The court has wide discreation to force
conditions. In one case, particular execution of consent to exchange shares was
allowed subject to a lien to secure the transferor against non payment of the
cost of the offers. For another case, the House of Lords while ordering the
specific performance of an contract to
offer offers put a condition that the purchaser should pay interest on the
purchase price which he had been qualified for retain pending order.
“Equity will only grant specific
performance if, under all the circumstances, it is just and equitable to do
so” Stickney v Keeble 1915 AC 3861.
However, the exercise of this discretion is circumscribed by a number of
well-known rules. he purchaser had made repeated complaints about the seller’s
delay in completing construction. It was held the repeated complaints formed a
principal ground for justification of the short specified notice period.
Lord Parker of Waddington set out the
principles by which to evaluate the reasonableness of a period specified in a
notice for the finishing of the development of a property: ‘The time limited by
such a notice is sometimes alluded to as having progressed toward becoming, by
temperance of the notice, of the pith of the contract. In considering whether
the time so limited is a reasonable time the Court will think about all the
circumstances of the case. Almost certainly what stays to be done at the date
of the notice is of significance, yet it is in no way, shape or form the only
applicable truth. The way that the purchaser has continually been squeezing for
consummation, or has before given comparative notification which he has
deferred, or that it is specially imperative to him to acquire early
fulfillment, are equally important realities, Macbryde v Weekes (1856) 22 Beav 5332.
Indeed, the dominant principle has always been that equity will only grant
specific performance if, under all the circumstances, it is just and equitable
to do so. It would be unjust and inequitable to allow the vendor to advance his
own superfluous postponement despite the purchaser’s incessant solicitations
for expedition as a ground for allowing him further time or as rendering the
time limited by such a notice as, to the point that to which I have alluded an
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 the
claimant has taken unfair advantage of the defendant or has acted dishonestly
as example of negotiating with a drunkard , this will also be the case where
the claimant’s conduct offends the conscience of the court. An order for a
specific relief will be refused if it would cause severe hardship to the
defendant. Specific performance will be refused if it would cause severe hardship
to the defendant as in the case of Patel
v Ali 1984 1 All ER 9785.
Facts of the case was the first and second defendants were joint proprietors of
a property and contracted to pitch it to the plaintiffs. The husband of the
main defendant was announced bankrupt amid the procedure of the deal and his
trustee sought an order to confine finishing. The insolvency court allowed the
deal on the basis that the trustee would arraign his case on the returns of the
deal. The plaintiffs issued a writ for specific performance however couldn’t
serve it on the second defendant as they had left the nation. The main
defendant, right now, was sick after a progression of genuine medical problems
and was intensely subject to relatives and companions to run the home. A
request of specific performance of the contract was requested by the court. The
plaintiff’s requested on the basis of the hardship that would be caused to the principal
defendant. The issue depended on the one of a kind realities of the situation,
the court was required to establish whether a request of specific performance
or damages would be more fitting in connection to the principal defendant’s
circumstances. It was held The court found that in examples of the offer of
property or land, the cure of specific performance was frequently withheld on
the confirmation of extraordinary actualities and that the court was justified
in rejecting specific performance on the grounds of hardship. In light of the
present situation, it was held that constraining the offer of the property
would 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 of
extent 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 not
postpone too long as the doctrine of laches may work to bar his claim.
There must be mutuality before specific
performance is available. “The court does not grant specific performance
unless 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 or
dishonestly. The equitable principle is that the plaintiff must come to equity
with clean hands as in the case of Walters
v Morgan (1861)8,
The defendant agreed to grant the plaintiff a mining lease over land he had
just bought. Specific performance was refused as the plaintiff had produced a
draft lease and induced the defendant to sign the agreement in ignorance of the
value of the property. The plaintiff had hurried the defendant into signing the
lease before he knew the value of the property.
Specific performance will be refused if the
plaintiff fails to perform a promise which induced the defendant to contract as
in the case of Lamare v Dixon (1873) LR
6 HL 4149,
The defendant wished to rent some basements. He went to see basements
possessed by the inquirer however observed that they were moist. The petitioner
promised that he would influence the basements to dry before the rent initiated
and the defendant concurred orally to take the rent. The inquirer did not stay
faithful to his commitment and the defendant declined to finish the rent. The
petitioner purchased an activity for break of contract looking for specific
performance of the rent understanding. It was held that Specific performance
was declined because of the inquirer not staying faithful to his obligation in
making the basements dry.The judgment was Lord Chelmsford expressed “The
lead of the parties applying for alleviation is always a critical component for
A court might have the capacity to control a
gathering from committing a break of contract by injunction. With prohibitive
injunctions, a court, in the exercise of its discretion, will not be affected
by the way that the defendant’s consistence with the injunction would be unduly
cumbersome or that the break would cause the plaintiff little bias. Be that as
it may, with mandatory injunctions, a court will apply the ‘adjust of comfort’
test, rejecting help if the hardship caused to the defendant by consistence
with the request exceeds the significant favorable circumstances to the plaintiff.
The general decide is that an injunction will
not be granted if the impact is to specifically or in a roundabout way propel
the defendant to do represents which the plaintiff couldn’t have specific
performance. For instance, to require performance of a contract for personal
administrations as on account of Page
One Records v Britton 1968 1 WLR 157, The Troggs10,
It was held that an injunction must be denied in light of the fact that to
grant it would, essentially, propel The Troggs to keep on employing the
plaintiff, and in this manner would add up to authorizing the performance of a
contract for personal administrations.
In any case, there are some vital special
cases to this run, An administration contract may contain negative commitments
which can be upheld by injunction without convincing positive performance of
the entire contract as on account of Lumley
v Wagner (1852)11,The court expressed that
they had no energy to influence the defendant to sing or urge her to sing at
the plaintiff’s theater. In any case, the court could induce her to do so by
keeping her singing somewhere else by forcing an injunction to that impact. A
negative stipulation which is too wide can be disjoined and authorized to some
1 swarb.co.uk. (2018). Stickney v
Keeble: HL 1917 – swarb.co.uk.
2 Macbryde v Weekes (1856) 22 Beav.
533, 539–40; 52 E.R. 1214, 1216, per Sir John Romilly M.R. (contract to lease
3 swarb.co.uk. (2018). Sutton v Sutton:
1984 – swarb.co.uk.
4 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 GLR
5 En.wikipedia.org. (2018). Patel v Ali
6 En.wikipedia.org. (2018). Tito v
Waddell (No 2)
7 Hoodley, R. (2000). Chitty on
Contracts. Twenty-Eighth Edition. Edited by H.G. BEALE. London: Sweet &
Maxwell. 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); ISBN
0–421–647–205 (both Volumes).. The Cambridge Law Journal, 59(3), pp.613-643.
8 E-lawresources.co.uk. (2018). Walters
9 E-lawresources.co.uk. (2018). Lamare
10 Casebrief.me. (2018). Page One
Records v Britton | Case Brief Summary
11 En.wikipedia.org. (2018). Lumley v