Judicialdiscreation The court has wide discreation to forceconditions. In one case, particular execution of consent to exchange shares wasallowed subject to a lien to secure the transferor against non payment of thecost of the offers. For another case, the House of Lords while ordering thespecific performance of an contract tooffer offers put a condition that the purchaser should pay interest on thepurchase price which he had been qualified for retain pending order.”Equity will only grant specificperformance if, under all the circumstances, it is just and equitable to doso” Stickney v Keeble 1915 AC 3861.However, the exercise of this discretion is circumscribed by a number ofwell-known rules. he purchaser had made repeated complaints about the seller’sdelay in completing construction. It was held the repeated complaints formed aprincipal ground for justification of the short specified notice period. Lord Parker of Waddington set out theprinciples by which to evaluate the reasonableness of a period specified in anotice for the finishing of the development of a property: ‘The time limited bysuch a notice is sometimes alluded to as having progressed toward becoming, bytemperance of the notice, of the pith of the contract.
In considering whetherthe time so limited is a reasonable time the Court will think about all thecircumstances of the case. Almost certainly what stays to be done at the dateof the notice is of significance, yet it is in no way, shape or form the onlyapplicable truth. The way that the purchaser has continually been squeezing forconsummation, or has before given comparative notification which he hasdeferred, or that it is specially imperative to him to acquire earlyfulfillment, are equally important realities, Macbryde v Weekes (1856) 22 Beav 5332.Indeed, the dominant principle has always been that equity will only grantspecific performance if, under all the circumstances, it is just and equitableto do so. It would be unjust and inequitable to allow the vendor to advance hisown superfluous postponement despite the purchaser’s incessant solicitationsfor expedition as a ground for allowing him further time or as rendering thetime limited by such a notice as, to the point that to which I have alluded anunreasonable time.’Nevertheless , an order will only be made if(a) the contract could also be enforced by the defendant , at the time of hearing.
In the case of Sutton v Sutton (1984) 1 ALL ER 1683,(b) the defendant can comply with the order. The Sea Hawk (1986) 1 WLR 6574.The defendant owned no assets within the court’s jurisdition. Specfic relief will be refused if theclaimant has taken unfair advantage of the defendant or has acted dishonestlyas example of negotiating with a drunkard , this will also be the case wherethe claimant’s conduct offends the conscience of the court. An order for aspecific relief will be refused if it would cause severe hardship to thedefendant. Specific performance will be refused if it would cause severe hardshipto the defendant as in the case of Patelv Ali 1984 1 All ER 9785.
Facts of the case was the first and second defendants were joint proprietors ofa property and contracted to pitch it to the plaintiffs. The husband of themain defendant was announced bankrupt amid the procedure of the deal and histrustee sought an order to confine finishing. The insolvency court allowed thedeal on the basis that the trustee would arraign his case on the returns of thedeal. The plaintiffs issued a writ for specific performance however couldn’tserve it on the second defendant as they had left the nation. The maindefendant, right now, was sick after a progression of genuine medical problemsand was intensely subject to relatives and companions to run the home. Arequest of specific performance of the contract was requested by the court. Theplaintiff’s requested on the basis of the hardship that would be caused to the principaldefendant. The issue depended on the one of a kind realities of the situation,the court was required to establish whether a request of specific performanceor damages would be more fitting in connection to the principal defendant’scircumstances.
It was held The court found that in examples of the offer ofproperty or land, the cure of specific performance was frequently withheld onthe confirmation of extraordinary actualities and that the court was justifiedin rejecting specific performance on the grounds of hardship. In light of thepresent situation, it was held that constraining the offer of the propertywould dispense hardship to the main defendant which added up to injustice.Therefore the request was dismissed and damages were granted to the plaintiffs.or on the other hand the expenses of performance would be entirely out ofextent to the benefit presented on the petitioner as on account of Tito v Waddell (NO.2 )(1977) CH 106,326)6.On the general note the inquirer who looks for specific alleviation must notpostpone too long as the doctrine of laches may work to bar his claim.
There must be mutuality before specificperformance is available. “The court does not grant specific performanceunless it can give full relief to both parties” per Lord Cranworth LC in Blackett v Bates (1865) LR 1 Ch App 1177.Specific performance will be refused if the plaintiff has acted unfairly ordishonestly. The equitable principle is that the plaintiff must come to equitywith clean hands as in the case of Waltersv Morgan (1861)8,The defendant agreed to grant the plaintiff a mining lease over land he hadjust bought. Specific performance was refused as the plaintiff had produced adraft lease and induced the defendant to sign the agreement in ignorance of thevalue of the property.
The plaintiff had hurried the defendant into signing thelease before he knew the value of the property.Specific performance will be refused if theplaintiff fails to perform a promise which induced the defendant to contract asin the case of Lamare v Dixon (1873) LR6 HL 4149,The defendant wished to rent some basements. He went to see basementspossessed by the inquirer however observed that they were moist. The petitionerpromised that he would influence the basements to dry before the rent initiatedand the defendant concurred orally to take the rent. The inquirer did not stayfaithful to his commitment and the defendant declined to finish the rent.
Thepetitioner purchased an activity for break of contract looking for specificperformance of the rent understanding. It was held that Specific performancewas declined because of the inquirer not staying faithful to his obligation inmaking the basements dry.The judgment was Lord Chelmsford expressed “Thelead of the parties applying for alleviation is always a critical component forthought.” A court might have the capacity to control agathering from committing a break of contract by injunction. With prohibitiveinjunctions, a court, in the exercise of its discretion, will not be affectedby the way that the defendant’s consistence with the injunction would be undulycumbersome or that the break would cause the plaintiff little bias.
Be that asit may, with mandatory injunctions, a court will apply the ‘adjust of comfort’test, rejecting help if the hardship caused to the defendant by consistencewith the request exceeds the significant favorable circumstances to the plaintiff.The general decide is that an injunction willnot be granted if the impact is to specifically or in a roundabout way propelthe defendant to do represents which the plaintiff couldn’t have specificperformance. For instance, to require performance of a contract for personaladministrations as on account of PageOne Records v Britton 1968 1 WLR 157, The Troggs10,It was held that an injunction must be denied in light of the fact that togrant it would, essentially, propel The Troggs to keep on employing theplaintiff, and in this manner would add up to authorizing the performance of acontract for personal administrations. In any case, there are some vital specialcases to this run, An administration contract may contain negative commitmentswhich can be upheld by injunction without convincing positive performance ofthe entire contract as on account of Lumleyv Wagner (1852)11,The court expressed thatthey had no energy to influence the defendant to sing or urge her to sing atthe plaintiff’s theater. In any case, the court could induce her to do so bykeeping her singing somewhere else by forcing an injunction to that impact. Anegative stipulation which is too wide can be disjoined and authorized to someextent. 1 swarb.
co.uk. (2018). Stickney vKeeble: HL 1917 – swarb.co.uk.http://swarb.co.
uk/stickney-v-keeble-hl-19172 Macbryde v Weekes (1856) 22 Beav.533, 539–40; 52 E.R.
1214, 1216, per Sir John Romilly M.R. (contract to leaseworking mine).3 swarb.
co.uk. (2018). Sutton v Sutton:1984 – swarb.
uk/sutton-v-sutton-19844 Anon, (2018) http://Locabail Intl.Fin. Ltd. v. Agroexport (The Sea Hawk), 1986 1 W.L.R.
657; 1986 1 All E.R.901; 1986 1 Lloyd’s Rep. 317, dicta of Mustill, L.J. followed, 2003–04 GLR4035 En.
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London: Sweet . 1999. Volume 1 (General Principles) cccxxvi, 1659 and (Index) 79.Volume 2 (Specific Contracts) cclxxvi, 1361 and (Index) 133. Hardback. £195.
(Volume 1 only). £265 (both Volumes). ISBN 0–421–691–905 (Volume 1 only); ISBN0–421–647–205 (both Volumes).. The Cambridge Law Journal, 59(3), pp.613-643.
8 E-lawresources.co.uk. (2018). Waltersv Morganhttp://e-lawresources.co.uk/cases/Walters-v-Morgan.php9 E-lawresources.
co.uk. (2018). Lamarev Dixonhttp://e-lawresources.co.uk/cases/Lamare-v-Dixon.
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