Specific performance in English law

"that the law makes the promisor pay damages if the promised event docs not come to pass. In every case it leaves him free from interference until the time for fulfilment has gone by, and therefore free to break his contract if he chooses".²'*'

The reason for this (from a civilian perspective) rather peculiar attitude lies in the historical origin of modern English contract law in the action of assumpsit.²⁰¹ Assumpsit, in turn, grew out of tresspass — that is (in modern parlance), a delictual remedy²⁰² by means of which the plaintiff was allowed to claim compensation in money for a wrong that had been done to him.²⁰³ In every writ of tresspass the defendant's harmful behaviour had to be described. In many cases it was quite obvious that such behaviour constituted a wrong, and in the course of time a number of standard forms were developed to cover these situations. Some­times, however, additional explanations had to be provided by the plaintiff in order to establish the wrongfulness of the defendant's act: more particularly, he had to allege that the defendant had been under a duty to do or not to do what he had done or failed to do.

(b) The rise of assumpsit

Amongst these early actions on the case there was a group in which the duty of the defendant (and hence his liability in case of failure to comply with it) was based upon a prior (informal) transaction which he had entered into with the plaintiff. Thus, for example, we read of suits against a surgeon who treated a finger of his patient so incautiously that a great part of it was lost;²⁰⁴ of a ferryman who killed a mare, entrusted

a® Holmes. The Common Law, p. 301.

^ÿ For what follows, see A.W.B. Simpson. History, pp. 199 sqq.

In a very similar fashion, of course, contract had grown out of delict in Roman law: cf. supra, pp. 4 sqq. And if its delictual origin is the historical reason why a contractual remedy for specific performance is (normally) not available according to the English common law, the same is true of the Roman rule of omnis condemnatio pecuniaria. A person who was "liable" because he had committed a wrong, was originally exposed to the injured party's power of seizure. But he could redeem himself by payment of a (monetary) composition. The State, of course, favoured this kind of release from liability which avoided crude forms of corporeal execution. Thus it had to make sure that the person liable (and his friends and relations) knew exactly how much money had to be paid in order to prevent manus iniectio from being granted. Thus, in every case where somebody was liable, a specific sum of money had to be determined in order to facilitate release from liability. This stage of the development was petrified in the rule of omnis condemnatio pecuniaria.

²¹¹³ For details, see S.F.C. Milsom, "Tresspass from Henry 111 to Edward III". (1958) 74 LQR 195 sqq., 407 sqq., 561 sqq.

^2tM Cf. A.K.R. Kiralfy, The Action on the Case (1951), pp. 224 sq.

778

to him, as a result of overloading his boat;^{[3992] [3993] or of a farrier who lamed a horse which he was shoeing.2w> In the course of the 14th century, the word "assumpsit" came to be commonly used in these kinds of actions: the defendant had undertaken to cure the finger, to transport the mare or to shoe the horse and could thus be seen to have assumed responsibility if something were to go wrong due to his lack of skill.[3994] For more than a century, the development of assumpsit was checked by the "nonfeasance doctrine":[3995] an action on the case based upon an assumpsit could not succeed if the defendant had merely failed to comply with what he had agreed to do; he had to have done something wrong (a misfeasance). It was only at the beginning of the 16th century[3996] 9 that assumpsit was made available also in cases of a pure nonfeasance. As a result of this, it had become a general action for the breach of informal agreements and thus effectively superseded the ancient contractual action of covenant: under covenant, the plaintiff had also been able to claim damages for breach of an agreement, but only if he was able to produce a sealed instrument ("make profert a specialty") to witness the latter.[3997] This change of legal doctrine may well have been motivated by the activities of the Chancellors who had established a wide-rangingjurisdiction over contracts in cases where no remedy was provided by the common law.[3998]" Parole agreements were one such situation, and by abandoning the nonfeasance doctrine, the "ordinary" courts merely accepted for the common law what reason and conscience had obliged the Chancellors to recognize in equity.}

The celebrated decision in Slade's case^[3999] was a further important milestone in the advance of assumpsit, for here it was settled that assumpsit could be used to force a person to pay a debt, i.e. a definite sum of money owed. Again, this development heralded the demise of an older remedy. The action of debt "sur contract" had once been designed to cover exactly this type of situation, but it involved the outdated and unsatisfactory trial by wager of law (compurgation).^[4000] Based on the more rational procedure of trial by jury, assumpsit appealed to plaintiffs as well as judges; with Slade's case, debt sur contract was bound to sink into oblivion, and assumpsit firmly established itself as the regular common-law contractual action. As a matter of course, assumpsit lay for damages only, and thus the common law effectively gave the promisor an option to perform his contract or to compensate the promisee for non-performance.

(c) Common-law remedy and equitable relief

It soon became apparent, though, that the availability merely of a remedy for breach of contract rather than for the actual performance thereof could not always be regarded, from the point of view of the creditor, as adequate and equitable. Of course there are many cases in which specific relief is simply not possible. In other instances substantial practical difficulties can arise: one may think, for instance, of promises to paint a picture, to build a house or to sing in an opera.^[4001] And even in cases where the enforcement of specific performance would not create any difficulty,^[4002] the award of damages may often be regarded as perfectly adequate. Thus it can be argued, for instance, that in a market economy money ought to enable the disappointed purchaser of chattels to arrange a substitute transaction.^[4003] Things appear different, however, when it comes to items which are considered to be unique.^[4004] For the medieval English lawyers the "unique" item par excellence was land.

The medieval canonists had been the first to break away decisively from omnis condemnatio pecuniaria; even for obligationes ad facien­dum they had advocated the possibility of a condemnatio in specie.^[4005] A promise must be kept, for "mendacium est, si quis non impleat, quod promisit".^[4006] A decree of specific performance was thus ultimately designed to make the defendant act in accordance with good conscience and to coerce him to honour his promise, for the avoidance of sin. This is exactly what suited the Chancellors,^[4007] who could (as clerics) not be attracted at all by the common-law notion that promises may be broken and paid for rather than be kept. Not surprisingly, therefore, they were quite prepared to grant specific relief within their sphere of jurisdiction. These decrees in equity took the form of a personal command to the defendant to do or not to do something, and as a consequence it was said that equity acted in personam, that is, against the person of the defendant, whilst the common law acted in rem, i.e. against his property.^[4008] But when did the common-law remedy have to be applied for and when could equitable relief be obtained? The long jurisdictional struggle was ultimately settled by means of an "adequacy" test: specific performance was available only where the award of damages was inadequate.

(d) The position today

Today, only one Supreme Court of Judicature exists, and all its branches are empowered to apply the rules developed "at law" and "in equity". Nevertheless, the idea still prevails that specific performance is an exceptional remedy.^[4010] It will not be granted where damages can adequately compensate the plaintiff, particularly in cases where a satisfactory substitute for what had been contracted for is readily available. Apart from that, contracts involving the rendering of personal services,^[4011] the erection of a building, or the performance of continuous contractual duties^{[4012] [4013] are not specifically enforceable.2211- [4014] Furthermore, a decree of specific performance continues to be at the discretion of the judge: "Equity will only grant specific performance if, under all the circumstances, it is just and equitable to do so."[4015] [4016] This discretion has, however, largely come to be governed by fixed rules and principles. Thus, for instance,22y specific performance can be refused if it would cause severe hardship to the defendant, if the contract has been obtained by unfair means or is unconscionable, if the conduct of the plaintiff himself has not been beyond reproach, or if the same remedy would not have been available to the defendant had the plaintiff been in breach of the contract (mutuality of remedy). Although there is a growing realization among Anglo-American authors ' 'that many of the arguments for restricting specific performance are no longer wholly convincing",[4017] and even though the courts, too, have in recent years been inclined to expand the scope of the remedy, the attitude adopted towards enforcement of the actual performance of a contract remains one of the fundamental differences between continental legal systems and the common law.[4018] [4019] [4020] [4021] [4022]}

7.