Specific Performance

Law & JUDICIARY;1

Specific performance is an order of court which requires a party to perform a specific act, usually what is stated in contract. It is an alternative to awarding damages and is classified as an equitable remedy commonly used in the form of injunctive relief concerning confidential information or real property. Like all equitable remedies it is the discretion of the court but the discretion must be exercised judicially according to settled rules and principles. According to Blacks Law Dictionary, Ninth Edition at Page 1529, it has been defined as “the rending, as nearly as practicable, of a promised performance through a judgement or decree, a court ordered remedy that requires precise fulfillment of a legal or contractual obligation when monitoring damages   are inappropriate or inadequate, as when sale of real estate or a rare article is involved.

In Patel V Ali (1984) I AII ER 978, the vendor and her husband were co-owners of the house they contracted to sell in 1979. The husband’s bankruptcy caused delay in completion. After the contract the vendor got bone cancer, had a leg amputated and later gave birth to her second and third children. The purchaser obtained specific performance, against what the vendor appealed on grounds of hardship to leave the house and move away. It was held that the court could in a proper case refuse specific performance on grounds of hardship, Subsequent to the contract, even if not caused by the plaintiff and not related to the subject matter. On the facts, there would be hardship amounting to injustice, therefore damages were awarded. But in Posner V Scott-Lewis (1987) 3 AII ER 513, the court granted an application for specific performance of a lessor’s covenant to employ a resident porter for certain duties. The court distinguished Ryan V Mutual Tontine, where supervision of the execution of the undertaking had been required. Here neither personal services, nor a continuous series of acts, were required but merely the execution of an agreement containing provisions for such services.

Under Common Law, specific performance was not a remedy, with the rights of a litigant being limited to the collection of damages. However the court of equity developed the remedy of specific performance. Specific performance is often guaranteed through the remedy of a right of possession, giving the plaintiff the right to take possession of the property in dispute.

Specific performance is not an attractive remedy for the court in the event of a service contract as the defendant has already shown that he is disinclined to perform. The relationship between the parties might not be conducive, since the parties have engaged in adversarial judicial proceedings. Generally, courts prefer the remedy of damages, and it gives the court flexibility in terms of an amount of damages. But in cases when the subject of contract is an indefinable one, such as a piece of real property, the court will order specific performance.