Specific Performance and Prohibitory Injunctions Flashcards
What is a a positive term/ stipulation?
a term which requires a party to do something.
What is a a negative term/ stipulation?
a term of a contract which requires a party not to do something.
What is specific performance?
issued by court to D req it to carry out its obligations under a positive term of the contract.
What is the advantage of the court telling a party to do something which the contract already tells them to do?
Breaching a court order for specific performance = more severe consequences than breaching a contract:
- it can be treated as contempt of court + lead to imprisonment.
What is a prohibitory injunction?
court order restraining a party from breaching a negative term.
- breach = contempt of court
Is an order for specific performance / prohibitory injunction always available in the case of a breach of a positive term / negative term?
no
When will an order for specific performance or a prohibitory injunction not be granted?
If damages are an appropriate + adequate remedy
How can you show damages are an inadequate remedy for specific performance?
prove subject matter of contract = unique/ irreplaceable, OR award of damages = ineffective to provide adequate compensation.
What type of remedies are specific performance and prohibitory injunctions?
discretionary and equitable remedies.
How is equitable assessed?
(a) court considers conduct of C – ‘he who comes to equity must come with clean hands’:
E.g - C who’s also in breach of contract/ which gives an incomplete account of events to the court = less likely to succeed in obtaining an order for specific performance or prohibitory injunction; and
(b) action must be brought with reasonable promptness = ‘delay defeats the equities’
What are the 5 principles that apply to granting an order for specific performance?
(1) not awarded where causes undue hardship on D
(2) A promise given for no consideration is not specifically enforceable, even if made as a deed.
(3) not awarded for breach of contracts of employment - For other contracts involving services, specific performance not awarded if there’s been a breakdown of trust + confidence between parties, or if court would need to consider subj opinions re performance.
(4) not awarded for breach of an obligation to perform a series of acts which would need court’s constant supervision
(5) not awarded for breach of a contract which isn’t binding on both parties. Thus where a contract is voidable at the option of party A, party B will not get specific performance against Party A. This principle is of particular importance in connection with minors’ voidable contracts.
When are prohibitory injunctions granted?
only where ‘just and convenient’
For example, in William Robinson & Co Ltd - a term forbade D to engage in ‘any trade, business, or calling, either relating to goods of any description sold or manufactured by the claimant or in any other business whatsoever’. The court granted an injunction but on more limited terms: it did not restrain D from engaging in ‘any other business whatsoever’, it only restrained D from engaging in a narrower class of business. That gave C reasonable protection but no more.
How the court decides on the prohibitory injunction?
court = power to decide extent of any prohibitory injunction it wishes to grant.
When will the court limit an injunction?
to what it considers reasonable in all the circumstances of the case.
What does court look @ when deciding whether it would amount to a prohibitory injunction or specific performance?
looks @ substance of proposed remedy - not the form.
