Cutting through the legalese: “Specific performance”

Specific performance is an order the Court will give which requires a party to perform a specific act. While it forces a party to perform an act, it is usually used to complete an established agreement: it is most effective where the parties have a written contract and helps the interests of the innocent party when the other party is not completing their obligations. In some ways it could be described as the opposite of an injunction.

Specific performance is an equitable remedy (which means it is not given as a right, only at the discretion of the Court). Equitable remedies are awarded when damages do not adequately compensate the innocent party.

There are circumstances in which an order for specific performance will not be granted:

• The claiming party did not act with “clean hands”, the claiming party must act in good faith;
• Specific performance would cause severe hardship to the defendant, or if performance was impossible to preform;
• The contract requires constant supervision (it would be deemed too difficult to enforce specific performance);
• There was no consideration under the contract;
• The contract was extremely unjust or too vague to enforce;
• The contract is terminable at will (meaning either party can terminate without the other being in breach);
• Specific performance consists of a personal service;
• Mutuality is lacking in the initial agreement of the contract.

The Courts will only award specific performance if the underlying contract was fair and equitable and none of the conditions above apply. If a common law remedy (such as compensation) will put the innocent party in the position he or she would have been in had the contract been fully performed, the courts will usually use that option instead.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice. “Cutting through the legalese” in particular is intended to be a short and introductory feature which does not provide comprehensive guidance on the topic in question. Legal advice should always be sought.

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