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1
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First tie on module this heyar, ewuitable remedies obvs course to datr concerned with institution fot rust, epress trust resulting trust c.t. , trusts for rpivste purpose,cy prs , so very much looking at turst and how can eb created when arise and duties trustes, proeitatyr rememd ben, todays elc and enxr weeks lec. But this alst topic si really nothing to dow tih trust, sep topic butmake up equity, requite rem part of ost equit course

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Forget trusts and just focus on remedies avila an equi- final chunk of equity and trust course. Thing slike recision, rectification, injucntions, specifi perfoamcne, so this whoe topic remedies, tutorial q and will be examind fis time this year.f or those hwo ahte trust this wil eb saving grace. Equit remedies do – do soemthign toehr than topic relaitn trust makes upo this lec and next lec so heres u opp

3
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Introduction

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Introduction

Equitable Remedies apply in ALL fields of law, e.g Contract, Intellectual Property, Tort

4
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e.Gs ithings like injcutioms tro restrain breach of contract or stop osmeoen rbeahcign agreement tor estrain use of conf info or breach of cxopyright injuction be obtained ormdidle tort stp someone trespassing land injunction

5
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So equitable remeid- injucnitons… really do paly importna tpart and compliment civil law obcs vommonlaaw mian rem = damages how mcu u get but if suffer loss entitled to common law dam as right.. Ct work out and then loo at rules rmeottes award, comp .. But saw e=gsutiruakcaky , equitably developed menu other – speciif perfom recison, all equitable re,

6
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All eq rem highly discretionary hut all this additional rem work ina didito to dimple comn la wdamage this flexi bity .. Have been defvleoped b equity ckviilc ause of action
So facet equity improtnat felt improant to include in equity trust course

7
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Equitable Remedies were developed in Court of Chancery to ameliorate the harshness of the Common Law and to provide for alternative relief, with remedies being developed like, Rescission, Specific Performance and Injunctions and account.

8
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RESCISSION

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Rescission is the right of a party to a contract to have the contract set aside and to be restored to his former position as if the contract had never been formed.

9
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to restore status quo anti psootion before agreement entered into, why want recision want ti bc ct undo contract to roder a transfer consideration back from aprties form ocne it came to undo contr to set it aside perhapos on trms, discretion tod ot hat.

10
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When get recison- say contrat nebver been form bc some factor lessen genuines consent parties of that aghreemnt obv e.g.mis rep fraudlent neg or inncoen to coursevaries bit there under misrep act1967 s.2 – recison potential rem there. But still equitybale and still discretionary

11
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Rescission can be ordered by a court for various reasons here, mistake, fraud, lack of consent.

12
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When else could recison be ordered – well euqitbale to recend contract but discresion of court. Or where contract entered into udnure influence improper pressur epalced some shape or form on 1 contracting party agaisn another.

13
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Right barclasy bank v obrein remebr contract law- right to set aside contrac, th undue influence means imporper pressure,
Justice nuebuerger – problisoky brown undue infleucne in family home chec I tout – hardback 2002 haven’t updated not much happen sicne then prob could right second edition.

14
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Recision- for what other vixitiaing factors can lessen quality of consent trasncaiton like contract get recision fo it- misrep, undue infleu, duress gun to ehad sign here, didn’t truly consent, so recision be avial

15
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Eonomic dures- don’t sign will stop selling cheap cig- economic presur-e economic durees contract la- any of these estab show contract weasdnt propab entered itno get eecision but recision is an equit remedy and wright to recision is equity innocent party has

16
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Obs recision here is undoing contract on basis thay consent supporting that contract wasn’t prop obtained, wasn’t due cocneous adidem meetin gof midns bc someone some shape form pressuring enter that agreement.

17
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So notbased on true geneuiend conset. Court would order each pry to order back value each part gave other
Receion to terms. But ud try bring about restituor intgreim to restore pre contractual positon besta s u an.

18
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Sometiems have to makeppl give reciosn on terms- chees v Thomas but reccison equitable discretianry remdy.

19
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Distinguishable from Rescission for breach !

20
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Obvs reciision undoing contract for LACK OF COSNENT DIFF FRO RECINDING CONTRACT FOR BREACH – if someone in fundamental breach u are gine trust u can elect to terminate contract and accept repudairtoy brech. Almost like fundamental breach offer to terminate offer accpe can term u can then accept breach.

21
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Soemtiems called recision fro brehac
But recision here sayin contract should ntb be made cos pressure in first palce
So reciion is this sense equitablea dn discretionary

22
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E.G At common law a contract can be rescinded for mistake where the parties have made a mistake which negates agreement or which would make the performance of the contract as agreed impossible.

23
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Great Peace Shipping v Tsavliris Salvage [2003] QB 679
CA held: There was no separate form of mistake in equitable which merely rendered a contract voidable, only mistake at common law which could render a contract void.
Lord denning only 1 mistkae at common law

24
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Rescission of Voluntary Transactions

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So if u give away some money as deed of gift, so just five someone 20,000 deed of gift, a gifts money to b b nothing return no contract no consideration and then transpires only reason cos b gonna blow brains out the obvs 1 can get recision of giftr on absis of duress

25
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Equity may grant rescission of a voluntary transaction, e.g where a person has transferred property by way of a gift absolutely, or transferred it to trustees on trust, whether effected by Deed or otherwise.

26
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Futter v IRC [2013] UKSC 26

Test for rescission of voluntary transactions less onerous than for contracts.

27
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So u can recind anything under equity-equitable fuad or wrongdoing- so u can recing gifts easier tor ecind gifts

28
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futter v irc- obvs less onerous than undoing cotnractc os got bargain aspect, no cons just 1 way transfer. But if can show that transfer is precured by duress or undue infl or fraud or some othe wrongdoing u can get recsision I equity. Equity can unravel all these naught things.

29
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Test being : ‘ the true requirement is simply for there to be a causative mistake of sufficient gravity’.

30
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This could be a mistake either as to the legal character or nature of the transaction, or as to the effects of consequences of the transaction, including tax consequences.

31
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Ultimate test is: Would it be unconscionable or unjust to leave the mistaken disposition uncorrected? This is an objective test.

32
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Is it uncocnsiouble r.a.w couldnbe transfer of alnd, property , giving away mign vase u can undo recision of anything any gift. But have to show be uncconciousble unjust not to roder recison- q for judge.

33
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Defence of Change of Position ?
If before becoming aware/should have become aware of it being unconscionable to retain the benefit of the disposition, the recipient materially changed their position, the defence of change of position might prevent liability or minimise the same.

34
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There amy be defence of change of position – so if before coming aware or should bec oem awa re- innocent part materially hnage positon or person gvign prpa way changed pos people relied somehow on that gift. That mgith epvent recison of it but depend on facts each and evry case- that’s a restitution argument.

35
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Ur preventing an unjust enrichment here by ordering recsion of a gift which should ahev taken palce, did thru duress, but fi soemwhow there sbeen chan e of pso and ebcoems unjust to roder a recison that cans tp rec being roderd bt that restitution lawayers arg

36
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Rescission for Misrepresentation

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A misrepresentation is a false statement of existing fact which in fact induces a contract, it does not render a contract void but voidable at the election of the misrepresentee.

37
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Recision mis- saw in contract law- contract entered into false state existing fact which induces contrac tor a cause of inducing cont but not necc the cause recision is avial potentially whether misrep fruadlent neglgien to or innocent, depending on cuplabilti, wickeness of wrongdoer… so how guilty or incnoent maker statement is can dictate lieky toget recision or not

38
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Rescission of a contract is available for both fraudulent, negligent and innocent misrepresentation (depending on culpability of maker), Ss.2 (1) and (2) Misrepresentation Act 1967

39
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If the misrepresentation is fraudulent or negligent the misrepresentee can claim rescission and/or damages (on a tort of deceit/fraud basis, S.2(1)).

40
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Rescission is at discretion of court, subject to bars, affirmation, delay (laches), restitutio integrum. Burden of proof is on maker of statement to show reasonable grounds for believing.

41
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If the misrepresentation is innocent rescission OR damages in lieu available S.2(2).

42
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Recission of coruse always ultimately discretion foc ct and are those bars to recisison for msirep in context of cotnracts

43
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for e.eg despite misrep di guy nonetheless take car pay for ti and go around running taxi business 6 months before gone ct. if has done cant cliam rec coss used it andf been happy to wave thr eefct of misrep and carry on with it. Might be able to get damage I lieu but point ebign ahs he in someway affirmed contract and u can lose right then to set aside btus till be able claim dam for obvs any loss of overpaying car. Or fi he goes to ct may nto drive taix around, goes get rec

44
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.. Ct says ur unreasonably delayed, uncocnsioubly delayed to assert ur right ofr ecc. Resturory itnegreim, restoring status quo anti u getting money back him getting car back has bene lost bc of delay.doc tor of lechees. So are these bars of reccison

45
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Rescission for Undue Influence

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Contracts, voluntary dispositions (absolute gifts or gifts on trust) can be set aside where they have been procured through undue influence.

46
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*See Pawlowski and Brown Undue Influence and the Family Home 2001 Cavendish.

47
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Several types of Undue Influence:
Actual
Where one party has actually applied improper pressure (short of duress) which induces the transaction/disposition.
-actual improp pressure cause someone to enter intoa greement which otherwise wouldn’t done

48
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See Bank of Credit and Commerce International v Aboody [1990] 1 QB 923

49
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Bank – mis aboady was hierarchy dures,s cultarlly did everything hudband told her, thretn abuse all sign mortgage agreement and she did and there was actual undue infl. Think claim failed cos cultrally signed anyway even if been no undue ifnlue. So weren’t cuase of her unsigned but illustrating banging fists and thigns is improper pressure actual undue influence

50
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Presumed Undue Influence
Where the nature of relationship between parties to transaction/disposition gives rise to a presumption of undue influence and such influence was exercised.
E.g Parent/child; spiritual adviser/disciple; doctor and patient; lecturer/student; married and cohabiting couples; solicitor/client.

51
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Presumed undure can arise where nature of rels r.a.w is such that law presumes oen ahs some sort of power or pshyciologcal control vor other. That to enter into r.a.w parent child e.f = power relationships – so any gift or contracted entered into where weaker party gives to some benefit tos tronger aprty can be recind at election of the weaker party and court can order recision in equit jurisdiction.

52
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OR where a relationship of trust and confidence reposed by one in another is established.
- Or presumption of undue ifnlu can arise where 1 person palces trust or conf in another. So this can happen inc otnext husband /wives aprtners

53
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e.g 1 person simply says I trusted this eprso and went along and signed mortage agrrememnt. If uc an estab that 1 pary did that reposed trust and conf in other that then create presumption of undue ifn arising inf avour of strongr pary. Weaker paety ge trecision of transc once crossed hurdle. Unelss stronger aperty can show weaker party idnepdnanct advice clearly waware what getting themselves in for. So b.o.p shifts otherwise recisio will be ordered.

54
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Allcard v Skinner (1887) 26 Ch.D 145- recision ordered
Barclays Bank v O’Brien [1994] 1 AC 180
Roche v Sherrington [1982] 1 WLR 599
Wright v Carter [1903] 1 Ch.27 CA
CIBC v Pitt [1994] 1 AC 200
Credit Lyonnais v Burch [1997] 1 All.E.R 144
Royal Bank v Scotland v Ettridge No.2 [2001] AER 449

55
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A third party such as a bank or mortgage lender might be affected and tainted with the undue influence of say one individual procuring the consent of another over whom he or she has influence, into entering say a mortgage agreement. If so, the undue influence, is deemed to come from the third party bank as it has NOTICE of the wrongdoing of the one who exercised undue influence.

56
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See Barclays Bank v O’Brien (above) (HL)

Royal Bank of Scotland v Ettridge No.2 (above) (HL).

57
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Barclasy abnk will be tsinrd with husbaned resumed or actual ifnleucne unless tkane step sto detain themselves if bank were o unotice rela trust conf etc.

58
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all stuff on idnepdnant advice and guidleiness etc whichc oems thru etrdige no2 if undure ifnl shown toe xist an if bank nto fre of it are tained by husabnds wrong doing , th en bankd eemd asif undue infleu bank over wife. Which gives her right to set aside mortgage trans feasibly her in bank

59
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Its how do u infect bank with husbands bullying behiacivoru or undue influence, how do bank, notice of it unless essentially steps take them off notice.

60
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But it could be obvs law there to protect women ut can protect men with bulling wife. But what step should bank do to make ensure not sucked into al this. Cos tehyc an eb contaminated by his ro her bulyig ro wrogn doing, wqhcih can lead to transacitonbtw them being set aside, tis asif undue ifnl then come from bank

61
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. So recision claim to set aside trnsactiojn visibly victim an bank its asif udneu ifnl came from bank cos the unoteied and get contiamnted of usbands wrongdoing,t hats logic of alw here- so recison would be remedy.

62
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Rescission for Undue Influence

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Where the victim of undue influence wishes to set aside a transaction, contract, will, gift, trust etc, on showing the undue influence caused them to enter into the transaction, a court may set the same aside, i.e rescind the transaction in its equitable discretion.

63
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Whole point gotta enter into them where contract elads gift, justopen gift entering wills withf ree and ifnoremd consent. And if tjink been udnure influence in perucign that gift contract or wil, the person can seek to set aside that transaction if they can show undue influe.

Ct then has equitable remdy fo reci, can award and set aside transc perhaps on terms or absolutely. Undo the transaction in q. the gift contract will. Like form fo equitable fraud. Frsud unravels everything and remedy to do that sir ecsion.

Discretinary remedy, ti can be on terms say reision of contract, to make someboy discorge benefits theyvre received until contract set aside they may have recievd be n under contract, if gonan set aside so got acocoutn for ebenfits recievd wlel contract was alive, this was called to make coutne rrestititiuion. Otherwise peosn contract set aside egt out of ti but obtain benefits while was alive.

64
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Rescission may be on terms, ordering the victim of the undue influence to make counter restitution for benefits enjoyed up until rescission, Cheese v Thomas [1994] 1 All.E.R 35

Chees v Thomas- can have recision o terms.

65
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Rescission as a Remedy

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As it is an equitable remedy, rescission is discretionary and bars to rescission may exist generally, viz:

66
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Restitutio Integrum Impossible
Rescission will be refused if it is impossible to return to status quo ante.
Generally, Courts do what is practically just the question being can the status quo ante (before transaction/gift/trust etc) be restored

67
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e.G to resotre sttu quo anti imposible. Where resittouo integrihas become impossible.so fi for soemr eason impossible tor estore parties to status quo to pre transaction, pre will pre contract rpescion, then reccison wont be rodered.

68
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O’Sullivan v Management Agency and Music Ltd [1985] QB 428

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A contract for the management of a popular singer (Gilbert O’Sullivan) was rescinded on the grounds of undue influence. The managers were however entitled to retain a reasonable remuneration for the work they had done which had contributed to his success.

69
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In awarding rescission (possibly on terms) , the court will seek in its discretion to do what is practically just, see Cheese v Thomas (above).

70
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claimed signed under undue and got reciison of agreement, held , iliek reccision on terms bit like chees v Thomas has to make counter restitiution given credit for work done under contractbefore set aside. Doesn’t get round fact should ahven been entered in first palce cos undue ifnluence

71
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Affirmation

A part cannot claim rescission of a contract which he has subsequently affirmed.

72
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E.g Long v Lloyd [1958] 2 All.E.R 402 C.A
A purchaser was taken to have affirmed a contract for the sale of a lorry when he used it a second time having discovered there were faults.

73
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Long v lloy-d purchase of lorry lied to about mileage he then argued for recision for msirep but said he lost right tor escind, bar to recisio cos after discored true condition of lorry he sued it. Soe effctviely waved right toc laim rec, but could claim damages for differnc in vakue btw lorry right jmileage lorry rogn mgilage.

74
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See also Mitchell v Homfray (1881) 8 QBD 587

75
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Third Party Acquiring Rights
The right in equity to rescind a transaction/disposition for e.g undue influence or misrepresentation, is lost where third parties have acquired rights in the property in good faith for value.

-rights under transcational contract the that can stop recision beig orderd cos predujucie them.

76
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See Oaks v Turquand (1867) LR 2 HL 325
Bainbridge v Browne (1881) 18 Ch.D 188
Re Scottish Petroleum (No.2) (1883) 23 Ch.D 413
Coldunell Ltd v Gallon [1986] 1 All.E.R 429

77
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Laches / Unconscionable Delay
The remedy of rescission will not be available where there is unconscionable delay or laches in coming to court.

-As said unreasonable ucncosiouable delay court- that can prevent recision being rodered

78
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Allcard v Skinner (above)-The plaintiff was a novice/nun who signed away all her worldly property to the mother superior of a religious order. When she left the order she claimed rescission of the gift. Her claim failed as she took 5 years to bring the claim for rescission, unconscionable delay existed. See also Leaf v International Galleries [1950] 2 KB 86.

79
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woman decided to be catholic nun sos he joined as nocie trainee nun , part dal sign awa all wordly possession and amrired tk Christ. So she singed this agreement hadn godos over to mother superior but after few fed up of beign nun and wante dot go back to real wordl. Too much for her. Needd her gave all up . The said can I have my prop back. Covnent said no cos givne it to us as gift. She claimed only signed bc there was power imbalaxn ebetw senior spriit avro and me nun ans novice and what signed under undue indfluecne due to power of lance. But took 5 yrs to come cort after elft conv to try claim. And ti was held yes undue indlfuence but claim for recision failed cos uncocnsiouble delay

80
Q

RECTIFICATION

A

Rectification is an equitable discretionary remedy, that allows for the correction of mistakes in documents.

ALL ABOUT INHERENT EQUIT YTO CORRY MISTAKES IN DOCUMENYS- CORRECTIGN MSITAKES IN SIGNED DOC.

81
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It is an exception to the Parol Evidence Rule, so that oral evidence may be admitted to demonstrate that a written instrument is incorrect.

82
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so gott ahsow ithe vi tha the finale xcuted doc does not properly record what was earlier agreed btw 2 parties so classic e.g idsle fo white county court.. Here ncie e.g in sense often if say parties property long residual lease of flat or comme lease. Parties will initially agree to exchange contract for leas ee.g exchange freehold. So contract for lease like freehold. Contract fr leas which agreed , and then on completion execute formal elase by deed then sign off to be reg. soemtims what can ahpepn is the contrat of rlease mays ay certia thigs asn the finale xcuted lease by deed, and witnessed say 10 yr commericla elase doesn’t proepryl reflect what agree din agreement for lease.

83
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So e.g had my case was in the agreement for elase agree dlandlord d repaird for prop Int eh inal executed lease drawn jup in ndeed not just contract, that excuted deed land reg admitted to put ladn lord reparing cov. So property could ltieally fall downa dnnobdoy label to repair.

84
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So clearly neem screw up, so that gernate claim for recitificaito in equity on part leasher tenant seke court order rectifaicito of former convyeanc.e to make it reflect what true mutual cotnratcrl consent of parties as expresse I roginalc otnradct fo elase. ovs could just keot that , but want proeprl legal leae which can then be rg. So recitifcaiton is discretion court.

85
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To ensure documents reflect what aprties truly had agree.d agreement could be agreement for lease or could be exhcnage of emails or something. So tis to correct defect in written isnturment. Correitng docu. Equitable discretion make sure reflect true contractual intent of parties.

86
Q

Joscelyne v Nissen [1970] 2 QB 86

A

CA here ordered the rectification of an agreement between a daughter and her father which they intended should include a provision that she was to pay household expenses which she had refused to pay, claiming that she was not required to do so by the agreement.

-theys aid been udnertsaning and formal agreme recitficaiton was rodered

87
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Many documents have been rectified e.g conveyances, bills of exchange, marriage settlements, transfer of shares, wills.

So may doc been rect- r.a.w to properly reflect true objective mutuala gree ditnetnion of parties. So where doc badly drafted recitifation can be rodered. Covneyances bills of exchange leasehold conveyences etc. so

88
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Requirements for Rectification

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(a) Mistake in Written Documentation
Rectification is only possible where a written document mistakenly fails to state what the parties intended. If that common intention does not appear in the written document rectification may be claimed as to the terms of the agreement.

89
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See Frederick E. Rose v William Pim Jnr [1953] 2 QB 450; Lloyds TSB Bank v Crowborough [2012] EWHC 2264

90
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So what do we ened to establish claim from recti- 1st only possible where written doc mistakenly fails to satte what parties intended. If common intention does nto appear in written doc, redtificaiton claimed terms of agreement may sile white case e.g common mistake isnturment only be rectified if records agree

91
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Common Mistake – An instrument will only be rectified if it records the agreement contrary to the intentions of both parties, Murray v Parker (1854) 19 Beav 305.

92
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Unilateral Mistake – Generally rectification not available, but will be IF party who was not mistaken had acted fraudulently or is estopped from resisting rectification, i.e if he knew other party was mistaken about the wrongful inclusion or omission of a provision and failed to draw it to the other party’s attention and sought to benefit!

93
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Thomas Bates v Wyndham Lingerie [1981] 1 All.E.R 1077 CA

94
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Back tot hsic an get rect ito obvs get taken out foa greements or put in. its correcting doc that dot reflect etcx

95
Q

Defences to Rectification

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Unconscionable delay/laches can bar a claim
If a third party bona fide purchaser for value without notice of the equitable claim for rectification would be adversely affected, see

96
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What defences exist rectification, goin gback tot hat can get reitifvcaiton to
If too slow going to ct might lose claim for rectify or if 3r party purchaser somehow relied on agreement in unrectfiie form and now to recifited will prejudice them then it can be refused.

97
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Thames Guaranty v Campbell [1985] QB 220.

98
Q

EQUITABLE ACCOUNT

A

Where someone has obtained a benefit to which they are not entitled or has incurred an expense which should be payable by another, an account in equity may be ordered either on its own or has an adjunct to another substantive remedy.

99
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E.g Where co-owners are entitled to share the occupation of residential property, and only one has paid the bills, an account may be ordered against the other, Leake v Bruzzi [1974] 1 WLR 1528, or where a fiduciary has made financial gain from confidential information Boardman v Phipps [1967] 2 AC 46

100
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fid like solicitor or solicitor trustee in deed – rule is msutn poruchase any profit thiese sit.

101
Q

SPECIFIC PERFOMANCE

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The remedy of specific performance applies where someone has already engaged (typically by contract) to do something and then has failed to do so.

102
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The court in its equitable jurisdiction can order that the defendant specifically perform his promised obligation, e.g transfer title to land in return for money paid.

103
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Failure to abide a court order for S.P. can result in contempt of court, resulting in a fine or imprisonment, Mid Suffolk DC v Clarke [2007] 1 WLR 98.

104
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Speciifc performance again coema ccors in contra- equitable discretinar rem court can order an indivial specific perform for e.g contractual duty to carry a contract out to transfer a title to alnd.

105
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Tod eleiver certain goods its ane quitabl jusridcaition situationagain, tis very dsicreitonary. Ct has poer to not just awrd damge but certia ciurmtance to order individ actuall specific perofrm and caryr out what ehs promised.a nd fif ail to obide by roder speicifc performance that contempt of corutcan be fined or go to rpsion

106
Q

Availability of Specific Performance

A

Exceptional remedy for breach of contract where damages for breach are inadequate, see, Co-Operative Insurance v Argyll Stores [1997] 3 All.E.R 297

107
Q

A

Sp when can u get it – its an exceptional remedy not the norm can only get essentially wehre damages are se to be inadequate 0 copp – so land contract good e.g every land contract treated as unique whether contract to tske leasehold total flat I bham.

108
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All contract in relation to aldn treated as unique and in theory person promising tot ransfer title sellor or vendor if he fails to erpfomr and covney title when money been paid or in orusant to cotnrct can be sued for speciif cperfomance. Sub brook trading and eggl

109
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Land Contracts –Land is unique and such a land contract can readily be ordered to be carried through by specific performance, Sudbrook Trading v Eggleton [1983] 1 AC 444, this includes the grant of licences as well as the transfer of titles, Verrall v Great Yarmouth BC [1981] QB 202

110
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This also grant of license r.a.w – they got speciif profmance agreement give lciense use peer great yarmoth.- revoke lciens esued and got order speciif perf againt council to caryrh through what rpomsie.

111
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Unique Personalty
Contracts for the sale of unique personalty (not readily replaceable in the market) can be ordered to be performed by specific performance, Falcke v Gray (1859) 4 Drew 651.

112
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Unqiue personality – ahhain personal good which under contract been agred ot be sold, if they can eb readily replaced in market. If ia gree to sell – got piana ymahoa , pay money don’t del. She can sue specific perfromacne cos just 1 of thousand of certia type of piano but can sue m fro damages for loss caused. Loss of paino or market replacement of ti and if bovs shortage of painos.. Painos now cost supply and deman twice as much she can claim .. And that’s her dmaages. Lodss of bargain. If …????
Unique cos history assoc wirth ot which make it sens epricles-s damages would nto enable her cos no market susbtitue he onl wrote sogn 1 paino I own so thenshe can sue me for speciif perfo cos goods unqieu and damage swould not enable her to get amrk sub. That the point of dmages. But if no market sub damages wilbe iandeuatq rem, sis he can sue tog et me tos epcifilal deliver tha unique paino,.

113
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Behnke v Bede Shipping [1927] 1 KB 649 specific performance for the purchase of a steamship which had unique and special value to the plaintiff.

-Unqiueness – KEY WORD bjhenek e case

114
Q

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Contrast Cohen v Roche [1927] 1 KB 169 8 ‘Hepplewhite chairs’ not considered of special value no specific performance ordered.

Cohen v roche – heepel white chairs

115
Q

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A contract to sell shares in a private limited company may be specifically performable as the shares are not readily available in the market, Neville v Wilson [1997] Ch.144.

116
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This si itnersitng 1 – contract tos ell shares I private r.a.w ford share not avial for memerbs of public etc so not readily avail in market not for sale so if rpviat lmt company opposed ot public- u can get speicif performance venedor to make transfer into name so can g onto company shar reg as owner. Damages iandeuqte rem cos no alternartive share sin market. Private comp shares are unique and contract to sell them which not followed thru can enforce speciif perofmr – Neville and also jermomve v Kelly , ultrid v irc lord Radcliff judgement

117
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Non-Unique goods contracts might attract remedy of specific performance IF in special circumstances no market substitutes exist, Sky Petroleum Ltd v VIP Petroleum Ltd [1974] 1 All.ER 954 (petrol and diesel).

118
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Non unique gogod might attract spei r.a.w0 so non unqiue paino of siddentl dome reason temporaily 1 paiano elft even temprotay blip, big blips pecific performance might ebccome avail. So for ostrenous cirmum mgith create uniquenss which other might not exist then can get specific perf

119
Q

Contracts where Specific Performance is Not Available

A

Contracts of Personal Service
Equity will not compel by specific performance a contract of personal service requiring the defendant to work for the claimant, essentially as this would infringe the defendant’s liberty and almost render him/her a slave; De Francesco v Barnum (1890) 45 Ch D 430

120
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Not avail equit reme = personal service contract. So if uve agred supply or labour to certain eprsonf or money and refuse to caryr out ru service tot ehem. Gen they cant sue u for speciif form cos said essentially ifnringe defene liberit cosnittionaly speaking and render hi or her essentially slave. Quote- contract of service ain to contrc of slavery which ti isn’t/.

121
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Similarly the courts will also refuse an injunction to give effect to a contractual undertaking that the defendant is not to work for anyone else, as this would amount to indirect specific performance of the contract, see, CH Giles v Morris [1972] 1 WLR 307 per Megarry J.

122
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Simialruy courts r.a.w so fi ia grred to wrok for a – if I want to wro for b court siwllr effuse inunction tog ive effect udnetaking wont work for a hyoe elsr r..aw must be fre eto breach contract. So I cant be made to perofm a personals ervice contract.d riectly or indirectly GH giles v morris. Perosnal service ocntracts are nto contracts of slavery, u may allowed to reach and may be laible in damges but u cannot be tied to them

123
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See also Page One v Britton [1967] 3 All.E.R 822; The Scaptrade [1983] 2 AC 694
Lumley v Wagner (1852) 1 De GM & g 604

124
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Page one v britton - - look at that itnerstin case, could make people perform service contracts
Look athose cases

125
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Contracts to carry on a business
Courts will not order specific performance e.g of a keep open covenant to carry on a business, as this would need ‘constant supervision’ by the court, see Co-Operative Insurance v Argyll Stores [1997] 3 All.E.R 297

126
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Contracts to caryr on busiens s- r.a.w – stop keeping sotre open , which stopped lruignin custoemrs to rest of shoppin lo, landlros said keep open in palce cos ur magnet retail business. And coop peope refused kepe sotre open. Aldnlord said breach open cov –specifi perfoman –lord hoof said not enforce keep open cov by specific perfomacne cos more importantly that that would need constant superviiosn, gong back to cort all the time , to much work in polcing ct can obv police … so whether kept open – always comig abck toc orut long. Har police such order of speicif perfoemance
Contracts transfer gfoo wil

127
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Contracts for Partnership
Such contracts not specifically enforceable unless partners have begun to act upon their agreement England v Curling (1844) 8 Beav.129

128
Q

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A

Contracts to transfer goodwill on its own not specifically enforceable unless annexed to land/premises/business assets, Baxter v Conolly (1820) 1 Jac 7 W 576

129
Q

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Contract to exercise a testamentary power of appointment in favour of someone, not specifically performable, as would undermine donor’s intention that donee should be able to exercise power until donee’s death Re Parkin [1892] 3 Ch. 510

130
Q

Other Obstacles to Specific Performance being Ordered

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So toher osbtaclers qute hard to get specific perfoemance. Keyt hings need to show UNQIUENESS OF GOGDS. Lots obstacle to it
Other obstacle

131
Q

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A

The courts can decline specific performance on certain grounds, viz:-

132
Q

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Equity will not assist a volunteer, i.e someone who has not provided valuable consideration, this does not include deeds. Futter v Revenue and Customs [2013] UKSC 26. No change to this rule is effected by the Contract Rights of Third Parties Act 1999, S.1 (5).

133
Q

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If there agreement a and b but noc odntract no consi- genrall equity wotn assit volunteer it wont give speicif perfom agains tsomeone where no consid been exhnaged. - futter

134
Q

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(b) Claimant in Breach
If the claimant is in breach of an essential term of the contract, e.g not being ready to pay full purchase price on completion of a contract for the sale of land, after time has been made of the essence, specific performance will not be available. Clarke Investments v Pacific Technologies [2013] EWCA Civ 750.

135
Q

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Claimant – person sekeing specif also in breach himself hekl lose right to specific performance . Complete comply law contractual oblgiaiton, constant superviosn looked at .

136
Q

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A

(c ) Contract requires Constant Supervision
See Co-Op v Argyll Stores (above)
Also see Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch.116

137
Q

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A

(d) Contractual Terms are Imprecise
A vague agreement is incapable of being granted specific performance. It must be clear what the defendant is being asked to do. See Co-Op v Argyll (above).

-If agreemtn is vague, and not sure acutal what seeking specif formance, not clear want to do cour witll refuse

138
Q

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A

(e) Illegal/immoral contracts
No specific performance permitted here, where such an order would involve the breach of any other civil law obligation or contrary to public policy or law, see Wroth v Tyler [1974] Ch.30 S.P refused where it involved a defendant husband to take legal proceedings against his own wife to terminate her statutory rights to occupy the matrimonial home.

139
Q

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Illegal immoral contac- nos pecific performance there e.g 100 prositie and she dotn turn up cant get roder specif p against her, coudlnt eens ure on contract bc illegal contract cos cant sue.

140
Q

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A

(f) Mutuality
Earlier cases suggested that a court could not grant specific performance in favour of the claimant unless it could also have granted specific performance in favour of the defendant Flight v Bolland (1828) 4 Russ 298.

141
Q

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A

However now lack of mutuality in this sense is no bar to specific performance being granted, as long as no injustice or unfairness to D results:
See Price v Strange [1978] Ch.337

142
Q

Defences to Specific Performance

A

(i) Lack of Formality. A land contract cannot be specifically performed if it does not comply with the necessary written formalities S.2 LP(MP)A 1989, Keay & Anor v Morris Homes [2012] EWCA Civ 900.

143
Q

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Defences to claim – land contract so rother contract require formalit. Obvs if not in lwritingm like aldn sales, insurance contracts, contracts of guanrantee, cant claim spec.p but more broadly cant sit on contract cos lack relevant formality u know ahev agreement 10 yr lease nothing inw riting vant sue on it. No contract s.2 89 act.

144
Q

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A

(ii) Misrepresentation. Any misrepresentation by P to D (of any nature, fraudulent, negligent or innocent) will prevent a court ordering specific performance against D. Walker v Boyle [1982] 1 WLR 495.

145
Q

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Mis rep – can stop sp. Being otderd. Again claiming eq remedies u have to be lieka n angel done nothing wrong not in breac youself. Anything liket ha tor fi ur guilft of fraud will stop u being able to claim sp.o

146
Q

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A

(iii) Mistake

Webster v Cecil (1861) 30 Beav. 62
D the vendor offered to sell land to P for £1,250. This was a mistake. The price should have been £2,250. P the purchaser must have known that this was a mistake, as earlier D had refused to sell for £2,000! P accepted the offer of £1,250 by return of post. D realised his mistake and immediately told P . P claimed specific performance of the contract, but court refused specific performance on grounds that it would ‘amount to a hardship and injustice’.

147
Q

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Webster r.a.w –s uein ot complete perfomacne. S.p corut refused on ground amount to ahrship clearly mutual mistake and purchaser was tryna take advtanage of it to get transfer of aldn for knwockdown price.

148
Q

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A

(iv) Hardship

Specific performance is discretionary and it may be refused if it were to cause great hardship to D or a third party.

149
Q

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A

Patel v Ali [1984] Ch.283
The Ali’s entered into a contract to sell their house to the Patels. Mr Ali was then adjudicated bankrupt and spent a year in prison. Mrs Ali had bone cancer and a leg amputation before the birth of her second child, then had a third. Goulding J refused an order for specific performance of the sale contract on the grounds of hardship.

-last change due to doctrine of hardship ??

150
Q

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A

(v) Misdescription.
If a property has been misdescribed in a contract of sale, the defendant will be entitled to rescind the contract and resist a claim for specific performance if the property he would be forced to buy was different in substance, e.g where a contract provided for the sale of a registered freehold title, the buyer would not be compelled to take merely a possessory title, Re Brine and Davies’s Contract [1935] Ch.388

151
Q

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A

(vi) Delay/Laches
Unjust/unconscionable delay will be a bar to specific performance being granted. It is a question for the court in each case in all the circumstances.

152
Q

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A

Huxham v Llewellyn (1873) 21 WR 570, a delay of five months prevented a decree of specific performance being awarded.

153
Q

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A

Williams v Greatrex [1957] 1 WLR 31, despite a delay of 10 years specific performance was still granted of a land contract where the purchaser had long been in possession of the land he bought.

154
Q

Damages in Lieu of Specific Performance

A

Court of Chancery long had power to grant damages in lieu of specific performance, S.2 Chancery Amendment Act 1858 (Lord Cairn’s Act). This provision is now encapsulated by S.50 Supreme Court Act 1981.

155
Q

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A

Measure of damages will be the same whether at common law or in lieu of specific performance, Wroth v Tyler (above); Hooper v Oates [2013] EWCA Civ 91.

156
Q

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A

So equit damage sin lieu beign abekt og et spedicif performance alternative in palc.

157
Q

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A

In AG v Blake [2001] 1 AC 268 Lord Nicholls suggested that the jurisdiction under S.50 SCA enables a court to include in any assessment of damages any losses likely to follow from the anticipated future continuance of the wrong in addition to losses already suffered.

158
Q

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