Specific Performance: Sale of Chattels and Shares, and Agreements for the Payment of Money

• Author: Jeffrey Berryman
• Profession: Professor of Law. Faculty of Law University of Windsor
• Pages: 248-270

CHAPTER

13

SPECIFIC

PERFORMANCE:

SALE

OF

CHATTELS

AND

SHARES,

AND

AGREEMENTS

FORTHE

PAYMENT

OF

MONEY

A.

INTRODUCTION

In

this chapter

we

look

at a

number

of

discrete contracts concerning

the

sale

of

chattels, shares,

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

numerous examples

of

specific

performance being granted

for

goods

of

rare

beauty

and

distinction,2

or

those that

had

some other high subjec-

tive

value

to the

buyer, such

as a

family

heirloom.3

These contracts

1

(U.K.),

56

&

57

Viet.,

c. 71.

2

See,

for

example,

Fells

v.

Read

(1796),

3

Ves.

Jr. 70, 30

E.R.

899

(Ch.)

[Fells]

(silver

altarpiece);

and

Falcke

v.

Gray

(1859),

4 Dr.

651,

62

E.R.

250

(V.C.)

[Falcke]

(old

jars).

3 See

Pusey

v.

Pusey

(1684),

1

Vern.

273,

23

E.R.

465

(Ch.)

[Pusey].

248

Specific

Performance: Sale

of

Chattels

and

Shares

and

Agreements

249

supported specific performance 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,

J&56,4

an

Act

requested

by

mercantile groups

and

designed, among other things,

to

make specific performance more readily available.

The Act

adopted

practices

from

Scottish law, itself inspired

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

states:

In an

action

for

breach

of

contract

to

deliver

specific

or

ascertained

goods,

the

court may,

if it

thinks

fit, direct that

the

contract

be

per-

formed

specifically,

without giving

the

defendant

the

option

of

retain-

ing the

goods

on

payment

of

damages,

and may

impose such terms

and

conditions

as to

damages, payment

of the

price,

and

otherwise,

as

to

the

court seems

just.7

This section

has

been controversial. Despite

the

fact

that

its

legislative

purpose

was

supposedly

to

make

in

specie

relief

more readily

available,8

this

has not

happened. Spry points

out

that

the

section

was

meant

to be

in

addition

to any

other rights

the

buyer

may

have

had to

specific

per-

formance

in

equity.9

This construction

of the

legislation

is

favoured

because

the

legislative goal

was to

expand

availability10

and, contrary

to

popular misconception,

the Act

cannot

be

viewed

as a

complete code

of

4

(U.K.),

19

&

20

Viet,

c. 97.

5 See WE.

Masterson,

"Specific Performance

of

Contracts

to

Deliver Specific

or

Ascertained Goods Under

the

English

Sale

of

Goods

Act and the

American Sales

Act",

in

M.

Radin

&

A.M. Kidd,

eds.,

Legal

Essays

in

Tribute

to

Orrin

Kip

McMurray

(Berkeley: University

of

California Press,

1935) 439.

6

Above

note

1.

7

R.S.O.

1990,

c.

S.I

Equivalent

provisions

can be

found

in

other

provincial

statues:

see

Alberta Sale

of

Goods

Act,

R.S.A.

1980,

c.

S-2,

s. 52;

British Columbia Sale

of

Goods

Act,

R.S.B.C.

1996,

c.

410,

s. 55;

Manitoba

The

Sale

of

Goods

Act,

R.S.M.

1987,

c.

S10,

s. 53;

Newfoundland Sale

of

Goods

Act,

R.S.N.

1990,

c.

S-6,

s. 53; New

Brunswick Sale

of

Goods

Act,

R.S.N.B.

1973,

c.

S-l,

s. 49;

Nova Scotia Sale

of

Goods

Act, R.S.N.S.

1989,

c.

408,

s. 53;

Prince

Edward Island Sale

of

Goods

Act,

R.S.PE.l.

1988,

c.

S-l,

s. 52; and

Saskatchewan

Sale

of

Goods

Act,

R.S.S.

1978,

c.

S-l,

s. 51.

8 See

G.H. Treitel, "Specific Performance

in the

Sale

of

Goods"

[1966]

J.

Bus.

Law

211.

9 See

I.C.E

Spry,

The

Principles

of

Equitable Remedies

Specific

Performance,

Injunction,

Rectification

and

Equitable Damages,

5th ed.

(Sydney:

LBC

Information Services,

1997)

at 55.

10 See the

comments

of

Michaud

C.J.K.B.

in

George

Eddy

Co. v.

Corey,

[1951]

4

D.L.R.

90 at 108

S.C.(A.D.) (N.B.)

for an

expansionist

interpretation

of the

Sale

of

Goods

Act

provision.