the contract to the contrary, payment of a deposit is not necessary for an enforceable contract
AGREEMENT RE AMOUNT AND PAYMENT?
Boyle v Lee
Finaly CJ suggested there would have to be agreement re a deposite
Amount of deposit= too important to be omitted from contract for sale of land unless parties agree no deposit would be paid
Supermacs v Katesan
: Hardiman J suggested it is not essential for there to be a concluded agreement that there is a term re a deposit
b) Completion Date
Boyle v Lee
: Where no time for perfoamce is agreed hte law implies an underdatking by each party to perform his part of the contract within a time which is reasonable having regard to the circumstances of the case
Memorandum or Note
Concluded agreement= oral
s51(1) LCLRA: no action shall be brought to enforce any contract for the sale or other disposition of land unless the agreement on which such action is brought, or some memorandum or note of it, is in writing and singed by the person against whom the action is brought or that person's agent
What should memorandum or note contain?
Godfrey v Power
:
Facts: A memoradum must contain all essential terms
Parties
Property
Price
What constitutes a 'material term'?
a) Deposit
Shirley Engineering v Irish Telecommunications Invesments plc
: The amount of deposit NOT an essential term
b) Recognition of existence of contract
-
Boyle v Lee
: the note or memorandum must directly or by very necessary implication recgonise, not only the terms to be enforced but also the existence of a concluded contract between the parties
Doctrine of Part Performance
Certain circumstances- Equity takes view that to inisist on a memorandum or note would facilitate fraud
e.g. X orally agrees to sale land to Y
Y takes possession of land and starts to build house on it
X changes mind, decides he wants out
Y institutes SP proceedings
X would not be permitted to rely on absence of memorandum or note as defence to Y's action for SP
Y would be allowed to rely on his conduct- acts of part performance, rather than note or memorandum
Price v Kennaghan Developments Limited
: Clark J stted that 'part performace' was never intended to aid an incomplete oral agreement
Essentials of a contract must be there before court can examine whether doctrine of part performance applies
Lowry v Reid
: P mother agreed to leave her property to P if he transferred his farm and £200 to his bro
P did this and went to live with his mother
She made a will to that effect bu later revoked it, leaving P only a life interest
Issue: P sued executors for SP
Held; Rejected argument that evidence of oral contract could not be admitted unless it were first estab alleged acts of part performance unequivocally estab existence of such a contract
Court must consider the contract before it is in a position to judge whether he acts are acts of part performance
The acts must be unequivocally referable to the performance of the contract
Mackie v Wilde
: Ultimately the court is seeking to ensure that D is not relying on the statute, to break faith with P
Set out the essential matters
There was a concluded oral contract
The P acted in such a way which showed an intention to perform the contract
D induced such acts or stood by while they were being performed
It would be unconscionable and a breach of good faith to allow D to rely on terms of Statute of Frauds to prevent performance of the contract
Acts which constitute performance
Taking possession of the land and carrying out improvements
Starlign Securities v Woods:
Held- entering onto land and demolishing buildings thereon constituted part preformance
Payment of money
Steadman v Steadman:
and D were H and W. Jointly owned a house. D left P and was granted maintenance orders. P fell into arrears,oral agreement D would transfer her interest in the house for 1,500
D agreed to discharge of arrears of maintance on the payment of 100 by P
P paid 100 and sent draft deed to D's solicitor
D refused to proceed w transfer
Held; Payment of money can constitute part performance
Contracts for sale of personal property
Generally speaking= SP not ordered in respect of contracts for sale of personal property, as, usually damages would be an adequate remedy
HOWEVER IF PROPERTY IN QU HAS SPECIAL OR UNIQUE VALUE, SP MAY BE ORDERED
Phillips v Lamdin
: This is a case in which he D, in the teeth of his contract, has removed something which is not a mere trifle
You cannot make a new Adam Door.
You cannot in these times refashion a door or a make a copy
I do not see how damages can be an adequate remedy in that case
Cohen v Roche
: Concerned contract for sole of 8 Hepplewaite charis
Noting the chars were 'ordinary articles of commerce and of no special value or interes to P'
and they had been bought by P in ordinary way of his trade for the purpose of ordinary resale at a profit, the court refused to order SP