This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The theory underlying the remedy given by the Common Law in recent times for breach of contract is compensation in the form of money damages. This was not the original theory of the king's courts even before the days of the action of covenant.1 So, after the action of covenant appeared it was often used as a means of giving what was in effect specific performance.2 Thus at a time when the owner of a term of years was not looked upon as having an estate in the land, but only a right under contract, he could recover the land itself in an action at law on the covenant.3 So a feoffor in case of breach of his covenant of warranty is adjudged to give to the feoffee lands of equal value, and not the value thereof in money.4 The most conspicuous example of this original theory of the Common Law is the fine as a conveyance of realty. This became so thoroughly stereotyped as a fictitious conveyance that we are in danger of overlooking its original significance. An action was brought on an executory covenant to convey specific realty. While in form this action was always compromised by leave of the court, the underlying theory was that the court had power to compel the defendant to perform his executory covenant and convey the realty agreed upon.5 Thus Glanville tells us6 that if the concord is established "then the party who has broken the concord shall be amerced to the king and shall be safely attached, until he find good security that he will from thenceforth keep the concord by adhering to its terms, if possible, or will otherwise make his adversary a reasonable recompense." This was, of course, before a separate action of covenant existed. Pollock and Maitland cite illustrations from local courts to show what is substantially specific performance of contracts for which equity at a later date would refuse specific performance, such as a contract for personal services or for making a rudder.7 In the early stages of the Common Law relief was therefore as specific as it could be had. By the time that the Common Law assumed its classic form, however, it had become a fundamental maxim that in actions ex contractu the relief given must be compensatory and not specific. It is therefore not remarkable that bills for a specific performance of contracts " are amongst the earliest that are recorded in the Court of Chancery."8 With the rise of equity "the want of a more specific remedy than can be obtained in the courts of law,"9 gave to the chancellors an opportunity to extend their jurisdiction that they were not slow to take advantage of; and it became an established maxim of equity that relief should, if possible, be specific rather than compensatory, which as applied to contracts meant that in cases coming properly within the jurisdiction of equity, specific performance would be decreed if the circumstances required it. Specific performance is not restricted to the cases for which precedents exist; but is given wherever the broad principles which control the subject make such relief proper.10
1 "For it is a consequence which naturally results from . . . undertaking to do any particular act that the party should be compelled to abide by it or perform it."Glanville, Bk. VIII., C. V., referring to the concord of a fine.
2 Pollock and Maitland's History of English Law, II. 521, 522 (original paging).
3 Pollock and Maitland's History of English Law, II. 106 (original paging) citing a case from A. D. 1226.
4 Pollock and Maitland's History of English Law, II. 522 (original paging).
5 Pollock and Maitland's History of English Law. II., 593 (original paging). Black. Com. II., 348.
6 Bk. VIII., C. V. (Beames's Translation).
7 Pollock and Maitland's History of English Law, II. 593 (original paging).
8 Spence on Equitable Jurisdiction. I., 645; citing Cal. II. 2. temp. Rich. II.; Lord Scales v. Felbrigge, Cal. II.. 26.
9 Black. Com. III., 438.