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contract - specific performance

contract - specific performance

Postby megaman » Tue Aug 22, 2017 5:59 pm

One remedy for breach of contract is specific performance.

So, if one party breaches a contract by pulling out compleatly, the other can make a claim to enforce performance.

I have a few questions about this.
My questions are as follows

1)
If a claim is successfull but it has become clear that the defendant will still not perform willingly does the claimant have to perform his part of the contract before enforcement can be attempted (and risk performing and not getting anything in return) - is it possible for the claimant to enforce performance without risk of performing and not getting anything in return.

2)
If you have a situation where by the time the matter gets to court it is no longer possible for the claimant to perform his "consideration" will this prevent him from successfully claiming for specific performance.
(an example may be the sale of tickets for a football game - an agreement to sell some tickets is made, the buyer pulls out and by the time the seller gets his day in court the match has already happened)

3)
Consider the situation described in question 2, except this time the court case occurs before it is too late for the claimant to perform. What happens if after being awarded a judgement for specific performance the defentant refuses to comply and before successfull enforcement can occur the deadline by which the claimants performance is still possible passes. In this situation can specific performance still be enforced?
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Re: contract - specific performance

Postby atticus » Tue Aug 22, 2017 8:19 pm

Specific performance is an equitable remedy. It is at the discretion of the Court. The Court may award damages instead.

Specific performance will not be ordered where it is not going to be possible, as in your match ticket example.

Orders of the court can be enforced. Non compliance can be contempt.
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Re: contract - specific performance

Postby atticus » Wed Aug 23, 2017 6:59 am

I should add that orders for specific performance can be enforced. The court can appoint someone to execute a transfer of property for and in the name of the party against whom the order has been made.
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Re: contract - specific performance

Postby dls » Wed Aug 23, 2017 8:21 am

Specific performance is not a frequent solution, nd cours generally prefer other solutions.
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Re: contract - specific performance

Postby theycantdothat » Wed Aug 23, 2017 10:14 am

Orders for specific performance are most often made to require the vendor of land to complete. Indeed, the remedy is generally considered automatic if applied for. The rationale is that land is unique and that an order for specific performance is by far the most appropriate remedy. That rationale does not apply where a purchaser is in breach. However, orders for specific performance can be made against purchasers. There was a case where a purchaser agreed to buy a property off-plan, but by the time the property was ready the market had collapsed. The purchaser concluded he would be better off forfeiting the deposit and declined to complete. The court ordered him to complete.
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Re: contract - specific performance

Postby dls » Wed Aug 23, 2017 3:23 pm

Indeed, the remedy is generally considered automatic if applied for.


Not true.

You are right that it occurs where the subject matter of the contract is something particular and unique - land often qualifies, Even so, it will not always. Courts see it almost as a last resort. It is available only when damages will not be an appropriate remedy.
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Re: contract - specific performance

Postby atticus » Wed Aug 23, 2017 3:33 pm

I have obtained orders for specific performance to complete property sales.

Also in other commercial contexts, including one requiring a solicitor retiring from a partnership to comply with certain obligations in the partnership deed.

I disagree that specific performance is a last resort. It will be ordered in cases where it is appropriate to do so.
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