(b) Equitable remedies Specific performance
This is a court order which compels the defendant to perform its part of the contract as agreed. It compels the defendant to fulfill its promise in accordance with the contract without an option to pay damages. It is an equitable remedy which manifests the maxim that equity acts in personam. The remedy may be availed where;
– Monetary compensation is inadequate
– The subject matter is unique or has unfair characteristics
– A contract is breached in anticipation.
The award or refusal of remedy is discretional. A court of law exercises its direction on the basis of the following principles.
– Delay or doctrine of laches: the decree of specific performance must be appied for at theearliest possible instance as delay defeats equity. The plaintiff may lose the remedy if he has kept on his rights for too long.
– Hardship to the defendant: specific performance cannot be decreed. If it is likely tosubject the defendant to undue hardship. This is because he who seeks equity must do equity.
– Clean hands: the plaintiff must approach the court free from blame. This is because hewho comes to equity must do so with clean hands. Evidence of misrepresentation, duress or undue influence disentitles the party the remedy.
– Performance and supervision: as a general rule, specific performance cannot be decreed ifit is not possible for the defendant to perform or where performance requires constant supervision. This is because courts are reluctant to make ineffectual orders.
– Doctrine of mutuality: as a general rule, specific performance is not available incircumstances in which it would not have been available were the positions of the parties interchanged.
– Contracts for personal service or performance: Specific performance is not available in contracts of personal service for example employment contracts, as it is likely to perpetrate unfairness.
This is a court order which either restrains a party from doing or continuing to do a particular thing or compels it to undo what it has wrongly done.
An injunction may be prohibitory or mandatory.
A prohibitory injunction restrains a party from doing or continuing to do a particular thing.
A mandatory injunction on the other hand compels a party to put right what it has wrongly done. It is restorative in nature.
Injunctions are either interim or temporal and perpetual or permanent.
An injunction is an equitable remedy which may be granted in the following circumstances:-
– If money cannot adequately compensate the plaintiff
– If it is necessary to maintain the status quo i.e. maintaining things as they are
For an injunction to be granted the applicant must establish that:
– He has a prima facie case with overwhelming chances of success
– If the remedy is not granted he will suffer irreparable injury.
• Quantum Meruit
Literally means, as much as it is earned or deserved.
This is compensating a party on the basis of the proportion of work completed. It is an equitable remedy available in the following circumstances.
– Where a contract is divisible and the party was performed part of its obligations (Ritchie V. Atkinson.
– Where partial performance is accepted and the party has so performed
– Where the contract does not specify the amount or sum payable.
– Where the contract is substantially performed, the party that has performed is entitled to compensation for work done.
– Where a party ready and willing to perform its part of the contract but is prevented from doing so by the other.
• Other equitable remedies include:
– Account – Winding up
– Tracing – Rescission
– Appointment of Receiver