The Assignment on Equity and Trust

Running head: EQUITY AND TRUST
EQUITY AND TRUST
Name of the Student
Name of the University
Author Note

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Introduction
Specific performance is considered to be an equitable remedy present in the law of
contract. In this, the court issues some kind of an order, which requires a party to perform some
kind of a specific act in order to complete the contract which needs to be performed. In the
common law doctrine, the rights of the claimants would be restricted to an award of the damages.
When a contract for sale has been made for some kind of a unique property mere money
damages would not be considered to remedy the situation that has been faced by the purchaser.
For instance, Lydia is considered to offer to buy the house of Jenny and Jenny has accepted such
but she later decides on keeping the property Therefore, Real Estate is considered to be unique.
There are several different legal remedies that are considered to be taken into account when
some party has allegedly tried to breach the contractual obligation, which would involve the
lawsuits and the arbitration. However, at times there have been a monetary remedy, which does
not make the plaintiff whole, and such is considered to be the objective for any of the civil
remedies. The Courts are considered to have the authority to order the defendants in any disputes
related to contract in order to perform their contractual duties which would have been agreed
upon by the parties during the time the contract was entered into and such would be determined
that the money would not be able to resolve the issue. Therefore, such is known as specific
performance.
This paper would discuss the concept of specific performance which would be in relation
to a case study Posner v Scott-Lewis [1987] Ch 25 at 36 per Mervin J1. This paper would also
discuss and critically analyze the manner in which the courts in Ireland as well as England would
have developed the particular doctrine on Specific Performance. In addition to such it would also
1 Posner v Scott-Lewis [1987] Ch 25 at 36 per Mervin J.

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discuss the doctrine of Specific Performance and how the contracts are becoming less
enforceable due to the restrictions and limitations of the development of various case laws. In
conclusion, it would summarize the points that have been discussed in the paper.
Discussion
Concept of Specific Performance
Specific performance is considered to be a remedy for some kind of a breach which has
happened in a contract and it frequently occurs with transactions which include land and other
kind of construction work. The court has the authority to issue any order, which would mandate
or compel the party to agree with the contractual obligations. The courts are not considered to
grant any remedy for specific performance, which would be in connection to any contract, which
would involve personal services. These might include several employment contracts as well
because such order would limit the freedom of an individual. When any party is considered to
seek specific performance for some kind of contractual obligation, it would not require any
specific reasons for exercising the contractual rights and therefore for such the specific
performance might be granted which would be in addition to the damages. The specific
performance is considered to be available where the damages would not be an adequate remedy
and such individual would be considered to have a benefit for the contract which cannot be
carried out. The work would be personal or engage any kind of replacement. It can be used in the
case of any obligation in order to build which would be contained in a lease. These things would
be considered to be relevant in order to consider whether the landlord would be left to
penalization of the lease which would be to recover the possession of the premises and such
would be carried out with the ability for building works. Generally, such contract would not be

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ordered if any performance would require some kind of continuous supervision by the court for a
specific period of time if the obligations in question have been defined in the contract.
According to the authors Kostas, and Norrman, it has been stated that the specific
performance in the contract would be considered to cause severe as well as grave hardships to
the defendants as the contract is considered to be unconscionable. The specific performance is
not considered to be generally granted under certain circumstances. The damages in common law
are considered to be available instantly or the detriment is considered to be suffered by the
claimant as the claimant is considered to be an easy substitute if the damages are considered to
be adequate. If the claimant is considered to have misbehaved then the specific performance in
the contract is considered to be impossible. The performance is also considered to be consisting
of a personal service. The contract would also be too vague in order to be enforced. If the
contract was considered to be terminable then such can be renegotiated without any kind of
notice. The contract is considered to require continuous supervision. If there has been any kind
of lack in mutuality for the initial agreement of the contract. If there had been no consideration
made for any contract. Specific performance would not be considered to be granted for any
contracts, which would be void or unenforceable. However, it has been stated that the exception
would be in connection to the estoppel or any part performance. If there has been any kind of
injunction provided in order to restrain or restrict an employee from working for any kind of
rival employer then such would be granted even if specific performance cannot be acquired.
Such can be understood from the case of Lumley v Wagner [1852] EWHC (Ch) J962 where the
case was in relation to the right to terminate the performance in the contract. In addition to such,
the High Court in England and Wales had a discretion in order to award the damages to the
claimant which would be in relation to the specific performance. The damages would normally
2 Lumley v Wagner [1852] EWHC (Ch) J96.

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be considered to be assessed and evaluated on the basis of breach of contract which would be to
place the claimant in a certain position which he would have been if the contract had been
carried out3.
An example of specific performance can be used if such is considered to be used as a
remedy for the transactions with regards to the land as such which would be used in sale where
the vendor would refuse to convey the title of land. The reason or the purpose for that land would
be unique and there would be no legal remedy available in order to put the non-breaching party
in the similar position where the contract had been performed. However, it can be understood
that the limits of the specific performance would be very narrow. Moreover, the performance
was considered to be based on the personal judgment or the abilities of the party for which the
demand would be made and such would be rarely ordered by the court. The reason behind such
would be considered to be that the forced party would often have to perform the regular standard
which has been given by the party and the party’s capability in order to do such. The monetary
damages are considered to be used as an alternative.
According to the authors Hughes, Will, Ronan Champion, and Murdoch, the equity is
considered to be granted the specific performance in relation to the contracts, which would
involve chattels where the goods would be considered to be of a unique in character, which
would be including heirlooms or art works. The intention and the logic behind these were
considered to be with the goods being fungible where the aggrieved party would have an
adequate remedy, which would be in relation to the damages for the other party’s non-
performance. However, it has been stated that specific performance should be reserved for
3 Selviaridis, Kostas, and Andreas Norrman. "Performance-based contracting for advanced logistics services:
Challenges in its adoption, design and management." International Journal of Physical Distribution & Logistics
Management 45.6 (2015): 592-617.

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exceptional settings as such would be very costly to control or administer and such might prevent
the promisors from being engaged in breach4.
Analysis of the Case Study
In the Posner v Scott-Lewis [1987] Ch 25 at 36 per Mervin J. the court had granted an
application for the specific performance of the covenant of a lessor in order to employ a resident
porter in order to provide certain duties. It had been distinguished by the court through the case
of Ryan v Mutual Tontine Westminster Chambers [1893] 1 Ch 1165 where the monitoring of the
execution was considered to be undertaken which was considered to be required. There have
been no personal services nor would any series of acts, which would be continuous but the
execution of such for any agreement, comprise of the various provisions for all the services6.
Superintendence of the court
According to the author Yonathan, it has been stated that, the specific performance are
ordered by the court for the performances of the contractual obligations. The court is considered
to award some kind of specific performance during any kind of civil lawsuit, which would
determine the monetary compensation in order to have a sufficient resolution. It is stipulated that
all the party, which has ordered such, must be able to perform their obligations or they have to
face the penalty for such. The main reason for the specific performance elements would be for a
contract agreement, which have been broken by the parties where one party either would try not
to start or would fail to finish or complete what had been complied with or agreed upon. If such
party had done those things substantially then for such work more monetary damages would be
awarded where the kinds of resolution for those rescission would not be considered to be
4 Hughes, Will, Ronan Champion, and John Murdoch. Construction contracts: law and management. Routledge,
2015.
5 Ryan v Mutual Tontine Westminster Chambers [1893] 1 Ch 116.
6 Posner v Scott-Lewis [1987] Ch 25 at 36 per Mervin J.

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possible. Therefore, a contract would order the party to agree within the terms of the contract.
However, it has also been stated that there would be a threat for legal repercussion, which would
be enough in order to motivate the various party into the action, which would be without any
kind of actual court order7.
According to the author Yonathan, there have been various cases involving contract,
which has a unique object, or there is a piece of property, which would be done in order to value
the other party rather than providing them with monetary compensation. The injunctions along
with the arbitration as well as the monetary compensation would often be considered as the legal
alternatives for different specific elements relating to performance. However, it has been stated
that the injunctions are considered to refer to a variety of the cases and the elements of the
specific performance refer to the contract cases. There is also a scope of arbitration, which would
not be considered to be enough in order to enforce as such party had already provided
unwillingness for fulfilling the contractual obligations.
According to the author Alexander, it has been stated that it is considered to mean that
there would be a fulfillment of a promise under the contract which has been agreed upon by the
parties to the contract. The suit can be filed by any of the parties to a contract who would be a
part of the competent jurisdiction and along with such has suffered some kind of a loss because
of certain non-performance of the contract. The remedy for the specific performance would be
provided by various equity courts. However, it has been stated by the author that such cannot be
used as a right as such is provided on the basis of a satisfactory discretion which is provided by
the court8.
7 Arbel, Yonathan A. "Contract remedies in action: Specific performance." W. Va. L. Rev. 118 (2015): 369.
8 Savelyev, Alexander. "Contract law 2.0:‘Smart’contracts as the beginning of the end of classic contract law."
Information & Communications Technology Law 26.2 (2017): 116-134.

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According to the authors Xiaotao, and Zhang, it has been stated that, it is also considered
to act as some kind of an alternative in order to award the damages and such is considered to act
as an equitable remedy, which would be used as a form of injunctive relief, and it would also
consist of confidential information for some kind of real property. However, it had been stated in
the case of Redrow Homes Ltd v Martin Dawn (Leckhampton) Ltd [2016] EWHC 934 (Ch)9
where it can be understood that the case was concerning the land which had been sold for the
residential development. The buyer or the purchaser had made an application for the specific
performance to the court in order to mandate or compel the seller to agree with various
obligation in order to execute the planning of some agreement. The application was considered
to be made in spite of the arguments of the seller that the purchaser had itself breached the
obligations. It was found by the court that although there had been a purchaser or a buyer they
had failed to perform the duties or the obligations as such were not considered to be significant
and the damages were considered to be an adequate remedy for the individual who was
considered to be the seller. Subsequently, the breaches, which had been constituted, by the buyer
or the purchaser had no impediment or obstruction to the ability in order to seek some order for
specific performance.
According to the authors Xiaotao and Zhang, it has also been stated that the mutuality of
the specific performance would be enforced specifically and such is considered to be essential.
Mutuality determines that once such contract was considered to be entered into the parties who
were subjected to such contract would agree on the following terms and conditions which had
been provided in the contract or had been laid down in the contract. If there had been any kind of
incapacity to the contract then the nature of such contract would be considered to be incapable of
being enforced. Therefore, the execution of such contract would be free from any kind of
9 Redrow Homes Ltd v Martin Dawn (Leckhampton) Ltd [2016] EWHC 934 (Ch).

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difficulty, which would help in the execution of such. However, it has been also stated that in
England, after any voluntary settlement being entered into the contract would be considered to
sell the property which has been settled even after being compelled or being conveyed to
although such cannot be forced by the buyer in order to accept the conveyance of such. However,
it has also been stated that a vendor if unable to or is considered to be incapable of making such a
perfect title debars or prevents from obtaining or acquiring a decree and such would be against
the purchaser or the buyer then the purchaser might be compelled or forced to convey the same
with a certain amount of compensation10.
Lack of enforcement in developing the cases for specific performance
According to the authors Daniel, and Schwartz, it can be understood from the above
analysis that specific performance is considered to be an equitable remedy and such is considered
to be ordered by the courts. There are certain advantages to it which provides the innocent party
with what it had contracted for and along with such it also provides the innocent party to not be
able to mitigate the loss due to the non-performance of the contractual obligations. Subsequently,
there is another potential for the party which is innocent that such party would have the ability to
act quite unreasonably in refusing to accept some kind of compensation for the breach of the
contract. Therefore, due to this reason the courts are considered to limit or restrict the availability
of such specific performance as that of a remedy. However, it has also been stated that there are
certain lacunae relating to the specific performance in contractual obligations with regard to land.
As it can be understood from the case of Walsh v Londesdale (1882) 21 Ch D 911. It also
provides contracts which would ensure in providing security and give priority to a particular
creditor in the event of the insolvency of the debtor. It also serves difficulties relating to quantify
10 Liu, Xiaotao, and Yue Zhang. "Effects of target timing and contract frame on individual performance." European
Accounting Review 24.2 (2015): 329-345.
11 Walsh v Londesdale (1882) 21 Ch D 9.

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the damages and therefore adequate remedies are not considered to be provided at most of the
times. As it can be observed in the case of Wolverhampton Corp v Emmons [1901] 1 QB 51512.
At times the damages are also considered to be unrecovered as such cannot be recovered as it can
be seen in the case of Beswick v Beswick [1968] AC 5813. Therefore, due to these limitations
there have been certain restrictions imposed on the remedy of specific performance and hence
these need to be improved and enhanced14.
Conclusion
Therefore, it can be understood from the above discussion, that specific performance is
considered to be a remedy which is equitable and such are provided by the courts. These are
mutually entered into by the parties. The terms and conditions that have been laid down in the
contract needs to be followed as such would help in the performance of the contractual
obligations between the parties. It needs to be continuously supervised by the courts and the
courts would provide with adequate compensation, which would prevent the innocent party from
mitigating the loss. There are certain limitations in the developments of such contract, which
have been provided in the paper. In conclusion, such limitations or restrictions or limitations,
which prevent the development, can be enhanced or improved.
12 Wolverhampton Corp v Emmons [1901] 1 QB 515.
13 Beswick v Beswick [1968] AC 58.
14 Markovits, Daniel, and Alan Schwartz. "(In) Efficient Breach of Contract." (2016).

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Bibliography
Arbel, Yonathan A. "Contract remedies in action: Specific performance." W. Va. L. Rev. 118
(2015): 369.
Beswick v Beswick [1968] AC 58.
Hughes, Will, Ronan Champion, and John Murdoch. Construction contracts: law and
management. Routledge, 2015.
Liu, Xiaotao, and Yue Zhang. "Effects of target timing and contract frame on individual
performance." European Accounting Review 24.2 (2015): 329-345.
Lumley v Wagner [1852] EWHC (Ch) J96.
Markovits, Daniel, and Alan Schwartz. "(In) Efficient Breach of Contract." (2016).
Posner v Scott-Lewis [1987] Ch 25 at 36 per Mervin J.
Redrow Homes Ltd v Martin Dawn (Leckhampton) Ltd [2016] EWHC 934 (Ch).
Ryan v Mutual Tontine Westminster Chambers [1893] 1 Ch 116.
Savelyev, Alexander. "Contract law 2.0:‘Smart’contracts as the beginning of the end of classic
contract law." Information & Communications Technology Law 26.2 (2017): 116-134.
Selviaridis, Kostas, and Andreas Norrman. "Performance-based contracting for advanced
logistics services: Challenges in its adoption, design and management." International Journal of
Physical Distribution & Logistics Management 45.6 (2015): 592-617.
Walsh v Londesdale (1882) 21 Ch D 9.

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Wolverhampton Corp v Emmons [1901] 1 QB 515.