(p) Willan v. Willan, 16 Ves. 72, 83; Fry, Sp. Perf. Sec. 387, 3rd ed.; see above, p. 685, and n. (z).

(q) 2 Bro. C. C. 326.

(r) Above, pp. 685, n. (a), 742; Brandling v. Plummer, 2 Drew. 427. 429!

(s) Above, pp. 32, 61, n. (w), 157, 159, 165 - 168, 170, 172, 743

(t) Above, p. 743, and nn.

(g, h).

(u) Above, p. 997.

(x) Consider Benny v. Hancock, L. R. 6 Ch. 1; above, p. 743, and nn. (g. h).

We have seen (y) that the Court may decline to grant the remedy of specific performance on the ground that it would work great hardship on the defendant. But the defence of hardship, like that of unfairness (z), cannot be set up to avoid carrying out what is commonly called a hard bargain; that is to say, where the sole ground of objection is really the inadequacy of the consideration (a). Like unfairness also, hardship is usually asserted in connexion with other circumstances, such as mistake. And it has been shown that, where a man has been induced to enter into a contract by his own mistake, and it would work great hardship on him to oblige him to carry it out, the Court will decline to enforce specific performance against him, notwithstanding that, being estopped at law from asserting his own mistake (b), he has no defence to an action for damages for breach of the contract {c). Still, in some cases, hardship alone appears to be a sufficient defence (d). Thus the Court has declined to grant specific performance of a contract to buy a close of land entirely surrounded by the lands of strangers to the agreement, which provided no certain means of access (e). And it has been observed that the Court will not enforce specific performance of a contract to buy a property which would be positively noxious to its purchaser - such as a house so used as to subject its possessor to legal penalties, or so infected with the germs of disease that it is dangerous to enter it (f). And specific performance has been refused on the ground that the result would inevitably be to subject the defendant to a forfeiture (g).

Hardship.

(y) Above, pp. 685, 692 - 694; and see Fry, Sp. Perf. Sec. 417 sq., 3rd ed.

(z) Above, p. 997.

(a) Above, p. 764; Haywood v. Cope, 25 Beav. 140, 150 - 153.

{b) Above, pp. 668 - 671, 673, G78, 691 sq.

(c) Above, pp. 636, 638, 692 - 694.

(d) See cases cited, above, p. 685, n. (y).

(e) Denne v. Light, 8 De G. M. & G. 774.

(f) Above, pp. 687, 688.

(g) Faine v. Brown, cited 2 Ves. sen. 307; Peacock v. Penson, 11 Beav. 355; see Helling v. Lumley, 3 De G. & J. 493, 498.

Mistake, as a ground for resisting the specific performance of a contract, has already been fully considered (h).

Mistake.

The Court will not enforce specifically a contract of which the performance would be in contravention of some superior equity affecting the subject of the agreement; as where the completion of a sale of land would involve a breach of trust, or a breach of a prior contract affecting the land in equity (i). This rule has been referred to the grounds of unfairness and hardship (k); but its true reason appears to be that the Court will not stultify itself by ordering the specific performance of an act which would be in exact contravention of the rules of equity - the very rules which the Court sits in its place to uphold (/). It is thought that the principle of the rule is apparent when it is considered that this defence may be raised by either party; even by a contractor who, in entering into the agreement, had contemplated a breach of his own duty, against a plaintiff who had contracted without notice of the breach of duty involved (m). Here the defendant could hardly plead unfairness or hardship, when it was his own disregard of his duty that placed him in a difficult position (n).

Contract involving a breach of some superior equity.

The defence of want of mutuality is the objection that the defendant, owing to the plaintiff's legal incapacity or otherwise, would have no right to enforce the agreement specifically as against the plaintiff, so that the remedy is not mutual. Where this is the case the Court will decline to grant specific performance at the plaintiff's suit (o). We have seen that on this ground an infant is precluded from so enforcing any contract made with him (p); and a married woman subject to the common law could not pursue this remedy in case of her agreement to sell or buy land (q). It is said that, as a rule, the Court, in considering this objection, has regard to the time of making the contract (r); and it is true that if the remedy were then mutual, a party who has subsequently lost his right to specific performance by his own conduct, as by his laches, cannot plead want of mutuality against the other party, who is not in default (s). But it is established that where the remedy was not mutual at the making of the contract, but the party not originally bound has subsequently, being then sui juris, confirmed the contract, he may enforce the contract specifically, and cannot be met with the defence of want of mutuality. Thus we have seen (t) that, on this principle, a party who has not signed the memorandum of a contract to sell land may enforce specific performance against one who has signed the memorandum; and an infant, after he has attained full age, might formerly so enforce a contract made during infancy; for in these cases the plaintiff necessarily submits to perform his part of the agreement, and so affirms his liability thereunder. So where a principal has ratified a contract made on his behalf, but without his authority, by his agent (u), he can enforce the contract specifically, notwithstanding the original want of mutuality (x). And the same rule applies in every case in which a contract was at first voidable at the option of one of the parties, but he has elected to affirm it (y). Conversely, where one party to a contract is originally in no position to enforce it, owing to his inability to perforin some essential stipulation (z), and the other waives this objection and continues to treat the contract as still subsisting, the latter cannot plead the original want of mutuality if the former, having become enabled to perform the stipulation, sue for specific performance of the agreement. Thus where a vendor of land cannot show a good title according to the contract, and the purchaser does not insist on this objection as putting an end to the agreement, but negotiates with the object of removing it, and the vendor subsequently acquires a good title, the vendor may sue for specific performance of the contract, and the purchaser cannot rely on the original want of mutuality (a). From these instances it appears that what is fatal to a claim for specific performance is want of mutuality at the time of bringing the action (b); though a defendant who has lost this remedy by his own misconduct is precluded from taking such an objection. Similarly, want of mutuality cannot be pleaded in bar of a purchaser's right to enforce specific performance with compensation (c); for, as we have seen (d), in such case the vendor is estopped from asserting his own want of a complete title. Where a contract for sale of land is subject to some condition precedent (e) to be performed by one of the parties, it is, of course, no objection to enforcing it specifically after the condition has been performed, that there was previously no mutuality of remedy (f); for until performance of the condition there was no enforceable agreement (g).