Equitable Remedies
Where common law remedies are inadequate to compensate the claimant, there are a
range of equitable remedies. However, these are not available as to right, merely
because the defendant is in breach. They are provided at the discretion of the court,
taking into account the behaviour of both parties and the overall justice of the case.
SPECIFIC PERFORMANCE
An order of specific performance is a court order compelling someone to perform their
obligations under a contract. The common law will not force a party in breach to perform
(except where the performance is simply paying money), even though this may seem a
fairly obvious solution to many contract problems.The equitable remedy of specific
performance does compel the party in breach to perform. In practice, specific
performance only rarely applies, as the making of such an order is subject to the
following restrictions.
1. Damages must be i
nadequate
Specific performance is only granted where damages alone would be an inadequate
remedy (though damages may be ordered as well as specific performance). It is not,
therefore, applied where the claimant could easily purchase replacement goods or
performance. Where the goods that are the subject of the contract are in some way
unique, then specific performance can be available. For this reason, specific
performance is mainly applied in contracts to sell land (which includes land with
buildings), since each piece of land is thought to be unique, and impossible to replace
exactly. Where the damages would only be nominal, specific performance may be
ordered to avoid one party being unjustly enriched. The latter circumstances applied in
Beswick v Beswick.
Beswick v Beswick
Where the claimant’s husband sold his business to his nephew in return for an annual
allowance to be paid to himself and, after his death, to his widow. Once the husband
died, the nephew refused to make payments to the widow. Despite the fact that the
husband had clearly intended her to benefit from the contract, it was held that the widow
could not sue the nephew in her own behalf, because she was not a party to the
contract. However, the widow was allowed to sue as the executor of her husband’s
estate. The circumstances were such that the husband suffered no loss, because he
had died before the nephew stopped paying the annuity, so damages would only have
been nominal. It was clearly unjust for the defendant to keep the entire benefit of the
contract without himself performing much at all. As a result, specific performance was
ordered.
, 2. Hardship to the defendant
Because specific performance is a discretionary remedy, the court will not apply it to
cases where it could cause the defendant great hardship or unfairness.
Patel v Ali
The claimant had requested specific performance on a contract for the sale of a house.
The claim was delayed by four years (through no fault of either party) and in this time,
the seller’s husband had gone bankrupt and she had become disabled.
3. Contracts made unfairly
Equity also allows the court to refuse specific performance of a contract which has been
obtained by unfair means, even if they do not amount to the sort of vitiating factor which
would invalidate the contract.
Walters v Morgan
The defendant, who had just bought some land, agreed to grant the claimant a mining
lease over it. When the party who had asked for the lease tried to enforce the
agreement by specific performance, the court refused, on the grounds that the claimant
had taken advantage of the fact that the defendant had not really known the value of the
lease at the time the agreement was made.
4. Contracts unsuitable for s
pecific performance
Some types of contract are, by their nature, unlikely to be subject of an order for specific
performance. The two main types are
1. contracts involving personal services (such as employment contracts), where
specific performance would infringe personal freedom, and
2. contracts which involve continuous duties.
Where common law remedies are inadequate to compensate the claimant, there are a
range of equitable remedies. However, these are not available as to right, merely
because the defendant is in breach. They are provided at the discretion of the court,
taking into account the behaviour of both parties and the overall justice of the case.
SPECIFIC PERFORMANCE
An order of specific performance is a court order compelling someone to perform their
obligations under a contract. The common law will not force a party in breach to perform
(except where the performance is simply paying money), even though this may seem a
fairly obvious solution to many contract problems.The equitable remedy of specific
performance does compel the party in breach to perform. In practice, specific
performance only rarely applies, as the making of such an order is subject to the
following restrictions.
1. Damages must be i
nadequate
Specific performance is only granted where damages alone would be an inadequate
remedy (though damages may be ordered as well as specific performance). It is not,
therefore, applied where the claimant could easily purchase replacement goods or
performance. Where the goods that are the subject of the contract are in some way
unique, then specific performance can be available. For this reason, specific
performance is mainly applied in contracts to sell land (which includes land with
buildings), since each piece of land is thought to be unique, and impossible to replace
exactly. Where the damages would only be nominal, specific performance may be
ordered to avoid one party being unjustly enriched. The latter circumstances applied in
Beswick v Beswick.
Beswick v Beswick
Where the claimant’s husband sold his business to his nephew in return for an annual
allowance to be paid to himself and, after his death, to his widow. Once the husband
died, the nephew refused to make payments to the widow. Despite the fact that the
husband had clearly intended her to benefit from the contract, it was held that the widow
could not sue the nephew in her own behalf, because she was not a party to the
contract. However, the widow was allowed to sue as the executor of her husband’s
estate. The circumstances were such that the husband suffered no loss, because he
had died before the nephew stopped paying the annuity, so damages would only have
been nominal. It was clearly unjust for the defendant to keep the entire benefit of the
contract without himself performing much at all. As a result, specific performance was
ordered.
, 2. Hardship to the defendant
Because specific performance is a discretionary remedy, the court will not apply it to
cases where it could cause the defendant great hardship or unfairness.
Patel v Ali
The claimant had requested specific performance on a contract for the sale of a house.
The claim was delayed by four years (through no fault of either party) and in this time,
the seller’s husband had gone bankrupt and she had become disabled.
3. Contracts made unfairly
Equity also allows the court to refuse specific performance of a contract which has been
obtained by unfair means, even if they do not amount to the sort of vitiating factor which
would invalidate the contract.
Walters v Morgan
The defendant, who had just bought some land, agreed to grant the claimant a mining
lease over it. When the party who had asked for the lease tried to enforce the
agreement by specific performance, the court refused, on the grounds that the claimant
had taken advantage of the fact that the defendant had not really known the value of the
lease at the time the agreement was made.
4. Contracts unsuitable for s
pecific performance
Some types of contract are, by their nature, unlikely to be subject of an order for specific
performance. The two main types are
1. contracts involving personal services (such as employment contracts), where
specific performance would infringe personal freedom, and
2. contracts which involve continuous duties.
