Literal Enforcement (Obligations to Pay Money / Debt):
The defendant is ordered to perform their obligations under the contract that they breached. For example, in an action for debt, the court orders the defendant to pay the claimant the money they are owed under the contract. Ultimately, this means that the contract is performed.
Exceptions:
The claimant cannot claim for the money to be repaid if the defendant’s payment relies on an obligation that the claimant has not yet fulfilled. The obligation does not have to be fully complete; substantial performance of the obligations is enough. [1] The defendant is then entitled to sue for breach for the value of remaining work that has not been completed.
Issues:
If the claimant cannot complete work without the defendant's cooperation and the defendant does not cooperate, the claimant cannot finish the work and claim their money. In this case, the claimant can only claim for damages because of the defendant’s breach of cooperation.
If the defendant tells the claimant that they don’t want to commence with the work, the claimant does not have to terminate the contract. As long as the claimant completes their obligations and they had a legitimate interest in continuing performance, they can claim the money owed. This also applied to the sale of goods where a buyer refuses to pay. [2]
In White…, parties entered into a 3-year advertisement contract. D sook to end the contract early before C had conducted work. C performed their obligations and claimed for what they were owed under the contract. The contract held that the contract was binding and C could claim.
Damages (Obligations to do Other Things):
Damages are the primary remedy for all breaches, except breaches of obligations to pay money.
The defendant is ordered to compensate the claimant for not performing the contract. The claimant is compensated so that they are in the position that they would have been in had the contract been performed. The value of damages is as good as if the contract had been performed. [3]
The claimant does not get performance but a sum of money which ensures they are in the same position as if the contract had been fulfilled.
Advantages of Damages:
Ends disputes simply in court.
Easier to enforce than making the parties perform other ways.
Less ambiguity of how the breach has been remedied.
Specific Performance (in Addition to or Separate from Damages):
The claimant might obtain a court order for specific performance. EG: an obligation to not do something (an injunction), non-competition etc.
Specific performance is only exceptionally given in addition to damages. Many obligations cannot be performed once they are breached. This is, therefore, at the courts discretion to award.
Requirement:
Damages must be inadequate compensation.
The specific performance is not one of personal service.
Must not cause the defendant undue hardship.
In Co-op Insurance v Argyll, C leases A premises on a 35-year lease of a shop. A is large store that will draw in more customers to the shopping centre. After a few years, A close supermarket as they are not making enough money. C sues for specific performance as A brought in most customers. The House of Lords states that it is unfair and unreasonable to subject A to lose money by keeping the store open.
Resources:
References:
[1] Hoenig v Isaacs [1952] 2 All ER 176 [2] Sale of Goods Act 1979 s49 [3] Robinson v Harman (1848) 1 Ex 850
Cases Mentioned:
White & Carter (Councils) Ltd v McGregor [1962] UKHL 5
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1997] UKHL 17
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