The primary remedy, an award of damages, which originated in the common law courts, is said to be

available as of right. In contrast, specific performance, which originated in the courts of equity, is said to
be available at the court’s discretion. The availability of equitable relief is bound by a distinct series of
considerations sometimes referred to as a maxim. One such maxim is that ‘he who comes to equity
must come with clean hands’; that is to say, he who seeks equitable relief must himself not be guilty of
some form of misconduct or sharp practice. You will see the particular restrictions placed upon the
granting of equitable relief as you proceed through the module guide (see, for example, rescission for
misrepresentation).

A statement of intention In this instance, one party states that he intends to do something. This differs
from an offer in that he is not stating that he will do something. The case of Harris v Nickerson [1873] 37
JP 536 illustrates this point. The auctioneer’s advertisement was a statement that he intended to sell
certain items; it was not an offer that he would sell the items

It is important to remember (see Section 1.4.3) that it is not the subjective intentions of the parties that
determine the legal effect of their words or actions but the reasonable inference that they would
support. This is the so called ‘objective’ theory of agreement associated with Smith v Hughes (1871)

Damagres

3 Consequential losses include those that covered under special damages, that is, such losses are
reasonably be supposed to have been in the contemplation of both parties, at the time they made the
contract, as the probable result of the breach of it.54 54. Hadley v. Baxendale (1854) 9 EX 341

Nutbrown v Thornton (1804) 10 Ves 159

Specific performance was ordered of a contract to supply machinery which

could not be readily obtained elsewhere.

Wolverhampton Corp v Emmons [1901] 1 KB 515

The plaintiff acquired land for an improvement scheme and sold part of it to

the defendant, who covenanted to demolish houses on it and build new ones.
The

demolition was carried out and plans for new houses approved. The defendant
then

refused to continue. It was held that specific performance would be ordered

since the defendant’s obligations were precisely defined by the plans, and

damages would be inadequate because the defendant had possession of the

site,

and the plaintiff could not get the work done by employing another
contractor.

Posner v Scott-Lewis [1987] 3 All ER 513

The court granted an application for specific performance of a lessor’s

covenant to employ a resident porter for certain duties. The court

distinguished Ryan v Mutual Tontine, where supervision of the execution of
the

undertaking had been required. Here neither personal services, nor a

continuous

series of acts, were required, but merely the execution of an agreement

containing provisions for such services.