Specific Performance: Chattels, Shares, and Payment of Money

• Author: Jeffrey Berryman
• Pages: 383-408

383

CHA PTER 13

SPECIFIC PERFOR M ANCE:

CHATTELS, SHARES, AND

PAYMENT OF MONEY

A. INTRODUCT ION

In this chapter we look at a number of discrete contract s concerning

the sale of chattels and share s, and agreements for the payment of

money. The area is complicated by certain statutory provisions which

purport to impact upon the availability of in specie relief. In addition,

apart from the situation of sale of goods of rare beauty and distinction,

there has never been a strong argument for specif‌ic performance based

on uniqueness or inadequacy of damages.

B. SALE OF GOODS

1) Background to the Sale of Goods Act Provisions

Prior to the enactment of the Sale of Goods Act, 18931 there were numer-

ous examples of specif‌ic performance being granted for goods of rare

beauty and distinction,2 or those that had some other high subjective

1 (U.K.), 56 & 57 Vict., c. 71.

2 See, for example, Fe lls v. R ead (1796), 3 Ves. Jr. 70, 30 E.R. 899 (Ch.) [Fells] (sil-

ver altarpie ce); and Falcke v. Gray (1859), 4 Dr. 651, 62 E.R. 250 (V.C.) [Falcke]

(old jar s).

THE LAW OF EQUITABLE RE MEDIES384

value to the buyer, such as a family heirloom.3 These contracts sup-

ported specif‌ic perform ance because the goods were seen to be unique,

and therefore damages were an inadequate remedy. In 1856 the United

Kingdom enacted The Mercantile Law Amendment Act, 1856,4 an act

requested by mercantile groups and designed, among other things, to

make specif‌ic perform ance more readily available. The Act adopted

practices from Scottish law, itself ins pired by Roman law.5 However,

the legislation was never resorted to prior to its repeal in 1893, when it

was replaced by section 52 of the Sale of Goods Act, 1893.6

Section 50 of the Ontario Sale of Goods Act st ates:

In an action for breach of contract to deliver s pecif‌ic or ascertai ned

goods, the court may, if it thi nks f‌it, direct that t he contract be per-

formed specif‌ica lly, without giving t he defendant the option of retain-

ing the goods on pay ment of damages, and may impos e such terms

and conditions as to d amages, payment of the price, a nd otherwise,

as to the court seem s just.7

This section has been controversi al. Despite the fact that its legislat ive

purpose was suppose dly to make in specie relief more readily available,8

this has not happened. Spr y points out that the section was meant to

be in a ddition to any other rights t he buyer may have had to specif‌ic

perform ance in equity.9 This construction of the legislation is favoured

because the legislative goal was to expand availability10 and, contrary

3 See Pu sey v. P usey (1684), 1 Vern. 273, 23 E.R. 465 (Ch.) [Pusey].

4 (U.K.), 19 & 20 Vict., c. 97.

5 See W.E. Masterson, “Speci f‌ic Performance of Contracts to De liver Specif‌ic or

Ascerta ined Goods under the Engli sh Sale of Goods Act and the Americ an Sales

Act” in M. Radi n & A.M. Kidd, eds., Legal Essays in Tribute to Orrin Kip McMur-

ray (Berkeley: Un iversity of Californi a Press, 1935) 439.

6 Above note 1.

7 R.S.O. 1990, c. S.1. Equivalent provision s can be found in other provinci al stat-

utes: see Alber ta Sale of Goods Act, R.S.A. 200 0, c. S-2, s. 51; British Colum bia

Sale of Goods Act, R.S .B.C. 1996, c. 410, s. 55; Manitoba The Sale of Goods Act,

C.C.S.M. c. S10, s. 53; Newfoundland and Labr ador Sale of Goods Act, R.S.N.L.

1990, c. S-6, s. 53; New Brun swick Sale of Goods Act, R.S.N.B. 1973, c. S-1, s. 49;

Nova Scotia Sale of Good s Act, R.S.N.S. 1989, c. 408, s. 53; Prince Edward I sland

Sale of Goods Act, R.S .P.E.I. 1988, c. S -1, s. 52; and Saskatchewa n Sale of Goods

Act, R.S.S. 1978, c. S-1, s. 51.

8 See G.H. Treitel, “Specif‌ic Performa nce in the Sale of Goods” [1966] J. Bus. Law 211.

9 See I.C.F. Spry, The Principles of Equ itable Remedies, Specif‌ic Perform ance, Injunc-

tion, Rectif‌icat ion and Equitable Damages, 7th ed. (Sydney: LBC In formation

Service s, 2007) at 55.

10 See the comment s of Michaud C.J.K.B. in George Eddy Co. v. Corey, [1951] 4

D.L.R. 90 at 108 (N.B.S.C.A.D.) for an expansioni st interpretation of the Sale of