SECTION 4.

SPECIFIC PERFORMANCE.

Specific performance of the contract will be enforced at the instance of either vendor or purchaser if there be a valid contract, and such as, having regard to the circumstances, ought to be enforced.

Mistake and Unfairness.-Any circumstance of unfairness on the part of the plaintiff or those under whom he claims, or even any circumstance of hardship in the defendant's situation, will incline the court not to grant this special equitable relief, but to leave the party to his legal remedy in damages (b).

Thus, not only is fraud or material misrepresentation on the part of the plaintiff a good defence to an action of this character, but the defendant will not be compelled to perform a contract which he entered into under a reasonable misapprehension as to its effect. In such a case it is generally necessary for the defendant to show that the mistake was contributed to by the plaintiff, however unintentionally, as, for instance, that there was in the description of the property a matter on which a person might bonâ fide make a mistake (c). Moreover, he must show that he exercised a reasonable amount of care to ascertain what he was buying (d).

(b) Gould v. Kemp (1834), 2 My. & K. 308.

(c) Swaisland v. Dearsley (1861), 29 Beav. 430; Baskcomb v. Beckwith (1869), L. R. 8 Eq. 100.

(d) Tamplin v. James (1880), 15 Ch. D. 215.

A court of equity will grant the equitable remedy of specific performance unless there has been some conduct on the part of the plaintiff disentitling him to relief in equity, or in some rare instances where there would be a great hardship imposed on an innocent vendor or purchaser by reason of some mistake which he has made although the other party has not contributed to it (e).

A written contract cannot be impeached simply because one of the parties to it put an erroneous construction on the words in which the contract is expressed (f), unless the mistake is induced by the conduct of the other party (g). This principle, however, only applies to mistakes as to construction of a written agreement, and does not extend to a mistake as to the subject-matter dealt with by the contract (h). If there is a misapprehension as to the substance of the thing there is no contract; but if it be only a mistake as to some quality or incident, even though the misapprehension may have been the actuating motive of the purchaser, yet the contract remains binding (i). If the plaintiff is mistaken in the construction of an agreement, he may waive his construction and obtain specific performance according to the construction admitted by the defendant (k).

(e) Rudd v. Lascelles, [1900] 1 Ch. 817.

(f) Stewart v. Kennedy (1890), 15 App. Cas. 108.

(g) Wilding v. Sanderson, [1897] 2 Ch. 534.

(h) Ibid., at p. 550; Van Praagh v. Everidge, [1903] 1 Ch., at p. 436.

(i) Kennedy v. Panama, etc. Mail Co. (1867), L. R. 2 Q. B. 588.

(k) Preston v. Luck (1884), 27 Ch. D. 497.

In any case, however, the court will refuse specific performance if the plaintiff "snapped at an offer which he must have perfectly well known to be made by mistake" (l).

Hardship. It must not be supposed that in every case of hardship the court will refuse to grant specific performance, and in one case Lord ROMILLY pointed out that "you cannot exercise a discretion by merely considering what as between the parties would be fair to be done; what one person may consider fair, another person may consider very unfair" (m). The cases in which the court has refused specific performance on the ground of hardship may, it is submitted, be classed under four heads, viz.: (1) Where to decree specific performance would compel the defendant to commit a breach of duty, e.g., a breach of trust, or a breach of contract (n).

(2) Where the execution of the contract would render the defendant liable to forfeiture (o). (3) Where the contract if enforced would render the purchaser liable to criminal proceedings, or subject him to obloquy (p).

(4) Where the purchaser would be buying a law suit (g).

(1) Webster v. Cecil (1861), 30 Beav. 62; Tamplin v. James (1880), 15 Ch. D. 221.

(m) Haywood v. Cope (1858), 25 Beav. 151.
(n) Willmott v. Barber (1880), 15 Ch. D. 96.
(0) Fry on Specific Performance, p. 200.
(p) Hope v. Walter, [1900] 1 Ch. 257.

(q) Fry, p. 408; and see supra, p. 374.

Parol Variation.-If the defendant signed the contract of sale upon the faith of a parol undertaking by the plaintiff which varied the terms of the written agreement, this undertaking may be set up as a defence to an action for specific performance (r). It seems to be of no consequence whether the parol agreement precede or be contemporaneous with the contract (s).

It must be remembered that there is a wellestablished distinction between a person seeking and a person resisting specific performance. The defendant, as we have seen, may adduce parol evidence to show fraud or mistake, but the plaintiff cannot do so for the purpose of obtaining specific performance with a variation (t).

This rule, however, only applies to cases of unilateral mistake, the remedy for which is rescission, and not rectification (u), and does not apply to a mistake common to both parties, when the proper remedy is to rectify by substituting the terms really agreed to. Thus, if the court is satisfied that there has been a mutual mistake in the reduction of the contract into writing, and there has been such a part performance as to take the contract out of the Statute of Frauds, the court will rectify the mistake and enforce specific performance of the contract as rectified (x).

(r) Hammersley v. De Biel (1845), 12 Cl. & F. 45. (8) Lindley v. Lacey (1864), 34 L. J. C. P., at p. 9. (t) Woollam v. Hearn (1802), Wh. & Tu., Vol. II., and notes thereto; May v. Platt, [1900] 1 Ch. 622.

(u) Paget v. Marshall (1884), 28 Ch. D. 255.

(x) Olley v. Fisher (1886), 34 Ch. D. 367; Shrewsbury and Talbot Cab, etc. Co. v. Shaw (1890), 89 L. T. Jo. 274. Of

Subsequent Variation. The subsequent conduct of the parties to a contract is never admissible in explanation of its terms except in the case of ancient documents under the doctrine of contemporanea expositio; but subsequent conduct may be evidence of a fresh agreement varying the terms of the old. Where, however, the contract is required by law to be in writing, as in the case of a contract for the sale of land, there is authority for the proposition that parol evidence of a subsequent agreement varying the terms is inadmissible "even when adduced on behalf of the defendant” (y); and it is conceived that in no case can the defendant set up a substituted verbal agreement and at the same time plead the Statute of Frauds (z). On the other hand, parol evidence is always admissible for the purpose of showing that there was no agreement at all (a), or that the agreement has been rescinded (b).

SECTION 5.

PARTIAL SPECIFIC PERFORMANCE.

The general rule of specific performance is, that the purchaser shall have what the vendor can give,

course, there must be a concluded contract in order to obtain rectification.

(y) Vezey v. Rashleigh, [1904] 1 Ch. 636.

(*) This was done in Stead v. Dawber (1839), 10 A. & E. 57, pp. 64, 65, but this case would not now, it is conceived, be followed.

(a) Pattle v. Hornibrook, [1897] 1 Ch. 25.

(b) Vezey v. Rashleigh, [1904] 1 Ch. 634.