(z) Wolverhampton Corpn. v Emmons, 1901, 1 K. B. 515.

(a) Wms. Pers. Prop. 186, 15th ed.

(b) Howard v. Hopkyns, 2 Atk. 371; French v. Macule, 2 Dr. & War. 269, 274 sq.; Coles v. Sims, 5 De G. M. & G. 1, 11; Bird v. Lake, 1 H. & M. 111.

Apart from the question of the existence of the jurisdiction to grant specific performance (d), the defences, not available at law, to a claim for specific performance appear to be these:- (1) The uncertainty of the contract; (2) unfairness, including innocent misrepresentation not amounting to a cause for rescinding the contract; (3) hardship; (4) mistake; (5) that to carry out the contract would involve a breach of some superior equity; (6) want of mutuality; (7) the plaintiff's not continuing ready and willing to perform his part of the agreement; (8) his laches; and (9) the doubtfulness of the title. Of each of these in turn.

Defences not available at law.

As to the uncertainty of the contract, if at law the agreement be void for uncertainty, there can be no question of enforcing its specific performance; in that case no contract has been concluded (e). But it may be a defence to a claim for specific performance of a contract that the acts agreed to be done are not defined with sufficient certainty to enable the Court to decree their performance in specie; notwithstanding that those acts may be sufficiently ascertainable to enable the Court to award damages for their non-performance (f). Thus specific performance has been refused of a contract "to layout 1,000l. in building" on particular lands, because of its uncertainty, although in other respects the conditions which induce the Court to enforce a building contract (g) were satisfied (h).

Uncertainty of the contract.

(c) See French v. Macule, 2 Dr. & War. 269, 275; Fry, Sp. Perf. Sec. 140 - 164, 3rd ed.

{d) Above, p. 991.

(c) Above, p. 989.

(f) Mosely v. Virgin, 3 Ves. 184; Hodges v.Sorsfall, 1 Buss. & My. 116; Stuart v. London and North Western Ry. Co., 1 De G-.

M. & G. 721; Paris Chocolate Co. v. Crystal Palace Co., 3 Sm. & G-. 119; Taylor v. Portington, 7 De G. M. & G. 328; Greenhill v. Isle of Wight, etc. Ry. Co., 19 W. R. 345; Fry, Sp. Perf. Sec. 380 sq., 3rd ed.

(g) Above, p. 994.

(h) Mosely v. Virgin, ubi sup.

With regard to unfairness, it has been laid down, generally, that an agreement must be fair, or the Court will not order its specific performance (i). This proposition, however, is not now construed in the sense that the Court will not specifically enforce any contract, unless the advantages to be secured by the parties be reasonably equivalent, or their conduct be distinguished by a higher degree of good faith than the law ordinarily exacts from contractors. Indeed, it hardly amounts to more than an assertion that the Court, in exercising its discretion to grant this remedy, may have regard to considerations of unfairness either in the terms of the agreement or in the parties' conduct in making the bargain. Thus we have seen (k) that at the present day the better opinion is that the Court will not refuse specific performance of a contract to sell land on the sole ground of inadequacy of consideration; although unfairness in the terms of a bargain coupled with circumstances of inequality in the parties' position may be evidence of undue influence or fraud (l). So also it has been mentioned (m) that, according to the latest authority, a vendor of land may enforce the sale specifically, notwithstanding that he kept silence as to a latent defect of quality known to himself (n). In these respects it does not appear that a higher standard of conduct is required in equity than at law(n). Still, there may be such unfairness about a contract that the Court will decline to order its specific performance, although the facts would not warrant an order for its rescission. An example of this occurs in the case of innocent misrepresentation (o); and the same rule is applicable in the case of any unfairness in the nature of fraud or undue influence, but not amounting exactly to a cause for setting the agreement aside (p). A notable example occurs in the case of Twining v. Mortice (q), where specific performance of a contract to sell land was refused to the purchaser, because he had (in perfect good faith) employed the solicitor known to be acting for the vendor to bid for him at the auction, a circumstance which the Court considered likely to damp the sale. In that case the Court acquitted the parties of all moral blame. As regards the sale of land, the most prominent instances of unfairness occur in connection with the statement in the contract of the nature of the vendor's title or of the interest offered for sale or of conditions restrictive of the purchaser's right to investigate the title. In these respects the contract is in equity uberrima fidei (r); and if anything be unfairly stated or suppressed so as to mislead the purchaser, he may resist specific performance of the contract, although the facts may not support a claim to rescind the contract and recover the deposit (s).

Unfairness.

(i) Hardwicke, C, Buxton v. Lister, 3 Atk. 383, 386; Rosslyn, C, Walpole v. Orford, 3 Ves. 402, 420; Fry, Sp. Perf. Sec. 334, 3rd ed.

(k) Above, p. 764.

(l) Above, pp. 762 - 765.

(m) Above, p. 684.

(n) Above, pp. 684, 764.

(o) Above, p. 743.

Twining v. Morrice.

The defence of innocent misrepresentation not amounting to a cause of rescission of the contract has been already considered (t). It appears to be an example of the application of the general principle that the Court may have regard to the fairness of the parties' conduct (u). On this ground the Court is enabled to reject a claim for specific performance by a party whose statement or conduct has been misleading, though it has not amounted to a false representation inducing the contract (x).

Innocent misrepresentation not amounting-to a cause of rescission.