What is an Order for Specific Performance?

As a business owner in a contractual dispute, you may wish to consider the potential outcomes if you take the other person to court. One of the possible outcomes is an order of specific performance. This court order instructs the other party to undertake some specific act, such as selling a piece of land. A court may award an order for specific performance in addition to damages, which is a money award. This article will explain what specific performance is, some examples of specific performance, and when specific performance may be available for your business. 

What is Specific Performance?

Specific performance is a special kind of outcome to a dispute. Typically, a court will make this order when one party has breached their contractual obligations and must undertake a specific action to complete their promises. 

For contract disputes brought to court, most courts will award monetary damages or compensation to the winning party. In some instances, however, monetary damages are not an adequate remedy. A court will not lightly make an order for specific performance. This is because English law tends to operate on the principle of liberty. The court does not order a party to undertake a specific action lightly. Therefore, you must convince a court that such an order is the fairest outcome. 

Only a court can award an order for specific performance. Therefore, when considering how you wish to resolve a dispute if you ultimately want to force the party to do something specific, you have to go to court. An arbitration or mediation body does not have any legal power to force another person to take a specific action. 

Examples of Specific Performance

Specific performance is most commonly used when the contract is for a property that is unique. Often, this happens in the case of land. For example, you could have a situation where you buy a freehold title over a certain piece of land, and then the other party decides not to sell the land and to keep it instead. If you have a contract for the sale of the land, this would mean that the other party is in breach of contract. 

While the court could order the other party to compensate you for the wasted expense plus any fees you incur, you cannot just go and buy an identical piece of land elsewhere. Land is a unique type of property. Obtaining specific performance would mean that your counterparty must sell you the land, as agreed in the contract. 

Similarly, if you were involved in a dispute over the sale of a piece of art, you might find an order of specific performance suitable.

Additionally, a court may award specific performance where there is a contractual obligation to make repeated payments. For example, if you are in an agreement that the other party will give you £100 every week for the next 52 weeks and there is a good reason why you need those payments weekly instead of in a lump sum, a court may take this into consideration and give you the remedy.

Importantly, however, a court will very rarely give specific performance if it involves making the other party have to positively do something. In those cases, the court usually considers such an order too burdensome. For instance, say you hired a builder to repair your patio and he refuses. A court is unlikely to force the builder to renovate your property, as you could just easily hire another builder. If the new builder costs more, you could sue the original builder for the difference. 

Obtaining an Order for Specific Performance

As mentioned above, specific performance is a remedy awarded by a court. This means that you will need to file the claim in the appropriate court after you have made good faith efforts to resolve the dispute yourself. 

Litigation in court is usually very expensive. If you lose, you may have to pay the other party’s fees. 

You should also keep in mind that taking your case to court does not guarantee obtaining specific performance. The court has discretion when making orders and will typically look at what the innocent party has done. As such, your general behaviour and business relationship with the other party may be taken into account. If you have acted unreasonably, they are less likely to grant you an order for specific performance. 

Key Takeaways

As a business owner taking a case to court, you will want to consider the prospect of getting specific performance. Specific performance can be a great way of getting the other party to meet their contractual obligations if they are in a breach of contract. However, it is worth keeping in mind that a court award for an order of specific performance is not straightforward. 

If you need help with your business, our experienced contract lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today at 0808 196 8584 or visit our membership page.

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