Specific Performance

Question 1

what is specific performance?

Answer 1

Specific performance is an exceptional remedy from equity, available where damages aren’t adequate to compensate the non-breaching party’s subjective special interest (Falcke, Behnke, Gilbert, Sky Petroleum, etc.)

Question 2

who has the burden of showing specific performance?

Answer 2

The burden is on the plaintiff (non-breaching party) to show why expectation damages are not adequate and specific performance is required.

Question 3

when is specific performance not available?

Answer 3

1. It would force people to work together (Warner Bros, Coop Insurance, Page One Records)
2. Third-party rights are involved (Falcke)
3. There’s an unworkable degree of court supervision (Page One Records, Coop Insurance)
4. There’s a fiduciary duty (Page One Records)
5. It isn’t available to both parties (Page One Records)
   Valcke: This argument is very weak

Question 4

specific performance for land

Answer 4

• Land is where the Court typically issues specific performance, as it sees each plot of land as being unique.
• But, there are exceptions. In Groves, the price to restore the land exceeded its market value. Since the point of restoring the land was to resell it, the Court held that market value should be given for the land, not specific performance of resurfacing the land for use, in order to prevent economic waste.

Question 5

specific performance for chattel

Answer 5

• Specific performance when it comes to chattel is more difficult.
• Typically, the plaintiff can get something equivalent with expectation damages, so the Court opts for damages.
• Specific performance is only granted in specific situations where there is no alternative (i.e. the chattel is unique, rare, or of particular value) (Falcke, Cohen, Sky Petroleum Ltd.)

Question 6

specific performance for personal service contracts

Answer 6

• The Court can order specific performance for personal service contracts if (Warner Bros, Page One Records):
  1. It would not amount to specific performance of positive covenants (forcing people to work together)
  2. It would not force the defendant to remain “idle and startve”
  3. It is more appropriate of a remedy than damages

Question 7

Falcke v. Gray

Answer 7

• Facts: The plaintiff rented a house with an option to buy furniture, including uniquely valuable jars, which the defendant then sold to a third party.
• Rule: Specific performance is usually not granted for ordinary chattel because you can easily buy replacements in the market, but it is granted for chattel if it is unique, rare, or of peculiar value.
• Valcke/Class Note: This case was wrongly decided because the plaintiff only wanted the jars to sell them, not because of their uniqueness.

Question 8

Cohen v. Roche

Answer 8

• Facts: The plaintiff purchased chairs from the defendant at an auction, but the defendant refused to hand them over.
• Rule: In cases of ordinary chattel (like the chairs in this case), the plaintiff cannot claim specific performance.

Question 9

Sky Petroleum Ltd. v. VIP Petroleum Ltd.

Answer 9

• Facts: The defendants purported to terminate a contract to supply the plaintiffs’ filling stations with their entire gasoline requirement during a time when petroleum supply was restricted.
• Rule: Where there is a genuine risk of the plaintiffs going out of business, specific performance may be granted, despite the chattel in question being ordinary.

Question 10

Behnke v. Bede Shipping Co. Ltd.

Answer 10

• Facts: The plaintiff sought specific performance for the sale of a ship that was of peculiar and practically unique value.
• Rule: Specific performance is granted for chattel if it is unique, rare, or of peculiar value.

Question 11

Gilbert v. Barron

Answer 11

• Facts: A company director breached a contract to preserve voting control by securing control of the company for himself without offering shares to the other directors.
• Rule: Specific performance is not granted for publicly traded shares, but it is granted for shares in a private company or shares that represent voting control, because “control” is unique and cannot be bought elsewhere. Damages are inadequate because losing control of a company is an irreparable loss.

Question 12

Co-Operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd.

Answer 12

• Facts: A supermarket defendant announced it would close, breaching a lease undertaking to keep the shopping centre in operation for 35 years.
• Rule: Specific performance is generally not ordered if it requires the court to constantly supervise the defendant to ensure compliance.

Question 13

Warner Bros Pictures Incorporated v. Nelson

Answer 13

• Facts: An actress breached a negative covenant in her contract by agreeing not to work for anyone else, but then leaving to enter an agreement with a third party.
• Rule: Courts will enforce a promise not to work for a competitor, provided the employee has other ways to make a living and isn’t forced into a choice between “slavery” (working for the plaintiff) or starvation

Question 14

Page One Records Ltd. v. Britton

Answer 14

• Facts: The Troggs musical group tried to end their managerial and agency agreements with the plaintiffs to hire someone else, and the plaintiffs sought an injunction.
• Rule: Contracts involving management or fiduciary duties will not be enforced by specific performance because the court cannot mandate trust and confidence.