Specific performance grants the plaintiff what he actually bargained for in the contract rather than damages (pecuniary compensation for loss or injury incurred through the unlawful conduct of another) for not receiving it; thus specific performance is an equitable rather than legal remedy. Please fill the form below and we will get in touch with you. The court may then award the contractually agreed price and deduct sums to reflect the amount not performed. The representative-in-interest, or the principal, or any party thereto excepting where the earning skill, solvency or any personal quality of such party is a material ingredient in the court. … Specific performance Order of the court directing a party to perform the contract specifically according to the terms of contract. Vendor and Purchaser - contract of sale - oral agreement - specific performance - adequacy of damages. Clean hands: Walters v Morgan (1861) 3 DF & J 718 Case summary. Video Summary. These unique qualities are considerations that the buyer and seller must make when they are pricing the land, negotiating the price, and agreeing on the final price. Was this document helpful? It is impossible to grant specific performance. one that creates or transfers and interest in land.3 Consequently, where the procedural law of the arbitration or lex arbitri is that of England and Wales, there is no jurisdiction to order SP of a contract for the sale of land. If you seek specific performance as a remedy in this case, then the party that breached the contract would be required to build the building up to 40 feet. When specific performance would place undue burden on the defendant, When a contract stipulates that either party can renege without notice, When mutuality was lacking when the contract was signed, When the contract required constant supervision. BASIS OF THE REMEDY 2.1. There is therefore no standard template which is used for every transaction. (to do exactly what she has promised in terms of contract) In this case it is,… This remedy is given at the discretion of the court as stated under Section 21 of the Specific Relief Act,1950 as it is basically an equitable remedy Specific performance cases are legal cases in which a party is required to fulfill his or her contractual obligations to resolve a breach of contract. Specific performance cases are legal cases in which a party is required to fulfill his or her contractual obligations to resolve a breach of contract. The latter remedy is specific performance. The determining factor is whether, in equity and good conscience, the court should specifically enforce the contract because the legal remedy of monetary damages would inadequately compensate the plaintiff for the loss. Placer Development Ltd v Commonwealth [1969] HCA 29; (1969) 121 CLR 353 (High Court) Certainty . Usually, the court will grant specific performance under one of the following circumstances: For instance, if a contract involves the sale of a unique object or property, monetary damages alone might not remedy the buyer's situation. Specific performance is equitable relief, given by the court to enforce against a defendant, the duty of doing what he agreed by contract to do. Keywords: Breach of Contract, Judicial Discretion, Specific Performance, Damages. It is true that Courts will exercise a discretion in determining whether or not decrees of specific performance should be made. to order specific performance of a contract, other than a contract relating to land i.e. Think strategically before requesting a specific performance remedy. To that end, while most cases involve the buyer of real property requesting specific performance from the seller, the law recognizes that the seller has a remedy in specific performance as well. Specific performance is a discretionary order made by a court wherein a party to a contract must perform a specific action as outlined in an existent contract. Obtaining specific performance in contracts for the provision of goods and services. Website by BFM. Want High Quality, Transparent, and Affordable Legal Services? There was still an amount of Kshs. Vendor and Purchaser - contract of sale - oral agreement - specific performance - adequacy of damages. Sec.37: “The parties to a contract must either perform, or offer to perform their respective promises, unless such … Under such a circumstance, the court will rarely award specific performance, even if monetary damages are not an adequate compensation. The plaintiff has failed to meet his or her contractual obligations. How to cite this paper: Kanamugire, J. C. (2015). Actions for specific performance are usually allowed with regard to a contract involving the sale of particular real estate; and a contract for sale of a particular business. The obligation of parties to contract—The parties to a contract must either perform, or offer to perform, their respective promises unless such performance is dispensed with or excused under the provisions of this Act, or of any other law. Beswick v Beswick [1968] AC 58. For example, say a construction company is required to build a building to a height of 40 feet. It is typically available in the sale of land law, but otherwise is not generally available if damages are an appropriate alternative. If however, the performance is not held to amount to substantial performance the claimant is entitled to nothing. Everything You Need to Know. T he Supreme Court in a recent judgment laid down requirements for the parties in their respective pleadings, and proof with evidence in accordance with law for the specific performance of a suit.. Equity. Contract law – Privity of contract – Specific performance. There are many circumstances where specific performance will not be ordered by the court. The Model Law similarly omits any reference to specific performance but, to avoid any doubt, s33A provides that, unless otherwise agreed by the parties, the arbitrator has power to make an award ordering specific performance of any contract if the Court would have power to award specific performance of that Contract. Specific performance is equitable relief, given by the court to enforce against a defendant, the duty of doing what he agreed by contract to do. Under it the plaintiff claims for the specific thing of which he is entitled as per the terms of contract. Author: Robin Soni “Specific Performance” an order of the court, which is an alternative of monetary compensation awarded in case of breach of contract by any party i.e when one party fails to fulfil terms of the contract, another party can ask the court to direct the party for performing his contractual obligations instead of awarding damages. 2. Uniform Commercial Code (UCC) is a set of laws adopted by states that govern all aspects of commercial transactions, including specific performance. The court tends to take a harder stance on specific performance. It requires a defendant to actually go through with a certain action he promised to do, instead of just paying money for not keeping his promise. Specific performance is ordered only on equitable grounds in view of all the conditions surrounding the particular case. LAW ON SPECIFIC PERFORMANCE OF CONTRACT Introductory:-A contract is an agreement upon sufficient consideration to do or not to do a particular act. Specific performance of a contract is not a matter of right but a question of equity, and the application is addressed to the sound legal discretion of the trial court and controlled by principles of equity in full consideration of the circumstances in each case. UCC statutes often use the term "replevin" interchangeably with specific performance. Click to rate this Case Law! Specific performance of a contract is not a matter of right but a question of equity, and the application is addressed to the sound legal discretion of the trial court and controlled by principles of equity in full consideration of the circumstances in each case. No need to spend hours finding a lawyer, post a job and get custom quotes from experienced lawyers instantly. When a contract is for the sale of a unique property, for instance, mere money damages may not remedy the purchaser's situation. Specific performance will cause severe harm to the breaching party. ‘ The principle is now well established that a refusal by one party to a contract to perform it before the date of performance arrives places the other party in a position to elect whether to treat such conduct as a breach of contract, or persist in the contract and hold his … For example, if A agrees to sell certain shares to B of a specific company which are limited in number and after the payment made by B, if A refuses to sell the shares then B is entitled to recovery of those shares. Any party thereto. 495, 532 (1959). One such remedy is known as specific performance. For example, say a construction company is required to build a building to a height of 40 feet. In expecting exact performance, the courts mean that, performance must match contractual obligations. Other terms and conditions may also apply in addition to replevin. Pirie v Saunders (1961) 104 CLR 149; [1961] HCA 4 Formalities - oral agreement - authenticated signature fiction . The buyer may pursue specific performance if the seller is unwilling to carry out his or her obligations under the contract. A contract becomes discharged through performance where both parties have fully performed their contractual obligations. Specific performance is a primary remedy for breach of contract available for the aggrieved party. But something goes wrong during construction and, in the end, the building comes out to 35 feet. Specific performance will be supervised constantly. Should a party default on his obligation, a court may issue an order for specific performance, requiring a party to perform a particular action. specific performance may be superior to the expectation measure applies to the degree that there is a chance that the expectation would be underestimated.10 In section 3 of the article, I review the contours of the use of specific performance versus damage measures in Anglo-American, French, and German contract law and relate This case undermines the basic principle of contract law that the parties do not need to come with equal bargaining power. As an alternative to awarding damages, specific performance commonly serves as injunctive relief in legal cases related to real estate or the disclosure of confidential information. 2d Specific Performance § 133 (2014) (hereinafter Specific Performance). 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