Specific Performance

x Mandatory court order to a party to fulfill its

contractual obligations according to the precise terms of
the contract it entered into. Courts order specific
performance where monetary damages are inadequate,
inappropriate, or cannot be established.
x It is a discretionary remedy, and may not be available
in certain cases such as disputes regarding contracts of
employment.
For example: If a defendant has breached a contract in
which he agreed to deliver a Picasso painting to the
plaintiff, the Court might in that case order specific
performance; that the defendant deliver forthwith to the
plaintiff said painting.

Lumley v. Wagner
is anEnglish contract lawcase, concerning the right to terminate performance
of a contract.
Facts:A singer Johanna Wagner, Df, entered into a simple contract to perform
at Her Majestys Theatre, for a period of three months, covering a certain
number of nights and nowhere else during that period.
Issue:Whether a court of equity ought to grant an injunction ordering specific
performance of the defendant to sing at Her Majestys Theater and nowhere
else?
Holding:Yes
Procedure:Lord Chancellor Leonards determined jurisdiction and issued an
injunction compelling Df to abstain from singing elsewhere.
Rule:An injunction compelling specific performance shall issue to a true and
literal performance of their agreements.
Ct. Rationale:The court cannot compel the Df to sing, but the court can issue
an injunction barring her to abstain from the commission of an act which she
has bound herself not to do. The K states she is to refrain from singing
elsewhere during the period in question. If she attempts to do so she will have
broken the spirit and meaning of the contract.
PL A:The Df has bound herself to fulfill an engagement at Her Majestys
Theater by a contract, and to not perform elsewhere.

Facts:

P contracted with D to have her sing in his theatre for 3 months.

D subsequently agreed to sing in another theatre.

P sued D in a court of equity seeking an injunction to keep D from singing in other theatres.
Procedural History:

Lower court found for P, injunction granted.

Chancery court affirmed, found for P, injunction granted.

Issues:

Can an injunction be granted to enforce a negative covenant of a contract?

Holding/Rule:

An injunction can be granted to enforce a negative covenant of a contract.

Reasoning:

This contract contains a positive covenant (the requirement that the singer sing for the theatre) and
a negative covenant (the implied requirement that she wouldn't sing in a different theatre).

Courts should not enforce necessarily enforce positive covenants like these since we don't want to
force employees to work for employers they don't want to work for.

However, courts can enforce negative covenants if the commodity in question in the contract is
sufficiently rare or has a specific talent.

These types of injunctions should be granted in situations where the remedy at law in inadequate;
forcing her to pay for breach would not adequately compensate the P for losing this major talent and
having her defect to a different theatre (and it would probably be pretty hard to estimate the
damages).
Dissent:

None.
Notes:

Specific performance?

The court will not force her to work with the opera company because of the public policy that the
courts will not force persons to perform a personal service for someone else.
The remedy, then, is a negative injunction to try to push her back to her original employer.