Specific Performance

Question 1

Specific Performance

Describe SP?

Answer 1

SP: Mandates the performance of an obligation that arises under a contract or express trust. Thus it’s akin to a mandatory injunction except that SP compels the performance of an obligation under a contract or express trust while MIs compel the performance of something else not the subject of an existing contract relationship

Question 2

Specific Performance

Bagnall v Edwards

Answer 2

Discretionary - Before ordered, must show damages would not be an adequate remedy

Question 3

Specific Performance

Penn v Lore Baltimore [1750]

Answer 3

The remedy operates in personam: D must be in the jurisdiction of the court for SP to be ordered against him
- P + D in contract to fix the boundaries of Pennsylvania (owned P) and Maryland (owned by D)
- P sought SP in UK courts. Held they had jurisdiction as although the dispute’s subject-matter was in the
USA, the D was in England.

Question 4

Specific Performance - General Points

What legal predicates are there for SP? What statutes apply to enforcement etc?

Answer 4

P must show existence of a concluded contract or creation of express trust: if none, there’s nothing in respect of which SP may be ordered. Also, the terms must be so certain to enable court frame an order in precise terms
S.2 Chancery Amendment Act 1858 gives a court power to award damages in lieu of specific performance:
Collins v Duffy [2009]: Held P was entitled to SP but clear they didn’t want to proceed with the purchase so she awarded damages to put them in the position the would’ve been in if the contract had proceeded.

Question 5

Specific Performance - Contracts for the Sale or Other Disposition of Land

General rule?

Answer 5

SP is most commonly sought in contracts for sale of land. Presumption that, as land has special value, damages not adeq remedy for purchaser. So if conditions met, onus on D (vendor) to show why SP should be refused

Question 6

Specific Performance - Contracts for the Sale or Other Disposition of Land

Jodifern v Fitzgerald [2000]

Answer 6

• Held P must establish the making of an enforceable concluded agreement + where it’s a verbal one, P must establish not only the concluded agreement but existence of note/memo signed by D or his agent.

Question 7

Specific Performance - Contracts for the Sale or Other Disposition of Land - Enforceable Concluded Agreement

Supermacs Ireland v Katesan [2000]:

Answer 7

SC held all the terms must be agreed before can be a concl agreement

Question 8

Specific Performance - Contracts for the Sale or Other Disposition of Land - Enforceable Concluded Agreement - Deposit

Do you have to have a deposit for an enforceable agreement?

Answer 8

S.51(3) LCLRA 2009: A deposit does not have to be paid in order for there to be an enforceable agreement.
But do you need an agreement (term) in respect of the amount and payment of a deposit?
Boyle v Lee [1992]: SC said there has to be an agreement in respect of the deposit BUT in:
Supermacs Ireland v Katesan [2000]: SC suggested it’s not essential to have a term relating to a deposit.
Biehler (2016): The better view is that it’s not essential to have a deposit term and the crucial question is whether everything the parties intended to include in the contract has been addressed.

Question 9

Specific Performance - Contracts for the Sale or Other Disposition of Land - Enforceable Concluded Agreement - Completion Date

Boyle v Lee [1992]:

Answer 9

SC held where no time for performance is agreed the law implies an undertaking to each party to perform his part of the contract within a time that is reasonable having regard to the circs of the case

Question 10

Specific Performance - Contracts for the Sale or Other Disposition of Land - Memo or Note

Is a memo or note required for the sale or other disposition of land?

Answer 10

If concluded agreement is an oral one, it must be evidence by a memo or note.
S.2 Statute of Frauds, now governed by, s.51(1) LCLRA 2009 requires a note/memo in writing, signed by D or his agent, before an action can be brought to enforce a contract for the sale of land

Question 11

Specific Performance - Contracts for the Sale or Other Disposition of Land - Memo or Note

Godfrey v Power [1961

Answer 11

sets out the requirements for a memo: 3Ps + ETs

- Must contain all the essential terms. Parties, property + consideration must be ascertainable.

Question 12

Specific Performance - Contracts for the Sale or Other Disposition of Land - Memo or Note

Shirley Engineering Ltd v Irish Telecomms [1999]

Answer 12

• Geoghegan J HC held essential terms are those terms that would always be regarded as essential with any special added terms the parties in the particular case would regard as essential.

Question 13

Specific Performance - Contracts for the Sale or Other Disposition of Land - Memo or Note

Supermacs Ireland v Katesan [2000]

Answer 13

• Geoghegan J in SC then held only ‘material terms’ need be included in a note/memo for it to be sufficient.
  Note: ‘Material Term’ depends on the circs, but generally the 3Ps must be stipulated (parties, prop, price).

Question 14

Specific Performance - Contracts for the Sale or Other Disposition of Land - Memo or Note - Deposit

Shirley Engineering Ltd v Irish Telecomms [1999]:

Answer 14

HC said the amt of the deposit was not an essential term

Question 15

Specific Performance - Contracts for the Sale or Other Disposition of Land - Memo or Note - Evidence of the Existence of a Concluded Agreement

Boyle v Lee [1992]:

Answer 15

Note/memo must recognise existence of a concluded contract bw the parties.

Question 16

Specific Performance - Contracts for the Sale or Other Disposition of Land - Memo or Note - Evidence of the Existence of a Concluded Agreement

Mulhall v Haren [1981]:

Answer 16

If a letter states a transaction is ‘STC’, can’t be sufficient note/memo.

Question 17

Specific Performance - Contracts for the Sale or Other Disposition of Land -The Doctrine of Part Performance

Describe?

Answer 17

In certain circs, equity believes that to insist on a memo/note would facilitate fraud. If P has done some acts of part performance, may be able to rely on this rather than memo/note to show entitlement to SP of the oral agr.
No need for evidence in writing i.e. compliance with s.51 LCLRA 2009.

Question 18

Specific Performance - Contracts for the Sale or Other Disposition of Land -The Doctrine of Part Performance

Lowry v Reid [1927] NI

Answer 18

• P’s mum promised to leave her property to P if he transferred his farm + £200 to his bro. Did this + went to live with mum. She made a will reflecting the promise but later revoked it + left on a life interest.
• Held acts of PP don’t go towards proving existence of an oral agr, but towards establishing P’s right to SP
• Held the acts relied on must be those of P not D. SP ordered. Approved in Steadman v Steadman [1976]

Question 19

Specific Performance - Contracts for the Sale or Other Disposition of Land -The Doctrine of Part Performance

Mackie v Wilde [1998] Ireland

Answer 19

• Alleged contract bw joint owners of fishery to limit the no. of annual licences that’d be issued.
• Held the court’s seeking to ensure D isn’t using the Statute to commit a fraud. Essential matters:
  (1) There was a concluded oral contract;
  (2) P acted in such a way that showed an intention to perform the contract;
  (3) The D induced such acts or stood by while they were being performed; and
  (4) It’d be unconscionable + breach good faith to let D rely on the Statute of F to prevent performance.
• Held the court should first examine what was agreed to establish existence of alleged oral agreement, then turn to conduct of the parties allegedly constituting acts of part performance.

Question 20

Specific Performance - Contracts for the Sale or Other Disposition of Land -The Doctrine of Part Performance

Starling Securities v Woods [1977]:

Answer 20

Taking possession of land and carrying out improvements to it can constitute acts of PP:
Going onto land + demolishing buildings on it constituted acts of PP

Question 21

Specific Performance - Contracts for the Sale or Other Disposition of Land -The Doctrine of Part Performance

Steadman v Steadman [1976]

Answer 21

The payment of money can also constitute an act of PP and so can transferring deeds/documents:

• P + D were husband + W. Jointly owned house. D left P + was granted maintenance orders. P fell into arrears + oral agreement reached where D would transfer her interest in the house to P for £1.5k
• D agreed to discharge of the arrears of maintenance on payment of £100 which P paid+ sent draft deed
• D refused to proceed. Held the payment of money constituted an act of PP.

Question 22

Specific Performance - Contracts for the Sale of Personal Property - Sufficient Rarity/Unique Quality

Phillips v Lamdin [1949

Answer 22

Adam door unique as can’t make new one nowadays. Damages insufficient. SP.

Question 23

Specific Performance - Contracts for the Sale of Personal Property - Sufficient Rarity/Unique Quality

Cohen v Roche [1927]:

Answer 23

Contract for sale of 8 chairs. No SP: chairs were ordinary + no special value

Question 24

Specific Performance - Contracts Requiring Supervision

General Rule?

Answer 24

Contracts requiring a party to perform an ongoing activity are unlikely to get SP from the court due to continuing obligations. Courts want to avoid supervising compliance on a constant basis.

Question 25

# Specific Performance - Contracts Requiring Supervision - Traditional Approach Ryan v Mutual Tontine Westminster Assoc [1893]

Answer 25

- Lessee in block of flats was beneficiary of D’s covenant to provide a porter who’d be ‘constantly in attendance’. D appointed one who was regularly absent. SP failed: requires continuing supervision.

Question 26

# Specific Performance - Contracts Requiring Supervision Posner v Scott Lewis [1987] CURRENT law + Relaxed stance

Answer 26

- D lessor of flats. Covenanted with tenants to hire a resident porter. After porter ceased to live there, tenants sought SP. Held there was a breach of covenant. - Held to employ a resident porter wouldn’t involve a large degree of supervision by a court.

Question 27

# Specific Performance - Contracts Requiring Supervision Co-op Insurance v Argyll Stores [1998]

Answer 27

- D contracted to sell from outlet in P’s centre. D trading at loss so decided to relocate. P sought SP. - Possibility of court having to give indefinite no. of rulings to ensure execution of SP makes it undesirable. - If terms of oblig suff precise not to be void for uncertainty, doesn’t mean sufficiently precise for SP - Objection SP here: may unjustly enrich P at D’s expense.

Question 28

# Specific Performance - Contracts Requiring Supervision Wanze Properties v 5 Star Supermarket [1997]:

Answer 28

Similar facts but D not operating business at loss thus granted interlocutory injunction mandating D continue trading pending the trial of action.

Question 29

# Specific Performance - Contracts Requiring Supervision - To Build or Repair Wolverhampton Corporation v Emmons [1901

Answer 29

Three conditions to get SP order for build/repair contract: (i) The building work and its exact nature is defined by the contract (ii) P has substantial interest in having the contract performed that cannot be remedied by damages (iii) D has, by the contract, obtained possession of the land on which the work’s contracted to be done

Question 30

# Specific Performance - Contracts Requiring Supervision - To Build or Repair Jeune v Queens Cross Properties [1974]:

Answer 30

Tenants got SP against landlord for a covenant to repair after a balcony at front of property collapsed.

Question 31

# Specific Performance - Contracts Requiring Supervision - To Build or Repair Rainbow Estates v Tokenhold [1999]

Answer 31

- Tenant’s repair coven: Held there’s no constraints of principle/binding authority against availability of SP - held issue of defining the work + need for supervision can be overcome by ensuring suff definition of what has to be done to comply w order. Remedy should be available when damages inadequate remedy

Question 32

# Specific Performance - Contracts Requiring Supervision - Coontracts Involving the Provision of Personal Services General rule?

Answer 32

Contract of services (employer/employee) + Contract for services (self-employed contracts to provide service)  Courts are reluctant to order the SP for such contracts as, apart from issue of ongoing supervision, it has the effect of binding the parties into a close relationship after mutual trust + confidence has broken down.  While reluctant to force person to work against their will, may enforce undertaking not to work for other

Question 33

# Specific Performance - Contracts Requiring Supervision - Coontracts Involving the Provision of Personal Services Lumley v Wagner [1852]

Answer 33

- D agreed (i) to sing at P’s theatre for period + (ii) not to sing at any other theatre during. Sang at other. - Granted inj: noted D couldn’t be forced to honour the positive obligation to sing but it must be recognised, as a matter of practical reality, this may sometimes be the effect of enforcing a negative obligation.

Question 34

# Specific Performance - Contracts Requiring Supervision - Coontracts Involving the Provision of Personal Services Warner Brothers v Nelson [1937]

Answer 34

- Bette Davis (D) agreed not to act for another studio for 5 yrs. Court enforced the negative undertaking on basis it didn’t amount to ordering SP by requiring D either work for P or lie idle. - Enforcement didn’t amount to this as D could do other (but less-lucrative, non-acting) work.

Question 35

# Specific Performance - Contracts Requiring Supervision - Coontracts Involving the Provision of Personal Services Lift Manufacturers v Irish Life [1979]

Answer 35

- Held if no reason for court to engage in ongoing supervision, argument against enforcing can’t apply

Question 36

# Specific Performance - Contracts Requiring Supervision - Coontracts Involving the Provision of Personal Services CH Giles v Morris [1972]

Answer 36

- Megarry J spoke of ‘strong reluctance’ to order SP of such contracts as opposed to a ‘rule’ against it - In general, inconvenience of ordering SP of such contracts outweighs the advantage + SP will be refused. - But shouldn’t be assumed as soon as any element of continuous service is discerned in a contract that a court will refuse SP. A requirement of continuous performance has the disadvantage that repeated breaches may lead to repeated apps for a court to enforce. Must balance disadvantage + particular oblig

Question 37

# Specific Performance - Contracts Requiring Supervision - Coontracts Involving the Provision of Personal Services Carroll v Dublin Bus [2005]

Answer 37

- P dismissed for misconduct after being involved in TU activities at a time he was certified unfit to work. - Breakdown in relationship. SP only ordered if clear no other issues would arise (not here)

Question 38

# Specific Performance - Contracts Requiring Supervision - Coontracts Involving the Provision of Personal Services Hill v CA Parsons [1972]

Answer 38

- Inj against employer to restrain alleged wrongful dismissal of employee in circs where he was reluctantly forced to do so by pressure from TU employee refused to join. Justified as T+C still existed bw them

Question 39

# Specific Performance - Contracts Requiring Supervision - Coontracts Involving the Provision of Personal Services Ahmed v HSE [2007]

Answer 39

- Refused SP requiring D appoint P consultant as felt not practical to make such an order to provide surgical services to the public

Question 40

# Defences to an Action - Lack of Mutuality Flight v Bolland [1828]

Answer 40

Courts won’t grant SP to P if they couldn’t grant it to D: D was a minor.

Question 41

# Defences to an Action - Lack of Mutuality O’Regan v White [1919]

Answer 41

- Not ‘even-handed justice’ to order SP against one party where the same remedy not available against other - This case also stands as authority for: If there’s a contract bw A+B and B’s contractual obligations don’t arise until A has performed his, B can’t raise mutuality defence once A has performed his obligations.

Question 42

# Defences to an Action - Lack of Mutuality Price v Strange [1978]

Answer 42

- Orally agreed P would repair D’s prop for new lease. No memo/note. Half done, D refused to let P continue + finished himself. P’s SP refused: not capable of mutual enforcement at time contract entered - Overturned by CA: Held mutual availability of remedy must be considered at the time of the hearing not the date agreement entered into. SP was the appropriate remedy - Also held lack of mutuality doesn’t result in court being w/o jurisdiction to entertain SP claim but is matter to be considered in exercising jurisdiction.

Question 43

# Defences to an Action - Misrepresentation What is misrep in this context?

Answer 43

Misrepresentation: A false statement that induces a person to enter into a contract, w/o itself becoming a term. Contract may be rescinded for misrep, but even if not serious enough for that, may refuse to order SP of it

Question 44

# Defences to an Action - Misrepresentation Re Banister [1879]

Answer 44

- The considerations inducing a court to rescind a contract + order SP are different: may not be sufficient evidence to induce rescission, but may be sufficient to prevent court enforcing the contract.

Question 45

# Defences to an Action - Misrepresentation Smelter Corporation v O’Driscoll [1977]

Answer 45

If a misrep is fraudulent/negligent, court slow to order SP. If innocent, depends on the circs + if contract is fair - P sought SP of contract for sale of land. D reluctant to sell. Trying to persuade him, P’s agent told her if she didn’t sell then land would be compuls purchased by local authority. P believed this was true; it wasn’t - D made no effort to discover the local authority’s intentions + believed true. - Refused SP: bc of P’s misrep, D under a fundamental misapprehension about the true facts. Unfair to grant

Question 46

# Defences to an Action - Mistake Describe?

Answer 46

A mistake can (i) prevent a contract coming into existence or (ii) justify rescission. In this case, SP unavailable However, not all mistakes provide a defence to SP. Whether P contributed to or knew of the mistake will be important in deciding whether to order SP or not.

Question 47

# Defences to an Action - Mistake Webster v Cecil [1861]

Answer 47

- D mistakenly offered prop for sale at 1k instead of 2k. P, knowing of D’s mistake, accepted. SP refused

Question 48

# Defences to an Action - Mistake Tamplin v James [1880]

Answer 48

- D mistakenly assumed a prop was being sold with a larger amount of land than was actually included. - D hadn’t looked at the plans. P was granted SP: if a man won’t take reas care to ascertain what he’s buying, must take consequences. Mistake defence can’t hold: allow fraud/hardship amounting to injustice

Question 49

# Defences to an Action - Mistake O’Neill v Ryan [1992]

Answer 49

- P former CEO of Ryanair sought SP of agreement by D to buy his shares at certain price. D claimed there was a mistake: they intended the offer to be in full + final settlement of all claims but P said only of one. - HC held it had to balance the hardship which P + D would be subjected. Held a valid contract came into existence + P had in no way contributed to the confusion (NB). SP ordered.

Question 50

# Defences to an Action - Mistake Ferguson v Merchant Banking Ltd [1993]

Answer 50

- P sought SP for sale of land. Liquidator of D contested arguing D mistakenly included a vacant site in sale - HC accepted D made mistake but no fundamental error + no lack of agreement on a fundamental term - Thus D wasn’t entitled to deprive P of the benefit of the contract. SP ordered.

Question 51

# Defences to an Action - Frustation/Impossibility Neville & Sons v Guardian Brothers Ltd [1990]

Answer 51

- Contract: P to build houses on D’s site. Only access to site was by new road to be built on land to be bought from local auth. Difficulties buying land. Ps sued for SP: D said the issues amounted to frustration - Rejected: no supervening event that rendered performance of the contract frustrated even though D’s difficulties rendered performance more onerous

Question 52

# Defences to an Action - Frustation/Impossibility Aranbel Ltd v Darcy [2010]

Answer 52

- D agreed to buy a prop from P in 2006. Obliged to complete it by March 08. Unable: financial difficulties - D resisted P’s SP app arguing their impecuniosity made completion impossible. - HC refused to order SP but held P was entitled to damages in lieu. - Considered the rule that equity doesn’t act in vain: court shouldn’t order if there’s no reasonable prospect of the order being complied with unless it’s where a person is just simply declining to comply. - In deciding whether to order SP where impossibility is advanced as a defence, court should consider whether or not there’s a realistic possibility of performance. If not, will be back before court + thus in vain - Distinguished bw inability to complete + inabil to complete in way intended: 2nd isn’t ground to refuse SP - For buyer to show imposs, must show he has no realisable assets / borrowing capacity to pay for prop. - Relevant date for assessing impossibility it not date of contract but date in court. When they entered,

Question 53

# Defences to an Action - Hardship Roberts v O’Neill [1983]

Answer 53

- SC rejected D’s attempt to resist enforcing sale of pub on basis it had increased a lot in value. Held date to assess hardship is date of contract. May be cases when hardship arises after, but not from inflation alone

Question 54

# Defences to an Action - Hardship Patel v Ali [1984]

Answer 54

- Exceptional facts: After agreement concluded for sale of D’s house, she got cancer, leg amputated. Also pregnant + gave birth. Husband sent to jail for bankruptcy. Spoke no English. Relied on fam + neighbours. - Refused SP: extraordinary circumstances. P confined to damages. Supervening hardship is defence to SP.

Question 55

# Defences to an Action - Hardship Conlon v Murray [1958]

Answer 55

Courts also willing to take hardship that may be caused to a third party into account: - SP sought against executor’s of a vendor’s estate. Vendor old lady who sold family farm w/o any independent legal advice or time to consider it. Held if SP ordered, her brother would have no home.

Question 56

# Defences to an Action - Hardship Aranbel Ltd v Darcy [2010]

Answer 56

- Distinguished hardship + impossibility. Said self-induced hardship looked on unforgivingly: originally wouldn’t have needed to sell the fam home but dealt with assets in way that they were no longer available

Question 57

# Defences to an Action - Delay General rule?

Answer 57

Mere delay won’t result in SP being refused especially in contracts for the sale of land where time is rarely of the essence, but if parties made time of the essence, diff considerations apply

Question 58

# Defences to an Action - Delay Union Eagle Ltd v Golden Achievement [1997]

Answer 58

- Buyer tendered the purchase price 10 mins late under a contract w a precise time + for completion + expressed that time was of the essence. Seller already declared the contract rescinded + deposit forfeited. - Held if a party in sale of land were to rescind due to other party’s failure to comply with an essential condition as to time, equity won’t intervene.

Question 59

# Defences to an Action - Delay McGrath v Stewart [2008]

Answer 59

Usually, the question is whether or not as a result of P’s delay granting SP would cause D prejudice: - P sought order of SP re contract for sale of land entered into on June 8 1998. P agreed to pay 25k each for 2 properties. Closing date in contract was July 23. Sale never completed but dispute arose: - P believed he’d get vacant possession. D insisted it was subject to existing tenancies. Case started in 2004. - HC described the delay as substantial + prejudicial as the value of the land had increased from 25k to 250k Thus If ordering SP would cause D’s hardship due to P’s delay in instituting his action, that delay can be a defence (McGrath). If ordering SP would cause hardship due to something else arising after the date of contract and not P’s fault, that hardship is not a defence (Roberts) unless exceptional circs (Patel).

Question 60

# Defences to an Action - Delay Aranbel Ltd v Darcy [2010]

Answer 60

- Held delay not a defence here as correspondence continued for 6mths before proceedings issued + nothing done in that period could’ve reasonably left D w legitimate view the matter wasn’t to be proceeded with

Question 61

# Defences to an Action - Illegality, Immorality, Contrary to Public Policy Starling Securities Ltd v Woods [1977]

Answer 61

- Under the counter payments made as part of consideration in sale of property. HC refused SP as P had not come to equity with clean hands.

Question 62

# Defences to an Action - Illegality, Immorality, Contrary to Public Policy Kavanagh v Caulfield [2002]

Answer 62

- D sought to rely on illegality to defend SP action. They entered into a contact for sale of property. - Before entering, P gave money to charity. Claimed D requested this. D said shouldn’t order SP as the consideration didn’t reflect the true consideration+ purpose of P giving the money was to defraud Revenue - Held must ask (1) is it an illegality the court should take notice of + (2) would it be an affront to public conscience if by giving him the relief sought the court was assisting/encouraging a crime (3) the court must be satisfied the contract has not been otherwise rendered ineffective. - Burden on D: D hadn’t shown here that P intended to defraud + carry it on in an illegal fashion.

Question 63

# Defences to an Action - Illegality, Immorality, Contrary to Public Policy Wroth v Tyler [1974]

Answer 63

If the enforcement of an agreement would be contrary to public policy the courts would also not order SP: - After entering contract to sell house, D’s wife got right to occupy the prop. Refused to leave. P sought SP - Refused SP on public policy: (1) D could only comply by suing wife + against PP to make a man sue his wife (2) if made, wife would retain right of occupation but him + kids evicted. Splitting up fam against PP