156 Chapter 5Discharge of contracts and remedies for breach
Two special types of injunctions may be ordered, but only in very limited circumstances.
A freezing injunction prevents a person from moving assets out of the jurisdiction of the
English courts. A search order allows the claimant to take away or photocopy documents
which the defendant might destroy. Both of these injunctions are granted only in very
exceptional circumstances.court for an order of specific performance. If such an order was made by the court
Mark would be ordered to go through with the contract and to let Asif have the vase.
Disobeying such a court order would put Mark in contempt of court and liable to a fine or
imprisonment.
Specific performance is rarely ordered by a court. It will not be ordered where damages
would provide a good enough remedy. It will not therefore be ordered to make a seller
hand over new mass-produced goods which could be obtained from another seller. Specific
performance can be ordered where a seller refuses to hand over unique goods (such as an
antique vase). All plots of land are regarded as unique and so specific performance will be
ordered where a seller of land refuses to perform the contract.
As specific performance is an equitable remedy, it is only available at the court’s dis-
cretion. The remedy will not be ordered in the following circumstances. First, where the
claimant has behaved inequitably (unfairly). This reflects an old saying that: ‘He who comes
to Equity must come with clean hands.’ Second, specific performance will not be ordered to
enforce a contract which required personal services to be provided (such as a contract of
employment). Third, it will not be ordered where to order it would cause excessive hardship
to the defendant. Fourth, it will not be ordered for or against a minor (person under 18).Injunction
An injunction is a court order which requires a person to do or not to do a certain thing.
An injunction can be ordered, as an equitable remedy, to prevent a party from breaching a
contract. However, an injunction will not be ordered where an award of damages would
give a satisfactory remedy. In cases where specific performance could not be ordered,
an injunction will not be ordered if it would have the same effect as an order of specific
performance.Warner Bros Pictures Inc vNelson (1936)An actress, Bette Davis, made a contract with the claimants. She agreed that she would act
for the claimants, and not act for anyone else, for a two-year period. The actress intended
to act for another company. The defendants sought an injunction to prevent this.
HeldAn injunction was ordered to prevent the actress from breaching her contract by
acting for another company. This did not amount to an order of specific performance of
a personal service contract because the claimant was not compelled to act for the
defendants. She could have earnt a living in some other way.
CommentAn injunction forbidding the defendant from doing any other type of work
would not have been ordered. Such an injunction would have forced the defendant to act
for the claimants and would therefore have amounted to specific performance of a personal
service contract.