Specific Performance: Chattels, Shares, and Payment of Money

AuthorJeffrey Berryman
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.
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).
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

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