Please enable JavaScript.
Coggle requires JavaScript to display documents.
Topic 18- Remedies Specific Performance (Specific Performance (Mandates…
Topic 18- Remedies
Specific Performance
Specific Performance
Mandates performance of an obligation that arises under a contract or trust
Akin to a mandatory injunction
Distinguishing:
SP compels performance of an obligations that arises under contract or trust
Mandatory injunction compels performance of something else
Equitable remedy
to cater for situations in which damages are inadequate
Before SP may be ordered, P must prove that damages would not be an adequate remedy
Discretionary
While SP retains character as an equitable and therefore, discretionary remedy, the courts recognises that it is generally appropriate to grant it in certain circumstances
Contract for sale of land
Contract for sale of personal property (NOT)
Contracts to Build/Repair
Contracts for provisions of personal services (NOT)
Remedy operates in personam
So long as D is within court's jurisdiction, SP may be ordered against him
e.g. if subject matter located outside of Ireland, courts in Ireland may order SP, so long as D is within Ireland
Penn v Lord Baltimore
Facts: P and D entered into a contract that purported to fixed the boundaries of Pennsylvania and Maryland
P owned P, D owned M
issue: P sought SP in England
D disputed court's jurisdiction to order SP on basis that the contract's subject matter was outside England
Held: Rejected- SP acts against D personally
So long as D within court's jurisdiction, SP may be ordered
P must prove existence of a valid and enforceable contract or trust
If there is no contract or trust, there is nothing in respect of which SP may be ordered
Terms of contract or trust must be so certain as to enable court to frame an order in sufficiently precise terms
Contracts for sale of land
SP is most commonly sought in respect of contracts for sale of land
General presumptionL that as land as a unique and special value, damages would not be adequate remedy for aggrieved purchaser
So where conditions precedent to ordering SP satisfied= ONUS ON D (VENDOR) TO DEMONSTRATE WHY THE REMEDY SHOULD BE REFUSED
A) ENFORCEABLE CONCLUDED CONTRACT
P must prove existence of a contract
Supermacs Ireland v Katesan
: all the terms, whether they be important or unimportant, must be agreed before there can be a concluded agreement
B) MEMORANDUM
If the concluded agreement is an oral one, second requirement
General rule, oral agreement for sale of land must be evidence by a memorandum or note
Originally dicated by s2 Statute of Frauds, now governed by LCLRA 2009
Contracts for sale of Personal Property
Gnerally speaking, SP is not ordered in respect of contracts for sale of personal property as, usually, damags would be an adequate remedy for P
However, if property has a special or unique value, SP may be ordered
Phillips v Lamdin
: This is a case in which the D, in the teeth of his contract, has removed something which is not a mere trifle
No doubt the D liable to replace the door and bring it back
You cannot make a new Adam door
I do not see how damages can be an adequate remedy in that case
Cohen v Roche:
Concerned contract for sale of 8 Hepplewaite charis
Noting the chars were 'ordinary articles of commerce and of no special value or interest' to P
And they had been bought by P 'in the ordinary way of his trade for the purpose of ordinary resale at a profit' the court refused to order SP
Contracts Requiring Supervision
A contract requiring supervision is a contract that requires a party to it to perform an ongoing activity
If ta contract obliges one of the parties to it to peform an ongoing activity e.g. singing in a particular heatre, acting for a particular studio
COURT UNLIKELY TO ORDER SP OF CONTINUING THAT OBLIGATION
Fear that should such SP be ordered, they will become embroiled in supervising compliance with the order on a constant basis
Flexible approach
Posner v Scott-Lewis
Facts; D was lessor of flats and had covenanted tenants that he would employ a resident ported
After porter ceased to be resident, the tenants sought SP
Held: Breach of covenant
took view that to order D to employ a resident porter would not require an unusual degree of superintendence by court
Granted remedy sought
Whether SP should be made seems to depend on following considerations
a) Is there a sufficient definition of what has to be done in order to comply with the order of the court?
b) Will enforcing compliance involve superintendence by the court to an unacceptable degree?
c) What are the respective prejudices or hardships that will be suffered by the parties if the order is made or not?
Ryan v Mutual Tontine Westminster Chambers Assocation
Facts: P, lessee of a flat in a block of flats, was beneficiary of D's covenant to provide a porter who would be 'constantly in attendance'
D appointed individual who was frequently absent
Held; P's action for SP failed because it would require 'the constant superintendence by the court'
Contracts to Build/Repair
Wolverhampton Corporation v Emmons:
Rommer LJ set out three conditions that would have to be satisfied in order to estab entitlement to an order of SP in respect of contract to build/repair
P must establish
The building work is defined by the contract
The particulars of the work are so definitely scerained that the court can sufficiently see what is the exact nature of the work which it is asked to order the performance
P has a substantial interest in having the contract performed
which is of such nature that he cannot adequately be compensated for breach of contract by damages
The D has by the contract obtained possession of the land on which the work is contracted to be done
Jeune v Queens Cross Properties Ltd
Tenants succeeded in obtaining an order of SP against their LL in respect of a covenant to repair after a balcony at front of property partially collapsed
Contracts Involving the Provision of Personal Services
Such contracts include contracts for service
Courts reluctant to order Sp of such contracts because, apart from the issue of ongoing supervision, such orders would have the effect of binding the parties into a close relationship after mutual trust and confidence already broken down
However, while the courts will not force a person to work for or with another, they may enforce undertaking by that person not to work for anyone else
Lumley v Wagner
: D agreed
To sing at P's theatre for certain period of time (positive oblgiation)
not to perform elsewhere during that time (negative obligation)
Subsequently she agreed to sing at another theatre for larger fee
Issue: P sought to restrain her from performing at the other theatre
Held: Injunction granted
D could not be forced to honour positive obligation in her contract with P
However, as matter of practical reality this may sometimes be effect of enforcing negative obligation
Warner Bros v Nelson
: Betty Davis agreed with P she would not act for another studio for period of 5 years
Court enforced negative obligation on basis the court will enforce such obligations where this does not amount to ordering SP by requiring D either to work for P or lie idel
Here enforcement of negative obligation did no amount to this as D could carry out other (undoubtedly much less lucrative, non-acting) work