Specific Performance and Injunctions
| Author | John D. McCamus |
| Pages | 975-1029 |
975
CHAP TER 23
SPECIFIC PERFOR MANCE
AND INJUNCTIONS
A. INTRODUCTION
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 sp ecific per formance or an injunct ion.1 An order of specific
performance is a court order th at directs the party in breach to per-
form the very acts th at the party in breach promised to perform in
the agreement. An order granted again st 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 refra in 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 expre ssion of the expectancy principle.2
By obtaining an order that t he plaintiff w ill either do or not do the very
1 See generally R.J. Sha rpe, Injunctions and Specific Perfor mance, 4th ed. (Aurora:
Canada L aw Book, 2012) [Sharpe]; G. Jones & W. Goodhart, Specific Perfor m-
ance, 2d ed. (London: Butterwort hs, 1996); E. Yorio & S. Thel, Contra ct Enforce-
ment: Specific Perform ance and Injunctions, 2d ed., loosele af (New York: Aspen
Publishers, 2011). For a more general account of equitable remedie s, see J.
Berryman, The Law of Equitable Rem edies (Toronto: Irwin L aw, 2000).
2 See generally Ch apter 22, Section B.
THE LAW OF CONTR ACTS976
thing promised in t he agreement, the innocent party w ill 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.3 The equitable origins of these
remedies are significant for a number of reasons. First, the enforce-
ment mechanisms of Courts of Equity and Courts of Common Law
were starkly different. The ty pical order of a court of common law is an
order that the defendant pay a certa in amount of money to the plaintiff.
Should the defendant fail to comply with the order, the plainti ff may
invoke the enforcement machinery of the common law that essentially
enables the state to seize a nd realize the value of some of the defend-
ant’s assets in order to obtain the re sources to satisfy t he plaintiff ’s
judgment. At common law, a writ of execution would be issued en-
abling the sheriff to sei ze as much of the assets of the defendant as wa s
necessary to c arry out this objective. The enforcement mechanism of
the Courts of Equity was very d ifferent. The form of the order of an
equity court was to direct t he 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, thereby expos-
ing the defendant to proceedings for criminal contempt or, indeed, to
civil proceedings for civil contempt at the in stigation of the plaintiff.
Such proceedings, in either case, could result in t he imposition of the
sanction of imprisonment. In explaining the difference between these
two modes of enforcement, it is often said that the common law acted
in rem or against the propert y of the defendant, whereas equitable de-
crees operated in personam or agai nst the defendant personally. Thus,
in considering whether or not to grant equitable rather than common
law relief, courts have taken into consideration the potentially more
oppressive effect of equitable forms of relief.
A second implication of the equitable origins of sp ecific relief arises
from the essentially curative role performed by courts of equity. The
animating pr inciple of equity jurispr udence is that equity h as a juris-
diction to cure defects in the common law. To the extent that courts of
equity remain true to this mandate, they would intervene with the de-
velopment of new rights and remedies only in circum stances where the
rights and remedies avai lable at common law were in some sense inad-
equate. Accordingly, it is well established that equitable relief and, in
3 For a brief discu ssion of the historical di vision between common law and
equity, see Chapter 1, Sect ion B.
Specific Perform ance and Injunctions 977
particular, specific relief for breach of contract, is available only in cir-
cumstances where the common law remedy of damages does not pro-
vide adequate relief to the plaintif f. A third implication is that equitable
relief is generally considered to be di scretionary in nature. Accordingly,
courts of equity, in granting such relief, asser t the existence of a discre-
tion to withhold or grant relief depending on the circumsta nces of the
particular c ase, including the morality of the conduct of either one or
both of the parties. A lthough the most common grounds for exercising
that discretion have crystallized in the form of well-recognized limita-
tions on or defences to the granting of relief, fur ther considered later in
this chapter, it is doubtful that the discretionary nature of the remedies
can be completely defined or confined by such doctrines.
In subsequent sections of this ch apter, we will discuss the grounds
upon which specific relief in the form of decrees of specific perform-
ance or injunctions are made available to the in nocent party for breach
of contract. Consideration will then be g iven to the potential impact on
that availability of contractual stipulations that purport to constrain or
facilitate such relief.
B. SPECIFIC PER FOR M ANCE
1) Introduction
The basic principle concerning the awarding of decrees of speci fic per-
formance requiring t he party in breach personally to perform the obli-
gation that has been breached is that such relief is available only on an
exceptional basis. In the normal case, then, the innocent party must
be content with a claim for damages for breach of contract. The central
limitation on the avail ability of such relief is a general r ule that specific
relief is available only where the remedy of damages at common law is,
in some sense, inadequate. We will e xamine later the general nature of
that test as it is applied in t he context of certain st andard types of trans -
actions. There are, however, other limiting principles. Thus, it is com-
monly said that equity wi ll not grant such a decree where it potentially
involves the court in the superv ision of complex tasks or obligations to
be performed over a long period of time. Further, and less defensibly,
specific relief will not be available, or so it is said, when the remedy
is not one that is potentially avail able to both parties. This so- called
doctrine of mutuality has been a source of considerable confusion in
the law relating to speci fic performance. Specific relief is denied where
the order operates unfairly by priv ileging an unworthy plaint iff or im-
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