12. Remedies for Breach of Contract
Specific Performance
- Innocent party may ask for specific performance.
- Specific performance is order of court that debtor must perform in accordance
w/contract.
- If person doesn’t comply w/order commits contempt of court.
- If ordered to pay money, order may be executed by judicial procedure,
whereby assets can be seized & sold in execution to meet obligations.
- Regarded as primary remedy South Africa.
- Cases where court will refuse to grant it & such cases creditor will have to
claim damages
- Court will always have discretion to grant specific performance & must be
freely exercised.
- No fixed rules, but each case will be treated on own merits according to
principles of public policy & fairness.
- Where specific performance will not be granted:
o Where performance is impossible.
o Where leads to undue hardship.
o If performance would cause undue expense/detriment for debtor/public
in comparison to benefit it would have for creditor.
o Courts reluctant to force employee onto an employer because of
personal nature of relationship & same applies for partners in
partnership.
o If performance not clearly defined to extent that is impossible to
determine whether performance has taken place in accordance w/court
order & to enforce order depending on circumstances whether only
difficult/impossible to enforce order of court.
- Debtor can’t argue damages will be sufficient remedy.
- Creditor will have right to specific performance even if creditor could be
sufficiently compensated by claim for damages.
- Damages won’t be defence even if contract of sale has been concluded &
goods sold can be obtained in open market.
Cancellation
- Innocent party may cancel contract in certain circumstances which is
extraordinary & drastic remedy.
Specific Performance
- Innocent party may ask for specific performance.
- Specific performance is order of court that debtor must perform in accordance
w/contract.
- If person doesn’t comply w/order commits contempt of court.
- If ordered to pay money, order may be executed by judicial procedure,
whereby assets can be seized & sold in execution to meet obligations.
- Regarded as primary remedy South Africa.
- Cases where court will refuse to grant it & such cases creditor will have to
claim damages
- Court will always have discretion to grant specific performance & must be
freely exercised.
- No fixed rules, but each case will be treated on own merits according to
principles of public policy & fairness.
- Where specific performance will not be granted:
o Where performance is impossible.
o Where leads to undue hardship.
o If performance would cause undue expense/detriment for debtor/public
in comparison to benefit it would have for creditor.
o Courts reluctant to force employee onto an employer because of
personal nature of relationship & same applies for partners in
partnership.
o If performance not clearly defined to extent that is impossible to
determine whether performance has taken place in accordance w/court
order & to enforce order depending on circumstances whether only
difficult/impossible to enforce order of court.
- Debtor can’t argue damages will be sufficient remedy.
- Creditor will have right to specific performance even if creditor could be
sufficiently compensated by claim for damages.
- Damages won’t be defence even if contract of sale has been concluded &
goods sold can be obtained in open market.
Cancellation
- Innocent party may cancel contract in certain circumstances which is
extraordinary & drastic remedy.
