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Specific Performance, Doctrine Of Privity, Essay

1161 words - 5 pages

i) Dixon J in J C Williamson Ltd v Lukey Mulholland 1 explained that specific performance is 'in the proper sense, a remedy to compel the execution in specie of a contract which requires some definite thing to be done before the transaction is complete and the parties' rights are settled in the manner intended'.Specific performance is a principle which is usually applied when other remedies or damages are inadequate to remedy the breach of contract. This will mean that in order for Adolf to seek specific performance, the contract must have commenced or part performed and that damages as a remedy prove inadequate.Another issue that courts have been concerned about is the constant court supervision which would be required for specific performance. Dixon J in J C Williamson Ltd v Lukey and Mulholland 2 expressed that 'specific performance is inapplicable when the continued supervision of the Court is necessary in order to ensure the fulfilment of the contract. The Court will not be prepared to expend its resources every time there is a breach of a term of the contract, the Court will be reluctant to order specific performance as, for example each time Bennito fails to paint Adolf's house as specified under the contract, a law suit will arise.Lord Hoffman in Co-operative Insurance Society Ltd v Argyll Stores3 concurred with Pennycuick V. C of Dowty Boulton Paul Ltd v Wolverhampton Corporation4 that, 'It is very well established that a court will not order specific performance of an obligation to carry on business.' He also added that 'it is unnecessary in the circumstances to discuss whether damages would be an adequate remedy...'Thus, I cannot see why damages will not be an adequate remedy for Bennito's breach of contract, even if the damage is inadequate, specific performance will not be granted.ii) The General principle of the doctrine of privity of contract is that only the parties to a contract may seek to remedy or specific performance. However, if another party is so mentioned in the contract and benefit is conferred by one of the parties to the contract they too may too seek remedy.In order for a Court to grant specific performance there must be an assessment of whether the damages would an appropriate remedy for the breach of contract, hence the damage must be substantial. If Adolf refuses to fulfil his obligations to pay either Caesar or Bennito for Bennito's consideration, there would be a right to obtain damages either through Common law or Equity. Bennito can claim damages for breach of contract and then forward the damages to Caesar, but there may be other agreement between Bennito and Caesar which may make this course of action inappropriate.Lord Pearce in Beswick v Beswick 5 noted that as a principle party to the contract, 'The administratrix is entitled, if she so prefers, to enforce the agreement rather than accept its repudiation'.As the contract has already been performed by Bennito, Adolf's failure to execute his obligations on...

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