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Specific Performance
Irish Law
Undergraduate 4

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What is Specific Performance?
  • Equitable Doctrine.
  • Like injunction
  • Compels Performance
  • Protect "Expectant Interest"
  • Develo[ed because Damages Inadequate.
  • A complete form of relief.
  • Principle - people should have what they contracted for.

What are conditions must be satisfied for a Decree of Specific Performance to be granted?

  • Valid and enforceable contract
  • Consideration provided
  • Terms sufficiently certain and for Plaintiff to be able to establish this. 
  • Damages must be inadaquate. 


Why must damages be inadequate?
Lord Selborne in Wilson v Northampton (1874): "Sp instead of dmgs, only when it can do more perfect justice"






Section 2 - Chancery Amendment Act (Lord Cairns Act)


Power to COC to grant damages.


JA 1877 - Fusion of administration 


Can grant damages in lieu or in addition to SP.

Why is the Lord Cairns Act Important?



Prevents fraud - Section 2 of the Statute of Frauds 1695 (51(1) LCLRA 2009) doesn't have to be complied with for instances where part performance in established - where agreement not evidenced in Writing.

Why is the Discretionary nature of equity important with regards to Specific Performance?

Smelter v O'Driscoll (1977): Must not be arbitrary.


Murray J in Conlon v Murray (1958):

SP still retains the charcter of an equitable remedy.

Not granted as of right but as a discretionary remedy.

Parties conduct + characteristics of case may cause it to be witheld.

Not through the judges abritrary decision, but worked out on the principles of multitudes of cases.

What are some of the principles that must be observed before a court grants a decree?
  • Won't usually grant where supervision is required - Contracts for build and repair + contracts for services: Not an inflexible rule but provided some basis for refusal.
  • If an order would be futile, it won't be granted.
  • The plaintiffs conduct, willingness + ability to perform.
  • Defendants conduct, willing + ability to perform.
  • Hardship.

The awarding of Damages through the Equity Courts


S2 - CAA ( LCA )


JA 1877


Ferguson v Wilson (1866)

for court to exercise the jurisdiction to award damages - "all those ingredients which would enable the court, if it thought fit, to exercise this discretion" must be present.


When are Damages adequate?

  • Another agreement accorded priority
  • Delay - Laches
  • Some elements of uncertainty
  • Impossibility
  • Where no valid contract enforceable - damages may not be granted in equity - but on discretionary grounds may be granted if decided its an adequate remedy.

Does a Plaintiff have to stick with Specific Performance if a decree is granted to them?



No.                      Collins v Duffy (2009) 

Plaintiff opted for damages instead. 

Finlay Geoghegan J found on the evidence: prchsr made clear unwillingness to complete a property purchase - entitled to SP order of agreement.


Opted for damages instead - put in position as if contract was performed.



How are damages quanitified?


Take into account, inter alia, the loss of the bargain.


Difference in the value of the property at time of the contract against the value of the propety at time of judgement.

What Section of What act of legislation governs the doctrine of past performance?



Section 51 (2) preserved the doctrine of part performance and other equitable doctrines.

Does money have to be paid to create a valid enforceable contract?



Section 51 (3) of the LCLRA states that a deposit is not necessary to create an enforceable contract.


Can specific performance be granted for Chattels, Movable property etc.


Personalty Property?




Such items would normally be remedied with damages.


Will be granted if item is rare/unique.


Same applies to shares if cant be bought on the market when decree is sought.

What if a contract would require the court to supervise the defendant to ensure that they perform as required?

Courts usually won't grant SP if this is the case. 


Posner v Scott-Lewis (1987)

SP granted. Lease Covenant. Porter. Constant supervision wouldn't be required.


Co-op v Argyll: Continuing obligation - Would require constant supervision.



What remedy is available to a plaintiff if a decree is granted, and the defendant fails to comply?

Defendant could be held in contempt of court. Could be too harsh. Draconian measure. 


continuing obligation: why court denies - leaseholds.


What would happen if a purchaser is unable to buy a property he promised to?


Aranbel v Darcy - Clarke J

  • Plaintiffs built Dublin apartments
  • Brought action against 3 defendants who couldn't pay
  • Due to property collapse in 07/08.
  • Clarke J satisfied that no purchase could happen through a loan or their own resources.
  • developers would usually forfeit deposits and mitigate their losses buy allowing someone else to repurchase the property.

What did Clarke J say about the outcome of cases where SP is ordered and people cannot perform?


Aranbel v Darcy


Were entitled to SP but didn't elect for the remedy of SP


Granting SP wouldn't have the effect of the contract being performed as specified.


It would cause a further application to the court, leading to imprisonment and sequestration of the defendants assets.


These draconian efforts wouldn't complete payment to be made.


So, Impossibility is a defence to a claim of SP?


What if performance becomes onerous?


A task being onerous, but not impossible, does not render it incapable of being performed.


Neville and Sons Ltd v Gaurdian Brothers (1990): build houses - acquire permission to build road for entry - became onerous. 

What if performance under a contract becomes impossible?




Will not be granted as per Ferguson v Wilson





We know that SP will be granted for Sale of Land, but what about Leasehold Interest?

Historically, SP would not have been granted for leasehold interest. However, SP ewas granted or a leasehold interest in


Verall v Great Yarmouth (1981)


Seems to have changed the authority.

What was Clarke J's judgement on the Arandel v Darcy case?

He concluded that the defedants established a defence of impossibility. 


Burden of proof relied on them to establish that.


Plaintiff should be granted damages for the admitted breach of contract in lieu of specific performance.

Do the courts take the defendants perspective into account?
  • Hardship is a cause for denial of SP.
  • To defendant or 3rd parties.
  • Judged at time contract was entered into, not at the time of the judgement.
What is the rule according to hardship?

Any changes in circumstances that take place that render a contract less beneficial to one party are immaterial, unless brought about by the actions of the other party.


Lavan v Walsh - Budd J: Said that exceptions to this rule were 'Very Rare'.


SC qutoted with approval in Roberts v O'Neill - exceptions wouldnt include inflation alone. 

What is Part Performance?

When a party performs some of the contract and the other party tries to take advantage of the lack of a written contract.


S.2 SF 1695

51 (1) LCLRA 2009

No written agreement

What has been judicially stated about part performance?

Lord Selborne - purpose is to prevent fraud.


Prevent defendant from gaining an unfair advantage.


Barron J outline 4 conditions that must be met for a claim of part performance to be established.


Which case did a judge set out conditions necessary to establish part performance?



Mackie v Wilde

Barron J

1. Concluded Oral Contract.

2. Plaintiff showed intention to perform.

3. Defendant induced or stood by why the contract was being performed.

4. It would be unconscionable and a breach of good faith to allow the defendant to rely upon S 2 SOF to prevent performance of the contract. 

In what case was demolition of buildings and entry considered as part performance?



Starling Securities v Wood (1977)


McWilliam J

What was the test adopted in Lowry v Reid (1927)?

"The Plaintiff has an equity arising from Part Performance, Which is so affixed upon the conscience of the defendant, that it would amount to fraud on his part to take advantage that it is not in writing."



What are the Facts of Mackie V Wilde (no 2) (1998)?

Fishery in Donegal - Both joint owners - Indenture outlined rules - Plaintiff claimed part performance for something carried out per the contract. 


Costello J held that a concluded agreement had been reached, but on appeal Barron J held in the supreme court that a concluded agreement had not been reached. 

Why is Mackie v Wilde (no 2) (1998) so important?

The conclusion is not important.

What was important are the considerations given by Barron J regarding what needed to be established for part performance to be recognised. 



2-P intended

3-D induced or stood by

4-Unconscionable or Breach of Good Faith

What grounds can cause for a refusal of Specific Performance?


Farrel, in Irish Law of SP stated:

"SP may be witheld as an exercise of discretion,

even where a valid contract is proven,

and no defence or ground for refusal is established."

Damages v Specific Performance
  • Emotional connections may be incapable of being compensated for by damages, but they may be a better idea if economically advantegous to seek performance elsewhere.
  • Consider cost and delay of litigation

What is a party is unwilling to perform?


Pursuing SP may generate and perpetuate tensions.

Contempt would be only relief available fo plaintiff if failed to comply and result is imprisonment.

Defective performance could result from unwilling party.

Usually occurs where trust has broken down. 


Courts view unwillingness to perform as impossibility

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