As has been already mentioned (d), either party to a sale of land may elect to sue for an order that the contract he specifically performed; and this is the most effective way of enforcing the agreement. In a work like the present it would be out of place to attempt any general account of the law of specific performance; for this the reader is referred to Sir Edward Fry's well-known treatise. We are here concerned only with the subject of specific performance as relating to contracts for the sale of land; and the writer can hardly do more than point out the differences, which exist between the right to recover damages at law for breach of the contract and the right to obtain an order for its specific performance.

Differences between the right to damages and that to specific performance.

In the first place, the jurisdiction of the Court to decree the specific performance of a contract is entirely of equitable origin (e); and the nature of the remedy is fundamentally different from that of the right of action at law (f). The legal remedy is to recover compensation from the party who does not carry out the agreement; so that a breach of the contract is a condition precedent to the right to sue (g). In the equitable proceeding it is pronounced that the contract ought to be and shall be carried out as intended (h). A breach of the contract is therefore not necessarily a condition precedent to obtaining this relief, though it is usually requisite to induce the Court to interfere (i). Then the remedy in question is not attendant upon every kind of contract (k); but it has always been considered as unquestionably appropriate to contracts for the sale or leasing (l) of land (m); for the damages recoverable at law for breach of such contracts (n) are not in general an adequate compensation to the party injured (o). Nest, it lies in the judicial discretion of the Court to grant or to withhold the relief in question; though in unobjectionable cases it will be accorded as a matter of course (p). And the Court, in exercising this discretion, may have regard to considerations, which do not affect the right to enforce the contract at law, and especially to the parties' conduct (q). It follows that the remedy in question is not necessarily to be obtained on mere proof of the facts that an unimpeachable contract was concluded and was broken; facts which would establish the right to recover damages (r); for there are several defences to an action for specific performance which are not available in an action on the contract at law.

The remedy-is purely equitable.

(d) Above, pp. 31, 946, 947, 969.

(e) See Wms. Real Prop. 161, 162, and n. (e), 19th ed.

(f) Fry, Sp. Perf. Sec. 3, 3rd ed. (g) Above, pp. 933 - 935, 946.

(h) Seton on Judgments, 2206, 6th ed.

(i) Above, p. 946.

(k) Fry, Sp. Perf. Sec. 61 - 89, 3rd ed.

21 (2)

Lies in the judicial discretion of the Court.

Court may have regard to considerations not attended to at law.

Conversely, there are some cases in which the remedy by specific performance is available to a contractor who has no right to recover damages for breach of the contract (s). Thus we have seen that a parol contract partly performed may be ordered to be carried out specifically, although it would be unenforceable at law (t). So, if the vendor had made an insubstantial error in the description of the property sold, the resulting deficiency of area or estate would preclude him from enforcing the contract at law; but he might, nevertheless, obtain an order for its specific performance with compensation (u). And before the Judicature Acts, when the rule as to time not being essential applied in equity only, a contractor, who was out of time with his own performance of the contract, and therefore precluded at law from enforcing the other party's obligation, might still succeed as plaintiff in equity in enforcing the specific performance of the contract (r). These cases, however, are exceptional. As a general rule, a plaintiff suing for the specific performance of an agreement to sell land must prove that there is an unimpeachable contract (w) existing between himself and the defendant, and that the defendant has failed or refuses to carry it out (x). It follows that any defence which could be set up in bar of an action upon the contract at law (y), will in general defeat an application for its specific performance. Thus proof that no contract was ever concluded as alleged is, of course, a good defence to an action for specific performance (z). As to denying that the contract is enforceable, a plea of the Statute of Frauds will be perfectly effectual in the case of an oral contract (a), except on a sale by the Court, or unless replied to by proof of fraud or part performance (b). Lapse of time as a bar to enforcing the specific performance of contracts is, however, governed by the rules of equity respecting laches, and not by the Statutes of Limitation (c). The same objections may be taken to the validity of the contract in an action for its specific performance as are available to repel a claim for damages for its breach (d). Thus the Court will not specifically enforce a contract void ah initio for mistake (e) or illegality (f), or rendered unlawful by some event which has occurred since its formation (g). And where a contract has been formed which is voidable for misrepresentation, whether fraudulent or innocent (h), or for duress or undue influence (i), and the injured party elects to avoid it, that will prevent the other from enforcing its specific performance (k). And any legal incapacity (l), or relative equitable disability (m), which goes to make a contract void or voidable, may be set up against a claim for its specific performance. Discharge from the obligation of the contract is in general an equally good defence (n); but we have seen that in the case of a discharge by bankruptcy from the legal obligation of the contract, the equitable liability to perform it specifically may remain unimpaired (o). So also it is in general a good defence that the plaintiff has not performed some condition precedent to the defendant's liability under the agreement (p); hut, as we have seen, to bar the plaintiff's claim to enforce the contract specifically, it is not enough to prove his non-performance of some stipulation which is essential at law - it must be shown that the stipulation broken is such as a Court of Equity considers to be essential (q). As regards the defence of a denial of the facts alleged to constitute a breach of the contract (r), it has been explained that proof that no breach of contract has occurred does not appear to displace the Court's jurisdiction to decree specific performance, but is in general a good ground for asking the Court not to exercise it, or at least to make the plaintiff pay the costs (s).