Specific performance of a contract is an equitable remedy and only available at the discretion of the court. But it is not uncommon in the case of sale of land because no two pieces of land are similar and damages would be an inadequate compensation for the losses suffered by the aggrieved party. Claim for specific performance can either be claimed on its own or in conjunction with any other remedy such as rescission, damages, as the case maybe.
General bars to the award
Specific performance is usually not awarded in the following circumstances;
a) An award for damages would sufficiently compensate for the loss
b) The contract contains an element such as mistake, fraud etc.
c) A third party (for example lender) has acquired an interest in the property
d) The seller cannot make a good title
Delay
The doctrine of lapse of time is applicable to all equitable remedies. Thus specific performance can be barred if the aggrieved party delays in seeking an award.
Damages in lieu
When specific performance is available for the aggrieved party, but the court decides not to make an order, an award for damages in lieu of specific performance can be made under Supreme Court Act of 1981, s50. The damages are assessed using normal contractual principles that are awarded for breach of contract. And in circumstances where specific performance was awarded but not complied with, the aggrieved party can return to the court seeking withdrawal of the order and to substitute the award with an award for damages.
Photo courtesy: Lee Haywood
