Specific Performance and Injunctions

AuthorJohn D. McCamus
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.1 An order of spe-
cif‌ic performance is a court order that directs the party in breach to
perform the very acts t hat the party in breach promised to perform in
the agreement. An order granted agai nst a defaulting seller of goods
under a contract for the purchase and sale of goods would require t he
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 ex pression of the expectancy principle.2
By obtaining an order th at the plaintiff w ill either do or not do the very
1 See generally RJ Sh arpe, Injunctions and Specif‌ic Per formance, 5th ed (Toronto:
Thomson Reuters, 2017) [Sharpe]; G Jones & W Goodhar t, Specif‌ic Performance,
2d ed (London: Butterwor ths, 1996); E Yorio & S Thel, Contract Enforceme nt:
Specif‌ic Performance a nd Injunctions, 2d ed, looselea f (New York: Aspen
Publishers, 2011). For a more general account of equitable remed ies, see J
Berry man, The Law of Equitable Reme dies, 2d ed (Toronto: Irwin L aw, 2013).
2 See generally Ch apter 22, Section B.
Specif‌ic Perform ance and Injunctions 1085
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 performa nce and injunction are equitable in
nature in the sense that they were developed by the Courts of Equity
rather than the Cour ts of Common Law.3 The equitable origins of these
remedies are signif‌ic ant for a number of reasons. First, t he enforcement
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 cert ain 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 th at essentially enables
the state to seize and realize the value of some of the defendant’s assets
in order to obtain the resources to s atisfy the plainti ff’s judgment. At
common law, a writ of execution would be issued enabling the sherif f
to seize as much of the asset s of the defendant as was necessary to
carry out this objective. The enforcement mechanism of the Courts of
Equity was very di fferent. The form of the order of an equity court was
to direct the defendant persona lly 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 exposing the defendant to
proceedings for crimin al 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 imprison-
ment. In explaining t he difference between these two modes of enforce-
ment, it is often said that the common law acted in rem or against t he
property of the defendant, whereas equit able decrees operated in perso-
nam or against the defendant personally. Thus, in considering whether
or not to grant equitable rather than common law rel ief, courts have
taken into consideration the potentia lly more oppressive effect of equi-
table forms of relief.
A second implication of the equitable origins of sp ecif‌ic relief arises
from the essentia lly curative role performed by courts of equity. The
animating principle of equity jurisprudence is that equity has a juris-
diction to cure defects in the common law. To the extent that courts
of equity remain tr ue to this mandate, they would inter vene with the
development of new rights and remedies only in circum stances where
the rights and remedies available at common law were in some sense
inadequate. Accordingly, it is well established that equitable relief and,
3 For a brief discus sion of the historical div ision between common law and
equity, see Chapter 1, Sect ion B.
in particula r, specif‌ic relief for breach of contract, is available only in
circumstance s 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 di scretionary in nature. Accordingly,
courts of equity, in granting such relief, assert the existence of a dis cre-
tion to withhold or grant relief depending on the circumstances 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 cr ystallized i n the form of well-recognized limita-
tions on or defences to the granting of relief, f urther considered later in
this chapter, it is doubtful that t he discretionary nature of the remedies
can be completely def‌ined or conf‌ined by such doctrines.
In subsequent sections of this chapter, we will discuss the g rounds
upon which specif‌ic relief in the form of decrees of sp ecif‌ic performance
or injunctions are made available to the innocent party for breach of
contract. Consideration will t hen be given to the potential impact on
that availability of contractual stipulations that pur port to constrain or
facilitate such relief.
1) Introduction
The basic principle concerning the awarding of decrees of specif‌ic per-
formance requiring t he party in breach personally to perform the obli-
gation that has been breached i s that such relief is available only on an
exceptional basis. In the normal case, then, the in nocent 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 sp ecif‌ic
relief is available only where the remedy of dam ages at common law is,
in some sense, inadequate. We will examine later the general nature
of that test as it is applied in the context of certain standard t ypes
of transactions. There are, however, other limiting principles. Thus, it
is commonly said that equity will not grant such a decree where it
potentially involves the court in the supervision of complex tasks or
obligations to be performed over a long period of time. Furt her, and
less defensibly, specif‌ic relief will not be available, or so it is said, when
the remedy is not one that is potential ly available to both parties. This
so-called doctr ine of mutuality has been a source of considerable con-
fusion in the law relating to specif‌ic performance. Specif‌ic rel ief is
denied where the order operates unfairly by privileging an unworthy

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT