malvernmugadzikwaThe previous article started a conversation on breach of contract.
This week, we are going to look at one of the remedies for breach of contract — specific performance.
Specific performance is a legal remedy in which a court orders a party to fulfil its contractual obligations as outlined in the agreement.
Essentially, the court is forcing the defaulting party to perform the contract as agreed upon rather than simply awarding monetary damages.
We are also going to look at instances where specific performance may not be ordered.
It is a fundamental premise of every contract that both parties will duly carry out their respective obligations. (See Green v Lutz 1966 RLR 633; ESE Financial Services (Pty) Ltd v Cramer 1975 (2) SA 805 (C) on pages 808-809).
As is explained by Richard Hunter Christie, “Business Law in Zimbabwe” on pages 106-119, “There is a presumption that in every bilateral or synallagmatic contract, for example, one in which each party undertakes obligations towards the other, the common intention is that neither should be entitled to enforce the contract unless he has performed or is ready to perform his own obligations . . .
Conversely, a party who has caused the other to commit a breach cannot find a claim on the breach . . .”
In Chiarelli v Bouna Inv (Pvt) Ltd (2015), ZWHHC 678, the court noted: “Specific performance is an extraordinary equitable remedy that compels a party to execute a contract in terms of the precise terms agreed upon. It is an order which grants the applicant what he bargained for in the contract.
A valid contract must exist between the parties and the party seeking specific performance must have substantially fulfilled his obligations in terms of the contract. A party may also be granted the relief if he has offered to do or is ready and willing to do all acts that were required of him to execute the contract according to its terms.”
A plaintiff has the right to choose whether to hold a defendant to his contract and claim performance by him of what he bound himself to do, or to claim damages for the breach (See Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) on page 378).
The defendant has no such right of election.
He cannot claim to be allowed to pay damages instead of having an order for specific performance entered against him.
In the exercise of its discretion, the court may grant or refuse specific performance.
Specific performance will be refused if it will lead to an injustice, or if it will be unduly harsh and burdensome on the defendant.(Jetinos Zivanomoyo v Hellen Bawange Dingani HMA 02-19 (per Mafusire and Mawadze JJ)).
In the case of purchase of property, an individual who buys a property and performs his side of the bargain, or is ready to perform, is entitled to take title.
The seller is obliged to deliver.
If he fails or neglects or refuses to do so, the purchaser is entitled to sue for specific performance. This is quite elementary.
As long ago as 1912, INNES JA said in Farmers’ Cooperative Society (Reg) v Berry 1912 AD 343, on page 350: “Prima facie every party to a binding agreement who is ready to carry out his own obligation under it has a right to demand from the other party, so far as it is possible, a performance of his undertaking in terms of the contract.”
The court exercises its discretion to grant or refuse specific performance judiciously, not whimsically.
The discretion is not confined to specific types of cases.
It is not circumscribed by rigid rules.
Each case depends on its own set of facts (See Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H)).
The remedy of specific performance is only available to a party who has complied with his part of the contract.
A party who intends to rely on the remedy of specific performance must show that he has performed his part of the contract or that he is willing to perform or discharge his own obligations in terms of the contract.
He may not seek to rely on the remedy of specific performance where he has failed to perform his part of the bargain.
A party who fails to fulfil the obligations of a contract commits a breach.
The injured party becomes entitled to resile from the contract and may seek damages arising out of the breach. (Pramadvara Appalraju and Anor v Miriam Patsanza HH 145-18 (per Dube J — as she then was)).
Exceptions to specific performance
Exceptions include:
- a) Where it is impossible to perform (Zimbabwe Express Services (Pvt) Ltd v Nuanetsi Ranch (Pvt) Ltd 2009 (1) ZLR 326 (S))
- b) Where the order causes undue hardship (Haynes v King Williams Town Municipality 1951 (2) SA 371 (A))
- c) In a contract for personal services
LEGAL DISCLAIMER: The material contained in this article is set out in good faith for general guidance in the spirit of raising legal awareness on topical interests that affect most people on a daily basis. They are not meant to create an attorney-client relationship or constitute solicitation. No liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in the article. Laws and regulations are complex and liable to change, and readers should check the current position with the relevant authorities before making personal arrangements.
Arthur Marara is a corporate law attorney practising law in Harare. He is also a notary public and conveyancer. He is passionate about labour law, commercial law, family law and promoting legal awareness and access to justice. He writes in his personal capacity. You can follow him on social media (Facebook Attorney Arthur Marara), or WhatsApp him on +263780055152 or email [email protected]
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