Specific Performance as a Contract Breach Remedy
TITLE
Specific performance is a remedy for breach of contract awarded at the court’s discretion. Describe the nature of this remedy. Assess the extent to which the court’s discretion to use it is limited.
ESSAY
Title: The Nature and Limitations of Specific Performance as a Remedy for Breach of Contract in the English Legal System
Introduction
Specific performance is a discretionary remedy available in the English legal system for breaches of contract. This essay aims to discuss the nature of this remedy and assess the extent to which the court's discretion to grant specific performance is limited.
Defining the Remedy
Specific performance is a remedy ordered by the court requiring a party to perform their obligations under a contract as agreed upon by the parties. It is an equitable remedy aimed at enforcing the specific terms of a contract rather than providing monetary compensation.
The Discretionary Nature of Specific Performance
The court has discretion in granting specific performance, as seen in cases like Wood v Scarth and Webster v Cecil. In these cases, it was highlighted that the court will consider various factors, such as the feasibility of performance and the equities between the parties, before granting this remedy.
Availability of Specific Performance
Specific performance is only available where damages would be an inadequate remedy. This is known as the 'available market' test as established in the case of Cohen v Roche. The remedy is commonly used in cases involving unique goods, sale of land, or obligations to pay money to third parties, as seen in Behnke v Bede Shipping Co Ltd, Adderley v Dixon, and Beswick v Beswick.
Limits Imposed by Equity
Equity imposes limits on the court's discretion to grant specific performance. For instance, if enforcing the contract would result in hardship or if the contract is unfair, as shown in cases like Patel v Ali and Walters v Morgan, the court may not grant specific performance.
Limits Imposed by Mutuality
The principle of mutuality restricts the availability of specific performance to cases where both parties can be compelled to perform. For example, specific performance is not available against minors as seen in Flight v Bolland.
Limits Imposed by Law
Certain legal limitations also restrict the court's discretion in granting specific performance. For example, personal service contracts are generally not specifically enforced due to considerations of personal freedom, as outlined in s.236 of the Labour Relations (Consolidation) Act 1992. However, there may be some flexibility in compelling an employer to reinstate an employee, as seen in Hill v CA Parsons Ltd.
Practicality Consideration
The courts may also consider the practicality of enforcing specific performance in certain contracts. Contracts requiring constant supervision may not be suitable for specific performance, as shown in cases like Ryan v Mutual Tontine Association and Co💥op Insurance Society Limited v Argyll Stores (Holdings) Ltd. However, specific performance may be granted where continuous supervision is not necessary for proper contract enforcement, as seen in Posner v Scott Lewis.
Conclusion
In conclusion, specific performance is a valuable remedy for breaches of contract, but its availability and scope are subject to various limitations imposed by equity, mutuality, law, and practical considerations. The court's discretion in granting specific performance aims to balance the rights and equities of the parties involved in contractual disputes.
SUBJECT
LAW
PAPER
A level and AS level
NOTES
Specific performance is a remedy for breach of contract awarded at the court’s discretion. Describe the nature of this remedy. Assess the extent to which the court’s discretion to use it is limited.
Candidates may show knowledge and understanding by:
💥 Defining the remedy
💥 Describing its discretionary nature (Wood v Scarth, Webster v Cecil)
💥 Describing that it is only available where damages are inadequate – the ‘available market’ (Cohen v Roche)
💥 Describing when it will be used. For example, unique goods (Behnke v Bede Shipping Co Ltd), Sale of land (Adderley v Dixon), or an obligation to pay money to a third party (Beswick v Beswick).
In assessing the scope of the court to use the remedy candidates may address the following:
💥 The limits imposed by equity. For example, if hardship results (Patel v Ali), to enforce an unfair contract (Walters v Morgan).
💥 The limits imposed by the notion of mutuality (where the order is not available to both parties). For example, it is never available against a minor (Flight v Bolland).
💥 Limits imposed by the law. For example, personal service contracts. It is seen as infringing personal freedom to make someone work for an employer they don’t wish to (s.236 Labour Relations (Consolidation) Act 1992) although there is some flexibility on compelling an employer to reinstate an employee (Hill v CA Parsons Ltd).
💥 Whether the courts consider an award impractical. For example, Contracts requiring constant supervision (Ryan v Mutual Tontine Association, Co💥op Insurance Society Limited v Argyll Stores (Holdings) Ltd) but possible where the courts are not required to constantly supervise for the contract’s proper enforcement (Posner v Scott Lewis).