Specific Performance: General Principles
| Author | Jeffrey Berryman |
| Pages | 269-312 |
269
CH AP TER 10
SPECIFIC PERFOR MANCE:
GENER AL PRINCIPLES
A. INT RODUC TION
Specific performance is an equitable remedy that orders a defaulting
promisor to keep her contractual bargain under pain of contempt of
court. The popular notion is that it is a presumptive remedy in the
enforcement of realty contracts and of a secondar y nature in any other
contract setting. As we will see, neither of these premises accurately
records the full scope of the remedy.
Specific performance is a remedy that has been shaped by histor-
ical practice, and many of the rules pertaining to its availability seem
strange today without some appreciation of the past development of
the remedy. In the first part of this ch apter we will briefly ex plore these
historical antecedents. Recently there has been renewed interest in
specific performance as a remedy which most closely approximates to
“complete” compensation for breach of contract, and much ink has be en
expended reconciling equity’s chosen contractual remedy with the
compensatory goal of damages. These a rguments will al so be explored
in this chapter. As will emerge, the dominant arguments in hibiting
specific performance are concerns over its relationship with t he com-
mon law remedy and of changes and perceptions about the inability
of courts to undertake super vision of what is perceived as being a n
intrusive and coercive order. As with other equit able remedies, there
are also a number of discretionary barr iers to the granting of speci fic
performance — these will be discu ssed in Chapter 11. In subsequent
THE LAW OF EQUITABLE RE MEDIES270
chapters, specific perform ance will be looked at in a number of discrete
areas of contracting.
B. A BRIEF HISTORY OF THE DEVELOPMENT
OF SPECIFIC PER FOR MA NCE
Where a promisor’s obligations remain unfulfilled, it appears natura l
for the promisee to seek specific per formance. In that way t he promisee
will get complete relief for that which was promised. Why then has the
common law favoured substitutionary rel ief over specific performance?
To answer this question, one has to appreciate the nat ure of con-
tracting through hi story.1 If one were to take a look at the manner of con-
tracting in the si xteenth century one would make several observations.
The first would be the variety of courts in wh ich litigants could
bring an action, which led to much forum shopping: Chancery, the
Law Merchant, Admir alty Courts, and Courts of Request all provided
some form of relief for parol (oral) contracts. Indeed, most of these
courts had a superior process for handling parol contracts than did
the common law courts, and as a result proved very attractive to liti-
gants. Many of these court s were influenced by European approaches,
practised by merchant s and traders throughout Europe as part of the
Law Merchant and by the workings of the e arlier Ecclesiastical Cour ts,
from where the chancellors were often drawn. A n important tenet of
the Ecclesiastica l Courts was the notion that a per son who had failed
to honour his promise imperiled his soul before God. The only way to
remedy this spirit ual imbalance was to make the promisor observe his
promise. This tenet was car ried over to Chancery Courts by ecclesias-
tically-trained ch ancellors. In common law, however, the main form of
contracting was through either the action of covenant, which required
specialty (a deed under seal), or the action of debt, by way of penal or
conditional bond. A promisor would create an obligation by entering a
penal bond that was d ischarged by actually per forming the promise on
the stipulated date or by forfeiting the penal bond. It is in these early
1 See H. Hazelt ine, “Early History of Speci fic Performance of Contract Law i n
English Law ” reproduced in Rechswisse nschaftliche beitrage Juri stische festgabe
des auslande s zu Josef Kohlers (1909); A.W.B. Simpson, A History of the Common
Law of Contract: The Rise of the Act ion of Assumpsit (Oxford: Clarendon Pre ss,
1975); and P.S. Atiyah, The Rise an d Fall of Freedom of Contract (Oxford: Claren-
don Press, 1979).
Specific Perform ance: General Principle s 271
roots that one sees emerging t he idea of a monetary payment as being
a substit ution for actual performance.
Next, one would observe the total absence of suits based on execu-
tory parol contracts in common law court s. It would be another 200
years before the common law finally developed the writ of assumpsit
(because he promised) which would elevate the promise as being a cen-
tral tenet of contract law.
Third, one would note the importance accorded realty, and the fact
that only in chancer y (through the notion of the passing of a “use,”
or benefit, thus creating a proprietar y interest held by the promisee)
would a purchaser be protected specifical ly against a vendor’s breach.
In common law, title to land would only pass on conveyance, which
required the strict obser vance of particular formalities.
If one were to advance forward and view a snapshot of contracting
in the seventeenth century, the picture would appear quite simi lar. For
contracts concerning realty, chancery courts played a decisive role in
enforcement. There were two reasons that explained this phenomenon.
First, realty car ried with it not only its economic worth but also
political power and authority, as well as social st atus.2 Thus, a compen-
satory remedy, which merely substituted damages for actual perform-
ance, would not result in the transfer of these ephemeral qualities.
The second reason was the subordination of contract by property
concepts. Chancery, which had created the passing of a use to denote
when property had exchanged, was inextricably tied to what Horowitz
has called a “title t heory of exchange.”3 Entrapped in this conceptual
framework, chancery court s were slow to react to the nascent ideas of
the bilateral executory contract4 that were about to emerge, and which
became so important in the creation of new forms of property. Realty
still formed the single most import ant form of property that could be
bargained, and thi s ensured the continued importance of chancery’s
2 See D. Cohen, “The Relationsh ip of Contractual Remedie s to Political and Social
Status: A Prel iminary Inquir y” (1982) 32 U.T.L.J. 31, who points out the in extri-
cable link bet ween land ownership and pol itical enfranchis ement at the time.
3 See M.J. Horwitz, The Transformat ion of American Law, 1780 –1 86 0 (Cambridge:
Harvard Un iversity Press, 1977). Central to a tit le theory of exchange is t he
notion that the cont ract is being enforced becau se it alone effects an exchan ge
of ownership in t he property, which is the subject of the contr act. The simple
presence of a promi se within the contract i s not the reason justify ing specific
enforcement. In th is sense, equity mir rored the old common law by creati ng a
proprietar y interest, the equitable int erest, and ordered its conveyance.
4 A bilateral exe cutory contract is a contract in wh ich the reciprocal excha nge of
promises bet ween two parties is t he immediate consideration for en forcement
without the need for any s teps of actual performan ce having taken place.
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