Specific Performance and Injunctions

• Author: John D. Mccamus
• Profession: Professor of Law. Osgoode Hall Law School, York University
• Pages: 906-960

CHAP TER 23

SPECIFIC PERFORMANCE

AND INJUNCTIONS

A. INTRODUCTION

As an alternative to t he claim for damages for breach of contract, the

victim of a breach may be able to pursue specif‌i c relief in the form of

an order of specif‌i c performance or an injunction.1 An order of spe-

cif‌i c performance i s a court order that direct s the party in bre ach to

perform the very act s that the party in breach promise d 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 th at the party in bre ach refrain from doing someth ing 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, t he availability of specif‌i c relief

might appear to be the per fect expression of the ex pectancy pri nciple.2

1 See generally R . Sharpe, Injunctions an d Specif‌i c Per formance, 3d ed. (Aurora:

Canada L aw Book, 2000); G. Jones and W. Goodhart, Spec if‌i c Performance, 2d

ed. (London: Butter worths, 1996); E. Yorio, Contract Enforcement: Specif‌i c Per-

formance and Inju nctions (Boston: Little Brow n & Co., 1989). For a more general

account of equitable reme dies, see J. Berrym an, The Law of Equitable Remedies

(Toronto: Irwin Law, 2000).

2 See generally Ch apter 22, section B.

906

Specif‌i c Performa nce and Injunctions 907

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 remed ies of s pecif‌i c performance and injunction are equitable

in n ature i n the se nse th at the y were de veloped by the C ourts of Equit y

rather than the Courts of Common Law.3 The equitable origins of these

remedies are signif‌i cant for a number of rea sons. 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 certain amount of money to the plain-

tiff. Should the defendant fai l to comply with the order, the plaintiff

may invoke the enforcement machinery of the common law that es-

sentially enables t he state to seize and realize the value of some of the

defendant’s assets in order to obtain the resources to satisfy the plain-

tiff ’s judgment. At common law, a writ of execution would be issued

enabling the sheriff to seize as much of the asset s of the defendant as

was necessar y to carry out this objective. The enforcement mechanism

of the Courts of Equity was ver y different. The form of the order of

an equity court was to d irect 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, thereby expos-

ing the defendant to proceedings for cr iminal contempt or, indeed, to

civil proceedings for civil contempt at the instigation of the plaintiff.

Such proceedings, in either case, could result in the imposition of the

sanction of imprisonment. In ex plaining 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 again st the defendant person ally. Thus,

in considering whether or not to grant equit able 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 origi ns of specif‌i c relief arises

from the essentially curative role performed by cour ts of equity. The

animating principle of equity jur isprudence is t hat equity has a ju ris-

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

development of new rights and remedies only in ci rcumstances where

the rights and remedies available at common law were in some sense

3 For a brief disc ussion of the historical d ivision between Common L aw and

Equity, see Chapter 1, sect ion B.

THE LAW OF CONTR ACTS908

inadequate. Accordingly, it is well established that equitable relief and,

in particular, specif‌i c relief for breach of contract, is available only in

circumsta nces where the common law remedy of damages does not pro-

vide adequate relief to the plainti ff. A third implication is that equitable

relief is generally considered to be discretionary in nature. Accordingly,

courts of equity, in granting such relief, a ssert the existence of a discre-

tion to withhold or grant relief depending on the circum stances of the

particular case, including the morality of the conduct of either one or

both of the parties. Although 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 rel ief, fur ther considered later in

thi s chap ter, it i s doubt ful th at the d iscre tiona ry nat ure of t he reme dies

can be completely def‌i ned or conf‌i ned by such doctrines.

In subse quent sect ions of this ch apter, we will di scuss the grounds

upon which specif‌i c relief in the form of decrees of specif‌i c perform-

ance or injunctions are made available to the innocent party for breach

of contract. Consideration will t hen be g iven to the potenti al impact on

that availabil ity of contr actual stipulations th at pur port to constrain or

facilitate such relief.

B. SPECIFIC PERFOR MANCE

1) Introduction

The basic principle concerning the awa rding of decrees of specif‌i c 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 t he normal case, then, t he innocent party must

be content with a claim for damages for breach of contract. The central

limitation on the availability of such relief is a general rule that specif‌i c

relief is available only where the remedy of damages at common law is,

in some sense, inadequate. We will e xamine later the general n ature of

that test as it is applied in t he context of cer tain standard type s of trans-

actions. There are, however, other limiting principles. Thus, it is com-

monly said that equity will not grant such a decree where it potentially

involves the court in the super vision of complex tasks or obligations to

be performed over a long period of time. Further, and less defensibly,

specif‌i c relief will not be available, or so it is said, when the remedy is

not one that is potentially available to both parties. This so-called doc-

trine of mutuality h as been a source of considerable confusion in the

law relating to specif‌i c perform ance. Specif‌i c relief is denied where the