Specific Performance Obs

Front 1

Why are damages the main remedy?

Back 1

Economically efficient

Front 2

History of SP?

Back 2

Historically only available from chancery court. Chancery court developed restrictions - now all courts can dispense equity- to refuse SP is contempt of court

Front 3

First restriction?

Back 3

Specific performance is only available if damages are not an adequate remedy. Burden is on the claimant. None-substitute items are common

Front 4

Behnke v Bede Shipping (1927)

Back 4

First restriction - rare items - no sub for the orginal ship thus plaintiff take ownership - J Wright rules s52 Sale of Goods Act1893 enabled him to direct SP- at courts discretion

Front 5

52 Sale of Goods Act1893

Back 5

Enables courts to direct SP - at courts discretion

Front 6

Thorn v Public Works (1859)

Back 6

Rare items - bricks from London Bridge

Front 7

Cohen v Roche (1927)

Back 7

unremarkable items do not require SP (chairs)

Front 8

What do courts view as unique?

Back 8

Land is viewed as unique

Front 9

not an exhaustive list of restrictions

Back 9

Lord Hoffman in Co-operative Insurance v Argyll

Front 10

Second restriction?

Back 10

As SP is an equitable remedy - only available at courts discretion - court not advised to make order on performance which takes too much judiciary time

Front 11

Ryan v Mutual Tontine Chambers

Back 11

Porter hired for block of flats - lease terms very vague - porter breached provision - court said can't make order because they don't know the porter should do - won't re-write the contract

Front 12

Posner v Scott Lewis

Back 12

the lease was very specific - court said relatively certain to make an order of SP. Certainty and precision are key

Front 13

Hoffman lead judgement in Co-Op Insurance v Argylle Stores (1997)

Back 13

Following leniency, Hoffman revisited the principle on restrictions. Disagreed with liberal approach - said damages are primal remedy - not role of court to run around enforcing contracts.

Front 14

What did Hoffman do in Co-op insurance v Argylle Stores (1997)?

Back 14

Drew distinction between activities and results

Front 15

Activities contract

Back 15

Not allowed - i.e. force someone to run a shop as seen in Co-op v Argylle (1997)

Front 16

Results Contract

Back 16

Deliver that ship, deliver that item- allowed by the courts

Front 17

Court engaged in too much effort...

Back 17

Then it's not allowed!

Front 18

Third Restriction?

Back 18

Contract for personal services - involves specific person - long standing principle that personal services are NOT enforceable by the court - too complicated to work out what to do - broken friendships hard to repair

Front 19

De Francesco v Barnum (1980)

Back 19

Can't force someone to sing for you

Front 20

What are the other restrictions?

Back 20

> If it's impossible then not fair to enforce it
> Causes Hardship
> Mutuality of future performance

Front 21

What are the two types of injunctions?

Back 21

Mandatory - compelling positive performance of some act to restore the situation to how it was before the breach
Prohibitory - stop injunctions - negative stipulation i.e stop them doing this etc....

Front 22

What are the problems with prohibitory injunctions?

Back 22

When you can't get positive you can find negative ways i.e Ross Barkley will not play for any other clubs etc

Front 23

Do the courts allow prohibitory injunctions?

Back 23

Courts generally do not allow it - usually to avoid destitution as seen in Wimley v Wagner (1852) - some people exploited.