The legal remedy of specific performancespecific performance: a legal remedy in claims for breach of... More is available to claimants making breach of contract claims. As the name suggests, a court order for specific performancespecific performance: a legal remedy in claims for breach of... More is an order compelling the party in breach of contractbreach of contract: in contract disputes, one contracting pa... More to perform a certain contractual obligation. Specific performancespecific performance: a legal remedy in claims for breach of... More will usually only be ordered where an alternative remedy, such as damagesdamages: in litigation and dispute resolution, financial com... More, is either unavailable or inappropriate.
Specific performancespecific performance: a legal remedy in claims for breach of... More can often arise property disputes, where a defendantdefendant: the respondent against whom court proceedings are... More can be ordered to transfer a specific parcel of land or property right that he has contracted to sell, or can be ordered to complete on the purchase of a property that he has contracted to buy (so as to enable the seller in turn to complete their new purchase). One rationale for the prevalence of the remedy in property disputes is that, as no two pieces of land are the same, financial compensation may be inadequate for a claimant who faces losing a specific piece of land. It follows that a different approach can be taken by the courts where the innocent party entered into the property transaction as an investment; if the purpose of the transaction is solely profit, then damagesdamages: in litigation and dispute resolution, financial com... More is a more likely remedy.
Criteria for specific performancespecific performance: a legal remedy in claims for breach of... More
Specific performancespecific performance: a legal remedy in claims for breach of... More is an equitable remedyequitable remedy: a court remedy available in civil disputes... More; the court’s discretion will invariably come into play and it cannot be said that there are any factual circumstances in which the making of a specific order is guaranteed. However what claimants need to show to obtain an order is summarised below.
In making an order for specific performancespecific performance: a legal remedy in claims for breach of... More there has to have been a valid legal contract which has been breached by one of the parties. Once this is established and it has been determined that damagesdamages: in litigation and dispute resolution, financial com... More would be an inadequate remedy for the breach, the courts will look at numerous other factors including whether:
- the claimant has made any attempt to mitigate his loss;
- an order for specific performancespecific performance: a legal remedy in claims for breach of... More would cause hardship and will ultimately be an injustice to the defendantdefendant: the respondent against whom court proceedings are... More (although this argument is only available in rare circumstances); and
- the remedy is physically possible; for example, if the defendantdefendant: the respondent against whom court proceedings are... More is the contracted purchaser of the property and does not have the funds to complete the transaction, the court will be slow to order specific performancespecific performance: a legal remedy in claims for breach of... More of something that is not possible to do.
Note however that the above criteria cannot be considered conclusive and other factors, such as the needs of the innocent party, may also be taken into considerationconsideration: in contract law consideration is the term giv... More. For example, whilst it might be physically impossible for a contracted purchaser to complete a transaction due to lack of funds, the vendor may still (where specific performancespecific performance: a legal remedy in claims for breach of... More is the appropriate remedy) obtain an order for specific performancespecific performance: a legal remedy in claims for breach of... More and hold a charge over the property pending a later sale.
Difficulties enforcing orders for specific performancespecific performance: a legal remedy in claims for breach of... More
A difficulty with specific performancespecific performance: a legal remedy in claims for breach of... More orders is that they can be problematic to enforce or sanction. Whilst it is theoretically possible to imprison a defendantdefendant: the respondent against whom court proceedings are... More for failing to comply with such an order, prison is, in reality, unlikely. This can weigh on the courts and can prevent orders for specific performancespecific performance: a legal remedy in claims for breach of... More being made in the first place.
South Bank Legal is a London commercial and dispute resolution law firm providing advice and representation in breach of contract claims and property disputes. For a confidential no obligation discussion about any the issues discussed above, please contact us.