Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
23 Cards in this Set
- Front
- Back
Why are damages the main remedy?
|
Economically efficient
|
|
History of SP?
|
Historically only available from chancery court. Chancery court developed restrictions - now all courts can dispense equity- to refuse SP is contempt of court
|
|
First restriction?
|
Specific performance is only available if damages are not an adequate remedy. Burden is on the claimant. None-substitute items are common
|
|
Behnke v Bede Shipping (1927)
|
First restriction - rare items - no sub for the orginal ship thus plaintiff take ownership - J Wright rules s52 Sale of Goods Act1893 enabled him to direct SP- at courts discretion
|
|
52 Sale of Goods Act1893
|
Enables courts to direct SP - at courts discretion
|
|
Thorn v Public Works (1859)
|
Rare items - bricks from London Bridge
|
|
Cohen v Roche (1927)
|
unremarkable items do not require SP (chairs)
|
|
What do courts view as unique?
|
Land is viewed as unique
|
|
not an exhaustive list of restrictions
|
Lord Hoffman in Co-operative Insurance v Argyll
|
|
Second restriction?
|
As SP is an equitable remedy - only available at courts discretion - court not advised to make order on performance which takes too much judiciary time
|
|
Ryan v Mutual Tontine Chambers
|
Porter hired for block of flats - lease terms very vague - porter breached provision - court said can't make order because they don't know the porter should do - won't re-write the contract
|
|
Posner v Scott Lewis
|
the lease was very specific - court said relatively certain to make an order of SP. Certainty and precision are key
|
|
Hoffman lead judgement in Co-Op Insurance v Argylle Stores (1997)
|
Following leniency, Hoffman revisited the principle on restrictions. Disagreed with liberal approach - said damages are primal remedy - not role of court to run around enforcing contracts.
|
|
What did Hoffman do in Co-op insurance v Argylle Stores (1997)?
|
Drew distinction between activities and results
|
|
Activities contract
|
Not allowed - i.e. force someone to run a shop as seen in Co-op v Argylle (1997)
|
|
Results Contract
|
Deliver that ship, deliver that item- allowed by the courts
|
|
Court engaged in too much effort...
|
Then it's not allowed!
|
|
Third Restriction?
|
Contract for personal services - involves specific person - long standing principle that personal services are NOT enforceable by the court - too complicated to work out what to do - broken friendships hard to repair
|
|
De Francesco v Barnum (1980)
|
Can't force someone to sing for you
|
|
What are the other restrictions?
|
> If it's impossible then not fair to enforce it
> Causes Hardship > Mutuality of future performance |
|
What are the two types of injunctions?
|
Mandatory - compelling positive performance of some act to restore the situation to how it was before the breach
Prohibitory - stop injunctions - negative stipulation i.e stop them doing this etc.... |
|
What are the problems with prohibitory injunctions?
|
When you can't get positive you can find negative ways i.e Ross Barkley will not play for any other clubs etc
|
|
Do the courts allow prohibitory injunctions?
|
Courts generally do not allow it - usually to avoid destitution as seen in Wimley v Wagner (1852) - some people exploited.
|