The present crisis has left much commercial and personal life in limbo: property sales are suspended, consignments of goods are trapped in transit, and individuals cannot work. Everyone is affected in one way or another.
When we start to emerge from the crisis most people will want to complete these suspended transactions and most of them will cooperate to make them happen, but what can you do if you are faced with a situation where your opposite number either stonewalls, or tries to avoid their responsibilities?
One of the remedies that the law offers is to apply to the Court for an order for 'Specific Performance', to force compliance with a contract, in a similar way that you might apply for an injunction to stop an action that may cause you loss or harm that cannot be compensated for.
The crucial factors that must exist before you can apply for an order for Specific Performance are:
- There must be a valid and enforceable contract with clear terms
- There must have been payment or some other kind of valuable quid pro quo
- The subject matter of the contract must be unique; land is always considered to be unique
- The contract can be performed without constant supervision
- Financial compensation would not be an adequate remedy
Faced with a threat to apply for an Order for Specific Performance what are some of the defences?
- Force Majeure
Government action or other circumstances beyond the control of the parties to the contract that make performance impossible.
Most importantly Force Majeure does not apply to contracts for the sale of land.
- Undue hardship
There must be 'great or undue hardship' in 'extraordinary and persuasive circumstances'. Financial hardship does not count, but very serious health reasons can. Movement restrictions which would render home-movers liable to criminal penalties if they attempted to move home might well also count while the present emergency regulations are in force.
If the claimant has not acted as swiftly as possible to apply for the Order for Specific Performance.
- Misrepresentation and Bad Faith
Where the claimant has failed to disclose material facts before the contract was made, or that afterthe contract was made the claimant has been engaged in some trickery.
- Damages would be sufficient compensation
- Payment would be sufficient compensation
Claims for Specific Performance need rapid marshalling of facts and evidence so as to take timely action.
If you believe that you need advice on the possibility of applying for an Order for Specific Performance in your particular circumstances, contact us on 01603 693500 or email us using the 'Make an enquiry' form. Appointments are available at our Norwich, North Walsham and Sheringham offices.
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*This article is provided for general information purposes only and does not constitute legal advice or other professional advice.