Chapter 7Introduction to the law of contractSpecific performance
A decree of specific performance is an order of the court
requiring the party in breach to carry out his contractual
obligations. Failure to comply with the directions of the
court lays the defendant open to the imposition of
penalties for contempt of court. Like all equitable remed-
ies, the grant of specific performance is discretionary.
It may be withheld in the following circumstances:
1 Damages adequate. An order for specific performance
will not be made if damages would be an adequate
remedy. Most breaches of contract can be remedied by
an award of monetary compensation. If it is a contract
for the sale of a unique item, however, no sum of money
can compensate the disappointed buyer for his lost
opportunity, and specific performance will be granted.
Each piece of land is regarded as being unique and thus
the remedy is available for contracts for the sale of land.
2 Mutuality. Equity requires mutuality as regards its
remedies. This means that both parties must potentially
be able to seek an order of specific performance. An
adult cannot obtain such an order against a minor, so a
minor will not be awarded specific performance either.
3 Supervision.An order will not be made unless the
court can adequately supervise its enforcement. It is for
this reason that specific performance will not be awarded
to enforce building contracts, because the court cannot
supervise on the day-to-day basis which would be neces-
sary. Similar principles apply to employment contracts.
4 Discretion. The court may refuse specific perform-
ance where it is felt that it would not be just and equit-
able to grant it.Injunction
This is an order of the court requiring the party at fault
not to break the contract. Its main use is to enforce the
negative promises that can occasionally be found in
employment contracts. The employee may agree, for
example, not to work in a similar capacity for a rival
employer during the period of his contract.259
Ryanv Mutual Tontine Westminster
Chambers Association(1893)
The landlord of a flat agreed to provide a resident porter
who would undertake certain duties for residents. A porter
was appointed but he had another job as a chef in a
nearby club, which meant he was absent from the build-
ing for several hours each day. While he was away, his
duties were performed by various non-resident cleaners
and boys. It was held that the only remedy for the breach
of contract was an action in damages. Specific perform-
ance would not be granted.
Comment. In a more recent similar case, the court had no
difficulty in awarding specific performance of a contract
to provide a resident porter. It was held that damages
would not be an adequate remedy. It was relatively easy
to define what was required under the contract and it did
not involve constant supervision (Posnerv Scott-Lewis
(1986)).Warner Brothersv Nelson(1936)The film actress, Bette Davis, had agreed not to work as
an actress for anyone else during the period of her con-
tract with Warner Bros. In breach of this agreement, she
left the USA and entered into a contract with a third party
in the UK. The court held that Warner Bros were entitled
to an injunction to prevent the star from breaking the
negative provision in the contract.It should be noted that an injunction cannot be used
as a back-door method of enforcing a contract of
employment for which specific performance is not avail-
able. Warner Bros could prevent Miss Davis from work-
ing as an actress for anyone else. They could not have
obtained a decree of specific performance to force her to
return to their studio.Claims for restitution: quasi-contract
The law of restitution may provide a claimant with a
remedy in situations where the defendant has obtained
an unjust benefit. The requirement to repay money does
not arise because of a breach of a legal duty, such as a
breach of contract or a tort, but because the defendant
has been unjustly enriched. The liability is said to be
quasi-contractual – as iffrom a contract – although in
reality there is no liability in contract.
An action for restitution may arise in the circum-
stances summarised below.Claims on a quantum meruit
Instead of claiming a precise sum, the claimant may be
able to sue on a quantum meruitfor payment for work
he has actually done. A quantum meruitclaim can arise
either contractually or quasi-contractually in the follow-
ing situations: