Specific Performance

Question 1

Penn v Baltimore

Answer 1

‘the conscience of the party is bound by the agreement.’

Question 2

Jodifern Ltd v Fitzgerald

Answer 2

Contracts for sale of land

‘in a claim for SP, a p must establish the making of an enforceable
agreement.’

Question 3

Johnson v Agnew

Answer 3

Contracts of sale of land

If plaintiff gets a decree of specific performance against the defendant and the defendant fails to comply, they may then seek to enforce or dissolve the contract and recover damages at common law

Question 4

McCarron v McCarron

Answer 4

Contracts for sale of land

p worked wage free for 16 years following verbal agreement he would inherit land and home – Sc granted order of specific performance there was a sufficient evidence to show there was a contract between the p and d

Question 5

McCutcheon (personal services contracts)

Answer 5

there is a near ‘universal reluctance’ to order performance of a contract for personal services.

Question 6

Biehler (personal services contracts)

Answer 6

from a policy perspective it is undesirable to force parties to fulfil obligations arising under contracts for the provision of services and the caselaw suggests ‘it is usually only where a relationship of mutual trust still exists between the parties that the courts will be willing to grant SP or an injunction.’

Question 7

Warner Bros v Nelson

Answer 7

Contracts for personal services

actress agreed not to act for any other film company – court granted an injunction which were confined to preventing the actress working with any other film company

Question 8

CH Giles v Morris - Megarry J

Answer 8

Contracts for personal services

stated the so-called rule that contracts for personal services will not be specifically enforced is plainly not absolute and without exception.
‘strong reluctance’ to order the SP of contracts as opposed to the rule against ordering the SP of such contracts.

Question 9

Irish Life Assurance Co Ltd

Answer 9

Contracts for pesonal services

McWilliam J argued the rule is not a rigid one and if there is no reason for the court to engage in ongoing supervision, the argument against enforcing such contracts shouldn’t apply.

Question 10

Keane (personal services)

Answer 10

‘virtually no examples of cases where such a decree (requiring personal services) has been given.’

Question 11

Beihler (personal services)

Answer 11

suggest the difficulty in supervising such contracts should not be a bar to SP but merely on of the factors to be taken into account when determining whether relief shoul be granted.

Question 12

Posner v Scott-Lewis

Answer 12

Contracts for personal services - more flexible approach

Lease contained landlord’s covenant to employ a resident porter whose duties were to clean common parts, look after heating and carry rubbish to dustbins. SP granted to procure appointment
of porter. The Court held relevant questions to be asked in deciding whether to grant a decree of specific
performance is:
1. Is there a sufficient definition of what has to be done in order to comply with the order of
the court?
2. Would enforcing compliance involve an unacceptable degree of court supervision?
3. Consider the hardship which would be suffered by the parties if the order is/ is not made in this case.

Question 13

Co-Op Insurance Society v Argyll Stores

Answer 13

Contracts for pesonal services - following posner

HOL declined to grant order of SP where to do so would have amounted to ordering the defendant to carry on business. Applicant was owner of shopping centre who wished to compel respondent tenant to continue to operate its supermarket business. In light of the hardship the order would have caused the order was refused.

Lord Hoffman – identified reasons court is reluctant to grant SP for supervision contracts:

1. Possibility of infinite series of rulings
2. Imprecision in the terms of the order – possibility of wasteful litigation
3. May cause injustice by allowing P to enrich himself at D’s expense.

Question 14

Jeune v Queen’s Cross Properties

Answer 14

Contracts for personal services

tenants alleged landlord breached covenant to repair by failing to reinstate balcony that collapsed – the court ordered SP to repair

Question 15

Wolverhampton Corp v Emmons

Answer 15

Contracts to build or repair

lay down the conditions under which in order to build or
repair would be granted:

1. Works required to be carried out are specified precisely in contract
2. Damages are an inadequate remedy (P must have substantial interest in the performance of the contract).
3. Defendant is in possession of the land on which the works are being carried out

In that case P sold land to D for the building of houses thereon. This was part of a scheme for improvement in the area. Court ordered SP of contract as 3 conditions satisfied.

Question 16

Beihler (defences)

Answer 16

– ‘types of cases in which decree of SP will be refused do not fall into rigid categories thus there is no exhaustive list of defences.

Question 17

Flight v Bollard

Answer 17

Lack of mutuality

minor refused degree of SP because the contract couldn’t be enforced against him

Question 18

Price v Strange

Answer 18

Lack of mututality

Time for ascertaining lack of mutuality was the date of the hearing and as a result a degree of SP could be granted in the p’s favour

Question 19

Roberts v ONeill

Answer 19

Hardship

hardship arising after that time is immaterial unless brought about by the other party

Question 20

Patel v Ali

Answer 20

Hardship

vendor developed cancer and got leg amputated- then had two children – purchaser sought SP for house – vendor argued hardship – HELD: On the facts there would be hardship amounting to injustice if SP was granted therefore the appropriate remedy was damages

Question 21

Aranbel Ltd (hardship)

Answer 21

Defence of hardship is distinguished from impossibility

Question 22

Smelter Corporation v O’Driscoll

Answer 22

Misrepresentation

contracted to sell her house to P and refused to complete – P sought SP action – O’Driscoll aid agent of P threatened her house would be
compulsorily acquired – she didn’t take steps to see if this was true but she believed it – HC

HELD misrepresentations were made to her to procure her entry into the contract therefore
no SP decree – upheld by the SC – it would be unjust for the court to order SP

Question 23

Northern Bank Finance Corp v Charleton

Answer 23

Misrepresentaation

If misrepresentation was fraudulent or negligent – court very slow to order SP

Question 24

Aranbel Ltd v Darcy

Answer 24

Impossibility

Clarke J refused an order of specific performance because although
the defendents were legally obliged to complete the sales of apartments – they were not in a financial position to do so:

‘where a defendant purchaser could complete, but only by disposing of such assets as a family home or business assets, which action would have significant practical consequences’ – a decree of SP may be granted
Burden of proving impossibility lies on the D

Question 25

Titanic Quarter v Rowe

Answer 25

Impossibility

HC Belfast refused to order SP in circumstances where the D who entered into an agreement to buy apartment lost his job so couldn’t complete sale – relied on impossibility

Question 26

Legget v Crowley (2019) (HC)

Answer 26

In this case, Crowley built a house in Dublin with construction costs of €600,000, plus an additional €50,000 from his father for a granny flat. The house was valued at €1.5 million in 2006. Crowley accepted a €750,000 loan from a bank and later received a further €250,000 advance. After the 2008 property crash, the bank appointed receivers, but Crowley agreed to sell the house himself to pay off the debt.

In 2013, Crowley agreed to sell the house to Brian Legget for €460,000, with contracts signed in 2014. However, Crowley later attempted to terminate the contract, leading Legget to commence specific performance proceedings.

Crowley defended against the specific performance claim, arguing that:
1. The contract was illegal due to alleged cash payment arrangements intended to defraud the Revenue.
2. Performance was impossible due to an unresolved trespass issue.
3. Enforcing the contract would cause him hardship as it involved the loss of his family home.

The court found no evidence of an illegal contract or ongoing trespass issue. Additionally, the court ruled that the hardship claimed by Crowley was not sufficient to prevent enforcement, as it was not external to the contract. Consequently, all defenses were rejected, and specific performance was granted to Legget, requiring Crowley to complete the sale of the house.