A. Introduction

Author:John D. McCamus
Profession:Professor of Law. Osgoode Hall Law School, York University

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As an alternative to the claim for damages for breach of contract, the victim of a breach may be able to pursue specific relief in the form of an order of specific performance or an injunction.1An order of specific performance is a court order that directs the party in breach to perform the very acts that the party in breach promised to perform in the agreement. An order granted against a defaulting seller of goods under a contract for the purchase and sale of goods would require the seller to deliver the goods to the buyer. An injunction is a court order directing that the party in breach refrain from doing something that the party in breach promised in the agreement not to do. An employee who breached a postemployment non-competition clause, for example, might be enjoined from competing with his or her former employer. For the victim of a breach of contract, the availability of specific relief might appear to be the perfect expression of the expectancy principle.2

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By obtaining an order that the plaintiff will either do or not do the very thing promised in the agreement, the innocent party will be placed, it might seem, in precisely the position he or she would have been in had the contract been performed.

The remedies of specific performance and injunction are equitable in nature in the sense that they were developed by the Courts of Equity rather than the Courts of Common Law.3The equitable origins of these remedies are significant for a number of reasons. First, the enforcement mechanisms of Courts of Equity and Courts of Common Law were starkly different. The typical order of a court of common law is an order that the defendant pay a certain amount of money to the plaintiff. Should the defendant fail to comply with the order, the plaintiff may invoke the enforcement machinery of the common law that essentially enables the state to seize and realize the value of some of the defendant’s assets in order to obtain the resources to satisfy the plaintiff’s judgment. At common law, a writ of execution would be issued enabling the sheriff to seize as much of the assets of the defendant as was necessary to carry out this objective. The enforcement mechanism of the Courts of Equity was very different. The form of the order of an equity court was to direct the defendant personally to do or not do that which had been promised to be done or not to be done. Failure to carry out the order constituted a contempt of the court...

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