5. Specific performance

What the order does

An order of specific performance compels a party to perform his main obligation under a contract, such as conveying land. Disobedience is contempt of court. It can lead to committal to prison, sequestration of property, or a fine.

A discretionary remedy

Like every equitable remedy, specific performance is discretionary. The discretion is exercised on settled principles, so results are predictable. A buyer of land can usually expect it, because each piece of land is unique. A person seeking to enforce a contract of personal service usually cannot get it.

Damages must be inadequate

Equity acts only where the common law remedy is not enough. Damages are inadequate where the subject matter is unique, such as land or a rare object, where the loss is hard to measure, or where the claimant would otherwise need to sue again and again. In Beswick v Beswick a widow, suing as administratrix, obtained specific performance of her late husband's contract with his nephew to pay her an annuity, because damages to the estate would have been only nominal. Where the contract says a fixed sum is to be paid as an alternative to performance, the court will not order performance.

When the court refuses

The court will refuse specific performance in these situations.

Constant supervision: the court will not order something that needs it to supervise a continuing activity. In Co-operative Insurance Society v Argyll Stores the House of Lords refused to order a supermarket to keep trading in a shopping centre, though the covenant had been broken.

Personal services: a court will not force people to work together. An injunction to stop a person working for a rival may be possible, but not an order to work.

Lack of mutuality: equity once refused the remedy if it could not have been granted against the claimant too. Today the question is whether the defendant would be treated unfairly.

Hardship, conduct and delay: severe hardship to the defendant, the claimant's own unfair conduct, or unreasonable delay can each bar relief. Clean hands applies here.

Futility: equity does not act in vain. If the defendant cannot perform, the court will not order him to. But it will look through a sham. In Jones v Lipman the seller transferred the land to a company he controlled to avoid the sale. The company was a mask, and specific performance was ordered against him and the company.

Acting in personam

The order is against the defendant personally, so it can concern land outside the jurisdiction if the defendant is within it. In Penn v Lord Baltimore, Lord Hardwicke ordered specific performance of an agreement fixing the boundaries between Pennsylvania and Maryland, because the defendant was in England.

Timing

A claim is usually brought after breach. But the court may act before the date for performance if there is a real threat of breach. In Hasham v Zenab the Privy Council ordered specific performance of a sale of land before completion was due, where the seller had tried to back out.

Damages instead of, or as well as, the order

The court may award damages in addition to, or in place of, specific performance. In England this power began with Lord Cairns' Act 1858, which is a pre-1880 statute. Where land is smaller than described, the court may order the sale with an abatement of the price.