Vandermerwe Comparative 2014

A Comparative Evaluation of the Judicial
Discretion to Refuse Specific Performance
by
Su-Anne van der Merwe
Thesis presented for the degree of Doctor of Laws in the Faculty of Law at
Stellenbosch University
Supervisor: Prof Jacques du Plessis

December 2014
Stellenbosch University http://scholar.sun.ac.za
DECLARATION
By submitting this thesis electronically, I declare that the entirety of the work contained
therein is my own, original work, that I am the sole author thereof (save to the extent
explicitly otherwise stated), that reproduction and publication thereof by Stellenbosch
University will not infringe any third party rights and that I have not previously in its
entirety or in part submitted it for obtaining any qualification.
S van der Merwe November 2014
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i
SUMMARY
This thesis examines the contractual remedy of specific performance in South African
law. It looks closely and critically at the discretionary power of the courts to refuse to
order specific performance. The focus is on the considerations relevant to the exercise
of the judicial discretion.
First, it emphasises the tension between the right and the discretion. It is argued that it
is problematical for our courts to refuse to order specific performance in the exercise of
their discretion. The underlying difficulty is that the discretion of the court to refuse
specific performance is fundamentally in conflict with the supposed right of the plaintiff
to claim specific performance. The thesis investigates the tenability of this open-ended
discretionary approach to the availability of specific performance as a remedy for breach
of contract.
To this end, the thesis examines less complex, more streamlined approaches embodied
in different international instruments. Comparison between different legal systems is
also used in order to highlight particular problems in the South African approach, and to
see whether a better solution may be borrowed from elsewhere.
An investigation of the availability of this remedy in other legal systems and international
instruments reveals that the South African approach is incoherent and unduly complex.
In order to illustrate this point, the thesis examines four of the grounds on which our
courts have refused to order specific performance. In the first two instances, namely,
when damages provide adequate relief, and when it will be difficult for the court to
oversee the execution of the order, we see that the courts gradually attach less or even
no weight to these factors when deciding whether or not to order specific performance.
In the third instance, namely, personal service contracts, the courts have at times been
willing to grant specific performance, but have also refused it in respect of highly
personal obligations, which is understandable insofar as the law wishes to avoid forced
labour and sub-standard performances. The analysis of the fourth example, namely,
undue hardship, demonstrates that the courts continue to take account of the interests
ii
of defendants and third parties when deciding whether or not to order specific
performance.
This study found that there are certain circumstances in which the courts invariably
refuse to order specific performance and where the discretionary power that courts have
to refuse specific performance is actually illusory. It is argued that our law relating to
specific performance could be discredited if this reality is not reflected in legal doctrine.
Given this prospect, possible solutions to the problem are evaluated, and an argument
is made in favour of a simpler concrete approach that recognises more clearly-defined
rules with regard to when specific performance should be refused in order to provide
coherency and certainty in the law.
This study concludes that a limited right to be awarded specific performance may be
preferable to a right which is subject to an open-ended discretion to refuse it, and that
an exception-based approach could provide a basis for the simplification of our law
governing specific performance of contracts.
iii
OPSOMMING
Hierdie tesis ondersoek die benadering tot die kontraktuele remedie van spesifieke
nakoming in die Suid-Afrikaanse reg. Die diskresionêre bevoegdheid van howe om
spesifieke nakoming te weier word van nader en krities aanskou. Die fokus is op die
oorwegings wat ‘n rol speel by die uitoefening van die diskresie.
Eerstens beklemtoon die tesis die spanning tussen die reg en die regterlike diskresie.
Daar word aangevoer dat dit problematies is dat ons howe ‘n eis om spesifieke
nakoming kan weier in die uitoefening van hul diskresie. Die onderliggende probleem is
dat die hof se diskresie om spesifieke nakoming te weier, fundamenteel in stryd is met
die sogenaamde reg van die eiser om spesifieke nakoming te eis. Die tesis ondersoek
die houbaarheid van hierdie onbelemmerde diskresionêre benadering tot die
beskikbaarheid van spesifieke nakoming as ‘n remedie vir kontrakbreuk.
Vervolgens ondersoek die tesis die vereenvoudigde benaderings ten opsigte van
spesifieke nakoming beliggaam in verskillende internasionale instrumente. Vergelyking
tussen verskillende regstelsels word ook gebruik om spesifieke probleme in die Suid-
Afrikaanse benadering uit te lig, en om vas te stel of daar ‘n beter oplossing van elders
geleen kan word.
‘n Ondersoek van die aanwesigheid van hierdie remedie in ander regstelsels en

internasionale instrumente onthul dat die Suid-Afrikaanse benadering onsamehangend
en onnodig ingewikkeld is.
Om hierdie punt te illustreer, ondersoek die tesis vier gronde waarop die remedie tipies
geweier word. In die eerste twee gevalle, naamlik, wanneer skadevergoeding
genoegsame regshulp sal verleen en wanneer dit vir die hof moeilik sal wees om toesig
te hou oor die uitvoering van die bevel, sien ons dat die howe geleidelik minder of selfs
geen gewig aan hierdie faktore heg wanneer hulle besluit of spesifieke nakoming
toegestaan moet word nie. In die derde geval, naamlik, dienskontrakte, sien ons dat die
howe bereid is om in sekere gevalle spesifieke nakoming toe te staan, maar egter nie
spesifieke nakoming ten opsigte van hoogs persoonlike verpligtinge gelas nie, wat
iv
verstaanbaar is tot die mate wat ons reg dwangarbeid en swak prestasies wil vermy.
Die analise van die vierde grond, naamlik, buitensporige benadeling, toon dat die howe
voortgaan om die belange van die verweerder en derde partye in ag te neem wanneer
hulle besluit om spesifieke nakoming te beveel.
Die studie het bevind dat daar sekere omstandighede is waarin die howe nooit
spesifieke nakoming toestaan nie en die diskresie eintlik afwesig is. Derhalwe word dit
aangevoer dat die geldende reg wat betref spesifieke nakoming weerlê kan word indien
hierdie werklikheid nie in die substantiewe reg weerspieël word nie. Gegewe die
vooruitsig, word moontlike oplossings ondersoek, en ‘n argument word gemaak ten
gunste van ‘n eenvoudiger konkrete benadering wat meer duidelik gedefinieerde reëls
erken met betrekking tot wanneer spesifieke nakoming geweier moet word ten einde
regsekerheid en eenvormigheid te bevorder.
Die gevolgtrekking is dat ‘n beperkte aanspraak op spesifieke nakoming meer wenslik is

as ‘n reg op spesifieke nakoming wat onderhewig is aan die hof se oorheersende
diskresie om dit te weier, en dat ‘n uitsondering-gebaseerde benadering as ‘n basis kan
dien vir die vereenvoudiging van ons reg rakende spesifieke nakoming.
v
ACKNOWLEDGEMENTS
My greatest debt is to my supervisor, Professor Jacques du Plessis. I would like to

thank him for agreeing to be my supervisor and for all the heIp and guidance he offered
me. Working for him during the writing of the thesis has been a great learning
experience. His insight and suggestions were invaluable and have helped me to
formulate my ideas more clearly and improve my writing.
Of the Stellenbosch Law Faculty, I wish to thank the dean, Professor Sonia Human, and
the fellow postgraduate students who were there throughout and with whom I share
many fond memories. I am especially grateful to Doctor Franziska Myburgh for being an
inspiring teacher of contract law.
I would also like to express gratitude to the National Research Foundation, the Harry
Crossley Foundation and the Stellenbosch Law Faculty for their financial assistance
towards this research. Opinions expressed and conclusions arrived at are not to be
attributed to them.
Finally, I would like to thank the staff of the JS Gericke Library, Melinda Heese and
Paula Conradie in particular, for their kind assistance in locating sources.
I will always be indebted to my family, my brother David-John in particular, and my

friends for their unconditional support throughout the years of my studies – this thesis is
dedicated to them.
vi
LIST OF ABBREVIATIONS
Am J Comp L American Journal of Comparative Law

AMJUR American Jurisprudence
ASSAL Annual Survey of South African Law
BGB Bürgerliches Gesetzbuch
BW Burgerlijk Wetboek
CILSA The Comparative and International Law
Journal of Southern Africa
CLJ Cambridge Law Journal
Colum LR Columbia Law Review
Edin LR Edinburgh Law Review
Fordham LR Fordham Law Review
Harv LR Harvard Law Review
IECL International Encyclopedia of
Comparative Law
ILJ Industrial Law Journal (Juta)
Ind LJ Industrial Law Journal (Oxford)
J Legal Stud Journal of Legal Studies
LAWSA The Law of South Africa
LQR Law Quarterly Review
Mich LR Michigan Law Review
Minn LR Minnesota Law Review
OJLS Oxford Journal of Legal Studies
PELJ Potchefstroom Electronic Law Journal
SA Merc LJ South African Mercantile Law Journal
SALJ South African Law Journal
Stell LR Stellenbosch Law Review
Tex LR Texas Law Review
THRHR Tydskrif vir Hedendaagse Romeins-
Hollandse Reg
vii
TSAR Tydskrif vir die Suid-Afrikaanse Reg

Tulane LR Tulane Law Review
U Chi LR University of Chicago Law Review
U Pitt LR University of Pittsburgh Law Review
VUWLR Victoria University of Wellington Law
Review
Yale LJ Yale Law Journal
ZPO Zivilprozessordnung
viii
TABLE OF CONTENTS
DECLARATION ............................................................................................................... i
SUMMARY ...................................................................................................................... ii
OPSOMMING ................................................................................................................ iv
ACKNOWLEDGEMENTS .............................................................................................. vi
LIST OF ABBREVIATIONS .......................................................................................... vii
CHAPTER 1: INTRODUCTION ...................................................................................... 1

1 1 Problem identification ........................................................................................... 1
1 1 1 Introduction .................................................................................................... 1
1 1 2 Historical and comparative overview ............................................................ 14
1 1 3 Considerations relevant to the courts’ discretion .......................................... 22
1 1 3 1 Adequacy of damages ........................................................................... 23
1 1 3 2 Personal service contracts..................................................................... 24
1 1 3 3 Supervision of performance ................................................................... 26
1 1 3 4 Undue hardship ..................................................................................... 27
1 1 4 Execution of orders for specific performance and the possibility of
claiming damages in lieu of performance ............................................................... 29
1 2 Purpose, motivation and significance of the study .............................................. 34
1 3 Chapter analysis ................................................................................................. 36
CHAPTER 2: HISTORICAL AND COMPARATIVE BACKGROUND........................... 37

2 1 Introduction ......................................................................................................... 37
2 2 Historical development ....................................................................................... 38
2 2 1 Specific performance of contracts in Roman law ......................................... 38
2 2 2 Specific performance of contracts in Roman-Dutch law ............................... 41
2 2 3 Reception of Roman-Dutch law in South Africa ........................................... 45
2 3 Comparison: specific performance in selected national legal systems and
international instruments ............................................................................................ 47
2 3 1 Specific performance in modern civil law, exemplified by German law
and Dutch law ........................................................................................................ 47
ix
2 3 1 1 Specific performance as the primary remedy in German law ................ 48

2 3 1 2 Specific performance as the primary remedy in Dutch law .................... 52
2 3 2 Specific performance in common law: early development ........................... 58
2 3 2 1 Specific performance as a secondary remedy in English law ................ 61
2 3 2 2 Specific performance as a secondary remedy in American law............. 66
2 3 3 Specific performance in various international instruments ........................... 73
2 3 3 1 Specific performance under the CISG ................................................... 73
2 3 3 2 Specific performance under the PICC ................................................... 78
2 3 3 3 Specific performance under the PECL .................................................. 82
2 3 3 4 Specific performance under the DCFR .................................................. 86
2 3 3 5 Specific performance under the CESL .................................................. 89
2 3 3 6 Comparative remarks on the international instruments.......................... 93
2 4 Evaluative remarks and conclusions................................................................... 95
CHAPTER 3: ADEQUACY OF DAMAGES .................................................................. 98

3 1 Introduction ......................................................................................................... 98
3 2 Adequacy of damages in Anglo-American law.................................................... 99
3 2 1 No market substitute for performance available ......................................... 105
3 2 1 1 Contracts for the sale of land ............................................................... 105
3 2 1 2 Contracts for the sale of personal property .......................................... 111
3 2 2 Damages would be difficult to quantify ....................................................... 125
3 2 3 Insolvency of the defendant ....................................................................... 129
3 2 4 Only nominal damages available ............................................................... 136
3 3 South African law .............................................................................................. 138
3 4 Evaluative remarks and conclusions................................................................. 147
3 4 1 Introduction ................................................................................................ 147
3 4 2 The efficient breach fallacy......................................................................... 148
3 4 3 The supplementary role of adequacy of damages in South African law ..... 155
3 4 4 Conclusion ................................................................................................. 161
x
CHAPTER 4: PERSONAL SERVICE CONTRACTS .................................................. 163

4 1 Introduction ....................................................................................................... 163
4 2 South African law .............................................................................................. 167
4 2 1 Contract of employment (locatio conductio operarum) ............................... 167
4 2 1 1 The employee’s claim against the employer ........................................ 175
4 2 1 2 The employer’s claim against the employee ........................................ 179
4 2 2 Contract of work (locatio conductio operis) ................................................ 194
4 3 English law........................................................................................................ 199
4 4 American law .................................................................................................... 208
4 5 German law ...................................................................................................... 215
4 5 1 Contract of services (Dienstvertrag) ........................................................... 216
4 5 2 Contract for work (Werkvertrag) ................................................................. 220
4 6 Dutch law .......................................................................................................... 222
4 7 International instruments................................................................................... 226
4 8 1 Introduction ................................................................................................ 231
4 8 2 The current approach and the need to prioritise social policy
considerations ...................................................................................................... 232
4 8 3 The proposal for reform: unreasonable enforcement of personal
services as exceptional category ......................................................................... 235
4 8 4 The operation of the proposed exception relating to personal service
contracts .............................................................................................................. 239
4 8 5 Conclusion ................................................................................................. 249
CHAPTER 5: SUPERVISION OF PERFORMANCE .................................................. 251

5 1 Introduction ....................................................................................................... 251
5 2 English law........................................................................................................ 256
5 3 American law .................................................................................................... 282
5 4 German law, Dutch law and the international instruments ................................ 289
xi
CHAPTER 6: UNDUE HARDSHIP ............................................................................. 301

6 1 Introduction ....................................................................................................... 301
6 1 1 The undue hardship principle in South African law: the locus classicus
of Haynes v Kingwilliamstown Municipality .......................................................... 302
6 1 2 Subsequent developments on the undue hardship principle in
South African law ................................................................................................. 310
6 2 Undue hardship as a bar to specific performance in common law: England
and America............................................................................................................. 321
6 3 Unreasonable effort or expense as a bar to specific performance in civil law:
Germany and the Netherlands ................................................................................. 329
6 4 Unreasonable effort or expense as a bar to specific performance in
international instruments: CISG, PECL, PICC, DCFR, CESL .................................. 341
6 4 1 The CISG ................................................................................................... 341
6 4 2 The PICC, PECL, DCFR and the CESL ..................................................... 343
6 5 1 Introduction ................................................................................................ 349
6 5 2 The proposal for reform: undue hardship as exception to specific
performance ......................................................................................................... 351
6 5 3 The operation of the proposed exception ................................................... 354
6 5 4 The basis of the proposed exception ......................................................... 361
6 5 5 Conclusion ................................................................................................. 363
CHAPTER 7: CONCLUSIONS ................................................................................... 364

7 1 Introduction ....................................................................................................... 364
7 2 Recommendations for reform ........................................................................... 367
7 2 1 A discretion to refuse to order specific performance governed by certain
principles .............................................................................................................. 367
7 2 2 A general right to specific performance subject to certain exceptions ........ 370
7 3 Concluding remarks .......................................................................................... 379
xii
ADDENDUM A ............................................................................................................ 382

1. American Law Institute’s Restatement (Second) of Contracts ............................. 382
2. United States Uniform Commercial Code (UCC) ................................................. 385
3. German Civil Code (BGB) ................................................................................... 388
4. German Code of Civil Procedure (ZPO) .............................................................. 394
5. Dutch Civil Code (BW) ......................................................................................... 401
6. UN Convention on Contracts for the International Sale of Goods (CISG)............ 407
7. UNIDROIT Principles of International Commercial Contracts (PICC) .................. 410
8. Principles of European Contract Law (PECL) ...................................................... 418
9. Draft Common Frame of Reference (DCFR) ....................................................... 422
10. Common European Sales Law (CESL) ............................................................. 425
INDEX OF SOURCES................................................................................................. 433

1. Bibliography ......................................................................................................... 433
2. Index of cases...................................................................................................... 465
3. Index of legislation ............................................................................................... 481
4. International instruments ..................................................................................... 483
5. Official publications .............................................................................................. 483
xiii
xiv
CHAPTER 1: INTRODUCTION
1 1 Problem identification
1 1 1 Introduction
A person who enters into a contract expects the other party to fulfil his obligations under
that contract. That party may, however, decide not to perform as it is expected of him.
The question then arises what forms of relief or redress the legal system will offer the
aggrieved party.1 There are various remedies available to an aggrieved party where
there has been a breach of contract. In theory, specific performance2 is the most
appropriate remedy from the point of view of the creditor, who receives what he actually
1
See generally R Zimmermann The Law of Obligations: Roman Foundations of the Civilian
Tradition (1990) 770-782; K Zweigert & H Kötz Introduction to Comparative Law (tr
T Weir) 3 ed (1998) 470 ff.
2
The exact meaning of “specific performance” has been the subject of extensive discussion
in contract literature, which cannot be consolidated here. While a variety of definitions of
the term “specific performance” have been suggested, the term will be used here in its
traditional sense, according to its Latin terminology, performance in forma specifica, to
refer to the remedy available to compel a defaulting party by an order of court to perform a
contract literally, i.e. to make the very performance he agreed to make in terms of the
contract. And for ease of exposition, the term “contract” in this thesis will be used to mean
a legally-concluded contract; the present study is therefore mainly concerned with
limitations on the availability of the remedy where the contract is not in any way defective.
See J W Wessels The Law of Contract in South Africa 2 ed (1951) vol 2 § 3089; J J du
Plessis “Spesifieke nakoming: ‘n regshistoriese herwaardering” (1988) 51 THRHR 349; M
A Lambiris Orders of Specific Performance and Restitutio in Integrum in South African
Law (1989) 12-13, 56; G Lubbe “Daadwerklike vervulling in die Suid-Afrikaanse reg: die
implikasies van die uitoefening van die regterlike diskresie” in J Smits & G Lubbe (eds)
Remedies in Zuid-Afrika en Europa (2003) 51 52; A D J van Rensburg, J G Lotz & T van
Rijn (R D Sharrock) “Contract” in W A Joubert & J A Faris (eds) LAWSA 5(1) 2 ed (2010)
para 495.
1
bargained for.3 This ideal, is however, counterbalanced by a number of factors. As Sir

Guenter Treitel explained some time ago:4
“First, the enforced performance may be regarded as an undue interference with the
personal freedom of the debtor. This is particularly true where performance can only be
rendered by the debtor personally; but even where this is not the case enforced performance
is often felt to be too strong a measure when the creditor could for most practical purposes
be put into almost as good a position by an award of a sum of money. Enforced performance
might, moreover, cause hardship to the debtor which would not be occasioned by an award
of money, particularly where such an award would be subject to reduction under the
mitigation rules. Secondly, enforced performance may be thought to impose strains on the
machinery of the law enforcement which are too severe when balanced against the benefit
derived by the creditor from enforced performance.”
For these and related reasons, legal systems generally limit the availability of specific
performance as a remedy for breach. There are at least three approaches to the
problem. The first is to accept the general principle that specific performance is
available in principle, subject to certain exceptions, while the second is to adopt the
3
This statement requires some clarification, because an order for specific performance
seldom brings about performance within the time specified in the contract. In this respect,
such an order would be for less than exact and complete performance. For the loss
involved in the delay or in other existing non-performance, damages will be awarded along
with specific performance. Thus, to the extent that it does not bring about exact and
complete performance, damages in conjunction with specific performance will be ordered.
See Silverton Estates Co v Bellevue Syndicate 1904 TS 462; J C de Wet & A H van Wyk
Die Suid-Afrikaanse Kontraktereg en Handelsreg I 5 ed (1992) 213; S van der Merwe et al
Contract: General Principles 4 ed (2012) 333.
4
G H Treitel “Remedies for breach of contract” in IECL VII ch 16 (1976) 8. See also
A Burrows Remedies for Torts and Breach of Contract 3 ed (2004) 472-473.
2
point of departure that specific performance is an exceptional, discretionary remedy. A

third hybrid approach combines elements of the other two.5
It is a basic principle of modern civil-law systems that the debtor is obliged to perform
his contractual obligation and, in the case of a breach, the creditor has the right to
enforce this duty. The creditor has the right to claim performance of the contract and to
obtain a judgment ordering the debtor to fulfil it. Monetary damages are only regarded
as a type of substitute specific performance.6
The position in the common law is quite different. Specific performance is regarded as
an exceptional discretionary remedy in common-law jurisdictions.7 The concept that
contractual obligations, as a rule can be specifically enforced, and that the election is
with the plaintiff creditor to demand specific performance, is foreign to these systems.
This point is implicit in the “unsettling”8 theory about liability in contract put forward by
the American jurist, Oliver Wendell Holmes Jr, that every contractual obligation resolves
itself into damages in case of non-performance by the debtor – as discussed below.9
The essence of the modern common law doctrine is thus that failure to perform / breach
of contract will be compensated with the value of the expectancy that was created by
5
Treitel “Remedies for breach of contract” in IECL 8. See also A Cockrell “Breach of
contract” in R Zimmermann & D Visser (eds) Southern Cross: Civil Law and Common Law
in South Africa (1996) 303 325 ff; Zweigert & Kötz Comparative Law 484-485 A Cockrell
“Breach of contract” in R Zimmermann & D Visser (eds) Southern Cross: Civil Law and
Common Law in South Africa (1996) 303 326; S Eiselen “Specific performance and
special damages” in H L MacQueen & R Zimmermann (eds) European Contract Law:
Scots and South African Perspectives (2006) 249 250 ff.
6
De Wet & Van Wyk Die Suid-Afrikaanse Kontraktereg en Handelsreg 209; Cockrell
“Breach of contract” in Zimmermann & Visser (eds) Southern Cross 326; Zweigert & Kötz
Comparative Law 479.
7
M Chen-Wishart Contract Law 4 ed (2012) 539.
8
According to Cockrell “Breach of contract” in Zimmermann & Visser (eds) Southern Cross
326.
9
See paras 3 2 & 6 3 below.
3
the promise of the other party (i.e. expectation damages); only when awarding damages
is inadequate will it be in the discretion of the court to grant specific performance.10
The point of departure in South African contract law is that freely-concluded contracts
must be honoured (pacta sunt servanda). This suggests that an order for specific
performance should be regarded as the principal remedy for breach of contract.11 As a
general rule the creditor is entitled to enforce performance of the contract precisely as it
was agreed between the parties in the contract.12
This principle was famously encapsulated as follows in Farmers’ Co-operative Society

(Reg) v Berry13 by Innes J:
10
This principle is firmly established in English law – see J Beatson Anson’s Law of Contract
29 ed (2010) 575; E Peel Treitel’s Law of Contract 13 ed (2011) 1099; H G Beale et al
(eds) Chitty on Contracts I: General Principles 31 ed (2012) 1907, and in American law –
see § 359(1) of the American Law Institute’s Restatement (Second) of Contracts
(Addendum A 383). See further J M Perillo (ed) Corbin on Contracts 12: Restitution,
Specific Performance and Election of Remedies Interim ed (2002) § 1139.
11
Even though there may be a theoretical preference for the remedy, a creditor is of course
not obligated to utilise this remedy, and may rely on other contractual remedies instead.
See D Hutchison & C Pretorius (eds) The Law of Contract in South Africa 2 ed (2012) 321;
F du Bois (ed) Wille’s Principles of South African Law 9 ed (2007) 873.
12
See Fick v Woolcott & Ohlsson’s Cape Breweries 1911 AD 214; Woods v Walters 1921
AD 304; Hesselmann v Koerner 1922 SWA 40; Shill v Milner 1937 AD 101; Johannesburg
Stock Exchange v Northern Transvaal (Messina) Copper Exploration Co 1945 AD 529.
Note that specific performance may be claimed as soon as performance of the debtor’s
obligation resulting from the contract is due, even if no breach has yet occurred. Unlike
damages and termination, failure to perform is not a requirement for specific performance
(Joss v Western Barclays Bank Ltd 1990 (1) SA 575 (T)). See also para 2 3 1 2 n 92
below.
13
1912 AD 343.
4
“Prima facie every party to a binding agreement who is ready to carry out his own obligation
under it has a right to demand from the other party a performance of his undertaking in terms
of the contract.”14
The Appellate Division confirmed this position in the leading case of Benson v SA
Mutual Life Assurance Society.15 However, even though the court described the right to
specific performance as a cornerstone of our law relating to specific performance,16 in
the same judgment the court noted that there is a discretion on the part of the court to
refuse to order specific performance and leave the plaintiff to claim and prove his id
quod interest.17
The approach that was adopted by South African courts represents a “fusion” of the
Roman-Dutch notion that a party to a contract has a right to specific performance
14
350. The existence of a right to specific performance was decided as long ago as 1882 in
Cohen v Shires, McHattie and King (1882) 1 SAR 41, and subsequently reaffirmed in a
number of cases – see eg Thompson v Pullinger (1894) 1 OR 298 301; Woods v Walters
1921 AD 303 309; Shill v Milner 1937 AD 301 109; BK Tooling (Edms) Bpk v Scope
Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A) 433. See also para 2 2 3 below.
15
1986 (1) SA 776 (A). This decision and its implications are discussed fully below (see
paras 3 3 & 6 1 2).
16
782I-J per Hefer JA.
17
782D-G (referring to Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) 378 per
De Villiers AJA). See more recently Klimax Manufacturing Ltd v Van Rensburg 2005 (4)
SA 445 (O) para [10] per Hattingh J: “A plaintiff is always entitled to claim specific
performance. Assuming he makes out a case, his claim will be granted, subject only to the
Court’s discretion”; Nkengana v Schnetler [2011] 1 All SA 272 (SCA) para [12] per Griesel
AJA: “It is settled law that every party to a binding contract who is ready to carry out its
own obligations under it has a right to demand from the other party, so far as it is possible,
performance of that other party’s obligations in terms of the contract” and finally, Botha v
Rich NO 2014 (4) SA 124 (CC) para [37] per Nkabinde J: “The starting point is that at
common law a contracting party is entitled to specific performance in respect of any
contractual right …” See also para 1 1 4 below.
5
thereof and the English equitable doctrine that this remedy is within the discretion of the
court.18 As a result of the synthesis of these viewpoints, our courts accept that the right
to specific performance is not absolute, but subject to a judicial discretion to refuse an
order for specific performance,19 which entails the reversal of the content of the
discretion under English law.20 Courts should, however, always be cautious not to
refuse enforcing contracts.21 To this extent therefore, the civilian approach has
prevailed.
Under South African law “[t]here is thus an automatic right to claim, but no automatic
right to receive specific performance”.22 It has furthermore been suggested that this
discretion to refuse to order specific performance is warranted since “cases do arise
where justice demands that a plaintiff be denied his right to performance”.23
18
Eiselen “Specific performance and special damages” in H L MacQueen & R Zimmermann
(eds) European Contract Law: Scots and South African Perspectives 252.
19
This, according to Botha AJA is irrevocably entrenched in South African law (Associated
South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd 1982 (3) SA
893 (A) 923).
20
G F Lubbe & C M Murray Farlam & Hathaway Contract: Cases, Materials and
Commentary 3 ed (1988) 542; Hutchison & Pretorius (eds) The Law of Contract in South
Africa 321.
21
See Brisley v Drotsky 2002 (4) SA 1 (SCA) para [94].
22
A Beck “The coming of age of specific performance” 1987 CILSA 190 195. See also G
Lubbe “Contractual derogation and the discretion to refuse an order for specific
performance in South African Law” in J Smits et al (eds) Specific Performance in Contract
Law: National and Other Perspectives (2008) 95 102.
23
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) 783D. See also D J
Joubert General Principles of the Law of Contract (1987) 223-224; Eiselen “Specific
performance and special damages” in MacQueen & Zimmermann (eds) European
Contract Law: Scots and South African Perspectives 256.
6
The modern law governing the availability of this remedy has quite correctly been
described as being rather complicated and “precarious”.24 This is a product of the mixed
nature of the South African legal system.25 South African courts have accepted a
reverse discretion to refuse the remedy without recognising the exceptional nature of
the remedy in English law, and have done so in spite of the fact that English law differs
considerably from Roman-Dutch law (from which the right to specific performance was
received).26 In our law the general point of departure remains that specific performance
is available “as of right”.27 It is problematical for our courts to refuse to order specific
performance in the exercise of their discretion,28 because the denial of the order has a
24
See generally Cockrell “Breach of contract” in Zimmermann & Visser (eds) Southern
Cross 330. See also Eiselen “Specific performance and special damages” in MacQueen &
Zimmermann (eds) European Contract Law: Scots and South African Perspectives 252.
25
Cockrell “Breach of contract” in Zimmermann & Visser (eds) Southern Cross 325: “Modern
South African law regarding the availability of specific performance as a remedy for
breach represents the outcome of an extremely nuanced process of historical
development.” See also introductory paragraph of Beck’s 1987 CILSA article,
commencing with: “The theoretical underpinnings of contract law as well as the
complications caused by the accidents of history are probably demonstrated uniquely by
the remedy of specific performance for breach of contract.” See also para 7 1 below.
26
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) 785E; Santos
Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) 82E-F.
27
Lambiris Orders of Specific Performance and Restitutio in Integrum in South African Law
46. See also Lubbe & Murray Contract 542: “As Hefer JA points out in Benson v SA
Mutual Life Assurance Society, in English law specific performance is an exceptional
remedy available when damages appear to be inadequate. The theoretical starting point
in South Africa (like other civil law jurisdictions) is quite different from the English and
American one. In South Africa reasons must be found for not granting specific
performance to the party that requests it, with the court exercising an equitable discretion
to refuse the remedy.”
28
See also De Wet & Van Wyk Kontraktereg en Handelsreg 210-211; Cockrell “Breach of
contract” in Zimmermann & Visser (eds) Southern Cross 328 ff.
7
substantive effect on the right of the creditor to specific performance of the contract, and
does not operate at the remedial or procedural level only. As Lubbe correctly explains:
“The immediate connection between the creditor’s right to the performance and the remedial
claim to an order for enforcement, means that a refusal to grant a decree for specific
performance goes beyond a mere denegatio actionis [or “refusal of the action”]. A decision
rejecting the plaintiff’s request for specific enforcement of his contract deprives the creditor
not merely of ‘the main advantage which the theoretically valid right is supposed to grant
him’,29 but also of the very substance of the right, for, according to our courts, the substance
of the right cannot be separated from the remedial manifestation thereof.30 The notion that
the exercise of the discretion takes effect merely at the remedial level is therefore
untenable.”31
29
Citing D E Friedmann “Good faith and remedies for breach of contract” in J Beatson & D E
Friedmann (eds) Good Faith and Fault in Contract Law (1995) 399 406, where Friedmann
explores to what extent gaps created in English contract law by the lack of good faith
doctrine are filled by the law of remedies.
30
Citing First National Bank of SA Ltd v Lynn 1996 (2) SA 339 (A) 352C-D per Van den
Heever JA; Brummer v Gorfil Brothers Investments (Pty) Ltd 1999 (3) SA 389 (SCA)
411C-D per Nienaber JA, and Headleigh Private Hospital t/a Rand Clinic v Soller &
Manning 2001 (4) SA 360 (W) 367F-G per Cameron J: “Legal procedures are the
essential mechanism through which rights in our society are recognised and enforced. In a
society whose conception of rights derives from a system of legal entitlements an integral
part of which is the institutional mechanisms established for their enforcement, it seems to
me to be unrealistic to divorce the underlying right from the entitlement to be compensated
for its procedural exaction.” See further Lubbe “Contractual derogation and the discretion
to refuse an order for specific performance in South African Law” in Smits et al (eds)
Specific Performance in Contract Law: National and Other Perspectives 103.
31
“Contractual derogation and the discretion to refuse an order for specific performance in
South African Law” in Smits et al (eds) Specific Performance in Contract Law: National
and Other Perspectives 105, and on 107 the author continues as follows: “In the light of
the foregoing, it can be contended that the practice of the courts provides the basis for a
construction whereby, in respect of the so-called remedy of specific performance, judges
8
Furthermore, South African courts relied on English law to give content to this specific
performance discretion and under the influence of the English approach that an order
for specific performance is an exceptional remedy, our courts in practice have exercised
their discretion in such a way that it appeared as if the remedy would not be granted if
certain circumstances32 were present.33 As a result,
“The Roman-Dutch right to specific performance, affirmed as part of modern South African
law, was effectively negated by the courts’ subsequent endorsement of crystallized instances
– borrowed from English law – in which specific performance should be refused.”34
possess a discretionary power to derogate from the consequences of a contract on

account of considerations of fairness and reasonableness. On this view a decision to
refuse an order for specific performance amounts to a judicial re-evaluation of the
plaintiff’s contention that there is in existence an obligation entitling him to performance by
the debtor.” See also Cockrell “Breach of contract” in Zimmermann & Visser (eds)
Southern Cross 328.
32
This thesis indicates that in practice, in the compared jurisdictions and international
instruments, there are a number of similar recognised circumstances in which the remedy
will not be granted. These circumstances or considerations form the subject matter of
chapters 3 to 6.
33
For instance (Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) 378H-379A per
De Villiers AJA): where it would be difficult for the court to supervise the execution of its
order, where damages would adequately compensate the plaintiff, where the performance
could readily be obtained elsewhere, or where specific performance would entail rendering
personal services, or would cause unreasonable hardship to the defendant. See also
Thompson v Pullinger (1894) 1 OR 298; Wessels The Law of Contract in South Africa §
3113 ff; Beck 1987 CILSA 197; Joubert General Principles of the Law of Contract 225-
227; Lubbe & Murray Contract 542-543; De Wet & Van Wyk Kontraktereg en Handelsreg
210-211, and esp Van der Merwe et al Contract: General Principles 330. See also para 6
1 1 below.
34
Cockrell “Breach of contract” in Zimmermann & Visser (eds) Southern Cross 329; Benson
v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) 784C.
9
However, the Appellate Division in Benson, emphasised that “any curtailment of the
court’s discretion inevitably entails an erosion of the plaintiff’s right to performance and
that there can be no rule, whether it be flexible or inflexible, as to the way in which the
court’s discretion is to be exercised, which does not affect the plaintiff’s right in some
way or another”.35 Hefer JA also pointed out that in English law the approach regarding
the availability of specific performance is fundamentally different: an order for specific
performance being the exception rather than the rule. Hefer JA reaffirmed that every
plaintiff has a right according to South African law to demand performance, and that
there is “neither need nor reason” to continue to follow the English rules of equity as to
when specific performance should be denied.36 He maintained that although the right to
specific performance is subject to a judicial discretion, this discretion cannot in any way
be regulated by rigid rules which would restrict the court’s discretion and erode the right
to specific performance.37 When considering the nature and extent of this discretion, he
went on to say:
“This does not mean that the discretion is in all respects completely unfettered. It remains,
after all, a judicial discretion and from its very nature arises the requirement that it is not to be
exercised capriciously, nor upon a wrong principle (Ex parte Neethling [1951 (4) SA 331 (A)
335]). It is aimed at preventing an injustice – for cases do arise where justice demands that a
plaintiff be denied his right to performance – and the basic principle thus is that the order
which the Court makes should not produce an unjust result which will be the case, eg, if, in
the particular circumstances, the order will operate unduly harshly on the defendant. Another
principle is that the remedy of specific performance should always be granted or withheld in
accordance with legal and public policy. (cf De Wet and Yeats Kontraktereg en Handelsreg
4th ed at 189) …”38
35
783B-C.
36
785F.
37
782I-783C.
38
783C-F. See further Van der Merwe et al Contract: General Principles 330: “The court’s
discretion to refuse specific performance is regarded as a judicial discretion which,
although it should be as unfettered as possible, must be exercised in accordance with
10
After Benson, our courts39 have gravitated towards a strict Roman-Dutch approach,
constantly emphasising a plaintiff’s right to specific performance.40 As a result, South
African courts frequently assert that they should resist the tendency to develop the
abovementioned factors, deriving from English law, into rules governing the discretion,
in order to avoid the limitation of a plaintiff’s right to specific performance.41
The considerations set out above give rise to a number of questions about the scope of
the right to specific performance, seeing that it is still not regarded as absolute, but
subject to a judicial discretion to refuse it.42 How can one accept the claim that a
plaintiff has a right to specific performance, if that right can be trumped by certain
considerations within the overriding discretion of the court? The underlying difficulty is
public policy and in such a manner that it does not bring about an unjust result …”;
Du Bois (ed) Wille’s Principles of South African Law 873: “Apart from these inherent
restrictions no rules can be prescribed to regulate the exercise of the court’s discretion.”
39
See eg LMG Construction (City) Pty Ltd v Ranch International Pipelines (Transvaal) (Pty)
Ltd 1984 (3) SA 861 (W) 880-881.
40
Lubbe “Daadwerklike vervulling in die Suid-Afrikaanse reg: die implikasies van die
uitoefening van die regterlike diskresie” in Smits & Lubbe (eds) Remedies in Zuid-Afrika
en Europa 58 ff; G Lubbe & J du Plessis “Law of contract” in C G van der Merwe & J E du
Plessis (eds) Introduction to the Law of South Africa (2004) 243 262-263; Lubbe
and Other Perspectives 102 ff; Van der Merwe et al Contract: General Principles 330;
Hutchison & Pretorius (eds) The Law of Contract in South Africa 321; Lubbe & Murray
Contract 545.
41
See eg Raik v Raik 1993 (2) SA 617 (W) 626; Santos Professional Football Club (Pty) Ltd
v Igesund 2003 (5) SA 73 (C) 84E-J; Nationwide Airlines (Pty) Ltd v Roediger 2008 (1) SA
293 (W) paras [17]-[21]; Vrystaat Cheetahs (Edms) Bpk v Mapoe paras [101] ff,
unreported judgment with case no 4587/2010 delivered on 29 Sep 2010 by the Free State
Provincial Division of the High Court per Van Zyl J (copy on file with author).
42
126 (as quoted in para 7 1 below).
11
that the discretion to deny the plaintiff’s right to specific performance still seems to
undermine the right to specific performance.43 It may then be argued that the right to
specific performance is illusory.44
It seems that even though the Appellate Division confirmed the position in our law, and
Benson reaffirmed the primacy of the remedy in current law, there is still uncertainty
surrounding the availability of this remedy, particularly with reference to the
considerations relevant to the exercise of the courts’ discretion to refuse an order for
specific performance. Cockrell argues that the fundamental tension in this area of law
(as outlined above)45 was not properly addressed by the judgment,46 and that “despite
trying to re-establish the Roman-Dutch position, the court has simply perpetuated the
internal incoherence in this area of the law, occasioned by the fusion of the remedy from
two dissimilar systems of law”.47
43
Cockrell “Breach of contract” in Zimmermann & Visser (eds) Southern Cross 330.
44
328: “The underlying difficulty was that the ‘discretion’ of the court to refuse specific
performance was fundamentally at odds with the supposed ‘right’ of the promisee to claim
specific performance.”
45
See also para 7 1 below.
46
Cockrell “Breach of contract” in Zimmermann & Visser (eds) Southern Cross 328, 330.
47
For supporting reference, see Eiselen “Specific performance and special damages” in
MacQueen & Zimmermann (eds) European Contract Law: Scots and South African
Perspectives 252. See also Beck 1987 CILSA 190 and Lubbe “Contractual derogation and
the discretion to refuse an order for specific performance in South African Law” in Smits et
al (eds) Specific Performance in Contract Law: National and Other Perspectives 110-111;
A Smith “Specific implement” in K Reid & R Zimmermann (eds) A History of Private Law in
Scotland II: Obligations (2000) 195 209: “Cockrell nevertheless criticizes the inconsistency
of three propositions in the Benson judgement: the confirmation of the plaintiff’s right to
the remedy, the court’s discretion untrammelled by rules, and the inability of the English
exceptions (though still relevant factors) to limit the South African court’s discretion. The
discretion he maintains, undermines the right.”
12
It is submitted that the precise nature and extent of the courts’ discretion and the way in
which it is to be exercised cannot be regarded as fully resolved. The availability of the
remedy is regulated by an open norm which requires an evaluative consideration of the
circumstances of the case with reference to considerations of fairness and the broader
interests of the community.48 Whether an order for specific performance will be refused
is determined by the facts of each case.49 The question arises, though, whether South
African courts should follow a more concrete approach, and could possibly be guided by
certain more clearly-defined rules with regard to when specific performance may be
refused.
This study proposes to evaluate the different considerations that could be regarded as
relevant to the exercise of the courts’ discretion to refuse specific performance in order
to determine whether such considerations should influence a court to exercise its
discretion to refuse to order specific performance. This study will examine the way in
which South African courts have dealt with some of these circumstances and also
explore the desirability of a more concrete approach regarding the availability of this
remedy.50 These issues are dealt with in chapters 3 to 6 below.
The proposed study problem has been investigated by a number of local

commentators,51 and is also the subject of continuous international debate, especially of
48
See Lubbe “Contractual derogation and the discretion to refuse an order for specific
performance in South African Law” in Smits et al (eds) Specific Performance in Contract
Law: National and Other Perspectives 99.
49
See Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) 783B per Hefer JA.
50
With specific reference to the circumstances identified in Haynes v Kingwilliamstown
Municipality 1951 (2) SA 371 (A) 378H-379A (see n 33 above). See also para 6 1 1 below.
51
See eg Lambiris Orders of Specific Performance and Restitutio in Integrum in South
African Law; Lubbe “Contractual derogation and the discretion to refuse an order for
specific performance in South African Law” in Smits et al (eds) Specific Performance in
Contract Law: National and Other Perspectives.
13
a comparative52 and historical nature.53 However, no recent in-depth South African

study has investigated whether the products of these debates could benefit the
development of our law. Before proceeding to problems relating to the specific
considerations that influence the courts’ discretion, it is useful for purposes of problem
identification to deal briefly with this broader historical and comparative context.
1 1 2 Historical and comparative overview54
The remedy of specific performance is a well-known example of divergence between

the civil law and the common law.55 It was mentioned earlier that the scope of the
remedy is more limited in common-law jurisdictions: damages is regarded as the
52
See eg Cockrell “Breach of contract” in Zimmermann & Visser (eds) Southern Cross 303;
Eiselen “Specific performance and special damages” in MacQueen & Zimmermann (eds)
European Contract Law: Scots and South African Perspectives 249. See also Smith
“Specific implement” in Reid & Zimmermann (eds) A History of Private Law in Scotland II
195; Beck 1987 CILSA 190.
53
See eg Du Plessis 1988 THRHR 349; J Oosterhuis Specific Performance in German,
French and Dutch Law in the Nineteenth Century: Specific Performance: German, French
and Dutch Law in the Nineteenth Century: Remedies in an Age of Fundamental Rights
and Industrialisation (published) doctoral thesis Vrije University Amsterdam (2011).
54
For extensive discussion, see ch 2 below. For a general comparative account of specific
performance, see G H Treitel Remedies for Breach of Contract: A Comparative Account
(1988) ch 3 and Zweigert & Kötz Comparative Law 470-485. See further and more
recently, V Mak Performance-Oriented Remedies in European Sale of Goods Law (2009)
77-113; M Hogg Promises and Contract Law: Comparative Perspectives (2011) 348 ff; E
McKendrick & I Maxwell “Specific performance in international arbitration” 2013 The
Chinese Journal of Comparative Law 195.
55
Zimmermann The Law of Obligations 781; Zweigert & Kötz Comparative Law 484; D
Haas, G Hesen & J Smits “Introduction” in J Smits et al (eds) Specific Performance in
Contract Law: National and Other Perspectives (2008) 1 2; M Torsello “Remedies for
breach of contract” in J M Smits (ed) Elgar Encyclopedia of Comparative Law 2 ed (2012)
754 762.
14
primary remedy and specific performance is seen as an exceptional remedy, which can
only be awarded by a court in the exercise of its equitable discretion. Certain specific
circumstances have been identified where an order for specific performance would not
be granted.56 These circumstances include: if damages would provide an adequate
remedy, if performance consists of a personal service, if the order could cause undue
hardship and if the contract requires constant supervision.57
Traditionally, equity would only grant specific performance with respect to contracts
involving movables where the goods were unique in character.58 The reason was that
the aggrieved party had an adequate remedy in damages in case of breach if he could
acquire the goods elsewhere.59 English law has been reluctant to recognise the specific
enforceability of contracts for the sale of ordinary or “non-unique” personal property.60
The courts in the United States have, however, extended the remedy to buyers of
generic goods whose need for the actual supply was particularly urgent or who would
not be able to obtain a satisfactory substitute.61 And there is a growing tendency to
order specific performance on the basis of the appropriateness of the remedy, rather
than on the inadequacy of damages.62 Though English courts are slower in accepting
this view, there are indications that the English courts are moving away from the
traditional rule that specific performance will not be ordered where damages is an
56
See generally Burrows Remedies for Torts and Breach of Contract 3 ed (2004) 456-457;
R Stone The Modern Law of Contract 10 ed (2013) 501-505; H G Beale et al (eds) Chitty
on Contracts I: General Principles 31 ed (2012) 1917-1933. See also Beck 1987 CILSA
190 193.
57
For a more detailed list, see para 2 3 2 1 below.
58
See further para 2 3 2 1 & 3 2 1 2 below.
59
See further para 3 2 1 2 below.
60
Treitel “Remedies for breach of contract” in IECL VII/16 18. See further paras 2 3 2 1 & 3
2 1 below.
61
This is illustrated by the wording of § 2-716(1) US Uniform Commercial Code (discussed
in paras 2 3 2 2 & 3 2 1 2 below).
62
See para 3 2 1 2 below.
15
adequate remedy.63 It is suggested that this development could be informative in the

South African context. Such an investigation will be approached carefully, as
recommended by Lubbe.64
As mentioned above, the remedy of specific performance assumes an extensive field of

application in civil-law jurisdictions and is available as of right. However, the majority of
these jurisdictions recognise certain exceptions to this position.65 These systems
generally do not retain such an unrestrictive discretion to refuse performance. In his
doctoral thesis, Oosterhuis focused on the question why exceptions exist to this general
principle. This research could be informative as to one of the central questions this
study seeks to answer, namely whether there should be defined exceptions in our law
as well.66 Oosterhuis points out that during the first decades of the nineteenth century
German courts accepted certain exceptions to the general principle, because more
cases occurred, due to the increase in trade and production of generic goods, in which
damages would appear to be a more appropriate remedy. German states and territories
underwent mass industrialisation during this period and the remedy of specific
performance was considered to be inappropriate where a buyer needed timely delivery
of goods, either for trading purposes or for their use in the industrial production process.
63
See Beale et al (eds) Chitty on Contracts 1907 ff. For further discussion, see paras
2 3 2 1, 3 2 1 2 & 3 4 1 below.
64
South African law” in Smits et al (eds) Specific Performance in Contract law: National and
Other Perspectives 110. Lubbe cautions against the “the development of a separate
system of rules at the remedial level [that] would erode the right of a creditor to a
performance contracted for according to the rules of substantive law”, and create “a
conflict between substantive law and the equitable remedial regime and [so] introduce the
division between law and Equity into our law”.
65
B Markesinis, H Unberath & A Johnston The German Law of Contract: A Comparative
Treatise 2 ed (2006) 398-399.
66
Besides those already recognised, i.e. impossibility of performance and the insolvency of
the debtor (see paras 4 8 3, 6 5 2 & 7 2 2 below).
16
Such a buyer would rather choose to rescind the contract, immediately conclude
another contract for the same goods and claim damages in the amount of the shortfall
between the price agreed upon and the market price at the time of default.67 The
consideration of “appropriateness”, as applied in both civil law and common law
jurisdictions, will be explored to determine whether it is suitable for adoption in the
South African context.68
The basic position in the civil law, that specific performance is considered to be the
primary remedy for breach of contract, is reflected in a number of prominent jurisdictions
such as Dutch law and German law.69 The German Civil Code (Bürgerliches
Gesetzbuch or BGB)70 of 1900, which was partly revised in 2002, expressly provides
the creditor with a substantive right to specific performance.71 Specific performance is
also the primary remedy for breach under the Dutch Civil Code (Burgerlijk Wetboek or
BW),72 even though no single provision in the Code explicitly grants the creditor a
67
Oosterhuis Specific Performance: German, French and Dutch Law in the Nineteenth
Century 239-241.
68
See also n 106 para 1 1 3 1 below.
69
At present, specific performance is also acknowledged in the civil-law jurisdictions of
France and Belgium. See eg Haas, Hesen & Smits “Introduction” in Smits et al (eds)
Specific Performance in Contract Law: National and Other Perspectives 1 3; D Haas De
Grenzen Van Het Recht Op Nakoming doctoral thesis Vrije University Amsterdam (2009)
19-24; U A Mattei, T Ruskola & A Gidi Schlesinger’s Comparative Law: Cases, Text,
Materials 7 ed (2009) 879 ff, and for more detailed discussion, H Beale et al Cases,
Materials and Text on Contract Law (2010) 840 ff; M Smits Efficient Breach and the
Enforcement of Specific Performance LLM thesis Amsterdam Law School (2014) 28 ff.
70
Full text available online at <http://www.gesetze-im-internet.de/englisch_bgb/>.
71
D Haas “Searching for a basis of specific performance in the Dutch Civil Code” in J
Hallebeek & H Dondorp (eds) The Right to Specific Performance: The Historical
Development (2010) 167 172.
72
Full text available online at <http://www.dutchcivillaw.com/civilcodegeneral.htm>.
17
substantive right to specific performance.73 These systems are close to the South
African position, and could potentially be the most instructive in evaluating the South
African approach.
In Germany, parties to a contract as a matter of course are entitled to demand

performance of their respective obligations in specie.74 The right to specific performance
is contained in § 241 of the BGB. It states that the creditor is entitled, on the grounds of
the creditor-debtor relationship, “to demand performance from the debtor”.75 This
provision clearly indicates that actual performance of an obligation may be demanded,
and that a judgment ordering performance in specie may be issued by a court.76 The
creditor’s claim to the specific enforcement of the contract is regarded as an inherent
and standard right flowing from the contract.77 The primacy of this remedy is
demonstrated by the fact that the creditor may only sue for damages where the specific
enforcement of the contract is no longer possible.78 The emphasis on the enforcement
of the contract is also reflected in the fact that a creditor has to grant the debtor a period
of grace or Nachfrist before he can rely on secondary remedies, such as rescission
and/or damages.79 It is only after the expiry of this period (without result) that the
creditor is entitled to claim damages instead of performance.80 In other words, a creditor
73
Haas “Searching for a basis of specific performance in the Dutch Civil Code” in Hallebeek
& Dondorp (eds) The Right to Specific Performance: The Historical Development 167.
74
R Zimmermann The New German Law of Obligations: Historical and Comparative
Perspectives (2005) 43.
75
76
Zweigert & Kötz Comparative Law 472.
77
Markesinis et al German Law of Contract 399.
78
Markesinis et al German Law of Contract 439-441. See also C Szladits “The concept of
specific performance in civil law” (1955) 4 Am J Comp L 221.
79
80
§ 281(1) BGB. See also para 2 3 1 1 below.
18
has to claim specific performance first, and only after the debtor’s non-performance, is
he entitled to claim damages.
One of the foundational principles of Dutch contract law is that parties to a contract are
obliged to execute the obligations they have entered into. This principle, the binding
force of contract, and its twin notion of freedom of contract, are not expressly included in
the BW, but is implied in Article 6:248(1), which states that a contract has not only the
judicial effects agreed to by the parties, but also those which according to the nature of
the contract result from the law, usage or the requirements of reasonableness and
equity.81
According to some commentators, the Dutch legislator probably did not include an
explicit provision granting the creditor a substantive right to specific performance,
because this right is regarded as an essential feature of the contract itself.82 Hartkamp,
for example, expresses the view that “[t]he right to specific performance arises directly
from the obligation; it does not result from breach of contract”.83 The primary position of
specific performance can thus be ascribed to the maxim of pacta sunt servanda. Its
primacy is also reflected in the limited number of conditions the creditor has to satisfy to
obtain an order for specific performance and the few defences the debtor can raise
against such an action. Furthermore, Dutch law promotes specific performance claims
by way of the legal requirement of a written notice, whereby the creditor must give the
debtor a reasonable time to perform, before he can claim damages or rescind the
contract.84
81
A S Hartkamp et al Contract Law in the Netherlands 2 rev ed (2011) 34.
82
See further text to n 103 para 2 3 1 2 below.
83
84
D Haas & C Jansen “Specific performance in Dutch law” in J Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives (2008) 11-14. Cf for
German law: text to n 80 above & n 95 para 2 3 1 2 below.
19
Various international restatements of contract law also contain provisions explicitly

granting the creditor a substantive right to specific performance. Article 46 of the UN
Convention on Contracts for the International Sale of Goods (CISG),85 Article 7.2.2 of
the UNIDROIT Principles of International Commercial Contracts (PICC), Article 9:102 of
the Principles of European Contract Law (PECL), Article III–3:302 of the Draft Common
Frame of Reference (DCFR)86 and Article 110 the Common European Sales Law
(CESL),87 all provide as a rule that the debtor should specifically perform his obligations
in case of non-performance.88 These provisions could provide valuable insights as to
the manner in which the South African position can be improved. They also suggest that
a better convergence of the common- and civil law approaches may be possible.
The CISG incorporated a largely unrestricted right to require performance,89 mirroring

the civilian approach, while retaining a reservation in Article 28 regarding the application
of this remedy in order to facilitate common-law countries in the sense that a court
which would not require specific performance under national law does not have to do so
under the CISG.90 This provision appears to address the concerns of both systems, but
it becomes clear upon further inspection that there is a lack of coherence in the CISG’s
85
Art 46 (buyer’s right) & Art 62 (seller’s right). See also para 2 3 3 1 below.
86
See also para 2 3 3 4 below.
87
Art 110 (buyer’s right) & Art 132 (seller’s right). See also para 2 3 3 5 below.
88
V Heutger & J Oosterhuis “Specific performance within the hierarchy of remedies in
European contract law” in J Smits et al (eds) Specific Performance in Contract Law:
National and Other Perspectives (2008) 147 152. See for further information para 2 3 3
below.
89
As outlined in Arts 46 & 62 CISG.
90
For more information, see para 2 3 3 1 below. See also M Wethmar-Lemmer “Specific
performance as a remedy in international sales contracts” (2012) 4 TSAR 700 701; S
Eiselen “A comparison of the remedies for breach of contract under the CISG and South
African law” in J Basedow et al (eds) Aufbruch nach Europa – 75 Jahre Max-Planck-
Institut für Privatrecht (2001) also available online at
<http://www.cisg.law.pace.edu/cisg/biblio/eiselen2.html>.
20
approach to the enforcement of performance. While the need for this provision is
undeniable in the light of the divergent viewpoints on specific performance as a
contractual remedy, it is said that it causes uncertainty with regard to the availability of
specific performance.91 The approach adopted by the CISG raises similar concerns to
those raised with regard to the position in the South African law, and the reaction to its
provisions could therefore be instructive.
The PICC, the PECL, the DCFR and the CESL on the other hand are more in favour of
specific performance as the primary remedy, and a creditor will most likely obtain an
order for specific performance under these instruments.92 These instruments have all
adopted the principle of specific performance, subject to exceptions when performance
is impossible or disproportionally onerous by reason of legal or practical difficulties,
when performance is of an exclusively personal character93 or when performance can
be easily obtained from another source.94 This study proposes to undertake a
comprehensive assessment of the approaches adopted in the CISG, the PICC, the
PECL, the DCFR and the CESL, as these instruments contain a similar approach to that
followed by South African courts, and could provide solutions that are suitable for
adoption in South Africa.
91
For more information, see para 2 3 3 1 below. See also C M Venter An Assessment of the
South African Law Governing Breach of Contract master’s dissertation Stellenbosch
University (2004) 69.
92
Heutger & Oosterhuis “Specific performance within the hierarchy of remedies in European
contract law” in Smits et al (eds) Specific Performance in Contract Law: National and
Other Perspectives 152.
93
Excluding the CISG & CESL – see para 4 7 n 314 below.
94
See para 2 3 3 2 (esp n 244) below.
21
1 1 3 Considerations relevant to the courts’ discretion
The discretion that the South African courts exercise evidently derives from the English
law of equity.95 Rules deriving from the English approach were applied in South Africa
without regard to the fundamentally different approach.96 As indicated earlier, Benson
affirmed that these rules cannot interfere with the discretion of a South African court to
refuse specific performance.97 Modern continental jurisdictions that endorse a right to
specific performance do not usually retain the sort of unrestricted discretion to refuse
performance, as contemplated by Benson.98 According to Cockrell, South African courts
presently have a “freewheeling discretion”99 to refuse the remedy. One of the key
problems that will be addressed is whether such a liberal approach regarding the
availability of this remedy is sustainable. The attention will now turn to some of the
typical factors that have been regarded as relevant in refusing specific performance.
The purpose is to illustrate the difficulties associated with deciding what status to accord
these factors (or grounds of justification) and to underline the problems which arose in
our law due to the fact that the general (Roman-Dutch) principle of the aggrieved party’s
right to choose specific performance was qualified by the adoption of the (English)
principle of the judicial discretion to refuse the remedy on certain grounds. These
factors include the adequacy of damages as compensation (or the ready availability of a
substitute performance), the rendering of personal services, the difficulty of supervising
95
Hutchison & Pretorius (eds) The Law of Contract in South Africa 321. See also Beck 1987
CILSA 196 ff; Cockrell “Breach of contract” in Zimmermann & Visser Southern Cross 326-
327.
96
See para 3 3 below.
97
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) 785F-G.
98
Cockrell “Breach of contract” in Zimmermann & Visser Southern Cross 330.
99
330. Smith (“Specific implement” in Reid & Zimmermann (eds) A History of Private Law in
Scotland II 209), describes it as being “untrammelled by rules”.
22
the execution of the order, and the situation where the order would cause undue
hardship.100
1 1 3 1 Adequacy of damages
Specific performance has been denied in situations where money would adequately
compensate the plaintiff for his loss, for example, where the item could be easily
repurchased on the open market.101 In Thompson v Pullinger,102 Kotzé CJ, after
reviewing some of the Roman-Dutch authorities, came to the conclusion that “the right
of a plaintiff to specific performance of a contract, where the defendant is in a position to
do so, is beyond doubt”.103 However, in the same judgment Kotzé CJ noted that specific
performance should not be granted in the case of shares in companies which can daily
be obtained on the market without difficulty.104
However, the “adequacy of damages” rule was rejected in Benson.105 It follows that the
adequacy of monetary damages does not constitute an independent ground on which
courts will refuse an order for specific performance. The possibility that this should be
the case only in certain instances, for example, where performance would result in
wastage or loss, will be investigated. The possible influence of equity becomes relevant
in this regard. The question arises whether South African law should benefit from
refusing an order for specific performance when it would cause severe loss that could
be prevented by awarding damages instead. The so-called “appropriateness” of the
remedy, as a factor by which courts can be guided, for example, where a buyer has no
interest in the performance since the contract depended on the timely delivery of the
100
These grounds of justification form the chapter headings of this thesis.
101
See generally P Gross “Specific performance of contracts in South Africa” (1934) 51 SALJ
347 357-358, and Beck 1987 CILSA 196.
102
(1894) 1 OR 298.
103
301.
104
See dictum quoted in text to n 164 para 3 3 below.
105
See further text to nn 170 ff para 3 3 below.
23
goods and he concluded another contract for the same goods and late delivery will
result in wastage, is considered throughout the thesis.106
1 1 3 2 Personal service contracts
A contract involving personal service,107 for example, a contract of employment, has

rarely been specifically enforced by South African courts.108 The position is especially
complicated in the case where an employer seeks an order for specific performance
against his employee,109 because the personal freedom of the employee is
106
See esp paras 1 2, 3 2, 3 4 1, 5 2 below. For traces of “appropriateness” reasoning in
South African case law, see South African Harness Works v South African Publishers Ltd
1915 CPD 43; Unibank Savings and Loans Ltd (formerly Community Bank) v Absa Bank
Ltd 2000 (4) SA 191 (W); Morettino v Italian Design Experience CC [2000] 4 All SA 158
(W); Waterval Joint Venture Property Co (Pty) Ltd v City of Johannesburg Metropolitan
Municipality [2008] 2 All SA 700 (W). See also in this regard Van der Merwe et al
Contract: General Principles 330: “The court’s discretion to refuse specific performance is
regarded as a judicial discretion which, although it should be as unfettered as possible,
must be exercised in accordance with public policy and in such a manner that it does not
bring about an unjust result, for instance if the granting of an order for specific
performance would result in wasting a performance.”
107
A personal service contract can assume various forms; in the present thesis a distinction
will be drawn between employment contracts and other service contracts. The latter
category comprises non-employment contracts, such as agreements to perform a specific
service that does not entail a continuous personal relationship. See further para 4 2 2
below.
108
See para 4 2 1 below.
109
In National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T) it was
held that, in principle, an employee is entitled to specific performance, although there may
be factors which could influence a court to refuse such an order (see further para 4 2 1 1
below).
24
implicated.110 Our courts in the past would never specifically enforce an employment
contract by ordering an employee to work for an employer because this would constitute
forced labour.111 Breaches of this kind were rather compensated by damages.
In the landmark decision of Santos Professional Football Club (Pty) Ltd v Igesund,112
the court for the first time ordered specific performance of an obligation to work against
an employee.113 The Full Bench thereby distanced itself from the view held by many
South African commentators and case law that specific performance of an obligation to
work should generally not be granted against an employee.114 There were however,
special circumstances that swayed the court in favour of granting specific
performance.115
This case also persuaded other South African courts to prohibit employees from working
for other employers for the remainder of their contracts.116 Decisions like Igesund give
rise to a number of difficulties. For example, the Full Bench failed to consider fully the
court a quo’s argument that one of the “[c]ompelling reasons not to enforce specific
performance on the part of an employee [was] a disapproval of forced labour”.117 It also
110
Van der Merwe et al Contract: General Principles 331: “It might even be regarded as
forced labour.”
111
See in particular Troskie v Van der Walt 1994 (3) SA 545 (O) discussed fully in para 4 2 1
2 below.
112
2003 (5) SA 73 (C).
113
The Full Bench decision and its implications are discussed fully in para 4 2 1 2 below.
114
See R H Christie & G B Bradfield Christie’s The Law Of Contract in South Africa 6 ed
(2011) 550; A J Kerr The Principles of the Law of Contract 6 ed (2002) 680-681, and the
valuable contribution by T Naudé “Specific performance against an employee: Santos
Professional Football Club (Pty) Ltd v Igesund” 2003 SALJ 269.
115
2003 (5) SA 73 (C) 79; and see Van der Merwe et al Contract: General Principles 331-
332.
116
See further paras 4 2 1 2 & 4 8 4 below.
117
Santos Professional Football Club (Pty) Ltd v Igesund 2002 (5) SA 697 (C) 701C per
Desai J.
25
did not attach much weight to the coach’s argument that the move to a different club
would enable him to relocate and reunite with his family. Instead it focused on the
commercial reasons for his repudiation and the cynical nature of the breach.118
However, it has been argued that courts should refuse specific performance in such a
case, on the basis that it would cause unfair hardship to the employee.119 It is submitted
that these views require further consideration and analyisis.120 In this regard, the thesis
develops themes raised by Naudé and Lubbe in particular.
1 1 3 3 Supervision of performance
In many instances, specific performance is denied where courts would be unduly

burdened with the task of supervising the performance.121 South African courts have
been reluctant to grant specific performance in respect of obligations arising from
mandate and contracts for services, for example, where a builder has undertaken to
build/alter/repair a house or where a lessor is bound to repair the leased property (i.e.
obligationes faciendi).122
The lessor’s obligation to afford the lessee commodus usus123 of the leased property
during the full term of the lease is the classic example referred to in this context. Where
a lessor’s breach has taken the form of a failure to maintain the leased property in a
proper condition, the courts have often refused to order the lessor to effect the
necessary repairs, the reason being that courts would be unduly burdened with the task
of supervising the performance. The refusal was often justified on the ground that a
lessee is allowed to effect the necessary repairs himself (after an unsuccessful demand
to the lessor), and then claim the expense from the lessor or deduct it from the rental.
118
See text to n 192 para 3 3 & text to n 99 para 4 2 1 2 below.
119
See for further discussion para 4 2 1 2 below.
120
These and other themes are dealt with fully below in ch 4.
121
See generally para 5 1 below.
122
123
See n 13 para 5 1 below.
26
For the same reason, our courts have also been reluctant to specifically enforce building
contracts.
However, and predictably, this view has attracted severe criticism.124 The primary basis
of the criticism is that, in most cases, it is not necessary for the court itself to supervise
the work. If the lessor (or the builder by way of analogy) has been ordered to effect
repairs and fails to do so, the lessee may once again approach the court for relief, and
any court then has the power to deal with such a reluctant defendant. Also, lessees
often do not have the skills or financial means to effect the repairs themselves.125 These
criticisms touch on more perplexing problems relating to the notion of contract (since we
maintain that the contract binds the debtor to the promised performance) which this
study proposes to explore.126
1 1 3 4 Undue hardship
It is settled law that South African courts will refuse to order specific performance where
it would cause undue hardship to the defaulting party or to third parties.127 This principle
was confirmed in the leading case of Haynes v Kingwilliamstown Municipality.128 Here
the court’s discretion to refuse the remedy in cases of hardship was derived from the
fact that the English courts of chancery refused the remedy where equitable notions
prevailed.129 In this case the hardship was mostly to third parties and as such the
consideration was very much an equitable one.130 De Villiers AJA emphasised the
unbound nature of the court’s discretion131 and pointed out that it is open to a judge ex
124
See para 5 1 below.
125
See especially in this regard the discussion of Mpange v Sithole 2007 (6) SA 578 (W) in
para 5 5 below.
126
This factor is dealt with in detail in ch 5 below. See esp text to n 25 para 5 1 below.
127
Hutchison & Pretorius (eds) The Law of Contract in South Africa 321.
128
1951 (2) SA 371 (A). This decision is discussed fully in ch 6 below.
129
130
131
Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) 378G.
27
aequo et bono to consider the effect of its order at the time of performance.132 Thus
some time ago Beck observed that “[i]t is interesting to see that the basis for the
exercise of the discretion is described as ex aequo et bono; this seems to be no
different from the workings of a court in equity”.133
It is immediately apparent that the court refrained from engaging in a process of

substantive reasoning regarding the considerations relevant to the exercise of its
discretion.134 This has consistently been the view of our courts.135 However, authors
such as Lubbe and Cockrell, convincingly argue that considerations of fairness and
legal policy are the same considerations that underlie and inform the substance of legal
doctrine.136 The implication is that the law regarding specific performance of contracts
cannot be separated from the broader debate regarding the relevance of substantive
considerations of fairness and reasonableness and other policy considerations. Again, it
is submitted that these views require further reflection.137 In this regard, the thesis
develops themes raised by Lubbe and Cockrell in particular.
132
381A.
133
Beck 1987 CILSA 190 198.
134
See Lambiris Orders of Specific Performance and Restitutio in Integrum in South African
Law 12; Lubbe “Daadwerklike vervulling in die Suid-Afrikaanse reg: die implikasies van die
uitoefening van die regterlike diskresie” in Smits & Lubbe (eds) Remedies in Zuid-Afrika
en Europa 57 ff; “Contractual derogation and the discretion to refuse an order for specific
Law: National and Other Perspectives 98, 99, 111; Benson v SA Mutual Life Assurance
Society 1986 (1) SA 776 (A) 784C-785E; and see text to nn 347-348 para 4 8 3 below.
135
See para 4 8 3 (esp n 354) & para 7 1 (esp n 9) below.
136
Law: National and Other Perspectives 109; Cockrell “Breach of contract” in Zimmermann
& Visser (eds) Southern Cross 333.
137
See esp paras 4 8, 6 5 & para 7 1 below.
28
114 Execution of orders for specific performance and the possibility of

claiming damages in lieu of performance
A judgment ordering a debtor to perform in accordance with the contract is not of much
use to the creditor unless the legal system provides the means to make it effective.
Accordingly we will briefly turn to the question how South African law enforces such a
judgment.
In Roman-Dutch law an order for specific performance was enforceable by depriving the
debtor of his liberty in the practice of civil imprisonment (“burgerlike gyseling”).138 Civil
imprisonment of a debtor for failure to comply with a court order has, however, been
abolished in South Africa by statute.139 An order for specific performance is presently
executed in accordance with the ordinary rules of procedure.140 In modern court practice
an order ad pecuniam solvendam (to pay a sum of money) will be enforced by
attachment of the debtor’s property and subsequent sale in execution.141 A debtor who
refuses to comply with an order ad factum praestandum (to perform an act or refrain
from performing an act) may be guilty of contempt of court.142 In certain cases the court
may directly enforce the order by instructing a third party (usually an official) to make
138
40-41.
139
See s 1 of The Abolition of Civil Imprisonment Act 2 of 1977; and see Joubert General
Principles of the Law of Contract 227; Van der Merwe et al Contract: General Principles
332.
140
A C Cilliers et al Herbstein & Van Winsen The Civil Practice of the High Courts and the
Supreme Court of Appeal of South Africa II 5 ed (2009) 1022-1023; Hutchison & Pretorius
(eds) The Law of Contract in South Africa 324.
141
De Wet & Van Wyk Kontraktereg en Handelsreg 214; Joubert General Principles of the
Law of Contract 227; Cilliers et al Herbstein & Van Winsen The Civil Practice of the High
Courts and the Supreme Court of Appeal of South Africa II 1022, 1053 ff.
142
Cockrell “Breach of contract” in Zimmermann & Visser (eds) Southern Cross 331; Cilliers
et al Herbstein & Van Winsen The Civil Practice of the High Courts and the Supreme
Court of Appeal of South Africa II 1023, 1097 ff.
29
performance to the creditor. For example, the sheriff might be instructed to seize
movable property of the debtor and deliver it to the creditor; or the registrar of deeds
might be instructed to sign the documents necessary to effect transfer of immovable
property to the creditor; or where property is in the possession of a third party, such
third party might be instructed to deliver it to the creditor.143
The enforcement of an order for payment of a sum of money seems to be less

problematic, except, of course, “if no assets can be found for attachment”.144 The
enforcement of obligations to do or refrain from doing something, on the other hand
seems to be more challenging. These obligations can be enforced,145 but the
effectiveness of the enforcement measures in practice in respect of these obligations is
disputed. The process of enforcement of an obligation to perform might involve
substantial expense and result in unsatisfactory outcomes and often direct enforcement
(as described above) of such an order is not possible, for example, where a debtor must
render a service.146 Considerations such as the human free will and autonomy militate
against direct enforcement of such obligations.147 Therefore, indirect measures must be
employed under such circumstances. In such cases compliance would depend on the
threat of other measures, for example, the prospect of being held in contempt of court if
the debtor fails to perform the act.148
143
Hutchison & Pretorius (eds) The Law of Contract in South Africa 322; Cilliers et al
Herbstein & Van Winsen The Civil Practice of the High Courts and the Supreme Court of
Appeal of South Africa II 1023.
144
Van der Merwe et al Contract: General Principles 333.
145
The most famous example of the enforcement of an obligatio faciendi is probably National
Butchery Co v African Merchants Ltd (1907) 21 EDC 57, discussed in para 4 2 2 below.
See also De Wet & Van Wyk Kontraktereg en Handelsreg 211, and para 7 2 1 (esp n 25)
below.
146
147
For further discussion, see ch 4 below.
148
30
In South Africa there is no reason to assert that the creditor must be content with
damages in case of non-compliance with a court order to perform or refrain from
performing an act. The wilful refusal to comply with a court order renders the debtor
liable to criminal prosecution for contempt of court; a circumstance which indirectly
prompts the debtor to perform.149 As indicated, civil imprisonment as an indirect method
of enforcement is no longer possible.150 Another possible indirect enforcement measure
is the imposition of a penalty sum. Although this measure has been applied by South
African courts, it seems that it is not favoured in practice.151 The question that arises is
how far the claim for specific performance as a matter of right is of practical value when
it comes to the execution of such a judgment.
South African courts have often been confronted with the problem of whether a claim for
payment as a surrogate for specific performance could perhaps be an adequate
alternative to specific performance.152 As this topic is beyond the scope of the research
question, it will not be treated as a whole, but the matter deserves some attention. De
Wet and Van Wyk argue that performance does not have to be specific performance of
the exact terms agreed upon by the parties, but can also take the form of payment of
damages as a surrogate for performance. They argue that the party who is in breach
should be permitted to pay the objective value of performance, instead of rendering the
performance itself.153 Thus, where the plaintiff elects to claim damages in lieu of specific
149
Lubbe & Murray Contract 542.
150
See text to n 139 above.
151
De Wet & Van Wyk Kontraktereg en Handelsreg 214.
152
The literature on this debate is vast. A recent valuable and insightful addition is S P Stuart-
Steer “Reconsidering an understanding of damages as a surrogate of specific
performance in South African law of contract” 2013 Responsa Meridiana 65-97.
153
De Wet & Van Wyk Kontraktereg en Handelsreg 196: “In plaas van die werklike prestasie
kan die waarde daarvan geëis word as surrogaat daarvan.” See further Lubbe & Murray
Contract 541; Van der Merwe et al Contract: General Principles 328-329; Stuart-Steer
2013 Responsa Meridiana 68 ff.
31
performance his claim is not for his id quod interest, ascertained in the ordinary way.154
According to Lubbe and Murray “[t]his would not be damages in the ordinary sense at
all, but amount to specific performance in another form”.155
In ISEP Structural Engineering and Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd,156
the majority of the court held that a claim for damages as surrogate for performance
does not exist as an independent remedy in South African law as an alternative to
specific performance, and that where specific performance is refused, the innocent
party is restricted to an ordinary claim for contractual damages.157 This decision has
been severely criticised.158
Ten years later, the Appellate Division in Deloitte Haskins & Sells Consultants (Pty) Ltd
v Bowthorpe Hellerman Deutsch (Pty) Ltd159 ignored the entire debate; Van Heerden JA
simply remarked that “it is trite law that, even if a party to a contract is entitled to resile
because of the other party’s failure to perform, he is not obliged to do so. He may
instead claim performance, either in forma specifica (subject to the Court’s discretion) or
by way of damages in lieu of performance”, which reflects De Wet’s view.160
154
Receiving compensatory damages for non-performance is not the same as receiving
performance. Therefore, a claim for damages as compensation for (provable) loss
suffered as a result of non-performance would still be available. See Stuart-Steer 2013
Responsa Meridiana 67-68; and see De Wet Kontraktereg en Handelsreg 196.
155
Lubbe & Murray Contract 538. See also Joubert General Principles of the Law of Contract
228: “The plaintiff merely seeks performance by way of its monetary equivalent. Until such
time as the court has made its ward the defendant should be able to disarm this claim by
rendering specific performance.”
156
1981 (4) SA 1 (A).
157
7B-9F.
158
See Mostert v Old Mutual Life Assurance Co (SA) Ltd 2001 (4) SA 159 (SCA) 186E-F. In
addition to the authorities cited there by the court, see Stuart-Steer 2013 Responsa
Meridiana 66 ff.
159
1991 (1) SA 525 (A).
160
530E.
32
Interestingly, the judge cites Farmers’ Co-operative Society (Reg) v Berry161 as a source
of authority, even though this decision and the cited passage merely confirms the
current law, i.e. that the election is with the plaintiff creditor to demand specific
performance from the debtor, subject to the discretion of the court to refuse the remedy
in favour of “an award of damages” – which can only be construed as being for
contractual damages.
In light of the debate which ensued after Isep, the Supreme Court of Appeal suggested
in Mostert v Old Mutual Life Assurance Co (SA) Ltd162 that the issue of damages as
surrogate for performance as independent remedy may be reconsidered.163 However,
the position on surrogate damages remains unclear in our law. Eiselen recently
remarked that “it is worth considering whether there is really any justification for the
existence of such an independent claim in our law of contract”.164 Both the Supreme
Court of Appeal’s call for the reconsideration of the issue and recent academic
awareness suggest that there may be room for the development of this remedy in the
future.165 However, these developments are not considered relevant for purposes of the
present study problem.
161
1912 AD 343 350.
162
2001 (4) SA 159 (SCA).
163
186E-F per Smalberger ADCJ: “it should be noted that the decision has been subjected to
severe criticism (see De Wet and Van Wyk Die Suid-Afrikaanse Kontraktereg en
Handelsreg 5th ed at 212; Joubert (ed) The Law of South Africa 1st reissue vol 7 para 45;
Oelofse 1982 Tydskrif vir die Suid-Afrikaanse Reg 61 especially at 63-5; Van Immerzeel &
Pohl and Another v Samancor Ltd 2001 CLR 32 (SCA) at 45-46 – the relevant part has
been left out of the report at 2001 (2) SA 90 (SCA) at 96F-G) and its correctness is open
to doubt. Reconsideration of the majority decision is called for.”
164
“Remedies for breach” in Hutchison & Pretorius (eds) The Law of Contract in South Africa
316.
165
See further Stuart-Steer 2013 Responsa Meridiana 94-97, and the recent decision by the
South Gauteng High Court in Sandown Travel (Pty) Ltd v Cricket South Africa 2013 (2) SA
502 (GSJ).
33
1 2 Purpose, motivation and significance of the study
The aim of this study is to evaluate the South African law regulating the exercise of
judicial discretion to refuse specific performance, paying special attention to more
recent developments in a number of foreign jurisdictions and international instruments.
Where appropriate, reference will also be made to recent historical studies.
As indicated above, the rules and principles pertaining to this remedy are in many
respects uncertain. The purpose of this study will be to explore possible solutions to this
problem using comparative analysis – mainly looking at German and Dutch (civil) law in
contrast to English and American (common) law. In this regard, the study proposes to
consolidate and develop the different opinions and ideas that have been expressed by
local and international commentators.
According to Cockrell we cannot conclude that specific performance is the most

appropriate remedy simply because a contract is binding.166 Contracts generally seek to
give expression to the will of the contracting parties; specific performance could
undermine this ideal, inasmuch as it forces a party to perform against his will.
Furthermore, considerations such as economic efficiency, justice and fairness could
militate against making specific performance the routine remedy for breach of contract.
These considerations could in fact favour monetary damages as a more appropriate
remedy.167 The objectives of this research are to determine whether specific
performance should be the routine remedy for breach of contract in South African law,
and if so, how the courts’ approach regarding the availability of the remedy can be
improved, particularly with regard to the manner in which the courts exercise their
discretion. The possibility will be explored whether a more concrete approach, with
166
167
331. See further for reasons why damages is the preferred remedy in common law,
Burrows Remedies for Torts and Breach of Contract 472-475; J Beatson et al Anson’s
Law of Contract 29 ed (2010) 576; E Peel Treitel’s Law of Contract 13 ed (2011) 1099;
Beale et al (eds) Chitty on Contracts 1905-1906.
34
clearly identified principles to guide courts in the exercise of their discretion, could
provide a more effective solution.168 Alternatively, there is the possibility that the
discretion should be done away with in its entirety and that courts should accept certain
defined exceptions to the right to specific performance.169
While certain academic articles and chapters have been written about the topic,170 it is
submitted (as indicated earlier) that it requires further attention, especially with regard to
the manner in which the courts exercise their discretion and the major factors that are
relevant to the exercise of the courts’ discretion to refuse an order for specific
performance. Existing works on this particular topic include Lambiris’s Orders of
Specific Performance and Restitutio in Integrum in South African Law, which presents a
structured explanation of the nature, purpose and function of specific performance in
South African law. However, this work does not take into account recent international
developments, such as the innovative solutions adopted in international instruments,
and is therefore outdated in many respects. More noteworthy is the doctoral thesis of
Oosterhuis entitled Specific Performance in German, French and Dutch Law in the
Nineteenth Century: Remedies in an Age of Fundamental Rights and Industrialisation.
The author concentrates on the limitations to the right of specific performance and
whether they are justified and thus provides us with foreign research on the topic, which
is useful when considering the same problems in the South African context. The primary
motivation behind the present study is the recognition that there is a significant volume
of international research on the identified problems which has not recently been
subjected to local analysis.171 It is clear that recent international and historical research
contains fresh insights on the identified problems, and could therefore benefit the
168
169
170
See in particular Lubbe “Contractual Derogation and the Discretion to refuse an order for
Specific Performance in South African Law” in J M Smits et al Specific Performance in
Contract law: National and Other Perspectives (2008).
171
See eg M Smits Efficient Breach and the Enforcement of Specific Performance LLM thesis
Amsterdam Law School (2014).
35
development of our law. It is submitted that these developments necessitate the

reconsideration of the South African position.
1 3 Chapter analysis
Chapter 2 begins by laying out the theoretical dimensions of the research further, and
looks at the historical development of the remedy and how different legal systems and
model instruments approach the remedy. Chapters 3 to 6 describe and evaluate, from a
comparative perspective, the different considerations that could be regarded as relevant
in exercising the courts’ discretion to refuse specific performance. The last chapter
summarises and comments on the findings from the research, and contains suggestions
for the improvement and reform of the South African law governing specific
performance of contracts.
36
CHAPTER 2: HISTORICAL AND COMPARATIVE BACKGROUND
2 1 Introduction
The purpose of this chapter is to provide a historical and comparative overview of the
remedy of specific performance, which will serve as a backdrop to more detailed
comparative observations in subsequent chapters. The treatment of the historical
origins of the remedy will be limited, since the subject has been extensively
researched.1 The comparative overview will first focus on the common law, represented
by English and American law, and the civil law, represented by German and Dutch law,
as these jurisdictions are considered to be accurate examples or reflections of the two
legal traditions. Thereafter it will move to certain international instruments. The issue of
contractual remedies, especially specific performance, has been of great significance in
the unification of contract law. Various international instruments of uniform contract law
contain provisions granting the creditor a substantive right to specific performance. For
that reason, attention will be paid to some of the most prominent of these instruments,
namely the United Nations Convention on Contracts for the International Sale of Goods,
the International Institute for the Unification of Private Law’s (UNIDROIT) Principles of
International Commercial Contracts, the Principles of European Contract Law, the Draft
Common Frame of Reference, and the Common European Sales Law. It is submitted
that a meaningful evaluative analysis of the availability of the remedy of specific
performance in national legal systems cannot be conducted without having regard to
international developments in this area of the law. Furthermore, the examination of
1
See in particular the doctoral thesis of J Oosterhuis Specific Performance: German,
French and Dutch Law in the Nineteenth Century Vrije University Amsterdam (2011). See
also J W Wessels History of the Roman-Dutch Law (1908) 612 ff; P Gross “Specific
performance of contracts in South Africa” (1934) 51 SALJ 347; J J du Plessis “Spesifieke
nakoming: ‘n regshistoriese herwaardering” (1988) 51 THRHR 349; M A Lambiris Orders
of Specific Performance and Restitutio in Integrum in South African Law (1989) 27 ff, and
J Hallebeek & H Dondorp (eds) The Right to Specific Performance: The Historical
Development (2010).
37
these uniform regulations may reveal gaps and deficiencies in the approaches adopted
by the different national legal systems and may provide insightful solutions to improve
applicable rules. These instruments may also serve to demonstrate how a successful
synthesis of diverging principles can be achieved, and potentially provide valuable
guidance for the future development of South African law.
2 2 Historical development
2 2 1 Specific performance of contracts in Roman law
During the pre-classical (legis actiones) period a variety of new agreements were
recognised as creating legally enforceable contractual obligations. Also, the type of
obligation which was considered to be legally enforceable was expanded.2 This
development caused administrative difficulties, especially with regard to the
enforcement of these obligations. The judicial administration depended on a single
jurisdictional magistrate (praetor), who was assisted by lay judges (iudices).3 Because
judicial and administrative resources were limited, judgments were executed by way of
manus iniectio,4 being the standard form of execution in early Roman law enforced by
the aggrieved party himself, i.e. a form of legal or regulated self-help, which inherently
led to more complications.5
2
See J A C Thomas Textbook of Roman Law (1976) 259; H F Jolowicz & B Nicholas
Historical Introduction to the Study of Roman Law 3 ed (1972) 279 ff; M Kaser Roman
Private Law (tr R Dannenbring) 3 ed (1980) 176; R Zimmermann The Law of Obligations:
Roman Foundations of the Civilian Tradition (1990) 546-549.
3
See Jolowicz & Nicholas Historical Introduction to the Study of Roman Law 48.
4
Law 30.
5
Although the threat of physical seizure and private imprisonment was effective to prompt
performance (i.e. as an indirect form of execution) it was still a serious and harsh
measure, which often proved to be ineffective if the judgment debtor had no means to
satisfy his debt and someone else also did not come forward to perform on his behalf.
38
The difficulties imposed by the limited judicial and administrative resources of the
Roman state and the legis actiones system in general,6 were eventually surmounted by
the practice during the formulary period, used from the last century of the Republic until
the end of the classical period, through which every order of a iudex was expressed as
an order to pay money (condemnatio pecunaria).7 Thus, the aggrieved party could only
claim the economic value of the debtor’s performance. However, because such an order
required payment of a sum of money, a relatively scarce commodity during the
formulary period, the defaulting party often elected to specifically perform his obligations
prior to litigation. This indirectly encouraged the discharge of obligations by way of
voluntary specific performance. Even so, specific performance was not recognised as a
remedy the courts could award. The rights of an aggrieved party were confined to a
claim for damages. However, it has been suggested that this indicates that specific
performance was considered to be “the most natural and satisfactory way of discharging
contractual obligations” even in classical Roman law.8
See further Lambiris Orders of Specific Performance and Restitutio in Integrum in South
African Law 30, and P du Plessis Borkowski’s Textbook on Roman Law 4 ed (2010) 70-
72.
6
“The faults in the legis actiones system – its excessive formality, archaic nature, and
limited effectiveness – made it unsuitable in the long term for a rapidly expanding,
economically vibrant Rome…” (Borkowski’s Textbook on Roman Law 72).
7
See Gaius Institutiones 4 48 & 49: “The condemnatio, in all formulae containing one, is
framed in terms of valuation in money. Accordingly, even where the suit is for a corporeal
thing, such as land, a slave, a garment, gold or silver, the iudex condemns the defendant
not in the actual thing … but in the amount of money at which he values it. The
condemnatio in a formula may be in terms of a definite or in an indefinite sum of money”
(tr Poste). See further T Weir “Contracts in Rome and England” (1992) 66 Tulane LR 1615
1623.
8
See further Lambiris Orders of Specific Performance and Restitutio in Integrum in South
African Law 31-32.
39
In discussing classical Roman law, the Roman-Dutch jurist, Voet stated that “a seller
cannot be absolutely forced into delivery of a thing sold, but is freed by making good the
damages”.9 On his version, classical Roman law did not provide methods whereby a
defaulting party could be compelled to perform, and if it were allowed, it would amount
to expropriation. Even though Voet is not considered to provide a reliable account of
classical Roman law,10 his view in this regard seems to be accurate.
This position was departed from in post-classical law, when the formulary system was
replaced by cognitio extraordinaria. This meant that litigation took place in a single
proceeding before a magistrate or his deputy.11 Accordingly, the condemnatio pecunaria
was no longer ordered in all cases and the courts often permitted real execution in
cases involving obligations to give or transfer ownership (dare).12 However, it seems
that specific performance was still not regarded as being generally available and
appropriate in cases of breach of contract,13 certainly not in respect of obligations to do
(facere). Instead, the party in breach could discharge his contractual obligations by
paying id quod interest. The rationale for this position was the principle nemo praecise
9
Commentarius ad Pandectas 19 1 14 (tr Gane); see also 45 1 8.
10
Beinart describes his arguments as being “rather specious”. In his opinion, the Dutch
Romanists “had no real information about the change from the classical position, and
could not know that the classical system only allowed judgment in money” (B Beinart
“Roman law in South African practice” (1952) 69 SALJ 145 158).
11
Thomas Textbook of Roman Law 119.
12
J P Dawson “Specific performance in France and Germany” (1959) 57 Mich LR 495 504;
W W Buckland A Text-Book of Roman Law from Augustus to Justinian 3 rev ed (1963)
669; Oosterhuis Specific Performance: German, French and Dutch Law in the Nineteenth
Century 27.
13
Law 33-35; Beinart 1952 SALJ 158.
40
cogi ad factum (“nobody can be compelled to perform an obligation to do”, as opposed

to an obligation to give).14
2 2 2 Specific performance of contracts in Roman-Dutch law
The availability of the remedy in Roman-Dutch law has always been a subject of dispute
among the Roman-Dutch jurists.15 According to Wessels, there were two schools of
thought.16 Schorer, in his Aanteekeningen, remarked that “[t]his warmly discussed
14
The origin of this maxim can be traced to the works of medieval jurists, for example,
Baldus’ commentary on C 4 49 4 during the fourteenth century (see eg Dawson 1959 Mich
LR 504, and Oosterhuis Specific Performance: German, French and Dutch Law in the
Nineteenth Century 32). But some scholars maintain that this maxim was only phrased in
this manner at the beginning of the seventeenth century by the French jurist, Antoine
Favre in his Rationalia in Pandectas II ad D 8 5 6 2 (1659) 248 (see eg J Hallebeek “Direct
enforcement of obligations to do: two local manifestations of the ius commune” in M
Gubbels & C J H Jansen (eds) Regio: Rechtshistorische Opstellen Aangeboden aan dr.
P.P.J.L. van Peteghem (2010) 33 34; “Specific performance in obligations to do according
to early modern Spanish doctrine” in Hallebeek & Dondorp (eds) The Right to Specific
Performance: The Historical Development 57, and H Dondorp “Precise cogi: enforcing
specific performance in medieval legal scholarship” in Hallebeek & Dondorp (eds) The
Right to Specific Performance: The Historical Development 21).
15
See eg J W Wessels History of the Roman-Dutch Law (1908) 612 ff; R W Lee An
Introduction to Roman-Dutch Law 5 ed (1953) 266; Du Plessis 1988 THRHR 357; J
Hallebeek & T Merkel “Simon Groenewegen van der Made on the enforcement of
obligationes faciendi” in J Hallebeek & H Dondorp (eds) The Right to Specific
Performance: The Historical Development (2010) 81 ff. It is important to note that the
dispute related to the performance of contracts ad faciendum (to perform), as the writers
were in agreement that contracts ad dandum (to deliver/transfer), could be specifically
enforced (see Grotius Inleidinge tot de Hollandsche Rechtsgeleerdheid 3 15 6 & 3 2 14;
Huber Heedensdaegse Rechtsgeleertheyt 3 2 9 & 3 2 10; Neostadius Decisiones vonnis
50; Pothier Traité des Obligations sec 151).
16
History of the Roman-Dutch Law 612.
41
question has brought into collision two veteran jurists, Martinus and Bulgarus, to an
astonishing degree”.17 Martinus was of opinion that a person could be compelled to
perform an obligatio faciendi, and was supported by Cujacius and Zoesius in this
regard.18 Bulgarus, on the other hand, supported the classical Roman law position that
no one could be compelled to perform an obligation to do, and that a person could
always discharge this obligation by paying id quod interest.19 He was supported by
Donellus, who in turn, was supported by Grotius.20 However, in a note to Grotius’
Inleidinge, Groenewegen states that, according to the law of Holland at that time, a
person could not discharge his obligation by paying damages, but could be compelled
by civil imprisonment (burgerlike gijzeling) to fulfil what he had promised.21 He
emphasised that both obligations to give (dare) and to do (facere), could be specifically
enforced.22 Huber23 supported this view, while van der Keessel,24 Scheltinga,25 and
17
Schorer ad Gr 3 3 41 (tr Austen: 440 n 94).
18
See Gross 1934 SALJ 349.
19
See Oosterhuis Specific Performance: German, French and Dutch Law in the Nineteenth
Century 31.
20
Inleidinge tot de Hollandsche rechts-geleerdheid 3 3 41: “although by natural law a person
who has promised to do something is bound to do it, if it is in his power, he may
nevertheless by municipal law release himself by paying the other contracting party or
acceptor the value of his interest, or the penalty, if any has been agreed upon in default of
payment” (tr Maasdorp). However, Grotius departs from this view in 3 15 6, where he
states that if a vendor fails to deliver, the purchaser may demand delivery or damages at
his option – see Lee An Introduction to Roman-Dutch Law 266. See also Wessels History
of the Roman-Dutch Law 612; Gross 1934 SALJ 349.
21
Tractatus de Legibus Abrogatis ad Gr 3 3 41.
22
In Tractatus de Legibus Abrogatis ad D 42 1 13 1, he states: “Today in all obligations to
do something, the creditor who is in a position to act, can be compelled to act and he
cannot discharge himself by paying damages” (tr Beinart).
23
Praelectiones bk 3 tit 16. See also Huber’s Heedensdaegse Rechtsgeleerdheyt, in which
he states (3 2 9 & 3 2 10): “As soon as the parties have come to an agreement they
cannot recede from the sale; the seller must deliver the article sold and the purchaser
42
Schorer went so far as to say that a person was in fact bound to fulfil his obligation
according to the ius commune.26 Van Leeuwen27 and Van der Linden28 also endorsed
Groenewegen’s view. Voet,29 on the other hand, argued that the classical Roman law
position was the correct one. However, the views of Voet in this regard have been
interpreted to be a recommendation to return to Roman law and a statement of what the
position ought to be, rather than an account of the law practiced at that time.30 The view
of Groenewegen is considered to provide the most accurate account of the Roman-
Dutch position.31 This has been attributed to the fact that he introduced new sources
into the debate, for example Dutch judicial decisions,32 which other Roman-Dutch jurists
must pay the price, nor can the seller escape delivery and free himself by tendering the id
quod interest, even if he offered double the price” (tr Gane).
24
Theses Selectae 512 (tr Lorenz) citing Neostadius Decisiones vonnis 50 (tr Van Nispen).
25
Dictata ad Gr 3 3 41 (tr De Vos & Visagie).
26
See Wessels History of Roman-Dutch Law 614-615; Gross 1934 SALJ 350; I C Steyn
Gijzeling: the historical development of the mode of proceeding in “gijzeling” in the
provincial court of Holland from 1531 (1939) 30-31; Lee An Introduction to Roman-Dutch
Law 269.
27
Het Roomsch Hollandsch Recht 4 2 13 (tr Kotzé).
28
Koopmans Handboek 1 14 7.
29
Commentarius ad Pandectas 19 1 14.
30
See Wessels History of Roman-Dutch Law 618; R Zimmermann “Roman-Dutch
jurisprudence and its contribution to European private law” (1992) 66 Tulane LR 1685
1700; Lambiris Orders of Specific Performance and Restitutio in Integrum in South African
Law 36.
31
See H Dondorp “Decreeing specific performance: a Roman-Dutch legacy” (2010) 16(1)
Fundamina 40 46.
32
For example Neostadius Decisiones vonnis 50 (tr Van Nispen). See Hallebeek & Merkel
“Simon Groenewegen van der Made on the enforcement of obligationes faciendi” in
Hallebeek & Dondorp (eds) The Right to Specific Performance: The Historical
Development 89.
43
such as Grotius and Voet neglected to consider.33 Therefore, it seems settled that
specific performance of contracts was in fact possible in Roman-Dutch practice and that
compliance with such orders could be achieved by way of civil imprisonment.34 The
rationale for this position was that a debtor who agreed to perform an obligation could
not discharge himself by paying damages.35 This is in accord with the foundational
principle of pacta sunt servanda. This principle was developed by the canon lawyers36
who believed that a well-regulated society was only possible if agreements were
honoured, and in the end all informal consensual agreements (nuda pacta) were
generally considered to be enforceable according to the maxim of ex nudo pacto oritur
actio.37
33
Hallebeek & Merkel “Simon Groenewegen van der Made on the enforcement of
obligationes faciendi” in Hallebeek & Dondorp (eds) The Right to Specific Performance:
The Historical Development 86-93.
34
After an extensive survey of this debate in Cohen v Shires, McHattie and King (1882) 1
SAR TS 41, Kotzé CJ concluded (at 45) that “[t]he Roman-Dutch law, therefore clearly
recognizes the right to a specific performance of a contract”. In Wheeldon v Moldenhauer
1910 EDL 97, Kotzé JP held (at 98) that the remedy of specific performance is “well
established in our Roman-Dutch law”. In Moffat v Touyz & Co 1918 EDL 316, Kotzé AJP
confirmed (at 319) that the power to decree specific performance of obligations to do as
well as obligations to give was clearly established by Roman-Dutch law. See also
Thompson v Pullinger (1894) 1 OR 301.
35
See Hallebeek & Merkel “Simon Groenewegen van der Made on the enforcement of
obligationes faciendi” in Hallebeek & Dondorp (eds) The Right to Specific Performance:
The Historical Development 94.
36
See A T von Mehren & J R Gordley The Civil Law System 2 ed (1977) 37; A Jeremy
“Pacta sunt servanda the influence of Canon Law upon the development of contractual
obligations” (2000) 144 Christian Law Review 4.
37
For a general account of this development, see Zimmermann The Law of Obligations 542-
544, 576-582; Von Mehren & Gordley The Civil Law System 18-38. See also Zimmermann
1992 Tulane LR 1689-1694; H Wehberg “Pacta sunt servanda” (1959) 53 American
Journal of International Law 775-786.
44
2 2 3 Reception of Roman-Dutch law in South Africa
The South African legal system is often described as a mixed legal system,38 i.e. a legal
system which exhibits characteristics of both the civilian and the English common law
traditions.39 This is attributed to the fact that South Africa’s legal tradition has been
shaped both in substance and in methodology by a fusion of influences deriving from
periods of Dutch and British Colonial occupation of the Cape of Good Hope.40 The
arrival of the Dutch East India Company in 1652 and the Dutch presence during the
seventeenth century at the Cape saw the introduction of the Roman-Dutch law of
Holland into the South African legal system.41 According to Zimmermann, the Roman-
Dutch law which was transplanted to the Cape derives from a unified European
intellectual tradition, and “what we usually refer to as usus modernus pandectarum [that]
existed not only in Germany but in the whole of Central and Western Europe”.42 This
38
See generally V V Palmer “Mixed legal systems” in M Bussani & U Mattei (eds) The
Cambridge Companion to Comparative Law (2012) 368 ff, and R Zimmermann “Mixed
legal systems” in J Basedow et al (eds) The Max Planck Encyclopedia of European
Private Law II (2012) 1179-1182.
39
See R Zimmermann & D Visser “Introduction: South African Law as a mixed legal system”
in R Zimmermann & D Visser (eds) Southern Cross: Civil Law and Common Law in South
Africa (1996) 12 ff.
40
See G F Lubbe “Ex Africa semper aliquid novi? – the Mixed Character of Contract Law in
the New South Africa” in J M Smits (ed) The Contribution of Mixed Legal Systems to
European Private Law (2001) 51 55.
41
For a detailed account of the reception of Roman-Dutch law in South Africa, see E Fagan
“Roman-Dutch law in its historical context” in Zimmermann & Visser (eds) Southern Cross
33 ff.
42
See R Zimmermann “Synthesis in South African private law: civil law, common law and
usus hodiernus pandectarum” (1986) 103 SALJ 259 269. See also R Zimmermann
“‘Double cross’: comparing Scots and South African law” in R Zimmermann, K Reid & D
Visser (eds) Mixed Legal Systems in Comparative Perspective: Property and
Obligations in Scotland and South Africa (2004) 1 4-5.
45
remained the case even after the establishment of British rule in 1806 and Roman-
Dutch law was retained as the common law.43 Therefore, South African law is most
often described as being essentially a Roman-Dutch system influenced by a
considerable amount of English law.44
Following the Roman-Dutch approach, modern South African law accepts that a party to
a contract has a right to specific performance thereof. This principle was recognised at a
very early stage of the development of South African law and is also well-documented.
For example, in Cohen v Shires, McHattie and King,45 Kotzé CJ stated that “by the well-
established practice of South Africa, agreeing with the Roman-Dutch law, suits for
specific performance are matters of daily occurrence”.46 In Thompson v Pullinger,47
Kotzé CJ, remarked that “the right of a plaintiff to specific performance of a contract,
where the defendant is in a position to do so, is beyond doubt”.48 Furthermore, the
43
This was confirmed by the First and Second Charters of Justice of 1827 and 1832. See H
J Erasmus “Roman law in South Africa today” (1989) 106 SALJ 666 667; Zimmermann
“‘Double cross’: comparing Scots and South African law” in Zimmermann et al (eds) Mixed
Legal Systems in Comparative Perspective 5.
44
Even though the British occupation did not result in the Roman-Dutch law being replaced,
it did introduce reform in the law of evidence, procedural law, and large parts of
commercial law. The structure of the courts and the legal profession were also reshaped
according to the British model (see F du Bois “Introduction: history, system and sources”
in C G van der Merwe & J E du Plessis (eds) Introduction to the Law of South Africa
(2004) 1 10 ff; and see K Reid & R Zimmermann “The development of legal doctrine in a
mixed system” in K Reid & R Zimmermann (eds) A History of Private Law in Scotland I:
Introduction and Property (2000) 1 4).
45
(1882) 1 SAR TS 41. See also Farmers’ Co-operative Society (Reg) v Berry 1912 AD 343
350 per Innes J (dictum in text to n 14 para 1 1 1 above); Moffat v Touyz & Co 1918 EDL
316; Woods v Walters 1921 AD 309.
46
(1882) 1 SAR 45.
47
(1894) 1 OR 298.
48
301.
46
courts often reaffirm the importance of this right.49 In the landmark decision of Benson v
SA Mutual Life Assurance Society,50 Hefer JA described it as being the “cornerstone of
our law relating to specific performance”.51 When examining the case law on this matter
it is also evident that attention is regularly refocused on the Roman-Dutch rule of
specific performance.52
2 3 Comparison: specific performance in selected national legal systems and

international instruments
2 3 1 Specific performance in modern civil law, exemplified by German law and

Dutch law
Unlike Roman law, modern civil-law systems recognise that a contractual obligation
entitles the creditor to claim performance in specie from the debtor.53 Indeed, it is a
basic principle of these systems that the debtor is obliged to perform his contractual
obligation(s) and in the case of non-performance, the creditor has the right to enforce
49
See Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A); Benson v SA Mutual
Life Assurance Society 1986 (1) SA 776 (A); and see G Lubbe “Contractual derogation
and the discretion to refuse an order for specific performance in South African Law” in J
Smits et al (eds) Specific Performance in Contract Law: National and Other Perspectives
(2008) 95 98-99.
50
1986 (1) SA 776 (A).
51
782I.
52
For more recent examples, see Santos Professional Football Club (Pty) Ltd v Igesund
2003 (5) SA 73 (C); Klimax Manufacturing Ltd v Van Rensburg 2005 (4) SA 445 (O);
Mpange v Sithole 2007 (6) SA 578 (W); Nationwide Airlines (Pty) Ltd v Roediger 2008 (1)
SA 293 (W); Vrystaat Cheetahs (Edms) Bpk v Mapoe (unreported judgment with case no
4587/2010 delivered on 29 Sep 2010 by the Free State Provincial Division of the High
Court per Van Zyl J (copy on file with author)); Botha v Rich NO 2014 (4) SA 124 (CC)
para [37].
53
See U A Mattei, T Ruskola & A Gidi Schlesinger’s Comparative Law: Cases, Text,
Materials 7 ed (2009) 879 ff.
47
this duty. Thus, in the civil law specific performance is considered to be the primary
remedy for breach of contract.54
German and Dutch law can be regarded as typical of the civil-law approach.55 The
German Civil Code or Bürgerliches Gesetzbuch (BGB) of 1900, of which the law of
obligations was partly revised in 2002, expressly grants the creditor a substantive right
to specific performance.56 Specific performance is also the primary remedy for breach of
contract under the Dutch Civil Code or Burgerlijk Wetboek (BW), even though no single
provision in the BW explicitly grants the creditor a substantive right to this remedy.57
2 3 1 1 Specific performance as the primary remedy in German law
A general revision of the German law of obligations entered into force on 1 January
2002,58 thereby replacing a complicated regime of statutory and judge-made rules.59
54
See A Cockrell “Breach of contract” in R Zimmermann & D Visser (eds) Southern Cross:
Civil Law and Common Law in South Africa (1996) 303 326; De Wet & Van Wyk
Kontraktereg en Handelsreg 209.
55
See C Szladits “The concept of specific performance in civil law” (1955) 4 Am J Comp L
208; G H Treitel “Remedies for breach of contract” in IECL VII ch 16 (1976) 6-16; K
Zweigert & H Kötz Introduction to Comparative Law (tr T Weir) 3 ed (1998) 472-479; H
Beale et al Cases, Materials and Text on Contract Law (2010) 840 ff; M Torsello
“Remedies for breach of contract” in J M Smits (ed) Elgar Encyclopedia of Comparative
Law 2 ed (2012) 754 761-763.
56
See § 241 BGB; see also D Haas “Searching for a basis of specific performance in the
Dutch Civil Code” in J Hallebeek & H Dondorp (eds) The Right to Specific Performance:
The Historical Development (2010) 167 172.
57
See Haas’s arguments in text to nn 103-104 para 2 3 1 2 below.
58
See generally for the background to the reform R Zimmermann The New German Law of
Obligations: Historical and Comparative Perspectives (2005) 30-35; H Schulte-Nölke The
New German Law of Obligations: An Introduction (available online at
<http://www.iuscomp.org/gla/literature/schulte-noelke.htm>); P Schlechtriem “The German
Act to Modernize the Law of Obligations in the context of Common Principles and
48
Generally, the reform was triggered by the necessity to implement the European
Consumer Sales Directive.60 The most notable feature of the revised BGB is the
establishment of a new system of rules regarding breach of contract.61 According to
Zimmermann, the reform attempted to and succeeded in streamlining and harmonising
general contract law and consumer contract law, and it effectively moved German
contract law closer to modern European views.62
The right to specific performance is traditionally the primary remedy of an aggrieved

party in German contract law, and this position has been reinforced by the reform.63
Parties to a contract are entitled as a matter of course to demand performance of their
respective obligations in specie.64 The right to specific performance is contained in
§ 241 of the BGB.65 The provisions of the German Civil Code and Code of Civil
Procedure referred to in this thesis are reproduced in the attached addendum.
Structures of the Law of Obligations in Europe” (2002) Oxford University Comparative Law
Forum 2; T M J Möllers “European Directives on civil law – shaping a new German Civil
Code” (2003) 18 Tulane European & Civil Law Forum 1.
59
See in detail Schlechtriem above.
60
See foreward to B Markesinis, H Unberath & A Johnston The German Law of Contract: A
Comparative Treatise 2 ed (2006) vii (by G Hirsch).
61
For a brief outline of changes brought about by the reform, see A Heldrich & G M Rehm
“Modernisation of the German law of obligations: harmonisation of civil law and common
law in the recent reform of the German Civil Code” in N Cohen & E McKendrick (eds)
Comparative Remedies for Breach of Contract (2005) 123 125-126.
62
See further Zimmermann The New German Law of Obligations 1-2.
63
See D Coester-Waltjen “The new approach to breach of contract in German law” in N
Cohen & E McKendrick (eds) Comparative Remedies for Breach of Contract (2005) 135
138.
64
See Zimmermann The New German Law of Obligations 43.
65
The relevant provisions of the BGB and ZPO are reproduced in Addendum A (388-401
below).
49
§ 241 BGB states that the creditor is entitled, by virtue of an obligation, to claim
performance from the debtor. This provision clearly indicates that actual performance of
an obligation may be demanded, and that a judgment ordering specific performance
may be issued by a court.66 The debtor’s duty to perform (Leistungspflicht) “results
naturally from contracting”.67 The creditor’s corresponding claim to specific performance
of the contract is regarded as an inherent and standard right flowing from the contract.68
It is only in highly limited circumstances that the creditor is allowed to claim damages
(instead of specific performance).69 The emphasis on the enforcement of the contract is
also reflected in the requirement that a creditor has to grant the debtor a period of grace
or Nachfrist before he can rely on secondary remedies, such as rescission and/or
damages.70 It is only after the expiry of this period (without result) that the creditor is
entitled to claim damages instead of performance.71 Furthermore, the creditor is never
confined to the remedy of specific performance; § 893(1) of the German Code of Civil
Procedure or Zivilprozessordnung (ZPO) specifically provides that the right of a creditor
to claim damages instead of (i.e. the equivalent of) performance is not limited by the
provisions governing the remedy of specific performance.
As stated above there are, however, certain limited exceptions to the general rule of
specific performance. First, according to the Roman principle impossibilium nulla
66
See Zweigert & Kötz Comparative Law 472.
67
M Smits Efficient Breach and the Enforcement of Specific Performance LLM thesis
Amsterdam Law School (2014) 29.
68
See Markesinis et al German Law of Contract 399, and Smits Efficient Breach and the
Enforcement of Specific Performance 29: “[s]pecific performance is a logical derivative of
contracts…”
69
See Markesinis et al German Law of Contract 439-441. See also Szladits 1955 Am J
Comp L 221.
70
See Markesinis et al German Law of Contract 400.
71
See § 281(1) BGB (Addendum A 390).
50
obligatio est (“an obligation for the impossible cannot exist”),72 specific performance
cannot be claimed when the debtor’s obligation has become impossible.73 This
exception applies to all types of impossibility, not only to objective, excusing
impossibility, but also to subjective impossibility, which does not exclude the debtor’s
liability.74 The revised version of the BGB (in addition to the ZPO in certain instances)
also makes it clear that the debtor may refuse to perform (i.e. only the duty to perform is
excluded) insofar as the performance would require an effort which would be grossly
disproportionate to the interest of the creditor in actual performance,75 as well as in
cases where the debtor has to render performance in terms of a contract of service
(Dienstvertrag),76 and performance cannot be reasonably expected from the debtor
where he is expected to render the performance in person.77 The exceptions to the
creditor’s right to specific performance do not interfere with his right to claim alternative
remedies though, provided of course that the requirements for these remedies are
met.78
Notwithstanding these exceptions, German law still favours specific performance as the
primary remedy and the BGB even sets incentives for performance. According to § 285,
the creditor can claim the substitute which the debtor would receive through the act
72
Kaser Roman Private Law (tr R Dannenbring) 176. Cf text to n 30 para 7 2 2 below.
73
See § 275(1) BGB (Addendum A 389). For further discussion see para 6 3 below.
74
See Zimmermann The New German Law of Obligations 10, 44; and see esp para 6 3
below.
75
See § 275(2) BGB (Addendum A 389). See further para 6 3 below.
76
See further para 4 5 1 below.
77
See further para 6 3 below (esp n 107 below).
78
See Heldrich & Rehm “Modernisation of the German law of obligations: harmonisation of
civil law and common law in the recent reform of the German Civil Code” in Cohen &
McKendrick (eds) Comparative Remedies for Breach of Contract 131.
51
making his performance impossible.79 It follows that the creditor can demand that the
debtor surrenders any substitute performance or compensation received. For example,
if the debtor who was suppose to deliver certain goods to the creditor sold the goods at
a better price to another buyer, thereby making it (subjectively) impossible to perform
his contract with the creditor, the debtor would have to pay the creditor what he received
from the other buyer (or assign his claim against that buyer)80 on the creditor’s request.
This regime therefore discourages so-called “efficient breaches”.81
2 3 1 2 Specific performance as the primary remedy in Dutch law
The remedy of specific performance (nakoming) is the primary remedy for breach of
contract in Dutch law.82 One of the leading principles of Dutch contract law is that
parties to a contract are obliged to execute the obligations they have willingly entered
into. This principle is not expressly included in the Dutch Civil Code or Burgerlijk
Wetboek (BW),83 but is implied in Article 6:248(1), which states that a contract has not
only the legal effects agreed to by the parties, but also those which according to the
nature of the contract result from the law, usage or the requirements of reasonableness
and equity (redelijkheid en billijkheid).84 Hartkamp expresses the view that “[t]he right to
79
See § 285 BGB (Addendum A 391); and see Coester-Waltjen “The new approach to
breach of contract in German law” in Cohen & McKendrick (eds) Comparative Remedies
for Breach of Contract 138.
80
See § 285 BGB (Addendum A 391).
81
Coester-Waltjen “The new approach to breach of contract in German law” in Cohen &
McKendrick (eds) Comparative Remedies for Breach of Contract 138. See further on the
theory of efficient breach para 3 4 2 below, and esp reference there to Smits Efficient
Breach and the Enforcement of Specific Performance, showing that there are indications
of a change in thinking in the civil law doctrine about “efficient breach”.
82
J Hijma & M M Olthof Compendium Nederlands Vermogensrecht 8 ed (2002) nr 331.
83
The relevant provisions of the BW are reproduced in Addendum A 401.
84
See para 1 1 2 above; A S Hartkamp et al Contract Law in the Netherlands 2 rev ed
(2011) 34; D Haas & C Jansen “Specific performance in Dutch law” in J Smits et al (eds)
52
specific performance arises directly from the obligation; it does not result from breach of
contract”.85 The primary position of specific performance can thus be ascribed to the
principle of pacta sunt servanda.86 The primacy of specific performance is also reflected
in the limited number of conditions the creditor has to satisfy to obtain an order for
specific performance, and the few defences the debtor can raise against such an action,
in comparison with the wide range of defences that can be raised against a claim for
damages or rescission. For example, the debtor can raise the defence that he is not
accountable or responsible for the non-performance (force majeure)87 in response to a
claim for damages, whereas this defence will not be effective in response to a claim for
specific performance, though specific performance may no longer be useful.88
Specific Performance in Contract Law: National and Other Perspectives (2008) 11 19-20.
See also Hijma & Olthof Compendium Nederlands Vermogensrecht nr 88 & nr 300.
85
See Haas “Searching for a basis of specific performance in the Dutch Civil Code” in
Development 172. See also Hijma & Olthof Compendium Nederlands Vermogensrecht nr
331; Asser/Hijma 5-I Bijzondere Overeenkomsten (2007) nr 373: “Het recht op nakoming
berust op die overeenkomst – althans op de relevante daaruit voortgevloeide verbintenis –
zelf; de schuldeiser behoeft niet te stellen of aan te tonen dat sprake is van een
tekortkoming aan de zijde van zijn wederpartij”.
86
As Haas states: “Het recht op nakoming neemt een bijzondere positie in ten opzichte van
de overige twee remedies, omdat het de meest directe uitdrukkingsvorm is van het
beginsel dat contractuele afspraken geëerbiedigd moeten worden. Het recht op nakoming
wordt in Nederland dan ook als de primaire remedie beschouwd. Schadevergoeding en
ontbinding zijn subsidiaire remedies” (De Grenzen Van Het Recht Op Nakoming doctoral
thesis Vrije University (2009) 1-2). See also Hijma & Olthof Compendium Nederlands
Vermogensrecht nr 331.
87
Art 6:75 BW (Addendum A 404).
88
See D Busch et al (eds) The Principles of European Contract Law and Dutch Law: A
Commentary (2002) 342-343 (commentary by J M Smits); Haas & Jansen “Specific
performance in Dutch law” in Smits et al (eds) Specific Performance in Contract Law:
National and Other Perspectives 12. Compare also para 6 3 below.
53
Furthermore, the debtor can raise the defence that the non-performance is insignificant
against both a claim for damages in lieu of performance89 and a claim for rescission of
the contract90 by the creditor. But this defence is not effective against a claim for specific
performance.91
When claiming specific performance, the creditor only has to prove that the parties
concluded a contract and that the debtor’s performance is due.92 Furthermore, Dutch
law promotes specific performance claims by way of the legal requirement of a written
notice, whereby the creditor must give the debtor a reasonable time to perform, before
he can claim damages or rescind the contract.93 It follows that the creditor must first
place the debtor in default (verzuim) by written notice.94 The creditor hereby draws the
debtor’s attention to the obligation that is to be performed and provides him with a
further opportunity to perform in order to be released from his obligation under the
89
Art 6:87(2) BW (Addendum A 405).
90
Art 6:265 BW (Addendum A 405).
91
Haas & Jansen “Specific performance in Dutch law” in Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives 12.
92
This position is very similar to South African law. See in this regard Lubbe “Contractual
derogation and the discretion to refuse an order for specific performance in South African
Law” in Smits et al (eds) Specific Performance in Contract Law: National and Other
Perspectives 102: “the right to an order for specific performance is independent of the
existence of a breach of contract by the defendant. It is derived solely from the agreement
itself. Although a creditor will ordinarily take steps to obtain specific performance upon a
breach by the debtor, the ‘right’ to an order for performance is juridically speaking not a
remedy for breach.” See also R H Christie & G B Bradfield Christie’s The Law of Contract
in South Africa 6 ed (2011) 545; Van der Merwe et al Contract: General Principles 4 ed
(2012) 328; Hutchison & Pretorius The Law of Contract in South Africa 321; Lambiris
Orders of Specific Performance and Restitutio in Integrum in South African Law 52-54 and
the authorities cited there.
93
Asser/Hartkamp & Sieburgh 6-II De Verbintenis in het Algemeen (2009) nr 343.
94
This position is very similar to what South African law calls mora ex persona.
54
contract.95 The creditor may only resort to damages or rescission in the event that the
debtor does not perform upon expiry of the notice period.96 This procedure of
ingebrekstelling thus demonstrates the primacy of specific performance in the hierarchy
of contractual remedies in Dutch law.97
Furthermore, Article 3:296 provides that unless the law, the nature of the obligation or a
juridical act determines otherwise, the person who is obliged to give, to do or not to do
something towards another, shall be ordered by the court to carry out this obligation
upon the demand of the person to whom the obligation is owed. This Article is
considered to be wide-reaching,98 since it also applies to obligations resulting from the
law of delict and duties arising from property law and intellectual property law, and not
only to contractual obligations.99 However, it only gives the creditor a procedural right to
enforce his right to performance in court.100
The only reference to a substantive right to specific performance can be found in Book
7, which deals with specific contracts such as sale and construction contracts.101 It is
95
This procedure is comparable to the period of grace or Nachfrist under German law – see
para 2 3 1 1 above.
96
Of course, the requirement of a written notice will not be applicable if the parties specified
a date for performance; non-performance by that date allows the creditor to claim
damages or terminate instantly (see Haas & Jansen “Specific performance in Dutch law”
in Smits et al (eds) Specific Performance in Contract Law: National and Other
Perspectives 13).
97
11-13.
98
See Haas “Searching for a basis of specific performance in the Dutch Civil Code” in
Development 168-169.
99
See Hijma & Olthof Compendium Nederlands Vermogensrecht nr 299.
100
Nr 88 & nr 331; and see Asser/Hijma 5-I (2007) nr 372: “De rechtsvordering berust op een
processuele bevoegdheid…”
101
See Art 7:21 & Art 7:759(1) BW respectively (Addendum A 405, 407).
55
peculiar that Book 6, which deals with the law of obligations in general, does not grant
the creditor a substantive right to specific performance, considering that it does contain
provisions granting the creditor a substantive right to the remedy of damages and the
right to cancel the contract in case of breach.102 According to Haas, the Dutch legislator
did not include an explicit provision granting the creditor a substantive right to specific
performance, because this right is regarded as an essential feature of the contract itself.
It is surprising that even though Dutch law attaches so much weight to the principle of
pacta sunt servanda and the concomitant right to specific performance,103 it was not
considered necessary to reinforce it by creating a statutory basis for it. In his research,
Haas argues that an explicit statutory provision granting the right to specific
performance in Book 6 of the BW would improve the coherence of legal remedies in
Dutch law, and that this would also provide a legal basis for the important pacta sunt
servanda principle, as well as align Dutch law with other continental European legal
systems, which entrench a right to specific performance in their Civil Codes.104
Furthermore, Article 3:299 of the BW provides that an order for specific performance
may compel the debtor to act or not to act and that the creditor does not have to be
satisfied with monetary compensation.105 However, as mentioned above, some
exceptions to the general principle have been recognised in Article 3:296(1) BW.106 For
example, it is accepted that an order for specific performance will not be granted when
102
See Art 6:74 & Art 6:265 BW respectively.
103
Stolp describes the right to specific performance as the “ruggengraat” of Dutch contract
law (see M M Stolp Ontbinding, Schadevergoeding en Nakoming: De Remedies Voor
Wanprestatie in Het Licht van de Beginselen van Subsidiariteit en Proportionaliteit (2007)
186).
104
See D Haas De Grenzen Van Het Recht Op Nakoming doctoral thesis Vrije University
Amsterdam (2009) 338. Examples of such provisions include Art 1184(2) of the French
Civil Code and § 241 of the German BGB (see Zweigert & Kötz Introduction to
Comparative Law 472-479).
105
See Hartkamp et al Contract Law in the Netherlands 141.
106
See further paras 4 6 & 5 4 below.
56
the obligation is of a highly personal nature.107 Non-performance of these obligations

would rather be compensated by damages under Dutch law on the basis of the maxim
nemo praecise cogi ad factum.108 According to Article 6:3 read with Article 3:296(1), a
claim for specific performance of a natural obligation will also be excluded on the basis
of the nature of the obligation.109 Furthermore, if performance has become impossible
an order to perform will not be granted.110 The concept of impossibility under Dutch law
refers to both objective and subjective impossibility.111 In these cases the creditor will
have to resort to a claim for damages or rescission, or both of these remedies.112 These
exceptions clearly resemble those identified under German law.
It was decided as early as 1956 that the Dutch courts have no discretion to refuse an
order for specific performance when all the conditions for allowing such a claim have
been met.113 However, the Dutch Supreme Court held in 2001114 that it is in the courts’
discretion to refuse specific performance on the basis of reasonableness and equity.115
The Supreme Court emphasised that deciding such a claim requires a balancing of the
107
See further para 4 6 below.
108
See Haas & Jansen “Specific performance in Dutch law” in Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives 16; Oosterhuis Specific
Performance: German, French and Dutch Law in the Nineteenth Century 460; and see
para 2 2 1 above.
109
Performance in Contract Law: National and Other Perspectives 11 17. See further para 4
6 below.
110
Hijma & Olthof Compendium Nederlands Vermogensrecht nr 88.
111
112
See Hartkamp et al Contract Law in the Netherlands 142.
113
HR 21 December 1956, NJ 1957, 126 (Meegdes/Meegdes).
114
HR 5 January 2001, NJ 2001, 79 (Multi Vastgoed/Nethou).
115
This concept is codified in Art 6:248(2) BW.
57
mutual interests of the parties.116 Hence, a court may refuse to enforce a contract where
the contract will be extremely disadvantageous and unreasonable to the debtor.117
However, specific performance remains the primary remedy for breach and courts will
only derogate from this principle in exceptional circumstances.118
2 3 2 Specific performance in common law: early development
When considering the availability of specific performance in the common law, it is useful
to begin with a review of the development of the courts of equity, as it was these courts
that introduced specific performance into the common law. Their primary function was to
alleviate hardship by extending remedies that were not available “at law” and to provide
adequate compensation to the aggrieved party. It follows that a party could only have
recourse to an equitable remedy if the remedy available “at law” did not provide
adequate relief.119 This complementary function of equity was embodied in the rule that
“equity follows the law”. It meant that equity could only interfere when the rules of law
were insufficient to protect the party’s rights. In fourteenth century England, a set of
rules for granting specific performance developed and a separation between law and
equity evolved.120 The Courts of Chancery began to apply equity in deciding matters
116
HR 5 January 2001, NJ 2001, 79 (Multi Vastgoed/Nethou). See para 6 3 (esp text to n
142) below.
117
See eg HR 16 January 1981, NJ 1981, 312 (X/Y) (cf para 6 3 below).
118
Performance in Contract Law: National and Other Perspectives 19-20. See also para 6 3
below.
119
See generally R A Newman Equity and Law: A Comparative Study (1961) 11-20 and more
specifically, W S Holdsworth A History of English Law (1924) 294 ff; H Potter An Historical
Introduction to English Law and Its Institutions 3 ed (1948) 578; J Gordley & A T Von
Mehren An Introduction to the Comparative Study of Private Law: Readings, Cases,
Materials (2006) 527-528.
120
See J B Ames Lectures on Legal History (1913) 247-250; J N Pomeroy Jr A Treatise on
the Specific Performance of Contracts 3 ed (1926) 32-37.
58
and the Chancellor, in exercising his equitable powers, observed the requirements of
conscience. Since these requirements varied depending on the Chancellor’s personal
beliefs, the power to grant specific performance was exercised in a discretionary
manner.121 This court was described as being a “court of conscience”, rather than of law
and defendants could be forced to do whatever good conscience required in the
circumstances.122 Since equity could only interfere when the redress available at law
was inadequate, the remedy of specific performance acquired an exceptional character,
with damages being the primary remedy.123
The early English common law therefore adopted an approach comparable to that of
classical Roman law. As Sir Edward Fry stated:
“In like manner the Common Law of England made no attempt actually to enforce the
performance of contracts but gave the injured party only the right to satisfaction for non-
performance.”124
The reason for the primacy of damages in the English common law appears to be the
same as that of Roman law – the English courts, too, were reluctant to compel persons
to perform acts other than the payment of money.125 Therefore, the only legal right
afforded to the aggrieved party was a claim for damages, but this remedy proved to be
121
See Potter An Historical Introduction to English Law and Its Institutions 550 ff.
122
See J H Baker The Oxford History of the Laws of England VI (2004) 46-48, 174; An
Introduction to English Legal History 4 ed (2002) 105-115. See also E A Farnsworth An
Introduction to the Legal System of the United States 4 ed (2010) 103, and Lumley v
Wagner (1852) De GM & G 604 619.
123
124
See G R Northcote A Treatise on the Specific Performance of Contracts by Sir Edward
Fry 6 ed (1921) 4 § 7.
125
See E A Farnsworth “Legal remedies for breach of contract” 1970 Colum LR 1145 1151-
1153; Beinart 1952 SALJ 158.
59
inadequate in many circumstances to achieve justice between the parties.126 There

were some types of contract in which money did not provide adequate compensation
upon breach.127 For example, damages often could not adequately compensate
someone for the inability to own a particular piece of land.128 For that reason, the equity
courts gradually developed rules which in very severe cases tempered the rigid principle
that claims for specific performance were inadmissible. Under these rules, a plaintiff
could exceptionally claim specific performance if he could persuade the court that the
remedies available to him at law, especially damages, were inadequate.129 This
equitable jurisdiction was unique to the equity courts until section 24 of the Supreme
Court of Judicature Act 1873, conferred the same jurisdiction to all divisions of the High
Court.130 The distinction between the jurisdictions of the courts of law and of equity was
thus abolished, but the remedy of specific performance was one of the additions to the
substantive law which remained.131 In both England and the United States today all
courts concurrently apply the rules developed “at law” and “in equity”.132 The principle,
126
See Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch 116 per Kay
LJ 126 (para 3 2 n 6 below).
127
Beale et al (eds) Chitty on Contracts 1907 ff; M P Furmston Cheshire, Fifoot & Furmston’s
Law of Contract 16 ed (2012) 796-797.
128
See W F Walsh A Treatise on Equity (1930) § 60. The idea that a purchaser should be
able to obtain specific performance of a contract for the sale of land because damages
are inadequate has often been criticized (see para 3 2 1 1 below).
129
Zweigert & Kötz Comparative Law 480; Farnsworth An Introduction to the Legal System of
the United States 103.
130
See A E Randall Leake on Contracts (1921) 839; Lord Mackay of Clashfern (ed)
Halsbury’s Laws of England 4 ed reissue vol 16(2) (2003) para 496. See also Warner v
Murdoch, Murdoch v Warner (1877) 4 Ch D 750 752.
131
See J H Baker An Introduction to English Legal History 3 ed (1990) 232; M J Falcón y
Tella Equity and Law (2008) 67; Farnsworth An Introduction to the Legal System of the
United States 104-105; J E Martin Hanbury & Martin’s Modern Equity 19 ed (2012) 34-35.
132
Falcón y Tella Equity and Law 62; Zweigert & Kötz Comparative Law 480; Farnsworth An
Introduction to the Legal System of the United States 104.
60
however, remains that a claim for specific performance is exceptional and even today it
is constantly emphasised that an order for specific performance of a contract remains in
the complete discretion of the court.133
The common-law approach to the remedy of specific performance will now be

discussed with reference to the position in both English law and American law. These
two systems follow more or less the same approach to awarding specific performance.
They depart from the same principle: both systems regard damages as the norm and
specific performance as the deviation, but there are also some divergences, which
cannot be ignored. Most authors treat the two systems as one and the same when
discussing the remedy of specific performance, but many fail to mention the nuanced
difference in application of the general principle of adequacy of damages.134
2 3 2 1 Specific performance as a secondary remedy in English law
According to modern English law, a plaintiff has no right to specific performance except
so far as the court may see fit to grant it in accordance with settled principles.135 The
scope of the remedy is much more limited; it is seen as an exceptional remedy for
breach of contract, which can only be awarded by a court in the exercise of its equitable
discretion.136 The only obligations specifically enforceable are those aimed at payment
of an agreed sum of money, but a claim for an agreed sum is distinct from a claim for
133
Zweigert & Kötz Comparative Law 480. See further para 3 2 below.
134
See eg the seminal article by R Pound “The development of American Law and its
deviation from English law” (1951) 67 LQR 49. See further para 3 2 below.
135
See list below.
136
See para 3 2 below.
137
For England, see Sir John Salmond & J Williams Principles of the Law of Contracts 2 ed
(1945) 593; G H Treitel Remedies for Breach of Contract: A Comparative Account (1988)
62; E McKendrick Contract Law 8 ed (2009) 349; Beatson et al Anson’s Law of Contract
573. For the US, see J O Honnold Uniform Law for International Sales under the 1980
61
As mentioned above, an important factor in determining whether or not a court will grant
specific performance of a contract is the existence and adequacy of a remedy at law.138
The principal remedy afforded by the courts for breach of contract is damages, and
ordinarily this form of relief is preferred. However, where the legal remedy of damages
is inadequate, or is insufficient to do complete justice between the parties, it will be in
the discretion of the court to grant specific performance.139
This discretion is exercised according to settled rules and principles,140 and specific
circumstances have been identified where an order for specific performance would not
be granted. These circumstances are the following.141
i. Damages provide an adequate remedy;142

ii. The order could cause severe hardship;143
iii. The contract requires constant supervision;144
United Nations Convention 4 ed (2009) 297; Perillo (ed) Corbin on Contracts § 1142. See
also text to n 199 para 2 3 2 2 below & para 3 2 n 25 below.
138
The inadequacy-of-damages criterion is discussed in detail in para 3 2 below.
139
See Peel Treitel’s Law of Contract 1099.
140
141
These principles were adopted from the work of Sir John Salmond and James Williams:
Principles of the Law of Contracts 2 ed (1945) 596-600. See generally Peel Treitel’s Law
of Contract 1099 ff; Beale et al (eds) Chitty on Contracts 1917 ff.
142
In Wilson v Northampton and Banbury Junction Railway Co (1874) 9 Ch App 279, Lord
Selbourne famously declared (at 284) that “the court gives specific performance instead of
damages, only when it can by that means do more perfect and complete justice”. See also
Beswick v Beswick [1968] AC 58 90, and para 3 2 below.
143
See Patel v Ali [1984] Ch 283 (para 6 2 below). See also H Beale et al Cases, Materials
and Text on Contract Law (2010) 885-887. This criterion is discussed in detail in ch 6.
144
See Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch 116 (text to n
39 para 5 2 below); Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd
[1997] 2 WLR 898 (para 5 2 below). Certain exceptions to this general rule has been
recognised in practice, eg where the work is reasonably defined, the plaintiff has a
62
iv. Performance consists of a personal service;145

v. The contract is unconscionable or illegal;146
vi. The contract is too vague to be enforced;147
vii. The plaintiff acted unfairly or unconscionably (i.e. has no “clean hands”);148
viii. Specific performance is impossible;149
ix. The party in breach would be inadequately protected should the aggrieved party
consequently be in breach.150
substantial interest in the performance of the contract which cannot be adequately

compensated by an award of damages, and the land on which the works are to be erected
is in the possession of the defendant. See in this regard Wolverhampton Corporation v
Emmons [1901] 1 QB 515; Molyneux v Richard [1906] 1 Ch 34. American courts, on the
other hand, seem to follow a more liberal approach in this respect, see Jones v Parker
(1895) 163 Mass. 564. This criterion is discussed in detail in ch 5.
145
Discussed in detail in ch 4.
146
As in South African law, this remedy obviously presupposes a valid agreement between
the parties.
147
See para 5 2 below.
148
See M Chen-Wishart Contract Law 4 ed (2012) 543 and examples mentioned there.
149
Cf text to n 125 para 6 3 below.
150
It was once maintained that specific performance would not be granted to the aggrieved
party unless it could also have been ordered against him at the time the contract was
concluded (more often referred to as the requirement of “mutuality in remedy”). See
Clifford v Turrel (1841) 1 Y & C Ch Cas 138; Blackett v Bates (1865) 1 Ch App 117 per
Lord Cranworth LC: “The court does not grant specific performance unless it can give full
relief to both parties” (meaning the remedy can only be granted if it will secure
performance by the plaintiff as well as by the defendant). This doctrine was discredited,
and it is clear from Price v Strange [1978] Ch 337 367, that the plaintiff is only prevented
from claiming specific performance if the defendant, who is compelled to perform, would
be inadequately protected if the plaintiff subsequently breaches. Burrows rightly criticises
the reformulated version of the requirement, because it seems too “pro-defendant”: it
would have already been concluded that damages will not adequately compensate the
63
In the light of this extensive list of limitations, it may well be asked when specific
performance will be awarded in the common law.151 Here the most prominent class of
contracts that will be specifically enforced is the contract for the sale of land. These
contracts have always been enforced, because the contract gives the purchaser a right
to a particular piece of land, and monetary compensation would not provide adequate
relief, due to the specific qualities of the piece of land, which are considered to be
difficult to quantify.152
This justification of granting specific performance on the basis that the property is
unique has, however, been criticised, mainly because it is not the case in every
agreement to purchase land. The purchaser may, for example, intend to immediately
resell the property or retain it as a long-term investment, without having a particular
interest in the unique qualities of the land.153
In the case of contracts involving movables, equity would traditionally only grant specific
performance with respect to goods that were unique in character.154 The reasoning
behind this was that with generic goods, the aggrieved party had an adequate remedy
plaintiff, yet the court is prepared to deny him an admittedly more appropriate and just
remedy, because of the mere risk that the defendant may not be adequately
compensated, should the plaintiff fail to perform completely. See A Burrows Remedies for
Torts and Breach of Contract 3 ed (2004) 491-493; Chen-Wishart Contract Law 546-547;
Furmston Cheshire, Fifoot & Furmston’s Law of Contract 799. See for American authority,
G Klass Contract Law in the USA (2010) 216: “most courts have dropped the old
requirement of mutuality of remedy”. See also comment “Limitations on the availability of
specific performance” published in (1950) 17(2) U Chi LR 409 415.
151
The most recognised of which will be discussed in the following chapters.
152
See Beale et al (eds) Chitty on Contracts 1908-1909.
153
154
See further para 3 2 1 2 below.
64
in damages, because he could acquire the goods elsewhere.155 And with unique goods
it would be difficult to assess damages as the object, for example an heirloom, could be
more valuable to the plaintiff than the object’s actual market-related value, or there may
not even be similar objects in the market to compare the heirloom and estimate a value.
Ultimately, the amount of damages would be uncertain and speculative, which makes
damages inadequate.
However, the enactment of the Sale of Goods Act in 1979 widened the scope of the
remedy of specific performance. Section 52 gives the court a discretion to order specific
performance in relation to obligations to deliver “specific or ascertained” goods. The
discretion is thus no longer limited to cases in which the plaintiff could not get a
satisfactory substitute because the goods were regarded as unique. A court can also
order specific performance of a contract for the sale of goods that have been
ascertained.156 English courts have also granted specific performance in cases of
“commercial uniqueness”,157 i.e. in cases where the goods were purely generic and thus
fell outside of the scope of section 52 of the Sale of Goods Act 1979.158 For example, if
obtaining a substitute involves difficulty, it gives the goods a character of commercial
155
See Beale et al (eds) Chitty on Contracts 1911. In Cohen v Roche [1927] 1 KB 169, eg,
the court refused specific performance to a buyer of a set of Hepplewhite chairs because
they were considered to be “ordinary articles of commerce and of no special value or
interest”.
156
Section 61(1) of the Sale of Goods Act 1979 (as amended by s 2(a) of the Sale of Goods
(Amendment) Act 1995) defines “specific goods” as goods “identified and agreed on at the
time a contract of sale is made”. The Act does not define “ascertained”, but it seems to
mean “identified in accordance with the agreement after the time a contract of sale is
made” (In Re Wait [1927] 1 Ch 606 630), or identified in any other way (Thames Sack &
Bag Co Ltd v Knowles (1918) 88 LJKB 585 588). See also Burrows Remedies for Torts
and Breach of Contract 459 ff; Beatson et al Anson’s Law of Contract 576-577.
157
A term coined by G H Treitel – see para 3 2 1 2 n 86 below.
158
See further R J Sharpe Injunctions and Specific Performance (1983) 325 and A Burrows
Remedies for Torts and Breach of Contract 3 ed (2004) 459 ff.
65
uniqueness, which could influence a court to grant specific performance even though
the situation is not explicitly covered by section 52 of the Sale of Goods Act 1979.159
It was mentioned earlier that English law has always been reluctant to recognise the
specific enforceability of contracts for the sale of ordinary personal property.160
American law, as we will see in the next section, is more disposed to the idea. The
courts in the United States have extended the remedy of specific performance to buyers
of generic goods whose need for the actual supply was particularly urgent or who would
not be able to get a satisfactory substitute161 on the basis of the appropriateness of the
remedy in the circumstances.162 English courts are slower in accepting this view, but
there are some indications that they are moving towards such an approach.163 These
will be discussed in more detail in the following chapter.164
2 3 2 2 Specific performance as a secondary remedy in American law
American law also departs from the traditional common-law principle that damages is
the standard and preferred remedy for breach of contract while specific performance is
an exceptional remedy. In like manner, specific performance is considered to be an
159
See A S Burrows “Specific performance at the crossroads” (1984) 4 Legal Studies 102
103; Beale et al (eds) Chitty on Contracts 1915-1917. See further para 3 2 1 2 below and
the authorities cited there, esp Sky Petroleum Ltd v VIP Petroleum Ltd [1974] 1 WLR 576;
Howard E Perry & Co v British Railways Board [1980] 1 WLR 1375 and Thames Valley
Power Ltd v Total Gas and Power Ltd [2006] 1 Lloyd’s Rep 441.
160
See para 1 1 2 above.
161
See text to nn 192-194 para 2 3 2 2 below. See also paras 3 2 1 2 & 3 4 1 below.
162
See text to n 99 para 3 2 1 2 below.
163
The inadequacy-of-damages requirement was strongly challenged in the famous case of
Beswick v Beswick [1968] AC 58. See in particular, the speech of Lord Pearce (with whom
Lord Hudson agreed), who preferred to focus on the question of whether the more
“appropriate” remedy was that of specific performance (see para 3 2 1 2 below). See also
Burrows 1984 Legal Studies 102-107.
164
See para 3 2 below.
66
equitable remedy,165 which is only available if damages would not provide adequate
relief.166 Only then will it be in the discretion of the court to grant specific
performance.167 The system is therefore “not directed at compulsion of promisors to
prevent breach; rather, it is aimed at relief to promisees to redress breach”.168 As
indicated in the previous section, it seems that US courts are more readily prepared to
grant specific performance as a remedy for breach, even though they depart from the
same principle that specific performance is considered the exception rather than the
rule. Farnsworth, for example, maintains that the modern approach in American law is
to compare remedies to determine which is more effective in protecting the aggrieved
party’s interest. “The concept of adequacy has thus tended to become relative, and the
comparison more often leads to granting equitable relief than was historically the
case.”169
However, the adequacy of damages remains the definitive factor.170 Subsection 1 of §

359 of the American Law Institute’s Restatement (Second) of Contracts171 specifically
165
See G R Northcote A Treatise on the Specific Performance of Contracts by Sir Edward
Fry 6 ed (1921) § 3; J Pomeroy Jr A Treatise on the Specific Performance of Contracts 3
ed (1926) §§ 1-3; W H E Jaeger Williston on Contracts 3 ed (1968) vol 11 § 1418. See
also Klein v Shell Oil Co 386 F.2d 659 (8th Cir. 1967).
166
See E A Farnsworth Contracts 3 ed (1999) 773.
167
See Lee v Crane 120 So. 2d 702, 703 (1960). Although certain kinds of contracts (such as
contracts for the sale of land) are as a general rule specifically enforced, courts do not feel
bound by traditional categories and will sometimes exercise their discretion to deny
specific performance of an agreement that would normally be specifically enforceable –
see eg Paddock v Davenport 107 NC 710 (1890) where specific performance of a contract
for the sale of an interest in land (trees standing on the defendant’s land were sold to
plaintiff, who bought them with a view to their severance from the soil) was denied on the
ground that damages would adequately compensate the plaintiff.
168
See Farnsworth 1970 Colum LR 1147.
169
Farnsworth Contracts 773. See eg paras 3 2 1 2 & 3 4 1 below.
170
J M Perillo Calamari and Perillo on Contracts 6 ed (2009) 556.
67
provides that specific performance will not be ordered if damages would be adequate to
protect the expectation interest of the injured party. Thus, where the aggrieved party
can acquire a satisfactory equivalent of what he contracted for from some other source,
specific performance will most likely be denied.172
As in English law,173 the rule was that specific performance of a contract for the sale of
ordinary goods was not available because damages, based on the market price, would
enable the buyer to purchase substitute goods, thereby providing him with an adequate
remedy.174 However, the continued demand by scholars for the expansion of the
availability of specific performance necessitated reform and eventually resulted in the
enactment of the Uniform Sales Act 1906, which was effective in most American
jurisdictions by the 1920’s.175 It determined in § 68 that “[w]here the seller has broken a
contract to deliver specific or ascertained goods, a court having the powers of a court of
equity may, if it thinks fit, on the application of the buyer, by its judgment of decree
direct that the contract be performed specifically, without giving the seller the option of
retaining the goods on payment of damages…”
This provision reflects the initial intent of the legislature to liberalise the rules regarding
the granting of the remedy, by providing a wide discretion to the courts to order specific
performance.176 It was succeeded by § 2-716(1) of the US Uniform Commercial
171
Official text with comments is accessible via Westlaw International. The provisions of the
Restatement (Second) of Contracts referred to in this thesis are reproduced in
Addendum A 382-385 (official comments & illustrations excluded).
172
For further discussion see para 3 2 below.
173
Compare discussion of s 52 of the Sale of Goods Act 1979 above.
174
See Farnsworth 1970 Colum LR 1154-1155.
175
See H Greenberg “Specific performance under section 2-716 of the UCC” (1982) 87
Commercial Law Journal 583 595.
176
In Hunt Foods Inc v O’Disho 36. 98 F. Supp. 267 (N.D. Cal.1951), the court stated (270)
that the legislature “unquestionably had in mind the liberalization of the law regarding
specific performance of contracts for the sale of chattels”. See M Handler “Specific
68
Code,177 which states that: “[s]pecific performance may be decreed where the goods
are unique or in other proper circumstances”.178 This provision only deals with the
situations in which a buyer is entitled to enforce performance, while § 2-709 of the UCC
(discussed below) covers situations in which a seller is entitled to claim the price. The
term “may” in § 2-716(1) indicates that the buyer does not have the right to claim
specific performance, but rather that it is within the court’s discretion to grant specific
performance. The scope of this discretionary power is further extended in the UCC by
the inclusion of the phrase “other proper circumstances”. Here, the legislature has left it
to the courts to determine the circumstances in which specific performance would be a
proper remedy.179 Clearly, this provision departs from the more circumscribed rule
under § 68 of the Uniform Sales Act and further extends the availability of specific
performance as a remedy for breach of contracts for sale of goods in the United
States.180
As indicated, § 2-716(1) of the UCC refers to “uniqueness” as an example of a situation

where specific performance may be granted.181 The case law that followed the
enactment of this provision reveals that the courts have interpreted the term “unique”
performance under section 2-716(1) of the Uniform Commercial UCC – What other proper
circumstances?” (1971) 33 U Pitt LR 243 245; E Axelrod “Specific performance of
contracts for sales of goods” (1982) 7 Vermont Law Review 249 254.
177
Replacing the American Law Institute’s Restatement (Second) of Contracts in relation to
the sale of goods/moveable property. Official text with comments accessible via Westlaw
International. The provisions of the UCC referred to in this thesis are reproduced in
Addendum A 385-388.
178
On the background and drafting of this provision, see Axelrod 1982 Vermont Law Review
249-272 and Greenberg 1982 Commercial Law Journal 583-599.
179
Handler 1971 U Pitt LR 243.
180
See Perillo Calamari and Perillo on Contracts 554. See also text to nn 100 ff para 3 2 1 2
below.
181
See A T Kronman “Specific performance” (1978) 45 U Chi LR 351 355-365. See further
para 3 2 1 2 below.
69
rather widely.182 Goods may be unique in nature, or they may be unique because of
surrounding circumstances.183 Traditionally, heirlooms, works of art and antiques were
regarded as unique. Recently however, a broader meaning has been introduced by
including output184 and requirements185 contracts as unique when they involve a
particular source or market.186 Courts also interpret uniqueness based on the
circumstances under which the contract is to be performed. Thus, goods that are not
considered to be unique per se may be considered so for the purposes of enforcing the
specific contract.187 This is very similar to the concept of “commercial uniqueness” that
have prompted English courts to enforce contracts in situations where it was difficult to
find substitute goods in the market due to surrounding circumstances.
The phrase “other proper circumstances” refers to situations where it is within the
court’s discretion to allow specific performance based on the facts of the case.188 These
182
See Greenberg 1982 Commercial Law Journal 595-596. See further para 3 2 1 2 below.
183
184
An output contract is a contract in which a producer agrees to sell its entire production to
the buyer, who in turn agrees to purchase the entire output, whatever that is. For
examples, see Feld v Henry S Levy & Sons Inc 335 N.E.2d 320 (NY 1975); Technical
Assistance International Inc v United States 150 F.3d 1369 (US Court of Appeals 1998).
185
A requirements contract is a contract in which one party agrees to supply as much of a
good or service as is required by the other party, and in exchange the other party
expressly or implicitly promises that it will obtain its goods or services exclusively from the
first party. For examples, see J Gordley (ed) The Enforceability of Promises in European
Contract Law (2001) 193 ff. See also para 3 2 1 2 n 101 below.
186
See Farnsworth Contracts 773; Perillo Calamari and Perillo on Contracts 555; § 2-716
UCC, cmt 2. See further para 3 2 1 2 below.
187
§ 2-716 UCC, cmt 2 clearly states that uniqueness should be determined having regard to
the circumstances surrounding the contract. By stating this rule, the UCC incorporates
what was practiced by US courts for a long time. See Greenberg 1982 Commercial Law
Journal 596-599. See further para 3 2 1 2 below.
188
See Handler 1971 U Pitt LR 249. See also para 3 2 1 2 below.
70
situations are determined on the basis of the possibility of replacing the goods.189 This
means that “other proper circumstances” also include situations where it is not easy to
find substitute goods in the market. For example, in 1973, when the price of cotton
increased significantly, a US court ordered specific performance of a contract for the
sale of cotton because substitute goods could not be obtained.190 US courts have also
granted specific performance of contracts for the supply of fuel when the price of fuel
increased drastically, making it very expensive to obtain a substitute.191 It is important to
note however, that the degree to which it is possible to replace the goods is not the only
factor the courts consider in this regard. The quality of substitute goods is also taken
into consideration.192 It may be possible to find goods of the same kind in the market,
but courts have granted specific performance because the quality of the replacement
goods was inferior.193 In such a case, it is considered unfair to award damages and not
The seller’s right to payment of the price, on the other hand, is governed by § 2-709 of
the UCC.195 The seller has the right to receive the price when goods are accepted and
received by the buyer, and when goods perish after the risk of loss has passed to the
189
See J M Catalano “More fiction than fact: the perceived differences in the application of
specific performance under the United Nations Convention on Contracts for the
International Sale of Goods” (1997) 71 Tulane LR 1807 1825. See also para 3 2 1 2
below.
190
See Bolin Farms v American Cotton Shippers Association 370 F. Supp. 1353 (W.D. La.
1974); Greenberg 1982 Commercial Law Journal 583.
191
See Eastern Airlines Inc v Gulf Oil Corp 415 F. Supp. 429 (S.D. Fla. 1975); Greenberg
1982 Commercial Law Journal 583.
192
See S Walt “For specific performance under the United Nations Sales Convention” (1999)
26 Texas International Law Journal 211 218.
193
See Copylease Corp of America v Memorex Corp 408 F. Supp. 758 (S.D.N.Y. 1976).
194
See Walt 1999 Texas International Law Journal 225; Catalano 1997 Tulane LR 1828.
195
See Addendum A 386 below.
71
buyer.196 In the case of goods that are not delivered, the seller can require performance
if he is unable to resell the goods after a reasonable effort or when it is clear from the
circumstances that efforts to resell will yield no result.197 The term “specific
performance” is not used in the provisions regarding the payment of the price.198 This
reflects the fact that payment of the price by the buyer is not seen as specific
performance in common-law systems.199 It should be noted that the situation is different
in civil law, where performance of the obligation to pay the contractual price is seen as
Even though US courts follow a more liberal approach, specific performance remains a
subsidiary remedy. Apart from the adequacy of damages criterion, there are also certain
defined cases when the remedy of specific performance will not be available. Most of
which resemble those identified under the English law.201 It is accepted that a court will
not grant specific performance to enforce a contract unless the terms of the contract are
certain, if it would burden the enforcement or supervision of the contract, if the contract
involves an obligation to provide a personal service or if specific enforcement of the
contract will lead to unfairness.202 Thus, the discretion of US courts to grant specific
performance is also exercised according to settled rules.203 Furthermore, based on the
196
See E A Peters “Remedies for breach of contract relating to the sale of goods under the
Uniform Commercial UCC: a roadmap for article 2” (1963) 73 Yale LJ 199 241.
197
See Honnold Uniform Law for International Sales Under the 1980 United Nations
Convention 297-298.
198
See § 2-709 UCC.
199
See Dawson 1959 Mich LR 496.
200
501. Compare also South African law: n 7 para 5 1 below, and distinction between
monetary and non-monetary obligations drawn by certain international instruments in para
2 3 3 below.
201
See para 3 2 below.
202
See Farnsworth Contracts 778-783. See further para 5 3 below.
203
The mutuality principle has also been discredited under American law, because it was
based on the notion that a party in breach should not be compelled to perform without the
72
same arguments advanced under English law, contracts to convey land are singled out
for special treatment and are considered to be specifically enforceable. The reasons for
allowing specific performance in such instances are also criticised though.204
2 3 3 Specific performance in various international instruments
As mentioned earlier, the UN Convention on Contracts for the International Sale of

Goods (CISG), the UNIDROIT Principles of International Commercial Contracts (PICC),
the Principles of European Contract Law (PECL), the Draft Common Frame of
Reference (DCFR) and the Common European Sales Law (CESL), all determine that
the debtor should specifically perform his obligations in case of breach.205 What follows
is a more comprehensive analysis of their relevant provisions.
2 3 3 1 Specific performance under the CISG
The United Nations Convention on Contracts for the International Sale of Goods is a
multilateral treaty that provides for a uniform international sales law.206 As of July 2014 it
assurance that the agreed exchange will be rendered in return, which could be
accomplished by requiring security instead. See American Law Institute’s Restatement
(Second) of Contracts § 363, cmt c. See also Ames Lectures on Legal History 370.
However, it was stated in Morad v Silva 117 N.E.2d 290 (Mass. 1954) that “even under
the rule which rejects the mutuality principle specific performance may be refused ‘if a
substantial part of the agreed exchange … is not well secured’”. The principle has also
been reformulated, and it still only applies to the extent that the plaintiff’s performance
cannot be secured.
204
See Farnsworth Contracts 776. See also para 3 2 1 1 below.
205
See para 1 1 2 above. See also V Heutger & J Oosterhuis “Specific performance within
the hierarchy of remedies in European contract law” in J Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives (2008) 147 152.
206
The relevant provisions of the CISG are reproduced in Addendum A 407. The complete
UN document is available online via the UNCITRAL website at
<http://www.uncitral.org/pdf/english/texts/sales/cisg/V1056997-CISG-e-book.pdf>.
73
has 81 contracting parties (excluding South Africa).207 It was developed by the United
Nations Commission on International Trade Law (UNCITRAL) and was signed in Vienna
in 1980.208 It only came into force eight years later, on 1 January 1988, after being
ratified by eleven countries.209 It applies to all international sales contracts where the
seller and the buyer maintain their places of business in different states,210 unless of
course the parties expressly opted out of its application.211 It thus allows international
contracting parties to avoid choice of law issues.212
The CISG has been criticised for its failure to facilitate the development of a uniform set
of rules to govern international sale of goods transactions.213 The provisions on specific
207
The list of parties to the CISG can be accessed on the UNCITRAL website at
<http://uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html>.
208
See United Nations Conference on Contracts for the International Sale of Goods 11 April
1980 International Legal Materials 668.
209
See S Kröll et al (eds) The United Nations Convention on Contracts for the International
Sale of Goods: Commentary (2011) v.
210
Art 1(1) CISG. The CISG excludes consumer sales (Art 2(a)); see U Magnus “CISG vs.
CESL” in U Magnus (ed) CISG vs. Regional Sales Law Unification: With a Focus on the
New Common European Sales Law (2012) 97 98 n 5 “The CISG covers however
consumer sales which the seller could not recognize as such as well as sales where the
consumer sells to a professional buyer.”
211
See Art 6 CISG. For treatment of the Art 6 opt-out requirements by the US Federal Courts,
see M McQuillen “The development of a Federal CISG Common Law in U.S. courts:
patterns of interpretation and citation” (2006-2007) 61 University of Miami Law Review
509 518-520.
212
For details on the background and the development of the CISG, see N Boghossian “A
comparative study of specific performance provisions in the United Nations Convention on
Contracts for the International Sale of Goods” 1999/2000 Pace Review of the Convention
on Contracts for International Sale of Goods 7-14. See also Kröll et al (eds) The United
Nations Convention on Contracts for the International Sale of Goods: Commentary 4-5.
213
See generally V G Curran “The Interpretive Challenge to Uniformity by C Witz” (1995) 15
Journal of Law and Commerce 175-199; J E Bailey “Facing the truth: Seeing the
74
performance, in particular, have attracted a great deal of academic comment and

criticism.214 The CISG incorporated a largely unrestricted right to claim specific
performance, mirroring the civilian approach to a large extent,215 while retaining a
proviso in Article 28 regarding the application of this remedy in order to facilitate
common-law countries.216
Articles 46 (buyer’s right) and 62 (seller’s right) contain the general provisions regarding
specific performance. In principle, the CISG entitles an aggrieved party to demand
performance from the defaulting party and authorises judicial enforcement of contractual
obligations.217 The rationale behind these provisions is to promote the pacta sunt
Convention on Contracts for the International Sale of Goods as an obstacle to a uniform

law of international sales” (1999) 32 Cornell International Law Journal 273-317; P
Hackney “Is the United Nations Convention on the International Sale of Goods achieving
uniformity?” (2001) 61 Louisiana Law Review 473-486.
214
Honnold Uniform Law for International Sales under the 1980 United Nations Convention
289.
215
See Kröll et al (eds) The United Nations Convention on Contracts for the International
Sale of Goods: Commentary 370 687.
216
See A H Kastely “The right to require performance in international sales: towards an
international interpretation of the Vienna Convention” (1988) 63 Washington Law Review
607 625; I Schwenzer (ed) Commentary on the UN Convention on the International Sale
of Goods 3 ed (2010) 459-460; 470 (by M Müller-Chen). For details of the negotiations
leading up to the compromise, see Boghossian 1999/2000 Pace Review of the
Convention on Contracts for International Sale of Goods 10-11.
217
L Chengwei Remedies for Non-performance – Perspectives from CISG, UNIDROIT
Principles and PECL (2007) 31-33 (also available online at
<http://www.jus.uio.no/sisu/remedies_for_non_performance_perspectives_from_cisg_upic
c_and_pecl.chengwei_liu/landscape.a5.pdf>).
75
servanda principle. Notably, this principle was not stated in a specific provision, as the
drafters considered it to be self-evident.218
However, in terms of Article 28, the judicial willingness under the CISG to order specific
performance may vary according to the substantive law of the forum in which an
aggrieved party seeks specific performance, i.e. the lex fori.219 This provision expressly
instructs a court to treat an action for specific performance as it would under its own
law.220 This creates serious doubt as to whether the CISG has in this context effected
real harmonisation. Therefore, this provision in particular has attracted a great deal of
criticism.221 It appears to address the concerns of both common- and civil-law systems,
but it creates uncertainty in the CISG’s approach to the enforcement of performance,
because contracting parties will be unsure whether specific performance will be
available in a given transaction if an action can be brought in two or more places, one
recognising specific performance as the primary remedy and the other recognising it
218
See O Lando “CISG and its followers: a proposal to adopt some International Principles of
Contract Law” (2005) 53 Am J Comp L 379 388; Boghossian 1999/2000 Pace Review of
the Convention on Contracts for International Sale of Goods 22-24.
219
See S Herman “Specific performance: a comparative analysis” (2003) 7(1) Edin LR 5 6.
220
See M Müller-Chen “Art 28” in Schwenzer (ed) Commentary on the UN Convention on the
International Sale of Goods 469-470: “The wording of Article 28 (‘braucht nicht’, ‘not
bound to’) gives the court some flexibility. Based on Article 28, it can reject the action for
performance, but does not have to, even if it would do so according its own law in a
specific case. The CISG itself does not reveal how this discretionary scope is to be
utilized. That would also be incompatible with the nature of this provision as a rule for
conflicts of laws. Instead, it is a matter for the lex fori to decide whether room for discretion
and evaluation exists and to what extent the cognizant adjudicative panels are permitted
to use it…”
221
See eg Kastely 1988 Washington Law Review 627 ff; M Wethmar-Lemmer “Specific
performance as a remedy in international sales contracts” (2012) 4 TSAR 700 707 ff.
76
only exceptionally.222 This clearly undermines the spirit of uniformity223 underlying the
CISG.224 While the need for such a provision is undeniable in the light of the divergent
viewpoints on specific performance as a contractual remedy, it clearly causes
uncertainty regarding the availability of specific performance as a remedy for breach.225
Therefore, it has been suggested that the provisions regulating the availability of
specific performance, more specifically Article 28, should be revised.226
However, several commentators have argued that the variable effect of this provision is
tempered by the custom in international trade in terms of which plaintiffs prefer to claim
damages rather than specific performance.227 Lando (more convincingly) argues that
222
See Boghossian 1999/2000 Pace Review of the Convention on Contracts for International
Sale of Goods 73-76; B Zeller CISG and the Unification of International Trade Law (2007)
55; Kröll et al (eds) The United Nations Convention on Contracts for the International Sale
of Goods: Commentary 372.
223
Uniformity is a goal expressly stated in Art 7(1) CISG: “In the interpretation of this
Convention, regard is to be had to its international character and to the need to promote
uniformity in its application and the observance of good faith in international trade.”
224
See J Erauw & H M Flechtner “Remedies under the CISG and limits to their uniform
character” in P Sarecevic & P Volken (eds) The International Sale of Goods Revisited
(2001) 35 54-55.
225
See C M Venter An Assessment of the South African Law Governing Breach of Contract
master’s dissertation Stellenbosch University (2004) 68-69; J Fitzgerald “CISG, specific
performance, and the civil law of Louisiana and Quebec” (1997) 16 Journal of Law and
Commerce 291.
226
See eg Venter An Assessment of the South African Law Governing Breach of Contract
68-69.
227
See Kröll et al (eds) The United Nations Convention on Contracts for the International
Sale of Goods: Commentary 372. See also J Felemegas “The right to require specific
performance: a comparison between provisions of the CISG regarding the right to require
specific performance and the counterpart provisions of the UNIDROIT Principles” in J
Felemegas (ed) An International Approach to the Interpretation of the United Nations
77
this compromise was in fact unnecessary and gives an alternative solution that appears
to be feasible. According to him, civil-law countries could have admitted that specific
performance should be restricted to situations for which the remedy is needed in
practice, while common-law countries could have admitted that there are situations in
which specific performance should be a right which a court would have to grant.228 An
alternative provision (assuming that Article 28 requires revision) would then state that
every creditor has a right to specific performance, subject to certain exceptions, where
the remedy is not considered necessary. This approach would be in line with the PICC
and the PECL, both of which are considered to be more successful in their treatment of
the remedy.229 Lando’s solution seems feasible, especially when one considers the
experiences of other comparable instruments. It obviates the need to resort to the
(often) complex rules of private international law and would result in the application of a
single rule embodied in an independent and impartial convention.
2 3 3 2 Specific performance under the PICC
The UNIDROIT Principles of International Commercial Contracts (PICC) is considered

to be one of the most important “soft law” instruments in the field of international trade
law. The PICC were prepared by the Governing Council of the International Institute for
the Unification of Private Law (UNIDROIT) and were first published in 1994.230 The
scope of the PICC is stated in paragraph 1 of the Preamble, according to which they
“set forth general rules for international commercial contracts”. Since their first
Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law
(2007) 148-149.
228
See O Lando “Non-performance (breach) of contracts” in A Hartkamp et al (eds) Towards
a European Civil Code 4 ed (2011) 681 687; C M Bianca & M J Bonell Commentary on the
International Sales Law: The 1980 Vienna Sales Convention (1987) 236-237.
229
See paras 2 3 3 6, 3 4 3 & 6 4 2 below.
230
For details on the background and the development of the PICC, see S Vogenauer & J
Kleinheisterkamp (eds) Commentary on the UNIDROIT Principles of International
Commercial Contracts (PICC) (2009) 3-12.
78
publication, the PICC have proved to be a serious alternative to national contract laws in
international disputes decided by arbitral tribunals, such as the International Chamber of
Commerce (ICC). Also, they have been accepted as a model for reforming the laws on
international contracts by major exporting and importing countries such as China. The
employment of the PICC as a model for legislative reform has perhaps even become
their most important role.231 The success of the PICC prompted the UNIDROIT to
prepare a second enlarged edition which was published in 2004.232 A marginally
amended third edition was published in 2010,233 and contains new sections on illegality,
restitution in case of failed contracts, conditions and plurality of parties.234
The foundational principles of the PICC are freedom of contract, pacta sunt servanda,
party autonomy, the observance of good faith and fair dealing, informality, openness to
commercial usages, and the policy to keep the contract alive wherever possible.235 The
PICC specifically states in Article 1.3 that “[a] contract validly entered into is binding
upon the parties. It can only be modified or terminated in accordance with its terms or
231
Vogenauer & Kleinheisterkamp (eds) Commentary on the UNIDROIT Principles 17 68-77.
See also J Kleinheisterkamp “UNIDROIT Principles of International Commercial Contracts
(PICC)” in J Basedow et al (eds) The Max Planck Encyclopedia of European Private Law
II (2012) 1727, 1730.
232
M J Bonell An International Restatement of Contract Law: the UNIDROIT Principles of
International Commercial Contracts 3 ed (2005) 6. The UNIDROIT Principles of
International Commercial Contracts (PICC) 2004 is available online at
<http://www.unidroit.org/english/principles/contracts/principles2004/integralversionprincipl
es2004-e.pdf>.
233
The UNIDROIT Principles of International Commercial Contracts 2010 is available online
at <http://www.unidroit.org/english/principles/contracts/principles2010/blackletter2010-
english.pdf>.
234
The sections on the right to performance (Arts 7.2.1-7.2.5) were left unchanged. The
relevant provisions of the PICC 2010 are reproduced in Addendum A 410.
235
Vogenauer & Kleinheisterkamp (eds) Commentary on the UNIDROIT Principles of
International Commercial Contracts (PICC) 15.
79
by agreement or as otherwise provided in these Principles”. In this regard it differs from

the other instruments under review, because the principle of pacta sunt servanda is
explicitly entrenched.236
In doing so, the PICC accepts as a general rule that every party has the right to require
performance of any obligation owed to him.237 The PICC distinguish between the right to
require performance of a monetary obligation238 and the right to require performance of
a non-monetary obligation.239 Article 7.2.1 provides that a creditor is always entitled to
require payment of an agreed sum of money. The term “monetary obligation” refers to
every obligation to make payment, i.e. the obligation to pay the contractual price as well
as any secondary obligations to pay a monetary amount, for example interest or
damages. The currency in which payment is to be made also does not affect the
application of Article 7.2.1. This right to claim payment obviously only arises when
performance becomes due. The only exception that applies to this right is if the seller is
required to resell goods which the buyer did not accept or pay for in terms of a certain
usage or practice.240
Article 7.2.2 gives an aggrieved party the right to specific performance of non-monetary
obligations. Specific performance is considered to be the basic right of every creditor,
and does not fall within the discretionary powers of a court. The court must order
specific performance, unless one of the exceptions provided by Article 7.2.2 applies.
The right to performance only arises when performance becomes due and the debtor
does not perform. The term “non-performance” is broadly defined in Article 7.1.1, and
includes situations where the debtor has not performed at all, has provided a partial or
236
Compare text to nn 265-266 (PECL) below.
237
International Commercial Contracts (PICC) 784-785 (by Schelhaas).
238
See Art 7.2.1 PICC (Addendum A 415).
239
240
See Art 1.9 PICC (Addendum A 411).
80
defective performance, or has tendered defective performance which has been validly
rejected by the creditor. The rather wide formulation of Article 7.2.2 (“an obligation other
than one to pay money”) probably suggests that it also covers negative obligations,
such as those contained in contracts in restraint of trade.241
As stated earlier, the PICC recognises certain exceptions to the creditor’s general right
to specific performance. This was done to facilitate both the civil-law as well as the
common-law systems and to achieve some sort of compromise between the diverging
viewpoints on specific performance.242
Article 7.2.2 lists five exceptions. Although the list is exhaustive, it covers a variety of
situations, since it uses open-ended terminology such as “unreasonably burdensome”
and “reasonably obtaining from another source”. The PICC even endorses the theory of
“efficient breach”243 in Article 7.2.2(c) by denying specific performance if performance
can be reasonably obtained from another source. This accords with the common-law
position.244 It follows that the creditor is prevented from claiming specific performance,
when (a) performance is impossible in law or in fact; (b) performance or, where relevant,
enforcement is unreasonably burdensome or expensive;245 (c) the party entitled to
performance may reasonably obtain performance from another source; (d) performance
is of an exclusively personal character;246 or (e) the party entitled to performance does
not require performance within a reasonable time after it has, or ought to have, become
aware of the non-performance.
241
242
125.
243
Discussed in more detail in para 3 2 below.
244
See references to Arts 9:102(2)(d) PECL (esp text to n 264) & III–3:302(5) DCFR (esp text
to n 278) & 132(2) CESL (n 293) below. See also para 3 4 3 (esp text to n 248) below.
245
246
81
The practical effect of the operation of one of these exceptions is that the aggrieved
party would have to be satisfied with damages247 and/or termination of the contract.248
However, the burden of proof in relation to these exceptions rests on the defaulting
party. They should therefore not be regarded as negative requirements that must be
met before the remedy of specific performance would be available to the aggrieved
party.249
2 3 3 3 Specific performance under the PECL
The PECL is a set of model rules that were prepared by the Commission on European
Contract Law (“Lando Commission”). The final part of the PECL was completed in
2002.250 The PECL are based on the concept of a uniform European contract law
system, and are intended to serve as a model for the judicial and legislative
development of contract law in Europe.251 In the broader sense, the PECL is described
as being a “set of general rules which are designed to provide maximum flexibility and
thus accommodate future development in legal thinking in the field of contract law”.252
The PECL were inspired by the CISG of 1980, however, they are a so-called “soft law”,
comparable to the American Law Institute’s Restatement of the Law of Contract, which
247
See Art 7.4.1 PICC (Addendum A 417). See also Art 9:103 PECL (text to n 268 below).
248
249
250
For details on the background and the development of the PECL, see preface to O Lando
& H Beale (eds) The Principles of European Contract Law Parts I & II (2000). The
Principles of European Contract Law 2002 (Parts I, II, and III) are available online at
<www.lexmercatoria.org>.
251
See Art 1:101(1) PECL. See also Busch et al (eds) The Principles of European Contract
Law and Dutch Law: A Commentary 5.
252
See Lando & Beale (eds) Principles of European Contract Law Parts I & II 27.
82
is supposed to restate the common law of the United States.253 Therefore, the PECL is
not considered to be legally binding. As Smits states, “the term ‘soft law’ is a blanket
term for all sorts of rules, which are not enforced on behalf of the state, but are seen, for
example, as goals to be achieved”.254 In this respect, the PECL are very similar to the
PICC. As is the case with the PECL, the PICC are a “private codification” prepared by
leading jurists without any national or supranational order or authorisation. The main
goal of both the PECL and the PICC was the compilation of uniform legal principles for
reference, and, if necessary, the development of national legal systems. However,
these two sets of Principles differ in one important respect – their scope of application.
The PICC only apply to commercial contracts, whereas the PECL apply to all contracts,
including consumer- and private contracts. Furthermore, the PECL only cover (Western)
Europe,255 while the PICC are to be applied globally.256
253
See O Lando “Salient features of the Principles of European Contract Law: a comparison
with the UCC” (2001) 13 Pace International Law Review 339 340-341; R Backhaus “The
limits of the duty to perform in the Principles of European Contract Law” 2004 8(1)
Electronic Journal of Comparative Law 1 3 (available online at
<http://www.ejcl.org/81/art81-2.PDF>); Lando 2005 Am J Comp L 382.
254
See J M Smits “A European private law as a mixed legal system” (1998) 5 Maastricht
Journal of European and Comparative Law 328 331.
255
See Art 1:101 PECL. Obviously the PECL will also apply when the parties have agreed to
incorporate them into their contract. Conversely, the parties are also allowed to exclude
the application of any of the Principles or derogate from or vary their effects, except as
otherwise provided by the PECL (Art 1:102(2)).
256
See Busch et al (eds) The Principles of European Contract Law and Dutch Law: A
Commentary 14-15. See also S Eiselen “Specific performance and special damages” in H
L MacQueen & R Zimmermann (eds) European Contract Law: Scots and South African
Perspectives (2006) 249 268.
83
The point of departure under the PECL is that every creditor has a right to claim specific
performance.257 The PECL have followed the civilian approach, in granting the remedy
as of right. The exceptions to this general rule are explicitly listed and operate strictly.
This means that if none of the exceptions are present, a court would not have a
discretion to refuse the remedy.258 The reason for recognising certain exceptions is that
the PECL sought a compromise between the diverging common-law and civil-law
viewpoints on specific performance.259
According to Article 9:101 the creditor is entitled, as a rule, to enforce the performance
of any monetary obligation that is due. The term “monetary obligation” refers to every
obligation to make a payment, regardless of the form of payment and the currency in
which it is to be paid, or even the nature of the obligation. This indicates that it is of no
relevance whether the obligation concerns the payment of a price for goods the debtor
bought or a service he received, or even the payment of damages or interest.260 Thus,
the meaning of the term under the PICC and the PECL is exactly the same.
Article 9:101(2) addresses the situation where a debtor is unwilling to receive the
creditor’s performance in terms of a reciprocal contract, thereby preventing its own
obligation from becoming due. It states that the creditor may proceed with his
performance and subsequently claim performance of the debtor’s obligation. However, it
goes on to limit this claim to situations where the creditor could not have made another
257
See Art 9:101(1) & Art 9:102(1) PECL. The relevant provisions of the PECL are
reproduced in Addendum A 418.
258
See Lando & Beale (eds) Principles of European Contract Law Parts I & II 396; Busch et
al (eds) The Principles of European Contract Law and Dutch Law: A Commentary 347-
357.
259
See Lando & Beale (eds) Principles of European Contract Law Parts I & II 395; G J P de
Vries Remedies op Grond van Niet-Nakoming van Internationale Contracten in het Licht
van de PECL (2002) 25.
260
Commentary 347.
84
transaction that would not have caused him significant expense or effort and if
performance by the creditor would not be unreasonable in the circumstances, for
example, “where the debtor makes it clear that he no longer wants it”.261
Article 9:102, on the other hand, relates to the right to claim performance of non-
monetary obligations. Article 9:102(1) specifically provides that “[t]he aggrieved party is
entitled to specific performance of an obligation other than one to pay money, including
the remedying of a defective performance”. The following paragraph proceeds to list the
situations in which specific performance will not be granted. These include instances
where (a) performance would be unlawful or impossible; or (b) performance would
cause the debtor unreasonable effort or expense;262 or (c) the performance entails
provision of services or work of a personal character or depends upon a personal
relationship;263 or (d) the aggrieved party may reasonably obtain performance from
another source.264 Article 9:102(3) adds to this list, by stating that the aggrieved party
will lose his right to specific performance if he fails to exercise it within a reasonable
time after he has or ought to have become aware of the non-performance.
The aggrieved party’s right to specific performance also stems from the principle of
pacta sunt servanda.265 While the principle is expressly contained in the PICC, the
drafters of the PECL (like those of the CISG) considered it so obvious that they did not
include it in a specific provision. It is, however, implied in several articles, including
Article 1:102(1), which provides that the “parties are free to enter into a contract and to
261
See Lando & Beale (eds) Principles of European Contract Law Parts I & II 392; and see
Art 9:101(2)(a)-(b) Addendum A 421. Compare also text to n 244 (PICC) above.
262
263
264
See E Clive & D Hutchison “Breach of contract” in R Zimmermann, D Visser & K Reid
(eds) Mixed Legal Systems in Comparative Perspective: Property and Obligations in
Scotland and South Africa (2004) 176 195; Busch et al (eds) The Principles of European
Contract Law and Dutch Law: A Commentary 353 (by M B M Loos).
265
See Lando & Beale (eds) Principles of European Contract Law Parts I & II 391.
85
determine its contents …”, and Article 6:111(1), which provides that “[a] party is bound
to fulfil its obligations even if performance has become more onerous, whether because
the cost of performance has increased or because the value of the performance it
receives has diminished”.266
It is important to note that enforcement of this right depends on whether the debtor’s
performance was due under Article 7:102, and whether a failure to perform at that time
actually amounted to non-performance in terms of Article 1:301(4).267 As indicated
above, enforcement of this right depends on whether it is not excluded in terms of
Article 9:102. Also, note that “[t]he fact that a right to performance is excluded under this
Section does not preclude a claim for damages” (Article 9:103).268
2 3 3 4 Specific performance under the DCFR
The Draft Common Frame of Reference (DCFR)269 is “[a]n academic, not politically
authorised text”; its purpose is to serve as a “possible model for an actual or ‘political’
Common Frame of Reference”.270 It is based in part on a revised version of the
266
See further D P Flambouras “The doctrines of impossibility of performance and clausula
rebus sic stantibus in the 1980 Convention on Contracts for the International Sale of
Goods and the Principles of European Contract Law – a comparative analysis” (2001) 13
Pace International Law Review 261 286. See also para 6 4 2 below on these doctrines.
267
See Addendum A 419.
268
Commentary 351 ff (esp 402 on the issue of termination).
269
Study Group on a European Civil Code & Research Group on Existing EC Private Law
Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of
Reference (DCFR) (2009) – see Addendum A 422.
270
C von Bar & E Clive (eds) Principles, Definitions and Model Rules of European Private
Law: Draft Common Frame of Reference (DCFR) I (2009) 3-4: “It must be stressed that
what is referred to today as the DCFR originates in an initiative of European legal
scholars. It amounts to the compression into rule form of decades of independent
research and co-operation by academics with expertise in private law, comparative law
86
Principles of European Contract Law,271 however, it goes further in terms of coverage

as it “embraces non-contractual obligations to a far greater extent than the PECL”.272
This present section is brief, given that the provisions in the PECL and the DCFR on
specific performance display a high degree of similarity. According to Article III–3:301
DCFR,273 the creditor is entitled, as a rule, “to recover money payment of which is
due”.274 Article III–3:302 DCFR governs the availability of specific performance for non-
monetary obligations. According to Article III–3:302(1)-(2), the creditor is entitled to
“enforce specific performance of an obligation other than one to pay money”, which
“includes the remedying free of charge of a performance which is not in conformity with
the terms regulating the obligation”.
Article III–3:302(3) contains a number of exceptions, i.e. situations in which specific

performance will not be granted for a non-monetary obligation, namely, where (a)
performance would be unlawful or impossible; (b) performance would be unreasonably
burdensome or expensive;275 or (c) performance would be of such a personal character
and European Community law … If the content of the DCFR is convincing, it may
contribute to a harmonious and informal Europeanisation of private law.”
271
See G Low “Performance remedies and damages – a selection of issues”, unpublished
paper presented at a conference on The Relationship between European and Chinese
Contract Law hosted by the Tsinghua University in Beijing 16-17 February 2012 (copy on
file with author) 5.
272
4, 11, 16-17. See also P Varul “Performance and remedies for non-performance:
comparative analysis of the PECL and DCFR” 2008 Juridica International 104 106; G
Dannemann & S Vogenauer “Introduction” in G Dannemann & S Vogenauer (eds) The
Common European Sales Law in Context: Interactions with English and German Law
(2013) 1 10.
273
The relevant provisions of the DCFR are reproduced in Addendum A 422.
274
See further Von Bar & Clive (eds) Principles, Definitions and Model Rules of European
Private Law: Draft Common Frame of Reference (DCFR) 824-828.
275
87
that it would be unreasonable to enforce it.276 Article III–3:302(4), like the PICC and the
PECL, adds to these exceptions, by stating that the creditor will lose the right to specific
performance “if performance is not requested within a reasonable time after the creditor
has become, or could reasonably be expected to have become, aware of the non-
performance”.
Furthermore, and unlike the PECL,277 the DCFR provides in Article III–3:302(5) that the
“creditor cannot recover damages for loss or a stipulated payment for non-performance
to the extent that the creditor has increased the loss or the amount of the payment by
insisting unreasonably on specific performance in circumstances where the creditor
could have made a reasonable substitute transaction without significant effort or
expense”.278 This provision does not directly restrict the right to claim specific
performance, and differs from the provisions contained in the PICC and the PECL that
exclude specific performance if the aggrieved party may reasonably obtain performance
from another source. Instead, it discourages the creditor from insisting on specific
performance if to do so would inflate the damages payable for non-performance, or the
amount of stipulated payment for non-performance, if it would have been more
reasonable to arrange for a substitute transaction – thereby facilitating an efficient
breach. According to Low “[t]he effect of this and the previous rule is to create an
incentive towards an efficient breach of contract – where the debtor will prefer to breach
and pay expectation damages, rather than incur the relatively higher performance
interest”.279
Under the DCFR (like the PICC and the PECL) the creditor has a substantive right to
enforce performance of monetary and non-monetary obligations. Also, granting an order
276
See para 4 7 below.
277
Varul 2008 Juridica International 109.
278
Von Bar & Clive (eds) Principles, Definitions and Model Rules of European Private Law:
Draft Common Frame of Reference (DCFR) 833-834. See also G Low “Performance
remedies and damages – a selection of issues” 5.
279
Low “Performance remedies and damages – a selection of issues” 5-6.
88
for specific performance is not in the discretion of the court; the court must make such
an order, unless the exceptions apply.280 And even if one of these exceptions apply,
according to Article III–3:303, damages is always available if the non-performance has
caused the creditor loss (unless the non-performance is excused and subject to the
proviso contained in Article III–3:302(5)).281
2 3 3 5 Specific performance under the CESL
On 11 October 2011,282 the European Commission proposed an optional283 Common

European Sales Law (or CESL),284 which traders may choose to use to govern their
cross-border contracts.285 The CESL is based on the Draft Common Frame of
Reference (DCFR), which in turn was based in part on the Principles of European
280
Von Bar & Clive (eds) Principles, Definitions and Model Rules of European Private Law:
Draft Common Frame of Reference (DCFR) 828-829.
281
842.
282
See European Commission press release – available online at
<http://ec.europa.eu/justice/contract/files/common_sales_law/i11_1175_en.pdf>.
283
G Low “A psychology of choice of laws” 2013 European Business Law Review 363: “Being
an optional instrument, CESL adds to the buffet of transnational, national and soft laws
that parties may already choose from as regards applicable laws to contracts.” See also H
L MacQueen “The Europeanisation of contract law: the Proposed Common European
Sales Law” University of Edinburgh School of Law Research Paper No 17 (2014) 3.
284
Proposal for a Regulation of the European Parliament and of the Council on a Common
European Sales Law, COM (2011) 635 final. Annex I to the Regulation contains the text of
the Common European Sales Law. The Proposal is available online at
<http://ec.europa.eu/justice/contract/files/common_sales_law/regulation_sales_law_en.pdf
>.
285
Magnus “CISG vs. CESL” in U Magnus (ed) CISG vs. Regional Sales Law Unification:
With a Focus on the New Common European Sales Law 99: “it is only applicable if the
parties choose it. Although it contains mandatory provisions, the whole instrument is
optional in the sense that it – and also its mandatory provisions – does not apply without a
valid choice. In contrast to the CISG it is thus an opt-in solution.”
89
Contract Law (PECL).286 “The purpose of this Regulation is to improve the conditions for
the establishment and the functioning of the internal market by making available a
uniform set of contract law rules ...”287 The proposed CESL covers the sale of goods,
the supply of digital content and some related services.288 The European Parliament
adopted a legislative resolution on the Proposal in February 2014. A decision by the
European Council on its acceptance is, however, pending. The proposal has been met
with opposition from the majority of EU states, including the UK and Germany,289 and
approval by the Council in the near future therefore seems unlikely.290
Article 106 CESL contains the general provisions on the buyer’s remedies in the case of
non-performance of an obligation by the seller.291 Three types of remedies are
available, namely, first, the right to specific performance (together with other remedies
aimed at fulfilment: the right to withhold performance to achieve specific performance of
the contract and to claim a price reduction), second, termination together with return of
286
I Schwenzer “The Proposed Common European Sales Law and the Convention on the
International Sale of Goods” (2012) 44 Uniform Commercial Code Law Journal 457 458.
See also Varul 2008 Juridica International 106; Von Bar & Clive (eds) Principles,
Definitions and Model Rules of European Private Law: Draft Common Frame of Reference
(DCFR) 4; S Whittaker & K Riesenhuber “Conceptions of contract” in G Dannemann & S
Vogenauer (eds) The Common European Sales Law in Context: Interactions with English
and German Law (2013) 120 137 ff.
287
Art 1(1) CESL; see also Explanatory Memorandum to the CESL, COM (2011) 4.
288
Art 1(1) CESL; see also para 4 7 n 314 below.
289
Their parliaments specifically question whether the principle of subsidiarity has been
respected.
290
See further Dannemann & Vogenauer “Introduction” in Dannemann & Vogenauer (eds)
The Common European Sales Law in Context: Interactions with English and German Law
15; E Clive European Private Law News, 26 February 2014. Post available online at
<http://www.epln.law.ed.ac.uk/2014/02/26/european-parliament-adopts-proposal-for-a-
common-european-sales-law/>.
291
The relevant provisions of the CESL are reproduced in Addendum A 425.
90
the contract price and, third, damages. This framework of remedies reveals that a
buyer’s primary remedy292 is to “require performance, which includes specific
performance, repair or replacement of the goods or digital content”.293
Also, the buyer’s remedy corresponds to the seller’s right to cure.294 The seller is
entitled to cure a defective tender under Article 109(1) CESL and the buyer has the right
to require him to do so under Article 110 CESL; which states that the buyer is entitled to
“require performance of the seller’s obligations”, which “includes the remedying free of
charge of a performance which is not in conformity with the contract”.295
A seller thus has a choice to either repair the defective goods or to replace them with
conforming goods. It must be noted that a distinction is made between if the buyer is a
trader or if he is a consumer. In the case of a consumer sales contract, this choice is
with the consumer pursuant to Article 111, which must be completed by the seller within
292
According to Art 106(1)(a) CESL.
293
Specific performance for the seller is usually a claim for the purchase price. According to
Art 132, the seller is equally entitled to this remedy, to recover payment of the price when
it is due, and to require performance of any other obligation undertaken by the buyer.
Also, under Art 132(2), where the buyer has not yet taken over the goods or the digital
content, and it is clear that the buyer will be unwilling to receive performance, the seller
may nonetheless require the buyer to take delivery, and may recover the price, unless the
seller could have made a reasonable substitute transaction without significant effort or
expense.
294
See generally R Schulze (ed) Common European Sales Law (CESL) – Commentary
(2012) 504 ff (by F Zoll); H L MacQueen et al “Specific performance and right to cure” in G
Dannemann & S Vogenauer (eds) The Common European Sales Law in Context:
Interactions with English and German Law (2013) 612 629 ff.
295
Compare III–3:302(1)-(2) DCFR above.
91
a reasonable time not exceeding 30 days from the moment of the buyer’s
communication; otherwise the consumer may resort to other remedies.296
Exceptions to the right to specific performance are stated in Article 110(3).297 The
circumstances where specific performance cannot be required under the CESL are
where:298 (a) performance would be impossible or has become unlawful;299 or (b) the
burden or expense of performance would be disproportionate to the benefit that the
buyer would obtain.300
The reason for recognising certain exceptions is that the CESL (like the other
instruments under consideration) sought to achieve “a compromise solution reflecting
296
Where the remedy is replacement, the seller has a right and an obligation to take back the
replaced item at his own expense. Also, the buyer is not liable to pay for any use made of
the replaced item in the period prior to the replacement (Art 112). See further Schulze (ed)
Common European Sales Law (CESL) – Commentary 509-511 (by Zoll).
297
See also Art 111(1) to the effect that the consumer’s entitlement to require specific
performance (repair/replacement) is also lost in the cases where the buyer would not be
entitled to specific performance (Schulze (ed) Common European Sales Law (CESL) –
Commentary 509; MacQueen et al “Specific performance and right to cure” in Dannemann
& Vogenauer (eds) The Common European Sales Law in Context: Interactions with
English and German Law 630).
298
In addition to the qualification that the right to demand cure by the seller also requires that
the non-performance is not excused – see Schulze (ed) Common European Sales Law
(CESL) – Commentary 504-505.
299
Art 110(3)(a) CESL.
300
Art 110(3)(b) CESL. See Schulze (ed) Common European Sales Law (CESL) –
Commentary 507 (by Zoll, explaining the effect of this exclusion): “The right to require
performance should not be economically inefficient. If the application of other remedies
(eg damages) combined with the substitute transaction is essentially cheaper than
imposing the performance on the seller, then this substitute transaction should be
preferred.” For further discussion see para 6 4 2 below.
92
the different legal traditions, which contradict at this point”.301 This way of regulating the
availability of specific performance largely corresponds to the other instruments under
review. The buyer may demand performance of the seller’s obligations, unless certain
exceptions apply. And if one of these exceptions applies, it still does not prevent the
buyer from exercising other remedies that are available under the CESL,302 including
termination of the contract as well as damages for loss suffered as a result of the non-
performance.303
2 3 3 6 Comparative remarks on the international instruments
As indicated above, the PICC, the PECL, the DCFR and the CESL favour specific
performance as the primary remedy and a creditor will most likely obtain an order for
specific performance under these instruments.304 In contrast to the CISG, these
instruments do not treat specific performance as a remedy which is dependent on the
rules of the forum.305 However, even though these instruments have adopted the
general principle of specific performance, they also recognise a number of important
exceptions, for example, when performance is impossible or disproportionally onerous
301
Schulze (ed) Common European Sales Law (CESL) – Commentary 504 (by Zoll).
302
See again Art 106 CESL.
303
See again Schulze (ed) Common European Sales Law (CESL) – Commentary 505 (by
Zoll). See also Art 106(4) CESL: If the seller’s non-performance is excused, the buyer may
resort to any of the remedies referred to in Art 106(1) except requiring performance and
damages.
304
See Heutger & Oosterhuis “Specific performance within the hierarchy of remedies in
European contract law” in Smits et al (eds) Specific Performance in Contract Law:
National and Other Perspectives 152.
305
See Lando & Beale (eds) Principles of European Contract Law Parts I & II 396
(commenting on the PECL in particular): “Granting an order for performance thus is not
within the discretion of the court; the court is bound to grant the remedy, unless the
exceptions […] apply. National courts should grant performance even in cases where they
are not accustomed to do so under their national law.”
93
by reason of legal or practical difficulties306 or when performance is of an exclusively

personal character.307
It is evident that there are several similarities between these instruments and the
corresponding provisions in the Civil Codes of both Germany308 and the Netherlands.
The ideology is more or less the same. Freedom of contract and the twin notion of pacta
sunt servanda seem to underpin all of these codifications.309 Contractual freedom is,
however, restricted and modified by principles of reasonableness, good faith and
equity.310 Accordingly, some exceptions to the general principle of specific performance
have been recognised.
It has been said that the exceptions recognised under these instruments can be
regarded as expressions of the general principle of reasonableness.311 “It is also clear
that some of the specific grounds for refusal have a lot of hidden discretion within them.
The rules are therefore flexible. None the less they seem principled in setting out the
306
307
Excluding the CISG & CESL – see para 4 7 n 314 below.
308
See eg MacQueen et al “Specific performance and right to cure” in Dannemann &
and German Law 624-629.
309
See eg Whittaker & Riesenhuber “Conceptions of contract” in Dannemann & Vogenauer
(eds) The Common European Sales Law in Context: Interactions with English and
German Law 148 ff; G Low “Performance remedies and damages – a selection of issues”
6.
310
See Whittaker & Riesenhuber “Conceptions of contract” in G Dannemann & S Vogenauer
German Law 150 ff, and paras 6 3 & 6 4 below.
311
See eg D Haas, G Hesen & J Smits “Introduction” in J Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives (2008) 1 2-3. See also
para 6 4 2 below.
94
rules in terms of a qualified right, rather than a discretionary remedy.”312 Thus, while
adopting the civil-law position regarding the availability of the remedy, these instruments
resemble the common-law position in stating that specific performance cannot be
awarded in certain circumstances.
Even though all of the instruments favour specific performance as the primary remedy,
the conditions for obtaining such an order differ somewhat. It is clear that the rules
regarding the right of a creditor to require performance by the debtor under the PICC,
the PECL, the DCFR and the CESL, unlike the rules of the CISG, form what is perhaps
a more detailed and coherent set of regulations, since they contain defined exceptions
to the general principle. This is said to clarify the availability of specific performance as
a remedy for breach of contract.313
2 4 Evaluative remarks and conclusions
The civil law and common law clearly differ in their theoretical approach to specific
performance.314 In Anglo-American law, breach of contract provides the aggrieved party
with a right to claim damages, while in civil-law countries, the aggrieved party maintains
a right to demand performance of the contract. The Anglo-American approach is
regarded as being oriented towards economically desirable solutions, whereas the civil-
312
Clive & Hutchison “Breach of contract” in Zimmermann et al (eds) Mixed Legal Systems in
Comparative Perspective 195-196 (commenting on the PECL in particular).
313
See generally Felemegas “The right to require specific performance: a comparison
between provisions of the CISG regarding the right to require specific performance and
the counterpart provisions of the UNIDROIT Principles” in Felemegas (ed) An International
Approach to the Interpretation of the United Nations Convention on Contracts for the
International Sale of Goods (1980) as Uniform Sales Law 143-159; Torsello “Remedies for
breach of contract” in Smits (ed) Elgar Encyclopedia of Comparative Law 765-766. See
also text to n 236 para 2 3 3 1 (CISG) above.
314
See further M Hogg Promises and Contract Law: Comparative Perspectives (2011) 353;
Chen-Wishart Contract Law 553.
95
law approach gives stronger expression to the principle of pacta sunt servanda.
However, even though their underlying ideologies differ considerably, both systems
regulate the remedy in terms of clearly defined rules, and the practical differences are
often not as great as the theory suggests.315 Shavell, for example, acknowledges that
the common law and German law in practice reach much the same solution by different
routes, at least in the most important cases.316 The civil-law jurisdictions accept that
there are certain exceptions to the creditor’s right, while Anglo-American law leaves an
order of specific performance at the discretion of the courts. This dicretion is to be
exercised according to settled rules and principles. An analysis of the practical solutions
reached in both systems suggests that there is an increasing convergence between
them towards similar solutions with respect to the remedy of specific performance.
Examining these developments could potentially contribute significantly to our law
governing the availability of specific performance.
The model instruments under review also contain certain defined exceptions to the
general principle of specific performance based on considerations of good faith and
reasonableness. The drafters of these codifications recognised that this right could not
be accepted without qualification. The same problems that are currently concerning our
courts and academic writers prompted the inclusion of these defined exceptions. These
instruments are considered compilations of uniform legal principles for reference, and
the development of national legal systems. These insights could also be potentially
instructive to our law governing the availability of specific performance.
315
See eg Zweigert & Kötz Comparative Law 484; M P Furmston “Breach of contract” (1992)
40(3) Am J Comp L 671 674, and Haas, Hesen & Smits “Introduction” in Smits et al (eds)
Specific Performance in Contract Law: National and Other Perspectives 2. See also
reference to Beck in text to nn 250-251 para 3 4 3 below, and to Lord Hoffmann in text to
n 58 para 5 2 (i) below.
316
S Shavell “The design of contracts and remedies for breach” (1984) 97 Quarterly Journal
of Economics 121-148.
96
As we have seen, South African law recognises a right to specific performance, but
subject to a general judicial discretion unfettered by specific rules. It is quite striking that
the civilian jurisdictions and the international instruments under review do not retain
such an unrestrictive discretion as our courts do. The question is now whether South
African courts should similarly follow a more concrete approach, and adopt defined
rules with regard to when specific performance should be refused. In the common law,
the jurisdiction of a court to grant specific performance in such circumstances is also
confined within well-known rules. It has been said that common-law countries are
generally not concerned with abstract theory,317 but rather with the practical
appropriateness of legal rules and therefore prefer a legal framework that leads to an
optimal allocation of resources.318 It may therefore be concluded that the South African
approach is remarkably out of line with the two major traditions that formed it. This
suggests that it requires serious reconsideration, from both a theoretical and practical
perspective.319
317
See eg B J van Heerden “An exploratory introduction to the economic analysis of law”
(1981) 4 Responsa Meridiana 147.
318
In line with the economic theory of law – discussed in more detail in para 3 4 2 below.
319
See also para 7 1 below.
97
CHAPTER 3: ADEQUACY OF DAMAGES
3 1 Introduction
The preceding historical and comparative overviews only dealt with general principles or
points of departure. This chapter is the first of a series of discussions of more specific
considerations that influence awarding specific performance. It commences with the
basic position regarding adequacy of damages as a factor that courts may consider in
exercising the discretion to award specific performance in Anglo-American law.
Thereafter the discussion turns to the effect of adequacy of damages on the availability
of specific performance in South African law, and specifically on the extent to which the
English common law has shaped our courts’ attitude in this regard. Finally, the chapter
explores the relevance of this consideration in other systems, and then draws
comparative conclusions, especially with a view to benefiting the development of South
African law.
The primary focus of this chapter will be on Anglo-American law and its influence on
South African law, rather than on the civil law, where the question as to the inadequacy
of damages does not arise as directly as in Anglo-American law. As we have seen, the
former tradition regards specific performance as a supplementary remedy that is
available only when some other legal remedy is believed to be inadequate,1 whereas
the latter tradition regards specific performance as equally available with other
remedies, to be granted when it will be the most appropriate and effective remedy in the
circumstances. In the civil law, and model instruments,2 the inadequacy-of-damages
1
See paras 2 1 & 2 3 2 above.
2
These instruments, in contrast to Anglo-American law, recognise specific performance as
their primary or default remedy for breach of contract and generally do not accord the
courts any discretion in granting it. Instead, they grant the creditor a right to specific
performance, subject to certain exceptions. The right to claim specific performance under
these instruments does not depend on the inadequacy of damages. See paras 2 3 1 &
2 3 3 above. See further A M Garro “Reconciliation of legal traditions in the UN
98
requirement is not central to the problem of whether the specific performance is

available. The enforcement of obligations is more important, and is regarded as
essential to give expression to the principle of pacta sunt servanda.3
3 2 Adequacy of damages in Anglo-American law
The point of departure in Anglo-American law (which in this respect is curiously similar
to Roman law)4 is to grant substitutionary relief, normally in the form of damages. It is
only when awarding damages is inadequate, or is insufficient to do “complete justice”
between the parties, that it will be in the discretion of the court to grant specific
performance.5 The right to specific performance therefore turns upon whether the
plaintiff can be properly compensated by a remedy at law.6 The existence and
Convention on Contracts for the International Sale of Goods” 1989 The International
Lawyer 443 458.
3
4
See B J van Heerden “An exploratory introduction to the economic analysis of law” 1981
Responsa Meridiana 147 152; P Gross “Specific performance of contracts in South Africa”
1934 SALJ 347; A Beck “The coming of age of specific performance” 1987 CILSA
190 191; J J du Plessis “Spesifieke nakoming: ‘n regshistoriese herwaardering” 1988
THRHR 349 356-357, and para 2 2 1 above.
5
See generally para 2 3 2 above. See further on this theoretical basis of equitable
jurisdiction, A E Randall Leake on Contracts (1921) 839; Lord Mackay of Clashfern (ed)
Halsbury’s Laws of England 4 ed reissue vol 16(2) (2003) para 410; J H Baker An
Introduction to English Legal History 4 ed (2002) 98 ff; The Oxford History of the Laws of
England VI (2004) 174 ff; J E Martin Hanbury & Martin’s Modern Equity 19 ed (2012) 34-
35, 762 ff.
6
As was said in the case of Ryan v Mutual Tontine Westminster Chambers Association
[1893] 1 Ch 116, 126 per Kay LJ: “This remedy by specific performance was invented, and
has been cautiously applied, in order to meet cases where the ordinary remedy by an
action for damages is not an adequate compensation for breach of contract. The
jurisdiction to compel specific performance has always been treated as discretionary, and
confined within well-known rules.” And in Union Pacific Railway Co v Chicago, Rock Island
99
adequacy of such a remedy constitutes the determinative factor when a court has to
decide whether or not to grant specific performance of a contract.7
This inadequacy-of-damages criterion finds its origin in early English common law,
where it was originally adopted to minimise the conflict between courts of law and courts
of equity, the latter being able to intervene only where the former could not provide
adequate relief.8
The concept that the conclusion of a contract creates an enforceable duty to perform is
foreign to common law. Instead, the point of departure is the proposition expressed by
& Pacific Railway Co 163 U.S. 564, 600 (1896) per Fuller CJ: “The jurisdiction of courts of
equity to decree the specific performance of agreements is of a very ancient date, and
rests on the ground of the inadequacy and incompleteness of the remedy at law. Its
exercise prevents the intolerable travesty of justice involved in permitting parties to refuse
performance of their contracts at pleasure by electing to pay damages for the breach.”
See also R J Sharpe “Specific relief for contract breach” in B J Reiter & J Swan (eds)
Studies in Contract Law (1980) 123 126.
7
See further for the English rule on the adequacy of damages: Buxton v Lister (1746) 26
ER 1020, 1021; Harnett v Yielding (1805) 2 Sch & Lef 549, 553; Adderley v Dixon (1824)
1 Sim & St 607, 610; Wilson v Northampton and Banbury Junction Railway Co (1874) 9
Ch App 279, 284; Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1997]
2 WLR 898, 903; Bankers Trust Co v P T Jakarta International Hotels Development [1999]
1 Lloyd’s Rep 910, 911. See also Benson v SA Mutual Life Assurance Society 1986 (1)
SA 776 (A) 785C-D per Hefer JA: “The most important rule, from which many of the others
derived, was that specific performance would not be granted where the plaintiff could be
compensated adequately by damages. It would thus appear that even in the Court of
Chancery the emphasis fell on damages and that an order for specific performance was
the exception rather than the rule.”
8
See I C F Spry The Principles of Equitable Remedies: Specific Performance, Injunctions,
Rectification and Equitable Damages 8 ed (2010) 59: “Historically the basis for the grant of
specific performance by courts of equity has been the inadequacy of legal remedies, and
particularly of damages, in the material circumstances.”
100
Holmes9 that “the only universal consequence of a legally binding promise is that the
law makes the promisor pay damages if the promised act does not come to pass”.10
The inadequacy-of-damages test is also applied in American law;11 as § 359 (1) of the
American Law Institute’s Restatement (Second) of Contracts states:
“Specific performance or an injunction will not be ordered if damages would be adequate to

protect the expectation interest of the injured party.”12
Thus, where the remedy of damages (or other common law remedies) does provide
adequate protection to the creditor, specific performance will not be granted. This
criterion ultimately constitutes the central consideration in Anglo-American law
9
10
O W Holmes Jr The Common Law (1881) 301. See also “The path of the law” (1897) 10
Harv LR 457 462 (reprinted (1998) 78 Boston University Law Review 699 702); K Zweigert
& H Kötz Introduction to Comparative Law (tr T Weir) 3 ed (1998) 480-481; R M
Cunnington “The inadequacy of damages as a remedy for breach of contract” in C E F
Rickett (ed) Justifying Private Law Remedies (2008) 115 133. From an economic point of
view “[t]he simple theory of efficient breach advances a prescriptive version of that
Holmesian Heresy: the law prefers an efficient breach to inefficient performance, and so a
contractual duty is no more than a duty to perform or pay damages, whichever is cheaper
…” (G Klass “Efficient breach is dead; long live efficient breach” Georgetown Public Law
and Legal Theory Research Paper No 13-018 (2013) available online at
<http://scholarship.law.georgetown.edu/facpub/1185>. See also G Klass “Efficient breach”
forthcoming in G Klass, G Letsas & P Saprai (eds) The Philosophical Foundations Of
Contract Law).
11
See generally E A Farnsworth Contracts 3 ed (1999) §§ 12.4-12.7; J M Perillo (ed) Corbin
on Contracts 12: Restitution, Specific Performance and Election of Remedies Interim ed
(2002) § 1139; J M Perillo Calamari and Perillo on Contracts 6 ed (2009) §§ 16.1-16.4; G
Klass Contract Law in the USA (2010) 212.
12
The relevant provisions of the Second Restatement and the US Uniform Commercial
Code are reproduced in Addendum A (382-388 below).
101
regarding the availability of specific performance as a remedy for breach.13 So it was

stated by Lord Redesdale in Harnett v Yielding:14
“Unquestionably the original foundation of these decrees was simply this, that damages at
law would not give the party the compensation to which he was entitled: that is, would not put
15
him in a situation as beneficial to him as if the agreement were specifically performed.”
It is important to note that the process whereby the aggrieved party obtains a substitute
performance and claims the expense of doing so from the party in breach is regarded
as a form of damages and not as specific performance in Anglo-American law.16 If the
creditor can procure suitable substitute performance, i.e. if he is able to make a so-
called “cover” transaction, equity will not intervene.17 Therefore, specific performance of
contracts for the sale of shares in companies,18 or of generic goods, which are available
in the market at an ascertainable price, is generally not ordered.19
13
Zweigert & Kötz Comparative Law 480; R Stone The Modern Law of Contract 10 ed
(2013) 501 ff.
14
(1805) 2 Sch & Lef 549, 553. See also H G Beale et al (eds) Chitty on Contracts I:
General Principles 31 ed (2012) 1907; and for the US, Perillo (ed) Corbin on Contracts §
1139.
15
See more recently I C F Spry The Principles of Equitable Remedies: Specific
Performance, Injunctions, Rectification and Equitable Damages 8 ed (2010) 59:
“Historically the basis for the grant of specific performance by courts of equity has been
the inadequacy of legal remedies, and particularly of damages, in the material
circumstances.”
16
Cf for German law: para 4 5 1 n 264 below.
17
As stated by Andrews CJ in Dills v Doebler 62 Conn. 366 (1892): “The universal test of the
jurisdiction of a court of equity to restrain the breach of a contract is the inadequacy of the
legal remedy of damages.” See earlier Snell v Mitchell 65 Me. 48. (1876). See also n 102
below.
18
See Ryan v McLane 46 A. 340 (1900); Rimes v Rimes 111 S.E 34 (1922); McCutcheon v
National Acceptance Corp 197 So. 475 (1940); Hurley v Thomas 169 So. 2d 519 (Fla.
102
This rationale appears from the following dictum by Leach VC in Adderley v Dixon:20
“So a Court of Equity will not, generally decree specific performance of a contract for the sale
of stock or goods, not because of their personal nature, but because damages at law,
calculated upon the market price of the stock or goods, are as complete a remedy to the
purchaser as the delivery of the stock or goods contracted for; inasmuch as, with the
damages, he may purchase the same quantity of the like stock of goods.”
Section 2-716(3) of the US Uniform Commercial Code (UCC) likewise determines that a
buyer would be entitled to specific performance where he is unable to find replacement
goods (i.e. to “cover”)21 on the open market or if he is only able to do so at considerable
expense, inconvenience, or risk.22 However, where the goods involved are not unique,
Dist. Ct. App. 2d Dist. 1964); Gingerich v Protein Blenders Inc 95 N.W.2d 522 (1959);
Express Shipping Ltd v Gold 880 N.Y.S.2d 183 (2d Dep’t 2009). And for England, see
Cud v Rutter (1720) 1 P Wms 570, where specific performance of contract to sell stock
was refused; Lord Parker LC holding that “a court of equity ought not to execute any of
these contracts, but to leave them to law, where the party is to recover damages, and with
the money may if he pleases buy the quantity of stock agreed to be transferred to him; for
there can be no difference between one man’s stock and another’s” (at 571).
19
See Perillo (ed) Corbin on Contracts § 1142; E Peel Treitel’s Law of Contract 13 ed (2011)
1099-1100.
20
(1824) 1 Sim & St 607, 110.
21
See n 102 below.
22
See eg Schweber v Rallye Motors Inc 12 U.C.C. Rep. Serv. 1154 (N.Y. Sup 1973)
(involving a 1973 Rolls Royce vintage automobile); Gay v Seafarer Fiberglass Yachts Inc
14 U.C.C. Rep. Serv. 1335 (N.Y. Sup 1974) (involving a fiberglass yacht, customised to
the buyer’s specifications and having a special hull design manufactured only by the
defendant); Dexter Bishop Co v B Redmond & Son Inc 22 U.C.C. Rep. Serv. 406 (1st
Dep’t 1977) (involving machines which process butter and margarine into table service
pats); Cumbest v Harris 363 So. 2d 294 (Miss. 1978) (involving a stereo system, some of
the components of which were irreplaceable or were replaceable only with difficulty and
after long waiting periods); Colorado-Ute Electric Association Inc v Envirotech Corp 33
U.C.C. Rep. Serv. 965 (D. Colo. 1981) (involving air pollution control equipment, which
103
and are therefore easily replaceable, and the creditor has an adequate remedy at law in
the form of damages, specific performance will not be granted under the UCC.23
Over the years English and American courts have identified a number of well-
recognised situations in which the remedy of damages is considered to be inadequate.
The attention will now turn to the situations where Anglo-American law typically grants
specific performance, based on the fact that the legal remedy of damages does not
provide adequate relief to the aggrieved party.24 In such situations, the courts have the
jurisdiction to grant specific performance, but they always maintain the discretion to
refuse to do so.25 Their relevance to the South African legal system will subsequently be
was specifically designed for the buyer’s needs and was extremely large, complex,
technical, and essentially irreplaceable). See further “Specific performance of a contract
as a matter of right” 65 American Law Reports 7 (originally published 1930) – accessible
via Westlaw International.
23
See Hilmor Sales Co v Helen Neushaefer Division of Supronics Corp 6 U.C.C. Rep. Serv.
325 (N.Y. Sup 1969) (holding that an unusually low price does not make the goods
unique); Tower City Grain Co v Richman 17 U.C.C. Rep. Serv. 1011 (N.D. 1975) (sale of
wheat found not specifically enforceable as the wheat was not considered to be unique,
the court ignored the fact that the defendants had in their possession the type and
quantity of wheat specified in the contract); Columbia Gas Transmission Corp v Larry H
Wright Inc 23 U.C.C. Rep. Serv. 910 (S.D. Ohio 1977) (deciding that the existence of a
national shortage does not show the buyer could not obtain goods elsewhere); Pierce-
Odom Inc v Evenson 33 U.C.C. Rep. Serv. 1693 (1982) (deciding that a mobile home was
not shown to have a unique or peculiar value); In re Koreag, Controle et Revision SA 17
U.C.C. Rep. Serv. 2d 1036 (2d Cir. 1992) (holding that US currency was not unique even
where cover is not available). See further “Specific performance of a contract as a matter
of right” 65 American Law Reports 7.
24
These situations follow those originally identified in § 360 of the American Law Institute’s
Restatement (Second) of Contracts and also discussed in Peel Treitel’s Law of Contract
1099 ff; Beale et al (eds) Chitty on Contracts 1907 ff.
25
See A Burrows Remedies for Torts and Breach of Contract 3 ed (2004) 458: “Specific
performance will not be ordered unless damages (and the common law remedy of the
104
considered. In the following four sections, inadequacy of damages will be discussed in

the context of those situations where the issue most frequently arises, but it must be
appreciated that these fact patterns do not constitute a closed list, since damages may
be inadequate in a range of other situations.26
The central objective of the following discussion is to show that there are indications of
a change in thinking in the common law doctrine about “adequacy of damages” in that it
has developed in the direction of an approach that emphasises the appropriateness of
the remedy in the circumstances rather than the inadequacy of the legal remedy of
damages.
3 2 1 No market substitute for performance available
3 2 1 1 Contracts for the sale of land
Damages are considered to be inadequate if no market substitute for performance is

available. This constitutes the main justification for enforcing contracts involving land.
Contracts concerning land are the most prominent class of contracts that will be
specifically enforced.27 These contracts provide the purchaser a right to a particular
piece of land. Monetary compensation would not provide adequate relief, because of
award of an agreed sum) are inadequate. This is the major hurdle that a claimant seeking
performance must overcome, but, even having done so, it may still fail because of one of
the several other bars.” See also Spry The Principles of Equitable Remedies 60: “Of
course, if damages are inadequate in this sense, discretionary considerations may
nonetheless lead to a refusal of specific performance, with the consequence that the
plaintiff may be confined to damages in any event.”
26
For examples, see Perillo Calamari and Perillo on Contracts 552-553.
27
See para 2 3 2 1 above. See also C Szladits “The concept of specific performance in civil
law” 1955 Am J Comp L 208 209-210; G H Treitel Remedies for Breach of Contract: A
Comparative Account (1988) 64; Perillo (ed) Corbin on Contracts § 1143; S Shavell
“Specific performance versus damages for breach of contract: an economic analysis”
(2006) 84 Tex LR 831 832.
105
the specific qualities of the piece of land, which are considered to be difficult to
quantify.28 Therefore, the courts generally determine that either party to a contract for
the sale of land is entitled, as a matter of right, to obtain an order for its specific
performance,29 provided that the contract is not one which would be inequitable to
enforce, or which, in its nature and circumstances, is objectionable.30
This principle even applies where the apparent unique value of the land is disproved by
the purchaser, who expresses a clear intention of reselling the land by contracting with
a third party even before he has taken possession of the property.31 For example, in the
recent Californian case of Real Estate Analytics v Vallas,32 the Court of Appeal reversed
the trial court’s decision to award damages despite the buyer’s request for specific
performance, and ordered specific performance of a contract for the sale of a large
parcel of coastal property, even though the property was purchased solely for
investment purposes. Thus, the inadequacy of damages is presumed in every case
involving a contract for the sale of land, and specific performance of the contract follows
28
See nn 34-35 below. Note that specific performance is also ordered of contracts to
dispose of lesser interests in land. For example, in Verrall v Great Yarmouth Borough
Council [1981] QB 202, specific performance was ordered to enforce a contractual license
to occupy premises. See G Jones & W Goodhart Specific Performance 2 ed (1996) 128,
and for the US, Perillo (ed) Corbin on Contracts § 1143. Cf para 2 3 2 2 n 167 above.
29
According to Chen-Wishart Contract Law 542: “The seller can even obtain specific
performance” based on “the court deeming interests in land to be unique; the rule that
land contracts confer an immediate equitable proprietary interest on buyers; and the
mutuality of granting the seller the same remedy as the buyer is entitled to.”
30
See J Beatson et al Anson’s Law of Contract 29 ed (2010) 577. See also Wilhite v Skelton
149 Fed. 67 (1906); McClurg v Crawford 209 Fed. 340 (1913). Other cases granting
specific performance are collected in Perillo (ed) Corbin on Contracts § 1143 n 55.
31
Beale et al (eds) Chitty on Contracts 1908-1909.
32
160 Cal.App.4th 463 (2008).
106
as a matter of course.33 Where the contract sought to be enforced specifically concerns

land, the jurisdiction to enforce specific performance is undisputed, and does not
depend upon the inadequacy of the legal remedy in the particular case.34 So, it is said
that when a court orders specific performance in terms of its equitable jurisdiction, it is
upon the ground that the remedy at law is inadequate; but when the contract is for the
sale of land, it is considered that damages is necessarily inadequate (as courts assume
that land is unique and that no market substitute is available).35 Hence, if enforcement
of the particular contract is equitable and justifiable (and of course provided it complies
with other relevant contractual formalities), “it is almost a matter of course, although
spoken of as a matter of sound discretion”, to grant specific performance.36 In this
33
It was confirmed in Cummings v Nielson 129 Pac. 619 (1912), and Warren v Goodloe’s
Executor 20 S.W. 2d 278 (1929), that where a contract for the sale of land is concluded
fairly, it is the duty of the court to enforce it.
34
It was asserted in In Re Scott [1895] 2 Ch 603, that specific performance has always
“been treated as a question of discretion whether it is better to interfere and give a remedy
which the common law knows nothing at all about, or to leave the parties to their rights in
a court of law. The foundation of the doctrine of specific performance [of a contract for the
sale of land] is that land has quite a character of its own, that the real meaning between
the parties to a contract for sale of land was not that there should be a contract with legal
remedies only, and that the purchaser should get the land, and should not be put off, in an
ordinary case, by offering him damages”. See also Perillo (ed) Corbin on Contracts §
1143, and the cases collected in n 55.
35
As stated by Stafford J in Fowler v Sands 73 Vt. 236 (1901) (relying on J N Pomeroy Jr A
Treatise on Equity Jurisprudence: as administered in the United States of America (1907)
§ 1402), and confirmed recently by Haller J in Real Estate Analytics v Vallas 160
Cal.App.4th 463, 466 (2008): “The law generally presumes real property is unique and
that the breach of an agreement to transfer property cannot be adequately relieved by
pecuniary compensation.” This was also confirmed in English case law – see Sudbrook
Trading Estate Ltd v Eggleton [1983] 1 AC 444, 478 per Lord Diplock.
36
As stated by Stafford J in Fowler v Sands 73 Vt. 236 (1901) relying on Pomeroy A
Treatise on Equity Jurisprudence (1907) § 1404. See earlier, Park v Johnson 4 Allen
107
respect the right to an order for the specific performance of a contract for the sale of
land presents an apparent exception to the general rule in favour of damages. And
specific performance will not be denied simply because the plaintiff has the right to
recover damages for the breach.37
However, the justification of granting specific performance on the basis that the property
is unique has been severely criticised, mainly because it is not true for every sale of
land.38 The purchaser may, as we have seen, intend to resell the property immediately
or to retain it as an investment39 (rather than as a home) without having a particular
interest in its “uniqueness”.40 In these circumstances, where the purchaser has a purely
(Mass.) 259 (1862), per Dewey J at 261, citing Old Colony Railway Corp v Evans 6 Gray
(Mass.) 25 (1856).
37
See Louisville Southern Railway Co v Ragland 15 Ky. L. Rep. 814 (1894): “An agreement
will be enforced specifically, where the specific thing or act contracted for, and not mere
pecuniary compensation, is the redress practically required; and in such cases, where
there is good faith, valuable consideration, clean hands, and no unreasonable hardship to
result to the defendant it is as much a matter of course for the chancellor to decree
specific performance of a contract as it is for a court of law to give damages for its breach,
and specific performance will not be denied simply because the party asking for it may
have the right to recover damages for the breach.” (The case concerned an agreement by
a railroad company to give a right of way through its land.)
38
See Burrows Remedies for Torts and Breach of Contract 458-459; Jones & Goodhart
Specific Performance 130-132; R J Sharpe Injunctions and Specific Performance (1983)
316 ff.
39
See P J Brenner “Specific performance of contracts for the sale of land purchased for
resale or investment” (1978) 24 McGill Law Journal 513, esp 545-548.
40
See “counterpoint” discussion by M Chen-Wishart Contract Law 4 ed (2012) 542: “The
automatic availability of specific performance in land contracts should be reconsidered.
While specific performance is appropriate where the buyer has some unique interest in the
land or the seller cannot readily resell the land or wants to free himself from burdens
attached to the land, commercial parties motivated by profit should be regarded as
adequately compensated by damages.” Cf Klass Contract Law in the USA 213: “The rule
108
monetary interest, (whether it is to achieve a profit by disposing of the property or using

it to earn rent), the justification of non-substitutability would not apply.41 Damages would
adequately compensate the purchaser for loss of profits since this assessment would
not present the same difficulties as where a purchaser attaches a subjective value to
the property over and above that reflected in the (objective) market.42 Sharpe explains
that “[l]and is a fungible good to such a purchaser”.43
Furthermore, comparable common-law jurisdictions seem to be aligning their views

accordingly. Recent case law in Canada44 and New Zealand as well as subsequent
is fairly categorical. Thus specific performance will be awarded even if the injured party
has already entered into a contract with a third party to resell the land for a higher price, or
when there is sufficient demand that an injured seller could quickly resell, if at a slightly
lower price – both situations in which it would be simple to compute fully compensatory
damages.”
41
See Burrows Remedies for Torts and Breach of Contract 459: “there is no such obvious
justification where the claimant was intending a quick resale, particularly where the resale
contract has already been concluded”.
42
However, as Burrows correctly observes, if “there is no true substitute land, specific
performance for the long-term investor is justified because of the acute difficulty of
accurately assessing his profits” (Remedies for Torts and Breach of Contract 459). See
again, Adderley v Dixon (1824) 1 Sim & St 607, 110 per Leach VC: “Thus a Court of
Equity decrees performance of a contract for land, not because of the real nature of the
land, but because damages at law, which must be calculated upon the general money
value of land, may not be a complete remedy to the purchaser, to whom the land may
have a peculiar and special value.”
43
Injunctions and Specific Performance 318.
44
It is an established principle in Canadian contract law that if the purchaser bought the
property purely as an investment, damages will be an adequate remedy (Domovics v Orsa
Investments Ltd [1993] 15 OR (3d) 661 (OCGD); John E Dodge Holdings Ltd v 805062
Ontario Ltd [2001] 56 OR (3d) 341 (OSCJ)). The Canadian approach is evident from the
following obiter dictum in Semelhago v Paramadevan [1996] 2 SCR 415 (SCC) 428-429,
paras 21-22 per Sopinka J: “While at one time the common law regarded every piece of
109
academic commentary45 reveal that this traditional common-law approach in relation to

contracts for the sale of land is not convincing.46 This assumption of uniqueness where
the contract concerns land and the subsequent finding that there is no market substitute
available is considered outdated as houses can be “made to order” especially on large
residential estates.47 This essentially renders the argument that houses are so specific
and unique that they are considered one of a kind, and therefore specifically
enforceable, as nugatory.48 These courts have accordingly abandoned the presumption
that specific performance should be awarded unless evidence is presented why it
should not.
real estate to be unique, with the progress of modern real estate development this is no
longer the case. Residential, business and industrial properties are all mass produced
much in the same way as other consumer products. If a deal falls through for one
property, another is frequently, though not always, readily available. It is no longer
appropriate, therefore, to maintain a distinction in the approach to specific performance as
between realty and personalty. It cannot be assumed that damages for breach of contract
for the purchase and sale of real estate will be an inadequate remedy in all cases. The
common law recognised that the distinction might not be valid when the land had no
peculiar or special value … Specific performance should, therefore, not be granted as a
matter of course absent evidence that the property is unique to the extent that a substitute
would not be readily available.” That this represents the law in Canada was confirmed by
the more recent Supreme Court decision in Southcott Estates Inc v Toronto Catholic
District School Board 2012 SCC 51, paras 38-41.
45
See eg S Mills “Specific performance: sale of land” 2006 New Zealand Law Journal 196.
46
Jones and Goodhart also note that “in Canada provincial courts have denied specific
performance on the ground that the land had been bought for investment or resale; an
award of damages would adequately compensate the plaintiff for any loss of profits”
(Specific Performance 130).
47
Cunnington “The inadequacy of damages as a remedy for breach of contract” in Rickett
(ed) Justifying Private Law Remedies 116.
48
Burrows uses the example of a contract for the sale of identical new houses on a housing
estate (Remedies for Torts and Breach of Contract 458).
110
Although specific performance has on occasion been refused of contracts to sell land,
courts in the US and England still grant the remedy as a matter of course in these
circumstances.49 And since specific performance is routinely ordered of obligations to
sell land even if the land can be replaced in the market and damages would be perfectly
adequate, it appears that for all intents and purposes specific performance has become
the default remedy in these cases. Burrows is thus correct in his observation that “[a]ll in
all, it seems clear that specific performance has simply taken over as the primary
remedy for breach of an obligation to sell land, and that the adequacy of damages
hurdle is in effect ignored”.50 Provisionally, it may be said that English law is working
with a too crude generalisation or untenable presumption, and it would have been
preferable to have a more flexible approach which would have enabled the nuanced
treatment of situations which reveal subtle distinctions.51
3 2 1 2 Contracts for the sale of personal property
Specific performance of contracts for the sale of goods was traditionally only ordered if
the goods concerned were unique in character, such as works of art, and certain
heirlooms and antiques.52 The underlying principle was that with generic goods, the
aggrieved party had an adequate remedy in damages, because he could acquire the
goods elsewhere.53 For example, in Thorn v Public Works Commissioners,54 specific
49
Jones & Goodhart Specific Performance 128-132. See esp 130-131, for comprehensive
discussion of why specific performance should normally be granted for a breach of a
contract to sell land.
50
Remedies for Torts and Breach of Contract 459.
51
For similar concerns relating to our law, see text to n 252 para 3 4 3 below.
52
See paras 1 1 2 & 2 3 2 1 above.
53
See Perillo (ed) Corbin on Contracts § 1146; Burrows Remedies for Torts and Breach of
Contract 460; Beale et al (eds) Chitty on Contracts 1911.
54
(1863) 32 Beav 490. See also Behnke v Bede Shipping Co Ltd [1927] 1 KB 649, where
Wright J ordered specific performance of a contract to sell a ship on the ground that it
“was of peculiar and practically unique value to the plaintiff … A very experienced ship’s
111
performance was ordered of a contract to sell the arch-stone, the spandrill stone and
the Bramley Fall stone of the Westminster Bridge, after it had been pulled down for
construction of a new bridge.
However, this category was “sparingly used”,55 as is illustrated by the decision in Falcke
v Gray.56 In this case the defendant let her furnished house to the plaintiff for six
months. She also agreed that upon expiration of this period the plaintiff would have the
option of buying certain articles, which included two vases, described by the court “as
articles of unusual beauty, rarity and distinction”.57 The vases can thus be regarded as
physically unique.58 The defendant’s agent mistakenly valued them at £40. (During the
course of the trial it became apparent that the vases were undervalued, and were in fact
worth about five times as much as the initial valuation.) The defendant began to doubt
whether the valuation was accurate and removed the vases from the house. She also
informed the plaintiff of the removal and subsequently sold the vases for £200 to a
curiosity dealer. The plaintiff proceeded to obtain an injunction against the defendant
and the second purchaser, and sought specific performance of their agreement.
However, the defendant argued that as this was a contract for ordinary personal
property, it could not be specifically enforced.
The court would have been prepared to order specific performance of the sale
agreement due to the unique and rare nature of the subject matter and the inadequacy
valuer has said that he knew of only one other comparable ship but that may now have
been sold” (at 661). Cf CN Marine Inc v Stena Line A/B (The Stena Nautica) (No 2) [1982]
2 Lloyd’s Rep 336, where specific performance was refused as the plaintiff had failed to
show that the ship was sufficiently different from other ships so that he had a special need
for the particular ship.
55
56
(1859) 4 Drew 651.
57
658.
58
See Cunnington “The inadequacy of damages as a remedy for breach of contract” in
Rickett (ed) Justifying Private Law Remedies 128.
112
of damages in compensating for non-performance.59 However, specific performance

was refused on other grounds. The defendant seller further argued that the contract
constituted a hard bargain, as the initial purchase price agreed to by the plaintiff was not
nearly market-related, and therefore could not be specifically enforced by the court.
After considering case law on the question of inadequacy of price,60 the court found that
inadequacy of price61 did justify the refusal of specific performance in this case, as it
would be unreasonable to assist the plaintiff in obtaining such a bargain.62
It may be reasoned then that damages will be inadequate (and specific performance will
be granted) when the goods are unique, rare, or unusual. However, this rule does not
apply if the bargain is unfair, with the consequence that the plaintiff may be confined to
damages in any event. The question arises though whether the purchaser would not in
any event receive such a bargain if the non-performing seller had to pay the full
difference between the purchase price and market value as damages. But Kindersley
VC, while denying specific performance, said: “In the present case the contract is for the
purchase of articles of unusual beauty, rarity and distinction, so that damages would not
be an adequate compensation for non-performance…”63 Thus, Kindersley VC initially
stated that inadequacy is a sufficient reason for the court to exercise its discretion as
the subject matter of the contract was unique. However, he continued and stated that
the plaintiff purchaser knew that the price put upon the vases was not a fair price. The
59
(1859) 4 Drew 651, 658.
60
Kindersley VC relied on Day v Newman 2 Cox Ch 77 (1788) and White v Damon 7 Ves 30
(1802), as the more distinct and authoritative decisions concerning the question whether
specific performance could be refused on the ground of inadequacy of price.
61
Kindersley VC said at 659: “That this was a hard bargain in the sense of its being for a
very inadequate price there can be no doubt …”
62
Kindersley VC continued at 659: “The general rule with regard to hard bargains is that the
Court will not decree specific performance, because specific performance is in the
discretion of the Court for the advancement of justice; such discretion, indeed, to be
exercised, not according to caprice, but on strict principles of justice and equity.”
63
(1859) 4 Drew 651, 658.
113
court ultimately refused to order enforcement of the contract as it would have operated
strongly in favour of the plaintiff to the corresponding disadvantage of the defendant. It
appears, though, that an award of damages would not have alleviated the defendant’s
position in any event.
The defendant thus succeeded with her second ground of defence and the plaintiff’s
claim, against both defendant and second purchaser failed. The plaintiff’s claim against
the second purchaser failed because the court found that there was not sufficient
evidence showing that the second purchaser was aware of the fact that the defendant
entered into a prior agreement, which prevented her from selling the vases to another.64
It is important to note that, despite the judge’s suggestion to this effect,65 this decision
does not provide support for the proposition that the inadequacy of price/consideration
could per se or “standing by itself”66 (i.e. “where there has been not the least impropriety
of conduct on the part of the person seeking specific performance”)67 influence the court
to refuse specific performance (even where the goods are considered to be “unique” or
“specific”). The prevailing and correct view is rather that specific performance may be
refused where inadequacy of consideration is combined with some other factor that
does not affect the validity of the contract, for example, unfair advantage taken by the
plaintiff of his superior knowledge or bargaining position.68 This was in fact what
motivated Kindersley VC in Falcke v Gray,69 to refuse specific performance, i.e. the fact
that the plaintiff purchaser, as a dealer in curiosities, china, etc. was well aware of the
64
Falcke v Gray (1859) 4 Drew 651, 665.
65
Per Kindersley VC at 664: “I am of opinion that in the present case I ought to refuse
specific performance on the mere ground of inadequacy of price, even if there were none
other.”
66
Martin Hanbury & Martin’s Modern Equity 790.
67
Per Kindersley VC at 660.
68
See Peel Treitel’s Law of Contract 1107-1108; Beale et al (eds) Chitty on Contracts 1926;
69
(1859) 4 Drew 651.
114
value of similar articles (whilst the seller was completely ignorant of the true value of the
vases),70 in conjunction with the fact that the price appeared to be inadequate.
Thus, the factor of inadequacy of consideration along with other factors (which fall short
of actually invalidating the contract) could influence a court to ignore the uniqueness of
the subject matter of the contract and refuse specific performance. Inasmuch as the
court in Falcke refused specific performance based on factors which fell short of
invalidating the contract, i.e. the impropriety on the part of the plaintiff purchaser
(knowing very well that the vases were undervalued), and that enforcing the contract
would bear hardly on the defendant due to the inadequacy of price, this decision can
also be relied on in support of the general proposition that specific performance will be
refused if it would result in severe hardship to the defaulting party.71
The position in American law also supports the conclusion arrived at above. The
prevailing view is that mere inadequacy of consideration is not sufficient in itself to
prevent a court from granting specific performance.72 This factor alone will not influence
the court to refuse the remedy.73 Thus, American courts too, require that this factor be
70
654, 655, 665.
71
See generally Peel Treitel’s Law of Contract 1106-1107: “Specific performance can be
refused on the ground of severe hardship to the defendant e.g. where the cost of
performance to the defendant is wholly out of proportion to the benefit which performance
will confer on the claimant”, and specifically, para 6 2 below.
72
See eg Adams v Peabody Coal Co 82 N.E. 645 (1907) (option for $1, to sell land for
further sum of $15 per acre specifically enforced). Compare the English case of Coles v
Trecothick (1804) 9 Ves 234 (contract to sell for £20 000 was specifically enforced even
though another person later offered £25 000. Lord Eldon stated: “Unless the inadequacy
of price is such as shocks the conscience and amounts in itself to conclusive and decisive
evidence of fraud in the transaction, it is not itself a sufficient ground for refusing specific
performance.”).
73
G Blum & M B Morris “Specific performance” 71 AMJUR 2 ed § 97; “Specific performance
of a contract as a matter of right” 65 American Law Reports 7.
115
accompanied by other facts indicating artifice, sharp practice, hardship, taking

advantage of misfortune, or ignorance.74
Falcke also serves to illustrate another puzzling aspect of the common-law approach.
As indicated, the court would have been prepared to order specific performance of the
contract to sell two unique vases even though the plaintiff seemed to have a merely
commercial interest in them.75 This can then be compared to courts’ approach to breach
of contracts to sell land. As already noted,76 courts will still be inclined to order specific
performance of a contract to sell land even though the purchaser has a purely monetary
or commercial interest in the property. Thus, the same approach is adopted in relation
to other physically unique goods. As Burrows states:
“Analogously to their approach to land, the courts appear not to be concerned with the
purpose for which the claimant is buying the physically unique goods. In other words, no
distinction appears to be drawn between the consumer, with his non-monetary interest, and
the businessman who wants the goods for profitable use or resale. The same criticism can
be made as in relation to land contracts: namely that for the reseller damages are adequate,
since his interest is purely monetary and, unlike the long-term investor, they can generally be
readily assessed.”77
Now consider the specific enforceability of contracts of which the subject matter
concerns ordinary (i.e. non-unique) personal property. It is clear that English courts at
one time seemed reluctant to recognise the specific enforceability of contracts for the
sale of ordinary personal property, i.e. goods that were not considered to be specific or
unique, based on the substitutability of performance.78 There are, however, some
74
See Perillo (ed) Corbin on Contracts § 1165.
75
(1859) 4 Drew 651, 658.
76
See para 3 2 1 1 above.
77
78
See G H Treitel “Remedies for breach of contract” in IECL VII ch 16 (1976) 18; G H Treitel
The Law of Contract 7 ed (1987) 788.
116
indications that the English courts are moving towards such an approach.79 For
example, the criterion was strongly challenged in the famous case of Beswick v
Beswick.80 Lord Pearce in particular preferred to focus on the question of whether the
more appropriate remedy was that of specific performance.81 It is said that the courts
have changed their approach, by asking instead, what remedy is the most appropriate
in the circumstances of the individual case.82 The question therefore, is not whether
damages is an adequate remedy anymore. For example, in Evans Marshall & Co Ltd v
Bertola SA83 Sachs LJ proclaimed: “The standard question …, ‘Are damages an
adequate remedy?’ might perhaps, in the light of the authorities in recent years, be
rewritten: ‘Is it just, in all the circumstances, that a plaintiff should be confined to his
remedy in damages?’”84 It is apparent from the case law that the courts are slowly
accepting the view that specific performance should be ordered when it is the more
appropriate remedy, even though damages may be regarded as an adequate remedy in
the sense of the older authorities. This is illustrated by the fact that English courts seem
79
See G H Treitel Remedies for Breach of Contract: A Comparative Account (1988) 65.
80
[1968] AC 58. For a discussion of the facts, see para 3 2 4 below.
81
[1968] AC 88. See also Coulls v Bagot’s Executor and Trustee Co [1967] ALR 385, 412.
82
See Beale et al (eds) Chitty on Contracts 1907-1908. See also Burrows Remedies for
Torts and Breach of Contract 457-458: “Some recent cases indicate a weakening of this
bar, and it has even been argued that specific performance is now the primary remedy in
England.” He then adds that this “seems exaggerated” but admits that “The recent
apparent weakening not only of this, but of several other of the traditional bars, [means]
that specific performance may be more freely available now than it was in the past.” See
also 470-472.
83
[1973] 1 WLR 349. See also Tito v Waddell (No 2) [1977] Ch 106, 322; Co-operative
Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1997] 2 WLR 898 903; Rainbow
Estates Ltd v Tokenhold Ltd [1999] Ch 64, 73 per Lawrence Collins QC: “Subject to the
overriding need to avoid injustice or oppression, the remedy should be available when
damages are not an adequate remedy, or, in the more modern formulation, when specific
performance is the appropriate remedy.” See also para 5 2 (iii) below.
84
[1973] 1 WLR 349, 379.
117
increasingly more willing to grant specific performance of contracts, even where the
subject matter concerns generic goods,85 if the goods are in such short supply that the
buyer is unable to obtain alternative performance from another source, referred to as
cases of “commercial uniqueness”.86
This was the case in Howard E Perry & Co v British Railways Board.87 Here the court
granted specific performance of a duty to deliver a quantity of steel in favour of a steel
stockholder against a rail carrier who refused to allow the steel to be moved during a
period of industrial strike action by its employees, so as to avoid further industrial action.
The court maintained that during the strike “steel [was] available only with great
difficulty, if at all”. Council for the plaintiff argued that at that moment “steel [was] gold”.
The court found that damages would not provide adequate compensation in the
circumstances as the equivalent of what was detained was unobtainable in the
market.88 This view is supported by an earlier decision Sky Petroleum Ltd v VIP
Petroleum Ltd,89 in which the court also granted specific performance of goods
considered to be generic under normal circumstances. Ordinarily, petroleum is not
considered to be unique, but in this case it became a rare commodity because there
was inadequate supply. The court granted specific performance of the sale of petroleum
due to the surrounding circumstances that rendered it commercially unique.
85
And thus falls outside of the scope of s 52 of the Sale of Goods Act 1979, which gives the
court a discretion to order specific performance where an action is brought “for breach of a
contract to deliver specific or ascertained goods”. See para 2 3 2 1 above.
86
This term was introduced by Treitel – see G H Treitel “Specific performance in the sale of
goods” 1966 Journal of Business Law 211 215; Remedies for Breach of Contract: A
Comparative Account 64; Peel Treitel’s Law of Contract 1102. See also V Mak
Performance-Oriented Remedies in European Sale of Goods Law (2009) 84-89.
87
[1980] 1 WLR 1375.
88
[1980] 1 WLR 1383.
89
[1974] 1 WLR 576.
118
This view is further supported by a more recent decision in Thames Valley Power Ltd v
Total Gas and Power Ltd.90 Here Thames Valley Power Limited (TVP) contracted to buy
gas from Total for the operation of a combined heat and power plant at Heathrow
Airport in 1995. The contract contained a floor and ceiling pricing mechanism to fix what
TVP would pay. It also contained a clause relieving an affected party from the
performance of its obligations upon the occurrence of a force majeure event. Gas prices
rose and it became uneconomic for Total to keep supplying TVP at the contract price.
As a result, Total informed TVP in writing that it was unable to perform its obligation to
supply gas. TVP’s response was that the price increases did not make Total unable to
perform – it just meant that the performance of Total’s side of the agreement would be
less profitable for Total – and TVP accordingly requested an undertaking that Total
continue to supply gas in accordance with the contract. In 2005, Total invoked the force
majeure clause, and argued that its performance had become “commercially
impracticable”.91 However, the court held that Total’s non-performance could not be
excused or justified on this ground. Clarke J emphasised that a force majeure event
must have made Total unable to supply gas. He distinguished between inability and
inconvenience and held that “[t]he fact that it is much more expensive, even very greatly
more expensive for it to do so, does not mean that it cannot do so”.92
He further held (though it was “not strictly necessary” to decide whether it was a case
for specific performance)93 that Total’s obligation was specifically enforceable, because
the basis of the contract was that TVP “would be assured of a source of supply from a
first-rank supplier at an agreed price for a 15 year term” and to “confine them to a claim
in damages would deprive them of substantially the whole benefit that the contract was
90
[2006] 1 Lloyd’s Rep 441.
91
450.
92
451.
93
455.
119
intended to give them”.94 Beale et al hold that “[t]his amounts to saying that damages
were not an adequate remedy because no substitute was available”.95
Thus, if obtaining a substitute involves difficulty, it gives the goods a character of

commercial uniqueness, which could consequently influence a court to grant specific
performance even though the goods are (strictly speaking) generic and the situation is
not explicitly covered by section 52 of the Sale of Goods Act 1979.96 Thus, goods may
be unique in nature, or they may be unique because of surrounding circumstances.
Treitel observes that if this development continues, English and American law, where it
concerns this point, will move more closely together, so that the requirement that
damages must be an inadequate remedy will be restored to its proper function, in line
with American law. This proper function is to restrict the plaintiff’s claim to damages if he
can thereby be placed in as good a position as specific performance. This would be the
more sensible route in such a situation, because a judgment to pay money is easier and
quicker to execute, and also minimises the risk of hardship to the debtor if he were to be
compelled to perform.97
The same reluctance is, however, not expressed in American law. According to Corbin,
“There is no doubt that the American courts have become progressively more liberal in the
granting of this effective remedy and have become less astute in enforcing the requirement
that the remedy in damages shall be inadequate.”98
94
455.
95
Chitty on Contracts 1916.
96
See A S Burrows “Specific performance at the crossroads” 1984 Legal Studies 102 103;
Beale et al (eds) Chitty on Contracts 1915-1917. See also n 85 above.
97
Treitel Remedies for Breach of Contract: A Comparative Account 65.
98
See Perillo (ed) Corbin on Contracts § 1139. See also Zweigert & Kötz Comparative Law
481-484.
120
The courts in the United States have extended the remedy of specific performance to
buyers of generic goods whose need for the actual supply was particularly urgent or
who would not be able to get a substitute. The US Uniform Commercial Code has
broadened the possibility of specific performance as a buyer’s remedy.99 As indicated in
chapter 2 this is accomplished by the wording of § 2-716(1),100 which provides that
“[s]pecific performance may be decreed where the goods are unique or in other proper
circumstances …” (own emphasis).101 The latter phrase therefore broadens the
“uniqueness” requirement. This provision is an indication of the growing tendency of US
courts to order specific performance on the basis of the appropriateness of the remedy
and not on the adequacy of damages.102
99
See M A Schmitt & M Pasterczyk “Specific performance under the Uniform Commercial
Code – will liberalism prevail?” (1976-1977) 26 De Paul Law Review 54.
100
101
The official comment (2) to this section reads: “Uniqueness should be determined in light
of the total circumstances surrounding the contract and is not limited to goods identified
when the contract is formed. The typical specific performance situation today involves an
output or requirements contract rather than a contract for the sale of an heirloom or
priceless work of art. A buyer’s inability to cover is evidence of ‘other proper
circumstances’.” (Output and requirements contracts are the major types of long-term
supply contracts – see para 2 3 2 2 nn 184-185 above.) See also M Nichols “Remedies –
specific performance and long-term supply contracts: an application of U.C.C. § 2-716”
(1976) 30 Arkansas Law Review 65.
102
For discussion of the trend in the US, see M T van Hecke “Changing emphasis in specific
performance” (1961-1962) 40 North Carolina Law Review 1; Comment “Specific
performance: a liberalization of equity standards” (1964) 49 Iowa Law Review 1290. In
practice, though, plaintiffs tend to prefer the remedy of “cover” (i.e. the recovery of the
difference between the contract price and the price of purchasing replacement goods
without unreasonable delay) provided by § 2-712 of the UCC (Addendum A 387), as it
provides a more convenient and less time-consuming solution (see Treitel Remedies for
Breach of Contract: A Comparative Account 64 n 28).
121
The case of Sedmak v Charlie’s Chevrolet Inc103 is particularly informative on the

interpretation and effect of § 2-716. The court adopted a liberal approach to the Code in
allowing specific performance even though the legal remedy of damages would have
been adequate. Here the plaintiffs were told they could buy a limited edition “pace car”
when it arrived at the dealership for the suggested retail price of approximately $15,000.
Factory changes were made to the car at the plaintiff’s request before delivery to the
dealer. When the car arrived at the dealership they were told they could bid on the car,
but its popularity had increased the price. They did not bid, but instituted a claim for
specific performance. The court held that the pace car was not unique in the traditional
legal sense, however, its “mileage, condition, ownership and appearance” did make it
difficult, if not impossible, to obtain the replication without considerable expense, delay,
and inconvenience.104 The court ordered specific performance even though the legal
remedy of damages may have been available to adequately compensate the
plaintiffs.105
103
622 S.W.2d 694 (Mo.App.1981).
104
699.
105
The court specifically addressed the the UCC’s adoption of the term “in other proper
circumstances” and the official comment (2) to § 2-716 (at 700): “In view of this Article’s
emphasis on the commercial feasibility of replacement, a new concept of what are ‘unique’
goods is introduced under this section. Specific performance is no longer limited to goods
which are already specific or ascertained at the time of contracting. The test of uniqueness
under this section must be made in terms of the total situation which characterizes the
contract.... [U]niqueness is not the sole basis of the remedy under this section for the relief
may also be granted ‘in other proper circumstances’ and inability to cover is strong
evidence of ‘other proper circumstances’.” Quoted with approval in King Aircraft Sales Inc
v Lane 68 Wash.App. 706, 714 (1993): “We agree with the Sedmak court’s interpretation
of § 2-716 and, like that court, find the liberal interpretation urged by the UCC drafters to
be entirely consistent with the common law of our state. Prior to adoption of the UCC, our
cases did not always require the absence of a legal remedy before awarding specific
performance nor did these cases require the goods to be absolutely ‘unique.’ Hence, the
122
Furthermore, certain statutory provisions in some of the states have also developed in
this direction. For example, the draft Civil Code originally prepared for the state of New
York in 1865 by David Dudley Field II, adopted in a number of other states (but not by
its intended state), contained the traditional provision that specific performance could be
ordered where damages did not provide “adequate” relief.106 Most of the states which
adopted Field’s Code, such as California, North Dakota and South Dakota, have since
repealed this provision. Maryland even adopted a statutory provision which determines
that specific performance is not to be refused merely because the plaintiff has an
“adequate” remedy at law.107 As for the other states which have not promulgated
statutory provisions to this effect, their case law indicates that they are also moving in
this direction.108
English courts, on the other hand, are slower in accepting this view, and the
requirement that damages must be inadequate before specific performance will be
ordered, is still maintained.109 As Burrows puts it:
“While Beswick can be given such a wide interpretation, and it is hard to interpret Lord
Pearce’s judgment in any other way, the courts have taken the narrow view, for they have
continued to apply the adequacy of damages bar without even mentioning Beswick.”110
liberal approach to ‘other proper circumstances’ suggested in Official Comment 2 is not a

departure from our law.”
106
D D Field, Civil Code (Albany 1865) § 1887. See further on the Field Civil Code (1865),
Treitel Remedies for Breach of Contract: A Comparative Account 65; and on the Field
Code of Civil Procedure (1848) which abolished the distinction in forms of procedure
between an action at law and a suit in equity, E A Farnsworth An Introduction to the Legal
System of the United States 4 ed (2010) 104.
107
Annotated Code of Maryland (Commercial Law) § 11-508 (accessible via Westlaw
International).
108
See Perillo (ed) Corbin on Contracts § 1139 and the cases collected there in n 28.
109
See eg M P Furmston Chesire, Fifoot & Furmston’s Law of Contract 16 ed (2012) 796.
123
In the light of the above it can be concluded that there are two instances where specific
performance will be ordered in respect of contracts for the sale of personal property.
First, specific performance will be ordered where the subject matter of the contract is
unique on the basis that a market substitute is unavailable.111 Secondly, it will be
ordered in cases where the contract involves non-unique goods, but the circumstances
are such that a substitute is practically unavailable.112 Courts have also started to
recognise the specific enforceability of contracts for the sale of shares,113 even though
these contracts would not ordinarily be specifically enforced, as shares are deemed
readily available on the market and easily substitutable, making damages an adequate
remedy. The courts have been influenced by the fact that the purpose of a contract for
the sale of shares is often to secure control of the company. This has influenced the
courts to grant specific performance, as the value of such control is considered difficult
to quantify. Thus, if the number of shares contracted for would ensure the purchaser
majority shareholding by obtaining the majority of the voting shares, it would make the
shares unobtainable on the market.114 This example demonstrates how the
substitutability of the subject matter of the contract could complicate the quantification of
damages. The following section is devoted to this issue.
110
See Burrows Remedies for Torts and Breach of Contract 458, 471; E McKendrick
Contract Law 8 ed (2009) 360 ff, and the authorities cited there.
111
Falcke v Gray (1859) 4 Drew 651; H G Beale et al Cases, Materials and Text on Contract
Law 2 ed (2010) 846.
112
Sky Petroleum Ltd v VIP Petroleum Ltd [1974] 1 WLR 576; Howard E Perry & Co v British
Railways Board [1980] 1 WLR 1375 confirmed in a recent English case Thames Valley
Power Ltd v Total Gas and Power Ltd [2006] 1 Lloyd’s Rep 441 (discussed above).
113
See eg Harvela Investments Ltd v Royal Trust Co of Canada (CI) Ltd [1986] AC 207.
114
Perillo (ed) Corbin on Contracts § 1148; Burrows Remedies for Torts and Breach of
Contract 465; Chen-Wishart Contract Law 542.
124
3 2 2 Damages would be difficult to quantify
Damages has also been deemed inadequate due to difficulties with quantification.115
This position is closely related to the approach to uniqueness considered above.116
Consider contracts for the sale of land. As indicated, these contracts are generally
specifically enforced based on the fact that damages would not provide adequate relief,
because of the unique qualities of the piece of land, which are considered to be difficult
to quantify.117 Furthermore, courts have also specifically enforced contracts to pay for or
to sell annuities because the value of the rights is difficult to determine;118 contracts to
execute a mortgage for money already advanced because the value of having security
for the loan is impossible to quantify,119 and contracts to indemnify because
quantification of damages depends upon examination of long and intricate accounts,
which a court cannot be expected to do.120 Courts have also enforced contracts for the
115
Peel Treitel’s Law of Contract 1100-1101; Beale et al (eds) Chitty on Contracts 1909.
116
See Burrows Remedies for Torts and Breach of Contract 466: “This head and the previous
one (uniqueness) are inextricably linked: difficulty in assessing damages – whether in
putting a value on a consumer’s interest, or in calculating possible investment profit, or in
putting a figure on the serious disruption to a business – lies as the root justification for
specific performance, where the contractual subject matter is unique” (citing Kronman
“Specific performance” (1978) 45 U Chi LR 351 362). See also Cunnington “The
inadequacy of damages as a remedy for breach of contract” in Rickett (ed) Justifying
Private Law Remedies 117.
117
As already noted, courts do not appear to be concerned with the purpose for which the
plaintiff bought the property, in other words specific performance will be ordered even if
the buyer wants the property for profitable use or resale.
118
Kenney v Wexham (1822) 6 Madd 355; Swift v Swift (1841) 31 IR Eq 267; Beswick v
Beswick [1968] AC 58.
119
Ashton v Corrigan (1871) LR 13 Eq 76; Swiss Bank Corporation v Lloyds Bank Ltd [1982]
AC 584.
120
Ranelaugh (Earl) v Hayes (1683) 1 Vern 189; Sporle v Whayman (1855) 20 Beav 607;
Anglo-Australian Life Assurance Co v British Provident Life and Fire Society (1862) 3 Giff
125
sale of debts because damages can only be calculated by speculation in these

instances.121 Thus, if supply of substitute performance is limited, it may be difficult to
quantify damages on the ground that it is unclear how much it will cost the plaintiff to
obtain alternative performance.122 In such circumstances damages will be considered
inadequate and specific performance will be ordered.123
521; Ascherson v Tredegar Dry Dock & Wharf Co Ltd [1909] 2 Ch 401; and see Fry
Specific Performance of Contracts 731-732.
121
Adderley v Dixon (1824) 1 Sim & St 607. Cited by Grigsby Story’s Equity Jurisprudence 2
ed (1892) § 718 as authority for the following important statement: “But although the
general rule now is, not to entertain jurisdiction in equity for a specific performance of
agreements respecting chattels […] the rule is a qualified one, and subject to exceptions;
or, rather, the rule is limited to cases where a compensation in damages furnishes a
complete and satisfactory remedy. Cases may readily be enumerated, which are, and
have been deemed, fit for the exercise of equity jurisdiction. Thus, where there was a
contract for the sale of 800 tons of iron, to be paid for in a certain number of years, by
instalments, a specific performance was decreed; for such sort of contracts (it was said)
differ from those which are to be immediately executed. But the true reason probably was,
that under the particular circumstances of the case, there could be no adequate
compensation in damages at law; for the profits upon the contract, being to depend upon
future events, could not be correctly estimated by the jury in damages, inasmuch as the
calculation must proceed upon mere conjecture.”
122
(ed) Justifying Private Law Remedies 117-118.
123
See in particular Restatement (Second) of Contracts § 360, cmt b: “The damage remedy
may be inadequate to protect the injured party’s expectation interest because the loss
caused by the breach is too difficult to estimate with reasonable certainty (§ 352). If the
injured party has suffered loss but cannot sustain the burden of proving it, only nominal
damages will be awarded. If he can prove some but not all of his loss, he will not be
compensated in full. In either case damages are an inadequate remedy. Some types of
interests are by their very nature incapable of being valued in money. Typical examples
include heirlooms, family treasures and works of art that induce a strong sentimental
126
Recent literature and case law have expressed doubts on whether difficulties in
quantifying the aggrieved party’s loss justify a finding of inadequacy of damages, and
accordingly, awarding specific performance. Some contract scholars contend that “[i]t is
not enough to point to difficulty in quantifying the claimant’s loss [to show that damages
should be regarded as inadequate] since courts are very willing to overcome
quantification difficulties”.124
In this regard it is significant that in Co-operative Insurance Society Ltd v Argyll Stores
(Holdings) Ltd (discussed fully below),125 the Court of Appeal emphasised the
inadequacy of damages in compensating the plaintiff who faced enormous obstacles in
proving what loss was caused by the defendant’s breach in closing its store.126
However, the House of Lords played down this factor, and confirmed the trial court’s
decision to refuse specific performance and its view that the courts too readily refuse
damages where the loss would be difficult to quantify.127
attachment. Examples may also be found in contracts of a more commercial character.

The breach of a contract to transfer shares of stock may cause a loss in control over the
corporation. The breach of a contract to furnish an indemnity may cause the sacrifice of
property and financial ruin. The breach of a covenant not to compete may cause the loss
of customers of an unascertainable number or importance. The breach of a requirements
contract may cut off a vital supply of raw materials. In such situations, equitable relief is
often appropriate.”
124
Chen-Wishart Contract Law 541. See also Jones & Goodhart Specific Performance 146;
Mak Performance-Oriented Remedies in European Sale of Goods Law 88-89.
125
See para 5 2 below.
126
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1996] Ch 286 (CA) 295
per Legatt LJ: “The plaintiffs would have very considerable difficulty in trying to prove their
loss. An award of damages would be unlikely to compensate them fully; and the losses of
the other tenants of the shopping centre would be irrecoverable, except in so far as they
might be mitigated by reduced rents. Argyll have acted with gross commercial cynicism,
preferring to resist a claim for damages rather than keep an unambiguous promise.”
127
See para 5 2 (iv) below.
127
The relevance of the difficulty of assessing damages was denied in earlier decisions.
For example, in Fothergill v Rowland,128 Sir George Jessel MR said:129
“To say that you cannot ascertain the damage in a case of breach of contract for the sale of
goods, say in monthly deliveries extending over three years … is to limit the power of
ascertaining damages in a way which would rather astonish gentlemen who practice on what
is called the other side of Westminster Hall. There is never considered to be any difficulty in
ascertaining such a thing. Therefore I do not think it is a case in which damages could not be
ascertained at law.”
However, it is difficult to see how the remedy of damages would be adequate to protect
the injured party’s expectation interest if the loss caused by the breach is too difficult to
estimate. The correctness of this approach has rightly been doubted by Burrows:
128
(1873) LR 17 Eq 132. See also Societe des Industries Metallurgiques SA v Bronx
Engineering Co [1975] 1 Lloyd’s Rep 465 where Buckley LJ states at 469-470: “I think
there might well be difficulties in quantifying the damages, but mere difficulty in
quantification is not, in my judgment, a matter which really affects the principle at all. I do
not doubt that the damages would eventually be satisfactorily quantified.” The court ruled
that an interim injunction restraining the sellers from removing (out of the court’s
jurisdiction) and disposing of certain machinery which the sellers had contracted to sell to
the buyers should not be granted since, even if the sellers were in breach, there was no
“likelihood of the Court of trial decreeing specific performance of the contract of sale” since
the machinery was available from another source making damages adequate. Curiously
and rather remarkably, damages was considered to be adequate even though the court
had acknowledged that the delay of up to 12 months in obtaining substitute machinery
might substantially disrupt the plaintiff’s business. In doing so, the court clearly rejected
uniqueness (both commercial and physical) as a reason for awarding specific
performance based on inadequacy of damages. The case was decided after Sky
Petroleum Ltd v VIP Petroleum Ltd [1974] 1 WLR 576, but before Howard E Perry & Co v
British Railways Board [1980] 1 WLR 1375 and Thames Valley Power Ltd v Total Gas and
Power Ltd [2006] 1 Lloyd’s Rep 441.
129
(1873) LR 17 Eq 132, 140. This quotation appears in Burrows Remedies for Torts and
Breach of Contract 466.
128
“This approach is most unfortunate, for where there is grave doubt about whether damages
will put the claimant into as good a position as if the contract had been performed, specific
performance is prima facie a better remedy…”130
3 2 3 Insolvency of the defendant
Support has been expressed in English law for awarding specific performance against
an insolvent debtor. The justification is that an award of damages would be ineffective
against a person who is insolvent, and who would therefore be unable to satisfy a claim
for damages.131 Spry, for example, adopts this view, maintaining that:
“A significant risk that a legal remedy such as damages will be ineffective on the ground of
the inadequate resources of the defendant or otherwise, may of itself justify the conclusion
that it is inadequate.”132
The law governing the effect of insolvency on the availability of specific performance is
simple: inadequacy of damages is the primary reason for granting specific performance
and when the breaching party is insolvent, damages are inadequate, and therefore, the
aggrieved party is entitled to claim specific performance.133
However, authority also exists in support of the opposite view. It is true that the
insolvency of one of the parties is generally conceded to have a very material bearing
130
Remedies for Torts and Breach of Contract 467. See also Mak Performance-Oriented
Remedies in European Sale of Goods Law 89.
131
H L McClintock “Adequacy of ineffective remedy at law” 1932 Minn LR 233.
132
I C F Spry The Principles of Equitable Remedies 5 ed (1997) 68, citing Associated
Portland Cement Manufacturers Ltd v Teigland Shipping A/S (“The Oakworth”) [1975] 1
Lloyd’s Rep 581, where the Court of Appeal granted an injunction on the ground that the
defendants had no assets to satisfy the damages claim. See also Beale et al (eds) Chitty
on Contracts 1910.
133
This analysis appears from the earlier decisions – see eg Doloret v Rothschild 57 ER 233,
236 (1824); Clark v Flint 39 Mass. 231, 238-239 (1839). See also E Yorio Contract
Enforcement: Specific Performance and Injunctions (loose-leaf updated by S Thel) § 7.1.
129
upon the question of the granting or refusing of relief, but many courts have doubted
whether the defendant’s inability to satisfy a damages claim against him is sufficient
reason to grant specific performance.134 The primary reason advanced in support of the
remedy of damages where the defendant is insolvent, is that to grant specific
performance would create an inequitable preference in favour of the plaintiff over the
other creditors.135 In both England and America, specific performance has been refused
against an insolvent on this ground. It was the fear of giving the buyer priority over
secured creditors that prevented the court from ordering specific performance in In Re
Wait136 for example.137
134
See H C Horack “Insolvency and specific performance” (1918) 31 Harv LR 702; Perillo
(ed) Corbin on Contracts § 1156.
135
McClintock 1932 Minn LR 233 234; Horack 1918 Harv LR 702 706, saying: “Since each
creditor can make out a case for relief exactly similar to that of the party now before the
court, and as each has at some time contributed to the enlarging of the defendant’s
estate, it ought to make no difference whether one claimant got into his unfortunate
position sooner or later than another.”
136
[1927] 1 Ch 606.
137
In National Bank of Kentucky v Louisville Trust Co 67 F.2d 97 (C.C.A.6th, 1933), the court
said: “The granting to the complainant of relief in the nature of specific performance would
be the equivalent of full satisfaction of its claim, and it would thus receive preference to
which it is not entitled.” And in Geo E Warren Co v AL Black Coal Co 102 S.E. 672, 673
(1920), the court similarly stated: “It is true some courts have held that insolvency is a
consideration in determining whether or not a contract should be enforced; but, on the
contrary, other courts have held that insolvency furnishes an additional reason for denying
jurisdiction, for the reason that performance of his contract by an insolvent defendant
would enable a plaintiff to obtain preference over the defendant’s other creditors.” See
also Roundtree v McLain Hempst 245, 20 F.Cas 1260, 1262 (1834) (cf n 144 below);
Jamison Coal & Coke Co v Goltra 143 F.2d 889 (1944).
130
This is why insolvency of the debtor is one of the recognised exceptions to a claim for
specific performance under South African law.138 Thus, the opposite rule applies in our
law. Specific performance can never be awarded because it would upset the paritas
creditorum (whereby all unsecured creditors have an equal right to payment and
proceeds of the insolvent estate).139 Eiselen explains the rationale as follows:
138
See generally D Hutchison & C Pretorius (eds) The Law of Contract in South Africa 2 ed
(2012) 322; S van der Merwe et al Contract: General Principles 4 ed (2012) 330.
Therefore a trustee of an insolvent estate (or liquidator of a company) generally cannot be
compelled to carry out the insolvent’s pre-sequestration (or pre-liquidation) contracts if the
trustee elects to repudiate liability. The other party is confined to a concurrent claim for
damages based on the trustee’s repudiation – see in this regard Bryant & Flanagan (Pty)
Ltd v Muller 1977 (1) SA 800 (N) 247; Glen Anil Finance (Pty) Ltd v Joint Liquidators, Glen
Anil Development Corporation Ltd (in liquidation) 1981 (1) SA 171 (A) 182; International
Shipping Co (Pty) Ltd v Affinity (Pty) Ltd 1983 (1) SA 79 (C) 85; Norex Industrial
Properties (Pty) Ltd v Monarch SA Insurance Co Ltd 1987 (1) SA 827 (A) 837; Thomas
Construction (Pty) Ltd (In Liquidation) v Grafton Furniture Manufacturers (Pty) Ltd 1988 (2)
SA 546 (A) 567A; Du Plessis v Rolfes Ltd 1997 (2) SA 354 (A) 363; Nedcor Investment
Bank v Pretoria Belgrave Hotel (Pty) Ltd 2003 (5) SA 189 (SCA) 192. See also R Sharrock
et al Hockly’s Insolvency Law 9 ed (2012) 86 ff; A D J van Rensburg, J G Lotz & T van
para 495. That this represents the law in South Africa was confirmed by the recent SCA
decision in Ellerines Bros (Pty) Ltd v McCarthy Ltd 2014 (4) SA 22 (SCA) paras [11]-[12]
per Van Zyl AJA.
139
According to South African insolvency law, once a sequestration order is granted, a
concursus creditorum (or “community of creditors”) is established by which the interests of
the creditors as a group enjoy preference over the interests of individual creditors. This
means that all (unsecured) creditors will have an equal right to payment and proceeds of
the estate (see Sharrock et al Hockly’s Insolvency Law 4; Walker v Syfret 1911 AD 141
166; Richter NO v Riverside Estates (Pty) Ltd 1946 OPD 209 223. More recently, in
discussing the working of a concursus creditorum, Harms JA in Contract Forwarding (Pty)
Ltd v Chesterfin (Pty) Ltd 2003 (2) SA 253 (SCA) para [1], maintained that it “crystallises
131
“The reason for [this] exception is to be found in the need to treat all concurrent creditors of
an insolvent estate equally. Since there are insufficient assets in an insolvent estate to
discharge all the liabilities of the insolvent, an order of specific performance in favour of one
creditor would necessarily result in that creditor’s claim being preferred to that of the other
creditors.”140
Common law courts have to find reasons for awarding specific performance, whereas
South African courts have to give reasons for refusing the remedy.141 Based on the
central requirement of inadequacy of damages, specific performance will be awarded,
irrespective of the consequences of ordering specific performance against an insolvent
debtor. However, it may be questioned whether this is a valid reason for awarding this
remedy in common law. It appears to give rise to an inconsistency: the efficacy of the
remedy at law is the determining factor, but how would the equitable remedy of specific
performance be effective against an insolvent debtor? In practice it may be difficult to
ensure that a contract is fulfilled if the debtor is insolvent,142 and this in turn subverts the
point of awarding specific performance.
the insolvent’s position by preventing a creditor from advancing its own position to the
detriment of other creditors”).
140
“Remedies for breach” in Hutchison & Pretorius The Law of Contract in South Africa 309
322.
141
J C de Wet & A H van Wyk Die Suid-Afrikaanse Kontraktereg en Handelsreg I 5 ed (1992)
211; G F Lubbe & C M Murray Farlam & Hathaway Contract: Cases, Materials,
Commentary 3 ed (1988) 542.
142
As contended by Horack for example 1918 Harv LR 711: “The conclusion to which we
must then come, if insolvency is a basis for specific performance in any case, is that all
persons to whom the insolvent owes obligations are entitled to specific performance, or to
some sort of relief which is equitable in its nature. But where there are many creditors who
are all practically in the same situation specific performance is obviously impossible, since
all cannot be paid in full and there is no reason for preferring one creditor over the others
or giving preference to one class of obligations merely because goods were to be given
rather than money. In each case, though the legal remedy would under normal
132
However, the prevailing common law view remains that insolvency of the defendant will
of itself influence a court to decide that damages is inadequate. Spry confirms this in the
most recent edition of Equitable Remedies:
“[D]espite occasional statements to the contrary it appears to be clear that a significant risk
that a legal remedy such as damages will be ineffective on the ground of the inadequate
resources of the defendant or otherwise, may of itself justify the conclusion that it is
inadequate.”143
The likelihood that the damages claim will be satisfied must therefore be taken into
account when the adequacy question is considered. And the inability to collect damages
will make damages inadequate. Whilst the paritas creditorum principle underpins most
insolvency laws, including the insolvency laws of America and England,144 it appears
circumstances give adequate relief, this remedy is of but little value here because of the
insolvency of the defendant. The relief which is needed is not specific performance of any
particular obligation, but rather an equal distribution of assets to all persons having similar
claims which cannot be paid in full.” See also Perillo (ed) Corbin on Contracts § 1156.
143
I C F Spry The Principles of Equitable Remedies: Specific Performance, Injunctions,
Rectification and Equitable Damages 8 ed (2010) 68; Beale et al (eds) Chitty on Contracts
1909-1910: “Damages may also be an inadequate remedy because … the defendant may
not be ‘good for the money’ [citing Sachs LJ in Evans Marshall & Co Ltd v Bertola SA
[1973] 1 WLR 379, 380].” See also (for the US) Klass Contract Law in the USA 213; Yorio
& Thel Contract Enforcement: Specific Performance and Injunctions (2012 supplement) §
7.4.1: “both scholars and early nineteenth-century cases agree that inability to collect
damages makes the remedy in damages inadequate …” Cf Cunnington “The inadequacy
of damages as a remedy for breach of contract” in Rickett (ed) Justifying Private Law
Remedies 119.
144
See again Roundtree v McLain Hempst 245, 20 F.Cas 1260, 1262 (1834) where the court
refused to order specific performance against the administrator of the debtor’s insolvent
estate where the debtor had promised his creditor, the plaintiff, to procure and to assign to
him certain securities; saying (at 1262) “to grant relief would violate the rule that a court of
133
that their approach compromises the paritas principle. But, as we know, the adequacy
test is merely the first hurdle in obtaining specific performance.145 This was confirmed
recently by Thel:146
“[The] judicial inquiry does not end with a finding that damages are inadequate. Rather, the
court must address the second and distinct issue of whether all the circumstances justify the
equitable remedy of specific performance. On this issue, courts and scholars concur that
factors other than adequacy of damages must be considered.”147
Insolvency is relevant in the context of inadequacy. But, the insolvency of the

defendant, though it might justify the conclusion that damages is inadequate, does not
necessarily provide a basis for specific performance.148 Public policy considerations
may nonetheless lead to a refusal of specific performance, with the consequence that
equity will never allow one creditor to gain an inequitable or undue advantage or
preference over others”. See also Perillo (ed) Corbin on Contracts § 1156.
145
See n 25 para 3 2 above. See also introductory statement by McClintock 1932 Minn LR
233: “By a process of inclusion and exclusion, the classes of cases in which courts of
equity consider that the remedy at common law is inadequate to meet the needs of justice
have been fairly well determined, and whenever a case in equity falls into one of those
classes we may be quite confident that the court will grant equitable relief unless some
factor is present which, according to other principles of equity, precludes relief even
though the remedy at law is concededly inadequate.”
146
Yorio & Thel Contract Enforcement: Specific Performance and Injunctions (2012
supplement) § 7.4.1.
147
See also McClintock 1932 Minn LR 234: “In cases involving contracts of such a nature
that the recovery of damages for their breach is admittedly an inadequate remedy, courts
have refused to decree specific performance because to grant that relief would prejudice
the interests of the public, or of other persons not parties to the contract.”
148
supplement) § 7.4.1; Fry Specific performance of Contracts 30 (arguing against Doloret v
Rothschild 57 ER 233, in which case Leach VC suggested that insolvency does provide a
basis for specific performance).
134
the plaintiff may be confined to his legal remedies in any event. These considerations
would typically arise if the plaintiff is not the only person affected by the defendant’s
insolvency.149 Accordingly, specific performance may be denied if it would upset paritas
creditorum. As Thel states:150
“If the defendant is insolvent, there may be creditors other than the plaintiff who have a right
to share in the remaining assets. If specific performance or an injunction would result in a
preference with respect to these assets, the equitable remedy may be denied on grounds of
public policy.”151
Indeed, an order of specific performance in favour of one creditor would necessarily

result in that creditor’s claim being preferred to that of the other creditors. Therefore, the
South African solution of confining the creditor to a concurrent claim for damages (to
ensure that all creditors are treated equally) may be regarded as preferable.
However, as Corbin points out, specific performance could be granted without this
effect. If the plaintiff is the defendant’s only creditor, “clearly no preference problems
arise”. Then “there is no reason not to protect the plaintiff”.152 These are all valid
arguments which cannot be ignored when courts determine what relief to afford the
149
Spry The Principles of Equitable Remedies 68; Perillo (ed) Corbin on Contracts § 1156.
150
supplement) § 7.4.2. For further discussion of this point, see Horack 1918 Harv LR 702;
McClintock 1932 Minn LR 233.
151
He cites: Restatement (Second) of Contracts § 360, cmt d; § 365, cmt b; and In re MJK
Clearing Inc 286 B.R. 109 (Bkrtcy.D.Minn. 2002) (affirmed by District Court 2003 WL
1824937 (D.Minn.), and by Court of Appeals 371 F.3d 397 (8th Cir. 2004)); Seci Inc v
Chafitz Inc 493 A.2d 1100, 1104 (Md.App. 1985); Block v Shaw 95 S.W. 806,808 (1906).
152
Perillo (ed) Corbin on Contracts § 1156. See also Sharpe Injunctions and Specific
Performance 284; Spry The Principles of Equitable Remedies 68.
135
plaintiff. The effect and effectiveness153 of the remedy once granted should be
considered when courts decide on a remedy.154
3 2 4 Only nominal damages available
Finally, damages is also regarded as an inadequate remedy in cases where damages

would be purely nominal, since the plaintiff suffered no pecuniary loss. The case most
often cited in this regard is the by now familiar Beswick v Beswick.155 This case involved
a contract that provided for Mr Beswick to transfer property to his nephew, and for the
nephew in turn to make certain payments to Mr Beswick’s wife after his death. Mr
Beswick died only a year after conclusion of this agreement. The nephew only made
one weekly payment subsequent to his death and refused to make any further
payments. Mrs Beswick brought an action for breach of contract in her capacity as Mr
Beswick’s personal representative. The nephew in turn contended that, since Mr
Beswick had died, his estate had suffered no loss as a result of the breach of contract,
and thus nominal damages were adequate.
The House of Lords rejected his argument, holding that the nephew “wholly
misunderstood” the adequacy test, as “[e]quity will grant specific performance when
damages is inadequate to meet the justice of the case”.156 The fact that only nominal
damages could be recovered therefore did not constitute a reason to refuse specific
performance. Instead, it was held to be the main reason for granting specific
performance. The House of Lords held that damages were an inadequate remedy as
the estate itself had suffered no loss, since the payments were due to be made to the
widow in a personal capacity. Accordingly, they made an order for specific performance
compelling the nephew to carry out his obligations. Thus, specific performance will be
153
See the argument in favour of the relevance of insolvency based on efficiency in
McClintock 1932 Minn LR 233.
154
Cf for South African law: text to n 181 para 3 3 below.
155
[1968] AC 58.
156
102.
136
ordered in the situation where the plaintiff has a non-pecuniary interest in performance,
which would be left unprotected by an award of nominal damages. Here Mr Beswick
had an interest in performance for the benefit of a third party – his wife.
The other relevant case that requires analysis in this context is Ruxley Electronics &
Construction Ltd v Forsyth.157 This case concerned a contract for the construction of a
swimming pool. The contract stipulated that the pool must be seven feet, six inches
deep. However, it appeared that after construction, the pool was only six feet deep. This
was still considered to be a safe depth for diving but Forsyth nonetheless brought an
action for damages, claiming the cost of correcting the defect, i.e. having the pool
demolished and rebuilt (totaling about £21 500). The trial court rejected this claim
because it was considered unreasonable in the circumstances, and instead awarded
Forsyth £2 500 for loss of amenity. This decision was reversed by the Court of Appeal
but restored by the House of Lords. Here the plaintiff had a subjective non-pecuniary
interest in obtaining a swimming pool that was seven feet, six inches deep regardless of
whether this particular depth actually increased the value of his property. Lord Mustill
found counsel’s contention that the plaintiff should only be able to recover damages if
he could indicate that the defect decreased the value of his property, “unacceptable”158
because in this particular case the amount by which the defect decreased the value of
the property was nil, leaving Forsyth with no more than nominal damages. He
acknowledged that the cost of reinstatement would be “wholly disproportionate”159 to the
non-monetary loss suffered by the plaintiff, but that it would be equally unreasonable to
deny all recovery for such a loss. Lord Mustill held that loss of amenity damages were
required to recognise the plaintiff’s “consumer surplus” (a concept which has been
defined as “excess utility or subjective value that the consumer receives from the good,
over and above the utility associated with its market price”).160 These damages were
157
[1996] AC 344.
158
360.
159
361.
160
D Harris, A Ogus & J Phillips “Contract remedies and the consumer surplus” (1979) 95
LQR 581 582. See also G Hesen & R Hardy “Is the system of contract remedies in the
137
consequently not merely nominal, and hence there was no need to award specific
performance.
The discussion will now turn to South African law. It will be seen that our courts, under
the influence of English law, have regarded adequacy of damages as a relevant factor
in the exercise of their discretion, but currently adopt a predominantly civilian approach,
inasmuch as they focus on maintaining the right to specific performance.161 The
subsequent evaluative part will therefore examine whether and how our law can benefit
from the experiences of modern English law. After dealing with English law, and
potentially underlying economic efficiency arguments, the discussion will turn to whether
our law currently gives sufficient weight to the adequacy of damages as a consideration
against granting specific performance. Finally, suggestions will be made for the future
development of our law.
3 3 South African law
South African courts have been influenced by English law in taking adequacy of
damages into account when giving content to the discretion to refuse specific
performance.162 There is a clear dictum to this effect in Thompson v Pullinger:163
Netherlands efficient from a law and economics perspective?” in J M Smits et al (eds)

Specific Performance in Contract Law: National and Other Perspectives (2008) 287 290;
E McKendrick Contract Law 8 ed (2009) 342-343; Stone The Modern Law of Contract
467.
161
See n 2 and related text in para 3 1 above on the absence of an adequacy of damages
principle in the civil law.
162
See generally para 1 1 3 1 above. See also De Wet & Van Wyk Die Suid-Afrikaanse
Kontraktereg en Handelsreg I 210-211; Lubbe & Murray Contract 542-543; A Cockrell
“Breach of contract” in R Zimmermann & D Visser (eds) Southern Cross: Civil Law and
Common Law in South Africa (1996) 303 327; S Eiselen “Specific performance and
special damages” in H L MacQueen & R Zimmermann European Contract Law: Scots and
South African Perspectives (2006) 249 251.
138
“… it is said that in a contract of purchase and sale of shares which are daily dealt in on the
market, as a rule, no specific performance is decreed, because the payment of
compensation, calculated by the difference between the purchase price of the shares and
that at which they can be obtained at the time when the defendant is placed in mora, is a full
and satisfactory compensation. With respect to transactions in the public funds, and shares
in companies which can daily be obtained on the market without difficulty, this is the case;
but not with respect to shares which cannot easily be obtained, nor where, owing to some
circumstance or the other, the rule ought not to be applied. (2 Story, Eq. § 717, a; 3 Parsons
on Contract, part 2, Division 2, s. 3.)”164
Wessels, similarly, after reviewing some English authorities, came to the conclusion
that165
163
(1894) 1 OR 298, 301 per Kotzé CJ. See also Farmers’ Co-operative Society (Reg) v
Berry 1912 AD 343 350; Schierhout v Minister of Justice 1926 AD 99, 107; Rex v Milne
and Erleigh (7) 1951 (1) SA 791 (AD) 873G-874C; Baragwanath v Olifants Asbestos Co
(Pty) Ltd 1951 (3) SA 222 (T) 227G-228C; Associated South African Bakeries (Pty) Ltd v
Oryx & Vereinigte Bäckereien (Pty) Ltd 1982 (3) SA 893 (A) 922H-923H, and Beck 1987
CILSA 196 ff.
164
Kotzé CJ then affirmed an English judgment by the Chancery Division, and said (at 301-
302): “In a well-known case on this point [Duncuft v Albrecht (1841) 12 Sim 189, 199],
specific performance of a contract for the sale of certain shares in a railway company was
granted. Shadwell, V.-C., gave the following reasons for his judgment: ‘Now, I agree that it
has long since been decided that you cannot have a bill for the specific performance of an
agreement to transfer a certain quantity of stock. But in my opinion there is not any sort of
analogy between a quantity of 3l. per cents., or any other stock of that description (which
is always to be had by any person who chooses to apply for it in the market), and a certain
number of railway shares of a particular description, which railway shares are limited in
number, and which, as has been observed, are not always to be bad in the market.’”
165
J W Wessels The Law of Contract in South Africa 2 ed (1951) vol 2 § 3136. See also
§§ 3113 ff (esp § 3119) where Wessels indicates which English principles should be
followed by our courts, as they are more than mere technicalities, but sound reasons for
refusing specific performance, and in harmony with our Roman-Dutch legal foundation.
139
“Where damages are an adequate remedy and there is nothing in the nature of the contract
to lead the court to the conclusion that the contract ought to be specifically performed, the
court will not issue a decree of specific performance (Cud v Rutter, 1720, 1 P. Wms 570: 24
E.R. 521; Withy v Cottle, 1823, 1 L.J.O.S Ch.117: 37 E.R.1024, L.C).”166
There are situations where the remedy has been refused based on the fact that money
would adequately compensate the plaintiff for his loss.167 The example most often
referred to as illustration, is where the item could be easily repurchased on the open
market. As the quote from Thompson v Pullinger168 above reflects, Kotzé CJ held that
specific performance should not be granted in the case of shares in companies which
can be obtained on the market daily without much difficulty.169 In this case the plaintiff
was employed in a managerial position by a company of which the defendant was the
managing director. The employment contract granted the plaintiff the option to purchase
2 000 shares in the company at £1 per share. During the course of his employment, the
plaintiff was wrongfully dismissed, and he sought specific performance of their
agreement, claiming delivery of the 2 000 shares against payment of £2 000. The
defendant, however, argued that the option was no longer available as it terminated
upon the plaintiff’s dismissal, and refused to deliver the shares. The court found that the
defendant could not derive any advantage from the wrongful dismissal and that the
166
See n 18 above. See further Wessels § 3137: “Thus, if ordinary goods or chattels are sold
such as may be bought anywhere, the court will not order specific performance, but if the
goods are of a special nature, such as a picture by a particular artist, a vase or other work
of art, an heirloom or indeed anything which has acquired a peculiar value, the court will
order specific performance (Leake, Contracts, 8th ed., p. 874).”
167
In Visser v Neethling 1921 CPD 176, for example, specific performance was refused of an
agreement to sell immovable property because the property had “no special and peculiar
value” to the purchaser who had purchased the property, not for his own occupation, but
in order to make a profit on re-sale thereof. (This is a peculiar example, for English law
would surely have awarded specific performance due to the presumed uniqueness of land
irrespective of the subjective intention of the purchaser – see text to nn 31 & 77 above.)
168
(1894) 1 OR 298.
169
301.
140
plaintiff therefore was entitled to delivery of the 2 000 shares against payment of £2 000
to the defendant, as the defendant failed to prove that the shares in his company could
be easily purchased on the market daily.
However in Benson v SA Mutual Life Assurance Society,170 it was held that Thompson’s
case did not reflect our law accurately, as it was based on the incorrect assumption that
English law became the source of practical application of the remedy.171 In Benson, the
respondent claimed from the appellant delivery of 63 600 ordinary shares in a listed
company known as the McCarthy Group Limited. The respondent had purchased from
the appellant 171 500 shares in the company at a price of 210 cents per share. It was
an implied term of the agreement that delivery of the shares would take place within a
reasonable time. The appellant had delivered 107 900 of the shares but had failed to
deliver the remaining 63 600. The trial court ordered the appellant to transfer the
shares, and pay the respondent damages for the loss of a dividend he would have
received had the shares been timeously delivered. On appeal, the appellant admitted
his failure to deliver the 63 600 shares, but contended that the trial court should have
exercised its discretion against granting specific performance because ordinary shares
in the company were readily available in the market at the relevant time. And the
respondent, once it became apparent that the remaining 63 600 shares would not be
delivered, could have bought shares elsewhere and could have sued the appellant for
such damages as it may have suffered as a result of the purchase.
However, the Appellate Division rejected this contention, accepting and confirming the
trial court’s decision. The latter court considered the fact that the shares were readily
available in the market and the fact that the respondent could have been adequately
compensated by damages, but ultimately found that it did not provide sufficient reason
to refuse specific performance. The Appellate Division emphasised that although the
right to specific performance is subject to a judicial discretion to refuse specific
performance, this discretion cannot in any way be regulated by rigid rules which would
170
1986 (1) SA 776 (A).
171
784-785. See also Beck 1987 CILSA 205.
141
restrict the court’s discretion and erode the right to specific performance.172 Because of
the fundamental difference between English law and Roman-Dutch law when it comes
to the exercise of the discretion to order performance, Hefer JA said that there is
“neither need nor reason” for courts to continue following rules deriving from English law
when exercising their discretion.173
It follows that the adequacy of monetary damages does not constitute an independent
ground on which courts will refuse an order for specific performance.174 Adequacy of
damages was also mentioned in Haynes v Kingwilliamstown Municipality175 as one of
the grounds on which the court may, in its discretion, refuse specific performance, but it
is clear from Benson that it is not, per se, sufficient.176 Hefer JA authoritatively stated
that “a rule like the one contended for unduly limits the Court’s discretion, and is a
complete negation of a plaintiff’s right to select his remedy”.177 In this regard he relied
172
782I-783C. See also para 1 1 1 above.
173
785E.
174
See generally D J Joubert General Principles of the Law of Contract (1987) 226; F du Bois
(ed) Wille’s Principles of South African Law 9 ed (2007) 874; Sharrock “Contract” in
Joubert & Faris LAWSA 5(1) 2 ed para 495, and specifically Eiselen “Specific performance
and special damages” in MacQueen & Zimmermann European Contract Law: Scots and
South African Perspectives 257.
175
1951 (2) SA 371 (A) 378.
176
See also Botes v Botes 1964 (1) SA 623 (O) 629; Santos Professional Football Club (Pty)
Ltd v Igesund 2003 (5) SA 73 (C) 81.
177
1986 (1) SA 776 (A) 784C, cited with approval by Foxcroft J in Santos Professional
Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) 81I. Hefer JA added at 784D that the
related “available substitute” rule is “equally foreign to our law and inconsistent with a
plaintiff’s right to performance”.
142
on an earlier decision, Swartz & Son (Pty) Ltd v Wolmaransstad Town Council,178 where
Hiemstra J (in turn relying on De Wet)179 held the following:
“Only English authorities are however quoted for the proposition. I doubt whether the mere
possibility of recovering damages is enough in all cases. If it should be so, the plaintiff’s right
of election would largely be rendered nugatory. It would cease to be a right and become a
matter of indulgence by the Court.”180
In rejecting the notion that adequacy of damages generally warrants refusing specific
performance or result in damages being awarded, our courts have been reluctant to
consider the effect the remedy will have once granted.181 Courts have chosen to ignore
178
1960 (2) SA 1 (T).
179
J C de Wet & J P Yeats Die Suid-Afrikaanse Kontraktereg en Handelsreg 2 ed (1953) 142.
See also De Wet & Van Wyk Kontraktereg en Handelsreg I 5 ed (1992) 211.
180
1960 (2) SA 1 (T) 3C-D. This quotation appears in Beck 1987 CILSA 198. In Botes v
Botes 1964 (1) SA 623 (O), Hofmeyr J, having also relied on Swartz & Son, similarly
stated that “As so ‘n bevel egter sou geweier word bloot om die rede dat skadevergoeding
voldoende vergoeding vir die eiser sou oplewer, sou die beginsel wat in die Haynes-saak
herbevestig is naamlik dat die Hof sover as moontlik uitvoering aan ‘n eiser se voorkeur vir
reële eksekusie gee, nutteloos wees …” (629).
181
The locus classicus is the judgment of Innes J in Farmers’ Co-operative Society (Reg) v
Berry 1912 AD 343 350: “And there are many cases in which justice between the parties
can be fully and conveniently done by an award of damages. But that is a different thing
from saying that a defendant who has broken his undertaking has the option to purge his
default by the payment of money. For in the words of Storey Equity Jurisprudence, Sec
717(a) it is against conscience that a party should have a right of election whether he
would perform his contract or only pay damages for the breach of it. The election is rather
with the injured party, subject to the discretion of the Court.” See also Cohen v Shires,
McHattie and King (1882) 1 SAR TS 41; Shakinovsky v Lawson and Smulowitz 1904 TS
326 330; Stacy v Sims 1917 CPD 533; Woods v Walters 1921 AD 303 309; Shill v Milner
1937 AD 101 109; Roberts Construction Co Ltd v Verhoef 1952 (2) SA 300 (W) 305B; BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A)
433D-F; Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) 440G-H. For more
143
the fact that specific performance of the contract might result in wastage or loss, and the
plaintiff can equally well be compensated by an award of damages. For example, in
Industrial & Mercantile Corporation v Anastassiou Brothers,182 Davidson J granted
specific performance despite the heavy transaction costs of performance.183 In this case
the plaintiff sold to the defendant machinery and equipment, which were to be used for
refrigeration. The defendant agreed to pay the purchase price against delivery of the
equipment. However, when the plaintiff tendered delivery of the goods to the defendant,
he refused to accept such delivery or to pay the purchase price. The plaintiff did not
accept the defendant’s repudiation and consequently claimed the purchase price of the
goods. The defendant argued that it would be inappropriate for the court to order
payment of the purchase price against performance of the plaintiff’s obligation “as this
would involve making an order which Courts should and do avoid making, namely, in
which the want of supervision over the performance of the acts, on which the order is
dependent, makes it either improper or useless to order the performance”.184
Furthermore, the installation of the equipment would take between two weeks and a
month, during which time its refrigerated goods would have to be stored elsewhere and
the equipment presently in the shop would have to be removed, and this would cause
the defendant “considerable loss and discomfort”.185 Accordingly, it was argued that
damages was the more appropriate remedy. However, the court strongly disagreed and
rejected the defendant’s argument.186
recent authority, see Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA
73 (C); Nationwide Airlines (Pty) Ltd v Roediger 2008 (1) SA 293 (W), and Vrystaat
Cheetahs (Edms) Bpk v Mapoe para 110.2 (unreported judgment with case no 4587/2010
discussed in paras 4 2 1 2 & 4 8 4 below).
182
1973 (2) SA 601 (W).
183
Van Heerden 1981 Responsa Meridiana 156; Lubbe & Murray Contract 549.
184
1973 (2) SA 601 (W) 605H-606A.
185
606C.
186
609B-C per Davidson J: “That it would be inconvenient [for the defendant if he were
compelled to accept performance by the plaintiff to install equipment in his premises] is
144
In relation to this aspect of our courts’ approach, it is important to note the concept of
“efficient breach”. From an economic point of view, it may make sense for a party to
commit breach of contract if this would lead to wealth/value maximisation or rather,
minimise loss.187 This theory and its implications are dealt with in depth in the following
section.188 It suffices for present purposes to note that efficiency justifications for the
restriction of specific performance have not received much favour with South African
courts.189 The familiar case of Santos Professional Football Club (Pty) Ltd v Igesund,190
which is considered in more detail elsewhere in this study, serves as an example.191
One of the reasons why the court saw it fit to order specific performance of an obligation
to work against the employee, a football coach, was the fact that he wanted to end the
employment relationship with his employer, a football club, for a commercial reason: to
conclude a more lucrative coaching contract with another club in the same soccer
league (he committed “cynical breach”).192 In rejecting this argument, the court
likely, that he will suffer some financial loss is likely, but that he has brought on himself by
an arrogant denial of his commitments and I do not believe he should earn particular
sympathy for that.” See also para 6 1 2 below.
187
See generally Van Heerden 1981 Responsa Meridiana 154-156; Stone The Modern Law
of Contract 463, M Bigoni et al “Unbundling efficient breach” University of Chicago Coase-
Sandor Institute for Law & Economics Research Paper No 695 (2014); M Smits Efficient
Breach and the Enforcement of Specific Performance LLM thesis Amsterdam Law School
(2014) 6-10 (and reference there to Ronald Dworkin’s critique of Posner’s efficiency theory
(para 3 4 2 below)).
188
189
Apart from the cases cited in n 181 above, see Shill v Milner 1937 AD 101; Industrial &
Mercantile Corporation v Anastassiou Brothers 1973 (2) SA 601 (W) (cf para 6 1 2 below);
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A); Unibank Savings and
Loans Ltd (formerly Community Bank) v Absa Bank Ltd 2000 (4) SA 191 (W). See also
Van Heerden 1981 Responsa Meridiana 155-156 and the authorities cited there.
190
2003 (5) SA 73 (C).
191
192
See text to n 99 para 4 2 1 2 below.
145
effectively rejected the theory of efficient breach, which allows debtors to breach when it
is more efficient for them to do so and pay damages (if any), rather than to perform the
contract.
Another reason why the court granted specific performance in this case was because
specific performance is the primary remedy for breach of contract in our law.193 In
deciding this and emphasising the supremacy of specific performance in our remedial
system, according to Naudé,194 the court effectively rejected the position that specific
performance should not be granted where an award of damages would adequately
compensate the aggrieved party. However, what the court failed to consider,195 was the
suggestion in Benson that the adequacy of damages as well as other obstacles to
specific performance derived from English law, “remained relevant factors which are to
be considered on the same basis as any other relevant fact …”196 Rules to the effect
that specific performance should be refused where ordinary goods are sold, or shares
which are readily available on the market (because damages would constitute an
adequate remedy) were rejected in Benson, but, as Beck stated, Hefer JA “did not say
that the principles of English law could never be referred to”.197
193
2003 (5) SA 73 (C) 81A-E, 84I, 87A. See also para 2 2 3 above.
194
T Naudé “Specific performance against an employee: Santos Professional Football Club
(Pty) Ltd v Igesund” 2003 SALJ 269 272. See also K Mould “The suitability of the remedy
of specific performance to breach of a ‘player’s contract’ with specific reference to the
Mapoe and Santos cases” 2011 PELJ 189 204.
195
2003 SALJ 272. See also Sharrock “Contract” in Joubert & Faris LAWSA 5(1) 2 ed para
496.
196
1986 (1) SA 776 (A) 785F-G.
197
Beck 1987 CILSA 190 205. See also Cockrell “Breach of contract” in Zimmermann &
Visser (eds) Southern Cross 330: The Benson judgment affirmed, inter alia, that “the
English legal guidelines regarding the circumstances in which specific performance is an
inappropriate remedy cannot fetter the discretion of a South African court (although they
may continue to be relevant as factors to be considered in a pool of relevant
considerations)”; G Lubbe “Contractual derogation and the discretion to refuse an order
146
The question is thus not whether adequacy of damages might be a relevant factor in the
court’s decision; this was affirmatively answered by Benson. The question is rather
under what circumstances adequacy of damages might carry sufficient weight to
warrant denying specific performance. In the following concluding section it will be
sought to provide greater clarity in this regard.
3 4 1 Introduction
The point of departure in Anglo-American law is that specific performance is only

available when damages would not adequately compensate the aggrieved party.
However, even though this adequacy-of-damages test is long established, it remains
controversial. Professor Dawson once described it as “an unnecessary and irksome
restriction of specific performance”, which is applied in an “arbitrary and irrational”
manner.198 However, other commentators contend that it actually fulfils an important
and valuable role in restricting the availability of “contempt-backed” remedies, which
include specific performance.199 Section 3 2 above deals with a number of situations
where damages is said to be inadequate, the underlying reason being that it fails to
protect the parties’ interest in performance. Anglo-American law will then award specific
performance as an alternative, secondary remedy whenever damages is inadequate to
protect the plaintiff’s interest in performance.
for specific performance in South African Law” in J Smits et al (eds) Specific Performance
in Contract Law: National and Other Perspectives (2008) 95 110-111: “The Benson
judgment itself recognises that factors that in the past have served as reasons to deny
specific performance remain relevant to the exercise of the discretion.”
198
J P Dawson “Specific performance in France and Germany” (1959) 57 Mich LR 495 532.
199
(ed) Justifying Private Law Remedies 116. Burrows Remedies for Torts and Breach of
Contract 459 also maintains that “the adequacy of damages restriction rests on a sound
footing”.
147
It is clear that Anglo-American law has developed in the direction of an approach that
places emphasis on the appropriateness of the remedy in the circumstances. The
extraordinary remedy of specific performance rarely was available to a creditor at
common law. However, as indicated above, the possibility of obtaining specific
performance as a remedy has increased in the common law. This was accomplished by
the development of the “inadequacy of damages” requirement to the “appropriateness
of the remedy” requirement by the courts. This is an indication that common lawyers
have gradually started to realise that their traditional approach is unduly restrictive.200
Even one of their major justifications for the restriction of specific performance, namely
economic efficiency, has been cast in doubt. As was mentioned in the introduction to
this thesis and in the previous section, the theory of efficient breach goes some way to
explaining why the common law of contract is generally more disposed to award
damages than to insist on literal performance.201 The following section looks closely and
critically at the efficiency justification and questions its tenability.
3 4 2 The efficient breach fallacy
In the common law an important motivation behind the approach that the remedy should
provide adequate relief has been the need to promote economic efficiency. This view
has been strongly advanced by proponents of the “economic analysis of law”
approach.202 More specifically, academic support for the primacy of damages has been
200
See esp para 3 2 1 2 above on the specific enforceability of contracts of which the subject
matter concerns ordinary (i.e. non-unique) personal property.
201
See also n 10 para 3 2 above.
202
For a detailed consideration of the economic analysis of contract remedies, see Van
Heerden 1981 Responsa Meridiana 147; L Kornhauser “An introduction to the economic
analysis of contract remedies” (1986) 57 University of Colorado Law Review 683; S
Shavell “Specific performance versus damages for breach of contract: an economic
analysis” (2006) 84 Tex LR 831; L Smith “Understanding specific performance” in N
Cohen & E McKendrick (eds) Comparative Remedies for Breach of Contract (2005) 221;
G Klass “Efficient breach is dead; long live efficient breach” Georgetown Public Law and
148
expressed in the theory of efficient breach, which has attempted to explain and justify
the common law’s preference for damages.203 Anglo-American jurists and scholars
often justify the limitation of specific performance on efficiency grounds.204 The basic
premise of the economic analysis of law is that the primary purpose of legal rules and
institutions is to achieve efficiency in the use of resources.205 Therefore, the proponents
of the economic analysis of law argue that efficiency might suffer as a result of
expanding the remedy of specific performance, because it prevents a debtor from re-
allocating his resources to higher valued uses even though damages would adequately
compensate the creditor.206 Thus, the common law’s continuing preference for damages
has been regarded as preferable (from an economic point of view) because damages
allow the debtors to breach when it is more efficient for them to do so than to perform
the contract.207 Furthermore, they argue that specific performance is over-compensatory
Legal Theory Research Paper No 13-018 (2013), and recent LLM thesis by Smits Efficient
Breach and the Enforcement of Specific Performance.
203
See E A Farnsworth “Damages and specific relief” (1979) 27 Am J Comp L 247 247-248;
Sharpe “Specific relief for contract breach” in Reiter & Swan (eds) Studies in Contract Law
123 139 ff; G Hesen & R Hardy “Is the system of contract remedies in the Netherlands
efficient from a law and economics perspective?” in J M Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives (2008) 287 295; R A
Posner The Economic Analysis of Law 8 ed (2011) 149 ff. For analysis of this position,
see Van Heerden 1981 Responsa Meridiana 154 ff.
204
For book-length discussion on the efficiency standard for evaluating the law, see S
Shavell Foundations of Economic Analysis of Law (2004) and Posner The Economic
Analysis of Law 8 ed (2011).
205
See A T Kronman “Specific performance” (1978) 45 U Chi LR 351-354; P Burrows & C G
Veljanovski The Economic Approach to Law (1981) 3; Posner Economic Analysis of Law
15-20; A Schwartz & D Markowits “The myth of efficient breach” 2010 Yale Law Faculty
Scholarship Series Paper 93.
206
See Farnsworth 1979 Am J Comp L 250-251; Posner Economic Analysis of Law 150 ff.
207
Chen-Wishart Contract Law 552; B H Bix Contract Law: Rules, Theory, and Context
(2012) 141 ff.
149
in many cases, because the rules regarding mitigation are not applicable. This would
result in the plaintiff receiving more than he would receive if damages (which include the
rules of mitigation) were awarded.208 Posner, who is a pioneer in law and economic
analysis,209 contends that it is uneconomical to enforce performance of a contract after it
has been breached, because it often results in a waste of resources.210 A breach is
therefore regarded as efficient in economic terms if it entails an advantage to the
breaching party that is greater than the monetary loss to the aggrieved party. In such a
208
See E A Farnsworth “Legal remedies for breach of contract” (1970) 70 Colum LR 1145
1158-1159; Sharpe “Specific relief for contract breach” in Reiter & Swan (eds) Studies in
Contract Law 123 139 ff; Smith “Understanding specific performance” in Cohen &
McKendrick (eds) Comparative Remedies for Breach of Contract 227; and see Domowicz
v Orsa Investments Ltd (1993) 15 O.R. (3d) 661 (paras 56-57 in particular) and the
authorities cited there.
209
According to Schwartz & Markowits “The myth of efficient breach” 2010 Yale Law Faculty
Scholarship Series paper 93, the general law and economics view is captured in the title
of Posner’s article “Let us never blame a contract breaker” (2008-2009) 107 Mich LR
1349. See also P Cserne Freedom of Contract and Paternalism: Prospects and Limits of
an Economic Approach (2012) 7.
210
See eg Patton v Mid-Continent Systems Inc 841 F.2d 742 (7th Cir.1988), in which Posner
CJ states: “Even if the breach is deliberate, it is not necessarily blameworthy. The
promisor may simply have discovered that his performance is worth more to someone
else. If so, efficiency is promoted by allowing him to break his promise, provided he makes
good the promisee’s actual losses. If he is forced to pay more than that, an efficient
breach may be deterred and the law doesn’t want to bring about such a result” (at 750).
The example often referred to in this regard is that of the supplier who contracts to provide
components to a manufacturer for use in the production of a product, but before delivery
the supplier is approached by another manufacturer, who explains that he urgently needs
the same component, and is prepared to pay more than the first manufacturer. Based on
the efficiency argument, the supplier is allowed or even encouraged to breach, because
he would benefit from it.
150
case, compensating the aggrieved party would still leave the breaching party in a better
position than if the contract were required to be performed in specie.211
However, some law and economics scholars argue that specific performance actually
protects the expectation interest and therefore avoids over-compensation and under-
compensation.212 They argue that specific performance should be made routinely
211
This is in line with the concept of Pareto efficiency, which is obtained when a distribution
strategy exists whereby one party’s situation cannot be improved without making another
party’s situation worse. A Pareto improvement occurs when it is possible to make at least
one person better off by moving resources from one allocation to another, without making
any other person worse off. Presently, economists often refer to the Kaldor-Hicks concept
of efficiency. Under this criterion the market outcome is efficient if the gains of those that
are made better off are higher than the losses of those that are made worse off by the re-
allocation of resources, so that the former group would be capable of compensating the
latter group (see Posner Economic Analysis of Law 15-20). See also Cserne Freedom of
Contract and Paternalism 6; Smits Efficient Breach and the Enforcement of Specific
Performance 8, 38, and M Bigoni et al “Unbundling efficient breach” University of Chicago
Coase-Sandor Institute for Law & Economics Research Paper No 695 (2014) 3.
212
The most well-known version of this claim (i.e. that specific performance is no less ex post
efficient than expectation damages) appears in A Schwartz “The case for specific
performance” (1979) 89 Yale LJ 271. See further P Linzer “On the amorality of contract
remedies” (1981) 81 Colum LR 111; T S Ulen “The efficiency of specific performance”
(1984) 83 Mich LR 341; A Sadanand “Lost profits, market damages, and specific
performance: an economic analysis of buyer’s breach” (1987) 20(4) The Canadian Journal
of Economics 750; D Friedmann “The efficient breach fallacy” (1989) 18 J Legal Stud 1; A
Schwartz “The myth that promises prefer supra compensatory remedies” (1990) 100 Yale
LJ 369. For more recent treatments of these claims, see R Brooks “The efficient
performance hypothesis” (2006) 116 Yale LJ 568, 591-592; J S Kraus “A critique of the
efficient performance hypothesis” (2007) 116 Yale LJ Pocket Part 424; G Klass “Efficient
breach is dead; long live efficient breach” Georgetown Public Law and Legal Theory
Research Paper No 13-018 (2013); T Eisenberg & G P Miller “Damages versus specific
performance: lessons from commercial contracts” NYU Law and Economics Research
151
available to aggrieved parties, as it provides the most effective method of achieving the
compensation goal of contract remedies, because it gives the creditor precisely what he
contracted for.213 Their dissatisfaction and opinions resemble those expressed by
civilian lawyers. Civil-law systems are inimical towards allowing the debtor to avoid
performing his obligations by merely paying damages. German law does not completely
preclude the idea of efficient breach,214 for example in relation to service contracts,215
but the predominant view is against allowing the debtor to breach where the breach
would provide a greater advantage to him.216 Demanding performance remains the
primary right of the creditor, and performing the contract the primary duty of the
debtor.217
It can be doubted, though, whether the efficient breach justification is tenable.218 It has
been contested in common law court decisions219 and scholarly literature alike.220 The
Paper No 13-09 (2013) (electronic copy available online at

<http://ssrn.com/abstract=2241654>).
213
Cf Schwartz & Markowits “The myth of efficient breach” 2010 Yale Law Faculty
Scholarship Series Paper 93, for a response to what the authors describe as “a growing
chorus of claims that the standard remedy for breach of contract – the expectation remedy
– is unjust”. The authors also provide a detailed analysis of the arguments that are
advanced to support this claim in part 4 of their contribution.
214
See in this regard, Smits Efficient Breach and the Enforcement of Specific Performance
30, for a European civil law perspective and, perhaps, a more impartial and reliable
portrayal of the efficiency justification for the restriction of specific performance in certain
instances. See also reference to Smits in n 81 para 2 3 1 1 above.
215
216
Compare also text to n 81 para 2 3 1 1 above.
217
Treatise 2 ed (2006) 399. Compare also text to n 81 para 2 3 1 1 above.
218
Whether economic efficiency really requires substitutional rather than specific relief goes
far beyond the scope of this chapter. This debate has been the subject of extensive
discussion in law and economics scholarship, which cannot be consolidated here. See
152
criticisms are that the efficient breach theory does not give adequate consideration to
the law’s role in preventing and resolving conflict, the purpose of creating a contract, the
intrinsic value of a promise, and the law’s concern to prevent people from profiting as a
consequence of their own wrongdoings.221 Furthermore, it is argued that the theory fails
to translate into practice, as it limits the ability of creditors to recover fully. This is
because determining the true extent of the loss suffered is difficult, and even if this
obstacle is overcome, the law of contract contains a number of doctrines which have the
effect of preventing creditors from recovering the full extent of their loss.222 The theory is
also regarded as in itself inefficient, because it generates more transactions, and
therefore related costs, than specific performance.223 Critics further contend that the
esp in this regard, Schwartz 1979 Yale LJ 271, and Van Heerden 1981 Responsa
Meridiana 147.
219
See eg Van Camp Chocolates Ltd v Aulsebrooks Ltd [1984] 1 NZLR 354 (CA); Day v
Mead [1987] 2 NZLR 443 (CA); Newmans Tours Ltd v Ranier Investments Ltd [1992] 2
NZLR 68 (HC); Butler v Countrywide Finance Ltd [1993] 3 NZLR 623 (HC).
220
See esp F Cuncannon “The case for the specific performance as the primary remedy for
breach of contract in New Zealand” (2004) 35 VUWLR 659. The author provides us with
an extremely one-sided argument in support of specific performance and fails to recognise
that the remedy also has some shortcomings, which substantiate the common law’s
preference for damages. See also N C Z Khouri “Efficient breach theory in the law of
contract: an analysis” (2002) 9 Auckland University Law Review 739.
221
Cuncannon 2004 VUWLR 662.
222
Friedmann 1989 J Legal Stud 13. See more recently, Bigoni et al “Unbundling efficient
breach” University of Chicago Coase-Sandor Institute for Law & Economics Research
Paper No 695 (2014) 11, 27-28.
223
Cuncannon submits that if the debtor chooses to breach the contract, there will be at a
minimum two additional transactions. First, there will be the transaction with the new
creditor. Secondly, there will be the transaction forced upon the original creditor as a result
of the breach. It is unrealistic to assume there will be no transaction costs in making the
compensation payment. It is likely only to be resolved after negotiation or litigation. It may
also lead to a third transaction, a delictual claim against the new creditor for interference
with a contractual relationship (2004 VUWLR 667). See further I R Macneil “Efficient
153
theory is based upon the assumption that, as rational economic actors, creditors will be
satisfied by an award of damages and will not be upset by the debtors being able to
unilaterally determine the best use of the creditor’s contractual rights. This would be
inconsistent with the parties’ motivations for entering into the contract and the principle
of freedom of contract.224 Critics insist that, as a result of these shortcomings, the theory
of efficient breach should be rejected as a justification for the supremacy of damages,
as expressed in the adequacy-of-damages doctrine.225
The international commercial environment similarly values the principles of freedom and
sanctity of contract. International instruments place considerable emphasis on keeping
promises in order to promote international business confidence and, as a consequence,
facilitate international contractual negotiations and relationships.226 The model
instruments under review also specifically incorporate a duty to observe good faith.227 A
major point of criticism against the common law position is that it encourages parties to
breach contracts, based on economic considerations of efficiency, i.e. provided that it
breach of contract: circles in the sky” (1982) 68 Virginia Law Review 947; E A Posner
“Economic analysis of contract law after three decades: success or failure?” (2003) 112
Yale LJ 829; Smith “Understanding specific performance” in Cohen & McKendrick (eds)
Comparative Remedies for Breach of Contract 225, and Smits Efficient Breach and the
Enforcement of Specific Performance 13-16.
224
Friedmann argues that “the essence of contract is performance. Contracts are made in
order to be performed” (“The performance interest in contract damages” (1995) 11 LQR
628 629). See also C S Warkol “Resolving the paradox between legal theory and legal
fact: the judicial rejection of the theory of efficient breach” (1998-1999) 20 Cardozo Law
Review 321 343-345.
225
Cuncannon 2004 VUWLR 666-667. See also Friedmann 1989 J Legal Stud 1; 1995 LQR
628; C Webb “Performance and compensation: an analysis of contract damages and
contractual obligation” (2006) 26 OJLS 41; and “counterpoint” discussion by Chen-Wishart
Contract Law 552.
226
227
See Articles 1.7 PICC; 1:201 PECL; III–1:103 DCFR; 2 CESL; 7 CISG (Addendum A).
See also paras 6 3 & 6 5 1 below.
154
results in a more efficient allocation of resources. Parties are encouraged to commit

breach of contract, which is in direct opposition to the principle of pacta sunt servanda
and the underlying ideology of the international instruments.228
3 4 3 The supplementary role of adequacy of damages in South African law
Although South African courts have rightly rejected the traditional English adequacy of
damages limitation, our law can gain from the experiences of modern English law. As
indicated above, English law has more recently increasingly appreciated that in deciding
which remedy to grant, courts engage in a context-specific evaluation of which remedy
would be the most appropriate in the circumstances. The Benson decision provides
insight and direction in this regard.
In this case, Hefer JA identified three general principles which guide the discretion to
refuse an order of specific performance. Firstly, the discretion “is aimed at preventing an
injustice – for cases do arise where justice demands that a plaintiff be denied his right to
performance – and the basic principle thus is that the order which the Court makes
should not produce an unjust result which will be the case, eg, if, in the particular
circumstances, the order will operate unduly harshly on the defendant”. Secondly “the
remedy of specific performance should always be granted or withheld in accordance
with legal and public policy”. Thirdly, Hefer JA says that “the Court will not decree
specific performance where performance has become impossible”.229
Hence, it is well settled that courts should always bear in mind that granting the remedy
should not produce injustice. According to Hutchison and Du Bois “[t]he basic principle
underlying the exercise of the discretion is that the order made by the court should not
228
See again para 2 4 above.
229
1986 (1) SA 776 (A) 783C-F. See also M A Lambiris Orders of Specific Performance and
Restitutio in Integrum in South African Law (1989) 132-134; A J Kerr The Principles of the
Law of Contract 6 ed (2002) 681, and para 7 2 1 below.
155
produce an unjust result”.230 It is then in this context that the issue of adequacy of
damages becomes relevant. The implication is that the debate regarding the adequacy
of damages rule in our law cannot be separated from the broader requirement
(reiterated in Benson) that granting specific performance should not produce an unjust
result.
Benson provides more recent and more authoritative support for the proposition that the
harsh operation of the remedy on the defaulting party or third parties should be a
concern to our courts especially if the loss can be prevented by granting damages.231
From Benson we can infer that although adequacy of damages is not, per se, a
sufficient basis for refusing specific performance; it is relevant to the courts’ decision
where there are other considerations, namely injustice and harshness, which militate
against the granting of specific performance.232 And the adequacy criterion may aid in
applying the general “Benson principles” which (currently) regulate the discretion to
refuse an order of specific performance.233 In this regard the reasoning of Hiemstra J in
Swartz & Son is instructive. Here the applicant agreed to erect a building for the
respondent municipality. Whilst engaged in such work, the applicant received a letter
from the respondent’s attorneys in which they notified him that they were terminating the
agreement (because he failed to furnish security and because the work was neglected,
i.e. because he violated the terms of their agreement) and that another building
contractor had been appointed to complete the work. Hiemstra J considered the
provision of security as vital to their agreement, and held that the applicant’s continued
failure to provide it whilst the contract required security “forthwith” amounted to a breach
which justified the respondent’s cancellation.234 He further refused to order specific
230
Du Bois (ed) Wille’s Principles of South African Law 873. See also Lambiris Orders of
Specific Performance and Restitutio in Integrum in South African Law 131.
231
See also text to n 245 below.
232
See Roberts Construction Co Ltd v Verhoef 1952 (2) SA 300 (W) esp 307 (discussed in
para 4 2 1 2 below). See also De Wet & Van Wyk Kontraktereg en Handelsreg 211.
233
See, however, para 7 2 2 below.
234
1960 (2) SA 1 (T) 4F-5A.
156
performance, because it would be unreasonable towards the respondent in the

circumstances,235 and because damages would in any event provide adequate
compensation to the applicant.236
The overlapping operation of the “adequacy” and “injustice”/“hardship” factors and the
supplementary role of adequacy of damages is also illustrated by Haynes v
Kingwilliamstown Municipality237 and the leading modern English case on specific
performance, Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd.238 The
facts of these cases and the reasons for the decisions have been dealt with
elsewhere.239 It is sufficient for present purposes to note that in both cases the
oppressiveness of requiring the defendant to perform his contractual obligations and the
fact that damages would adequately compensate the plaintiff, influenced the courts to
refuse the remedy. 240
Lubbe and Murray also offer valuable guidance in this regard. They contend that even
though case law suggests that South African law has been unnecessarily influenced by
English principles,241 it fails to explain why specific performance should be the preferred
remedy, even where damages is an adequate remedy.242 The authors also pose the
following insightful question/s:
235
4.
236
1960 (2) SA 1 (T) 3 (own emphasis). The judge rejected the applicant’s contention that
damages could not be accurately assessed because the loss of the contract may imperil
his chances of getting other contracts, describing this argument as “far-fetched” (at 5B).
237
1951 (2) SA 371 (A).
238
[1997] 2 WLR 898.
239
See paras 5 2 (Argyll) & 6 1 1 (Haynes) below.
240
On the relevance of undue hardship for the decision whether to specifically enforce a
contract, see ch 6 below.
241
Citing National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T)
and Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A).
242
Lubbe & Murray Contract 547-548.
157
“Is the financial loss that the guilty party might suffer a factor that the court should consider in
choosing to exercise its discretion not to order specific performance? Might this be one of the
circumstances in which, in the words of Hefer JA in the Benson case, ‘the order will operate
unduly harshly on the defendant’?”
McLennan has also suggested that in spite of there being no rule that a court will refuse
to order specific performance where a contract involves goods that are readily available
on the market, our courts should be wary when exercising their discretion in favour of
specific performance in these cases.243 The main reason advanced is that damages
could be the more appropriate remedy in some of these cases, as it provides a more
convenient and less time-consuming and therefore less expensive solution.244 Phrased
in economic analysis of law terminology, he thus argues that courts should be mindful of
exercising their discretion in favour of specific performance if the result would be an
inefficient use of resources.245
It is submitted that these are valid arguments which cannot be ignored when courts
determine what form of redress to afford the plaintiff. We can also take instruction from
other jurisdictions, which support greater use of specific performance as a remedy for
breach of contract, such as Germany and the Netherlands. While they accept the right
243
See case comment on Benson by J S McLennan “Specific performance and the court’s
discretion” 1986 SALJ 522. See also Lubbe & Murray Contract 548.
244
See 1986 SALJ 524: “We are not told why the appellant failed to deliver the shares nor
why the respondent did not purchase them on the stock market. If it had done so, and if it
could, in fact, have acquired the shares for 210 cents or less, it might have saved itself an
enormous amount of trouble, time and expense.” See also Lubbe & Murray Contract 549.
245
In his words (524): “the English rule, despite its drawbacks, does at least have an appeal
to good commercial sense, and it probably operates to discourage (a) plaintiffs from acting
unreasonably and thereby (b) unnecessary litigation”. According to Lubbe & Murray
(Contract 549), McLennan thereby “suggests that the very failure to deliver goods that are
freely available may reflect a background that makes a plaintiff’s insistence on specific
performance unreasonable, and thus that courts should be disinclined to order specific
performance”. Compare also Van Heerden 1981 Responsa Meridiana 155.
158
of every contractual party to specific performance of the contract, these systems also
accept that there are certain limitations to this general entitlement to specific
performance. It follows that the right will only be enforced in situations where one of the
defined exceptions does not apply.246 For example, in German law, § 275(2) of the BGB
excludes the duty of performance “to the extent that performance requires expense and
effort which, taking into account the subject matter of the obligation and the
requirements of good faith, is grossly disproportionate to the interest in performance of
the obligee”. In Dutch law, the courts will similarly refuse to enforce a contract where the
contract will be extremely disadvantageous and unreasonable to the debtor.247 Thus,
the enforceability of the right to performance is determined by the facts of the case and
courts are able to refuse to enforce an obligation where it would have harsh and
unreasonable effects on the debtor.
Moreover, the international instruments, which accommodate both common-law and

civil-law systems, and demonstrate how a synthesis of diverging principles could be
achieved in a more successful manner, recognise exceptions in terms of which the
remedy can be refused if the facts of the case demand it. The PECL, for example,
provides in Article 9:102(2)(b) that specific performance will not be granted where
performance would cause the debtor unreasonable effort or expense. Subsection (2)(d)
also restricts the aggrieved party’s entitlement to specific performance if he may
reasonably obtain performance from another source. The PICC, the DCFR, and the
CESL contain similar provisions.248 In an insightful manner, Chen-Wishart, in concluding
her comparative discussion of the considerations that weigh against the remedy,
observes that
246
See generally para 2 3 1 above. See esp Smits Efficient Breach and the Enforcement of
Specific Performance (n 214 above).
247
See eg, HR 16 January 1981, NJ 1981, 312 (X/Y) (cf text to n 138 para 6 3 below).
248
See Articles 7.2.2 PICC, III–3:302 DCFR, 110-111, 132 CESL and paras 2 3 3 2 (esp n
244) above & 6 4 below.
159
“[t]he open-textured nature of these considerations means that, no matter how the discretion
is structured (whether as the primary or supplementary remedy), courts of all systems must
engage in the same delicate balancing of competing policies on the facts of particular
cases”.249
Finally, the following meaningful passage by Beck250 also merits attention, because it
drives the point home in the South African context:
“In theory there is certainly an important difference between Roman-Dutch law and common
law; in practice, however, it is of considerable less moment. As shown above, the tendency in
England has been to move away from the rigid categories of the past and to grant specific
performance when it is the most appropriate remedy; a similar development has been seen
in the South African cases considered above. While there can be no doubt, therefore, that
logically speaking the approach of Hefer JA is sound, some of his reasoning seems to smack
of the purist movement illustrated by Forsyth in his study of the Appellate Division. It is
submitted that the court would have done better to stick to a more systematic exposition of
the best solution.”251
This means that our courts must carefully consider and balance the circumstances of
each case in deciding between awarding specific performance and damages. Our
courts should focus on finding the appropriate remedy for the specific case and must be
mindful not to proceed too dogmatically in order to preserve Roman-Dutch principles.252
249
Contract Law 553.
250
1987 CILSA 190 205.
251
Citing C F Forsyth In Danger for their Talents: A Study of the Appellate Division of the
Supreme Court of South Africa from 1950-80 (1985).
252
The following statement by Hefer JA certainly “smacks” of the “purist movement” Beck
alludes to above: “This right is the cornerstone of our law relating to specific performance.
Once that is realised, it seems clear, both logically and as a matter of principle, that any
curtailment of the Court’s discretion inevitably entails an erosion of the plaintiff’s right to
performance and that there can be no rule, whether it be flexible or inflexible, as to the
way in which the discretion is to be exercised, which does not affect the plaintiff's right in
some way or another” (1986 (1) SA 776 (A) 782I-783A).
160
It is suggested that Hefer JA’s argument in favour of specific performance253 may not be
strong enough where the party in breach is likely to suffer considerably from having to
comply with the agreement and the aggrieved party can equally well be compensated
by an award of damages. Insistence on specific performance may be unreasonable in
these circumstances.254
3 4 4 Conclusion
While reasserting the “unfettered” discretion of the courts to refuse specific

performance, the court in Benson also made it clear that this discretion is not an
arbitrary capricious discretion;255 and therefore it must be regulated by principles that
will make it equitable256 and judicial.257 Benson’s case thus provides certain parameters
within which courts can exercise their discretion.258 For example, if the granting of the
order will cause undue hardship to the defendant, courts should refuse to grant it. This
is an aspect of the equitable nature of the discretion, which requires the court always to
have in mind the need to avoid injustice. As was mentioned earlier, Benson’s case did
not render the English or “Haynes” factors irrelevant.259 These can be applied, in order
253
254
See reference to Lubbe & Murray in n 245 above.
255
See Hutchison & Pretorius (eds) The Law of Contract in South Africa 321, 323.
256
323. See also Beck 1987 CILSA 200.
257
1986 (1) SA 776 (A) 783B-C. See also F du Bois (ed) Wille’s Principles of South African
Law 873; R H Christie & G B Bradfield Christie’s The Law of Contract in South Africa 6 ed
(2011) 547.
258
1986 (1) SA 776 (A) 783C per Hefer JA: “This does not mean that the discretion is in all
respects completely unfettered. It remains, after all, a judicial discretion and from its very
nature arises the requirement that it is not to be exercised capriciously, nor upon a wrong
principle…” It follows that, although the discretion is not circumscribed by any other rules,
there are factors that may play a role in the exercise of the discretion due to this inherent
requirement (cf text to n 229 above).
259
See esp text to nn 196-197 above. See also Lubbe “Contractual derogation and the
discretion to refuse an order for specific performance in South African Law” in Smits et al
161
to decide whether specific performance would cause injustice.260 Accordingly, it is

suggested that, subject to the overriding need to avoid injustice or oppression, courts
should take into account the possibility that the plaintiff would be adequately
compensated by damages. However, it is suggested that the relevance of damages as
remedy is limited. The purpose of this chapter was to indicate that if the adequacy of
damages is to influence the decision whether to refuse specific performance, it can only
be of secondary or “parasitic” significance inasmuch as it supports other considerations
for refusing the remedy, such as preventing injustice or harshness, rather than acting as
a main or primary reason for doing so. These other considerations are dealt with in
detail in the following chapters.
(eds) Specific Performance in Contract Law: National and Other Perspectives 100, and
paras 4 8 2, 6 1 1 & 6 1 2 below.
260
See also Joubert General Principles of the Law of Contract 226: “[i]n our law the creditor
has a right to specific performance which should only be refused when factors appear that
make the decree inequitable to the defendant”, and Lambiris Orders of Specific
Performance and Restitutio in Integrum in South African Law 134: “courts will do
everything in their power to preserve the plaintiff’s right to choose an order of specific
performance as his remedy except issue an order that is unjust, inequitable or impossible
for the debtor to comply with. This guiding light has been kept under a bushel at times but
its glimmer is often discernable in the cases if one is looking out for it”.
162
CHAPTER 4: PERSONAL SERVICE CONTRACTS
4 1 Introduction
This chapter is primarily concerned with the enforcement of agreements for personal
services, and especially with how the courts from various jurisdictions have balanced
competing factors in awarding this remedy. The chapter first discusses and analyses
how South African courts currently treat the enforcement of personal service contracts.
Thereafter, it deals with the treatment of this problem by different legal systems and
international instruments, with the aim of determining what principles they adopted to
the enforcement of these contracts and what considerations underlie these principles.
The chapter concludes with an evaluative discussion, which takes into account the
different approaches revealed by the comparative analysis. Finally, some suggestions
will be made for the future development of our law.
Whereas chapter 3 aimed to indicate that the adequacy of damages should not
constitute a decisive factor in refusing specific performance, this chapter intends to
explore to what extent the fact that a contract involves highly personal obligations
should generally be an impediment to an order for specific performance.
When examining orders of specific performance of personal service contracts, it is

important to appreciate that they could assume various forms or types, or could be
divided into specific sub-categories.1 In the following section a distinction will be drawn
between two main categories of personal service contracts, namely employment
contracts and other service contracts. The latter category includes agreements to
perform a specific service that do not entail a continuous personal relationship.2
The phenomenon that a personal service contract can assume various forms has
ancient origins. Roman law, for example, distinguished between locatio conductio
1
See eg A J Kerr The Principles of the Law of Contract 6 ed (2002) 681.
2
See Pougnet v Ramlakan 1961 (2) SA 163 (N) 166, referring to Schierhout v Minister of
Justice 1926 AD 99 107.
163
operarum and locatio conductio operis.3 Locatio conductio operarum relates to the
letting and hiring of someone’s personal services in exchange for remuneration;4 it
typically is a contract of employment. In South African law, locatio conductio operarum5
is sometimes translated as “contract of employment” or (rather confusingly and vaguely)
as “contract of service”.6 Locatio conductio operis in turn relates to the letting and hiring
of a specific piece of work,7 such as the repair or construction of a building. It is
sometimes (again rather confusingly) translated as “contract of work”.8 For purposes of
this discussion and to avoid any unnecessary confusion, the general category “personal
service contracts” is used. This is divided into two branches referred to above, namely
locatio conductio operarum (contract of employment) and locatio conductio operis
(contract of work). Thus, the category includes general services (operarum) and specific
work assignments (operis).
3
See D J Joubert “Die kontraktuele verhouding tussen professionele man en kliënt” 1970
Acta Juridica 9; J A C Thomas Textbook of Roman Law (1976) 296-298; M Kaser Roman
Private Law 3 ed trans R Dannenbring (1980) 219-224; P du Plessis Borkowski’s
Textbook on Roman Law 4 ed (2010) 277-279; R Zimmermann The Law of Obligations:
Roman Foundations of the Civilian Tradition (1990) 394-395, Smit v Workmen’s
Compensation Commissioner 1979 (1) SA 51 (A) 56-58; B Jordaan “Employment
relations” in R Zimmermann & D Visser Southern Cross: Civil Law and Common Law in
South Africa (1996) 389 390; M Freedland & N Kountouris The Legal Construction of
Personal Work Relations (2011) 116 ff.
4
See D 16 3 1 9; 19 2 19 9; 19 2 38; Thomas Textbook of Roman Law 297.
5
See generally on locatio conductio operarum in South African law, J S A Fourie Die
Dienskontrak in die Suid-Afrikaanse Arbeidsreg LLD thesis UNISA Pretoria (1977).
6
Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A); Minister van Polisie
v Gamble 1979 (4) SA 759 (A); Mtetwa v Minister of Health 1989 (3) SA 600 (D); Toerien
v Stellenbosch University 1996 (1) SA 197 (C); Marais v Bezuidenhout 1999 (3) SA 988
(W); Motor Industry Bargaining Council v Mac-Rites Panel Beaters & Spray Painters (Pty)
Ltd 2001 (2) SA 1161 (N); Stein v Rising Tide Productions CC 2002 (5) SA 199 (C).
7
See D 19 2 22 2; 19 2 30 3; 19 2 36; 50 16 5 1; Thomas Textbook of Roman Law 296.
8
See cases cited in n 6 above.
164
Quite often, locatio conductio operarum has been regarded as distinguishable from
locatio conductio operis in the civilian tradition on the basis that the provider of the
service does not promise that he will ensure that a certain result comes about but
merely that he will perform the service as promised.9 In South African law, the
distinction was further explained as follows by the court in Colonial Mutual Life
Assurance Society Ltd v Macdonald:10
“In the former case (locatio conductio operarum) the relation between the two contracting
parties is much more intimate than in the latter (locatio conductio operis), the servant
becoming subordinate to the master, whereas in the latter case the contractor remains on a
footing of equality with the employer. Where a master engages a servant to work for him the
master is entitled under the contract to supervise and control the work of the servant.”
Hence “[t]he more independent, generally speaking, the position of the person rendering
the services, the stronger the probability that we are dealing with locatio conductio
operis”.11 However, in Smit v Workmen’s Compensation Commissioner12 Jansen JA
held that the element of supervision and control is not the sole determinative factor but
9
See P van Warmelo An Introduction to the Principles of Roman Civil Law (1976) 181-187;
Zimmermann The Law of Obligations 393-394; B Markesinis, H Unberath & A Johnston
The German Law of Contract: A Comparative Treatise 2 ed (2006) 153 528.
10
1931 AD 412. Here the respondent, an insurance agent, was classified as an independent
contractor under the locatio conductio operis and not an employee or “servant” of the
insurance society, for whose negligent acts the society (principal) would have been liable.
11
Zimmermann The Law of Obligations 397.
12
1979 (1) SA 51 (A). In this case the appellant, an agent of an insurance company,
suffered severe bodily injuries in a motor car accident arising out of and in the course of
performance of his duties. He was classified as an independent contractor in accordance
with an agreement of locatio conductio operaris, because there was no right of supervision
and control of an agent by the insurance company; he was not a “workman” as
contemplated by the Workmen’s Compensation Act 30 of 1941, and he was therefore not
entitled to compensation and payment of medical aid expenses under the provisions of
the Act.
165
merely one of the indicia, and that there may also be other important criteria to be
considered to distinguish between a contract of service (locatio operarum) and a
contract for work (locatio operis) or, to use the terminology of English law, an employee
and independent contractor.13
Apart from the existence of a relationship of authority, a number of other criteria have
been applied in South African law in drawing the distinction. The employer generally
provides tools and equipment to the employee, whereas an independent contractor
uses his own tools and equipment. An employee must perform the services personally;
a contractor may perform through others. An employee is paid periodically, for instance
daily, weekly or monthly; an independent contractor is usually paid at the end of the
contract or project. A contract of service terminates on expiry of the period of service
stipulated in the contract, whereas a contract for work terminates on completion of the
work or production of the specified result.14
Based on these indicators of independence, performers such as musicians, singers,

comedians, disc jockeys and magicians can be categorised as independent contractors:
they provide their own equipment, they retain the right to exercise artistic control over
the elements of their performance, they set or negotiate the rate of pay received from
the establishment where they perform, and they normally provide their services under a
single engagement arrangement.
13
1979 (1) SA 51 (A) 62-63.
14
For further distinguishing factors, see Smit v Workmen’s Compensation Commissioner
1979 (1) SA 51 (A) 64-68; SA Broadcasting Corporation v McKenzie (1999) 20 ILJ 585
(LAC) 590F-591D; F van Jaarsveld & S van Eck Principles of Labour Law 2 ed (2002) 58-
63; F du Bois (ed) Wille’s Principles of South African Law 9 ed (2007) 928-929; R le Roux
“The evolution of the contract of employment in South Africa” 2010 Ind LJ 139 157. For
the importance of this distinction, see B Jordaan & R G L Stelzner “Sport and the Law of
Employment” in J A A Basson & M M Loubser (eds) Sport and the Law in South Africa
(2000) 13-14.
166
The preceding overview reflects that there is no single satisfactory test governing the
question whether a person is an employee or an independent contractor. In determining
whether or not a person is an employee, the courts attempt to discover the true
relationship between the parties. They consider all the factors that are present in, or
absent from, the contract and the relationship15 and then stand back and consider the
picture or dominant impression that emerges. It should also be noted that the fact that
the provisions of a contract categorises a party as an independent contractor or
employee is not conclusive of the true relationship between the parties.16
Against the background of this conceptual overview of the meaning of the concept of a
personal service contract, and its sub-division into employment contracts and other
service contracts, we can now turn to the way in which the specific enforcement of
these contracts is dealt with in specific jurisdictions. Where appropriate, some further
conceptual clarification may be called for in the context of specific legal systems or
model instruments.
4 2 South African law
4 2 1 Contract of employment (locatio conductio operarum)
Although the contemporary version of the employment contract is Roman-Dutch in

origin, it is generally accepted that much of the modern South African common law
15
See further on the theory of characterisation or Typenlehre, sources cited in n 358 para 4
8 3 below.
16
In Linda Erasmus Properties Enterprise (Pty) Ltd v Mhlongo (2007) 28 ILJ 1100 (LC) the
court applied the “dominant impression” test and decided that the respondent, an estate
agent, was an employee, even though the contract stated that the agent was an
independent contractor and not an employee of the company. The degree of control that
the company had over the agent was a significant factor in deciding that there was an
employment relationship. See also Pam Goldings Properties (Pty) Ltd v Erasmus (2010)
31 ILJ 1460 (LC).
167
relating to it developed in accordance with English law.17 In accordance with the latter
system, it was often held in our law that courts will not enforce a contract of
employment, whether against the employer or employee.18 For example, in Pougnet v
Ramlakan,19 the court refused to order the owner of a farm to continue to employ a
manager in whom he had lost confidence and decided that an award of damages would
be more appropriate.20 It is a well-established rule of English law that the only remedy
17
See generally Jordaan “Employment relations” in Southern Cross 400-414; A C Basson et
al Essential Labour Law 5 ed (2009) 22; K Mould “The suitability of the remedy of specific
performance to breach of a ‘player’s contract’ with specific reference to the Mapoe and
Santos cases” 2011 PELJ 189 193. According to Le Roux 2010 Ind LJ 142, no culture of
employment had developed by the time of the British occupation, although free artisans
had worked at the Cape by that time.
18
See Ingle Colonial Broom Co Ltd v Hocking 1914 CPD 495; Schierhout v Minister of
Justice 1926 AD 99 107; Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)
785; G F Lubbe & C M Murray Farlam & Hathaway Contract: Cases, Materials and
Commentary 3 ed (1988) 544-545; J C de Wet & A H van Wyk Die Suid-Afrikaanse
Kontraktereg en Handelsreg I 5 ed (1992) 210 n 69; S van der Merwe et al Contract:
General Principles 4 ed (2012) 331 n 31.
19
1961 (2) SA 163 (D).
20
See further Gracie v Hull Blythe and Co (SA) Ltd 1931 CPD 539; Beeton v Peninsula
Transport Co (Pty) Ltd 1934 CPD 53; Rogers v Durban Corporation 1950 (1) SA 65 (D);
Ngwenya v Natalspruit Bantu School Board 1965 (1) SA 692 (W) (where it was held that in
the absence of legislation to the contrary, an employee’s only remedy for an employer’s
breach of contract/wrongful dismissal is damages). These decisions appear to establish
that such a contract can be terminated unilaterally and that thereafter no contract exists
which can be specifically enforced. Cf Myers v Abramson 1952 (3) SA 121 (C) 123-124
where Van Winsen J doubted whether the practice of the court in allowing only the
particular remedy of damages to the wrongfully-dismissed employee can rightly be
elevated to a rule of law to the effect that such contracts can be terminated unilaterally so
that they cannot be specifically enforced under any circumstances. Thus the general rule
prevails: if one party to the contract had unjustifiably repudiated it, the injured party has
the right to elect to accept the repudiation, and consensually to put an end to the contract
168
available to an employee who has been wrongfully dismissed is damages. English

courts will not grant specific performance against the employee, nor will they order an
employer to reinstate or pay an employee for the remainder of his service contract.21
This means that an employer or employee is restricted to a claim for damages in the
event of a breach by the other.22
It has already been pointed out that our modern labour law traditionally has a strong
Roman-Dutch and English law foundation.23 However, this branch of our law has been
developed extensively by case law and legislation. The following section provides a
general overview of the current legal position. It commences with a more in-depth
analysis of the specific characteristics and nature of the modern employment contract.
This analysis builds on the more general distinction between employment contracts and
other service contracts set out in the previous section.
According to Grogan, a contract of employment can be defined as “an agreement

between two parties in terms of which one of the parties (the employee) undertakes to
place his or her personal services at the disposal of the other party (the employer) for
an indefinite or determined period in return for a fixed or ascertainable remuneration,
and which entitles the employer to define the employee’s duties and to control the
manner in which the employee discharges them”.24 The parallels with the locatio
and sue for damages, or to ignore the repudiation, and hold the other party to the contract
and claim specific performance. See in this regard Van Wyk v Albany Bakeries Ltd [2003]
12 BLLR 1274 (LC) para [13] quoted with approval by the CCMA in Bonthuys v Central
District Municipality [2007] 5 BALR 446 (CCMA) 455.
21
Sir John Macdonell The Law of Master and Servant 2 ed (1908) 162; Viscount Hailsham
(ed) Halsbury’s Laws of England 1 ed vol 31 (1917) para 366, as referred to by Milne J in
Pougnet v Ramlakan 1961 (2) SA 163 (N) 166. See more recently H Collins et al Labour
Law (2012) 843.
22
See para 4 3 below.
23
See text to n 17 above and Van Jaarsveld & Van Eck Principles of Labour Law 7-8.
24
J Grogan Employment Rights (2010) 43.
169
conductio operarum of the earlier civil law are clear. A similar definition is provided by
Basson et al: “the contract of employment as we know it today can be defined as an
agreement between two parties in terms of which one party (the employee) works for
another (the employer) in exchange for remuneration”.25
Furthermore, the Labour Relations Act,26 the Basic Conditions of Employment Act27 and
the Employment Equity Act28 all define an employee in similar terms:
“(a) any person, excluding an independent contractor, who works for another person or for
the State and who receives, or is entitled to receive, any remuneration; and
(b) any other person who in any other manner assists in carrying on or conducting the
business of an employer.”29
The identification of the essentials of a contract of employment is a controversial matter

because there is no unanimity regarding the basic features of the contract.30 However,
from the above it can be inferred that the basic elements of a contract of employment
are:31
(i) a mutual agreement;

(ii) in terms of which services are rendered;
25
Basson et al Essential Labour Law 22.
26
66 of 1995.
27
75 of 1997.
28
55 of 1998.
29
Section 213 of the Labour Relations Act, s 1 of the Basic Conditions of Employment Act
and s 1 of the Employment Equity Act.
30
According to Le Roux 2010 Ind LJ 139-140, the South African concept of the contract of
employment, “as it is currently understood, is a relatively new concept and is in a state of
relative unity”. She cautions that this reality must be comprehended when engaging with
the future of the contract of employment.
31
See also Van Jaarsveld & Van Eck Principles of Labour Law 48; M W Prinsloo “Enkele
opmerkinge oor spelerskontrakte in professionele spansport” 2000 TSAR 229 230; J
Grogan Workplace Law 10 ed (2009) 29.
170
(iii) under the authority (or “control”, to use Grogan’s words) of the employer;
(iv) for an indefinite or determined period;32
(v) in return for remuneration.
In line with the English approach referred to earlier, it has repeatedly been held by
South African commentators33 and courts34 that specific performance of employment
contracts will not ordinarily be granted whether against the employer or employee.35
Kerr emphasises that even though there are no specific rules governing the exercise of
our courts’ discretion, certain categories when specific performance will not be granted
have received the courts’ attention.36 One of these categories is contracts for personal
32
Under South African law employees are normally appointed on a permanent basis and the
contract continues until the employee reaches a predetermined age, or until the contract is
terminated by one of the parties in accordance with the contract. See Van Jaarsveld &
Van Eck Principles of Labour Law 56; Jordaan & Stelzner “Sport and the Law of
Employment” in Sport and the Law in South Africa 15.
33
See eg R H Christie & G B Bradfield Christie’s The Law of Contract in South Africa 6 ed
(2011) 550.
34
See nn 18-20 above.
35
See further De Wet & Van Wyk Kontraktereg 210; Van der Merwe et al Contract: General
Principles 331-332; Jordaan “Employment relations” in Southern Cross 407; J V du
Plessis & M A Fouché A Practical Guide to Labour Law 7 ed (2012) 19; Van Jaarsveld &
Van Eck Principles of Labour Law 98; Basson et al Essential Labour Law 54-55. See also
more recently Nationwide Airlines (Pty) Ltd v Roediger 2008 (1) SA 293 (W) para [17];
Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC) para [88] and
Abdullah v Kouga Municipality [2012] 5 BLLR 425 (LC).
36
Kerr Principles of the Law of Contract 680-681. See also Christie & Bradfield Christie’s
The Law of Contract in South Africa 546-553.
171
services.37 A number of reasons have been advanced for this approach. The majority
relates to social policy.38
It has been suggested that it is inadvisable to force parties to resume a close, perhaps
confidential relationship while the trust between them has been compromised.39 On this
basis, it was held in Pougnet v Ramlakan40 that specific performance will not be granted
even in situations where the employer and the employee are unlikely to come into
frequent contact with each other. Furthermore, the order would not ensure that the
employee would fulfil his duties diligently and adequately.41 And pertinent to this point,
the fact that it would be difficult for the courts to ensure compliance with an order of
37
See Christie & Bradfield Christie’s The Law of Contract in South Africa 550; D Hutchison &
C Pretorius (eds) The Law of Contract in South Africa 323; Van der Merwe et al Contract:
General Principles 331.
38
See Hutchison & Pretorius (eds) The Law of Contract in South Africa 323; Van der Merwe
et al Contract: General Principles 331; M S M Brassey “Specific performance – a new
stage for labour’s lost love” (1981) 2 ILJ 57 58; Lubbe & Murray Contract 543; N Smit
Labour Law Implications of the Transfer of an Undertaking LLD thesis Rand Afrikaans
University (2001) 208-209.
39
As emphasised in Schierhout v Minister of Justice 1929 AD 99; Pougnet v Ramlakan 1961
(2) SA 163 (D) and more recently, Masetlha v President of the Republic of South Africa
2008 (1) SA 566 (CC) para [88] where Moseneke DCJ, for the majority of the court said:
“Although it is clear that there has been a breakdown in trust that alone is not a sufficient
ground to justify a unilateral termination of a contract of employment. It must however be
said that the irretrievable breach of trust will be relevant for purposes of remedy. The
ordinary remedies for breach of contract are either reinstatement or full payment of
benefits for the remaining period of the contract. In my view, even if the contract of
employment were terminated unlawfully, Mr Masetlha would not be entitled to
reinstatement as a matter of contract.” Quoted with approval by Lagrange J in Abdullah v
Kouga Municipality [2012] 5 BLLR 425 (LC) para [11]. See also Lubbe & Murray Contract
543; Van der Merwe et al Contract: General Principles 331.
40
1961 (2) SA 163 (D) 166.
41
As emphasised by Trollip J in Gründling v Beyers 1967 (2) SA 131 (W) 146.
172
specific performance is also one of the reasons adduced in support of the refusal to
grant specific performance.42 The rationale essentially is that because of the personal
relationship involved and its continuing nature, there would be a constant threat of
disputes arising over whether the contract was being performed properly. The court is
not regarded as sufficiently equipped to provide the constant supervision which would
be necessary to prevent such disputes arising or to adjudicate them as they arose.43
The latter reason and the merits thereof will be dealt with in depth in the following
chapter.44
According to Jordaan, the reasons set out above clearly correspond with those set forth
by the English courts for their refusal to grant claims for specific performance of
employment contracts.45 However, it can be questioned whether these reasons actually
justify our courts’ refusal to grant specific performance with regard to contracts of
employment. Our courts appear to have accepted them blindly, without recognising the
exceptional nature of the remedy in English law. It is well-established that specific
performance is an equitable remedy in English law, granted as an exception to the
principal remedy of damages.46 However, as we have seen, the general point of
departure in South African law is that specific performance is available “as of right”.47 It
42
See Ingle Colonial Broom Co Ltd v Hocking 1914 CPD 495; Gründling v Beyers 1967 (2)
SA 131 (W) 146; S Eiselen “Specific performance and special damages” in H L
MacQueen & R Zimmermann (eds) European Contract Law: Scots and South African
Perspectives (2006) 249 258.
43
See De Wet & Van Wyk Kontraktereg en Handelsreg 210; Christie & Bradfield Christie’s
The Law of Contract in South Africa 550.
44
For a concise explanation of this argument as well as convincing counter-arguments, see
the English case of CH Giles & Co Ltd v Morris [1972] 1 WLR 307 318, and the
comparative study by S Rowan Remedies for Breach of Contract: A Comparative Analysis
of the Protection of Performance (2012) 56-58.
45
See Jordaan “Employment relations” in Southern Cross 408.
46
See paras 2 3 2 1 & 3 2 above and 4 3 below.
47
173
is therefore problematical for our courts to refuse to order specific performance of

contracts of employment based on policy reasons uncritically received from English
law.48 In the light of the emphasis that is placed on a party’s right to specific
performance in modern South African law,49 it therefore appears that the applicability of
these reasons in our law and the correct justification for this rule need to be re-
examined to determine whether there is merit in recognising a restriction to specific
performance based on the personal nature of the obligation. Especially where
employment contracts assume a more hybrid nature, and reflect characteristics of
contracts to provide a specific service (locatio conductio operis or contract of work) or
cases where the one party’s liberty is less constrained by enforcement, for example the
employer, rather than the employee.50
In relation to employment contracts, a distinction may be drawn between ordering

payment or reinstatement by the employer, and compelling the employee to perform.51
The focus will first be on the employee’s claim against his employer.52
48
See eg Schierhout v Minister of Justice 1926 AD 99 107-108; Roberts Construction Co Ltd
v Verhoef 1952 (2) SA 300 (W) 305-306; Myers v Abramson 1952 (3) SA 121 (C) 125-
126; Pougnet v Ramlakan 1961 (2) SA 163 (D) 166 ff; Gründling v Beyers 1967 (2) SA
131 (W) 146, and Mabaso v Nel’s Melkery (Pty) Ltd 1979 (4) SA 358 (W) 359.
49
Farmers’ Co-operative Society (Reg) v Berry 1912 AD 343 350; Benson v SA Mutual Life
Assurance Society 1986 (1) SA 776 (A) 781-782; A Beck “The coming of age of specific
performance” 1987 CILSA 190 195; G Lubbe “Contractual derogation and the discretion to
refuse an order for specific performance” in G Glover (ed) Essays in Honour of AJ Kerr
(2006) 77 84-87 (reproduced with minor changes in J Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives (2008) 95).
50
See para 7 2 below.
51
Kerr Principles of the Law of Contract 681.
52
In this context, it is worth remembering that before Stewart Wrightson (Pty) Ltd v Thorpe
1977 (2) SA 943 (A), most courts assumed that the repudiation of an employment
contract, albeit wrongful, automatically terminated it. However, in this case the Appellate
Division held that a fundamental breach of an employment contract does not per se end
174
4 2 1 1 The employee’s claim against the employer
In National Union of Textile Workers v Stag Packings (Pty) Ltd,53 it was held that, in
principle, an employee is entitled to specific performance, although there may be factors
which could influence a court to refuse such an order.54 The court reaffirmed that it has
a discretion whether or not to order specific performance and that there was no rule
prohibiting such an order.55 It follows that the reasons traditionally advanced in arguing
against specific performance as a remedy in the context of the employment contract are
only to be regarded as factors that have to be taken into consideration in the exercise of
its discretion.56
Thus, the court in Stag Packings rejected the traditional (English common law) rule
against an employee’s claim for specific performance of an employment contract, and
held that there was no reason why there should be a departure in such cases from the
general principle that a plaintiff is entitled to specific performance of his contract, subject
to the court’s discretion to refuse it. It follows that ordering specific performance of the
employer’s obligations is more generally accepted.57 However, Christie makes an
important observation in this regard, namely that the reasons why the courts have not
granted such orders in the past remain valid and applicable, and it should not be
forgotten that in every case the court has a discretion to refuse the remedy depending
the contract, but serves only to give the innocent party the choice either to enforce the
contract or to terminate it (confirmed recently by the SCA in NUMSA v Abancedisi Labour
Services (857/12) [2013] ZASCA 143 (30 Sep 2013)). See also Jordaan “Employment
relations” in Southern Cross 408.
53
1982 (4) SA 151 (T).
54
158. See also Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A) 952.
55
1982 (4) SA 151 (T) 156H.
56
Basson et al Essential Labour Law 55; Nationwide Airlines (Pty) Ltd v Roediger 2008 (1)
SA 293 (W) paras [19]-[21].
57
175
on the circumstances.58 He supports and illustrates this by saying that the court was
justified in exercising its discretion in Seloadi v Sun International (Bophuthatswana)
Ltd,59 where the court refused to grant an order that a hotel should reinstate employees
whom it had summarily dismissed, because there was hostility towards the hotel.
Furthermore, in the more recent case Masetlha v President of the Republic of South
Africa60 the head of the National Intelligence Agency had been dismissed by the
President and the Constitutional Court refused to order reinstatement. The reason, per
Moseneke DCJ, was that the special relationship of trust between the head of the
Intelligence Agency and the President was “irretrievably breached” and therefore
specific performance was considered inappropriate in the circumstances.61 This
decision was applied and followed in Abdullah v Kouga Municipality62 where the court
similarly declined to order reinstatement of the chief financial officer of Kouga
Municipality, who had been suspended by the municipality due to a breakdown of trust,
and instead awarded contractual damages (consisting of remuneration for the remaining
period of his contract).63
The current position regarding enforcement against employers has been summarised
as follows by Kerr:
“It used to be said that a court would not normally grant an order of specific performance of
contracts of service. Now it is clear that no general rule can be made for all contracts of
58
Christie & Bradfield Christie’s The Law of Contract in South Africa 551.
59
1993 (2) SA 174 (BG) 186I-190E.
60
2008 (1) SA 566 (CC).
61
Paras [88]-[91].
62
[2012] 5 BLLR 425 (LC).
63
Para [18] per Lagrange J: “the summary termination of the applicant’s services was an
unlawful, but given the breakdown of trust an order of reinstatement would not be
appropriate and his remedy should be confined to his contractual damages”.
176
service. Contracts of employment in industry and in similar spheres of work are governed by
a number of statutes and specific precedents.”64
As far as labour legislation is concerned, section 193 of the Labour Relations Act65 and
section 77A(e) of the Basic Conditions of Employment Act,66 provide the Labour Court
with the power to make an order of specific performance in relation to employment
contracts. As such, these provisions are also indicative of the movement away from the
traditional reluctance of our courts, which was first introduced by Stag Packings.
Instead, our law is moving towards recognition of the employee’s right to remain
employed once he has entered into the employment contract. Labour courts are using
their powers to make status quo orders instead of ending employment relationships. 67
64
Principles of the Law of Contract 681.
65
66 of 1995. If the unfairness of a dismissal is confirmed by the Labour Court or arbitrator
appointed in terms of the Act it may according to s 193 direct the employer to do the
following: (a) to reinstate the employee from any date not earlier than the date of
dismissal; (b) to re-employ the employee; or (c) to pay compensation to the employee.
66
75 of 1997. Section 77A(e) provides that “the Labour Court may make any appropriate
order, including an order making a determination that it considers reasonable on any
matter concerning a contract of employment in terms of section 77 (3), which
determination may include an order for specific performance, an award of damages or an
award of compensation”.
67
See Eiselen “Specific performance and special damages” in European Contract Law:
Scots and South African Perspectives 258-259; Hutchison & Pretorius (eds) The Law of
Contract in South Africa 323; Majake v Commission for Gender Equality 2010 (1) SA 87
(GSJ). Considering s 77A(e) BCEA, the Labour Court in Abrahams v Drake & Scull
Facilities Management (SA) (Pty) Ltd [2012] 5 BLLR 434 (LC) ordered an employer to
restore the salary of an employee after it had unilaterally reduced her remuneration to
align it with the salaries earned by other employees. See also SAPU v National
Commissioner of the South African Police Service [2006] 1 BLLR 42 (LC) para [82] per
Murphy AJ.
177
The rest of this discussion will focus on the employer’s claim for enforcement against
the employee. The reason for doing so is that the position concerning the enforcement
of the employer’s obligations can by and large be regarded as resolved. In line with the
international trend68 it is now well established by statute that a court may force the
employer to reinstate an employee for the remainder of his employment contract.69 This
position, which was also confirmed in Toerien v Stellenbosch University,70 is also
defensible as a matter of principle and policy. A consideration that weighs heavily in this
regard is that an employee enjoys a constitutional right to fair labour practices; when an
employer unlawfully terminated his services, the only way to give full effect to this right
might be enforcement of his contract (subject only to the court’s discretion, as for
example in the Masetlha case).71 Furthermore, even though the personal freedom of the
employer is also implicated when he is compelled to have an employee work for him,
one can argue that this happens to a lesser degree, since the employer is not forced to
work, but to reinstate. In contrast to an employee, an employer’s liberty is less
constrained by enforcement, and hence the traditional civil liberty argument is less
relevant.
68
See eg Part X of (UK) Employment Rights Act 1996 (para 4 3 below); and § 8 of
Protection Against Unfair Dismissal Act of Germany (para 4 5 1 below).
69
It should be noted that employees’ rights in this regard is limited in the case of the
magistrates’ courts. See s 46(2)(c) of the Magistrates’ Courts Act 32 of 1944 and A A
Landman “Saving of costs: a ground for reducing specific performance of a claim
sounding in money?” 1997 SALJ 263.
70
(1996) 17 ILJ 56 (C).
71
Section 23(1) of the Constitution of the Republic of South Africa, 1996 provides that
“Everyone has the right to fair labour practices” and s 33(1) further provides that
“Everyone has the right to administrative action that is lawful, reasonable and procedurally
fair”.
178
4 2 1 2 The employer’s claim against the employee
The position is more complicated where an employer seeks an order for specific
performance against his employee.72 Here the personal freedom of the employee is
implicated more strongly than when the employer is compelled to reinstate employees.
Many South African judgments and academic works have expressed the view that
courts should not generally award specific performance of the obligation to work against
an employee.73 Following the English courts, our courts in the past would never
specifically enforce an employment contract by ordering an employee to work for an
employer because this would constitute forced labour (a concept we will return to later
on).74 For example, in the English case of Millican v Sullivan75 the court held that it
would be “monstrous” to compel an unwilling employee to work in terms of an order,
and that they have “never dreamt of enforcing by injunction agreements that were
strictly personal in their nature”.
The position in our law resembles the position in England and the United States, where
specific performance against an employee is similarly viewed with disfavour. Therefore
these contracts could give rise to a claim for damages instead.76 It is especially
72
73
See Schierhout v Minister of Justice 1926 AD 99 108; Troskie v Van der Walt 1994 (3) SA
545 (O) 552A; Tiger Bakeries Ltd v FAWU (1988) 9 ILJ 82 (W) 87D; Nationwide Airlines
(Pty) Ltd v Roediger 2008 (1) SA 293 (W) para [17]; Lubbe & Murray Contract 544; A
Roycroft & B Jordaan A Guide to South African Labour Law 2 ed (1992) 101-103; Christie
& Bradfield Christie’s The Law of Contract in South Africa 550-551; Kerr Principles of the
Law of Contract 680-681.
74
See para 4 2 1 above; Jordaan “Employment relations” in Southern Cross 407.
75
(1888) 4 TLR 203 204.
76
See eg Subaru Tecnica International Inc, Prodrive Limited v Richard Burns, CSS Stellar
Management Limited, Automobiles Peugeot SA 2001 WL 1479740 Ch D para 77 per
Strauss J (citing decision of Oliver J in Nichols Advanced Vehicle Systems Inc v De
Angelis, unreported, 21 December 1979, involving a F 1 racing driver); B M Loeb
179
noteworthy that our law differs from English and American law insofar as our courts
display a reluctance77 to award specific performance to compel employees to work,
rather than recognise a rule that it should never be awarded. Civil-law systems, as
represented here by German and Dutch law, also recognise as a rule that specific
performance will not be granted against an employee.78 It appears that our law faces a
choice between continuing with its flexible approach or adopting a rule that specific
performance may never be awarded against employees (which is also followed in some
systems). In the rest of this section it will be enquired whether denying specific
performance against employees should be a concrete rule or exception to the right to
specific performance, or whether our courts should merely be reluctant to award specific
performance against an employee.
Let us first consider claims aimed at forcing a party to work for the employer. In this
regard the court in Troskie v Van der Walt79 refused specific performance of a positive
undertaking to enter into the service of an employer because the contract involved the
rendering of services of a personal and skilled nature that required close cooperation
between the parties.80 In this case the respondent repudiated his contract to play rugby
for the second appellant (Old Greys Rugby Club) by joining the opposing Collegians
Rugby Club, with the intention of remaining with them. However, the appellants did not
“Deterring player holdouts: who should do it, how to do it, and why it has to be done”
(2001) 11 Marquette Sports Law Review 275 287 n 64; Naudé 2003 SALJ 269.
77
Le Roux stated in 2003 that “courts are reluctant to order specific performance in cases of
breach of contract where the defaulting party is required to render performance of a very
personal nature, such as contracts of employment” (“How divine is my contract?
Reflecting on the enforceability of player or athlete contracts in sport” 2003 SA Merc LJ
116). Christie agrees with this statement, noting that “[a]n order for the specific
performance of a contract of employment will, in the exercise of the court’s discretion, not
normally be granted” (Christie’s The Law of Contract in South Africa 550).
78
79
1994 (3) SA 545 (O) 552.
80
180
accept the respondent’s repudiation and applied for an order compelling him to play for
the Old Greys Club for the period stipulated in the contract.81 The trial court per
Malherbe JP, decided the following:82
“Na my mening is dit ‘n belaglike smeekbede en sal geen redelike Hof so ‘n bevel tot
spesifieke nakoming van Van der Walt se beweerde kontraktuele verpligting gelas nie.”
On appeal, Wright J, refused to order specific performance of the respondent’s

contractual obligation on the following basis:83
“Die aard van die dienste wat in die onderhawige saak gelewer moes word, is die speel van
rugby vir ‘n besondere klub. Die lewering van die betrokke diens is nie alleen afhanklik van
die persoonlike entoesiasme, bereidwilligheid en deursettingsvermoë van die besondere
speler nie, maar ook is daar aan die betrokke dienste ‘n groot mate van kundigheid,
bedrewenheid en vaardigheid van persoonlike aard verbonde en wat afhanklik sal wees van
die besondere speler se spesifieke eienskappe en ook sy verhouding met die klub vir wie hy
rugby speel. Dit is sterk te betwyfel of daar in die besondere omstandighede van hierdie saak
ooit ‘n bevel van spesifieke nakoming gepas sou kon wees …”
It is interesting that Wright J emphasises the nature of the performance sought to be

enforced. According to him it is highly doubtful whether an order of specific performance
would be appropriate where the performance is entirely dependent on the personal
enthusiasm, willingness and drive of the debtor, and where the performance involves a
great deal of ability, proficiency and skill of a personal nature which will be dependent
on the specific qualities of the debtor as well as on his relationship with the creditor.84
He compares performance of this nature to the rule that applies to cession, namely that
where the performance is of such a personal nature, and is closely connected to the
person of the creditor, the creditor’s personal right may not be transferred without the
81
Troskie v Van der Walt 1994 (3) SA 545 (O) 548.
82
553.
83
552.
84
552H-J.
181
consent of the debtor.85 Accordingly, an employer is not entitled to cede his right to the
services of an employee to another.86 In other words, he equates non-transferability to
unenforceability: in the same way as an employer may not transfer his claim against an
employee to one of his creditors so that the latter can enforce it, the employer himself
may not specifically enforce his personal right or claim against an employee. The
Troskie decision demonstrates how the availability of specific performance (in the
context of employment contracts) depends on the nature of the performance. The
nature of the performance can also determine that specific performance should be
granted of an employment contract and thus yield an opposite conclusion.
In the absence of the characteristics typically associated with employment contracts, as

discussed by Wright J, the Full Bench in Santos Professional Football Club (Pty) Ltd v
Igesund87 was prepared to order specific performance of an obligation to work against
an employee. The case concerned the right of the court to order specific performance of
a contract for personal services, more specifically a contract of employment, albeit that
the court held that “this was not a case of an ordinary contract of employment”,88 as we
will also presently see. The first respondent, a football coach, had entered into a
coaching contract with the appellant club. The contract provided that a breach by
either of the parties entitled the other either to cancel the contract and claim damages or
to claim specific performance. Before the expiry of his contract, the first respondent was
made a more lucrative offer by the second respondent, another club in the same soccer
league. He proceeded to give the appellant notice of termination of his services and
thereby effectively committed breach of contract in the form of repudiation. The
appellant approached the court to declare that the contract was binding and to grant an
order of specific performance against the first respondent. The application failed in the
85
553. See also G F Lubbe “Cession” in L T C Harms & J A Faris (eds) LAWSA 3 3 ed
(2013) para 165; Van der Merwe et al Contract: General Principles 408-409.
86
Isaacson v Walsh & Walsh (1903) 20 SC 569.
87
2003 (5) SA 73 (C).
88
76D.
182
court a quo,89 but the Full Bench ordered the first respondent to continue as head coach
of the appellant and thereby distanced itself from the view held by many South African
commentators and case law, that specific performance of an obligation to work should
generally not be granted against an employee.90
There were, however, special circumstances that persuaded the Full Bench to grant
specific performance.91 According to Naudé, there were four main reasons for granting
specific performance.92 In the first instance the court emphasised that the contract was
a unique contract of employment.93 Three characteristics distinguished the particular
contract from an ordinary contract of employment:94 the contract contained a clause
which granted the right to claim specific performance in case of breach;95 the parties
contracted on an equal footing, and Igesund enjoyed considerable latitude in performing
his duties.96 A second consideration which swayed the court in favour of granting
specific performance was the primacy of specific performance in our remedial scheme.
The court emphasised that specific performance was the primary remedy for breach of
employment contracts.97 It held that the constitutional value of contractual autonomy,
part of “freedom” and informing the constitutional value of “dignity”, also favours the
primacy of specific performance as a remedy for breach.98
89
Santos Professional Football Club (Pty) Ltd v Igesund 2002 (5) SA 697 (C).
90
See eg Christie & Bradfield Christie’s The Law of Contract in South Africa 551; A J Kerr
The Principles of the Law of Contract 680-681; Schierhout v Minister of Justice 1926 AD
99 108; Troskie v Van der Walt 1994 (3) SA 545 (O) 552A.
91
See Naudé’s case note 2003 SALJ 269; Mould 2011 PELJ 198 ff.
92
Naudé 2003 SALJ 270.
93
2003 (5) SA 73 (C) 76D.
94
Naudé 2003 SALJ 270; Mould 2011 PELJ 203.
95
2003 (5) SA 73 (C) 76A-C.
96
79D.
97
81A-E, 84I, 87A.
98
86F-87C. See also Naudé 2003 SALJ 277.
183
The third reason for granting specific performance was that there was also no
breakdown of the relationship between the parties. Instead, the employee’s principal
reason for leaving was commercial, namely a more lucrative contract with a
competitor.99 According to Naudé this distinguishes the present case from other
breaches by employees, where the employee had a more legitimate reason to be
unwilling to continue with the contract and was justified in leaving the relationship.100
This was relevant because there was an important distinction between a wrongfully
dismissed employee and one who contracted with his employer on equal terms and
unlawfully resiled from his contract of employment in order to earn more money from a
competitor.101
The fourth and final reason for granting specific performance was that there was no
recognised hardship to the respondent.102 The Full Bench emphasised that “Courts
should be slow and cautious in not enforcing contracts. They should, in a specific
performance situation, only refuse performance where a recognised hardship to the
defaulting party is proved”. According to Foxcroft J, the reasons given by the court a
quo in refusing the application, merely amount to “practical considerations” which do not
meet the proper test.103
The Full Bench made a very bold move in rejecting Wright J’s reliance in Troskie104 on
Kerr’s view that “[n]o court, for example, can force a singer to sing or an artist to paint a
picture because these tasks require the application of highly personal skills”.105 The
99
2003 (5) SA 73 (C) 77F-G.
100
2003 SALJ 277.
101
2003 (5) SA 73 (C) 78I. See also Christie & Bradfield Christie’s The Law of Contract in
South Africa 551.
102
2003 (5) SA 73 (C) 86H. See also para 6 1 2 below.
103
2003 (5) SA 73 (C) 86G-H.
104
See Troskie v Van der Walt 1994 (3) SA 545 (O) 552C.
105
A J Kerr The Principles of the Law of Contract 4 ed (1989) 530 (repeated in 6 ed (2002)
680-681).
184
court thereby implied that specific performance might be equitable in situations “where
an opera house, having advertised that an international star will perform, will face great
criticism and possibly financial loss when it cannot force the artist to appear, no matter
how bad his performance might actually be”.106 The conclusion drawn here is that there
might be circumstances where a court will not be prevented from ordering enforcement
of personal service contracts especially when concerns typically associated with its
enforcement, such as the threat to the debtor’s personal freedom, are not present.107
The example of the singer who cannot be forced to perform probably has its roots in the
old English case of Lumley v Wagner.108 In this case, a Miss Wagner had agreed to sing
for three months at Her Majesty’s Theatre in London. The case concerned an action
instituted to restrain her from singing for a third party by granting an injunction for that
purpose.109 The Chancery Court held110 that
“[w]herever this court has no proper jurisdiction to enforce specific performance, it operates
to bind men’s consciences, as far as they can be bound, to a true and literal performance of
their agreements and it will not suffer them to depart from their contracts at their pleasure,
leaving the party with whom they have contracted to the mere chance of any damages which
a jury may give. The exercise of this jurisdiction has, I believe, had a wholesome tendency
towards the maintenance of that good faith which exists in this country to a much greater
degree perhaps than in another; and although the jurisdiction is not to be extended, yet a
Judge would desert his duty who did not act up to what his predecessors have handed down
as the rule for guidance in the administration of such an equity”.
106
2003 (5) SA 73 (C) 83I.
107
See para 4 8 below.
108
(1852) 1 De G M & G 604. As observed by Foxcroft J, 2003 (5) SA 73 (C) 83J-84A.
109
For further details of the case and ratio, see Jones & Goodhart Specific Performance 177
ff; Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) 84. See also
para 4 4 n 251 below.
110
(1852) 1 De G M & G 604 619.
185
The Chancery Court effectively achieved specific performance in an indirect manner.111

The defendant could not be forced to sing at the plaintiff’s theatre, but she could be
compelled to refrain “from the commission of an act which she has bound herself not to
do”, even if this ultimately meant fulfilling her employment contract with the theatre.112
By granting an injunction which prevented her from singing elsewhere, the court
indirectly forced her to sing at the plaintiff’s theatre.113 But it must be noted that in this
particular case sufficient confidence existed on the part of the employer in the
employee’s ability to fulfil her duties diligently. The traditional reasons against specific
performance therefore did not apply, and the case was distinguishable on a variety of
grounds.114 Judges also consequently refused to allow this decision to be a precedent
for any general principle that the court had jurisdiction to grant specific performance of
contracts to provide services.115 Thus, it can still be maintained that in English law the
original rule against specific performance remains. English courts will not grant an
111
Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) 83J.
112
Jones & Goodhart Specific Performance 177-178.
113
Wagner never performed her contract to sing for Lumley, but the two were reconciled four
seasons later. For these details see Z Chaffee “Equitable servitudes on chattels” (1928)
41 Harv LR 945 975 n 89.
114
Jones & Goodhart Specific Performance 170; R J Sharpe Injunctions and Specific
Performance (1983) § 695.
115
The Court of Appeal in Whitwood Chemical Co v Hardman [1891] 2 Ch 416, 428 per
Lindley LJ described the decision as “an anomaly which it would be very dangerous to
extend”. See also MacDonald v Casein Ltd [1917] 35 DLR 443, 444-445 per Macdonald
CJA “The tendency of the Courts now appears to be not to follow Lumley v. Wagner …
and the line of cases founded on that decision, unless there be in the particular case an
express negative stipulation.” Another similar case is Chapman v Westerby [1913] WN
277, 278 where it was held per Warrington J that “[there must be a stipulation] requiring
the contracting party not to do some particular act on which the Court can put its finger”.
186
injunction where the claim essentially boils down to an attempt to have the contract of
employment specifically enforced.116
In Santos, the Full Bench relied on the practice in England of granting indirect specific
performance against employees by injunction as illustrated in the case of Lumley to
support its view that the right to specific performance also applies in relation to
employment contracts.117 The Lumley case also persuaded another South African court
to prohibit an employee from working for another employer in the same sector for the
remainder of his contract in Roberts Construction Co Ltd v Verhoef.118 This was a
standard restraint of trade case: there was an express term prohibiting employment
elsewhere. The court insisted that it would provide “all the relief in its power, without
looking to the effect which may ultimately be produced by the restraint which it places
on the party who is disposed to break the contract, although the effect of such an
injunction may be to compel the specific performance of the contract”.119
The Santos decision, which has been described as “far-reaching”120 has given rise to a
number of difficulties. The first relates to content and relevance of the boundaries
between employment contracts and other service contracts. As briefly indicated earlier,
the employment contract between the football club and Igesund by no means
constituted an ordinary employment contract. According to Van der Merwe et al “the
special circumstances of the case weighed heavily with the court. The factor that tipped
116
Sharpe Injunctions and Specific Performance § 693, referring to Whitwood Chemical Co v
Hardman [1891] 2 Ch 416. See also R S Stevens “Involuntary servitude by injunction”
(1921) 6 Cornell Law Quarterly 235.
117
Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) 84A-D; and see
118
1952 (2) SA 300 (W).
119
305B.
120
See Eiselen “Specific performance and special damages” in European Contract Law:
Scots and South African Perspectives 258; repeated by the same author in Hutchison &
Pretorius (eds) The Law of Contract in South Africa 323.
187
the scales was that the contract in issue was not an ordinary contract of
employment”.121 The contract concerned departed from the general concept of an
employment contract. Igesund’s contract, due to its unusual nature, is distinguishable
from an ordinary employment contract, which is less likely to be enforced due to policy
considerations, such as concern for the employee’s personal freedom, and the fact that
the employee often is in a weaker bargaining position. Igesund was an employee, but
an unusual one: he contracted on equal terms with the applicant, demanded a very high
sum of money for his services, and was given complete freedom in the exercise of his
duties. Because Igesund had more bargaining power, and Santos had no control over
his functions, it can be argued that he was actually comparable to an independent
contractor. Based on all of these factors, the court ultimately made an order of specific
performance. The case is therefore clearly distinguishable from ordinary employment
contracts, and other factors trumped the concerns typically associated with enforcement
of an employment contract against an employee.122
A further problematic aspect of Santos, is that it did not take into account policy
considerations such as forced labour.123 The court a quo, per Desai J, cited “disapproval
of forced labour” as one of the factors militating against ordering specific performance
against an employee.124 However, the Full Bench did not engage with the court a quo’s
forced labour argument.125 They emphasised that the only operative reason for refusing
specific performance was to avoid hardship to the employee, a consideration which,
according to the Full Bench, did not apply in this particular case.126
121
122
See para 7 2 2 text to n 51 below.
123
See, on the term “forced labour”, A Naidu “The right to be free from slavery, servitude and
forced labour” 1987 CILSA 108; Naudé 2003 SALJ 280-281; I Currie & J de Waal The Bill
of Rights Handbook 6 ed (2013) 291-293.
124
Santos Professional Football Club (Pty) Ltd v Igesund 2002 (5) 698 (C) 701C.
125
Naudé 2003 SALJ 280; Currie & De Waal Bill of Rights Handbook 314.
126
Naudé 2003 SALJ 280; Currie & De Waal Bill of Rights Handbook 314.
188
According to Naudé, “[t]here appears to be merit in the forced labour argument”, seeing
that section 13 of the Constitution of the Republic of South Africa, 1996, which states
that “no one may be subjected to slavery, servitude or forced labour”, possibly creates a
presumption against specific performance of an employment contract.127 However, this
is not an outright prohibition: in some circumstances, granting an order of specific
performance could be a justifiable limitation of the section 13 right.128 Rautenbach has
pointed out that, section 13 prohibits extreme forms of the limitation of the right to
occupational freedom such as “military service, prison labour and the performance of
civil service in, for example, times of emergency”.129 Naudé acknowledges that specific
performance of an employment contract does not seem to fall under this definition.130
However, there are also broader definitions of forced labour. Currie and De Waal131
refer to the International Labour Organization’s definition as “all work or service which is
exacted from any person under the menace of any penalty and for which the said
person has not offered himself voluntarily”.132 It can be argued that specific performance
of an employment contract falls within this definition and can be considered an instance
of forced labour. However, notwithstanding such a technical approach, it can
undoubtedly be said that considerations such as the human free will and autonomy go
against direct enforcement of such obligations. In concluding her discussion of section
13, Naudé makes the following important comment:
“Section 13 and the policy behind s 22 of protecting personal freedom should, however,
make courts very wary of granting specific performance against an employee.”133
127
128
Currie & De Waal Bill of Rights Handbook 292.
129
I M Rautenbach “Introduction to the Bill of Rights” in Bill of Rights Compendium (RS 2011)
para 1A61.
130
131
Currie & De Waal Bill of Rights Handbook 291.
132
See Art 2(1) Forced Labour Convention of 1930 of which South Africa is a member state.
133
189
Naudé argues that even though Igesund was no ordinary servant, forcing him to
continue to coach for the applicant, still raises concern for his personal freedom. The
Full Bench also overlooked the respondent coach’s contention that the move to the
second respondent club would provide him with the necessary financial security to allow
relocation of his family, in order for them to be reunited and live together in Cape
Town.134 Ultimately she argues that courts should refuse specific performance in such a
case, on the basis that it would cause unfair hardship to the employee.135
Although one would agree with Naudé that policy considerations such as preventing
forced labour should indeed be taken into account by our courts in refusing to order
specific performance of employment contracts against employees, these considerations
are not conclusive, and were indeed outweighed by others in the Santos case: it is
especially significant that the contract in issue was not an ordinary contract of
employment, which is less likely to be enforced based on policy considerations such as
the concern for the employee’s personal freedom to favour the employer. As Naudé
correctly points out, Santos is distinguishable from Troskie on the basis that the rugby
player, “[u]nlike the first respondent, is under the constant control of his employer, and
continually has close personal contact with his employers in the performance of his
duties”.136 The justifications that apply to typical employment contracts did not apply,
134
But see Naudé 2003 SALJ 281: “The court’s response was simply that commercial
reasons were the principal factors causing the breach [...] It appears from the affidavits
filed that the first respondent had probably also lived apart from his family during his
previous contract with Orlando Pirates Football Club […] so that the importance of being
reunited with his family perhaps did not carry much weight. The first respondent also did
not make any allegation that his family had indeed agreed to relocate to Cape Town if he
joined the second respondent, so that it was not clear that specific performance of his
contract with the appellant was all that stood in the way of such relocation. It is therefore
not surprising that the resolution of the ‘problems with his family’ as a result of his move to
the second respondent was only mentioned as a possibility by the court a quo…”
135
136
190
and hence did not provide sufficient reason for refusal of specific performance.
Therefore it is submitted that the Full Bench’s reasoning and finding was correct, and
that enforcement was warranted in this instance.137
This reasoning could also be applied to Nationwide Airlines (Pty) Ltd v Roediger.138
Here an airline captain was held to his agreement to give three months’ notice of
termination of his employment. The court pointed out that, in the exercise of the court’s
discretion to refuse specific performance of an employment contract, the remedy was
not normally granted, but there was no “hard-and-fast rule” to that effect.139 The court
ordered specific performance, having regard to the particular relationship between the
applicant and respondent and the nature and circumstances of the agreement.140 The
real reason the respondent had sought to terminate his employment was to be able to
take up more lucrative employment with another airline.141 Furthermore, the respondent
was not an ordinary employee because he was a highly qualified professional pilot who
had contracted on equal terms with the applicant and was able to command a high sum
of money for doing so, and in the performance of his duties, the respondent was in
exclusive command of the aircraft he was piloting, i.e. his decision-making insofar as
piloting the aircraft was concerned was not subject to the applicant’s control.142 It can
therefore be argued that he was also comparable to an independent contractor. The
justifications that apply to typical employment contracts did not apply, and hence did not
provide sufficient reason for refusal of specific performance and the court was also
correct in enforcing the particular contract.
137
See also para 7 2 2 below.
138
2008 (1) SA 293 (W). See further Christie & Bradfield Christie’s The Law of Contract in
South Africa 551.
139
Para [17].
140
Paras [28]-[30].
141
Para [23]. Compare text to n 99 above.
142
Paras [24]-[26].
191
Both cases give rise to difficulties of classification. It is submitted that both respondents
(the football coach and the airline captain) may be regarded as employees (inasmuch
as they performed services of a continuous nature in terms of a mutual agreement in
return for remuneration),143 but unusual ones. Specific enforcement was warranted even
though specific performance is generally not awarded against employees. There were
certain aspects of these particular employment contracts that made them so unusual
that the courts did not yield to the general reluctance of our judiciary to order specific
performance in cases of breach of contract where the debtor is required to render
performance of a very personal nature.
Thus far, the focus was only generally on whether an employer could force an employee
to continue working for him. Related to this is an undertaking (for example in a bursary
agreement) where a person undertakes to become an employee in the future. These
undertakings are likewise not enforced. Instead, if the person fails to commence work
with the employer/grantor he will be required to reimburse the amount that was granted
to him in terms of the bursary agreement.144
Both these situations must be distinguished from the important phenomenon in practice
of restraint of trade agreements, whereby employers seek to enforce various
undertakings by employees not to enter into the service of another employer during or
after the term of his employment contract, which they incorporate to protect their
economic interests.145 As Christie correctly points out “[a] plaintiff who asks for an
interdict to prohibit such a breach is in reality asking for specific performance in the
negative form of non-performance of the forbidden or inconsistent act to ensure
143
See again criteria listed in text to nn 33 ff para 4 2 1 above.
144
See eg Namibian High Court decision in Namibia Post Limited v Hiwilepo [2011] NAHC
172.
145
For in-depth discussion of restraints of trade, see J Saner Agreements in Restraint of
Trade in South African Law (loose-leaf); P J Sutherland The Restraint of Trade Doctrine in
England, Scotland and South Africa PhD thesis Edinburgh (1997).
192
performance of the contract”.146 This type of undertaking is more readily enforced in our
law.147
In Magna Alloys and Research (SA) (Pty) Ltd v Ellis,148 the appellate division held that
restraints of trade should be treated like all other contractual terms and, in principle, be
regarded as enforceable. Thus, in general, restraint of trade clauses are valid in our law,
provided that they conform to public policy and are reasonable. This means that the
party seeking to enforce the restraint is entitled to its enforcement, unless the party
bound by the restraint is able to prove on a balance of probability that it would be
unreasonable to enforce the restraint in the circumstances of the particular case.149 In
practical terms this means that the employer seeking to enforce the restraint merely has
to invoke the provisions of the contract and prove the breach, whilst the employee who
wants to avoid its enforcement will be burdened with the onus of proving its illegality
because public policy requires that people should be bound by their contractual
146
Christie’s The Law of Contract in South Africa 555. Cf remarks made by Zulman J in
Longhorn Group (Pty) Ltd v The Fedics Group (Pty) Ltd 1995 (3) SA 836 (W) 843C-D, that
this type of relief is not specific performance, which, according to Eiselen, “are hard to
explain or understand” (European Contract Law: Scots and South African Perspectives
253 n 34).
147
See Roberts Construction v Co Ltd v Verhoef 1952 (2) SA 300 (W); Van der Merwe et al
Contract: General Principles 331. However, a court is less inclined to enforce an implied
restraint than would be the case where it is express – Troskie v Van der Walt 1994 (3) SA
545 (O) 556F-G.
148
1984 (4) SA 874 (A).
149
Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) 893A-B, 898C-D;
Basson v Chilwan 1993 (3) SA 742 (A) 768D-E; Coetzee v Comitis 2001 (1) SA 1254 (C)
1273; Barkhuizen v Napier 2007 (5) SA 323 (CC); Bredenkamp v Standard Bank of South
Africa Ltd 2010 (4) SA 468 (SCA) 482-483; Kerr Principles of the Law of Contract 211-
212; Eiselen “Specific performance and special damages” in European Contract Law:
Scots and South African Perspectives 253-255.
193
undertakings.150 If the employee can prove that the restraint is unreasonable (by proving
that it does not protect a substantive interest),151 he will not be bound,152 because by the
same token public policy discourages unreasonable restrictions on people’s freedom of
trade.153
One question that still needs to be answered, however, is whether enforcement of an

agreement in restraint of trade amounts to an infringement of the employee’s personal
liberty and similarly leads to forced labour, since the employee is indirectly forced to
honour his employment contract. Whether this is the case and should be an impediment
to the enforcement of restraints will be addressed later.154
4 2 2 Contract of work (locatio conductio operis)
As indicated earlier,155 in South African law the contract of employment must be

distinguished from other personal service contracts, more specifically, the contract of
work (locatio conductio operis). The contract of work has been defined as a mutual
agreement between a locator (the employer/client who commissions the work) and a
conductor (the contractor) in terms of which the latter undertakes to execute a particular
piece of work and promises to produce a certain specified result.156 A significant
150
Thus, freedom of contract is preferred over freedom of trade in our law. See Roffey v
Catterall, Edwards & Goudré (Pty) Ltd 1977 (4) SA 494 (N) 505F; Magna Alloys and
Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) 891; Van der Merwe et al Contract:
General Principles 185.
151
Examples of such interests include business connections and business secrets. See
Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA).
152
Which will be the case if, for example, the sole objective of the restraint is to eliminate
competition. See in this regard, Hirt & Carter (Pty) Ltd v Mansfield 2008 (3) SA 512 (D).
153
Basson v Chilwan 1993 (3) SA 742 (A) 776I-777B.
154
155
See para 4 1 above.
156
Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) 61B; quoted with
approval in Phaka v Bracks (JR1171/11) [2013] ZALCJHB 91 para [17].
194
distinguishing factor between a contract of employment and a contract of work in our

law is that the services as such are not the object of the contract of work. The client is
not interested in the contractor’s labour, but in the result of his labour.157
Examples of work undertaken by an independent contractor include the construction of

a road158 or of a dam,159 the repair of a building or of a road,160 the demolition of a
building,161 the sinking of a borehole,162 the installation of an electric service,163 and the
cartage of goods.164 The work performed by the independent contractor does not have
to be of a physical nature, it may also be intellectual services (operae liberales).165 For
example, accountants and advocates are also considered to be independent
contractors.166
Our law treats these contracts as regular commercial contracts to which the general
principles of the law of contract apply. Hence, a contractor’s breach will entitle the client
to claim specific performance, subject only to the qualification that the court has a
discretion to refuse it.167 Nienaber, however, holds that “[s]uch an order will usually but
157
Zimmermann The Law of Obligations 393-394. Comparable to obligations de résultat in
French law. See also n 278 para 4 5 2 below.
158
Naude v Kennedy 1909 TS 799; Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial
Administration 1974 (3) SA 506 (A).
159
Viljoen v Visser 1929 CPD 473; Uitenhage Municipality v Schuddingh 1936 CPD 506.
160
East London Municipality v Murray (1894) 9 EDC 55.
161
Dukes v Marthinusen 1937 AD 12.
162
Van Rensburg v Straughan 1914 AD 317.
163
Breslin v Hichens 1914 AD 312.
164
Parke v Hamman 1907 TH 47; Horne v Williams & Co 1940 TPD 106.
165
Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A) 56H.
166
Spurrier v Coxwell NO 1914 CPD 83. For more examples, see F du Bois Wille’s Principles
of South African Law 9 ed (2007) 942.
167
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A).
195
not necessarily be refused when it involves the execution of work”.168 Van der Merwe et
al similarly hold that “courts in the past have also been reluctant to grant specific
performance of obligations arising from mandate and contracts for services (locatio
conductio operis), for example where a builder has undertaken to do alterations to a
house or where a lessor is bound to repair the leased property”.169 The authors suggest
that the reason for this approach is that it would be difficult for a court to supervise the
execution of an order for specific performance. According to Christie, building contracts
have not been specifically enforced on the ground of the imprecision of the
obligations.170 This is essentially the same reason explained from a different angle,
since the preciseness of the obligations affects the court’s ability to decide whether the
work is being performed properly.171 A contractual obligation may be imprecise in the
sense that granting an order for specific performance may lead to a lengthy dispute on
whether it has been carried out properly.172
The facts of National Butchery Co v African Merchants Ltd173 show that there is merit in
these concerns. It illustrates how an order to perform construction work can run into
trouble and consequently require repeated applications to the court. The court ordered
168
P M Nienaber “Building and engineering contracts” in L T C Harms & J A Faris (eds)
LAWSA 2(1) 2 ed (2003) para 478.
169
Van der Merwe et al Contract: General Principles 332 esp n 37.
170
See Christie & Bradfield Christie’s The Law of Contract in South Africa 552. See also J W
Wessels The Law of Contract in South Africa 2 ed (1951) vol 2 § 3117 ff; Barker v Beckett
& Co Ltd 1911 TPD 151 164.
171
172
Christie “suggests that where obligations are imprecise further disputes might arise
between the parties, the defendant claiming that he has performed satisfactorily pursuant
to an order of specific performance, and the plaintiff denying this” (Lubbe & Murray
Contract 546). Compare statements by Lord Hoffmann in text to n 64 & n 80 para 5 2 (i)
below.
173
(1907) 21 EDC 57. See also Christie & Bradfield Christie’s The Law of Contract in South
Africa 553; Van der Merwe et al Contract: General Principles 306.
196
African Merchants Ltd to perform its contract to erect a cold storage and ice-making
plant for National Butchery Co. National Butchery Co had to return to the court twice,
seeking its intervention to ensure the erection of the plant in accordance with the
contract. However, more recently, Coetzee J in Ranch International Pipelines
(Transvaal) (Pty) Ltd v LMG Construction (City) (Pty) Ltd174 emphatically rejected the
traditional objection to the enforcement of building contracts and explained his
reasoning as follows:
“I wonder if this so-called difficulty is not grossly over-emphasised. Is it not imaginary rather
than real? I could not find a case on record where such a difficulty actually arose in practice
and which had to be dealt with by the Court after an order to perform a building contract had
been made. Why should there be any difficulty? What is the need of supervision anyway?
Does the Court ever supervise the execution of its judgments? Surely not. Orders ad factum
praestandum are made all the time. There is no supervision thereof and no intervention by
the Sheriff. If there is an intentional refusal to perform, contempt proceedings may follow.
Why should different considerations then apply to building contracts? Accurate performance
of them with the requisite skill or workmanship is irrelevant in this context. As it is in the case
of every other order ad factum praestandum. The judgment creditor will surely cancel the
contract when it is unintentionally incorrectly performed. The judgment does not replace the
contract. After all, this risk, as well as that of not succeeding in contempt proceedings, the
owner took when he asked the Court for this order. It is his affair. If the owner has elected to
claim this remedy and he is prepared to take these risks, why, one may ask, should it lie, as
a matter of logic, in the mouth of the defaulting builder to advance any reason connected with
the quality of his performance or his general unwillingness, as a basis for avoiding an order
175
compelling him to perform his bargain?”
On these grounds an order of specific performance was granted against the client,
forcing it to cooperate with the contractor in completing the work in the sense of allowing
him to perform. By pointing out that the judgment does not replace the contract and
therefore introduces no new difficulty in deciding whether the work is being performed
174
1984 (3) SA 861 (W) 880G-881F.
175
880H-881B.
197
properly, Coetzee J discredited the traditional objection to the specific enforcement of

construction contracts. Furthermore, in the light of the emphasis that is now placed on a
contractant’s right to specific performance, Van der Merwe et al assert that our courts’
current approach should be fundamentally reconsidered.176
It would appear that there is merit in this suggestion. The question whether difficulties
with supervision should influence awarding specific performance will only be
investigated in detail in the next chapter, but it may as well be remarked here that
Coetzee J’s objections in Ranch International Pipelines appear to be cogent, and, that it
is doubtful whether this rationale justifies refusing a creditor his right to specific
performance.177 It may therefore be argued that there is no apparent sustainable reason
for courts to exercise their discretion against specific enforcement of such contracts.
The Ranch case has not, however, resolved the matter and it is submitted that
intervention by our courts is required to bring coherence to this area of our law.
It should also be noted that the Consumer Protection Act178 impacts on the rules
applicable to these contracts.179 Section 54 provides that a consumer has the right to
demand quality service. In particular, a consumer has the right to the timely
performance and completion of the services, or, if that is not possible, timely notice of
any unavoidable delay in the performance of the services; the performance of the
services in a manner and quality that persons are generally entitled to expect; the use,
delivery or installation of goods (if any such goods are required for performance of the
services) that are free of defects and of a quality that persons are generally entitled to
expect; the return of their property in at least as good a condition as it was when the
176
177
See also ISEP Structural Engineering and Plating (Pty) Ltd v Inland Exploration Co (Pty)
Ltd 1981 (4) SA 151 (T) 5, and authority cited there.
178
68 of 2008, which applies to services delivered by independent contractors under locatio
conductio operis but not to services delivered under locatio conductio operarum (section
5(2)(e)).
179
198
consumer made it available to the supplier for the purpose of performing such
services.180 This would be the case, for example, where a consumer has to leave an
electrical appliance with an electrician.
If the service provider fails to meet these standards of service delivery, the consumer
can choose between demanding that the service provider performs properly or
demanding a refund of “a reasonable portion of the price paid for the services
performed and goods supplied, having regard to the extent of the failure”.181
The Act provides an express basis for the enforcement of the obligations of suppliers of
services by consumers. It gives priority to specific performance of service contracts in
accordance with our law’s general point of departure, and supports the previous
statement that there is no apparent convincing reason for courts to exercise their
discretion against specific enforcement of such contracts.
4 3 English law182
The references to English law thus far were mainly incidental to explain developments
in South African law. We will now consider English law in more detail to understand
these developments better and to determine the road ahead for our law. Although the
English law relating to the contract of employment was still in its developmental stages
during the nineteenth century, it has shaped the attitude of our courts to the
enforcement of personal service contracts.183
180
Section 54(1).
181
Section 54(2).
182
See generally para 2 3 2 1 above.
183
See Schierhout v Minister of Justice 1926 AD 99 108. See also Jordaan “Employment
relations” in Southern Cross 389; Brassey 1981 ILJ 58; Le Roux 2010 Ind LJ 139.
199
The majority of English commentators do not distinguish between employment contracts

and other contracts for services in discussing their enforceability.184 Generally, broad
terminology such as “contracts of personal service” or “contracts involving personal
service” is used.185 An employment contract is usually defined to mean the same as a
“contract of service”.186 The literature on the enforceability of personal service contracts
therefore does not uphold the traditional Roman law divide between a person who is
employed (under locatio conductio operarum) and someone who is self-employed
(under locatio conductio operis). It can be said that this distinction is unnecessary since
the general rule is that contracts for personal services or involving the continuous
performance of services will not be specifically enforced, no matter how defined.
English courts were still prepared to order specific enforcement of personal service
contracts during the eighteenth century,187 but they would not even consider doing so in
the late nineteenth century.188 As Lord Reid pointed out in Ridge v Baldwin,189 “[t]he law
regarding master and servant is not in doubt. There cannot be specific performance of a
184
The dichotomy between employees and the self-employed is recognised and more
influential in other areas of English law, for example in tax law. See S Deakin “The
contract of employment: a study in legal evolution” (2001) 31 ESRC Centre for Business
Research, University of Cambridge, Working Paper No 203 available online at
<http://www.cbr.cam.ac.uk/pdf/WP203.pdf>.
185
See J Beatson Anson’s Law of Contract 28 ed (2002) 639; E Peel Treitel’s Law of
Contract 13 ed (2011) 1110.
186
See s 230 of the Employment Rights Act 1996. See also H Beale et al Cases, Materials
and Text on Contract Law 2 ed (2010) 869-870.
187
See eg Ball v Coggs (1710) 1 Bro Parl Cas 140; East India Co v Vincent (1740) 2 Atk 83.
Macdonell (Master and Servant 2 ed 162) points out that Equity Courts did at one time
order specific performance of service contracts.
188
See eg Pickering v The Bishop of Ely (1843) 2 Y & C Ch Cas 249; Johnson v Shrewsbury
and Birmingham Railway Co (1853) 43 ER 358.
189
[1964] AC 40 65. See also M R Freedland The Personal Employment Contract (2003)
352.
200
contract of service”. The underlying reasoning for this position appears from Innes CJ’s
dictum in Schierhout v Minister of Justice:190
“Now, it is a well established rule of English law that the only remedy open to an ordinary
servant who has been wrongfully dismissed is an action for damages. The Courts will not
decree specific performance against the employee … Equity Courts did at one time issue
decrees for specific performance. But the practice has long been abandoned, and for two
reasons: the inadvisability of compelling one person to employ another whom he does not
trust in a position which imports a close relationship; and the absence of mutuality, for no
Court could by its order compel a servant to perform his work faithfully and diligently. The
same practice has been adopted by South African Courts, and probably for the same reason.
No case was quoted to us where a master has been compelled to retain the services of an
employee wrongly dismissed … and I know of none. The remedy has always been
damages.”
Another relevant passage, and one more appropriate for present purposes, appears in
an old English case, Johnson v The Shrewsbury and Birmingham Railway Company191
in which Knight-Bruce LJ, in refusing specific performance of a contract of service for
the management of a railway company, said:192
“There is here an agreement, the effect of which is that the plaintiffs are to be the confidential
servants of the defendants in most important particulars, in which, not only for the sake of the
persons immediately concerned but for the sake of society at large, it is necessary that there
should be the most entire harmony and spirit of co-operation between the contracting parties.
How is this possible to prevail in the position in which (I assume for the purpose of the
argument by the default of the defendants) the defendants have placed themselves? We are
asked to compel one person to employ against his will another as his confidential servant, for
duties with respect to the due performance of which the utmost confidence is required. Let
him be one of the best and most competent persons that ever lived, still if the two do not
agree, and good people do not always agree, enormous mischief may be done.”
190
1926 AD 99 107.
191
(1853) 43 ER 358.
192
(1853) 43 ER 358 362-363.
201
The prevailing view in modern English law is that employment contracts are not
specifically enforceable by either the employee or the employer.193 According to Beale
et al “[i]t has long been settled that a contract of personal service (or employment) will
not, as a general rule, be specifically enforced at the suit of either party”.194 And
according to Sir Roger Ormrod: “Nobody would willingly grant an injunction forcing
either an employer on an employee or an employee on an employer, simply on the
basis that it would not work.”195 This is also reflected in a more recent decision, where it
was held that specific performance will not be granted against an employee because it
implicates his personal liberty.196
A number of reasons have been advanced in support of this rule (apart from Ormrod’s
rather vague assertion that it would not work).197 The first is that the order might be
unreasonable towards the party who is now required to employ someone with whom he
does not wish to work anymore, or in whom he has lost confidence or trust. Since it is
the employer who pays for the work, he should be entitled to decide who remains
193
Jones & Goodhart Specific Performance 56; M P Furmston Chesire, Fifoot & Furmston’s
Law of Contract 16 ed (2012) 800; H G Beale et al Chitty on Contracts 31 ed vol 1 (2012)
1918. Specific performance was refused against an employee in Clark v Price (1819) 2
Wils Ch 157; De Francesco v Barnum (1890) 45 Ch D 430, and against an employer in
Johnson v Shrewsbury and Birmingham Railway Co (1853) 43 ER 358; Brett v East India
and London Shipping Co Ltd (1864) 2 Hem & M 404; Rigby v Connol (1880) 14 Ch D 482.
194
See Beale et al Chitty on Contracts 1918, and the cases collected in n 101.
195
Powell v London Borough of Brent [1987] IRLR 466 476. See also Rigby v Connol (1880)
14 Ch D 482, 487 per Jessel MR: “The courts have never dreamt of enforcing agreements
strictly personal in their nature, whether they are agreements of hiring and service, being
the common relation of master and servant, or whether they are agreements for the
purpose of pleasure, or for the purpose of scientific pursuits, or for the purpose of charity
or philanthropy.”, and Alexander v Standard Telephones and Cables plc [1990] ICR 291.
196
Young v Robson Rhodes [1999] 3 All ER 524 534.
197
Jones & Goodhart Specific Performance 169.
202
employed by him.198 Then there is also the by now familiar, but less compelling
consideration of difficulties of constant supervision by the court.199 Finally, and most
importantly, the order is thought to promote forced labour since the employee will have
to resume his duties against his will.200 The latter constitutes one of the main reasons
why English courts have in the past refused to enforce personal service contracts, as
evidenced by Fry LJ’s statement in De Francesco v Barnum:201 “the courts are bound to
be jealous, lest they should turn contracts of service into contracts of slavery”. It is this
policy ground, which we have also encountered in the South African context, that
accounts for the rule.202 Thus, English law follows a very strict and straightforward
approach – a contract of employment will not be enforceable against the employee first
of all, due to the traditional civil liberty reasons, and also not against the employer on
the ground that an employer should not have to employ anyone against its will;
employers will thus never be compelled to employ employees they do not wish to
employ.203
198
See A Burrows Remedies for Torts and Breach of Contract 3 ed (2004) 482-483.
199
See Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch 116. This
argument is dealt with in detail in the following chapter. See also n 44 para 4 2 1 above.
200
Jones & Goodhart Specific Performance 56; Beale et al Chitty on Contracts 1918.
201
(1890) 45 Ch D 430 438. Here a 14 year old girl entered into a 7 year apprenticeship
agreement with De Francesco to be taught stage dancing. The girl agreed that she would
be at De Francesco’s total disposal during the 7 years. She would accept no professional
engagements except with De Francesco’s express approval, he was under no obligation
to maintain her or to employ her, the payment scale was extremely low, she could not
marry without his permission and De Francesco could terminate their arrangement
whenever he wished. The girl, however, accepted other work and De Francesco’s action
failed to prevent it. The Court held that the apprenticeship deed was unfair and
unenforceable against her.
202
Peel Treitel’s Law of Contract 1110.
203
See generally M R Freedland The Contract of Employment (1976) 273 ff; Jones &
Goodhart Specific Performance 173; Beale et al Cases, Materials and Text on Contract
Law 871-872.
203
The common law principle against specific performance of employment contracts has
also received statutory recognition. Section 236 of the Trade Union and Labour
Relations (Consolidation) Act 1992, provides that no court shall, whether by way of an
order for specific performance or specific implement of a contract of employment, or an
injunction or interdict restraining a breach or threatened breach of such a contract,
compel an employee to do any work or attend at any place for the doing of any work.
English law further recognises the principle that contractual undertakings not to
compete or restraints of trade are prima facie void and unenforceable unless the
restraint of trade is reasonable to protect the interest of the party who imposed the
restraint.204 This places the onus to prove reasonableness on the party seeking to
enforce the restraint, compared to our law,205 where the onus is on the party under
restraint to prove that the restraint is unreasonable.206 The employer in effect has to
204
Peel Treitel’s Law of Contract 502 ff; Beale et al Chitty on Contracts 1269 ff, 1950 ff. The
principle was famously encapsulated as follows in Nordenfelt v Maxim Nordenfelt Guns
and Ammunition Co Ltd [1894] AC 535 565 per Lord Macnaghten: “The public have an
interest in every person’s carrying on his trade freely: so has the individual. All
interference with individual liberty of action in trading, and all restraints of trade of
themselves, if there is nothing more, are contrary to public policy, and therefore void. That
is the general rule. But there are exceptions: restraints of trade and interference with
individual liberty of action may be justified by the special circumstances of a particular
case. It is a sufficient justification, and indeed it is the only justification, if the restriction is
reasonable—reasonable, that is, in reference to the interests of the parties concerned and
reasonable in reference to the interests of the public, so framed and so guarded as to
afford adequate protection to the party in whose favour it is imposed, while at the same
time it is in no way injurious to the public.”
205
See text to nn 145 ff para 4 2 1 2 above.
206
See Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd 1968 AC 269 319; Magna
Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A) 887. See also T Floyd “The
constitutionality of the onus of proof when enforcing restraint-of-trade agreements: an
appropriate evaluation of the common-law rules” 2012 THRHR 521 522.
204
prove that the restrictions he has placed on the employee’s freedom of trade is not more
than is reasonably necessary for the protection of his legitimate commercial interests.207
Legislative force is also (supposedly) given to the principle that an employer cannot be
forced to employ. This principle is reflected in the provisions of the Employment Rights
Act 1996, in Part X on unfair dismissals. Under these provisions, a tribunal may order
the reinstatement of the employee, but if such an order is not complied with, the
employer can only be made to pay compensation. Reinstatement provides a potential
solution to unfair dismissals and it appears that the primacy of the remedy of
reinstatement is emphasised in the legislation. However, even though it might seem to
provide a solution; it is not an attractive option in practice. According to Collins et al “the
dismissal and its surrounding events will probably have led to a loss of trust and
confidence on both sides, to such an extent that neither party wishes to continue the
relationship. Reinstatement therefore appears to be a solution that usually no one
wants”.208 It follows that in practice, reinstatement is “effected in only a tiny proportion of
… cases”209 so that it is compensation which is the employee’s “primary remedy”.210
The Act allows for an order to reinstate in principle, but it is not generally given effect to.
Thus, despite the emphasis in the legislation upon reinstatement being the primary
remedy, it appears that the remedy is rarely effective. And for the reasons listed above,
most employees do not desire reinstatement. Therefore the normal remedy for unfair
dismissal comprises financial compensation.211
207
Beale et al Chitty on Contracts 1287; Peel Treitel’s Law of Contract 508. See also Lumley
v Wagner discussed in paras 4 2 1 2 above & 4 4 below.
208
Collins et al Labour Law 839.
209
Johnson v Unisys Ltd [2003] 1 AC 518 para [78], per Lord Millet; Lord Steyn states the
proportion to be “only about 3%” (para [23]).
210
Johnson v Unisys Ltd [2003] 1 AC 518 para [23].
211
Collins et al Labour Law 844; Freedland The Personal Employment Contract (2003) 352-
354; Malloch v Aberdeen Corporation [1971] 1 WLR 1578 1586. See also Burrows
205
We now turn to service contracts that do not amount to employment contracts. As

indicated above, English law does not deal with the enforceability of employment
contracts and other contracts for service separately. However, some authors have
employed such a distinction. Jones and Goodhart, for example, note that some non-
employment contracts are specifically enforceable and others are not. They cite the
following examples which illustrate the distinction. The first is that of the author who
enters into an agreement with a publisher to write a book. It is held that courts will not
order specific performance of such an obligation,212 but it is said that courts will order
specific performance of a contract to assign a publisher the copyright of a work not yet
written.213 Similarly, specific performance can be ordered of a contract to publish a book
which has been completed.214 Thus, before its completion, the court will not grant
specific performance against an author to complete the book or article, but will do so
upon its completion. Even though the examples given by the authors are not personal
service contracts sensu stricto and it may be said that an author can be ordered to hand
over the completed work to the publisher because this is rather a contract to deliver the
final product of the author’s labour,215 it remains a personal service contract under the
broad definition adopted at the outset.
It should be noted that in recent years it has been said that the general principle that
contracts should not be enforced if this were to restrain another’s personal freedom is
less persuasive than it once was.216 And there is “some evidence”217 that indicate that
English courts are becoming more willing to grant specific performance of contracts of
personal service outside the employment context – as shown by the comment of
212
213
Jones & Goodhart Specific Performance 169, citing (n 3) Erskine Macdonald Ltd v Eyles
[1921] 1 Ch 631, as authority.
214
Citing Barrow v Chappel & Co Ltd [1976] RPC 355.
215
Cf for Dutch law: text to n 300 para 4 6 below.
216
217
171.
206
Megarry J, reviewing in 1971 the status of the principle against specific enforcement of
contracts for personal service in CH Giles & Co Ltd v Morris:218
“One day, perhaps, the courts will look again at the so-called rule that contracts for personal
services or involving the continuous performance of services will not be specifically enforced.
Such a rule is plainly not absolute and without exception, nor do I think that it can be based
on any narrow consideration such as difficulties of constant superintendence by the court … I
do not think it should be assumed that as soon as any element of personal service or
continuous services can be discerned in a contract the court will, without more, refuse
specific performance.”
However, such statements have not been repeated since then, and modern textbooks
still contain the traditional rule. In the latest version of Treitel’s Law of Contract, for
example, contracts involving personal services are discussed under the heading:
“Contracts not specifically enforceable” under which the same familiar line appears: “It
has long been settled that equity will not, as a general rule, enforce a contract of
personal service”.219 Burrows also concedes that despite evidence that English law has
moved closer to the principle of specific performance as adopted in civil-law
jurisdictions, a plaintiff must still prove that damages is inadequate before a court will
grant specific performance of personal service contracts.220 However, Burrows’
statement requires qualification. In this respect, an important point made in Young v
Robson Rhodes,221 is worth highlighting. In this case it was held that “questions of the
adequacy of damages are irrelevant” when it comes to the issue of (non-) enforcement
of personal service contracts, because it is the policy ground of personal freedom that
justifies the refusal.222 Thus, while it is technically required to prove inadequacy of
218
[1972] 1 WLR 307 318.
219
See Peel Treitel’s Law of Contract 1110 and cases collected in n 180. See also Beale et
al Chitty on Contracts 1918 and cases collected in n 101.
220
A S Burrows “Judicial remedies” in P Birks (ed) English Private Law II (2000) 813 874
para 18.185.
221
[1999] 3 All ER 524.
222
Young v Robson Rhodes [1999] 3 All ER 524 534.
207
damages, this rule is not dependent upon damages being an adequate remedy. The
main reasons for the general rule against specific performance of personal service
contracts remains the policy considerations as discussed above. Burrows’ statement
may also create the incorrect impression that a plaintiff can convince a court to grant
specific performance of a personal service contract based on the inadequacy of
damages. Even if damages are inadequate, the remedy will not be available to enforce
such a contract, based on policy considerations such as the concern for the defendant’s
dignity and liberty. These considerations underlie the general rule against specific
performance of such contracts. Hence, there is a general prohibition of specific
enforcement of personal service contracts. The courts are not merely generally
reluctant, as in South Africa. However, as indicated by authors such as Jones and
Goodhart, there are exceptions to this general rule where English courts will consider
specifically enforcing personal service contracts, especially those that do not amount to
employment contracts / involve the continuous performance of services.
4 4 American law223
American law adopts the same point of departure as English law. As a general rule,224
and in line with the common law tradition, a contractual obligation to perform a personal
service will not be specifically enforced by US courts.225 The literature does not
223
224
As will be indicated, there are exceptions to this general rule where courts will consider
specifically enforcing personal service contracts. See eg Metropolitan Sports Facilities
Commission v Minnesota Twins Partnership 638 N.W. 2d 214, 216 (Minn. Ct. App. 2002):
“While personal-services contracts generally are not enforceable by specific performance,
they may be enforceable under genuinely extraordinary circumstances.”
225
Rutland Marble Co v Ripley (1870) 77 U.S. 339; Beverly Glen Music Inc v Warner
Communications Inc 178 Cal. App. 3d 1142 (1986), M A Foran Williston on Sales 5 ed III
(1996) 697 § 25-45; E Yorio & S Thel Contract Enforcement: Specific Performance and
Injunctions 2 ed (2012) § 15.2; Loeb 2001 Marquette Sports Law Review 287; J M Perillo
208
distinguish between different types of personal service contracts and the rules relating
to specific performance are generally discussed under the broad heading “personal
service contracts”, of which the prime example is the contract of employment.226 As
explained by official comment b (“What is personal service”) to § 367 of the American
Law Institute’s Restatement (Second) of Contracts, examples of personal services
include the professional obligations of actors, singers and athletes, as well as the
obligations of employees in traditional master-servant relationships. Notably, however,
courts and commentators have held that a service will only be considered personal if it
cannot be delegated or performed vicariously. A service must therefore be non-
delegable to be unenforceable.227 It follows that, under American law, an artist cannot
be compelled to paint a portrait.228
§ 367 of the Second Restatement states (under the heading “contracts for personal
service or supervision”):
“(1) A promise to render personal service will not be specifically enforced.
(2) A promise to render personal service exclusively for one employer will not be enforced by
an injunction against serving another if its probable result will be to compel a performance
involving personal relations the enforced continuance of which is undesirable or will be to
leave the employee without other reasonable means of making a living.”229
(ed) Corbin on Contracts 12: Restitution, Specific Performance and Election of Remedies
Interim ed (2002) § 1204; J M Perillo Calamari and Perillo on Contracts 6 ed (2009) 557.
226
See eg Perillo (ed) Corbin on Contracts § 1204; Perillo Calamari and Perillo on Contracts
557-558.
227
See Wilson v Sandstrom 317 So. 2d 732 (Fla. 1975); E A Farnsworth Contracts 3 ed
(1999) 781; Perillo (ed) Corbin on Contracts § 1204.
228
Compare text to nn 240-242 below.
229
The provisions of the Second Restatement referred to in this section are reproduced in
Addendum A 382-385. The official text and comments are also accessible via Westlaw
International.
209
According to the official comment to this paragraph (entitled “rationale of refusal of

specific performance”) the refusal is based in part upon the undesirability of compelling
the continuance of personal relationship after disputes have arisen and confidence and
loyalty have been affected and of imposing what might seem like involuntary
servitude.230 It further determines that to this extent the rule stated in subsection (1) is
an application of the more general rule under which specific performance will not be
granted if the use of compulsion is contrary to public policy (contained in § 365). The
refusal is also based upon the difficulty of enforcement inherent in passing judgment on
the quality of performance. To this extent the rule stated in subsection (1) is also an
application of the more general rule on the effect of difficulty of enforcement (contained
in § 366).
Commentators’ explanations of why specific performance is refused are in similar

vein:231
“The rule for personal service contracts is explained in part by judicial discomfort with
ordering an individual to undertake specifically described acts or enter into unwanted
associations, as evidenced by courts’ and commentators’ frequent reference to the
prohibition on involuntary servitude in the Thirteenth Amendment of the U.S. Constitution.
Courts have also observed that the enforcement of a decree of specific performance is
particularly problematic in the case of personal services, as it is often difficult for the court to
evaluate the quality of performance. Nor is it clear that such orders are effective, given that
the value of personal services often depends on the trust and loyalty, which breach and
recourse to legal remedies might have destroyed.”
These reasons are equally applicable where specific performance is sought of an

employer’s obligation to retain an employee in his service, save for the fact that
enforcement against an employer does not involve the issue of involuntary servitude
(the same reason our law enforces employment contracts against employers), but
230
See § 367, cmt a. See also Farnsworth Contracts 781.
231
G Klass Contract Law in the USA (2010) 216. See also Farnsworth Contracts 781; Perillo
Calamari and Perillo on Contracts 557-558.
210
would nevertheless involve difficulty of supervision, and the possible continuation of an

unpleasant personal relationship.232 US courts will not order an employer or an
employee to maintain the undesirable personal relationship that performance of these
contracts requires.233 Perillo, however, convincingly argues that the reasons for refusing
specific performance against an employer are questionable, because arbitration awards
ordering reinstatement have been specifically enforced, and reinstatements have also
been ordered under civil service and civil rights legislation.234 But the prevailing view in
modern American law remains that employment contracts are not specifically
enforceable by either the employee or the employer.
However, as § 367(2) reflects, courts may prevent (by way of a prohibitive order)235 a
party (the one who has to perform a service) from breaching a negative clause which
restrains him from providing services for another specified party (i.e. it may prevent him
from working for third parties).236 This means that the court in effect indirectly enforces
the contract. The purpose of such a negative injunction is not to force the breaching
party to perform, but to enforce a negative contractual term that services will not be
rendered to the aggrieved party’s competitors. According to Perillo “[t]he theory is that
the court is merely enforcing an express or implied negative covenant not to work for
competitors during the contract term”.237 However, § 367(2) of the Second Restatement
observes that such a negative injunction will not be granted “if its probable result will be
to compel a performance involving personal relations the enforced continuance of which
is undesirable or will be to leave the employee without other reasonable means of
232
Perillo Calamari and Perillo on Contracts 557-558.
233
Perillo (ed) Corbin on Contracts § 1204; Perillo Calamari and Perillo on Contracts 557-
558.
234
See Calamari and Perillo on Contracts 558 and authority cited there.
235
Or “negative injunction”, which is the term more commonly used in common-law systems.
236
See Perillo (ed) Corbin on Contracts § 1204; S Shavell “Specific performance versus
damages for breach of contract: an economic analysis” 2006 Tex LR 831 857; Perillo
Calamari and Perillo on Contracts 557.
237
Calamari and Perillo on Contracts 557.
211
making a living”.238 (These consideratoins are of course also familiar in the context of
South African law on restraint of trade agreements.) It follows that § 367(2) grants a
right of indirect enforcement by way of an injunction against working for third parties, but
then qualifies this right in certain circumstances – as illustrated in Beverly Glen Music,
Inc v Warner Communications, Inc239 discussed below.
Another example where a court will consider specifically enforcing contracts for
services, is if the contract contains aspects that make it less personal in nature.240 For
example, in Mellon v Cessna Aircraft Co241 the court awarded specific performance of a
contract to maintain an airplane, due to the fact that “Cessna service is available
throughout the country at a number of authorized Cessna service centers”. It added that
“[t]he very availability of Cessna-authorized service at multiple locations distinguishes
Cessna’s obligation under this contract from a personal services contract between, for
example, a performer with a unique style and a promoter or theatre”.242
The general rule adopted in the US is also policy-based, especially when the interests
of society are at stake. For example, in Fitzpatrick v Michael,243 the court held that even
if there is no adequate remedy at law, equity will not specifically enforce a contract for
personal services, because “the mischief likely to result from the enforced continuance
of the relationship incident to the service when it has become personally obnoxious to
one of the parties is so great that the best interests of society require that the remedy be
refused”.244 It follows that the same policy grounds or societal interests are advanced in
favour of the general (common law) rule against enforcement. According to Scott and
238
See Farnsworth Contracts 331; Perillo Calamari and Perillo on Contracts 557; Klass
Contract Law in the USA 216-217; Yorio & Thel Contract Enforcement § 16.1.
239
178 Cal. App. 3d 1142 (1986).
240
R E Scott & J S Kraus Contract Law and Theory 3 rev ed (2003) 991.
241
64 F.Supp.2d 1061 (D. Kan 1999).
242
1064. See also Scott & Kraus Contract Law and Theory 991.
243
177 Md. 248, 9 A.2d 639 (1939).
244
641 per Offutt J. See also Farnsworth Contracts 781.
212
Kraus,245 these include that compelled performance is likely to be unsatisfactory since

the compelled party is less likely to perform to the best of his abilities, or may perhaps
even intentionally deliver the worst service possible. They also specifically rely on the
Thirteenth Amendment argument,246 and state that such enforcement might lead to
claims of constitutionally-prohibited forced labour.247
A good example of the US courts’ strict approach to enforcement of contracts for

personal services is Beverly Glen Music Inc v Warner Communications Inc.248 Here,
Anita Baker, a singer, breached her contract with the plaintiffs by signing with their
competitors, the defendants. The plaintiffs first claimed specific performance of the
contract, which the court refused based on the Thirteenth Amendment of the US
Constitution. Then they claimed an injunction prohibiting her from working for their
competitor, which the court also refused based on the absence of a negative term in
their contract. Finally, they claimed an injunction preventing the defendant from hiring
her, but the court also refused this claim stating that this will still be tantamount to
involuntary servitude as it would deny her the opportunity to earn money elsewhere and
pressure her to honor her contract with them.249 It is clear from this decision that US
courts are even stricter in enforcing the principle against specific performance of
personal service contracts than English courts. The facts of this case clearly correspond
with those of Lumley v Wagner.250 It will be recalled that in the latter case, the Chancery
Court was willing to indirectly enforce Wagner’s contract by granting an injunction to
245
Contract Law and Theory 990.
246
Section 1 of the Thirteenth Amendment to the US Constitution reads: “Neither slavery nor
involuntary servitude, except as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any place subject to their
jurisdiction.”
247
See also Perillo Calamari and Perillo on Contracts 557.
248
178 Cal. App. 3d 1142 (1986). See Scott & Kraus Contract Law and Theory 990.
249
Scott & Kraus Contract Law and Theory 990-991.
250
1852 1 De GM & G 604.
213
refrain “from the commission of an act which she has bound herself not to do”.251 The
court thus specifically enforced a negative clause even if Wagner was thereby in effect
forced to fulfil her contract to sing at Her Majesty’s Theatre.252 However, this case can
be distinguished from the US case discussed above,253 on the ground that the contract
between the parties in Lumley contained an express term which prevented Wagner from
singing at another theatre. Such a negative clause was absent in the Warner case. It is
of particular significance that the Chancery Court in Lumley still held that Wagner could
indirectly be “forced” to sing, while the US court was not prepared to order the artist to
sing; the US court specifically emphasised that
“Whether the plaintiff proceeds against Ms Baker directly or against those who might employ
her, the intent is the same; to deprive Ms Baker of her livelihood and thereby pressure her to
return to plaintiff’s employ. Plaintiff contends that this is not an action against Ms. Baker, but
merely an equitable claim against Warner to deprive it of the wrongful benefits it gained when
it ‘stole’ Ms. Baker away. Thus, plaintiff contends, the equities lie not between the plaintiff
and Ms. Baker, but between plaintiff and the predatory Warner Communications company.
Yet if Warner’s behaviour has actually been predatory, plaintiff has an adequate remedy by
way of damages. An injunction adds nothing to plaintiff’s recovery from Warner except to
coerce Ms. Baker to honor her contract. Denying someone his livelihood is a harsh remedy
… To expand this remedy so that it could be used in virtually all breaches of a personal
service contract is to ignore over 100 years of common law on this issue.”254
251
See text to nn 112 ff para 4 2 1 2 above. In this case the parties included the following
term in their agreement: “Mademoiselle Wagner engages herself not to use her talents at
any other theatre, nor in any concert or reunion, public or private, without the written
authorisation of Mr Lumley.”
252
1852 1 De GM & G 604 619; Jones & Goodhart Specific Performance 177 ff; B H Bix
Contract Law: Rules, Theory, and Context (2012) 107; para 4 2 1 2 above.
253
Beverly Glen Music Inc v Warner Communications Inc 178 Cal. App. 3d 1142 (1986);
Scott & Kraus Contract Law and Theory 990-991.
254
Beverly Glen Music Inc v Warner Communications Inc 178 Cal. App. 3d 1142, 1145
(1986).
214
To summarise, American courts justify their refusal to grant specific performance with
regard to personal service contracts on the following grounds: difficulty of enforcement
of such an order, public policy considerations, such as concerns for individual
autonomy, and the unwillingness to force parties into an unwanted personal
association.255 Thus, in order to qualify as an unenforceable personal service contract,
the breaching party’s performance must be non-delegable and the order must be
problematic because of difficulty of enforcement, public policy considerations or the
personal nature of the performance. The fact that an order of specific performance is
thought to interfere unduly with the personal liberty of the employee constitutes the main
reason why specific performance is not available against an employee in the US, as
evidenced by courts’ and commentators’ repeated reference to the prohibition on
involuntary servitude in the US Constitution.256 This is similarly a recurrent theme in
English law. In the following sections, the relevance of this consideration, as well as
certain others, will be investigated in the context of certain civil-law systems and model
instruments.
4 5 German law257
The enforcement of personal service contracts in German law is notoriously

controversial and uncertain. The following exposition is limited to the majority views, as
reflected in comparative materials.258
255
Perillo Calamari and Perillo on Contracts 558.
256
See eg Arthur v Oakes 63 Fed. 310, 317-318 (7th Cir. 1894) per Harlan CJ: “It would be
an invasion of one’s natural liberty to compel him to work for or to remain in the personal
service of another. One who is placed under such constraint is in a condition of involuntary
servitude,– a condition which … shall not exist within the United States …”
257
258
Markesinis et al German Law of Contract; H Beale et al Cases, Materials and Text on
Contract Law 2 ed (2010).
215
German law, in accordance with the civil-law tradition,259 distinguishes between a

contract of services (Dienstvertrag), which resembles locatio conductio operarum,260
and a contract for work (Werkvertrag), which in turn resembles locatio conductio
operis.261 The main difference between a contract of services (Dienstvertrag) and a
contract for work (Werkvertrag) is that the provider of the service does not promise that
he will ensure that a certain result comes about, but merely that he will perform the
service as promised.262 A contract for services could therefore encompass the typical
contract of employment,263 but could also cover the services provided by a medical
practitioner, who could also not promise a result (i.e. that the patient would be healed).
Whereas in South African law, the latter contract would be a locatio conductio operis,
based on other factors. For example, the practitioner is not under the control of his
patient, he uses his own equipment and generally receives payment (or issues an
account) after completion of the procedure. German law attaches no significant weight
to these factors; the central question to classification is whether a certain result is
promised. The consequences and enforceability of a contract of services (Dienstvertrag)
and a contract for work (Werkvertrag) will now be discussed in turn.
4 5 1 Contract of services (Dienstvertrag)
The point of departure in § 888(1) of the Zivilprozessordnung (German Code of Civil

Procedure or ZPO) is that if an act cannot be performed by a third party (nicht
vertretbare Handlungen), and it depends entirely on the will of the party obliged to
perform it, the court can impose a fine to induce performance, and if this is not
successful, even order imprisonment.264 Thus, where the obligation is solely dependent
259
See para 4 1 above.
260
See § 611 ff BGB.
261
See § 631 ff BGB.
262
See generally Markesinis et al German Law of Contract 528.
263
See eg Markesinis et al German Law of Contract 153.
264
See F Faust & V Wiese “Specific performance – a German perspective” in J Smits et al
(eds) Specific Performance in Contract Law: National and Other Perspectives (2008) 47
216
on the specific debtor’s will and incapable of being delegated to a third party, specific
performance will be ordered, because this is work that only the debtor can properly
perform.
However, on a procedural level, the ZPO forbids the enforcement of service

agreements.265 § 888(3) determines that § 888(1) does not apply to where someone
has to perform services (Diensten) in terms of a contract of service (Dienstvertrag).
§611 BGB (broadly) states the typical contractual duties in a service contract:
“(1) By means of a service contract, a person who promises service is obliged to perform the
services promised, and the other party is obliged to grant the agreed remuneration.
(2) Services of any type may be the subject matter of service contracts.”
Because German procedural law maintains that the personal obligation to provide
services cannot be specifically enforced,266 it follows that an employment contract will
49: “acts which can be performed by third parties and not only by the debtor … are
enforced by the court allowing the plaintiff to employ a third party to perform the act at the
debtor’s expense. Thus, the practical result is the same as if the creditor had made a
cover transaction and claimed damages form the outset … But … the court renders
judgment not for damages but for performance …” Also noting (n 7) that, according to
Treitel “Remedies for breach of contract” in IECL VII (1976) 7, “the conversion into a
pecuniary claim would cause the claim to be regarded as one for damages in the common
law context”. Compare text to n 16 para 3 2 above.
265
Thus, as explained by Faust & Wiese “Specific performance – a German perspective” in
Smits et al (eds) Specific Performance in Contract Law: National and Other Perspectives
49: “courts will render judgment for specific performance because, under German
substantive law [§ 241(1) BGB], the employee is under an obligation to work … However,
in order to protect the personal freedom of the [employee], procedural law forbids the
enforcement of these judgments”.
266
See S Shavell “Specific performance versus damages for breach of contract: an economic
analysis” (2006) 84 Tex LR 831 862; Faust & Wiese “Specific performance – a German
perspective” in Smits et al (eds) Specific Performance in Contract Law: National and Other
217
not be specifically enforced by German courts. The contract is governed by §§ 611 ff

BGB, a number of statutes,267 and the Grundgesetz (Federal Law), specifically Article
12.268
In this regard, German law further distinguishes between ordering

payment/reinstatement by the employer (which is more generally accepted) and
ordering specific performance against an employee. German courts will not award
specific performance of an obligation to perform a service, i.e. compel an employee to
perform in terms of his employment contract. The same traditional underlying reasons is
given in support of this rule, namely that it essentially amounts to forced labour, which is
contrary to the debtor’s human dignity, since there is an interference with his personal
freedom.269
However, like South African law (and unlike American law, and in effect, unlike English
law), German law generally accepts that employers’ obligations can be specifically
enforced. In Germany, a court can order an employer that wrongfully dismissed an
employee to reinstate the employee. According to the Protection Against Unfair
Dismissal Act (Kündigungsschutzgesetz or KSchG)270 if the unlawfulness of a dismissal
is confirmed by the labour court,271 the employer is required to continue the employment
Perspectives 49; Beale et al Cases, Materials and Text on Contract Law 870; M Smits
Efficient Breach and the Enforcement of Specific Performance LLM thesis Amsterdam
Law School (2014) 29.
267
A number of professional duties are set out by statute, for example, legislation governing
service-delivery by hospitals and other service providers.
268
This Article guarantees freedom to choose and exercise one’s profession and to choose
where to do so.
269
See Markesinis et al German Law of Contract 405; Faust & Wiese “Specific performance
– a German perspective” in Smits et al (eds) Specific Performance in Contract Law:
National and Other Perspectives 49.
270
1951 (amended several times since then).
271
§ 1 KSchG determines when a dismissal will be considered fair and justified.
218
and must reintegrate the employee into its operational structure (i.e. reinstate him into
his former position).272 The courts have gone so far as to order reinstatement even
where it required the employer to restructure its operations in such a way as to provide
the employee with work.273
Even though reinstatement is the prescribed remedy in the case of unlawful dismissal,
the court may also decide to terminate the employment relationship on request of either
the employer or the employee if it would be unreasonable to order the continuation of
the relationship, for example, because the mutual trust was destroyed between the
parties.274 If the court finds that the employment relationship should be dissolved, the
employer is required to pay compensation275 to the employee.276 This means that the
employee can institute legal action in the labour court to protect himself against
dismissal, but even if he wins the case, the court might dissolve the employment
relationship, and order the employer to pay compensation. Whether this legislation is
effective in preserving jobs and protecting employees against unfair dismissal is
therefore doubtful. According to a study published in 2009 “only about 9 per cent of
applications made to the courts by dismissed employees lead to their reinstatement”.277
272
§ 8 KSchG; H Küsters Social Partnership: Basic Aspects of Labour Relations in Germany
(2007) 115-118.
273
See “Radiologist case”: BAG, NJW 1956, 359 (10.11.1955), discussed in Beale et al
Cases, Materials and Text on Contract Law 870.
274
§ 9 KSchG. See also Küsters Social Partnership: Basic Aspects of Labour Relations in
Germany 117-118.
275
§ 10 KSchG determines the maximum amounts of such compensation.
276
Küsters Social Partnership: Basic Aspects of Labour Relations in Germany 117-118; M
Weiss & M Schmidt Labour Law and Industrial Relations in Germany 4 rev ed (2008) 131-
132.
277
“Protection Against Dismissal” published by Eurofound, a European Union body,
established to work in specialised areas of EU policy, available online at
<http://www.eurofound.europa.eu/emire/GERMANY/PROTECTIONAGAINSTDISMISSAL-
DE.htm>.
219
This means that unfortunately a high proportion of applications by employees normally

result in the employment relationship being cancelled in return for compensation and
not the retention of their job. Even so, the KSchG provides an express basis for the
employee’s right to enforcement of the employer’s obligations in unfair dismissal cases.
4 5 2 Contract for work (Werkvertrag)
In illustrating the distinction between a contract of services (Dienstvertrag) and a

contract for work (Werkvertrag), Markesinis refers to the stock example of the
contractual relationship between the medical practitioner and his patient. The medical
practitioner merely promises to perform a procedure but does not promise to bring
about a certain result, i.e. that the patient recovers.278 This type of contract therefore
falls under the category of service contracts. § 888(3) ZPO, however, does not preclude
the enforcement of personal service obligations under a contract for work
(Werkvertrag).279 This effectively means that obligations to do work (i.e. a promise to
achieve a particular result) are capable of being specifically enforced. § 631 BGB refers
to the typical contractual duties in a contract to produce a work:
“(1) By a contract to produce a work, a contractor is obliged to produce the promised work
and the customer is obliged to pay the agreed remuneration.
(2) The subject matter of a contract to produce a work may be either the production or
alteration of a thing or another result to be achieved by work or by a service.”
It can be derived from § 887(1) ZPO, that the reasoning behind this approach is that if
obligations can be performed vicariously, i.e. by a third party, they are capable of being
indirectly enforced. The execution of obligations to perform an act that can be
278
Markesinis et al German Law of Contract 528. Cf for French law, Zimmermann The Law of
Obligations 395 n 65: “the position is the same as in German law: the obligation de
médicale is an obligation de moyens [promise for best efforts], not an obligation de
résultat [promise for results]” (see also n 157 para 4 2 2 above).
279
Beale et al Cases, Materials and Text on Contract Law 870.
220
performed vicariously (vertretbare Handlungen) consists of allowing the creditor to have

the act done at the expense of the debtor.
However, where the obligation is solely dependent on the specific debtor’s will and
incapable of being delegated to a third party, specific performance will be ordered,
because this is work that only the debtor can properly perform.280 According to
Markesinis, activities that do not require the special skill of the debtor can, generally, be
performed vicariously. Repairs on a building work can, for example, be performed
vicariously, whereas the painting of a portrait cannot be vicariously performed.281 It
follows that, under German law, an artist can be compelled to paint a portrait. 282
This position radically departs from the position under the common law, and is
problematical for a number of reasons. First of all, forcing someone to perform against
his will similarly raises concerns for his personal freedom. A decision to order an artist
to paint may in effect give rise to the by now familiar problem of forced labour.
Furthermore, forced performance may ultimately lead to sub-standard work. Beale et al
therefore maintain that, due to these “practical difficulties and the probably
unsatisfactory nature of the end product”, specific performance of these personal
obligations would rarely be claimed in practice.283
280
Subject to § 275(1)-(3) BGB (see para 6 3 below). For example, “[i]f the obligation to
provide the service is impossible to perform, the promisee is released from that obligation
by § 275[1] BGB” (Markesinis et al German Law of Contract 530). See also text to n 77
para 2 3 1 1 above.
281
282
Beale et al Cases, Materials and Text on Contract Law 870. It is worth remembering that if
it is a Dienstvertrag under § 888(3) ZPO, the court cannot fine or imprison him to induce
performance.
283
221
4 6 Dutch law284
Dutch law, in line with the civil-law tradition,285 maintains that a creditor may claim
specific performance of any obligation. In terms of Article 3:296(1) BW, this includes
obligations to do or not to do something.286 However, specific performance will not be
ordered in case of obligations with a personal character.287 Again, the textbook example
is obligations which are of an artistic nature, such as the obligation to write a book.288 In
such a case the creditor will have to be satisfied with damages, termination or both of
these remedies.289
Dutch law does not explicitly or directly exclude specific performance of personal
service contracts; Article 3:296(1) BW makes it clear that the right to specific
performance may not be enforced if it is restricted by law, the nature of the obligation or
juridical act.290 Thus, in certain instances, the nature of the obligation can determine that
its performance cannot be enforced, as in the case of the obligation with a personal
character.291 This can be inferred from the wording of Article 3:296 and subsequent
interpretation thereof by commentators such as De Vries292 and Hartkamp.293
284
285
See generally para 2 3 1 above.
286
D Busch et al (eds) The Principles of European Contract Law and Dutch Law (2002) 348;
Asser/Hartkamp & Sieburgh 6-II De Verbintenis in het Algemeen (2009) nr 343 & nr 356.
See also Art 3:299 BW.
287
288
G de Vries “Recht op nakoming in het Belgisch en Nederlands contractenrecht” in J Smits
& S Stijns (eds) Remedies in het Belgisch en Nederlands Contractenrecht (2000) 27 46.
289
Hartkamp et al Contract Law in the Netherlands 145.
290
Asser/Hartkamp & Sieburgh 6-II (2009) nr 344. The relevant provisions of the BW are
reproduced in Addendum A 401-407.
291
De Vries “Recht op nakoming in het Belgisch en Nederlands contractenrecht” in Smits &
Stijns (eds) Remedies in het Belgisch en Nederlands Contractenrecht 27 46; D Haas De
222
The exact same justification for this (indirect) restriction as in the reviewed systems is
applicable in Dutch law; the underlying reason is that compelling the artist to paint or the
author to write, implicates their personal freedom, and that compulsion could also
compromise the quality of the work. Haas, firstly explains that
“[h]et meest principiele bezwaar tegen een veroordeling tot nakoming van een
hoogstpersoonlijke verbintenis is de inbreuk die de veroordeling maakt op de persoonlijke
vrijheid van de debiteur”.
According to him, this is because enforcement of such obligations is contrary to the

principle nemo praecise cogi ad factum.294 And therefore, a debtor cannot be compelled
to perform obligations of a personal nature, but would instead be liable for the monetary
equivalent.295
Furthermore, Haas explains that
“het tweede argument is dat een veroordeling tot nakoming contraproductief is, omdat het
dwangaspect aan de correcte uitvoering van de hoogstpersoonlijke verbintenis in de weg
staat”.296
Therefore, a plaintiff would in any event not want to claim specific performance,
because there is a risk that it might lead to sub-standard performance, because even if
Grenzen Van Het Recht Op Nakoming doctoral thesis Vrije University Amsterdam (2009)
69.
292
Stijns (eds) Remedies in het Belgisch en Nederlands Contractenrecht 27 46.
293
Hartkamp et al Contract Law in the Netherlands 145. See also Haas De Grenzen Van Het
Recht Op Nakoming 340: “According to the current law, an obligee can defend against a
claim for specific performance of a personal contractual obligation by referring to the
‘nature of the obligation’ (Article 3:296(1)).”
294
295
Haas De Grenzen Van Het Recht Op Nakoming 72.
296
76-77.
223
the defendant could be forced to perform, the quality of the resultant performance
cannot be guaranteed.297 This objection is familiar from the overview of South African
and Anglo-American law above.
De Vries, however, holds that “[z]odra het persoonsgebonden karakter aan de te

verrichten prestatie komt te ontvallen, is deze uitzonderingsbepaling dan ook
uitgewerkt”. Accordingly, he says (in the context of a familiar example) that once the “ink
has flown from the author’s pen”, nothing prevents a court to order him to deliver the
completed manuscript to the publisher.298 This prevents the scope of the exclusion from
being too wide and arbitrary. As soon as the work is completed, considerations of forced
labour are no longer relevant. It follows that, before the manuscript is completed, the
court will not grant specific performance,299 but will do so upon its completion.300
Although the Dutch and the German positions on the enforceability of personal service
contracts often correspond in practice, they differ in theory, inasmuch as a claim for
specific performance of, for example, an obligation of an employee to perform his
services (Diensten) in terms of a contract of service (Dienstvertrag), is admissible in
Dutch law,301 whereas in German law such an obligation cannot be specifically enforced
according to § 888(3), inasmuch as it is not aimed at a specific result.302 This is why
297
See Busch et al The Principles of European Contract Law and Dutch Law 355.
298
Stijns (eds) Remedies in het Belgisch en Nederlands Contractenrecht 27 46.
299
Asser/Hartkamp & Sieburgh 6-II (2009) nr 344.
300
Cf for English law: text to nn 212 ff para 4 3 above.
301
See Busch et al (eds) The Principles of European Contract Law and Dutch Law 355. See
also H Dondorp & H de Jong “Coercive measures to enforce obligations under Dutch law
(1838-1933)” in J Hallebeek & H Dondorp (eds) The Right to Specific Performance: The
Historical Development 135 148.
302
224
German law awards damages to the employer, even though the general remedy for
breach of a contract is specific performance.303
Crucially, though, in Dutch law such a claim may not be accompanied by a demand for
a dwangsom (a periodic penalty payment for non-compliance with the court order)304 or
gijzeling (imprisonment in order to force the employee to perform),305 because including
such additional measures would inevitably and ultimately lead to labour that can be
considered involuntary and therefore contrary to the constitutional value protecting each
individual’s personal freedom.306 This is why, in practice, plaintiffs instead claim either
damages or termination or both, since no other (permissible) measures exist to ensure
performance.307 It can be argued therefore that the theoretical or procedural principle
that obligations to do or not to do must be enforced is never realised in practice, and
that specific performance of personal service contracts is in effect not feasible.
Moreover, on the basis of the maxim nemo praecise cogi ad factum,308 obligations to
perform highly personal acts would also give rise to a claim for damages under Dutch
303
K Zweigert & H Kötz Introduction to Comparative Law (tr T Weir) 3 ed (1998) 472-474.
See paras 2 3 1 1 & 4 5 above.
304
See Dondorp & De Jong “Coercive measures to enforce obligations under Dutch law
(1838-1933)” in Hallebeek & Dondorp (eds) The Right to Specific Performance: The
Historical Development 135 153.
305
See J J du Plessis “Spesifieke nakoming: ‘n regshistoriese herwaardering” 1988 THRHR
349 359; M A Lambiris Orders of Specific Performance and Restitutio in Integrum in South
African Law (1989) 40; Dondorp & De Jong “Coercive measures to enforce obligations
under Dutch law (1838-1933)” in Hallebeek & Dondorp (eds) The Right to Specific
Performance: The Historical Development 135 148.
306
Art 15(1) of The Constitution of the Kingdom of the Netherlands 2008, provides that
“[o]ther than in the cases laid down by or pursuant to Act of Parliament, no one may be
deprived of his liberty”.
307
See Busch et al (eds) The Principles of European Contract Law and Dutch Law 355.
308
See text to n 14 para 2 2 1 above.
225
law.309 In practice, however, these obligations are often indirectly secured by way of
contractual penalties.310 The prospect of being liable for a penalty sum would probably
encourage an employee not to breach the contract in the first place.311 The threat of a
penalty thus serves as an incentive to specific performance.
4 7 International instruments
As previously indicated, all the instruments under review adopt the same point of
departure.312 Specific performance is recognised as the primary remedy by the PECL,
the PICC, the DCFR the CISG, and the CESL but subject to certain exceptions.313 The
present discussion focuses on the relevant principles under the PECL, PICC and the
DCFR.314
309
Art 3:296 BW. See J Oosterhuis Specific Performance: German, French and Dutch Law in
the Nineteenth Century 360.
310
J Oosterhuis Specific Performance: German, French and Dutch Law in the Nineteenth
Century 448.
311
See Asser/Hartkamp & Sieburgh 6-II (2009) nr 346; Du Plessis 1988 THRHR 359.
312
313
See L Chengwei Remedies for Non-performance 36; G de Vries “Recht op nakoming in
het Belgisch en Nederlands contractenrecht” in J Smits & S Stijns (eds) Remedies in het
Belgisch en Nederlands Contractenrecht (2000) 27 30; R Schulze (ed) Common
European Sales Law (CESL): Commentary (2012) 504 575; G Dannemann & S
and German Law (2013) 618. See also para 2 3 3 above.
314
It does not take into account the CISG or the CESL, which only applies to contracts for the
sale of goods. According to Art 3(2) of the CISG it “does not apply to contracts in which
the preponderant part of the obligations of the party who furnishes the goods consist in
the supply of labour or other services”. The CESL is similarly limited to the sale of goods
(and digital content) and does not cover service contracts sensu strictu. It only applies to
so-called related services, i.e. any service related to the goods or digital content such as
installation, maintenance, repair or processing provided by the seller of the goods or the
226
The Principles of European Contract Law (PECL) establish a clear right to specific
performance.315 According to Article 9:102(2)(c), the remedy cannot, however, be
obtained where “the performance consists in the provision of services or work of a
personal character or depends upon a personal relationship”.316 Similar limitations can
be found in each of the other instruments:317 Article 7.2.2 of the PICC provides that the
creditor may require performance, unless “(d) performance is of an exclusively personal
character” and paragraph 3(c) of DCFR III-3:302 excludes specific performance of an
obligation to perform personal services if the services are “of such personal character
that it would be unreasonable to enforce it”. Noteworthy is the difference in reference to
the type of contract: PECL refers to services or work; PICC does not refer to either; and
DCFR refers to personal services. The international instruments say nothing about
employment contracts specifically. It is therefore uncertain what types of obligations are
covered. It is not clear why these instruments do not distinguish between various types
of personal service contracts, or between contracts binding parties in an existing
relationship and those aimed at a future relationship, or why they generally do not
recognise an equitable discretion (except the DCFR).318 Furthermore, the literature and
commentaries do not seem to distinguish between different categories of services. The
present section is therefore relatively short for the simple reason that, unlike the other
systems under review, the rules on the contract of services, although equally important,
are not as developed or well-researched and documented.
supplier of the digital content under the sales contract. Since the CESL applies to “related
service contracts”, irrespective of whether a separate price was agreed for the related
service, as stated in Art 5(c) CESL, specific performance can also be required of these
services and no limitation is recognised in respect thereof (see CESL Part V: Obligations
and remedies of the parties to a related service contract).
315
316
See R Zimmermann The New German Law of Obligations: Historical and Comparative
317
See paras 2 3 3 2 & 2 3 3 4 above.
318
See text to n 351 para 4 8 3 below.
227
It has been said that DCFR III-3:302 was inspired by Europe’s concern for human rights
protection.319 Therefore, due regard must be had to the debtor’s fundamental and
human rights and freedoms.320 The official comment to this Article specifically states
that
“Paragraph (3)(c) is based partly on considerations of practicality. It might be pointless to try

to enforce specific performance of certain obligations of a highly personal character. Mainly,
however, it is based on respect for the debtor’s human rights. The debtor should not be
forced to perform if the performance consists in the provision or acceptance of services or
work which is of such a personal character or is so dependent upon a personal relationship
that enforcement would infringe the debtor’s human rights. The criterion here is not simply
the personal nature of the work or services to be provided. To exclude enforcement of
specific performance of all obligations to provide work or services of a personal character
would be far too broad. The criterion is whether enforcing performance would be
unreasonable. In deciding that question regard would have to be had to the debtor’s human
rights and fundamental freedoms, including in particular the rights to liberty and bodily
integrity.”
The official comment then states as an example, the obligation to participate in a clinical
trial involving surgical procedures would accordingly not be enforceable.321
319
C von Bar & E Clive (eds) Principles, Definitions and Model Rules of European Private
Law: Draft Common Frame of Reference (DCFR) I (2009) 8.
320
See G Low “Performance remedies and damages – a selection of issues”, unpublished
paper presented at a conference on The Relationship between European and Chinese
Contract Law hosted by the Tsinghua University in Beijing 16-17 February 2012 (copy on
file with author).
321
DCFR III-3:302, cmt G (Von Bar & Clive (eds) Principles, Definitions and Model Rules of
European Private Law: Draft Common Frame of Reference (DCFR) I 832); and see Low
“Performance remedies and damages – a selection of issues”; P Varul “Performance and
remedies for non-performance: comparative analysis of the PECL and DCFR” 2008
Juridica International 104 108.
228
Thus, paragraph 3(c) of DCFR III-3:302 specifically excludes specific performance of an

obligation to perform personal services if the services are of such a personal character
that it would be unreasonable to enforce it.322 The comment also provides that there
might be situations, for example, where a painting is nearly done, where it would be
reasonable for the creditor to enforce the obligation to complete the work.323 In
commenting on this limitation and its implications, Varul, similarly holds that “there is no
reason that many ordinary employment contracts should not be enforced, although
certain employment contracts requiring work or services of a highly personal nature
from the debtor’s point of view, or the continuance of a highly personal relationship,
might be covered by DCFR article III.–3:302, paragraph 3(c)”.324 One could argue here
that the Igesund situation325 will not be covered by the limitation, which supports the
conclusion reached earlier that there might be cases when compelling performance by
an employee may be possible after all (i.e. when the “general” approach does not
apply), due to the fact that the specific employment contract was less personal in nature
and there was no reason why its enforcement would be unreasonable. The criterion
under the DCFR is whether enforcing performance would be unreasonable. This stands
in contrast to the all-or-nothing approaches of some legal systems which, as indicated
earlier, either contain outright prohibitions on specific performance in these cases, or
allow it.
It is also noteworthy, that the expression “of a personal character” in paragraph 3(c) of
DCFR III-3:302 does not cover services or work which may be delegated.326 The same
322
323
DCFR III-3:302, cmt G (Von Bar & Clive above).
324
2008 Juridica International 104 108 (Varul incorrectly refers to paragraph 2(c)).
325
See text to nn 88 ff para 4 2 1 2 above.
326
See cmt G on DCFR III-3:302. See also Beale et al Cases, Materials and Text on Contract
Law 870; Varul 2008 Juridica International 104 108.
229
principle also applies to the PECL and PICC.327 This narrows the scope of the
exclusion.
Both the PECL and the PICC are based on the same considerations as DCFR III-3:302,
namely that ordering specific performance of personal service/work contracts would
implicate the non-performing party’s personal freedom as it is tantamount to forced
labour, and the quality of services rendered under compulsion might not be
satisfactory.328
This view is formulated by Lando and Beale (commenting on the PECL) as follows:
“[F]irstly, a judgment ordering performance of personal services or work would be a severe

interference with the non-performing party’s personal liberty; secondly, services or work
which are rendered under pressure will often not be satisfactory for the aggrieved party…”329
Schelhaas (commenting on the PICC) similarly objects that specific performance would
unduly interfere with the personal freedom of the debtor:
“The fourth exception to the right to performance occurs when performance is of an

exclusively personal character … The basic rationale for denying performance in such
situations is that it interferes with the personal freedom of the aggrieved party, and that it
gives rise to a number of practical difficulties: even if the aggrieved party were to succeed in
compelling the unwilling non-performing party, this would presumably impair the quality of the
service subsequently rendered.”330
327
Chengwei Remedies for Non-performance 64.
328
Chengwei Remedies for Non-performance 64; Haas De Grenzen Van Het Recht Op
Nakoming 70; Varul 2008 Juridica International 104 108.
329
O Lando & H Beale (eds) Principles of European Contract Law Parts I & II (2000) 397.
330
S Vogenauer Commentary on the UNIDROIT Principles of International Commercial
Contracts (PICC) (2009) 794-795 para 42. See also International Institute for the
Unification of Private Law Unidroit Principles of International Commercial Contracts (2004)
(para 2 3 3 2 n 232 above) 212: “Where a performance has an exclusively personal
230
Ultimately it can be said that even though the application of the instruments varies, they
all accept and recognise a limitation to the right to specific performance, based on the
personal nature of the performance, and reinforced by the same policy considerations.
These instruments adopt a modern and uniform approach to specific performance,
whereby they establish a clear right to specific performance, but subject to certain
exceptions. This suggests that they have some potential to serve as models for reform,
should our courts decide to engage in a modernization of the rules relating to the
remedy of specific performance. It is to this potential that we will now turn.
4 8 1 Introduction
The foregoing discussion reveals that by and large similar reasons are advanced by the
systems and instruments under consideration for refusing to award claims for specific
performance in the context of personal service contracts, even though the content of
these contracts may have differed. The underlying rationales for refusing the remedy in
these cases may also be applied to our law. These considerations are apparent when
considering South African practice, as evidenced by the analyses of the case law.
The aim of the following section is to explain the current South African position and
indicate how specific performance of service contracts is dealt with at present, identify
its shortcomings, and explore possible solutions. As indicated, the rules on specific
performance of personal service contracts provide an example where there is a large
degree of convergence between common law, civil law and international instruments
aimed at harmonisation. The comparison of these systems and their experiences could
therefore be instructive.
character, enforcement would interfere with the personal freedom of the obligor.
Moreover, enforcement of a performance often impairs its quality …”
231
4 8 2 The current approach and the need to prioritise social policy considerations
It will be recalled that earlier in this chapter it was shown that in South African law the
reasons traditionally advanced in arguing against specific performance as a remedy in
the context of personal service contracts are currently only to be regarded as factors
that have to be taken into consideration in the exercise of the courts’ discretion in
refusing specific performance.331 In National Union of Textile Workers v Stag Packings
(Pty) Ltd332 it was held that the factors discussed were practical considerations rather
than legal principles that restrict the court’s discretion to refuse specific performance.333
The court in Benson v SA Mutual Life Assurance Society334 also recognised that factors
that served as reasons to deny specific performance in the past remain relevant to the
exercise of the discretion.335 This means that these considerations are not definitive, but
guiding principles that courts should take into account in the exercise of their
discretion.336 Cases decided after this decision also followed and confirmed this
approach.337
It is clear that the refusal of specific performance was mostly based on considerations of
social policy. The fundamental objection is that courts are extremely wary to turn
contracts of service into contracts of forced labour, or even, contracts that essentially
impose a form of slavery. Thus, one general reason most often given for denying
specific performance is that it interferes with the debtor’s personal freedom, whilst due
regard must always be had to the debtor’s fundamental and human rights and
331
332
1982 (4) SA 151 (T) 157C.
333
Jordaan “Employment relations” in Southern Cross 409.
334
1986 (1) SA 776 (A).
335
785.
336
See Christie & Bradfield Christie’s The Law of Contract in South Africa 546.
337
See eg Myburgh v Daniëlskuil Munisipaliteit 1985 (3) SA 335 (NC); Consolidated Frame
Cotton Corp Ltd v President of the Industrial Court 1985 (3) SA 150 (N); Tshabalala v
Minister of Health 1987 (1) SA 513 (W).
232
freedoms. The question that arises is which of the two competing sides of party
autonomy deserves priority: that agreements willingly entered into should be fulfilled in
specie, or that no one should be compelled to act against their will?
It is well-established that one of the main concerns of our law of contract is to enforce
agreements willingly entered into. This notion finds expression in the maxim pacta sunt
servanda.338 According to Christie, this maxim “serves as a useful reminder of the
fundamental social and economic importance of the enforcement of contracts”.339 This
principle basically has two inter-related meanings: that the parties to a contract are
entitled to contract on whatever terms and in whatever manner they wish, as well as to
have their contract enforced. Our courts have elevated this principle to the highest level
of the values entrenched in the Constitution.340
338
See Zimmermann The Law of Obligations 576-582.
339
“The law of contract and the Bill of Rights” in Bill of Rights Compendium (RS 33 2013) §
3H5. See also C Lewis “The uneven journey to uncertainty in contract” 2013 THRHR 80,
esp 82: “Bargains struck by parties should in principle be observed. That is foundational to
our law of contract. There may be exceptions where public policy determines that the
bargain is unconscionable as far as any party to it is concerned. But where that is not so,
commerce requires that parties to a contract must observe it.”
340
Van der Merwe et al Contract: General Principles 280. See Barkhuizen v Napier 2007 (5)
SA 323 (CC) para [57] per Ngcobo J: “public policy, as informed by the Constitution,
requires in general that parties should comply with contractual obligations that have been
freely and voluntarily undertaken. This consideration is expressed in the maxim pacta sunt
servanda, which, as the Supreme Court of Appeal has repeatedly noted, gives effect to
the central constitutional values of freedom and dignity. Self-autonomy, or the ability to
regulate one’s own affairs, even to one’s own detriment, is the very essence of freedom
and a vital part of dignity. The extent to which the contract was freely and voluntarily
concluded is clearly a vital factor as it will determine the weight that should be afforded to
the values of freedom and dignity. The other consideration is that all persons have a right
to seek judicial redress. These considerations express the constitutional values that must
now inform all laws, including the common-law principles of contract.”
233
Cameron JA made the following important statement in Brisley v Drotsky341 regarding

the place of this right to enforcement of a contract in our constitutional context:
“[T]he Constitution’s values of dignity and equality and freedom require that the courts
approach their task of striking down contracts or declining to enforce them with perceptive
restraint. One of the reasons is that contractual autonomy is part of freedom. Shorn of its
obscene excesses, contractual autonomy informs also the constitutional value of dignity …
The Constitution requires that its values be employed to achieve a careful balance between
the unacceptable excesses of contractual ‘freedom’, and securing a framework within which
the ability to contract enhances rather than diminishes our self-respect and dignity.”342
Hawthorne343 also provides some guidance in the weighing up of these competing

interests:
“The present principle of pacta sunt servanda should be interpreted to conflict as little as
possible with fundamental rights such as equality or freedom from servitude or forced labour
… These implications do not, however, in my opinion mean that where the effect of an
application of a rule or principle amounts to a limitation of fundamental rights as between
private individuals, the protection of fundamental rights will necessarily take precedence over
subjective rights of performance validly acquired.”
In its finding, and as indicated above, the Full Bench in Santos344 relied on the
constitutional value of contractual autonomy, as favouring specific performance as the
341
2002 (4) SA 1 (SCA). See also Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) 37-
38, and R H Christie “The law of contract and the Bill of Rights” in Bill of Rights
Compendium (RS 33 2013) § 3H6.
342
2002 (4) SA 1 (SCA) paras [94]-[95] (own emphasis added).
343
L Hawthorne “The principle of equality in the law of contract” 1995 THRHR 157. See also
Christie “The law of contract and the Bill of Rights” in Bill of Rights Compendium (RS 33
2013) § 3H6.
344
2003 (5) SA 73 (C).
234
primary remedy for breach.345 Contractual autonomy does indeed provide a general
justification for preferring specific performance as a remedy in case of breach, because
the parties chose to bind themselves to perform and should therefore be held to their
promises. However, our law’s commitment to the protection of an innocent party’s
interest in the performance of the contract naturally cannot be absolute, and according
to Cockrell:346
“There would be no contradiction involved in affirming the principle of pacta sunt servanda at
the level of the ascription of contractual responsibility, and still maintaining that for policy
reasons the law should restrict the availability of specific performance as a remedy in favour
of an award of damages. For example, it might be argued that for reasons of ‘justice’ specific
performance should be refused where such an award would be unduly intrusive and
oppressive.”
Therefore it is suggested here that instead of upholding the sanctity of contracts, courts
should restrict the availability of specific performance where performance is of such a
personal nature that it would be unreasonable to enforce it, for instance, due to
infringement of the debtor’s right to liberty and dignity, since there are less invasive
methods of protecting the creditor’s expectation interest in this instance. Either
damages or termination or both will prove to be better remedies.
4 8 3 The proposal for reform: unreasonable enforcement of personal services

as exceptional category
The analysis thus far has revealed that even though our courts “have studiously
refrained from unpacking legal principles and engaging in a process of substantive
345
For which the court also relied (at 86F-87C) on Brisley v Drotsky 2002 (4) SA 1 (SCA).
See also Naudé 2003 SALJ 277.
346
A Cockrell “Breach of contract” in R Zimmermann & D Visser Southern Cross: Civil Law
and Common Law in South Africa (1996) 303 331.
235
reasoning” regarding the considerations relevant to the exercise of its discretion,347 and
display a concern “to avoid the stultification of the judicial discretion by the development
of rules”,348 they “normally” refuse specific performance where the contract sought to be
enforced is of a very personal nature. As recently as 2008, it was decided in Nationwide
Airlines that “[w]here it concerns a contract of employment … a court will in the exercise
of its discretion not normally grant specific performance”.349 This prompts considering
whether it may be desirable to recognise a more general or “concrete” limitation to the
principle of specific performance. Under such an approach the point of departure would
remain the same: the remedy would still be available “as of right” or “in principle”,
however, this right to specific performance would not be absolute, but subject to certain
exceptions.
According to most authorities, there are two recognised exceptions where the discretion
is actually illusory or absent, namely impossibility of performance and the debtor’s
insolvency.350 It is proposed here that this list of exceptions be expanded to
accommodate the reality that in the context of personal service contracts, the judicial
discretion is generally exercised to refuse specific performance. This can be ascribed to
important policy considerations. In the context of service contracts, the notion that
specific performance is the norm and refusal the exception is therefore often an illusion.
347
333. This quotation is taken from Lubbe “Contractual derogation and the discretion to
refuse an order for specific performance in South African Law” in Smits et al (eds) Specific
348
To quote Lubbe “Contractual derogation and the discretion to refuse an order for specific
349
Nationwide Airlines (Pty) Ltd v Roediger 2008 (1) SA 293 (W) para [17]. See also Troskie
v Van der Walt 1994 (3) SA 545 (O) 552.
350
See Ward v Barrett NO 1963 (2) SA 546 (A) 552-553; Rampathy v Krumm 1978 (4) SA
935 (D) 941; D J Joubert General Principles of the Law of Contract (1987) 224; Lubbe &
Murray Contract 542; and see para 7 2 2 below.
236
However, we are not dealing with an exception which is identical to the impossibility and
insolvency cases, for it cannot be said that specific performance of service contracts
invariably has to be refused: this is apparent from the judicial enforcement of
employment contracts against employers, and the hybrid Igesund-type contract cases.
South African law therefore does not have to follow the broad approach of some
instruments which provide that all personal service contracts are unenforceable. The
test proposed here is that there should be a more narrow rule, which sets out a third
exception relating to services, and does so in a more nuanced manner. Although it is
admitted that the following test is abstract, it is proposed that such a rule could be that
specific performance should be refused where performance is of such a personal
character that it would be unreasonable to enforce it. This rule emanates from the
principle that, as a matter of human dignity and personal liberty, no person should be
compelled to work or maintain a personal relationship against his will. The wording of
the rule was adopted from the DCFR, which as we have seen, adopts a broad test,
based on whether it would be unreasonable to enforce obligations to perform personal
services.351 This approach was preferred for its flexibility, which stands in contrast to the
more rigid PICC approach, in terms of which the remedy is excluded if performance is of
an exclusively personal character. The approach adopted by PECL may further be
regarded as too imprecise, because the criterion is simply the personal nature of the
work or services to be provided. The proposed approach is also comparable to the
approach adopted by German law where reinstatement is the prescribed remedy for
unfair dismissals,352 unless the court decides to terminate the employment relationship if
it would be unreasonable to order reinstatement, in which case the employer is required
to pay compensation to the employee.353
As we have seen, the courts have strictly maintained its general discretion to award
specific performance and have repeatedly rejected the development of rules that would
351
See text to n 322 para 4 7 above.
352
§ 8 KSchG (Protection Against Unfair Dismissal Act).
353
See para 4 5 above.
237
regulate the exercise of their discretion.354 However, as Lubbe contends, this strictly
maintained (open-ended) discretion hampers the development of our law.355 The
insistence that this discretion remains “unfettered”356 has resulted in a failure by our
courts to recognise that certain policy considerations should influence the availability of
this remedy more strongly than is recognised at present.357 The desirability of a rule-
based approach with a residual discretion or the removal of this specific performance
discretion will be investigated in the final chapter of the thesis.
Lubbe, in considering the desirability and tenability of a rule-based approach in our law,
provides us with a possible solution. He considers the possibility of recognising certain
Fallgruppen or case groups358 in which the remedy should be denied.359 According to
Lubbe, the adoption of this methodology might lead to the denial of the remedy in cases
354
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A); Isep Structural
Engineering (Pty) Ltd v Inland Exploration (Pty) Ltd 1981 (4) SA 1 (A); National Union of
Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T). See also Lambiris Orders
of Specific Performance and Restitutio in Integrum in South African Law 126, and the
authorities cited there.
355
See “Contractual derogation and the discretion to refuse an order for specific performance
in South African Law” in Smits et al (eds) Specific Performance in Contract Law: National
and Other Perspectives 111-112.
356
1986 (1) SA 776 (A) 783.
357
358
On Fallgruppen, see T Naudé “The function and determinants of the residual rules of
contract law” 2003 SALJ 820 838; T Naudé & G Lubbe “Exemption clauses – a rethink
occasioned by Afrox Healthcare Bpk v Strydom” 2005 SALJ 441 454, and the authority
cited there.
359
performance in South African Law” in Smits Specific Performance in Contract Law 112-
113.
238
of hardship.360 He then specifically suggests that “a rule that specific performance

generally will not be granted as against an employee might develop from the practice of
our courts in such cases”.361 Lubbe thereby confirms that practice has possibly opened
the way for such a development. More importantly, he also states that
“[t]he recognition that specific performance might in particular circumstances be appropriate

even as against an employee [eg Igesund] does not contradict this view. It merely reflects the
need to develop [our] law by means of the elaboration of sub-rules which enable the
differentiated treatment of situations which reveal factual distinctions and are governed by
different policy considerations”.362
484 The operation of the proposed exception relating to personal service

contracts
It has been argued above that there must be a recognised exception to the general
point of departure that specific performance is a right, and it was further argued that this
exception should be that performance must be refused if the service is of such a
personal nature that it would be unreasonable to enforce it. It now remains to be
considered how this exception should operate.
As indicated, this would almost invariably be the case where an employer claims
specific performance of an employment contract against an employee. The implication
of this proposed development will be that the right to specific performance will
(generally) be limited in cases of employment contracts based on the fact that the
contract sought to be enforced is so personal in character that its enforcement would be
unreasonable.363
360
113. See also para 6 5 4 below.
361
112-113.
362
113.
363
239
However, since employees’ conditions of service are governed by legislation, which

prescribe the procedure whereby employers may terminate the employment contract,
courts should be allowed to enforce employment contracts against employers by
ordering reinstatement of employees where employers have not followed the prescribed
procedure in dismissing them. In such a case it has been held that what was done
contrary to the provisions of the legislation was of no effect, and that the employee was
still in the employer’s service.364
Moving on from the employment contract to the independent contractor under the
contract for work or locatio conductio operis, we see that currently a contractor’s breach
entitles the client to claim specific performance, subject only to the qualification that the
court has a discretion to refuse it. In terms of the proposed approach, a contract for
work (locatio conductio operis) will also not be enforced if performance is of such a
personal nature that its enforcement would be unreasonable. Generally, contracts for
work are less personal in nature than employment contracts, in terms of which services
are rendered under the authority of the employer. An employment contract can
therefore be distinguished from a contract for work based on, inter alia, the absence of
the element of control.365 The contractor performs his duties independently from the
client. It is therefore also recognised in our law that a contractor may perform through
others, whereas an employee must perform the services personally. Electrical wiring or
repairs on a building can, for example, be performed vicariously. As indicated above,
US courts are also prepared to order specific performance of a contract if it contains
aspects that make the contract less personal in nature.366 A service will only be
considered personal (and unenforceable) in the US if it cannot be delegated or
performed vicariously.367 It has also been shown that the expression “of a personal
364
Rogers v Durban Corporation 1950 (1) SA 65 (D) 70 per Broome J.
365
See para 4 1 above.
366
See eg Mellon v Cessna Aircraft Co 64 F.Supp.2d 1061 (D. Kan 1999).
367
See para 4 4 above.
240
character” in DCFR III-3:302 does not cover services or work which may be delegated.
The same principle also applies to the PECL and the PICC.368
The operation of the exception in the context of the contract of work or locatio conductio
operis will depend on the nature of the work, specifically whether the work requires a
high level of ability, proficiency and skill of a personal nature or is dependent upon the
personal volition and drive of the party.
This would almost invariably be the case where specific performance is sought against
independent contractors whose obligations cannot be delegated because their skills are
not generic such as artists and singers. However, courts may even order an artist to
paint, provided it is reasonable. This would be the case, for example, where an artist’s
signature is required to complete a portrait, because the value of the painting largely
depends on the signature. In this instance it would be entirely reasonable to order
specific performance of the obligation (to sign the painting), because this would not
involve a large degree of ability, proficiency or skill. The outcome is also objectively
testable, since the court can compare the signature to other signatures by the same
artist. However, a court cannot force an artist to complete an incomplete painting
because there is a large degree of ability, proficiency and skill of a personal nature
involved and performance of such an obligation is dependent on the volition of the artist.
And due to the nature of the performance there would be constant doubt whether the
contract was being performed properly.369
368
See para 4 7 above.
369
In 1894 the Court of Appeal in Paris held in Cass civ, 14 March 1900, S 1900.1.489
(“Lady Eden’s portrait”) that a portrait of Lady Eden commissioned by her husband, Sir
William Eden, belonged to the artist, Whistler, until its delivery, and that Eden could not
sue for the execution and delivery of the portrait, since obligations to execute or not to
execute can only be settled by an award of damages. The case came before the court
after a dispute arose about the price of the portrait. Eden sent a cheque which Whistler
considered inadequate and he refused to deliver the portrait. Eden instituted legal
proceedings against Whistler whereupon he adapted the composition originally intended
241
The proposition also addresses the concerns raised in relation to German law which
permits the enforcement of non-delegable obligations. An artist, for example, can be
ordered to produce a portrait under German law, whereas under the proposed
development for our law, artists will only be ordered to perform if it would be reasonable
to do so.
Thus, even though the classification of the type of contract is problematic, it is ultimately
not indicative of enforceability if one considers the formulation of the proposed
exception: that specific performance will be refused where performance is of such a
personal character that it would be unreasonable to enforce it. To exclude specific
performance of all obligations to provide work or services of a personal character would
be far too broad – as the court said in Roberts Construction v Verhoef:370 “Strict
adherence to the rule that no contract of service may be even indirectly enforced may
give rise to grave injustice and the evasion of plain contractual duties.”371 There is a
need for differentiation according to the policy considerations that govern cases that are
different in nature.372 Therefore, the criterion is whether enforcing performance would be
unreasonable. The limitation contains a qualification or discretionary component. The
discretion would be limited to cases where courts are confronted with the enforcement
of obligations to provide work or services of a personal character.
Under this limitation, a fair degree of latitude is accorded to the courts. What is
unreasonable will largely depend on the facts of individual cases. The proposition is
for Lady Eden to another head. In the end Whistler was allowed to keep the portrait, on
the condition that the face was made unrecognisable. See further Beale et al Cases,
Materials and Text on Contract Law 868-869.
370
1952 (2) SA 300 (W) 306D.
371
Quoted with approval by Naudé 2003 SALJ 281. See also National Union of Textile
Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T); quoted with approval by Horn J in
Nationwide Airlines (Pty) Ltd v Roediger 2008 (1) SA 293 (W) para [18], and reference to
Kerr in para 7 2 2 and related text to n 41 below.
372
Cf reference to Lubbe in text to n 362 above.
242
therefore also in line with the Nationwide Airlines decision,373 in that the limitation does
not amount to a “hard-and-fast rule”374 but allows for a more nuanced approach to
refuse specific performance of certain obligations of a (highly) personal character.
However, the criterion is not simply the personal nature of the obligations, but whether
enforcing these obligations would be unreasonable.375 In deciding whether enforcement
would be unreasonable, courts may have to consider the debtor’s human rights and
fundamental freedoms,376 including in particular the rights to dignity, liberty and bodily
integrity.377
Accordingly, employment contracts requiring work or services of a highly personal and

skilled nature or the continuance of a highly personal relationship, such as a contractual
obligation to play rugby for a particular club or franchise, would not be specifically
enforced. Thus, Wright J’s line of reasoning in Troskie378 is supported here and it is
therefore suggested that a court should not order specific performance of a contractual
obligation that would essentially compel a rugby player to play for a team for which he is
unwilling to play.379 This would not only protect the interests of the player but also that of
373
See esp paras [17]-[21].
374
Para [17].
375
See esp Varul’s commentary on the DCFR 2008 Juridica International 104 108.
376
In accordance with s 39(2) of the Constitution of the Republic of South Africa, 1996, which
requires a court to promote the spirit, purport and objects of the Bill of Rights when
interpreting and developing the common law.
377
According to I M Rautenbach “Introduction to the Bill of Rights” in Bill of Rights
Compendium (RS 33 2013) § 1A61, the conduct and interests protected by s 13 overlap
with those covered by the right to freedom and security of the person (s 12), which
encompasses the right to bodily integrity (s12(2)).
378
379
Cf S Cornelius “Sanctity of contract and players’ restraints in South African sport” 2003
TSAR 727; K Mould “A critical study of the recurring problem of repudiation in the context
of professional rugby in South Africa with particular emphasis on transformative
constitutionalism” (2010) 35(1) Journal for Juridical Science 49; 2011 PELJ 207 ff.
243
the team, since the nature of the services would make it impossible to determine
whether the contract was being performed properly and the team could eventually
receive sub-standard performance by an unwilling player.
Vrystaat Cheetahs (Edms) Bpk v Mapoe380 provides a good illustration of the

consequences of ordering specific performance of such an obligation.381 The facts
largely correspond to the facts of Troskie. The respondent, a professional rugby player,
repudiated his contract with the applicant, the Free State Cheetahs, by signing an
employment contract with another provincial rugby team, the Natal Sharks. The
Cheetahs refused to release the respondent and brought an urgent application against
him, to force him to return and play for them. The High Court (per Van Zyl J, who relied
primarily on the Full Bench decision in Santos)382 found that the respondent could not
offer his services as a professional rugby player to the Sharks before his contract with
the Cheetahs ended, and ordered him to return to the Cheetahs and honour his
obligations to play professional rugby for them (thereby confirming the arbitrator’s initial
order).383 The Sharks were also prohibited from infringing on the contract between the
respondent and the Cheetahs.384
However, despite the High Court’s decision, Mapoe never returned to the Cheetahs,
who ultimately had no choice but to release him, albeit to a different team, the Golden
Lions.385 This shows that a judgment ordering an unwilling rugby player to perform in
380
Unreported judgment with case no 4587/2010 delivered on 29 Sep 2010 by the Free State
Provincial Division of the High Court per Van Zyl J (copy on file with author).
381
And possibly explains why Malherbe JP described a similar application as “ridiculous” in
382
Vrystaat Cheetahs (Edms) Bpk v Mapoe 4587/2010 (unreported) paras [106] ff.
383
Para [126].
384
Paras [119]-[121].
385
As confirmed on the news site “Sport24”: <http://www.sport24.co.za/Rugby/Lions-confirm-
Mapoe-signing-20101104>. Mapoe also ignored the arbitrator’s initial order that he had to
244
accordance with his employment contract is not of much use to his employer, because
the performance of the obligation is (to quote Wright J in Troskie) “not only dependent
upon the personal enthusiasm, willingness and drive of the player concerned, but there
is also a great deal of ability, proficiency and skill of a personal nature involved in the
services in question which will be dependent upon the specific qualities of the player
concerned as well as on his relationship with the club for which he plays rugby”.386
Unfortunately, it appears that in Vrystaat Cheetahs, the Santos decision was read out of
context. Van Zyl J was correct in finding that a professional rugby player is a unique
employee, like the coach in Santos, but incorrect in finding that despite the skilled and
highly personal nature of the particular service, specific performance was warranted.
She overlooked the fact that there was a fundamental difference between Igesund and
Mapoe even though both were unique employees. A rugby player (irrespective of his
classification as either amateur or professional),387 “... is under the constant control of
his employer, and continually has close personal contact with his employers in the
performance of his duties”.388 Had she fully acknowledged the significance of the nature
of the performance, instead of focusing on the fact that Mapoe was a professional and
not an amateur rugby player, she might have realised that specific performance was still
an unsuitable remedy as confirmed in Troskie.389
The Santos judgment can be explained on this basis (albeit with opposite effects). As
indicated, the contract between the club and its head coach, whilst in essence a
contract of employment, possessed certain sui generis characteristics which eventually
honour his contract with the Cheetahs until it lapsed and continued practising with the
Sharks (Vrystaat Cheetahs (Edms) Bpk v Mapoe para [12]).
386
387
Van Zyl J held (para [104]) that Troskie “baie duidelik onderskeibaar van die onderhawige
geval is, deurdat daardie uitspraak verleen is in ‘n situasie en era van amateurrugby,
terwyl die onderhawige geval baie duidelik slaan op professionele rugby teen vergoeding”.
388
389
Cf Mould 2010 Journal for Juridical Science 57 ff; 2011 PELJ 207 ff.
245
persuaded the court to enforce the contract. It was reasonable to enforce this particular
contract of employment because there were elements present which made the contract
less personal in nature.390
As indicated, the current South African definition of a contract of employment possesses

an element of authority of the employer over the employee. Our courts regard the
element of control by the employer over the employee as one of the main
characteristics, if not the key characteristic, of the employment relationship,391 but the
club in this instance had no right to dictate to the coach how he should exercise his
duties. Igesund was given complete freedom in the exercise of his duties. Unlike a usual
employee, Igesund was not at the beck and call of his employer to render his services
at the latter’s request. He stood in a more independent position vis-à-vis the club.
However, unlike an independent contractor, Igesund was still obliged to perform his
duties himself (though he probably could avail himself of the services of assistants to
assist him in the performance thereof). Even though the agreement displayed elements
of a contract of work (locatio conductio operis), it did not make Igesund an independent
contractor, but due to these characteristics, the contract was enforceable. Irrespective
of Igesund’s classification or the type of contract between the club and its coach,
specific performance was reasonable and justifiable because there were aspects of the
contract that made the contract so unusual that the general rule could not apply. At this
juncture, it is worth remembering that US courts will consider specifically enforcing
contracts for services, is if the contract contains aspects that make the contract less
personal in nature. As mentioned earlier, in Mellon v Cessna Aircraft Co392 the appeal
court awarded specific performance of a contract to maintain an airplane, due to the fact
that it was a generic type of service, rather than a unique type of service.
390
See text to n 42 para 7 2 2 below.
391
See eg cases cited in n 16 para 4 1 above and J Grogan Workplace Law 10 ed (2009) 42-
43.
392
64 F.Supp.2d 1061 (D. Kan 1999).
246
It can therefore be inferred from the above discussion that the nature of the
performance, rather than the specific type of contract (locatio conductio
operis/operarum), is crucial in applying the rule.393 An order for specific performance
would not be granted where, due to the highly personal and skilled nature of the
performance, there would be constant doubt whether the contract was being performed
properly. For this reason, specific performance should not be awarded against singers,
writers, artists or professionals who participate in team sports. Depending on the facts
of the case, these persons may be either employees or independent contractors.
Hence, the limitation cuts through the locatio conductio operarum/operis distinction.
Some of these contracts might involve such a close personal relationship and highly
skilled work or services that the exception would apply. Others might not. But no one,
be it a contractor or employee, should be forced to perform if the performance consists
in the provision of work or services that is of a highly personal or skilled character.
Under the proposed development, a court will still be able to prevent a party in breach
from providing the same or similar services to the aggrieved party’s competitors, and
thereby grant specific performance in an indirect manner (i.e. enforce restraints of
trade). This is in complete accordance with our current law394 and with other legal
systems – even English law (which departs from the principle of damages), considers
an injunction the appropriate remedy for preventing the breach of a negative contractual
duty.395 As we have seen, English courts cannot force an employee to perform
according to their contract, but they can issue an injunction barring the employee from
performing an act which he has expressly bound himself not to do. Article 7.2.2(d) of the
PICC similarly allows a party to seek an injunction under the applicable national law to
prevent the non-performing party from performing for a competitor.396 The same
393
In Dutch law the nature of the obligation can also determine that it cannot be enforced (as
in the case of the obligation with a highly personal character) – see para 4 6 above.
394
395
See para 4 3 above.
396
See para 4 7 above.
247
principle also applies in the US,397 where (as in our law) restraints of trade are
considered valid and enforceable except if it would be unreasonable to enforce the
restraint clause in the circumstances of the case.
According to Burrows, the English position on indirect enforcement can “presumably” be

explained on the ground that “the law considers it less of an infringement of individual
liberty to be ordered not to do something than to be ordered to do something”.398 The
argument basically is that to force someone to perform a service is an impermissible
imposition on their individual autonomy, whereas if you restrain them from working for
someone else you are not forcing them to positively work for the person they contracted
with. The purpose of such a negative or prohibitive order is not to force the breaching
party to perform, but to enforce a contractual term in terms of which he expressly
undertook not to compete or perform his services elsewhere.399 Indirect enforcement of
such undertakings by way of an interdict is therefore regarded as one of the instances
where specific performance should be awarded for the rule would not apply, since the
aim is to prevent rather than to compel performance.
In essence the proposed limitation resembles our law on restraint of trade clauses: such
a clause is considered enforceable to the extent that its enforcement is not
397
See para 4 4 above.
398
Burrows “Judicial remedies” in English Private Law 875. His view is supported and
considered one of the reasons why it will depend on the circumstances whether the
remedy will not be awarded of a personal service contract.
399
In Doherty v Allman (1878) 3 App Cas 709 720, Lord Cairns said: “if parties, for valuable
consideration, with their eyes open, contract that a particular thing shall not be done, all
that a court of equity has to do is to say, by way of injunction, that which the parties have
already said by way of covenant, that the thing shall not be done; and in such case the
injunction does nothing more than give the sanction the process of the Court to which
already is the contract between the parties.” See also Stevens 1921 Cornell Law Quarterly
235.
248
unreasonable in the circumstances of the particular case.400 Thus, our law recognises a
similar defence with regard to these clauses, which have a well-established test of
unreasonableness.401 By the same token, a personal service contract should not be
enforced if it would be unreasonable with reference to the nature of the performance
concerned. The onus to raise such an impediment to an order for specific performance
(i.e. that the contract sought to be enforced is of such a personal character that it would
be unreasonable to enforce it) rests on the defaulting party who wants to avert specific
enforcement of the personal service contract.402
4 8 5 Conclusion
This chapter set out to investigate the possibility of adopting a more concrete approach
to enforcing personal service contracts by way of an order of specific performance.
Drawing on certain international instruments and legal systems as a frame of reference,
it was shown that such a development would be valuable due to the unpredictability and
incoherence of our current approach.403
It is clear from the analyses of the relevant case law that the open-ended discretion to
award or refuse specific performance is misleading. One of the more significant findings
to emerge from this study is that our courts generally refuse specific performance in
400
See text to n 149 para 4 2 1 2 above.
401
See Hutchison & Pretorius (eds) The Law of Contract in South Africa 197; Bredenkamp v
Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA) 482.
402
The same procedural principle applies to raising other possible impediments to specific
performance (i.e. impossibility or insolvency): Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd
1982 (1) SA 398 (A) 442B-443G; Klimax Manufacturing Ltd v Van Rensburg 2005 (4) SA
445 (O) para [12]; Vrystaat Cheetahs (Edms) Bpk v Mapoe (unreported) para [115]). See
also Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA) para [49] in
the context of restraints. See further para 7 2 2 below.
403
See Cockrell “Breach of contract” in Zimmermann & Visser Southern Cross 330; Eiselen
“Specific performance and special damages” in MacQueen & Zimmermann (eds)
European Contract Law: Scots and South African Perspectives 252.
249
cases of breach of contract where the defaulting party is required to render performance
of a very personal nature. The implication of this finding is that the law could be
discredited if this reality is not reflected in legal doctrine.404 A definite need therefore
exists for recognising a concrete exception to the right to specific performance where
the contract sought to be enforced is of such a personal character that it would be
unreasonable to enforce it. This is essential to ensure the sustainability and coherence
of our law on the availability of specific performance.
404
This finding is consistent with Lubbe’s views (see “Contractual derogation and the
discretion to refuse an order for specific performance” in Glover (ed) Essays in Honour of
AJ Kerr 94; “Contractual derogation and the discretion to refuse an order for specific
Law: National and Other Perspectives 111). See also para 7 3 below.
250
CHAPTER 5: SUPERVISION OF PERFORMANCE
5 1 Introduction
South African courts have been reluctant to order specific performance in cases where
the task of supervising the performance could be unduly burdensome. This is especially
apparent where specific performance was sought of obligations arising from
agreements of mandate, contracts for services, lease agreements, and building
contracts.1 Specific obligations our courts have refused to enforce on this basis include
obligations to incorporate a company,2 to do repairs to a house,3 to appoint someone as
director,4 or to apologise to someone.5 The lower courts in any event have no
jurisdiction6 in matters where an order of specific performance (ad factum
praestandum)7 without an alternative of damages8 is sought.9
1
P Gross “Specific performance of contracts in South Africa” 1934 (51) SALJ 347 365 ff; G
F Lubbe & C M Murray Farlam & Hathaway Contract: Cases, Materials and Commentary
3 ed (1988) 545-547; J C de Wet & A H van Wyk Die Suid-Afrikaanse Kontraktereg en
Handelsreg I 5 ed (1992) 210; R H Christie & G B Bradfield Christie’s The Law of Contract
in South Africa 6 ed (2011) 551-552; S van der Merwe et al Contract: General Principles 4
ed (2012) 332.
2
Lucerne v Asbestos Co Ltd v Becker 1928 WLD 311.
3
Mink v Vryheid Coal & Iron Co (1912) 33 NPD 182.
4
Dey v Goldfields Building Finance & Trust Corp 1927 WLD 180.
5
Keyter v Terblanche 1935 EDL 186 (the undertaking to apologise was contained in a
settlement agreement).
6
Section 46(2)(c) Magistrates’ Courts Act 32 of 1944; s 16(d) Small Claims Courts Act 61 of
1984.
7
The preferred view in our law is that orders ad pecuniam solvendam are not, for the
purposes of these provisions, orders for specific performance (Otto v Basson 1994 (2) SA
744 (C) confirming Tuckers Land & Development Corporation (Edms) Bpk v Van Zyl 1977
(3) SA 1041 (T)). See further I M Bredenkamp The Small Claims Court (1986) 21; D J
Joubert General Principles of the Law of Contract (1987) 222; Christie & Bradfield
251
This view that specific performance will not be ordered where it will be difficult for a
court to enforce the order has been supported by local academic writers10 and the
courts.11 Some favour denying specific performance on this ground without really
providing specific and sufficient justifications and merely accept it as self-evident,
whereas others have criticised it, for example, in the context of lease.12
One example of such an obligation, which is often referred to in this context, is a

lessor’s obligation to afford the lessee commodus usus13 of the leased property during
Christie’s The Law of Contract in South Africa 544; D E van Loggerenberg Jones &
Buckle: The Civil Practice of the Magistrates’ Courts in South Africa I 10 ed (2012) 305.
8
Van der Merwe et al Contract: General Principles 333: “Except for orders ad pecuniam
solvendam specific performance in principle cannot be claimed in the magistrate’s court.”
9
See Carpet Contract (Pty) Ltd v Grobler 1975 (2) SA 436 (T); Otto v Basson 1994 (2) SA
744 (C); Malkiewicz v Van Niekerk and Fourouclas Investments CC [2008] 1 All SA 57 (T).
The prohibition provisions do, however, contain certain exceptions (Van der Merwe et al
Contract: General Principles 333 n 47).
10
See especially J W Wessels The Law of Contract in South Africa 2 ed (1951) vol 2 § 3124:
“Where the court cannot ensure performance, it will not decree specific performance. A
contract which requires constant supervision, or where the duties to be performed are
continuous, is not such a contract as the court will order to be specifically performed …
Thus, the court will not decree specific performance of a building contract or of a contract
to do work and labour. If the court did decree specific performance, it would have to
punish for contempt of court if the work were not properly performed, and this would
involve direct superintendence of the work by an officer of the court, a proceeding for
which manifestly a court of law is not suited.”
11
See eg Barker v Beckett & Co Ltd 1911 TPD 151 164; Lucerne Asbestos Co Ltd v Becker
1928 WLD 311 331; Marais v Cloete 1945 EDL 238 242; Nisenbaum and Nisenbaum v
Express Buildings (Pty) Ltd 1953 (1) SA 246 (W) 249; Carpet Contracts (Pty) Ltd v Grobler
1975 (2) SA 436 (T) 440-441; Lottering v Lombaard 1971 (3) SA 270 (T) 272.
12
See G Bradfield & K Lehmann Principles of the Law of Sale and Lease 3 ed (2013) 146.
13
Holmes JA defines commodus usus as “the snugness and benefit of his occupation” in
The Treasure Chest v Tambuti Enterprises (Pty) Ltd 1975 (2) SA 738 (A) 748.
252
the full term of the lease. In our law there is a positive contractual obligation on a lessor
to deliver and maintain the leased premises in a proper condition.14 In accordance with
every contracting party’s general right to specific performance, our courts have ordered
lessors to carry out their duty to deliver the property to the lessee.15 However, our courts
have been reluctant to order specific performance of the lessor’s duty to maintain the
leased property in a proper16 condition.17 In Nisenbaum and Nisenbaum v Express
Buildings (Pty) Ltd18 De Villiers J described the position as follows:
“[W]here the tenant complains of disrepair or failure to repair, or failure to add or build
something on to a building, by the landlord, the Court will not order specific performance. It is
clear that where specific performance is claimed, the matter is in the discretion of the Court
… The judgment [in Marais v Cloete 1945 EDL 238] seems to indicate, as I have stated, that
as a general rule in disputes between landlord and tenant as to repair of buildings, or neglect
to repair or failure to carry out some structural alterations, the Court will not order specific
performance because it is a difficult matter for the Court to supervise and see that its order is
carried out, and as the question whether there has been specific performance of the Court’s
order was difficult to determine, it would be difficult to enforce it.”19
14
Bradfield & Lehmann Principles of the Law of Sale and Lease 144.
15
See eg Woods v Walters 1921 AD 303; Tshandu v City Council Johannesburg 1947 (1)
SA 494 (W); Heynes Mathew Ltd v Gibson NO 1950 (1) SA 13 (C).
16
The term “proper” in this context means that the premises should be reasonably fit for the
purpose for which it is leased. The “purpose” is then determined by considering the use to
which the premises are to be put by the lessee. See A J Kerr The Law of Sale and Lease
3 ed (2004) 302-303.
17
See eg Barker v Beckett & Co Ltd 1911 TPD 151; Chauncey v Blood’s Estate 1911 WLD
213; Marais v Cloete 1945 EDL 238; Hunter v Cumnor Investments 1952 (1) SA 735 (C);
Nisenbaum and Nisenbaum v Express Buildings (Pty) Ltd 1953 (1) SA 246 (W); Gijzen v
Verrinder 1965 (1) SA 806 (D).
18
1953 (1) SA 246 (W).
19
249G-H. Note, however, that the court subsequently pointed out that the general rule
against specific performance in this context is not an absolute one (249H-250A).
253
Thus, the main basis for such reluctance was that it was difficult for the court to
supervise and see that its order was in fact carried out. The justification is that a lessee
is allowed to effect the necessary repairs himself and then to recover the costs from the
lessor or deduct it from the rental due,20 provided of course notice was given to the
lessor of the defects.21
Our courts have also been reluctant to specifically enforce building contracts on the
ground that they would be unduly burdened with the task of supervising the
performance.22
Different concerns have been raised with regard to this position. First, will it be
necessary for the court itself to supervise the work?23 If the lessor (or builder for that
matter) has been ordered to effect repairs and failed to do so, the lessee may once
again approach the court for relief, and any court then has the power to deal with such a
reluctant defendant.24 Secondly, is it reasonable and fair towards the lessee that he has
20
The same procedure exists in civilian systems, and is known as specific performance by
equivalence or third party performance, which is typically claimed for generic acts resulting
from leases or building contracts (see J Oosterhuis Specific Performance in German,
French and Dutch Law in the Nineteenth Century: Specific Performance: German, French
and Dutch Law in the Nineteenth Century: Remedies in an Age of Fundamental Rights
and Industrialisation (published) doctoral thesis Vrije University Amsterdam (2011) 448).
21
Bradfield & Lehmann Principles of the Law of Sale and Lease 146; Kerr The Law of Sale
and Lease 315; Hunter v Cumnor Investments 1952 (1) SA 735 (C); Bhima v Proes Street
Properties (Pty) Ltd 1956 (1) SA 458 (T); Harlin Properties (Pty) Ltd v Los Angeles Hotel
(Pty) Ltd 1962 (3) SA 143 (A); Steynberg v Kryger 1981 (3) SA 473 (O).
22
See para 5 5 below. See also para 4 2 2 above.
23
De Wet & Van Wyk Kontraktereg en Handelsreg 210-211; W E Cooper The South African
Law of Landlord and Tenant 2 ed (1994) 89; Bradfield & Lehmann Principles of the Law of
Sale and Lease 146.
24
Bradfield & Lehmann Principles of the Law of Sale and Lease 146. See also M A Lambiris
Orders of Specific Performance and Restitutio in Integrum in South African Law (1989)
137.
254
to effect the repairs at his own cost, when the lessor is the one who is contractually
bound to maintain the leased property in a proper condition? Furthermore, what
happens where a lessee is not financially able to repair the leased property?25
These questions, which deal with fundamental problems relating to our courts’ approach
to the availability of the remedy of specific performance, will be considered and
analysed from a predominantly comparative perspective in this chapter.26 The
justification for adopting such a perspective is familiar, namely that the experiences of
other legal systems and instruments may prove to be particularly useful and instructive
by revealing shortcomings in our approach and, more importantly, by providing insights
into how these deficiencies can be addressed. The discussion will centre on the
underlying reasons given in a decision to refuse to order specific performance, based
on the fact that enforcing such an order would require constant supervision. In this
regard specific reference will be made to the key arguments raised in the leading
English case of Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd.27
Since the South African position was significantly influenced by the approach that
English courts adopted, it is especially important to examine developments in the latter
jurisdiction. The chapter therefore commences with an analysis of the English position,
followed by the American position. The influence of the Anglo-American position on our
legal system will then be discussed. The purpose is to establish whether their
justifications (as will be discussed in the following section) for denying specific
performance substantiate the refusal of an order for specific performance, and how our
courts’ approach may be improved, bearing in mind the experiences of the English
courts and their American counterparts.
Thereafter the treatment of the objection under German, Dutch and international law will
be examined. These systems and international instruments do not recognise constant
supervision as an obstacle to specific performance. However, factors such as certainty
25
See para 5 5 below.
26
See para 5 5 below.
27
[1997] 2 WLR 898.
255
and reasonableness, which form the foundation of this objection (as will be indicated
further on), emerge in the defined exceptions recognised by the civil-law systems and
the different international instruments. Although these approaches will not be discussed
as comprehensively as the common law, it does not indicate that their experiences are
less important or less relevant, since they also provide valuable insights that may assist
in evaluating and informing our law on specific performance.
5 2 English law
It has long been maintained in English case law that it is not possible to order specific
performance of an obligation which is to be performed over a period of time.28 The
classic justification for this position is that the court has no effective mechanism for
supervising performance.29 Thus, even where it is clear that, according to the traditional
consideration of adequacy, damages would not be adequate, courts further refuse
specific performance on the ground that the order would require constant supervision.30
English courts distinguish between orders to carry on an activity and orders to produce
28
See Pollard v Clayton (1855) 1 K & J 462; Blackett v Bates (1865) 1 Ch App 117;
Fothergill v Rowland (1873) LR 17 Eq 132; Powell v Duffryn Steam Coal Co v Taff Vale
Railway Co (1874) 9 Ch App 331 335 per James LJ: “Where what is required is not merely
to restrain a party from doing an act of wrong, but to obligate him to do some continuous
act involving labour and care, the Court has never found its way to do this by injunction.”
29
In plain language: “it is a recognized rule that the Court will not decree specific
performance of a contract, the execution of which would require watching over and
supervision by the Court” (G R Northcote Fry’s Specific Performance of Contracts 6 ed
(1921) 46-47 § 99). See also E Peel Treitel’s Law of Contract 13 ed (2011) 1113. Note
that this principle only applies to non-monetary obligations and not continuous obligations
to pay money, and it follows that an agreement to pay an annuity can be specifically
enforced.
30
See R J Sharpe “Specific relief for contract breach” in B J Reiter & J Swan (eds) Studies
in Contract Law (1980) 123 126; M Hogg Promises and Contract Law: Comparative
256
a particular result, and generally the former is regarded problematic.31 This distinction
and the relevance thereof will be maintained throughout this chapter.
In 1920, Pound explored the origins of the supervision objection in an article about the
progress of law and equity.32 He traced the objection to the reluctance of the English
Chancellors, during the early development of the Chancery courts’ equitable jurisdiction,
to make orders if they were not certain of their enforceability.33 They generally avoided
orders requiring performance beyond a single act, because imprisonment of the
defendant for contempt, if he proves recalcitrant, will not get the contract performed in
specie.34 And this, in turn, could threaten their authority as a court separate from the
courts of law. Hence, there developed a “prejudice for historical reasons against
affirmative decrees in cases calling for more than a simple act”.35
Essentially, this objection originated from a fear of not being able to enforce orders to
perform, which would jeopardise the Chancery Court’s reputation and dignity as a
capable functioning entity, as they were still in the process of establishing their position
31
See generally A S Burrows “Specific performance at the crossroads” 1984 Legal Studies
102 107; H G Beale et al Cases, Materials and Text on Contract Law 2 ed (2010) 877 ff; H
G Beale et al (eds) Chitty on Contracts I: General Principles 31 ed (2012) 1924 ff. This
distinction between orders to carry on an activity and orders to produce a particular result
incidentally is also to be found in civil law (see B Markesinis, H Unberath & A Johnston
The German Law of Contract: A Comparative Treatise 2 ed (2006) 153).
32
R Pound “Progress of the law, 1918-1919 equity” (1920) 33 Harv LR 420 434-437. See
also H L Oleck “Specific performance of builders’ contracts” (1952) 21 Fordham LR 156;
126 144; J M Perillo (ed) Corbin on Contracts 12: Restitution, Specific Performance and
Election of Remedies Interim ed (2002) § 1171.
33
Pound 1920 Harv LR 434.
34
126.
35
This quotation is taken from Sharpe, who in turn, relies on Pound 1920 Harv LR 435.
257
and their authority.36 However, the question arises whether a fear of risking one’s
reputation provides sufficient justification for avoiding orders requiring performance
beyond a single act or where it is said that the court cannot ensure performance,
especially when one considers that courts of equity would have been willing to do so
had they been more established. Sharpe therefore contends that “[i]n the modern age, it
is not at all obvious that the dignity of the court suffers in the unlikely event that resort
must be had to imprisonment for contemptuous refusal to comply with a positive decree.
It might well be said that a greater threat to the integrity of the judicial system is posed
by the grant of a damages award in that sanctions for noncompliance by the defendant
are much less severe”. The argument is that the court’s dignity and integrity is more
likely to be negatively affected by the fact that they make damages orders which are
less likely to be complied with, since there are less severe sanctions which will prompt
the defendant to perform (indirectly). Where the court refuses to order specific
performance the innocent party may not even be able to recover the benefit of his
bargain by means of damages. Since there is less of a threat in orders to pay a sum of
money (orders ad pecuniam solvendam),37 it is even less likely that the plaintiff will
obtain relief.
A classic modern authority on the supervision objection is Ryan v Mutual Tontine

Westminster Chambers Association.38 Here the Court of Appeal held that a provision in
a lease agreement of a residential flat providing that the lessors appoint a porter who
was to be “constantly in attendance” could not be specifically enforced, because it
36
See also Sharpe “Specific relief for contract breach” in Reiter & Swan (eds) Studies in
Contract Law 126 144, and Perillo (ed) Corbin on Contracts § 1171.
37
The order must be one ad factum praestandum (order to do or refrain from doing
something which includes specific performance) before the court will enforce it by
committal for contempt. When the order is for the payment of money (eg an order to pay
damages) it cannot be enforced by committal for contempt. See reference to Dawson n 69
below.
38
[1893] 1 Ch 116. See Sharpe “Specific relief for contract breach” in Reiter & Swan (eds)
Studies in Contract Law 144 n 72.
258
would require “constant superintendence by the court which the court has always in
such cases declined to give”.39 Specific performance has also been refused in
numerous other cases for the same reason. For example, specific performance has
been refused of obligations of a railway company to operate signals and provide engine
power,40 to cultivate a farm in a particular manner,41 to deliver goods by instalments,42
and to keep an airfield in operation.43
The relatively more recent House of Lords decision in Co-operative Insurance Society
Ltd v Argyll Stores (Holdings) Ltd,44 reinforced the principle that courts would not
generally make orders requiring a party to perform an obligation that is continuous in
nature, such as “keep-open” clauses. This decision is of particular significance as it
provides the underlying reasoning for this principle.45 Not only did Lord Hoffmann
explain why in general the common-law system does not award specific performance as
the primary remedy, he systematically and scrupulously explained the rationale behind
the English courts’ approach to orders of specific performance requiring constant
supervision by the court. This exposition contains a number of fundamental insights that
may be very useful in evaluating the South African approach to similar fact patterns.
Before embarking on an in-depth analysis of the ratio of Lord Hoffmann’s judgment, it

would be useful to provide a brief discussion of the facts of this case. The defendant
(lessee) entered into a long-term lease of 35 years with the plaintiff (lessor) for the
largest shop in a shopping centre. The defendant owned a chain of supermarkets, one
of which was located and operated on the plaintiff’s premises. However, due to fierce
39
[1893] 1 Ch 116 123.
40
Blackett v Bates (1865) 1 Ch 117.
41
Phipps v Jackson (1887) 56 LJ Ch 350.
42
Dominion Coal v Dominion Iron & Steel [1909] AC 293.
43
Dowty Boulton Paul v Wolverhampton Corporation [1971] 2 All ER 277.
44
[1997] 2 WLR 898.
45
See A Phang “Specific performance – exploring the roots of ‘settled practice’” 1998
Modern Law Review 421 422.
259
competition, the defendant decided to close down its less profitable supermarkets,
which included one located in the plaintiff’s shopping centre, and gave the plaintiff only
about a month’s notice. The lease itself had about another 19 years to run and the
defendant’s actions were therefore in breach of a provision in the agreement which
stipulated that he had “[t]o keep the demised premises open for retail trade during the
usual hours of business in the locality and the display windows properly dressed in a
suitable manner in keeping with a good class parade of shops”.46 The plaintiff attempted
to persuade the defendant to continue trading until a suitable assignee or sub-lessee
had been found, and also offered to negotiate a temporary rent concession, but the
defendant proceeded to close the supermarket as planned. The plaintiff thereafter
claimed specific performance of the provision in conjunction with damages.
In the court of first instance, Maddocks J refused to order specific performance, based
on authority that there was a “settled practice”47 that courts would not make orders
which would require a defendant to run a business.48 The judge did not merely follow
authority, but also provided reasons why he thought that specific performance would be
inappropriate. Two such reasons were justifications for the general practice. First, an
order to carry on a business, as opposed to an order to perform a “single and well
defined act”,49 was difficult to enforce by the sanction of committal, i.e. imprisonment for
contempt.50 And secondly, where a business was being run at a loss, specific relief
would be “too far reaching and beyond the scope of control which the court should seek
46
[1997] 2 WLR 898 901.
47
See eg Braddon Towers Ltd v International Stores Ltd [1987] 1 EGLR 209 213, where
Slade J said: “Whether or not this may be properly described as a rule of law, I do not
doubt that for many years practitioners have advised their clients that it is the settled and
invariable practice of this court never to grant mandatory injunctions requiring persons to
carry on business.”
48
[1997] 2 WLR 898 902.
49
902.
50
See also Burrows 1984 Legal Studies 107.
260
to impose”.51 The other reasons related to the particular case: resumption of the
business would be expensive (refitting the shop was estimated to cost over £1 million)
and although the defendant had knowingly acted in breach of the “keep open” provision,
it had done so “in the light of the settled practice of the court to award damages”.52
Finally, Maddocks J found that, while the assessment of damages might be difficult, it
was not the kind of exercise which the courts were unfamiliar with.53
After the matter was taken on appeal, the Court of Appeal54 granted specific
performance compelling the defendant to carry on their business in terms of the long-
term lease. However, the House of Lords reversed this decision, and refused to order
specific performance of the contract.55
The attention now turns to the primary underlying reasons provided in Lord Hoffmann’s
decision to refuse to order specific performance. He delivered the sole substantive
judgment with which the other Law Lords agreed. This judgment is regarded as the
leading case in all scholarly treatments of the supervision objection, as it illustrates the
balancing of factors for and against ordering specific performance in cases where the
supervision issue arises.56 No subsequent case law deals with these competing factors
so extensively.
(i) The supervision argument
According to Lord Hoffmann, the long-established practice that the court will not grant
orders compelling a party to trade, “has never, so far as [he knows], been examined by
this House and it is open to [the plaintiff] to say that it rests upon inadequate grounds or
51
[1997] 2 WLR 898 902.
52
902.
53
902.
54
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1996] Ch 286.
55
[1997] 2 WLR 898 902.
56
See eg Markesinis et al German Law of Contract 394; Beale et al Cases, Materials and
Text on Contract Law 878; Beale et al (eds) Chitty on Contracts 1924.
261
that it has been too inflexibly applied”.57 Furthermore, he pointed out that while specific
performance is traditionally regarded as an exceptional remedy under English law, the
opposite was true with respect to legal systems based on civil law, such as France,
Germany and Scotland, where the plaintiff is prima facie entitled to specific
performance. In this regard, he made the following insightful observation, that
“[i]n practice, however, there is less difference between common law and civilian systems
than these general statements might lead one to suppose. The principles upon which
English judges exercise the discretion to grant specific performance are reasonably well
settled and depend upon a number of considerations, mostly of a practical nature, which
are of very general application. I have made no investigation of civilian systems, but a
priori I would expect that judges [in these systems] take much the same matters into
account in deciding whether specific performance would be inappropriate in a particular
case”.58
Turning to the main reasons advanced in support of the settled practice, Lord Hoffmann
began by pointing out that this principle was “not entirely dependent upon damages
being an adequate remedy”.59 He concluded that “the reasons which underlie the
established practice may justify a refusal of specific performance even when damages
are not an adequate remedy”. Instead, he focused on another reason more frequently
57
[1997] 2 WLR 898 902.
58
[1997] 2 WLR 898 903.
59
Citing (at 903) Sir John Pennycuick VC in Dowty Boulton Paul Ltd v Wolverhampton
Corporation [1971] 1 WLR 204, who refused to order a corporation to maintain an airfield
as a going concern because (at 211) “[i]t is very well established that the court will not
order specific performance of an obligation to carry on a business”. He added (at 212): “It
is unnecessary in the circumstances to discuss whether damages would be an adequate
remedy to the company.”
262
used in support of this practice, namely that it would require constant supervision by the
court.60
Lord Hoffmann first clarified what is meant by “continued superintendence”, the phrase
used in the Ryan case, referred to above.61 He emphasised that it did not imply literal
supervision by the court (or some other officer of the court) itself. He then cites62
Megarry J in CH Giles & Co v Morris,63 who said that “difficulties of constant
superintendence” were a “narrow consideration” because “there is normally no question
of the court having to send its officers to supervise the performance of the order …
Performance … is normally secured by the realisation of the person enjoined that he is
liable to be punished for contempt if evidence of his disobedience to the order is put
before the court …” But according to Lord Hoffmann this is rather besides the point, and
does not serve to discredit the supervision objection, as the underlying difficulty which
courts want to avoid is giving an indefinite series of rulings in order to ensure the
execution of its order. According to him, constant supervision of specific performance is
regarded as a problem because it envisages numerous further applications to court over
an extended period with the prospect of detailed investigations of each successive
breach. In his words:
“[S]upervision would in practice take the form of rulings by the court, on applications made by
the parties, as to whether there had been a breach of the order. It is the possibility of the
60
Citing (at 903) Dixon J in J C Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282
297-298: “Specific performance is inapplicable when the continued supervision of the
Court is necessary in order to ensure the fulfillment of the contract.”
61
See text to n 38 above. According to Burrows, “[t]his is not an easily understood notion,
but what it appears to mean is that, irrespective of the uncertainty bar, specific
performance will be denied where too much judicial time and effort would be spent in
seeking compliance with the order” (Remedies for Torts and Breach of Contract 3 ed
(2004) 475-476).
62
[1997] 2 WLR 898 903.
63
[1972] 1 WLR 307 318.
263
court having to give an indefinite series of such rulings in order to ensure the execution of the
order which has been regarded as undesirable.”64
Such repeated rulings are undesirable because punishment for contempt is “the only
means available to the court to enforce its order”,65 a mechanism which he describes as
“so powerful, in fact, as often to be unsuitable as an instrument for adjudicating upon
the disputes which may arise over whether a business is being run in accordance with
the terms of the court’s order”.66 And apart from damaging the defendant’s commercial
reputation, it would force the defendant to run its business in a certain manner when it
had decided that it was not in its economic interest to continue running the business. He
regarded this as an inappropriate way to compel the running of a business.67
However, this argument has been met with opposition, mainly because it ignores the
reality that every circumstance does not necessarily demand the employment of this
serious mechanism. It is often ignored that other means exist to ensure compliance with
a court order.68 Dawson, in a much earlier work, for example, refers to substituted
performance as a viable alternative:69
“The interesting question is whether we [common lawyers], like the French, have become
prisoners of our own system or, more accurately, whether we have become confused by our
lack of system. Would our courts be more willing to grant specific performance if a sharp line
were drawn and firmly maintained between civil and criminal contempt – between execution
64
[1997] 2 WLR 898 903.
65
903. Lord Hoffmann’s concern for the efficacy of punishment for contempt for enforcing
anything beyond a single act returns to the explanation for the Chancery courts’ initial
reluctance to order specific performance of such obligations. See discussion above about
the origins of the supervision objection.
66
904.
67
904.
68
See Beale et al (eds) Chitty on Contracts 1923-1924.
69
J P Dawson “Specific performance in France and Germany” (1958) 57 Mich LR 495 537-
538.
264
process for the benefit of the litigant and punishment for attack on judicial authority? Why
must every equity order, except some decrees establishing simple money debts, be thought
of as carrying implicitly the threat of arrest, money fine, sequestration – the whole panoply of
coercive devices that our equity courts draw on at their discretion? Our courts could surely
have made a much wider use of substituted performance, by plaintiff, by third parties or by
receivers and other persons that they temporarily invest with a limited public authority. This
could be done without any commitment to go further with money fines and especially with
arrest. If limited means were adapted to limited ends, with greater selectivity, more might be
attempted and the barriers to specific performance that we have inherited might be reduced.”
It has also been held that it is perhaps not even necessary to employ coercive
measures, because in practice orders are often obeyed without recalcitrance.70
Burrows, for example, submits that defendants rarely disobey court orders. He argues
that the mere possibility of recalcitrance is not a sufficient reason to refuse the remedy,
and on the rare occasion that a defendant does not obey a court order, courts are able
to ensure compliance without having to invoke the “full judicial machinery” by, for
example, appointing a single officer of the court to oversee performance.71 He also
stresses that “even if judicial time and effort are involved, it is still strongly arguable that
this is outweighed by the fact that justice otherwise requires the claimant to be granted
specific performance”.72
70
See CH Giles & Co Ltd v Morris [1972] 1 WLR 307 318 per Megarry J. See also A
Schwartz “The case for specific performance” (1979) 89 Yale LJ 271 304; Burrows 1984
Legal Studies 110; A M Tettenborn “Absolving the undeserving: shopping centres, specific
performance and the law of contract” 1998 Jan/Feb Conveyancer and Property Lawyer 23
30; Phang 1998 Modern Law Review 426; E Peel Treitel’s Law of Contract 13 ed (2011)
1113.
71
Burrows 1984 Legal Studies 107-110; Remedies for Torts and Breach of Contract 481.
72
265
Moreover, it is clear that even where an order is not complied with, viable alternatives
(to punishment for contempt) exist to ensure performance in the end.73 Treitel, for
example, argues that it may be possible for the court to appoint an expert as its officer
in order to supervise performance of a recalcitrant defendant or, alternatively, the court
could empower the plaintiff to appoint a person to act as an agent of the defendant who
then supervises the latter in ensuring enforcement of the order.74 Lord Wilberforce also
expressed his doubts as to the validity of the supposed difficulties with supervision in
Shiloh Spinners Ltd v Harding,75 maintaining that it is “an irrelevance: for what the court
has to do is to satisfy itself, ex post facto, that the covenanted work has been done, and
it has ample machinery, through certificates, or by enquiry, to do precisely this”. Lord
Pearce in Beswick v Beswick76 held that these technical difficulties could be overcome
and therefore “the court should not be deterred by such a consideration from making an
order which justice requires”. This led Sharpe to conclude that “both on principle and on
authority … the tendency to refuse specific performance in cases involving supervision
should become much less pronounced”.77
According to Lord Hoffmann, such contempt proceedings are also undesirable because
enforcement, particularly in the context of repeated applications over a period of time, is
“likely to be expensive in terms of cost to the parties and the resources of the judicial
73
See eg Schwartz 1979 Yale LJ 293-294; Sharpe “Specific relief for contract breach” in
Reiter & Swan (eds) Studies in Contract Law 123-150; Burrows Remedies for Torts and
Breach of Contract 481; G Jones & W Goodhart Specific Performance 2 ed (1996) 46.
See also Parker v Camden London Borough Council [1986] Ch 162 175 178, referring to
provisions contained in an ordinance, which enable the court, when an order is not being
complied with, to appoint some other person to perform the order on behalf of the person
who has failed to do so.
74
See Peel Treitel’s Law of Contract 1113-1114.
75
[1973] AC 691 724.
76
[1968] AC 58 91.
77
“Specific relief for contract breach” in B J Reiter & J Swan (eds) Studies in Contract Law
123 147. See also J Beatson et al Anson’s Law of Contract 29 ed (2010) 579.
266
system”.78 It is at this point that Lord Hoffmann draws the very important distinction
between orders which require a defendant to carry on an activity, such as running a
business and orders which require him to achieve or produce a particular result.79 In his
view “[t]he possibility of repeated applications for rulings on compliance with the order
which arises in the former case does not exist to anything like the same extent in the
latter. He then adds that “[e]ven if the achievement of the result is a complicated matter
which will take some time, the court, if called upon to rule, only has to examine the
finished work and say whether it complies with the order”.80 This distinction between
orders to carry on activities and to achieve results explains why the courts have been
prepared to order specific performance of building contracts and repairing
covenants.81 And it is also on this basis that Lord Hoffmann managed to avoid the
authority on “building cases” supporting the possibility of specific performance. The
distinction, he said, was that in those decisions all the contractor was being ordered to
do was to achieve a particular result.82 However, one could argue that supervision will
still be required of execution of building works; even though these contracts are aimed
at a finished product that can be judged according to the specifications of the contracts
and do not involve the performance of a continuous duty, these types of contracts would
take some time to be executed and involve several different detailed and complex
obligations – the execution of which the court would similarly find difficult to supervise.
Burrows therefore rightly questions “why the constant supervision objection should be
thought valid in respect of orders to carry on activities but not orders to achieve
results”.83
78
[1997] 2 WLR 898 904.
79
[1997] 2 WLR 898 904. See also Burrows 1984 Legal Studies 107.
80
[1997] 2 WLR 898 904.
81
Citing Wolverhampton Corporation v Emmons [1901] 1 QB 515 (building contract) and
Jeune v Queens Cross Properties Ltd [1974] Ch 97 (repairing contract).
82
[1997] 2 WLR 898 904-905.
83
Burrows Remedies for Torts and Breach of Contract 480.
267
To summarise, according to Lord Hoffmann, constant supervision is a concept that

involves two more fundamental principles based on certainty. First, a person subject to
a mandatory court order carrying the potential of punishment for contempt has a right to
know with a considerable degree of precision what was expected of him.84 A court will
not be able to guarantee this with orders which require a defendant to carry on an
activity over an extended period. Secondly, there was the possibility of the court being
overwhelmed by numerous applications to commit for alleged contraventions of its
specific performance order. This would involve lengthy argument as to whether the
defendant was complying with the order, which in turn would result in a waste of judicial
time and resources.
Finally, on the facts, Lord Hoffmann held that the obligation in the lease agreement
requiring the store to remain open was not sufficiently precise to be capable of specific
performance because it did not specify the level of trade, the area of the premises within
which trade must be conducted, or even the kind of trade. He emphasised that “[t]he
fact that the terms of a contractual obligation are sufficiently definite to escape being
void for uncertainty, or to found a claim for damages … does not necessarily mean that
they will be sufficiently precise to be capable of being specifically performed”.85 The
terms in question were considered too vague to allow a clear order to be made.
84
So in Wolverhampton Corporation v Emmons [1901] 1 QB 515, Romer LJ said that the
first condition for specific enforcement of a building contract was that “the particulars of the
work are so far definitely ascertained that the court can sufficiently see what is the exact
nature of the work of which it is asked to order the performance”. Similarly in Redland
Bricks Ltd v Morris [1970] AC 652, Lord Upjohn stated (666) the following general principle
for the grant of mandatory injunctions to carry out building works: “[T]he court must be
careful to see that the defendant knows exactly in fact what he has to do and this means
not as a matter of law but as a matter of fact, so that in carrying out an order he can give
his contractors the proper instructions.”
85
[1997] 2 WLR 898 905.
268
However, the argument based on the requirement of certain and precise formulation of
the contractual obligation has been criticised. Burrows finds Lord Hoffmann’s reasoning
unconvincing for a number of reasons. In particular, he questions why the order could
not be drawn up with sufficient precision.86 He argues that courts are able to overcome
the uncertainty problem by implying terms in cases of doubt. He refers to Sudbrook
Trading Estate Ltd v Eggleton,87 where the House of Lords held that if the agreed
method for valuation fails in a contract for the sale of land, a court will determine the fair
and reasonable price, thereby rendering the contract specifically enforceable.88
Tettenborn, on the other hand, simply contends that the obligation in question is not so
uncertain as to render it unenforceable. He argues that while there are some contractual
obligations that are so imprecise that they could not be specifically enforced without
leaving the defendant in the dark about just what was expected of him, an obligation to
keep a shop open should not fall into this category. He argues that there is not a big
difference between a builder being ordered to construct a building and a retailer being
ordered to “keep the demised premises open for retail trade during the usual hours of
business in the locality”. According to Tettenborn, the defendant knew what had to be
done: a shop is or is not open, in the same way as a house is or is not built or repairs
are or are not done. He admits to the fact that the retailer’s obligations in Argyll included
further items which might not have been suitable for specific performance (in particular
the clause which required that the windows be dressed “in a suitable manner in keeping
with a good class parade of shops”). However, he argues that the same goes for a
contract to build a house, which is specifically enforceable despite the fact that some
terms of it (for example as to the quality of workmanship) are not, and the plaintiff could
then acquire a limited specific performance order if he is satisfied to leave the
86
87
[1983] 1 AC 444.
88
Burrows Remedies for Torts and Breach of Contract 494-495.
269
enforcement of other, less certain obligations, to future damages litigation. Ultimately,

the argument turns on why the same principles cannot be applied in the retail context.89
Both commentators make valid points: first, it may be argued that uncertainty should not
have restricted awarding specific performance, because the defendant had complied
with the obligations before he cancelled the agreement and knew what was expected of
him in terms of the lease agreement.90 Secondly, even if the court struggled to precisely
formulate their order from the terms of the obligation, they could still apply common
sense and imply terms to overcome the uncertainty objection. These views will be
expanded on later in the discussion.91
(ii) The unjust enrichment argument
Lord Hoffmann also discussed a further objection to an order requiring the defendant to
carry on a business, which was initially emphasised by Millett LJ in the Court of
Appeal.92 This is that it may cause injustice by allowing the plaintiff to enrich himself at
the defendant’s expense. The loss which the defendant may suffer through having to
comply with the order (for example, by running a business at a loss for an indefinite
period) may be far greater than that which the plaintiff would suffer from the contract
being breached.
89
See Tettenborn 1998 Jan/Feb Conveyancer and Property Lawyer 29-30.
90
The Court of Appeal treated the way the defendant previously conducted business as
measuring the extent of his obligation to do so in future. However, in terms of Lord
Hoffmann’s approach, the obligation depends upon the language of the contract and not
upon what the defendant has previously chosen to do: “It is in my view wrong for the
courts to speculate about whether Argyll might voluntarily carry on business in a way
which would relieve the court from having to construe its order. The question of certainty
must be decided on the assumption that the court might have to enforce the order
according to its terms.” ([1997] 2 WLR 898 908).
91
See para 5 5 below.
92
[1996] Ch 286 305.
270
It is not clear how and why this disproportion between the parties’ potential losses led
Lord Hoffmann to an unjust enrichment inquiry since he even concedes that the
defendant by his own breach of contract puts himself in such an unfortunate position.
Yet according to him, “the purpose of the law of contract is not to punish wrongdoing but
to satisfy the expectations of the party entitled to performance”.93 Lord Hoffmann
refers94 to an explanation provided by Sharpe: “In such circumstances, a specific decree
in favour of the plaintiff will put him in a bargaining position vis-à-vis the defendant
whereby the measure of what he will receive will be the value to the defendant of being
released from performance. If the plaintiff bargains effectively, the amount he will set will
exceed the value to him of performance and will approach the cost to the defendant to
complete.”95 It is still uncertain how this relates to unjust enrichment.
It is accepted that there are situations where a court order may put the person who
obtains it in an unacceptably strong bargaining position. As Lord Westbury put it in
Isenberg v East India House Estate Co Ltd,96 when asked to order the defendant to
demolish part of a new building because it interfered, to a minor extent, with the
plaintiff’s light, he saw no reason to do so if the result would be to “deliver over the
defendants to the plaintiff bound hand and foot in order to be made subject to any
extortionate demand that he may by possibility make”.97
Not surprisingly, the relevance of this argument has been doubted.98 One could argue
that Lord Hoffmann should never have invoked this argument, based on the facts of the
93
[1997] 2 WLR 898 906.
94
906.
95
Sharpe “Specific remedies for contract breach” in Reiter & Swan (eds) Studies in Contract
Law 129.
96
(1863) 3 De GJ & S 263 273.
97
Statement also referred to by Lord Hoffmann [1997] 2 WLR 898 906, and initially on
appeal by Millet LJ [1996] Ch 286 304.
98
See in particular D Friedmann “Economic aspects of damages and specific relief” in
D Saidov & R Cunnington (eds) Contract Damages: Domestic and International
271
case. The facts did not present this difficulty at all: how can there be unjust enrichment if
the plaintiff receives the performance to which he was rightly entitled to under a valid
contract? Because English law does not recognise the sine causa requirement (at least
not according to the dominant view),99 his analysis is problematic from a civil-law
perspective (and specifically South African law), whereby the plaintiff would only be
receiving a benefit to which he is entitled to in terms of a valid contract, and nothing
more.100 Apparently, Lord Hoffmann’s argument in Argyll Stores is more policy-based
than technical in nature, and the criticism based on the sine causa requirement may
therefore be less tenable from a common-law perspective.
(iii) The procedural argument
Finally, Lord Hoffmann raised the argument that, whatever the situation at the time, if an
order for specific performance were to be granted, subsequent events might change
matters by making its continued enforcement either oppressive or otherwise
unacceptable. Counsel for the plaintiff raised the counter-argument that in such a case it
would always be open to the defendant to apply for the order to be varied or
discharged.101
Lord Hoffmann, however, did not accept this submission. He was of the opinion that any
order made by the court would be a final order and there was no authority to the effect
that once such an order had been made the defendant could return to court at a later
stage and reopen the matter. Furthermore, even if there was such authority he regarded
Perspectives (2008) 65 81. See also Tettenborn 1998 Conveyancer and Property Lawyer
34-36.
99
On sine causa or absence of basis in English law, see A S Burrows The Law of Restitution
3 ed (2011) 95 ff and C Mitchell et al (eds) Goff & Jones The Law of Unjust Enrichment 8
ed (2011) 8-9, which may be contrasted with P Birks Unjust Enrichment 2 ed (2005) 101 ff
(where a more civil-law based approach is advocated).
100
See J du Plessis The South African Law of Unjustified Enrichment (2012) 54.
101
[1997] 2 WLR 898 908.
272
it as difficult to formulate any criterion of what would amount to a sufficiently unexpected

change of circumstances to warrant the discharge of the order.102 Tettenborn
specifically questioned this aspect of the judgment, because if it is indeed true that an
order of specific performance cannot be subsequently varied to take account of
supervening events, it effectively means that a court has to refuse to make an order
which in all probability will be enforceable, merely because (hypothetically)
circumstances might arise which would make its continued enforcement oppressive.103
According to Tettenborn, the difficulty with Lord Hoffmann’s opinion is that, taken
literally, it would rule out virtually any order to carry out particular works, including those
where specific performance is available. Even in the case of building contracts, for
example, the objection raised by Lord Hoffman will still be applicable: these types of
contracts would naturally take some time to be executed, during which events could
occur which makes further enforcement undesirable.104 Therefore, Berryman and
Carroll rightly conclude that
“it seems quite appropriate for a court to grant specific relief, where the problems with
supervision remain hypothetical and constitute speculation, until such time as any difficulty is
incurred by the parties. At that stage, the court could reassess its decision to persevere with
the contract and bring the relationship to an end by requiring the plaintiff to crystallize its loss
in damages. Where problems with supervision arise immediately (the inability to describe
102
[1997] 2 WLR 898 908-909.
103
See also J Berryman & R Carroll “Coercive relief – reflections on supervision and
enforcement constraints” unpublished draft paper prepared for Remedies Discussion
Forum Prato, Italy June 2013 (copy on file with author) 12: “It also appears to be
inconsistent with the House of Lords’ own judgment in Johnson v. Agnew [1980] A.C. 367.
There, the non-performance of a specific performance decree remained a continuing
breach of the contract, conferring upon the plaintiff the right to bring an action in common
law for breach and to seek damages.”
104
See Tettenborn 1998 Conveyancer and Property Lawyer 36. See also I C F Spry The
Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and
Equitable Damages 8 ed (2010) 113-119.
273
what has to be done would be one instance), the court should refuse the specific
performance decree forthwith”.105
Ultimately, Lord Hoffmann concluded that these various reasons, none of which would
necessarily be sufficient on its own, indicated that the refusal of specific performance
was justified. He added that granting or refusing specific performance remains a matter
for the judge’s discretion and that “[t]here are no binding rules, but this does not mean
that there cannot be settled principles, founded upon practical considerations of the kind
which I have discussed, which do not have to be re-examined in every case, but which
the courts will apply in all but exceptional circumstances”.106
Commentators107 who favour Millet LJ’s dissenting judgment (on appeal) criticise Lord
Hoffmann’s uncompromising confirmation of the settled practice, and maintain that
every case requires a court to start from a clean slate, free of pre-conceived
preferences. They prefer Millet LJ’s more flexible proposition that “equitable relief will be
granted where it is appropriate and not otherwise”.108 This accords with Megarry J’s
view in Tito v Waddell (No 2)109 that equitable relief should be granted if it could achieve
“more perfect and complete justice”. However, it is similarly clear from Lord Hoffmann’s
judgment that the true test is one of “appropriateness of relief”.110 Even though Lord
Hoffmann confirmed the established practice, it is submitted that he did not do so
105
Berryman & Carroll “Coercive relief – reflections on supervision and enforcement
constraints” 12 (referring to S Rowan Remedies for Breach of Contract (2012) 57-58).
106
Referring to the passage of Slade J in Braddon Towers Ltd v International Stores Ltd
[1987] 1 EGLR 209 213: “Whether or not this may be properly described as a rule of law, I
do not doubt that for many years practitioners have advised their clients that it is the
settled and invariable practice of this court never to grant mandatory injunctions requiring
persons to carry on business.”
107
See eg H Y Yeo “Specific performance: covenant to keep business running” 1998 May
Journal of Business Law 254.
108
[1996] Ch 286 304.
109
[1977] Ch 106 322.
110
[1997] 2 WLR 898 903. See also para 5 2 (iv) below.
274
uncritically. His focus was always on the merits and the equities of the case before him.
He awarded a remedy based on what he thought was the most appropriate in the
circumstances. Both his finding and reasoning can indeed be criticised, but it cannot be
said that he committed himself to a particular decision beforehand based on established
practice.
(iv) Evaluation
As indicated above, the decision of the House of Lords has attracted substantial
criticism,111 especially regarding the manner in which the discretion to grant specific
performance is exercised in English law and Lord Hoffman’s reasoning for refusing the
order for specific performance. It is questioned whether the supposed practical
objections to specific performance advanced by him was in fact founded.
Admittedly, a number of the arguments that have been raised against Lord Hoffmann’s
reasoning are valid. As mentioned earlier, Dawson (who wrote long before Lord
Hoffmann’s judgment) convincingly argues that there are other possible means to
ensure compliance with a court order, and every order should not be assumed to carry
the threat of the serious consequences for being held in contempt.112 Perhaps even
more convincing is the point made by Burrows, that the serious and undesirable
consequences of contempt proceedings (which forms a substantial part of Hoffmann’s
rationale) rarely realize in practice, since court orders are often obeyed without
recalcitrance. And even so, this prospect alone should not influence a court to refuse
111
Notably, Tettenborn 1998 Conveyancer and Property Lawyer 23; H Y Yeo 1998 Journal of
Business Law 254-259; Phang 1998 Modern Law Review 421-432; F Cuncannon “The
case for the specific performance as the primary remedy for breach of contract in New
Zealand” 2004 VUWLR 659 671-675; Burrows Remedies for Torts and Breach of Contract
480 ff; Berryman & Carroll “Coercive relief – reflections on supervision and enforcement
constraints”.
112
Dawson 1958 Mich LR 537-538.
275
the remedy especially where justice requires the plaintiff to be granted specific
performance.113
However, it is submitted that the refusal of the remedy of specific performance in this
particular case was ultimately justified, because Lord Hoffmann clearly states that the
“cumulative effect”114 of the different factors indicated that it should not be ordered. As
indicated, the difficulty of supervision was not the sole ground for his decision. He does
not follow the settled practice of refusing orders for specific performance of an obligation
to keep a business running slavishly. Instead, he evaluates the different underlying
factors by which English courts are discouraged to grant specific performance of these
types of obligations. He also provides a defensible rationale for the practice, where he
could have simply referred to the practice without having any regard to the underlying
reasons for maintaining it. He carefully analysed the interests at stake and determined
that the plaintiff’s interests, weighed against the many disadvantages of specific
performance, would be adequately protected by a damages award. The argument is
that when the problem of supervision is the only factor which stands in the way of
granting the remedy, it should not discourage a court to grant the remedy, but in cases
where a variety of other factors against making such an order are present, and where
these outweigh the interest in performance, the refusal of the remedy is justified (as was
the case in Argyll).115 This suggests that, on different facts, interests worthy of
protection may be present which will not be protected unless the court grants an order
of specific performance. Even though Burrows severely criticises Lord Hoffmann’s
reasoning, he states that this does not mean that the ultimate decision was incorrect.116
The decision can, according to Burrows, be explained on different, more convincing,
grounds:
113
Burrows 1984 Legal Studies 107-110; Remedies for Torts and Breach of Contract 481,
485.
114
[1997] 2 WLR 898 907.
115
See Beale et al (eds) Chitty on Contracts 1924; Peel Treitel’s Law of Contract 1114-1115.
116
276
“To force a defendant to carry on with business that is losing money may well fall foul of the
severe hardship bar or a separate specific bar. But this should have been addressed
separately than being confused with the constant supervision objection.”117
It is suggested that undue hardship to the defendant may have been a more convincing
reason for the decision. The loss which the defendant would have suffered through
having to comply with the order by running a business at a loss for an indefinite period
was greater than the plaintiff would suffer from the contract being breached. Economic
hardship to the defendant evidently provides a better justification for the refusal. But
even though the premise is rejected, the conclusion is supported here.
It should also not be overlooked that Argyll was decided in England – a jurisdiction less
willing to engage coercive remedies. Specific performance is only exceptionally
available.118 Therefore the statement by Berryman and Carroll that even within Great
Britain, Argyll Stores is not followed in Scotland,119 is particularly problematic because
specific performance, or specific implement as it is known in Scotland, is the primary
right of the innocent party in cases of breach of contract in Scots law (a mixed legal
system).120 The authors refer to Highland & Universal Properties Ltd v Safeway
117
480-481. In his concluding paragraph (at 504), Burrows also says that “while the decision
in that case seems correct, their Lordships’ support for the constant supervision objection
was misplaced”.
118
Neil Andrews also concludes that the House of Lords’ refusal in Argyll “to overstretch
specific performance in this context seems quite justified” because apart from agreements
to transfer land, specific performance is not the primary remedy in English law (Contract
Law (2011) 536-537).
119
Berryman & Carroll “Coercive relief – reflections on supervision and enforcement
constraints” 13-14.
120
E Clive & D Hutchison “Breach of contract” in R Zimmermann, D Visser & K Reid (eds)
Mixed Legal Systems in Comparative Perspective: Property and Obligations in Scotland
and South Africa (2004) 176 193; H L MacQueen & J Thomson Contract Law in Scotland
3 ed (2012) 233 § 6.6. MacQueen and Macgregor correctly observe that “If the two
jurisdictions analyse the facts from standpoints which are diametrically opposed, then
277
Properties Ltd,121 a case decided after Argyll Stores, where the Court of Session
ordered a defendant who wished to close its supermarket (as in Argyll Stores) to
maintain operating its supermarket. But Scots law has always followed this practice as
evidenced by the decision in Retail Parks Investments Ltd v The Royal Bank of
Scotland plc (No 2)122 where an order was similarly granted to oblige a lessee in a
shopping centre to continue conducting its business of retail banking from its shop in the
centre.123
different conclusions will be reached. This is the inevitable result of the different status of
an order for performance in the Scottish and English jurisdictions.” (“Specific implement,
interdict and contractual performance” 1999 Edin LR 239 243). See also M Chen-Wishart
Contract Law 4 ed (2012) 553.
121
2000 SLT 414.
122
1996 SC 227.
123
For discussion and further cases, see MacQueen & Thomson Contract Law in Scotland
233-237; H L MacQueen & L J Macgregor “Specific implement, interdict and contractual
performance” 1999 Edin LR 239. See in particular Co-operative Insurance Society Ltd v
Halfords Ltd 1998 SC 212, where specific performance of a continuous trading obligation
was not granted because the terms of the lease were insufficiently clear to form the basis
of such an order. The court also held that Lord Hoffmann’s decision in Argyll Stores was
not binding but open to “respectful” consideration in Scotland (229). The court did not
agree with Lord Hoffmann’s finding that the matters which courts may take into account in
the exercise of their discretion in England and Scotland are the same, because “it does
not appear to be consistent with logical analysis to … postulate a similarity in effect where
the rules, the major premise in any syllogistic analysis, differ” (229). See also Edrei
Investments 9 Ltd (In Liquidation) v Dis-Chem Pharmacies (Pty) Ltd 2012 (2) SA 553
(ECP) (discussed fully in para 6 1 2 below), in which a South African court obliged an
anchor shop to continue trading despite causing it to trade at a loss, since this fact did not
deprive the lessor of its right to elect to hold the lessee to its obligations.
278
A study of subsequent academic literature clearly indicates that the difficulty of

supervision, as a sole ground for refusing specific performance, has been discredited.124
The supervision objection alone is not enough to justify a refusal of specific
performance anymore. It cannot be said that as soon as any element of continuous
services can be discerned in a contract the court will, without more, refuse specific
performance. As we have seen earlier, Treitel, for example, asserts that “difficulty of
supervision should not be exaggerated”, because ultimately the decision to grant or
refuse the remedy depends on a balancing of all the relevant factors for and against
ordering specific performance.125 This is also well-illustrated by the Argyll decision,
where Lord Hoffmann specifically considered other factors which weighed against an
order for specific performance, together with the supervision objection. Treitel observes
that the reliance by Lord Hoffmann on these other factors, suggests that a court “will not
be deterred from granting such relief merely on the ground that it will require constant
supervision. The outcome of each case will depend on the ‘cumulative effect’ of this
factor together with any others which favour (or as in the Co-operative Insurance case)
militate against specific relief”.126 Clearly the variety of interests at stake precludes a
strict rule that specific performance should never be available of contracts to be
performed over time and hence requires supervision.
Burrows is particularly persuasive in advocating the total removal of the supervision bar:
124
See eg Beatson et al Anson’s Law of Contract 579: “At one time it was said that an order
for specific performance would not be granted if the Court would be required constantly to
supervise the execution of the contract.” The author cites Shiloh Spinners Ltd v Harding
[1973] AC 691 724 (see text to n 75 para 5 2 (i) above) and Posner v Scott-Lewis [1987]
Ch 25, where an undertaking to employ a resident porter was specifically enforced, in
contrast to Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch 116
(CA) (see text to n 38 para 5 2 above). See also G McMeel “Anchors away” 1998 LQR 43;
Beale et al (eds) Chitty on Contracts 1924.
125
Peel Treitel’s Law of Contract 1113.
126
1114-115. See also Beale et al (eds) Chitty on Contracts 1925.
279
“Certainly it is unsatisfactory to deny justice on an unsubstantiated hunch about the costs of

specific performance, and in any event, it has to be explained why this area should not be
treated differently from, for example, family law, where the cost of continuing judicial
involvement in supervising maintenance, access and custody orders is considered
acceptable. In short, the policy justifications for the constant supervision objection to specific
performance seem particularly weak and the attempts by some judges, but, alas, not the
House of Lords, to remove this bar should therefore be supported.”127
Jones128 in a case note published after Argyll,129 notes that English courts have been
more willing to grant specific performance and have not simply followed precedent
which restricts their discretion to do so.130 He refers to the development illustrated in
case law whereby English courts have been considering the appropriateness of the
remedy in the circumstances, rather than focusing on the adequacy of the remedy
available in law.131 However, he expresses doubt as to the appropriateness of the
remedy in the Argyll case, since it is doubtful whether Co-operative Insurance Society
would have ever been able to prove what loss it suffered as a result of Argyll’s breach.
However, in the light of the many factors militating against specific performance
considered by Lord Hoffmann, the defendant’s interests undoubtedly outweighed the
aggrieved party’s interest in specific performance. The largest part of the judgment
indicated why specific performance was inappropriate (and damages appropriate) in the
circumstances, because an award of damages “brings the litigation to an end. The
defendant pays damages, the forensic link between them is severed, they go their
separate ways and the wounds of conflict heal” whereas an order for specific
127
128
Co-author of Jones and Goodhart’s Specific Performance 2 ed (1996), first published in
1986.
129
G Jones “Specific performance: a lessee’s covenant to keep open a retail store” (1997) 56
CLJ 488.
130
Jones cites Sudbrook Trading Estate Ltd v Egerton [1983] 1 AC 444 478 per Lord Diplock.
131
See ch 3 for a detailed discussion of the adequacy of damages rule (esp paras 3 2 &
3 4 1 above).
280
performance “prolongs the battle. If the defendant is ordered to run a business, its
conduct becomes the subject of a flow of complaints, solicitors’ letters and affidavits”.132
Therefore, according to Andrews, “[t]he last word on the proper scope of specific
performance should go to Lord Hoffmann”.133 Furthermore, Maddocks J (with whom
Lord Hoffmann agreed) even conceded this point – he acknowledged that, while the
assessment of damages might be difficult, it was the kind of exercise which the courts
had done in the past and were prepared to undertake again.134
Jones ultimately concludes that the House of Lords’ decision should be welcomed
instead of being deplored, because there is much to be said for the cogent arguments
made by Lord Hoffmann. He agrees that the difficulties of supervision, which include the
prospect of further litigation and the “draconian” sanction of contempt, cannot be
ignored. And that these, in conjunction with economic arguments (concerning the
burdensome consequences of ordering Argyll to resume its business) clearly militate
against ordering specific performance.135 McMeel similarly commends Lord Hoffmann
for elucidating the true basis of the constant supervision bar, which according to him
“had received a rather overliteral interpretation in earlier cases”.136 Undoubtedly, Jones,
McMeel and Andrews are in the minority in providing support for Lord Hoffmann’s
arguments. Despite the magnitude of valid criticism raised against Lord Hoffmann’s
reasoning, especially by Burrows, it is suggested that it nevertheless provides valuable
instruction for the development of our law towards a concretisation of the relevant
factors that could guide our courts in exercising their discretion to refuse to order
specific performance.
132
[1997] 2 WLR 898 906-907.
133
Andrews Contract Law 537.
134
[1997] 2 WLR 898 902. Cf text to n 53 para 5 2 above.
135
Jones 1997 CLJ 490-491.
136
McMeel 1998 LQR 45.
281
5 3 American law
American courts have also considered the practical difficulty of supervision in deciding
whether to exercise their discretion to grant specific performance. They generally do not
grant specific performance if they will be unable to enforce their order effectively.137
Therefore the traditional rule was that court will refuse to grant an order for the specific
performance of continuous acts.138 However, in modern practice the prospect of
extensive supervision will not necessarily influence a court to refuse specific
performance in all cases.139 This is apparent from § 366 of the American Law Institute’s
Restatement (Second) of Contracts, comment a:
“Granting specific performance may impose on the court heavy burdens of enforcement or
supervision. Difficult questions may be raised as to the quality of the performance rendered
under the decree. Supervision may be required for an extended period of time. Specific relief
will not be granted if these burdens are disproportionate to the advantages to be gained from
enforcement and the harm to be suffered from its denial. A court will not, however, shrink
from assuming these burdens if the claimant’s need is great or if a substantial public interest
is involved. In such cases, for example, structures may be ordered to be built and facilities
may be required to be maintained. Experience has shown that potential difficulties in
enforcement or supervision are not always realized and the significance of this factor is
peculiarly one for judicial discretion…”
As in English law, the principle is therefore flexible. A case can still be made for specific
performance of a contract where the question of difficulty of supervision arises, if the
137
This has long been maintained – see eg Fleischer v James Drug Stores, 62 A.2d 383
(1948); Perillo (ed) Corbin on Contracts § 1171.
138
See Beck v Allison (1874) 56 N.Y. 366, 370 per Grover J: “It is obvious that the execution
of contracts of this description, under the supervision and control of the court, would be
found very difficult if not impracticable, while the remedy at law would, in nearly, if not all
cases, afford full redress for the injury. It is for these reasons that such powers have never
been exercised in this country.” See also note published in 1925 Colum LR 348-353.
139
E A Farnsworth Contracts 3 ed (1999) 781.
282
plaintiff proves that the harm to be suffered from refusing the remedy outweighs the
advantages of doing so. Arguments in favour of specific performance will still be
considered and may be upheld by the courts,140 and a problem with supervision per se
is not a conclusive argument against an order of specific performance.
Nevertheless, numerous cases exist where courts have refused specific performance
on the ground that the performance required is of a continuous nature and its
enforcement would require continued supervision by the court.141 For example, courts
have refused specific performance of contracts to operate a mine over a long period,142
to cut timber and saw it into lumber,143 and to provide a long term elevator service.144
However, experience has shown that potential difficulties in enforcement or supervision
are not always realized; courts are able to formulate their orders so as to put effective
pressure on the defendant, for example, by requiring periodical reports relating to the
standard of the performance rendered.145 The New York Court of Appeals has even
stated that “[m]odern writers think that the ‘difficulty of enforcement’ idea is exaggerated
and that the trend is toward specific performance …”146
The decision in Metropolitan Sports Facilities Commission v Minnesota Twins

Partnership147 illustrates this trend toward greater flexibility in awarding specific
140
See eg Metropolitan Sports Facilities Commission v Minnesota Twins Partnership 638
N.W. 2d 214 (Minn. Ct. App. 2002) discussed below.
141
See eg Perillo (ed) Corbin on Contracts § 1171 n 76.
142
Stanton v Singleton 59 P. 146 (1899).
143
Bomer v Canady 30 So. 638 (1901).
144
Nakdimen v Atkinson Improvement Co 233 S.W. 694 (1921).
145
See eg Dells Paper & Pulp Co v Willow River Lumber Co 173 N.W. 317 (1919); Kahn v
Wausau Abrasives Co 129 A. 374 (1925).
146
Grayson-Robinson Stores v Iris Construction Corporation 168 N.E.2d 377, 379 (N.Y.
1960), confirming an order directing specific performance of a construction contract. See
also J M Perillo Calamari and Perillo on Contracts 6 ed (2009) § 16.10.
147
638 N.W. 2d 214 (Minn. Ct. App. 2002).
283
performance of contracts that potentially involve difficulties of supervision. Here the

Minnesota Court of Appeal confirmed the trial court’s decision to award a temporary
injunction requiring the Minnesota Twins baseball team to continue playing its home
games in the city-owned public stadium, thereby compelling them to honour the terms of
their lease agreement with the sports facilities commission. The stadium lease was not
a typical commercial lease, as the commission did not receive rent from the team, but
rather benefited by the team’s promise to play games in the stadium. Furthermore, the
lease actually identified specific performance as a potential remedy for a breach of
contract.148
The court first pointed out that, in a specific performance suit it was required to balance
the equities of the case in determining whether the equitable remedy is appropriate. It
found that specific performance was the most appropriate remedy on the facts due to
the lack of evidence provided by the Twins team indicating significant burdens that
would be imposed by granting a temporary injunction forcing the team to play its games
in the stadium, as opposed to the adverse effect that withdrawal from the stadium would
have on the community and associated commercial activities. The court took judicial
notice of the importance of professional sports in citizens’ social lives, the entertainment
and recreational purposes the stadium would serve, the jobs the stadium would provide
and the anticipated benefits to nearby businesses.149 Damages was also found to be
insufficient to compensate for the harm suffered by the community for the loss of a
professional sports team, because money could not compensate the people for
immeasurable, indirect and intangible losses.150 According to Toussaint CJ “the
possibility of irreparable harm to the commission and the public outweighed the
potential harm shown by the Twins and Major League Baseball”.151
148
It authorised any remedy allowed by law or equity, including but not limited to injunctive
relief and specific performance in the event of breach.
149
638 N.W. 2d 214 (Minn. Ct. App. 2002) para [16].
150
Para [16].
151
Para [17].
284
In discussing the administrative burdens involved in judicial supervision and

enforcement of the injunction (as brought up by the Twins team), the court confirmed
the trial court’s determination that granting the relief would not impose significant
administrative burdens. A significant burden would ensue if the franchise had already
left town. The order would then require a massive restructuring of the status quo that
could entail administrative and supervisory costs significant enough to dissuade a court
from issuing an injunction. But here, the status quo is merely preserved by the
injunction. From a comparative standpoint, this opinion provides support for the finding
in Argyll Stores, where the equipment and fittings were already removed from the store.
An award of specific performance would have required a massive restructuring of the
status quo, a point specifically underlined by Lord Hoffmann.152
The court also rejected the Twins’ reliance on case law; specifically Hamilton West
Development Ltd v Hills Stores Company153 as authority to substantiate their argument
that there was a hard and fast rule that specific performance was not available to
enforce continuous obligations in commercial leases.154 However, Hamilton does not
support the proposition that equitable remedies are always prohibited in commercial-
lease disputes; on the contrary the court found that in Hamilton, where the issue was
whether a shopping-center developer could obtain a permanent injunction to prevent a
store from ceasing operations in breach of the continuous operation obligations
imposed by the lease, the federal court actually expressed the view that Ohio state
courts would reject an inflexible rule against specific performance in all cases, but would
narrowly interpret such clauses.155 It follows that there is no general rule against specific
performance of agreements to be performed over time and hence requiring supervision,
as it was once thought. The courts merely look with disfavour on specific performance
of these agreements and exercise great caution in enforcing these agreements due to
152
See para 5 2 above.
153
959 F.Supp. 434 (N.D.Ohio 1997).
154
638 N.W. 2d 214 (Minn. Ct. App. 2002) para [13].
155
959 F.Supp. 434, 439-440 (N.D.Ohio 1997).
285
the danger of constant disputes and the possible burden of continued supervision. But it
cannot be assumed that if an element of continuous services can be discerned in a
contract that would therefore require supervision, the court will, without more, refuse
specific performance.
Even though experience has indicated that this factor is not as relevant as it once was
and there is no strict rule against specific performance of continuous obligations that
require constant supervision, it is still maintained that constant and continued
supervision may justify the refusal of the remedy under American law. However, US
courts often (like their English counterparts)156 advance difficulty of supervision as a
reason for refusing specific performance when the difficulty arises from the vagueness
or uncertainty of the terms of the contract,157 instead of referring to their inability actually
to supervise the enforcement of the contract.158
156
Apart from Argyll Stores where Lord Hoffmann regarded an obligation to “run a
supermarket” as too uncertain to enforce, see Mosely v Virgin 30 ER 959 (1796)
(obligation to “lay out £1000 in building”); Wilson v Northampton and Banbury Junction
Railway Co (1874) 9 Ch App 279 (obligation to “erect a station”); Joseph v National
Magazine Co Ltd [1959] Ch 14 (obligation to publish an “article on jade”). See also n 84
para 5 2 (i) above; Pound 1920 Harv LR 433-434; Beale et al (eds) Chitty on Contracts
1925, 1933; Chen-Wishart Contract Law 547; M P Furmston Cheshire, Fifoot and
Furmston’s Law of Contract 16 ed (2012) 802-803.
157
See Farnsworth Contracts 778-779; R A Lord Williston on Contracts 4 ed (2004) vol 25 §
67:97; Perillo Calamari and Perillo on Contracts § 16.8. According to § 362 of the
American Law Institute’s Restatement (Second) of Contracts: “Specific performance or an
injunction will not be granted unless the terms of the contract are sufficiently certain to
provide a basis for an appropriate order.”
158
See eg Bomer v Canady 30 So. 638 (1901); Park v Minneapolis Railway Co 189 N.W. 532
(1902); Plantation Land Co v Bradshaw 207 S.E.2d 49 (Ga. 1974); Bethlehem
Engineering Export Co v Christie 105 F.2d 933, 934 (2d Cir. 1939) per Hand J: “This
contract is so obscure, and, strictly taken, so incoherent, that nobody can be sure of its
meaning … Arguendo, we shall assume that these promises created a valid contract
286
At present, American courts are willing to grant specific performance if the plaintiff’s
need is great or if a substantial public interest is involved. In such cases, for example,
structures may be ordered to be built and facilities may be required to be maintained.159
According to Corbin160 “[t]he greater the hardship of the plaintiff’s case, the clearer the
inadequacy of damages as a remedy, and the greater the extent of the public interest,
the more likely it is that specific performance will be decreed”.161
It may be concluded then that neither English nor American courts will necessarily
refuse specific performance when the question of difficulty of supervision arises. Sharpe
even maintains that “there has never been an absolute refusal to award the remedy in
cases which might require supervision where the plaintiff is able to demonstrate
sufficient need for it. In fact, the principle is a flexible one”.162 According to Megarry J
“the matter is one of the balance of advantage and disadvantage in relation to the
particular obligations in question; and the fact that the balance will usually lie on one
which could be enforced at law like any other, but it does not follow that equitable
remedies would also be available.”
159
Perillo (ed) Corbin on Contracts § 1172.
160
§ 1172.
161
See also the authoritative extract from Standard Fashion Co v Siegel-Cooper Co 157 N.Y.
60 (1898), cited by Corbin § 1172 n 88: “Contracts which require the performance of
varied and continuous acts, of the exercise of special skill, taste and judgment, will not, as
a general rule, be enforced by courts of equity, because the execution of the decree would
require such constant superintendence as to make judicial control a matter of extreme
difficulty. An exception to this rule, founded upon the rights of the public rather than those
of the plaintiff, obtains with reference to contracts relating to the management and control
of railroads and other agencies of transportation which enjoy special privileges conferred
by statute, and promote the general welfare. When the inconvenience of the courts in
acting is more than counterbalanced by the inconvenience of the public if they do not act,
the interest of the public will prevail.”
162
R J Sharpe Injunctions and Specific Performance (1983) 286.
287
side does not turn this probability into a rule”.163 The advantages of refusing specific
performance will always be weighed against the harm to be suffered (by both the
plaintiff and the wider public) from its refusal (i.e. their interest in performance). And the
courts will most likely order specific performance of a continuous obligation, if the harm
to be suffered from refusing the remedy outweighs the advantages of doing so.164
As we have seen in both English and American law, the inability of the courts actually to
supervise performance in accordance with its order/the contract is not the real issue.
The problem is the lack of certainty of performance and the possible burden or hardship
(that may be assumed by the defendant or the court) inherent in the enforcement of
such performance. Again, to quote Megarry VC, in another case: “[while] it was at one
time said that an order for specific performance of the contract would not be made if
there would be difficulty in the courts supervising its execution … The real question is
whether there is a sufficient definition of what has to be done in order to comply with the
order of the court”.165 Sharpe similarly maintains that the appropriate concern of courts
in modern times is not so much for difficulties in ensuring compliance with specific
performance orders “but rather a desire for finality to litigation and conservation of
judicial resources”166 because “20th century regulatory experience indicates that so long
as there is sufficient definition of the obligation, enforcement machinery is available to
ensure compliance”.167
163
CH Giles & Co Ltd v Morris [1972] 1 WLR 307 318, quoted with approval in Price v
Strange [1978] Ch 337 359-360.
164
Notably, Lord Hoffmann, in deciding whether or not specific performance should be
granted, was also concerned with the interest of the public, which according to him, would
not be served by wasting resources and maintaining an already hostile relationship
([1997] 2 WLR 898 906). For comment on this view, see Phang 1998 Modern Law Review
430-432.
165
Tito v Waddell (No 2) [1977] Ch 106 321-322.
166
“Specific relief for contract breach” in Reiter & Swan (eds) Studies in Contract Law 145.
167
144.
288
The argument here is therefore essentially that if a court specifically enforces

imprecisely-defined obligations, it could operate harshly on the defendant since he
would not know what is expected of him and face being held in contempt. Furthermore,
courts will be overwhelmed by numerous applications to determine the adequacy of the
defendant’s compliance. It may also be difficult to assess the adequacy of the
defendant’s performance if the nature of the required performance was not properly
defined in the first place. Such subsequent litigation would lead to a waste of judicial
time and resources. Thus, the difficulties with a contract to be performed over time are
essentially the possible cost of increased judicial effort and the possible harm to the
defendant (if the obligation is not sufficiently defined which is often the case with
continuous obligations), and not literal supervision by the courts.168
5 4 German law, Dutch law and the international instruments
Problems with supervision are not discernable as impediments to a creditor’s right to

specific performance in German law, Dutch law or the international instruments under
review. Therefore, these systems and instruments will only be discussed to the extent
that they address concerns related to the supervision objection, and more specifically
the certainty and hardship issues.
In German law a plaintiff’s right to specific performance is subject to some limitations.

One situation where this right will be denied is where the requirement of certainty of
performance is not met. So, a court will refuse enforcement if the creditor’s application
under §§ 887, 888 or 890 of the German Code of Civil Procedure (ZPO) is not
sufficiently certain.169
168
For this reason, Sharpe advises that in deciding whether or not to grant specific
performance, courts have to examine “not only the nature of the obligation, but also the
extent of its definition” (Injunctions and Specific Performance 295).
169
289
As indicated earlier, specific performance is a concept of substantive law.170 The

practice of refusing specific performance in cases where the contractual obligations are
uncertain can presumably be traced back to the idea that in German law the concept of
specific performance is directly inferred from the principle of pacta sunt servanda. This
means that the creditor’s claim for specific performance flows naturally from a valid
contract and specific performance does not presuppose a breach of contract, but is the
consequence of the contract’s existence: the parties are under an obligation to fulfil their
contractual promises.171 Thus, where the obligations in the contract itself are not
sufficiently certain and defined, so that they would be capable of being specifically
enforced, it is understandable that the creditor’s claim (flowing from the contract itself)
cannot be maintained. Problems with supervision are not discernable as a defined
exception to the right to specific performance in German law. However, as indicated
above, English and American courts often advance difficulty of supervision as a reason
for refusing specific performance when the difficulty arises from the vagueness or
uncertainty of the terms of the contract (even though the vagueness or uncertainty is not
so substantial that it results in voidness).172 Beale, in his comparative treatise, also
discusses the German position by referring to certainty of performance under the
heading of supervision.173 No express link is, however, detectable between the
supervision issue and hardship in German law.
A creditor’s right to specific performance under Dutch law is similarly not unrestricted.174
Notwithstanding the primary position of specific performance in the Dutch legal system,
Article 3:296(1) of the Dutch Civil Code or Burgerlijk Wetboek (BW) makes it clear that
specific performance cannot be claimed if the law, the nature of the obligation, or a
170
See para 2 3 1 1 above; and see F Faust & V Wiese “Specific performance – a German
perspective” in J Smits et al (eds) Specific Performance in Contract Law: National and
Other Perspectives (2008) 47 49-50.
171
172
See text to n 85 para 5 2 (i) above.
173
Beale et al Cases, Materials and Text on Contract Law 877, 881.
174
290
juridical act, determines otherwise. Apart from these limitations listed in the BW, the
availability of specific performance has also been limited through developments in the
case law. These developments include limitations on grounds of reasonableness and
equity.175 The development of the concepts of reasonableness and equity, even though
codified in Articles 6:2 and 6:248(2) BW,176 also depends on the courts, as these
concepts encompass a rather wide range of possible limitations. The Hoge Raad has
held that the parties in a legal relationship must act in accordance with the requirements
of reasonableness and equity and, accordingly, have to act not only in their own
interests, but also in the interests of the other party/parties involved.177 More recently,
the Hoge Raad also reaffirmed and emphasised the need to balance the interests of the
parties concerned.178 Accordingly, a court can refuse specific performance if the debtor
has a substantial interest in such refusal.179 Furthermore, Article 3:13 BW prohibits the
abuse of a right. The exercise of any right, including the right to specific performance
afforded by Article 3:296, will be regarded as an abuse “when it is exercised with no
other purpose than to damage another person or with another purpose than for which it
is granted or when the use of it, given the disparity between the interests which are
served by its effectuation and the interests which are damaged as a result thereof, in all
reason has to be stopped or postponed” (Article 3:13(2)). Based on these provisions it
has been argued that a creditor may not claim specific performance if it would
175
D Haas & C Jansen “Specific performance in Dutch law” in J Smits, D Haas & G Hesen
(eds) Specific Performance in Contract Law: National and Other Perspectives (2008) 11
17.
176
See para 2 3 1 2 above & para 6 3 below.
177
See HR 15 November 1957, NJ 1958, 67 (Baris/Riezenkamp). See also D Busch et al
(eds) The Principles of European Contract Law and Dutch Law: A Commentary (2002)
355 (commentary by M B M Loos).
178
See HR 5 January 2001, NJ 2001, 79 (Multi Vastgoed/Nethou) discussed in para 6 3
below.
179
Performance in Contract Law: National and Other Perspectives 20, 26.
291
unreasonably burden the debtor.180 This may be the case if, for example, specific
performance is sought in respect of imprecisely defined contractual obligations.
However, problems with supervision and certainty of performance are not discernable
as defined exceptions to a creditor’s right to specific performance in Dutch law.
Difficulties of supervision and related problems of uncertainty are equally not recognised
as defined exceptions to the right to specific performance in the international
instruments under consideration. There are indications in these instruments that
reasonableness will be considered in deciding whether to acknowledge the plaintiff’s
right to specific performance,181 but none specifically deal with problems of supervision
or the related certainty issue.182 Neither is listed under the defined limitations to the right
to specific performance.183
180
Commentary 355 (by Loos).
181
See generally Arts 46(3) CISG; 9:102(2)(b) PECL; 7.2.2(b) UNIDROIT PICC; 3:302(3)(b)
DCFR; 110(3)(b) CESL.
182
Cf text to n 180 para 6 4 2 below.
183
However, the instruments all contain an overriding requirement of good faith and fair
dealing (see para 6 4 2 below); it follows that a party “would not be entitled to exercise a
remedy if doing so is of no benefit to him and his only purpose is to harm the other party”
(O Lando & H Beale (eds) Principles of European Contract Law: Parts I and II (2000) 115).
Moreover, as Clive and Hutchison maintain, in discussing the limitations under the PECL
(“Breach of contract” in Zimmermann et al (eds) Mixed Legal Systems in Comparative
Perspective 195), basic human rights are always in the background. Accordingly, it may
be argued that no court, irrespective the jurisdiction, would grant an order for specific
performance in such vague terms that the defendant could be arbitrarily imprisoned for
contempt. And, the principle of good faith possibly leaves some scope for taking into
account problems of supervision and related certainty issues.
292
At the beginning of this chapter, it was shown that South African courts have
traditionally expressed some support for refusing specific performance of certain
obligations (especially obligationes faciendi) where it would be difficult to supervise the
execution of such an order.184
Unsurprisingly, this position attracted a great deal of criticism in our law. The primary
(and by now familiar) basis of the criticism is that, in most cases, it is not necessary for
the court itself to oversee the work and it is unlikely that problems will arise in the
enforcement of the court’s order.185 The court is equipped to deal with a recalcitrant
defendant.186 If, after being ordered to effect the necessary repairs, the lessor fails to do
so, the lessee may once again approach the court for relief.187 Our courts have, in
recent years, also criticised the previous position, and recognised that specific
performance may be the only viable remedy to many lessees in South Africa.188
Mpange v Sithole189 was the first reported decision in our law where a court was
prepared to grant specific performance of a lessor’s obligation to maintain the leased
184
See eg Barker v Beckett & Co Ltd 1911 TPD 151 164; Lucerne Asbestos Co Ltd v Becker
1928 WLD 311 331; Marais v Cloete 1945 EDL 238 242; Nisenbaum and Nisenbaum v
Express Buildings (Pty) Ltd 1953 (1) SA 246 (W) 249; Lottering v Lombaard
1971 (3) SA 270 (T) 272.
185
See De Wet & Van Wyk Kontraktereg 210-211; Cooper The South African Law of
Landlord and Tenant 89.
186
See eg PL v YL 2013 (6) SA 28 (ECG) para [10]: the court “has the inherent power or
authority to ensure compliance with its own orders”.
187
137.
188
Bradfield & Lehmann Principles of the Law of Sale and Lease 146. See also T Naudé
“The law of lease” 2007 ASSAL 872-873.
189
2007 (6) SA 578 (W). The applicants were lessees of an inner city building which their
lessor, the respondent, had failed to maintain in a safe and proper condition. They were
293
property.190 Here Satchwell J criticised the earlier reluctance of the courts to grant
specific performance in these circumstances. She pointed out that the supervision
objection had become untenable in view of subsequent decisions such as Benson v SA
Mutual Life Assurance Society,191 and Isep Structural Engineering and Plating (Pty) Ltd
v Inland Exploration Co (Pty) Ltd.192 These decisions emphasised that a contracting
party was in principle entitled to specific performance, and criticised earlier cases in
which this right was limited. These limitations, which derived from English practice,
included the limitation that specific performance would generally not be granted where it
would be difficult for the court to enforce its order. Satchwell J took direct cognisance of
English law and then correctly observed that this limitation had fallen out of favour even
in England.193 She also agreed with academic writers194 who criticised the reluctance to
refuse specific performance of the lessor’s obligation to maintain the leased premises195
and confirmed the dictum in Nisenbaum and Nisenbaum v Express Buildings (Pty)
Ltd,196 that there was no authority for casting the tendency not to order specific
performance where it would be difficult for a court to enforce the order of specific
performance as an absolute rule.197 Apart from being correct in her assessment of
English law, Satchwell J also accurately described the current status of the supervision
objection in our law.
living in “slum” conditions, which included lack of privacy, absence of sufficient lavatories,
one water tap for some 500 occupants, and illegal and dangerous provision of electricity.
190
See Naudé 2007 ASSAL 872-874.
191
1986 (1) SA 776 (A).
192
1981 (4) SA 1 (A).
193
Mpange v Sithole 2007 (6) SA 578 (W) para [42], quoting Jansen JA in Isep Structural
Engineering and Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd 1981 (4) SA 1 (A) 5C.
194
Also referring to Cooper The South African Law of Landlord and Tenant 89.
195
Mpange v Sithole 2007 (6) SA 578 (W) paras [43]-[44].
196
1953 (1) SA 246 (W) 249B-250A.
197
Mpange v Sithole 2007 (6) SA 578 (W) para [40]. Cf para 5 1 n 19 above.
294
Ultimately, the court did not order specific performance as the lessor was not the owner
of the building and the registered owner had not been joined as a party to the case,
whilst such an order would inevitably affect his interests.198 The court concluded that it
would have required more “details as to the priorities for renovation and repair,
expertise with regard to such endeavours, the costs thereof, the time periods involved,
the disruption to current inhabitants in their occupation whilst such renovations endure
[and] possible alternative accommodation for the duration of such renovation”.199
Therefore, the court ordered a reduction in rental.200
The difficulty of supervision is also advanced in support of a refusal to enforce building

contracts in our law.201 However, this reasoning was challenged by Coetzee J in Ranch
International Pipelines (Transvaal) (Pty) Ltd v LMG Construction (City) (Pty) Ltd.202 The
court rejected the rule which stated that courts would not award specific performance of
building contracts. It found that the underlying justification for refusing specific
performance of such contracts, i.e. the difficulty of supervision of its order, is “over-
emphasised” in our law since courts never really supervise fulfilment of their orders in
practice.203 The court, in support of this view, pointed out that the order which it granted
did not replace the contract and therefore did not introduce any new difficulties in
deciding whether the work had been performed properly. According to Coetzee J,
difficulty of supervision does not provide a valid justification for refusing an order. The
judge provides us with valuable and convincing practical considerations which can be
198
Paras [60]-[63], [82]. See also Naudé 2007 ASSAL 873.
199
Para [77].
200
Para [87]. See further Naudé 2007 ASSAL 873-874.
201
See text to n 22 para 5 1 above.
202
1984 (3) SA 861 (W) 880-881.
203
880H. In this regard, Coetzee J’s view resembles Treitel’s view on the objection in English
law (see para 5 2 above).
295
said to discredit the supervision argument (see Coetzee J’s dictum quoted in chapter
4).204
According to Jansen JA in ISEP Structural Engineering & Plating (Pty) Ltd v Inland
Exploration Co (Pty) Ltd,205 the reluctance of the courts to order specific performance
“where it would be difficult for the Court to enforce its decree” is “a limitation derived
from the English practice, and not consonant with our law”.206
It is clear that this limitation (“derived from English practice”) is no longer applicable in
South African law. As in English law, the supervision problem is over-emphasised and
there are many examples in the case law where the courts specifically enforce contracts
to build or repair,207 as well as contracts to perform a specific task.208 And it is almost
certain that the difficulty of supervision will not be regarded as a sufficient ground for
refusing this remedy in the future. Therefore, it should not be assumed that courts will,
204
See text to n 175 para 4 2 2 above. This dictum was followed in Raik v Raik 1993 (2) SA
617 (W) 626, where the court held an embittered recalcitrant husband to an agreement to
grant his wife a “get” or Jewish Ecclesiastical bill of divorce in order to dissolve their
Jewish marriage.
205
1981 (4) SA 1 (A) 5.
206
As confirmed in National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA
151 (T) 158; Ranch International Pipelines (Transvaal) (Pty) Ltd v LMG Construction (City)
(Pty) Ltd 1984 (3) SA 861 (W) 880-881; Santos Professional Football Club (Pty) Ltd v
Igesund 2003 (5) SA 73 (C) 85. See also D Hutchison & C Pretorius (eds) The Law of
Contract in South Africa 2 ed (2012) 323.
207
See eg Mink v Vryheid Coal & Iron Co (1912) 33 NPD 182 (contract to build a house);
Industrial & Mercantile Corporation v Anastassiou Brothers 1973 (2) SA 601 (W) (contract
to install refrigeration equipment); Sandton Town Council v Original Homes (Pty) Ltd 1975
(4) SA 150 (W) (contract to “form grade and maintain” certain roads).
208
See eg Johannesburg Stock Exchange v Northern Transvaal (Messina) Copper
Exploration Co 1945 AD 529 (restoration of a company’s shares to the official list of
shares quoted on the stock exchange); Maw v Grant 1966 (4) SA 83 (C) (inscription of an
architect’s name on a board at a building site).
296
without more, refuse specific performance where there is the prospect of constant
supervision.
The Civil Codes of both Germany and the Netherlands, though providing a more
streamlined regime as far as exclusion of specific performance is concerned, do not
recognise problems with supervision as a possible ground for such exclusion. It is also
evident that this regime is broadly consistent with the approaches adopted in the
international instruments discussed above. As indicated above, the right to specific
performance is recognised, but restricted by principles of reasonableness. However,
none of the instruments under review explicitly refer to administrative burdens involved
in judicial supervision as a possible indication of such unreasonableness.
English and American law, on the other hand, provide us with more instructive insights.
The English and American courts have traditionally not ordered specific performance
where such an order would require constant supervision. However, as we have seen,
more recently this objection has been rejected by English and American courts; they will
not be deterred from granting specific performance merely because it will require
constant supervision. Instead, as Lord Hoffmann has indicated, their decision will
depend on the “cumulative effect” of this factor together with any other relevant factors
which favour or militate against specific performance. The courts currently focus on the
true merits and the equities of the case at hand and not on established principles or pre-
conceived preferences. Although English and American law have rejected the difficulty
of the courts to supervise the performance of a continuous obligation as a reason for
refusing specific performance, they will still avoid giving specific performance orders if
the obligation sought to be enforced is not sufficiently defined to allow a clear order to
be made.
Evidently the relevant issue in our law is also not whether the court will be able to
supervise or enforce its order. It clearly is not a court’s function to supervise the
execution of the orders it makes. The more relevant objection is the impreciseness of
these obligations. As in other jurisdictions, our courts will similarly not specifically
297
enforce vague and uncertain terms even if they are not void for vagueness.209 This has
long been maintained.210 According to Christie, for example, “it is on the ground of
imprecision that orders of specific performance of contracts to form syndicates or
companies and contracts to repair or insure buildings have been refused”.211 So in
Barker v Beckett & Co Ltd212 the court refused to order specific performance of a
stipulation to insure because it was too indefinite; the amount for which the buildings
should be insured was not stated in the contract, and hence, if the court ordered the
defendant to “insure the buildings”, there would be no contempt of court if they were
insured for a “wholly inadequate amount”.213
The difficulty with the enforcement of these obligations is that it may lead to further
disputes to test the defendant’s compliance, which would lead to a waste of judicial time
and resources.214 Moreover, it is not fair to the defendant that he does not know
precisely what he has to do to comply with the order to avoid being held in contempt.215
209
Christie & Bradfield Christie’s The Law of Contract in South Africa 552.
210
See eg Wessels The Law of Contract in South Africa §§ 3117-3118, and the authority
cited there. See also n 213 below.
211
Christie’s The Law of Contract in South Africa 552. See also Wessels The Law of Contract
in South Africa §§ 3117 ff.
212
1911 TPD 151.
213
165 per De Villiers JP (Smith J concurring). Specific performance was also refused on the
ground of imprecision in Douglas v Baynes 1908 TS 1207 (PC); Ingle Colonial Broom Co
Ltd v Hocking 1914 CPD 495; Lucerne Asbestos Co Ltd v Becker 1928 WLD 311, and
Marais v Cloete 1945 EDL 238.
214
In Christie’s words: “Without necessarily being void for vagueness a contractual obligation
may be of such a nature that a defendant who has been ordered specifically to perform it
might genuinely claim to have done so but the plaintiff might equally genuinely claim that
he has not. The fact that such a dispute could be decided by the court after hearing
evidence does not necessarily mean that specific performance should be granted, as it is
obviously undesirable that the court should issue an order the likely result of which will be
298
It is therefore suggested that even though the continuous nature of the obligation and
the fact that it would require constant judicial supervision is not a bar to specific
performance in our law, the extent of its definition or rather the lack thereof should
dissuade our courts to enforce such obligations in specie. In discussing Christie’s
observation, Lubbe & Murray conclude that
“Here it is not the question of the ability of the court to supervise work that is important but
(and this is in essence the same issue approached from a different angle) the question
whether fair evaluation of the work and, consequently satisfactory fulfilment of the contract, is
possible. This suggests that if a contract provides for evaluation by an independent party, an
engineer or architect for example, the problem falls away …”216
It is submitted that this approach is correct. In the past unduly restrictive statements
were occasionally made that our courts will not enforce contracts the execution of which
would require continued supervision by the courts. Accordingly, it was often held that
the courts will not enforce specific performance of continuous obligations. However, the
courts have moved away from this unduly inflexible approach and have ordered specific
performance of such obligations. The issue remaining in our law is whether, taking into
account the uncertain definition of an obligation, enforcement of the contract is likely to
place an unreasonable burden on the defendant or the court’s time and resources (as
some Common and German lawyers have recognised).
to precipitate a lengthy dispute over whether it has been obeyed.” – Christie’s The Law of
Contract in South Africa 552.
215
Again, to quote Christie 547: “The courts in their discretion will naturally not subject a
defendant to the danger of contempt of court in cases where compliance with the order
would be impossible, unduly onerous, difficult to enforce or insufficiently clear-cut, so that
opinions might legitimately differ on whether there had been performance.” This statement
was quoted with approval by Van Zyl J in Vrystaat Cheetahs (Edms) Bpk v Mapoe
unreported judgment with case no 4587/2010 delivered on 29 Sep 2010 by the Free State
Provincial Division of the High Court (see paras [113]-[114]).
216
Cf para 4 2 2 n 172 above.
299
The harm the defendant or the court might suffer as a result of enforcing an
insufficiently defined obligation, and the extent to which this should dissuade a court
from ordering specific performance, will be discussed in the following chapter, as this is
rather an issue which merits further investigation under the theme of hardship.217 The
following chapter and the concluding chapter will explore the most appropriate route for
South African law to follow in order to address these and related concerns.
217
See para 6 5 3 (esp n 217) below.
300
CHAPTER 6: UNDUE HARDSHIP
6 1 Introduction
Having dealt with the relevance of supervision of performance in awarding specific

performance in the preceding chapter, we now turn to hardship, which also
encompasses difficulties with enforcement and supervision, but has a wider application.
According to the majority of commentators, it is settled law that South African courts will,
in the exercise of their discretion, refuse to order specific performance if it would cause
undue hardship to the defaulting party or to third parties.1 According to De Wet, for
example,
“[spreek dit] egter vanself dat ‘n onbeperkte aanspraak op reële eksekusie in geen regstelsel
geduld kan word nie, want gevalle kan voorkom waar die nadele verbonde aan reële
eksekusie dermate buite verhouding staan met die nadeel wat die skuldeiser gaan ly by
weiering daarvan, dat dit strydig sou wees met gesonde beleid om die skuldeiser sy sin te
gee”.2
1
See J W Wessels The Law of Contract in South Africa 2 ed (1951) vol 2 § 3119; D J
Joubert General Principles of The Law of Contract (1987) 225; A J Kerr The Principles of
The Law of Contract 6 ed (2002) 680; T Naudé “Specific performance against an
employee: Santos Professional Football Club (Pty) Ltd v Igesund” 2003 SALJ 269 279; S
Eiselen “Specific performance and special damages” in H L MacQueen & R Zimmermann
European Contract Law: Scots and South African Perspectives (2006) 249 257; F du Bois
(ed) Wille’s Principles of South African Law 9 ed (2007) 873; R H Christie & G B Bradfield
Christie’s The Law of Contract in South Africa 6 ed (2011) 547-548; D Hutchison & C
Pretorius (eds) The Law of Contract in South Africa 2 ed (2012) 323; S van der Merwe et
al Contract: General Principles 4 ed (2012) 330; A D J van Rensburg, J G Lotz & T van
paras 495-496.
2
J C de Wet & A H van Wyk Die Suid-Afrikaanse Kontraktereg en Handelsreg I 5 ed (1992)
210 translated: “However, it is obvious that an unlimited claim to specific enforcement
cannot be tolerated in any legal system, because situations could arise where the
301
The discussion will commence with an introductory overview of South African law in
order to determine how this position was established in our law and why commentators
and courts alike in effect came to accept that in the case of undue hardship to the
defendant or third parties, the the remedy should be denied as a general rule, as
opposed to merely regarding the existence of hardship as a guiding principle in the
exercise of the courts’ discretion to refuse specific performance.
The rest of the chapter deals with the treatment of the hardship issue by different legal
systems and international instruments with the aim of determining what principles they
have adopted to address the enforcement of contracts that have become excessively
burdensome (but not impossible) for the defendant to perform, and what considerations
underlie these principles. The chapter concludes with an evaluative discussion, which
takes into account the different approaches revealed by the comparative analysis.
Finally, some suggestions will be made for the future development of our law.
611 The undue hardship principle in South African law: the locus classicus
of Haynes v Kingwilliamstown Municipality
The familiar case of Haynes v Kingwilliamstown Municipality3 is generally cited as

authority for the widely-held view that courts will, in the exercise of their discretion,
refuse to order specific performance where it would cause undue hardship to the
defaulting party or to third parties.4 This case involved a contract in terms of which the
municipality agreed to provide 250 000 gallons (almost a million litres) of water per day
disadvantages of specific enforcement are so disproportionate to the disadvantage that

the creditor will suffer from refusing it, that it would be inconsistent with sound policy to let
the creditor have his way.”
3
1951 (2) SA 371 (A). See also Manasewitz v Oosthuizen 1914 CPD 328; Rex v Milne and
Erleigh (7) 1951 (1) SA 791 (A) 873-874, and Barclays National Bank Ltd v Natal Fire
Extinguishers Manufacturing Co (Pty) Ltd 1982 (4) SA 650 (D) 655.
4
See eg De Wet & Van Wyk Kontraktereg en Handelsreg 210; Lubbe & Murray Contract
542-543, and more recently A Cockrell “Breach of contract” in R Zimmermann & D Visser
(eds) Southern Cross: Civil Law and Common Law in South Africa (1996) 303 329.
302
to Haynes, who owned certain land situated on the Buffalo River upstream from
Kingwilliamstown. In a time of severe drought, the defendant refused to comply with its
obligation under the agreement, claiming that to do so would severely prejudice the
residents of Kingwilliamstown. The plaintiff consequently sought an order for specific
performance of the contract, which the court refused on the grounds that it “would have
worked very great hardship not only to the respondent but to the citizens of
Kingwilliamstown to whom the respondent owed a public duty to render an adequate
supply of water”.5 Evidently, the court’s discretion to refuse the remedy in cases of
hardship was derived from English Equity.6 It emphasised that the discretion afforded to
our courts is based on equitable considerations.7
Before we continue with whether an order for specific performance was an appropriate
remedy based on the municipality’s breach, it is necessary to deal briefly with the
question whether the municipality was in fact at all in breach. This concerns the
application of two sets of principles, namely those relating to supervening impossibility
of performance, and those relating to implied terms.
According to some commentators, Haynes may actually have been a case of

supervening impossibility, which extinguished or temporarily suspended this obligation
because performance was legally impossible, since the interest which would have to be
sacrificed to bring about performance by far outweighed the interest which the creditor
had in receiving performance.8
5
1951 (2) SA 371 (A) 381C.
6
See A Beck “The coming of age of specific performance” 1987 CILSA 190 197-198. See
also G Lubbe “Contractual derogation and the discretion to refuse an order for specific
performance in South African Law” in J Smits et al (eds) Specific Performance in Contract
Law: National and Other Perspectives (2008) 99-101.
7
1951 (2) SA 371 (A) 377-379. See also Hutchison & Pretorius (eds) The Law of Contract
in South Africa 321.
8
See Sharrock “Contract” in Joubert & Faris LAWSA 5(1) 2 ed para 496 n 19.
303
This brings us to the South African law on supervening impossibility or cases in which
performance has become impossible due to a change of circumstances, as opposed to
cases in which performance has become excessively onerous due to a change of
circumstances. Here, performance by the municipality became excessively burdensome
and fell short of what traditionally is required for avoidance under the doctrine of
supervening impossibility. It is important to stress at this juncture that supervening
change of circumstances is a separate problem, which falls beyond the scope of this
chapter. The present section will consequently only provide a brief outline of the
applicable law.9
Our legal system supports the doctrine of pacta sunt servanda;10 accordingly, the
parties to the contract should honour its terms even if the circumstances that existed
when they concluded the contract have changed. It is only if the change in
circumstances amounts to supervening impossibility that parties would be released from
contractual liability.11 If the circumstances have changed only to the extent that
performance has become excessively burdensome, but not impossible, the contract is
considered valid. This means that a party’s failure to perform could amount to breach of
contract.12 However, the non-performing party could still defeat a claim for specific
9
For a general comparative account of the effect of supervening events, see See K
Zweigert & H Kötz Introduction to Comparative Law (tr T Weir) 3 ed (1998) 517-537, and
H Unberath & E McKendrick “Supervening events” in G Dannemann & S Vogenauer (eds)
The Common European Sales Law in Context: Interactions with English and German Law
(2013) 562-580.
10
See eg Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA) paras
[36] ff.
11
See Peters Flamman & Co v Kokstad Municipality 1919 AD 427. See also para 7 2 2
below.
12
See Hersman v Shapiro & Co 1926 TPD 367. See too in this regard, De Wet & Van Wyk
Kontraktereg en Handelsreg 210 n 61: “Mens het hier natuurlik te doen met gevalle waar
die skuldenaar in weerwil daarvan dat hy nie kan presteer nie, tog gebonde is. Waar hy
304
performance arising from breach if awarding such a claim would cause undue
hardship.13 The other party would then have to resort to either cancellation or
contractual damages or both.
We can now return to Haynes. Van Rensburg et al have argued that it was perhaps not
even necessary to resort to remedies for breach in this case, because non-performance
could have been excused temporarily due to objective impossibility of performance. This
argument is convincing if a more generous view is adopted of what amounts to
supervening impossibility. This type of approach is, for example, supported by Van der
Merwe et al:
“While an absolute ‘physical’ impossibility will satisfy the test [for objective excusing
impossibility], a performance that might conceivably be rendered will nevertheless be
impossible if insistence on its performance would be unreasonable in the circumstances …
[and while] it is usually said that mere difficulty in performing amounts at most to subjective
impossibility and not to objective impossibility …, performance may be so difficult and lead to
deur onmoontlikwording van prestasie bevry is, is daar natuurlik glad nie meer ‘n
verbintenis nie.”
13
See G Lubbe “Daadwerklike vervulling in die Suid-Afrikaanse reg: die implikasies van die
uitoefening van die regterlike diskresie” in J Smits & G Lubbe (eds) Remedies in Zuid-
Afrika en Europa (2003) 52 78: “’n Beslissing soos in die Haynes-saak toon aan dat die
engheid van die leerstuk ondervang word deur middel van die ontsegging van
daadwerklike afdwinging van die ooreenkoms in gepaste omstandighede. Daadwerklike
vervulling sal nie gelas word waar dit gaan om aanvanklike of later ingetrede
omstandighede wat neerkom op subjektiewe onmoontlikheid van prestasie (difficultas
praestandi of te wel ‘hardship’), of selfs bloot die verydeling van kontraksoogmerk inhou
nie.” See also Van Rooyen v Baumer Investments (Pty) Ltd 1947 (1) SA 113 (W) 120-121,
where Ettlinger AJ expressed the view that “where the ability of the debtor to perform is
raised [by the debtor] and left in doubt”, specific performance should be refused.
305
such economic or other hardship that it will be regarded as objectively impossible in terms of
the applicable standard.”14
However, this approach was not adopted in Haynes. Neither was there support for a
second potential ground for escaping the finding of breach, namely an implied term
excusing the Municipality from temporarily not releasing the stipulated amount water, if
there was not sufficient water in the dam to ensure an adequate supply for the residents
of Kingwilliamstown.15 This argument was given short shrift by the trial court. It held that
no term could be implied to the effect that the release of 250,000 gallons water a day
was conditional on there being sufficient water in the dam for the needs of the residents
of Kingwilliamstown.16 According to Gardner JP “the parties at the time of the making of
the contract, never contemplated a shortage of water”.17 The Appellate Division, in
confirming the trial court’s refusal to order specific performance, unfortunately also did
14
Van der Merwe et al Contract: General Principles 162 (see esp n 18: “Factors such as
practical and economic expediency and fairness play a role. Thus, if an object which must
be delivered by ship falls into the ocean, it will normally be regarded as objectively (ie for
all practical and reasonable purposes) impossible of performance, even though it could be
physically retrieved and delivered, but at unreasonably high cost compared to its
commercial value.”).
15
See heads of argument by Back KC (1951 (2) SA 371 (A) 373-374, especially 373D-F:
“The fact that the 250,000 gallons of water per diem was to come from a particular dam,
shows that this supply could never have been contemplated by the parties if the dam was
empty; cf. Wessels, supra sec. 2693. The agreement comes under the class of agreement
to which the rule in Taylor v Caldwell, 8 L.T. 356, applies i.e. the law imports an implied
condition in the agreement to the effect that its performance should be objectively
possible, i.e. both parties contracted subject to the continued existence in the dam, of
sufficient water to enable it lawfully to continue the supply of the 250,000 gallons daily; cf.
Peters Flamman & Co v Kokstad Municipality, 1919 AD 427; Wessels, supra secs. 2712 -
3. 2639 - 41, 2646, 2648, 2651 - 3, 2656, 2693; Mackeurtan The Law of Sale of Goods in
South Africa (3rd ed., pp. 389 - 92) …”).
16
377F-G.
17
378A.
306
not shed light on the reasons for the trial court’s rejection of the respondent’s
impossibility argument. De Villiers AJA simply concluded that
“no ground has been shown to justify us in interfering with the discretion exercised by the
Court a quo. This finding makes it unnecessary to consider whether the Court below was
correct in rejecting the respondent’s contention that the undertaking to release 250,000
gallons of water a day was subject to an implied term that there should be sufficient water in
the dam to ensure an adequate supply for the inhabitants of Kingwilliamstown”.18
Given that it was accepted that the Municipality was in breach, how then did the court
deal with the question whether Haynes should be awarded specific performance? The
Haynes case illustrates that our law had not decisively moved away from the familiar
categories of English law, despite the Appellate Division’s efforts to remove them.19 De
Villiers AJA initially pointed out in Haynes that
“The discretion which a court enjoys although it must be exercised judicially is not confined to
specific cases, nor is it circumscribed by rigid rules. Each case must be judged in the light of
its own circumstances.”20
However, De Villiers AJA then proceeded to list specific examples of grounds on which
courts have in the past exercised their discretion to refuse specific performance. These
grounds, which reflect a strong English influence, are: (1) where it would be difficult for
the court to supervise the execution of its order, (2) where damages would adequately
compensate the plaintiff, (3) where the performance could readily be obtained
18
381E-G.
19
See eg Shill v Milner 1937 AD 101, which concerned a breach of a contractual obligation
by the defendant, who purchased maize from the plaintiff, to transfer certain export quota
certificates (certifying the due export on plaintiff’s behalf of a certain amount of maize) to
the plaintiff, a maize trader. The AD confirmed the trial court’s decision to order specific
performance of the obligation despite the defendant’s contention that the court should
have refused the claim, because it was an obligation to deliver an unspecified and freely
marketable commodity.
20
1951 (2) SA 371 (A) 378G.
307
elsewhere, (4) where specific performance would entail rendering personal services, (5)
where it would cause unreasonable hardship to the defendant, (6) where the agreement
giving rise to the claim is unreasonable, or (7) where the order would produce injustice,
or would be inequitable under all the circumstances.21
De Villiers AJA did emphasise, though, that these were mere examples and not a
closed list.22 Thus, he did not, as some commentators have suggested, contradict his
statement that the court’s discretion is not confined to specific cases and each case
must be decided on its own facts. He merely particularised it by giving some examples
where courts have exercised, and therefore could exercise, their discretion to refuse the
remedy.23
Having said that, the court still clearly relied on English law to give content to its
discretion, and under the influence of the English approach that an order for specific
performance is an exceptional remedy, the court nonetheless exercised its discretion in
such a way that it appeared as if an order for specific performance would always be
21
1951 (2) SA 371 (A) 378H-379A.
22
1951 (2) SA 371 (A) 379D-F. See also Barclays National Bank Ltd v Natal Fire
Extinguishers Manufacturing Co (Pty) Ltd 1982 4 SA 650 (D) 655B per Didcott J.
23
The decision was interpreted correctly by some authors – see eg Lubbe “Daadwerklike
vervulling in die Suid-Afrikaanse reg: die implikasies van die uitoefening van die regterlike
diskresie” in Smits & Lubbe (eds) Remedies in Zuid-Afrika en Europa 56: “In die uitspraak
in die Haynes beslissing word inderdaad vyf omstandighede vermeld waaronder
vervullingsbevel denkbaar geweier sou kon word” and shortly thereafter the author adds
that “[d]ie sinspeling is dan dat die Appèlhof in Benson nie in beginsel gekant was teen die
identifikasie van normatief relevante faktore nie, maar wou beklemtoon dat daar nie ‘n
geslote lys van sodanige faktore is nie. Verder blyk dit dat die kardinale vraag juis was
hoe hierdie en ander relevante oorwegings by die uitoefening van die diskresie gehanteer
moet word. Hiermee kom die mees problematiese aspek van die Suid-Afrikaanse
benadering na vore.” See also De Wet & Van Wyk Kontraktereg en Handelsreg 210-211,
cited by Foxcroft J in Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA
73 (C) 82F-G: “Some of the textbook writers did not slavishly follow this approach …”
308
refused if the above-listed circumstances were present.24 This had the unfortunate
consequence that some textbook writers and courts commenting on this case
suggested unfairly that the court’s treatment of these examples amounted to making
them circumstances where specific performance should always be denied.25
According to Van der Merwe et al, for example, “[t]his rigid approach to exercising the
discretion of the courts tended to elevate the particular circumstances to general rules
and obscured the fact that, according to South African law, an order for specific
performance should be refused only in exceptional circumstances”.26 The concern was
that the Roman-Dutch right to specific performance, affirmed as part of modern South
African law, was contradicted by the courts’ endorsement of these crystallised
circumstances in which specific performance should be denied.27
However, the court in Haynes expressly stated that they are mere examples of grounds
on which courts have exercised their discretion to refuse the remedy and not
circumstances in which specific performance should always be denied. From the outset
the court indicated that there are no “rigid rules” regulating the courts’ discretion to
refuse specific performance apart from the fact that it must be exercised judicially.28
24
See De Wet & Van Wyk Kontraktereg en Handelsreg 210-211; Lubbe & Murray Contract
542-543; Van der Merwe et al Contract: General Principles 330.
25
See eg Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) 86B per
Foxcroft J: “The authors [in Wille and Millin’s Mercantile Law of South Africa 18 ed (1984)
119] state the same view that other textbook writers do, namely that the true position is
that the Court has to exercise its discretion on the particular facts and will refuse to order
specific performance in the circumstances set out in Haynes’s case.” See further M A
Lambiris Orders of Specific performance and Restitutio in Integrum in South African Law
(1989) 127 ff.
26
27
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) 784C.
28
Lambiris (Orders of Specific performance and Restitutio in Integrum in South African Law
128) expresses similar views: “Taking advantage of the hindsight provided by Benson v
SA Mutual Life Assurance Society one can question whether the Appellate Division in
309
There are only, as Christie also subsequently pointed out, certain “guiding principles”
based on earlier decisions where specific performance is likely to be refused.29 The
court’s referral in Haynes to examples of grounds on which the courts have exercised
their discretion in refusing to order specific performance should not be taken to mean
that they are circumstances where specific performance must be denied. It is submitted
here that the court by no means attempted to establish a general rule that specific
performance will be refused if undue hardship to the defendant or to third parties is
proved. The examples should have been interpreted as practical considerations or
guidelines for exercising the discretion, not as legal rules.
Lubbe & Murray correctly point out that certain later cases, such as Isep and Benson
indicate that the examples of grounds on which courts might refuse to order specific
performance listed in Haynes were frequently and incorrectly treated as general rules
on when the remedy should be denied.30 It is to the later case law that we now turn.
612 Subsequent developments on the undue hardship principle in South

African law
The matter of the exercise of the discretion was only revisited by the Appellate Division
30 years later in Isep Structural Engineering and Plating (Pty) Ltd v Inland Exploration
Co (Pty) Ltd.31 Here Jansen JA rejected the (supposedly) restrictive approach promoted
in Haynes and reiterated that every plaintiff is entitled to specific performance subject
Haynes v Kingwilliamstown Municipality ever really intended to lay down this sort of
approach. The major point in Haynes’ case I suggest, was that the court’s discretion to
refuse an order of specific performance must be free and unfettered and that each case
should be judged individually in the light of its own circumstances.”
29
See Christie & Bradfield Christie’s The Law of Contract in South Africa 546. See also
Lambiris Orders of Specific performance and Restitutio in Integrum in South African Law
128-134; Sharrock “Contract” in Joubert & Faris (eds) LAWSA 5(1) 2 ed para 496;
30
Lubbe & Murray Contract 542-543.
31
1981 (4) SA 1 (A).
310
only to the court’s discretion to refuse the remedy. He did, however, cite with approval
the passage from Haynes to the effect that in the exercise of its discretion a court will
refuse an order for specific performance “where it would operate unreasonably hardly
on the defendant, or where the agreement giving rise to the claim is unreasonable, or
where the decree would produce injustice, or would be inequitable under all the
circumstances”.32 In commenting on this decision, Beck concludes that even though
“this discourse on the nature of specific performance was unnecessary for the decision
and is therefore obiter, it is nevertheless indicative of the tendency to move away from a
rigid formulation”.33
Again, at about the same time Isep was decided, the Appellate Division confirmed the
court’s discretion in claims for specific performance in Tamarillo (Pty) Ltd v BN Aitken
(Pty) Ltd.34 Here Miller JA agreed with the trial court that hardship to the defendant and
“the general unfairness of the agreement in regard to its execution and operation” were
valid factors for the court to take in account in the exercise of this discretion.35
The Appellate Division in Benson v SA Mutual Life Assurance Society36 restated the law
in more specific terms.37 As shown earlier, the court reaffirmed that every plaintiff has a
right according to South African law to demand performance in specie, and that there is
“neither need nor reason” to continue to follow the English rules of equity as to when
32
5.
33
1987 CILSA 200. The issue in Isep Structural Engineering was whether our law
recognises a claim for the objective value of the performance as an alternative remedy to
specific performance, and not whether the case was suitable for specific performance.
Cf para 1 1 4 above.
34
1982 (1) SA 398 (A).
35
441A-C.
36
1986 (1) SA 776 (A).
37
See again paras 1 1 & 3 3 above.
311
specific performance should be denied.38 Despite rejecting the traditional English rules
to the effect that specific performance should be refused where damages would
adequately compensate the plaintiff, or where ordinary goods or chattels, or shares
which are readily available on the open market are sold,39 Hefer JA confirmed that there
remains an important principle on when specific performance should be refused, namely
where it would produce an unjust result.40
The more recent decision in Santos Professional Football Club (Pty) Ltd v Igesund41 is
important due to its reference to both Haynes and Benson, and its attempt to
consolidate and apply the two cases. Here the Full Bench, relying on Benson, confirmed
that every plaintiff has a right to specific performance, subject only to the court’s
discretion to refuse it.42 It also went on to confirm the principles relevant to the exercise
of this discretion that were set out in Haynes:43
“Those principles were that specific performance will be refused only if it will operate
‘unreasonably hardly on the defendant, or where the agreement giving rise to the claim is
unreasonable, or where the decree would produce injustice, or would be inequitable under all
the circumstances’.”
Accordingly, the court emphasised that “Courts should be slow and cautious in not
enforcing contracts. They should, in a specific performance situation, only refuse
performance where a recognised hardship to the defaulting party is proved”.44 On the
38
785F. See also G Lubbe “Contractual derogation and the discretion to refuse an order for
specific performance” in G Glover (ed) Essays in Honour of AJ Kerr (2006) 77 80 ff
(reproduced with minor changes in J Smits et al (eds) Specific Performance in Contract
Law: National and Other Perspectives (2008) 95-120).
39
1986 (1) SA 776 (A) 784B-C. Cf para 1 1 3 1 above.
40
783D.
41
2003 (5) SA 73 (C).
42
80I-81B.
43
86B-C.
44
86H.
312
facts of the case, the court found that there would not be undue hardship in compelling
the coach to fulfil his obligations in terms of the contract with his original club, which he
entered into freely and voluntarily and had repudiated in order to earn more money as a
coach for another club in the same soccer league.45 But, as indicated above,46 the court
unfairly suggested that the court in Haynes made it a rule that specific performance
should always be refused if undue hardship to the defendant is present, whereas the
court in Haynes actually only listed it as an example where the remedy has been
refused.
According to Naudé, the court, in stating that hardship to the defaulting party was the
only basis on which the remedy could be refused, is not “totally correct”.47 She refers to
Benson where the court actually held that
“the basic principle thus is that the order which the Court makes should not produce an
unjust result which will be the case, eg, if, in the particular circumstances, the order would
operate unduly harshly on the defendant. Another principle is that the remedy of specific
performance should always be granted or withheld in accordance with legal and public
policy”.48
This indicates that undue hardship to the defaulting party is not the only example or
manifestation of injustice; courts should also take into account whether ordering specific
performance would be contrary to public good and exercise their discretion to refuse the
remedy accordingly, for example, if it would cause undue hardship to third parties (as it
would have in Haynes).49 Thus, the interests of other parties not specifically involved in
45
86.
46
See n 25 para 6 1 1 above.
47
T Naudé “Specific performance against an employee: Santos Professional Football Club
(Pty) Ltd v Igesund” 2003 SALJ 269 279.
48
1986 (1) SA 776 (A) 783D.
49
Apart from the Haynes case, see Barclays National Bank Ltd v Natal Fire Extinguishers
Manufacturing Co (Pty) Ltd 1982 (4) SA 650 (D), and International Shipping Co (Pty) Ltd v
Affinity (Pty) Ltd 1983 (1) SA 79 (C).
313
the litigation are also relevant in deciding whether the order would result in undue
hardship.
The court in Santos interpreted the Benson decision too narrowly in stating that the
remedy should only be refused where a recognised hardship to the defaulting party is
proved. But it would appear that the discourse on the interests of third parties was not
necessary for the decision because third-party interests were not in question. Any
remarks in this regard would therefore in any event have been obiter. What is settled is
that the courts should not solely consider the effect of such an order on the defendant
and whether the effort or cost of performance to him considerably exceeds the benefit
which the innocent party will derive from specific performance; they should also
consider whether it would endanger or cause undue hardship to third parties. Didcott J
affirmed this in Barclays National Bank Ltd v Natal Fire Extinguishers Manufacturing Co
(Pty) Ltd:50
“The [Haynes] decision … established quite plainly that, in assessing any harm the decree
might do, the Court could and when appropriate should look beyond its effect on the litigants
and take account of its impact on outsiders.”
In this case, a mortgagee claimed specific performance under a clause entitling it to

demand possession of the mortgaged property in the event that it felt its interests under
the bond to be imperilled. Didcott J considered the hardship not only to the mortgagor
but to the mortgagor’s creditors:
“There is much to be said, I believe, for the view that specific performance would ‘operate
unreasonably hardly’ on the respondents, that it would be ‘inequitable under all the
50
1982 (4) SA 650 (D) 655E.
314
circumstances’ to them and their other creditors, and that a bond authorising it is indeed
‘unreasonable’, to quote DE VILLIERS AJA on all counts.”51
Currently (upon the correct interpretation of Haynes) in the exercise of their discretion,
our courts may consider whether specific performance would cause undue hardship to
the defendant or to third parties, even based on events that occurred after the contract
was entered into, and refuse the remedy accordingly.52 Relevant to this exercise is
whether the benefit which the plaintiff will derive from specific performance is minimal in
comparison to the disadvantage which the defendant will suffer as a result of having to
perform in specie.53
In Industrial & Mercantile Corporation v Anastassiou Brothers54 it was held that

inconvenience and “some financial loss” on the part of the defendant were not sufficient
reason for the refusal of an order for specific performance. Here the defendant
repudiated its contract with the plaintiff whereby the latter would install equipment used
for food refrigeration on the defendant’s premises. The defendant almost immediately
51
658G-H. See also International Shipping Co (Pty) Ltd v Affinity (Pty) Ltd 1983 (1) SA 79
(C) 87B-E, on the relevance of third-party interests for the decision whether to enforce a
similar term of a registered notarial bond.
52
This brings us to the matter of when the court should make this assessment. In Haynes
De Villiers AJA made an important statement regarding when the court should consider
the result of its order (1951 (2) SA 371 (A) 381A): “I have found no case in our Courts
where it is even suggested that the time when the contract was entered into is the crucial
time to take into consideration in determining whether specific performance should be
decreed or not. Nor can I see any logical reason why the time when performance is
claimed should not be the time when the judge ex aequo et bono should consider the
result of such an order and the alternative remedy open to the plaintiff.” (Quoted with
approval by Hatting J in Klimax Manufacturing Ltd v Van Rensburg 2005 (4) SA 445 (O)
para [14]). In stating this, De Villiers AJA rightly distanced himself from the English author
Fry (cf n 87 below).
53
Sharrock “Contract” in Joubert & Faris (eds) LAWSA 5(1) 2 ed para 496.
54
1973 (2) SA 601 (W) 609. Cf para 3 3 above.
315
thereafter engaged another person to supply the same services for him. The court held
that although an order of specific performance whereby the defendant would have to
pay the plaintiff, against performance by the plaintiff of his duties, would cause the
defendant some hardship in conducting its business,55 courts should “avoid becoming
supine and spineless in dealing with the offending contract breaker, by giving him the
benefit of paying damages rather than being compelled to perform that which he had
undertaken to perform”.56 Clearly, the court rejected any notion of “efficient breach”.57 In
this case the defendant’s defiant, arrogant attitude in repudiating the contract played a
significant role in the court’s decision to grant specific performance.58
The by now familiar case of Ranch International Pipelines (Transvaal) (Pty) Ltd v LMG
Construction (City) (Pty) Ltd,59 is an important decision that also illustrates our courts’
discontent with creditors who are under the misconception that they are entitled to
withdraw unilaterally from a contract, i.e. without having obtained the right to resile.60
55
There was evidence to the effect that the installation could take a period of a week or
possibly a month or more to complete, and that the defendant’s shop would have to be
emptied of its refrigerated goods and that the equipment would have to be removed,
which would have caused the defendant some considerable loss and discomfort.
56
1973 (2) SA 601 (W) 609A.
57
See B J Van Heerden “An exploratory introduction to the economic analysis of law” 1981
Responsa Meridiana 147 156: “Posner would probably regard the decision as giving rise
to an inefficient allocation of resources.”
58
See n 79 below. See also Lubbe “Daadwerklike vervulling in die Suid-Afrikaanse reg: die
implikasies van die uitoefening van die regterlike diskresie” in Smits & Lubbe (eds)
Remedies in Zuid-Afrika en Europa 63.
59
1984 (3) SA 861 (W) 880-881.
60
See esp 881C-G per Coetzee J: “If LMG commits any breach of contract which entitles
Ranch to resile, it is still free to do so at any time in the future and, thereupon, to take
appropriate action. The so-called impasse on which Ranch relies is unimpressive. If it
does not pay LMG, as is threatened, that is the latter’s problem to deal with in its own way.
If it refuses to give LMG instructions, also as is threatened, without having a locus
poenitentiae, it will leave itself open to an action for damages by both LMG and Fluor. If it
316
Here the court, in discussing building contracts in general, held that the client (creditor)
does not have a unilateral right of stoppage of his duty to cooperate with the builder in
order to enable the latter to fulfil his obligations, i.e. the creditor cannot simply walk
away from the contract. And if the creditor fails in performing this duty he may be
compelled in forma specifica to cooperate with the builder. Again, there is no question of
allowing “efficient breach”.
A modern illustration of a court considering a defence based on hardship (and the

concomitant argument that a debtor is entitled to commit “efficient breach” or walk away
from a so-called “bad bargain”) is provided by the decision of Eksteen J in Edrei
Investments 9 Ltd (In Liquidation) v Dis-Chem Pharmacies (Pty) Ltd.61 Here, the
respondent lessee entered into a lease agreement with the applicant lessor, which
provided that it would trade at full capacity for the full period of lease as one of two
anchor shops at a shopping centre owned by the applicant lessor. However, when it
appeared that the lease was not as profitable as the lessee had anticipated, it
threatened to stop trading unless it was granted a 50% reduction in its rental. It even
argued that the lessor was not entitled to an order for specific performance, as it would
force the lessee to trade at a loss, and that the lessor should claim damages instead.
Eksteen J dealt with this argument in the following way:
“[T]he right to elect whether to claim performance or damages belonged to Edrei, not Dis-
Chem. If Dis-Chem were to breach the lease by vacating the premises other tenants would
follow, causing irreparable harm to Edrei’s business, and the fact that it could in due course
recover damages from Dis-Chem did not detract from this, since Edrei would have great
consciously seeks to achieve this result that is its affair. This kind of dog in the manger
attitude however strikes me as childish and not worthy of serious consideration as a so-
called impasse. I have therefore come to the conclusion that there is no reason why
Ranch’s duty to cooperate should not be enforced in forma specifica …”
61
2012 (2) SA 553 (ECP). Compare para 5 2 (iv), esp n 123 and its related text above &
para 5 3 esp treatment of Hamilton West case by Minnesota Court of Appeal in
Metropolitan Sports Facilities Commission v Minnesota Partnership in text to nn 153 ff.
317
difficulty in replacing Dis-Chem with a desirable tenant. It was clear that Edrei had no
alternative remedy to satisfy its operational requirements other than by interdict. The fact that
Dis-Chem had concluded a lease that was not as lucrative as anticipated did not entitle it to
walk away from its obligations, nor did the fact that it was trading at a loss deprive Edrei of its
right to elect to hold Dis-Chem to its obligations.”62
In contrast to this rather strict approach, the court in York Timbers Ltd v Minister of
Water Affairs and Forestry63 exercised its discretion to refuse specific performance by
applying the undue hardship principle, i.e. on the ground that to grant specific
performance would have resulted in undue hardship to the defendant. Here the
applicant claimed specific performance of a contract in terms of which the respondents,
on behalf of the Department of Water Affairs and Forestry, undertook to sell softwood
sawlogs to the applicant. The contract also imposed certain conditions upon the
Department regarding the management of the plantations. In particular, the Department
warranted and undertook that the plantations from which the sawlogs were supplied
would always be exclusively devoted to softwood afforestation. The respondents
contended that the Department had failed to ensure that the plantations were
exclusively devoted to softwood afforestation because they no longer conducted normal
silvicultural operations in the plantations, but had commenced clear felling64 the
plantations with a view that they become part of a conservation area.
The court found that precise performance of the obligation to devote the plantations to
softwood afforestation would cause excessive inconvenience and expense to the
Department since clear felling has supposedly been carried out for at least a year and
could not be reversed without enormous inconvenience and expenditure for the
Department. It held that even though clear felling was not the normal silvicultural
practice contemplated by the agreement, it appeared to be common cause that the
plantations had become so run down that the Department could not supply the volume
62
553F-H.
63
2003 (4) SA 477 (T).
64
This is the practice of uniformly cutting down all the trees in an area.
318
of sawlogs stipulated by the contract. And by clear felling the plantations the
Department will be able to deliver the volumes of sawlogs stipulated by the contract, but
that will mean that the plantations will no longer be exclusively devoted to softwood
afforestation. So, the court ordered specific performance by the Department to the
extent of delivering the volume of timber contracted for, but the court refused to order
compliance with the conditions regarding the management of the plantations.
Another good example of the exercise of the discretion to refuse specific performance
by applying the undue hardship principle is Klimax Manufacturing Ltd v Van Rensburg,65
where Hattingh J refused to order the first respondent to comply with the contractual
provisions of a tacit franchise agreement and the restraint provisions set out therein on
the ground that: “To interdict Van Rensburg for a few months for what he has been
doing, with apparent unconcern on the part of applicants for 16 months, would operate
unreasonably harshly and inequitable under all the circumstances.”66 The court found
that because the applicants were well aware of their rights in terms of the clause in
restraint of trade67 some 16 months before they instituted the proceedings, they cannot
contend that the respondents were causing them grievous financial harm.68
The preceding section has indicated that although the courts at times formally only
regard undue hardship as a relevant factor influencing (or circumstance affecting) the
exercise of their unfettered discretion, it appears that actual judicial practice is to refuse
specific performance whenever undue hardship to the defendant or third parties is
present; this means that the discretion to award specific performance is in effect
65
2005 (4) SA 445 (O).
66
Para [18].
67
The clause provided that the franchisee (represented by Van Rensburg) “shall not for a
period of two years thereafter and within the territory, directly or indirectly in any capacity
whatsoever be engaged, concerned or interested in the business which competes,
indirectly or directly, with or is similar in nature to this business” (para [6]).
68
Para [15].
319
irrelevant. It also seems that commentators have known this for a long time, but the
consequences have not been fully worked out.
It therefore appears that our law faces a choice. It could continue with its purportedly
flexible discretionary approach whereby hardship is a relevant factor in the exercise of
the court’s discretion, or it could expressly adopt a rule whereby specific performance is
restricted if it would cause undue hardship to the defendant or to third parties.69 The
purpose of the following comparative overview is to assist in determining the most
appropriate option for South African law.
In the comparative overview we will first turn to Anglo-American law, which initially
steered our law in the direction of an exception-based approach, and despite the
rejection of such an approach, significantly and dramatically influenced our courts’
approach to specific performance. As noted above, the origin of specific performance in
the English courts of equity has influenced the factors our courts may take into account
in exercising their discretion to refuse the remedy.70 This is especially apparent in the
discretionary power given to our courts to refuse the remedy if it would cause injustice.71
69
See esp in this regard, statement by Lubbe quoted in text to n 226 below.
70
See eg paras 1 1 3, 3 3, 4 2 1 & 6 1 1 above. See also Lubbe “Contractual derogation and
the discretion to refuse an order for specific performance” in Glover (ed) Essays in Honour
of AJ Kerr 83.
71
Compare, eg, the speech of Sir John Romilly in Haywood v Cope (1858) 25 Beav
140 151-152, with that of Hefer JA in Benson v SA Mutual Life Assurance Society 1986
(1) SA 776 (A) 1986 (1) SA 776 (A) 783A-E, to the same effect. See also G H Treitel
Remedies for Breach of Contract: A Comparative Account (1988) 65-66. For US authority,
see Knott v Cutler 31 S.E.2d 359, 361 (1944) per Denny J: “It is said in 49 Am.Jur., Sec.
8, p. 13: ‘Assuming that the contract in question in an action for specific performance is
one of the class of contracts of which specific performance may be granted because of
inadequacy of the remedy at law, the granting of the decree of specific performance is not
a matter of absolute right. As the rule is usually stated, the granting of relief by a decree
requiring specific performance of a contract rests in the sound discretion of the court
before whom the application is made, which discretion is to be exercised upon a
320
The common law therefore requires further evaluation, even though its reception has
proven to be problematic in this area of our law.
6 2 Undue hardship as a bar to specific performance in common law: England

and America
Undue or “severe” hardship (as it is known in England) to the defendant is regarded as

a ground for refusing specific performance at common law, represented here by
English72 and American law.73 As indicated from the outset, the starting point of English
and American contract law is that monetary damages are sufficient and thus the primary
remedy for breach of contract. Specific performance is only awarded when damages
are inadequate, and is therefore the secondary remedy for breach of contract.74 But,
even if damages are inadequate, specific performance will be refused where it would
cause the defendant severe hardship, far exceeding the loss the plaintiff would suffer as
consideration of all of the circumstances of the case, with a view of subserving ends of
justice. This discretion of a court of equity to grant or withhold specific performance of a
contract is not an arbitrary or capricious one, but is a judicial discretion to be exercised in
accordance with settled rules and principles of equity, and with regard to facts and
circumstances of the particular case. The remedy of specific performance will be granted
or withheld by the court according to the equities of the situation as disclosed by a just
consideration of all the circumstances of the particular case, and no positive rule can be
laid down by which the action of the court can be determined in all cases.’”
72
Jones & Goodhart Specific Performance 117; A S Burrows Remedies for Torts and
Breach of Contract 3 ed (2004) 498; Spry The Principles of Equitable Remedies 196; J
Beatson et al Anson’s Law of Contract 29 ed (2010) 580; Peel Treitel’s Law of Contract
1106-1107; H G Beale et al (eds) Chitty on Contracts I: General Principles 31 ed (2012)
1926-1927; M Chen-Wishart Contract Law 4 ed (2012) 546; M P Furmston Cheshire,
Fifoot and Furmston’s Law of Contract 16 ed (2012) 798.
73
J M Perillo (ed) Corbin on Contracts 12: Restitution, Specific Performance and Election of
Remedies Interim ed (2002) §§ 1162, 1164; J M Perillo Calamari and Perillo on Contracts
6 ed (2009) § 16.14; G Klass Contract Law in the USA (2010) 215.
74
Spry The Principles of Equitable Remedies 198; para 2 3 2 above.
321
a result of the breach.75 For example, in Patel v Ali76 the plaintiff sought specific
performance of a sale agreement of a house four years after its conclusion. By that time
the seller fell seriously ill, had borne two more children, and her husband was declared
insolvent. The court therefore found that an order forcing her to move would cause a
“hardship amounting to injustice” as she spoke little English and relied on nearby friends
and family for support.77 It follows that English law will, as a general rule, restrict the
availability of specific performance where performance has become onerous due to a
change of circumstances. As stated by Goulding J:
“Equitable relief may … be refused because of an unforeseen change of circumstances not

amounting to legal frustration, just as it may on the ground of mistake insufficient to avoid a
contract at law.”78
75
See eg Denne v Light (1857) 8 De GM & G 774 (where the court refused to order specific
performance against a purchaser of farming land which he would have been unable to
enjoy because of the absence of any right of access); Haywood v Cope (1858) 25 Beav
140 145 (n 82 below). This is confirmed in J N Pomeroy Jr Pomeroy’s Equity
Jurisprudence and Equitable Remedies VI 3 ed (1905) § 796: “Specific performance not
being an absolute right, the fact that enforcement would be of little or no benefit to the
complainant, and a burden upon the defendant, is sufficient to constitute performance
oppressive, and it will not be given. The disproportion between the burden upon the
defendant and the gain to the plaintiff makes performance inequitable.”
76
[1984] Ch 283. See also Gould v Kemp (1834) 39 ER 959 961 per Brougham LC: “any
circumstance of hardship in the Defendant’s situation will incline the Court not to interfere,
but to leave the party to his legal remedy in damages”, and Wroth v Tyler [1974] Ch 30,
where specific performance of a contract for the sale of land was refused because it would
give rise to uncertain and difficult litigation between members of the defendant’s family
and a possible consequence of the order would be to split up their family.
77
[1984] Ch 283 288, per Goulding J, using a phrase originally employed by James LJ, in
Tamplin v James (1880) 15 ChD 215 221. For further information see eg E McKendrick
Contract Law: Text, Cases and Materials 2 ed (2005) 1147.
78
[1984] Ch 283 288.
322
However, as in the Anastassiou Brothers case,79 Goulding J, also stressed that “mere
pecuniary difficulties” are insufficient to offer an excuse from performance of a contract:
“[O]nly in extraordinary and persuasive circumstances can hardship supply an excuse for
resisting performance of a contract for the sale of immovable property. A person of full
capacity who sells or buys a house takes the risk of hardship to himself and his dependants,
whether arising from existing facts or unexpectedly supervening in the interval before
completion …”80
It follows that a contract which was fair at its conclusion may be specifically enforced
even though subsequent events turned it into a bad bargain.81 And specific performance
will be ordered even if a purchaser contracted to buy property of a speculative or
doubtful character and it turns out to be worthless.82 Thus, the court will always balance
the hardship which the defendant would suffer if ordered to perform against any
79
1973 (2) SA 601 (W) 609B-C per Davidson J: “That it would be inconvenient [for the
defendant if he were compelled to accept performance by the plaintiff to install equipment
in his premises] is likely, that he will suffer some financial loss is likely, but that he has
brought on himself by an arrogant denial of his commitments and I do not believe he
should earn particular sympathy for that.”
80
[1984] Ch 283 288. See also Francis v Cowcliffe (1977) 33 P & CR 368 (ChD); Jones &
Goodhart Specific Performance 119; Burrows Remedies for Torts and Breach of Contract
499; Beatson Anson’s Law of Contract 580; Perillo (ed) Corbin on Contracts 275-276.
81
For American authority in support of this principle, see Simpson v Green 231 S.W. 375,
380-381 (Tex. Comm’n App. 1921); Knott v Cutler 31 S.E.2d 359, 361 (1944); Cities
Service Oil Co v Viering 89 N.E.2d 392, 401 (1949); De Caro v De Caro 97 A.2d 658, 662
(1953); Clardy v Bodolosky 679 S.E.2d 527, 531 (Ct. App. 2009). See also Perillo (ed)
Corbin on Contracts 275-276.
82
So, in Haywood v Cope (1858) 25 Beav 140, it was held that the defendant who
contracted for the lease of a mine could not resist its performance because the collieries
turned out to be less profitable than he anticipated. See also Northcote A Treatise on the
Specific Performance of Contracts by Sir Edward Fry § 427.
323
hardship to the plaintiff if the order is refused.83 And the order will only be refused if the
detriment to the defendant is entirely out of proportion to the benefit which the plaintiff
will derive from performance. In Co-operative Insurance Society Ltd v Argyll Stores
Holdings Ltd,84 Millet LJ (dissenting), concluded that
“To compel a defendant for an indefinite period to carry on a business which he considers is
not viable, or which for his own commercial reasons he has decided to close down, is to
expose him to potentially large, unquantifiable and unlimited losses which may be out of all
proportion to the loss which his breach of contract has caused to the plaintiff.” 85
Thus, even though the scope of the hardship restriction is limited and courts should not
refuse to order specific performance based on mere financial difficulties, the “objection
may extend to economic considerations on a more objective basis, i.e. independent
from the particular position of the seller”86 as it did in Argyll Stores, where the remedy
was refused, inter alia, because it would have forced the defendant to continue trading
at a loss.
83
For example, in O’Neill v Ryan (No 3) [1992] 1 IR 166, the plaintiff was granted specific
performance because the hardship to the defendant was outweighed by the hardship the
plaintiff would have suffered from the refusal of the order as he would have been left
holding shares in a company engaged in business in a highly volatile industry. See also
Watson v Marston (1853) 4 De Gex, M & G 230 238 per Turner LJ.
84
[1996] Ch 286, 304-306 (AC).
85
The House of Lords, in its refusal of an order of specific performance of a keep-open
clause, also regarded the loss which the defendant may suffer through having to comply
with the order by running a business at a loss for an indefinite period as greater than that
which the plaintiff would suffer from the contract being breached. See para 5 2 (ii) above.
86
V Mak Performance-Oriented Remedies in European Sale of Goods Law (2009) 98: “For
example, there are circumstances in which the court can presume that performance would
become too onerous on any party, regardless of the financial position that they find
themselves in.”
324
In determining whether to grant the discretionary remedy of specific performance the

courts (of both England and the US) will also consider the effect of such an order87 on
third parties.88 According to Corbin “[t]he interests of individuals not parties to the
contract and of the public at large will be considered by the court and in some cases will
be decisive in determining whether to grant or to refuse a decree for specific
87
According to Fry “[t]he question of the hardship of a contract is generally to be judged of at
the time at which it is entered into...” (G R Northcote A Treatise on the Specific
Performance of Contracts by Sir Edward Fry 6 ed (1921) 199 § 418). Spry, however,
distanced himself from Fry’s proposition, and stated that the cases Fry relied on did not
support this view (I C F Spry The Principles of Equitable Remedies: Specific Performance,
Injunctions, Rectification and Equitable Damages 8 ed (2010) 196-197). Fry’s view is not
tenable because, as Spry correctly argues, questions of hardship might not arise at the
stage of contract conclusion but subsequent events might occur that render performance
more onerous for the defendant. Fry, however, did qualify his statement in a subsequent
section, by referring to cases in which the courts refused specific performance based on
events that occurred after the conclusion of the contract (Northcote § 421). For example,
in The City of London v Nash (1747) 26 ER 1095, where a party agreed to re-build several
houses, but eventually only built two new houses and repaired the others, the Court of
Chancery held that ordering specific performance at that stage would result in too great a
loss and hardship to the defendant, and would in any event be useless to the plaintiff.
Jones and Goodhart also confirm that “there is no logical justification for entirely ignoring
hardship to the defendant which has arisen from events occurring after the date of the
contract, and in fact in several of the cases in which specific performance has been
refused on grounds of hardship to the defendant the hardship arose from [subsequent]
events” (Specific Performance 2 ed (1996) 123). See also E Peel Treitel’s Law of Contract
13 ed (2011) 1107).
88
See J N Pomeroy Jr A Treatise on the Specific Performance of Contracts 3 ed (1926) §
181a: “Where the rights of innocent third persons, not parties to the contract, will be
affected, the court may properly consider whether specific performance would be fair and
just to them, and withhold the remedy accordingly. The court may also consider the public
inconvenience which would result from the enforcement of a contract.” See more recently,
325
performance”.89 Analogous to Haynes, a Pennsylvania court accordingly refused to

order specific performance of an electricity supplier’s obligation to supply a sufficient
flow of water to a company to generate electricity for manufacturing paper on the
ground that it “would result in paralysis of the Power Company, and in disabling it, not
only to furnish water power to the Paper Company, but to furnish electric light and
power through a wide and thickly settled region of country”.90
Thus, the discretionary nature of this equitable remedy permits its refusal when a variety
of factors combine to make the specific enforcement of a contract unfair. This is
apparent from § 364 of the American Law Institute’s Restatement (Second) of
Contracts.91 It lists certain circumstances in which a court might consider specific
performance unfair and for that reason refuse to order specific performance; it also
envisages a balancing of competing interests in order to determine whether specific
performance would be fair. One of the grounds for refusal is where “the relief would
cause unreasonable hardship or loss to the party in breach or to third persons”.92 § 364
(2), on the other hand, protects the plaintiff’s (and third persons’) interest(s) in
performance. It provides that specific performance will be granted if its denial would be
unfair because it would cause unreasonable hardship or loss to the party seeking relief
or to third persons. Thus, in deciding whether to grant or refuse the remedy, courts
consider not only the hardship such an order might impose on the parties themselves,
but also the hardship it might impose on or benefits it might provide third parties or the
89
Perillo (ed) Corbin on Contracts § 1169. See also Pomeroy Jr Pomeroy’s Equity
Jurisprudence and Equitable Remedies §§ 794-795; Klass Contract Law in the USA 215,
and for English authority, Spry The Principles of Equitable Remedies 201-203; Jones &
Goodhart Specific Performance 121-122.
90
York Haven Water & Power Co v York Haven Paper Co 201 F. 270, 279 (C.C.A.3d, 1912).
91
Addendum A 384.
92
§ 364(1)(b). In terms of this section a court may also refuse to order specific performance
where “the contract was induced by mistake or unfair practices”, or where “the exchange
is grossly inadequate or the terms of the contract are otherwise unfair” (§§ 364(1)(a) &
364(1)(c) respectively).
326
public at large. A court may therefore refuse specific performance on the ground that it
would be unfair considering the hardship it might cause the contractual parties or third
parties, yet afford the aggrieved party damages or other relief.93
The comments to § 364 contain examples of its application. The comments suggest that
the section applies to those situations where impracticability of performance or
frustration that fall short of what is required for relief under those doctrines, are
involved.94 The position in South African law is somewhat similar: although specific
performance is the default remedy for breach of contract, the courts will also consider
the hardship its order might cause the defendant in the exercise of their discretion, and
may refuse to order specific performance if performance becomes excessively
burdensome but falls short of what is required for avoidance under the doctrine of
supervening impossibility.95
As is the case with considerations of fairness (recognised in § 364 of the Second

Restatement), considerations of public policy might also preclude an order for specific
93
Klass Contract Law in the USA 215.
94
See n 123 below.
95
See text to nn 10 ff para 6 1 1 above. See also Benson v SA Mutual Life Assurance
Society 1986 (1) SA 776 (A) 1986 (1) SA 776 (A) 783E-F per Hefer JA: “Furthermore, the
Court will not decree specific performance where performance has become impossible.
Here a distinction must be drawn between the case where impossibility extinguishes the
obligation and the case where performance is impossible but the debtor is still
contractually bound. It is only the latter type of case that is relevant in the present context,
for in the former the creditor clearly has no legal remedy at all.” (The judge relies on De
Wet & Van Wyk Kontraktereg en Handelsreg (1978) 4 ed 189 n 61 and the cases cited
there, and also Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) 441-443,
where Miller JA states that “it may be that in certain cases evidence falling short of proof
of impossibility might nevertheless justify a Court in refusing to decree specific
performance” (443B)).
327
performance.96 According to § 365 of the Second Restatement, specific performance

will not be granted “if the act or forbearance that would be compelled or the use of
compulsion is contrary to public policy”. Thus, in Rockhill Tennis Club of Kansas City v
Volker,97 the Supreme Court of Missouri refused to order specific performance of a
contract for the sale of land located near a public art museum, because the buyer’s
planned use of the land might “seriously mar and hamper the plan of development of
this gallery of art as a thing of beauty”.98 Public interest may, however, weigh in favour
of specific performance. For example, in Wilson v Sandstrom,99 the Supreme Court of
Florida confirmed a specific performance order requiring the provision of greyhounds to
a racetrack on the basis of the loss in tax revenue that would follow from the suspension
of racing.
These sections might preclude specific performance, but this does not necessarily
excuse the debtor from liability. Even though specific performance may be refused, a
judgment for damages may be granted to protect the creditor’s expectation interest.100
The debtor is thus liable, albeit not to perform in specie. Thus, in Rockhill Tennis Club
the club was permitted to recover damages.101 This largely corresponds with our law,
where the basic principle is that courts should refuse to order specific performance if it
would produce an unjust result, but if a court decides to refuse the remedy on this
96
In Seaboard Air Line Railway Co v Atlanta B & C R Co 35 F. (2d) 609, 610 (1929) the
court said: “In the exercise of its discretion, a court of equity may refuse specific
enforcement of a valid contract where, by granting that relief, a paramount public interest
will or may be interfered with”.
97
56 S.W.2d 9 (Mo. 1932).
98
56 S.W.2d 9, 20 (Mo. 1932).
99
317 So.2d 732 (Fla. 1975).
100
See § 365, cmt a.
101
56 S.W.2d 9, 21 (Mo. 1932). Similarly, in Patel v Ali [1984] Ch 283, the defendant
remained liable for damages. See further G H Treitel Frustration and Force Majeure 2 ed
(2004) 301-302.
328
ground, the creditor will still be able to claim his id quod interest, by way of a claim for
damages.102
The preceding section has indicated that Anglo-American law recognises severe or
undue hardship as a ground for refusing specific performance, but the scope of the
hardship restriction is limited by the fact that it does not extend to subjective economic
considerations, i.e. the court will not be dissuaded from ordering specific performance
based on the particular financial interest of the debtor.103
The aim of the following sections will be to examine the relevance of hardship in certain
civil-law systems and international instruments. It should be borne in mind that they, in
contrast to Anglo-American law, recognise specific performance as their primary or
default remedy for breach of contract and generally do not accord the courts any
discretion in granting it. Instead, they grant the creditor a right to specific performance,
subject to certain exceptions.104
6 3 Unreasonable effort or expense as a bar to specific performance in civil law:

Germany and the Netherlands
Hardship is recognised as a bar to specific performance in German law to the extent

that § 275(2) of the German Civil Code or Bürgerliches Gesetzbuch (BGB)105
102
See again text to nn 10 ff para 6 1 1 above.
103
See eg Mak Performance-Oriented Remedies in European Sale of Goods Law 98: “As to
economic hardship, the scope appears narrow. Specific performance will not be refused
simply because the defendant is in financial difficulties.”
104
See paras 2 3 1 & 2 3 3 above.
105
On a procedural level, § 765a of the ZPO (Addendum A 395) applies to the execution of
court orders and gives the court (of execution) the power to revoke, prohibit or temporarily
suspend either completely or in part, a measure of execution, on application of the debtor,
if, in full consideration of the creditor’s need for protection, the measure would lead to
hardship that due to very special circumstances is immoral (contra bonos mores). In
commenting on this section, Beale et al note that it will only prevent execution in “drastic
329
determines that the debtor may refuse to perform insofar as such performance would
require an effort which would be grossly disproportionate to the interest of the creditor in
receiving performance, taking into account the content of the obligation and the
requirements of good faith. Note however, that § 275(2), dealing with hardship (in
contrast to § 275(1) dealing with impossibility),106 does not exclude the creditor’s right to
specific performance, but merely gives the debtor the right to refuse to perform if the
performance would involve unreasonable efforts or expense.107 This provision
essentially codifies an approach followed by the German Supreme Court, the
Bundesgerichtshof (BGH).108
In the leading case109 the defendant built flats on a plot of land, part of which was to be
transferred to the plaintiffs under an agreement of sale. On the remaining land the
defendant built an underground car park, which, by mistake extended to and covered
about 20 square meters of land purchased by the plaintiffs. This meant that the
defendant could not transfer the part of land contracted for. The plaintiffs therefore
and exceptional circumstances”, in absence of which, the creditor’s interest in having the
judgment enforced will prevail (Cases, Materials and Text on Contract Law 2 ed (2010)
882).
106
See n 114 below.
107
§ 275(3) on force majeure, similarly gives the debtor the right to refuse performance, i.e.
only the duty of performance is excluded and it remains open to the creditor to claim
performance and the debtor to render performance in spite of the obstacle to his
performance (Addendum A 389). See R Zimmermann The New German Law of
Obligations: Historical and Comparative Perspectives (2005) 45 (text to nn 115-116
below), and C Brunner Force Majeure and Hardship under General Contract Principles:
Exemption for Non-performance in International Arbitration (2009) 83 ff.
108
Mak Performance-Oriented Remedies in European Sale of Goods Law 100-101. See also
Treatise 2 ed (2006) 414: “Paragraph 275 II BGB was not meant to change the law but
rather to encapsulate the rationes of two decisions of the BGH dealing with the exclusion
of the main obligation of performance due to disproportionate outlays.”
109
BGH, BGHZ 62, 388 (21.6.1974).
330
demanded the removal of the encroachment to achieve specific performance of the

contract. The BGH refused the plaintiffs’ claim for the removal on the ground that it
would be unreasonable to order the defendants to reconstruct the car park considering
the expense involved in such a reconstruction.
Another relevant authority110 concerned the sale by the defendant of a part of land
which the defendant held in trust for the plaintiff. The plaintiff demanded that the
defendant transfer the property back to him, but the third-party purchaser, having
obtained a stronger proprietary interest, was only willing to renounce his right if the
defendant bought it back at thirty times its estimated value. The BGH referred to the
principle of good faith and accordingly held that the defendant could not be reasonably
expected to buy the land back at thirty times its value; therefore he was released from
his obligation to transfer the land back to the plaintiff. These decisions also illustrate that
the provision envisages a balancing exercise, and the duty of performance will only be
excluded where the disadvantage to the defendant outweighs the plaintiff’s interest in
performance. According to Zimmermann this provision is designed to take account of
what was previously termed “practical impossibility” (praktische Unmöglichkeit)111 and
this is why the effort required to perform is measured against the interest of the creditor
in receiving performance.112
Compared to our law,113 it is particularly noteworthy that initial objective impossibility

does not affect the validity of the contract in modern German contract law.114 However,
110
BGH, NJW 1988, 799. Referred to by Markesinis et al German Law of Contract 414, and
Mak Performance-Oriented Remedies in European Sale of Goods Law 101.
111
See further, on the nature of this type of impossibility, Ernst W “§ 275” in Krüger W (ed)
Münchener Kommentar zum Bürgerlichen Gesetzbuch 2 Allgemeiner Teil: §§ 241-432 6
ed (2012) para 37.
112
Zimmermann The New German Law of Obligations: Historical and Comparative
Perspectives 45.
113
See para 6 1 1 above & para 7 2 2 below.
331
as far as the exclusion of the right to specific performance is concerned, according to

Zimmermann, § 275(2) BGB necessitates a further distinction because it “provides for a
different legal consequence from the one concerning factual impossibility: the debtor’s
obligation does not automatically fall way, but the debtor is merely granted a right to
refuse performance”. The implication is that the law “wants to leave it open for the
debtor to render performance in spite of the unreasonable effort which this may
involve”.115 (While, according to § 275(1) the debtor is released from his obligation of
performance, as the claim for performance is excluded.) Thus, § 275(2) BGB excludes
the debtor’s duty of performance but not the creditor’s claim to the performance.116 But if
the debtor refuses to perform according to § 275(2) BGB, a judgment for damages will
still be granted to protect the plaintiff’s expectation interest.117 This is stated expressly in
§ 283 BGB, which determines that a claim for damages (in lieu of performance) is not
affected where the duty of performance is excluded under § 275.
Treitel, in his comparative treatise on force majeure and frustration, observes that
“Recent developments in German law show considerable convergence between civil and
common law approaches to this topic. Before the coming into force in 2002 of amendments
114
§ 311a(1) BGB; Markesinis et al German Law of Contract 408; Zimmermann The New
German Law of Obligations 44: “§ 275 I BGB, as its wording makes it clear, applies to all
types of impossibility: objective impossibility (nobody can perform) subjective impossibility
(a specific debtor cannot perform), initial impossibility (performance was already
impossible when the contract had been concluded), subsequent impossibility
(performance has become impossible after conclusion of the contract), partial
impossibility, and total impossibility. Exclusion of the right to specific performance does
not depend on whether the debtor was responsible for the impossibility or not.”
115
Zimmermann The New German Law of Obligations 47. See also F Faust & V Wiese
“Specific performance – a German perspective” in J Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives (2008) 47 51.
116
117
Markesinis et al German Law of Contract 408-409. See also G H Treitel Frustration and
Force Majeure 2 ed (2004) 3-4.
332
to the Civil Code (BGB), that Code provided that a contract for an impossible performance
was null (nichtig).118 This provision has been repealed so that antecedent impossibility is no
longer a ground for invalidity.119 Instead, impossibility is a bar to a claim for (specific)
performance120 but not to one for damages …”121
The convergence he refers to relates to the fact that most common law jurisdictions do
not follow the impossibilium nulla obligatio est principle.122 As a general rule, the maxim
pacta sunt servanda commands that contracts should be performed absolutely (albeit
by means of monetary compensation). US courts have continually repeated this
theme.123
118
Referring to former § 306 BGB.
119
Referring to § 311a(1) BGB.
120
Referring to § 275(1) BGB.
121
Frustration and Force Majeure 3-4.
122
1 ff.
123
See eg Cook v Deltona Corporation 753 F.2d 1552, 1557 (11th Cir. 1985); and see P
Walter “Commercial impracticability in contracts” (1987) 61 St John’s Law Review 225.
However, in case of frustration of contract – i.e. when the contract is rendered useless by
the change of circumstances – an exception is granted to this general rule. The modern
trend in the US is to allow the defence of impossibility when performance is impracticable
because of excessive and unreasonable difficulty or expense. The Second Restatement §
261 states the general principle under which a party’s duty of performance may be
discharged due to impracticability: where, after a contract is made, a party’s performance
is made impracticable without his fault by the occurrence of an event, the non-occurrence
of which was a basic assumption in which the contract was made, his duty to render that
performance is discharged …”. This means that he may be excused from that duty if
performance has unexpectedly become impracticable as a result of a supervening event.
Where contracts for the sale of goods are concerned, UCC § 2-615 contains a similar rule.
Thus, in the US, the doctrine of changed circumstances is identified as the doctrine of
commercial impracticability. Similarly, in England, the doctrine of changed circumstances
was used to explain and develop a doctrine of frustration of purpose, which excuses non-
performance when the purpose or foundation of the contract has disappeared. These
333
The impossibilium nulla obligatio est principle has also been rejected in English law.124
These systems recognise that parties can effectively enter into a contract requiring one
of them to do the impossible, because in common law, the primary remedy for breach of
contract is damages, and performance of an obligation to pay money is never
considered to be impossible.125 According to Treitel, the recognition of specific
performance as the primary remedy for breach of contract by civil-law systems explains
why these systems experience “conceptual difficulty about the actual enforceability of
the impossible obligation” and instead hold the party responsible for the impossibility
liable for compensation.126
A creditor’s right to specific performance under Dutch law is restricted in a similar

way.127 Article 3:296(1) of the Burgerlijk Wetboek (BW) makes it clear that specific
performance cannot be claimed if the law, the nature of the obligation, or a juridical act,
determines otherwise.128 It follows that a claim for specific performance may be
restricted on the basis of (i) legal provisions to be found in the BW itself, (ii) the nature
doctrines excuse performance that fall short of the standard of objective impossibility. See
further on the legal consequences of these doctrines, E A Farnsworth Contracts 3 ed
(1999) 637 ff; Treitel Frustration and Force Majeure 546 ff. Cf text to n 94 above.
124
See eg Thornborow v Whitacre (1705) 2 Ld Raym 1164 1165 per Holt CJ “where a man
will for a valuable consideration undertake to do an impossible thing, though it cannot be
performed, yet he shall answer damages”. See also Jones v St John’s College (1870) LR
6 QB 115 127; Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd
[1942] AC 154 163; Eurico SpA v Philipp Bros (The Epaphus) [1987] 2 Lloyd’s Rep
215 218. See further A Burrows (ed) English Private Law 3 ed (2013) 601-602.
125
Evidenced by Holmes’ famous words on contractual liability (see para 3 2 above). See
also Markesinis et al German Law of Contract 407: “The question as to the extent to which
impossibility releases the debtor from the obligation of performance does not arise directly
in Anglo-American law. Since specific performance is the exception, it is not necessary to
deal with impossibility as a defence to a claim for performance.”
126
Treitel Frustration and Force Majeure 2-3.
127
See text to n 117 para 2 3 1 2 above.
128
Asser/Hartkamp & Sieburgh 6-II De Verbintenis in het Algemeen (2009) nr 344.
334
of the debtor’s obligation, and (iii) a juridical act, for example where the parties to the
contract agree that the remedy is not available to either one of them, or even that no
remedies can be exercised in the case of non-performance.129 And, a debtor would be
able to raise a defence on the basis of Article 3:13 BW to the effect that the creditor has
abused his right (contained in Article 3:296(1)) in claiming specific performance. This
will be the case when it is established that the creditor cannot reasonably resort to his
right to claim specific performance, having regard to the disproportionality between his
interest in exercising that right and the interest of the debtor that will be harmed as a
result of such exercise. It may be concluded then that this defence will be available to
defendants in hardship cases. Article 3:12 BW also provides that the substantial
interests of third parties can be taken into account in considering whether such
disproportionality exists.130
Apart from these limitations listed in the BW, the availability of specific performance has
also been limited through developments in the case law. These developments include
impossibility of performance, and more recently, limitations on grounds of
reasonableness and equity.131
Let us first consider the limitation of impossibility (onmogelijkheid), to the extent that it
relates to the arguments advanced here. Dutch courts will not grant specific
performance in relation to an obligation which turns out to be impossible to perform.132
The BW, however, does not define the concept of impossibility,133 and its development
129
D Busch et al (eds) The Principles of European Contract Law and Dutch Law: A
Commentary (2002) 349 (section by M B M Loos).
130
See generally D Haas & C Jansen “Specific performance in Dutch law” in J Smits, D Haas
& G Hesen (eds) Specific Performance in Contract Law: National and Other Perspectives
(2008) 11 15-20.
131
17.
132
133
Busch et al (eds) The Principles of European Contract Law: A Commentary 193 (section
by M M van Rossum).
335
was therefore also left to the courts. It is of particular relevance that impossibility does
not only refer to situations where performance has become absolutely impossible (for
example where the object of a sale agreement is physically destroyed before delivery),
but also situations where performance is considered relatively impossible, since it would
cause unreasonable inconvenience to the debtor. The concept of relative impossibility
includes cases of practical impossibility, i.e. cases where factually performance is still
possible, but it would be inconceivable to expect the debtor to perform considering the
circumstances of the case. And if performance has become practically impossible, an
order for specific performance may not be granted.134 The Hoge Raad (Dutch Supreme
Court) also authoritatively held that courts should not grant specific performance “when
the debtor would only be able to perform his obligations by making sacrifices that
cannot be required from him considering all circumstances of the case”.135
This position clearly corresponds with the German position and the limitation recognised
in the BGB. In contrast to our law, impossibility (albeit relative or absolute) does not
affect the validity of the contract in both German and Dutch contract law. These systems
do, however, recognise that impossibility excludes the remedy of specific performance
of the obligation.136 Thus, they hold the debtor who cannot perform due to impossibility
liable for damages. It can be concluded then that the notion of impossibility appears to
be much wider in German and Dutch contract law, in that it includes the situation where
performance is possible but it would be unreasonable to expect the debtor to perform.
134
356 (section by M B M Loos).
135
HR 21 May 1976, NJ 1977, 73 (Oosterhuis/Unigro). See also HR 9 May 1969, NJ 1969,
338 (Van der Pol/De Jong), and HR 27 June 1997, NJ 1997, 641 (Budde/Toa Moa
Cruising Ltd).
136
See G J P de Vries “Are the Principles Of European Contract Law better than Dutch
contract law?” in M W Hesselink & G J P de Vries Principles of European Contract Law
(2001) 107 130 346; Busch et al (eds) The Principles of European Contract Law: A
Commentary 193 (section by M M van Rossum). See also J du Plessis “Possibility and
certainty” in D Hutchison & C Pretorius (eds) The Law of Contract in South Africa 2 ed
(2012) 206.
336
The bottom line is that this situation nevertheless constitutes an impediment in claiming
specific performance in our law. To that extent, the consequences for the debtor’s
counter-performance if his performance requires unreasonable efforts in these systems
are the same as the consequences in our law; the contract remains valid but specific
performance of the obligation is excluded. Whether it is fair to still hold the debtor liable
for damages is, however, open to doubt.137
It follows that Dutch courts may also refuse to enforce a contract where the contract will
be extremely disadvantageous and unreasonable to the debtor. They may deny the
remedy on the basis of reasonableness and equity, and award damages instead.
Accordingly, a court has refused to enforce a contract in terms of which a former wife
and husband agreed on the financial division of the family house, because it would have
left the woman and her children homeless.138
It is of note that German law, in contrast to Dutch law, expressly links the
disproportionality restriction to the general principle of good faith: § 275(2) BGB
provides that the debtor may refuse performance (Leistung) to the extent that
“performance requires expense and effort which, taking into account the subject matter
of the obligation and the requirements of good faith, is grossly disproportionate to the
137
For discourse on whether there is a more satisfactory solution to the problem of hardship
(falling short of the impossibility standard) as a result of changed circumstances, see
Lubbe “Contractual derogation and the discretion to refuse an order for specific
performance” in Glover (ed) Essays in Honour of AJ Kerr 95-98 (consider esp authority
cited in n 122, regarding the recognition of the doctrine of frustration in our law);
A Hutchison “Change of circumstances in contract law: the clausula rebus sic
stantibus” 2009 THRHR 60; “Gap filling to address changed circumstances in contract law
– when it comes to losses and gains, sharing is the fair solution” 2010 Stell LR 414; “The
doctrine of frustration: a solution to the problem of changed circumstances in South
African contract law” 2010 SALJ 84; J Coetzee “The case for economic hardship in South
Africa: Lessons to be learnt from international practice and economic theory” (2011) 36(2)
Journal for Juridical Science 8.
138
See HR 16 January 1981, NJ 1981, 312 (X/Y).
337
interest in performance of the creditor”. However, Mak convincingly argues that the
“disproportionality restriction in Dutch law may be brought under a similar heading of
good faith” if one considers certain provisions of the BW referring to the requirements of
reasonableness and fairness.139 First, Article 6:2(2) BW provides that “a rule in force
between a creditor and his debtor by virtue of law, common practice or a juridical act
does not apply as far as this would be unacceptable, in the circumstances, by standards
of reasonableness and fairness”. Secondly, Article 6:248(2) BW similarly provides that
“a rule, to be observed by parties as a result of their agreement, is not applicable insofar
this, given the circumstances, would be unacceptable to standards of reasonableness
and fairness”. 140
The development of the concepts of reasonableness and equity, even though codified in
Articles 6:2 and 6:248(2) BW, also depends on the courts, as these concepts
encompass a rather wide range of possible limitations. And an analysis of Dutch case
law illustrates that the principle of good faith must be observed by parties and courts in
maintaining the rights granted to parties in having their contracts specifically performed.
In this regard the Hoge Raad held in 2001141 that it is in the courts’ discretion to refuse
specific performance on the basis of reasonableness and equity. This case concerned
the design and construction of an office building in the centre of Rotterdam. After
completion and delivery of the building, the aluminum sheets applied to the building’s
exterior to make it weather-proof started to corrode. The plaintiff claimed replacement of
all this siding on the basis of non-performance of an obligation arising from a guarantee
in the contract. However, the defendant argued that such an order should not be made
because it would be economically severely detrimental to him. He proposed an
alternative solution that would be less detrimental and maintained that it would be more
139
140
Cf paras 2 3 1 2 & 5 4 above.
141
HR 5 January 2001, NJ 2001, 79 (Multi Vastgoed/Nethou). For further discussion, see
Mak Performance-Oriented Remedies in European Sale of Goods Law 101, and M Smits
Efficient Breach and the Enforcement of Specific Performance LLM thesis Amsterdam
Law School (2014) 19 ff.
338
convenient to simply repair the defects by treating the siding of the building with an
additional chemical substance which would protect it against further corrosion. He also
contended that this would adequately serve the interests of the plaintiff. Even though
the Hoge Raad did not accept his arguments, it emphasised that deciding a claim for
specific performance requires a balancing of the mutual interests of the parties. It
summarised the position as follows:
“The general principle is that the creditor may either choose specific performance, to the
extent that performance is still possible (...), or damages of any kind. When making his
choice, however, the creditor is not entirely free, given that he will be bound by the
requirements of reasonableness and equity, taking into consideration the reasonable
interests of his counterpart as well.”142
While the Hoge Raad confirmed that the requirements of good faith and fair dealing,
including the justified interests of the debtor, may stand in the way of an order for
specific performance, they upheld the order of the Gerechtsof (Court of Appeal) that the
defendant was bound to effect replacement, on the ground that the balancing of the
parties’ interests did not reveal disparity between the interests which are served by
ordering specific performance and the interests which are damaged as a result thereof.
The scope of the disproportionality restriction in civil-law systems is thus broader than it
is in Anglo-American law, which, as indicated above, limits the application of the
restriction in cases of economic hardship to the debtor. However, the principle of good
faith leaves “some scope” for taking into account economic hardship to the debtor.143
The cases decided by the German Supreme Court144 lay down limitations to the
availability of specific performance based on good faith. In both cases the court refused
to order specific performance based on the reasonable interests of the party against
142
HR 5 January 2001, NJ 2001, 79 (Multi Vastgoed/Nethou) 505. This quotation appears in
143
144
See text to nn 109-110 above.
339
whom the order was sought. As these cases indicate, the interests are likely to be of an
economic nature. In Multi Vastgoed/Nethou145 the Dutch Supreme Court similarly took
into account the possible economic detriment to the debtor if they ordered him to
perform in specie.146
What becomes increasingly clear is that the civil-law systems under review recognise
fewer restrictions to specific performance than the common-law systems do. This can
be ascribed to the fact that Anglo-American law recognises specific performance as an
exceptional remedy and courts have a discretion to grant the remedy. Bars to specific
performance do not arise directly in Anglo-American law, since specific performance is
the exception.147 However, as indicated above (and throughout this thesis) Anglo-
American law recognises discretionary reasons for refusing specific performance. The
purpose of recognising these reasons is to circumscribe the discretion the courts have
to grant the remedy, in order to ensure legal certainty, i.e. to enable practitioners to
advise their clients on the likely outcome of claims for specific performance. But, to
ensure that the right to specific performance is not compromised, the duty of
performance is only excluded in limited circumstances by the civil-law systems.148 The
question now is how international instruments, which are aimed at harmonising these
145
HR 5 January 2001, NJ 2001, 79 (discussed above).
146
Mak Performance-Oriented Remedies in European Sale of Goods Law 101-102; Smits
Efficient Breach and the Enforcement of Specific Performance 19, observing that “High
costs are what brought the Dutch Hoge Raad to introduce guidelines to what extent
specific performance can be demanded”.
147
See n 125 above.
148
See in relation to South African law, Lubbe “Contractual derogation and the discretion to
refuse an order for specific performance in South African Law” in Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives 110: “From this
perspective the denial of the existence of rules governing the exercise of the discretion in
Benson v. SA Mutual becomes understandable. It derives from an apprehension that the
development of a separate system of rules at the remedial level would erode the right of a
creditor to a performance contracted for according to the rules of substantive law.”
340
traditions, deal with the problem of hardship. It is to these instruments that we will now
turn.
6 4 Unreasonable effort or expense as a bar to specific performance in

international instruments: CISG, PECL, PICC, DCFR, CESL
As indicated in chapter 2, various international instruments that aim to promote greater

uniformity in contract law contain provisions granting the creditor a substantive right to
specific performance, subject to certain exceptions.149 The UNIDROIT Principles of
International Commercial Contracts (PICC),150 the Principles of European Contract Law
(PECL),151 the Draft Common Frame of Reference (DCFR),152 the Common European
Sales Law (CESL),153 and the UN Convention on Contracts for the International Sale of
Goods (CISG)154 regard specific performance as the primary remedy for breach of
contract, but restrict the availability of this remedy based on considerations of
reasonableness and practicability.
6 4 1 The CISG
As stated previously, the CISG follows a predominantly civilian approach in that specific
performance is regarded as the primary remedy and inadequacy of damages is not
required.155 However, there are indications in the CISG that reasonableness will be
considered in deciding whether to acknowledge the buyer’s right to specific
performance. These indications specifically relate to the buyer’s right to require repairs
under Article 46(3) of delivered but defective goods. According to this provision, the
buyer will have a general right to require the seller to cure any form of lack of conformity
149
150
Art 7.2.1 & Art 7.2.2 PICC. See also para 2 3 3 2 above.
151
Art 9:101 & Art 9:102 PECL. See also para 2 3 3 3 above.
152
Art III–3:302. See also para 2 3 3 4 above.
153
Art 110 (buyer’s right) & Art 132 (seller’s right). See also para 2 3 3 5 above.
154
Art 46 (buyer’s right) & Art 62 (seller’s right). See also para 2 3 3 1 above.
155
341
by way of repair “unless this is unreasonable, having regard to all the circumstances”.
Reasonableness of the buyer’s demand is determined according to the circumstances
surrounding the contract and the interests of both parties. When determining what is
unreasonable, both the seller’s and the buyer’s interests must be considered. For
example, the costs that the seller would have to incur as a result of the repair would be
taken into account. And if the repair is considered unreasonable in the circumstance,
the buyer will be entitled to damages or a reduction in price. This reflects the CISG’s
concern for not causing unreasonable inconvenience or hardship to the contracting
parties.156
Article 46(3) must be considered in conjunction with Article 28, which states that a court
is not bound to make an order for specific performance unless it would do so under its
own law.157 This means that in many systems a creditor may not be able to claim
specific performance because the main restrictions on specific performance in sale of
goods cases, namely impossibility and severe hardship, feature in all of the national
systems under review.158
156
Similarly, in terms of Art 48, the seller may, even after the date of delivery,
remedy at his own expense any failure to perform its obligations, if it can
do so without unreasonable delay and without causing the buyer unreasonable
inconvenience or uncertainty of reimbursement by the seller of expenses
advanced by the buyer. See L Chengwei Remedies for Non-performance –
Perspectives from CISG, UNIDROIT Principles and PECL (2007) 75. Available online at
<http://www.jus.uio.no/sisu/remedies_for_non_performance_perspectives_from_cisg_upic
c_and_pecl.chengwei_liu/landscape.a5.pdf>. See also S Eiselen “A comparison of the
remedies for breach of contract under the CISG and South African law” in J Basedow et al
(eds) Aufbruch nach Europa – 75 jahre Max-Planck-Institut für Privatrecht (2001).
157
See again para 2 3 3 1 above.
158
342
6 4 2 The PICC, PECL, DCFR and the CESL
Despite the fact that these instruments adopted the general principle of specific
performance, the PICC, the PECL the DCFR, and the CESL also contain certain
defined exceptions to the principle of specific performance. These include when
performance is impossible (hereafter the first exception) or unreasonably burdensome
(hereafter the second exception). For the sake of convenience these instruments will be
discussed together, since they similarly consider impossibility and impracticability as
impediments to a creditor’s right to specific performance.
The PICC, the PECL, the DCFR and the CESL also sought to reach some kind of a
compromise between civil-law and common-law jurisdictions, since a claim for
performance is admitted in general but excluded in several situations. It follows that the
right to specific performance is recognised in accordance with the civil-law tradition, but
the inclusion of numerous exceptions which effectively limit this right, resembles the
restrictive approach of the common-law tradition.159 These were designed to
accommodate the common-law systems.160 Only some of these exceptions are relevant
for purposes of this chapter.161
159
See Chengwei Remedies for Non-performance 60; C von Bar & E Clive (eds) Principles,
(DCFR) I (2009) 829; S Vogenauer & J Kleinheisterkamp (eds) Commentary on the
UNIDROIT Principles of International Commercial Contracts (PICC) (2009) 125 (section
by Kleinheisterkamp).
160
But still (in contrast to South African law) these instruments “do not mix up rights and
discretion. There is an entitlement to specific performance, subject to defined exceptions.
A court does not have a general discretion to refuse the remedy”. See E Clive & D
Hutchison “Breach of contract” in R Zimmermann, D Visser & K Reid (eds) Mixed Legal
Systems in Comparative Perspective: Property and Obligations in Scotland and South
Africa (2004) 176 195 (commenting on the PECL in particular).
161
Arts 7.2.2(c) PICC; 9: 102(2)(d) PECL; III–3:302(5) DCFR, excluding the remedy where
performance may reasonably be obtained from another source, is discussed in ch 3.
343
The first relevant exception is impossibility of performance. Specific performance cannot

be obtained if, according to:
- PICC 7.2.2(a): “performance is impossible in law or in fact”;

- PECL 9: 102(2)(a): “performance would be unlawful or impossible”;
- DCFR III–3:302(3)(a): “performance would be unlawful or impossible”;
- CESL 110(3)(a): “performance would be impossible or has become unlawful”.
Thus, according to these rules there is no right to claim performance if it is impossible.

The concept of impossibility refers to objective and subjective impossibility, and in both
cases the creditor will have to resort to a claim for either damages or termination or
both.162 It follows that impossibility does not nullify the contract: these rules only state
that there can be no specific enforcement of the contract; other remedies are still
available to the creditor.163 This clearly corresponds with the civil-law concept of
impossibility.164 If performance is factually impossible, for example, a particular painting
by Picasso or the entire load of a named ship was destroyed before delivery, ordering
specific performance would be useless. Similarly, specific performance will not be
Whereas Arts 7.2.2(d) PICC; 9: 102(2)(c) PECL; III–3:302(3)(c) DCFR, excluding the
remedy where performance is of such a personal character that it would be unreasonable
to enforce it, is discussed in ch 4.
162
Commentary 352 (section by Loos). See also Eiselen “Specific performance and special
damages” in MacQueen & Zimmermann (eds) European Contract Law: Scots and South
African Perspectives 266.
163
See cmt 3(a) on Art 7.2.2 PICC; cmt E on Art 9:102 PECL (reproduced in cmt E on III–
3:302 DCFR).
164
See 2 3 1 1 & 6 3 above. However, cases of moral impossibility known in German and
Dutch law are excluded by these provisions. See R Zimmermann “Remedies for non-
performance: the revised German law of obligations, viewed against the background of
the Principles of European Contract Law” (2002) 6 Edin LR 271 285; Eiselen “Specific
performance and special damages” in MacQueen & Zimmermann (eds) European
344
ordered where the defaulting party has already delivered the goods to a third party, who
obtains priority over the plaintiff to the subject matter of the contract. Of course, the
creditor is also not entitled to specific performance where performance is prohibited by
law, as illegal contracts will never be enforced.165
The second exception is that specific performance cannot be claimed if performance is

unreasonably burdensome or expensive. More specifically, specific performance cannot
be obtained if, according to:
- PICC 7.2.2(b): “performance or, where relevant, enforcement is unreasonably

burdensome or expensive”;
- PECL 9:102(2)(b): “performance would cause the debtor unreasonable effort or
expense”;
- DCFR III–3:302(3)(b): “performance would be unreasonably burdensome or
expensive”;
- CESL 110(3)(b): “the burden or expense of performance would be disproportionate
to the benefit that the buyer would obtain”.
This exception covers the wider notion of impracticability (as opposed to impossibility),
recognised by the civil-law systems, and cases of practical impossibility need to be dealt
with under this exception.166 Thus, the unreasonable burden of performing an obligation
165
See cmt 3(a) on Art 7.2.2 PICC; cmt E on Art 9:102 PECL (reproduced in cmt E on Art III–
3:302 DCFR); Chengwei Remedies for Non-performance 97-98; Vogenauer &
Kleinheisterkamp (eds) Commentary on the UNIDROIT Principles of International
Commercial Contracts (PICC) 788 (section by H Schelhaas).
166
Commentary 352 (section by Loos); Eiselen “Specific performance and special damages”
in MacQueen & Zimmermann (eds) European Contract Law: Scots and South African
Perspectives 266. Similar to the civil-law systems reviewed above, the instruments
discussed here do not consider initial impossibility as affecting the validity of the contract.
It does not exempt the debtor from liability. Specific performance will not be available but
the debtor will be liable for damages for non-performance. See eg Arts 3.1.3 PICC; 4:102
345
is closely linked to practical impossibility.167 It has been suggested that this second
exception covers the classic example where the debtor has to deliver goods which have
not been destroyed, but are inaccessible because the goods sank to the bottom of the
ocean. To retrieve it would be so costly that the debtor can invoke unreasonable burden
in order to escape specific performance.168 This exception is of particular importance, as
it addresses similar concerns to those raised in relation to the South African
approach.169
The CESL takes a slightly different approach in terms of wording the limitation,
specifically by employing the term “disproportionate” as opposed to “unreasonable” but
it is suggested here that both terms denote excessiveness and can be used
interchangeably.170 The commentaries on these exceptions suggest that there is no
stated rule for when effort or expense would be considered “unreasonable” or
PECL; II–7:102 DCFR (not reproduced in the CESL – see J Cartwright & M Schmidt-
Kessel “Defects in consent: mistake, fraud, threats, unfair exploitation” in G Dannemann &
S Vogenauer (eds) The Common European Sales Law in Context: Interactions with
English and German Law (2013) 373 416 n 325).
167
See A Jakutytė-Sungailienė “The application of specific performance in contractual
relations” (2010) 2(6) Social Sciences Studies 227 232. Available online at
<www.mruni.eu/lt/mokslo_darbai/sms/archyvas/dwn.php?id=257440>.
168
See Zimmermann The New German Law of Obligations: Historical and Comparative
Perspectives 45.
169
170
See eg Von Bar & Clive (eds) Principles, Definitions and Model Rules of European Private
Law: Draft Common Frame of Reference (DCFR) I 831 (commenting on III–3:302(3)(b)
DCFR): “Burdensome does not mean financially burdensome. It is wider than that. It could
cover something which involved a disproportionate effort or even something which was
liable to cause great distress, vexation or inconvenience.”
346
“disproportionate”.171 It follows that different factors could indicate such

unreasonableness/disproportionality.172
It is certain, however, that considerations as to the reasonableness of the transaction or

of the appropriateness of the counter-performance will not be taken into account in this
determination.173 Essentially, this exception of unreasonable effort or expense is aimed
at addressing those situations where, under the specific circumstances, it would be
unreasonable to require the debtor to perform. This exception covers situations where
performance is in itself possible and allowed, but would result in unreasonable effort or
expense. Practically speaking this would most often occur when there has been a
drastic change in circumstance after the conclusion of the contract, and performance
although still possible, may have become so onerous that it would be contrary to the
general principle of good faith and fair dealing to require it.174 This is interesting from a
South African perspective, since we do not have judicial consideration of whether
obligations, in such circumstances, have become frustrated.175
171
See eg O Lando & H Beale The Principles of European Contract Law Parts I & II (2000)
396; Von Bar & Clive (eds) Principles, Definitions and Model Rules of European Private
Law: Draft Common Frame of Reference (DCFR) I 831; R Schulze (ed) Common
European Sales Law (CESL) – Commentary (2012) 506-507 (by Zoll).
172
L Meyer Non-Performance and Remedies under International Contract Law Principles and
Indian Contract Law: A Comparative Survey of the UNIDROIT Principles of International
Commercial Contracts, the Principles of European Contract Law, and Indian Statutory
Contract Law (2010) 112.
173
See Chengwei Remedies for Non-performance 98; Von Bar & Clive (eds) Principles,
(DCFR) I 831, cmt F.
174
See cmt 3(b) on Art 7.2.2 PICC; cmt F on Art 9:102 PECL, which also clarifies that
paragraph (2) sub-paragraph (b) includes but is not limited to supervening event cases
covered by Art 6:111 PECL.
175
See text to nn 10 ff para 6 1 1 above.
347
It follows that this category of exceptions goes hand in hand with the instruments’ rules
on hardship as a result of a change of circumstances.176 If performance would be so
onerous or impracticable that compelling the debtor to perform would constitute
hardship, Articles 6.2.1-6.2.3 PICC; 6:111 PECL; III–1:110 DCFR; 89 CESL177 provide
for party renegotiation or judicial adaptation of the contract.178 Thus, if the goods
contracted for sink to the bottom of the ocean before delivery and can only be retrieved
176
See eg Vogenauer & Kleinheisterkamp (eds) Commentary on the UNIDROIT Principles of
International Commercial Contracts (PICC) 791 § 30 by H Schelhaas: “The distinction
between performance which has become unreasonably burdensome or expensive and a
drastic change of circumstances (hardship, Art 6.2.1) is a delicate one, and the concepts
usually overlap. If an event fundamentally alters the equilibrium of the contract (Art 6.2.2),
either because the cost of performance has increased or the value of the performance a
party receives has diminished, performance will usually also be considered as
unreasonably burdensome or expensive.”
177
The Art 79 CISG contains a similar provision: “A party is not liable for a failure to perform
any of his obligations if he proves that the failure was due to an impediment beyond his
control and that he could not reasonably be expected to have taken the impediment into
account at the time of the conclusion of the contract or to have avoided or overcome it or
its consequences.” See further, for commentary and comparative analysis, I Schwenzer
“Force majeure and hardship in international sales contracts” (2008) 39 VUWLR 709.
178
Thus, in contrast to our law, the examined instruments make specific provision for
variation or termination by courts in case of a change of circumstances commonly referred
to as hardship. Note that they do not contain the words “supervening event” but
“synonyms can be detected and references to ‘supervening events’ appear in some of the
comments and explanatory notes which accompany these texts” (Unberath & McKendrick
“Supervening events” in Dannemann & Vogenauer (eds) The Common European Sales
Law in Context: Interactions with English and German Law 563). In Dutch and German
law the courts may also refuse specific performance in such cases and grant damages
instead or change the contents of the contract (Art 6:258 BW; § 313 BGB) – see Mak
Performance-Oriented Remedies in European Sale of Goods Law 100, and Brunner Force
Majeure and Hardship under General Contract Principles: Exemption for Non-performance
in International Arbitration 405 ff.
348
at a cost that far exceeds the value of the goods, the parties cannot claim specific
performance of that contract and must either rely on other remedies or renegotiate the
terms of the contract.179 Other circumstances that could indicate impracticability include,
for example, whether the defendant’s obligations are stated in general terms leaving
scope for disagreement, and whether the court will be able to define the contractual
obligation in its order.180 The relevance of this factor in connection with the supervision
objection was discussed in the previous chapter.181 The following section explores, inter
alia, to what extent it182 should dissuade our courts from ordering specific performance.
6 5 1 Introduction
As indicated throughout this chapter, specific performance is a potentially onerous

remedy. Although this remedy gives effect to or reinforces the sanctity of validly-
concluded contracts, it has the disadvantage of enabling the plaintiff to insist on
performance even though it might cause undue hardship to the defendant and even the
public at large. For this reason, all of the legal systems (both common and civilian) and
179
Meyer Non-Performance and Remedies under International Contract Law Principles 112-
113. According to Schelhaas (Vogenauer & Kleinheisterkamp (eds) Commentary on the
UNIDROIT Principles of International Commercial Contracts (PICC) 792 § 31): “if the
provisions for hardship and performance being unreasonably burdensome or expensive
apply to the same facts, it is not certain which provision takes precedence. Neither the
PICC nor the Official Comment considers this issue. It might be argued that the doctrine of
hardship, being the more specific rule, prevails over the doctrine relating to performance
as ‘unreasonably burdensome’ or expensive (lex specialis derogat legi generali). It is,
however, preferable to let the aggrieved party choose which of the two provisions it wants
to rely on.”
180
International Commercial Contracts (PICC) 792 § 32 (by H Schelhaas).
181
See para 5 4 above.
182
Cf n 217 below.
349
model instruments under consideration restrict the availability of specific performance

where some form of “severe”, “unreasonable” or “undue” hardship is involved. This then
forms a second, main restriction on specific performance, apart from impossibility. As
indicated, this restriction usually relates to undue hardship to the defendant, but undue
hardship to third parties may also defeat a claim for specific performance.183 While the
basis for the restriction may take a different form in each system (the civilian systems
and model instruments184 recognise it under the principle of good faith,185 while the
common-law systems recognise it based on the requirement of equity),186 the
underlying rule appears to be the same: the availability of specific performance is
always restricted if it would cause undue hardship to the defendant or to third parties.
183
See eg text to nn 88 ff above.
184
Each of the comparator texts contains express reference to the obligation of observing
good faith: see Articles 1.7 PICC; 1:201 PECL; III–1:103 DCFR; 2 CESL; 7 CISG
(Addendum A).
185
See Mak Performance-Oriented Remedies in European Sale of Goods Law 108. In
relation to specific performance in English law, Mak says that “the only hint at a principle
of good faith is given by the requirement of equity that the claimant comes to court ‘with
clean hands’, which requires among things that he shall have acted in good faith” (107).
She refers to R Goode The Concept of Good Faith in English Law (1992) 5, as authority
for this view.
186
See eg Gould v Kemp (1834) 39 ER 959 961; Patel v Ali [1984] Ch 283. See also
Northcote A Treatise on the Specific Performance of Contracts by Sir Edward Fry 199 ff
§§ 417 ff. For US authority, see De Caro v De Caro, 97 A.2d 658 (1953): “Where
inadequacy of consideration is so gross as to shock the conscience, court will decline to
enforce the agreement, and denial of specific performance in such case may be rested
upon the ground that the remedy is discretionary and that harsh and unfair contracts will
not be enforced.”
350
652 The proposal for reform: undue hardship as exception to specific

performance
We now turn to the proposed development for South African law. It has already been
shown above that our law rejects any notion of relief for changed circumstances that do
not amount to supervening impossibility.187 However, as in Anglo-American law, our law
restricts the availability of specific performance where performance becomes
excessively burdensome but falls short of what is required for avoidance under the
doctrine of supervening impossibility.
Our courts have often indicated when specific performance would probably be
refused.188 For instance, as we have seen in Santos, Foxcroft J held that courts should
“refuse performance where a recognised hardship to the defaulting party is proved”.189
Apart from the cases discussed in paragraph 6 1 above, the course of recent authority
also confirms this. For example, the court in Vrystaat Cheetahs (Edms) Beperk v
Mapoe190 dealt with the Benson decision, as well as the Haynes decision, especially
regarding the matters of undue hardship to the respondent, a rugby player, if he were to
be compelled to comply with his contractual obligations. It is on the ground of undue
187
This accords with English law – see Treitel Frustration and Force Majeure 280 ff §§ 6-020
ff; Mak Performance-Oriented Remedies in European Sale of Goods Law 97; A Hutchison
“Gap filling to address changed circumstances in contract law – when it comes to losses
and gains, sharing is the fair solution” 2010 Stell LR 414 420.
188
See Joubert General Principles of the Law of Contract 225; Sharrock “Contract” in Joubert
& Faris LAWSA 5(1) 2 ed para 496; Christie & Bradfield Christie’s The Law of Contract in
South Africa 548-549; Hutchison & Pretorius (eds) The Law of Contract in South Africa
323. See eg Nationwide Airlines (Pty) Ltd v Roediger 2008 (1) SA 293 (W) para [17].
189
Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) 86H.
190
Unreported judgment with case no 4587/2010 delivered on 29 Sep 2010 by the Free State
Provincial Division of the High Court (copy on file with author).
351
hardship to the defaulting party that Van Zyl J refused to grant the main relief sought,191
particularly the possibility of him being held in contempt for not playing “good” rugby.192
Also noteworthy is the recent decision in Botha v Rich NO,193 in which the Constitutional
Court exercised its discretion to refuse specific performance so as to avoid undue
hardship to the defendants.194 Here, the plaintiff had concluded an instalment sale
agreement to buy immovable property from a trust. After she began to default on the
instalments, the trust cancelled the agreement and successfully sued for eviction in
accordance with a cancellation clause which stated that breach by the plaintiff would
entitle the trust to cancel the agreement and retain the payments made in terms of the
instalment sale. However, having paid three-quarters of the purchase price, the plaintiff
demanded transfer of the property into her name; relying on section 27(1) of the
Alienation of Land Act. The court found, that even though she was in principle entitled to
191
In prayer 3 of the notice of motion: “Dat eerste respondent gelas word om onmiddelik vir
diens aan te meld ter nakoming van sy kontraktuele verpligtinge uiteengesit in klousule 17
van sy spelerskontrak met applikant en wel te applikant se besigheidsplek, Vodacompark,
Bloemfontein …”
192
Paras [113]-[115]. However, the judge did grant the alternative relief sought, namely that
he immediately reports for service (“dat eerste respondent gelas word om onmiddelik by
applikant te Vodacompark vir diens aan te meld”), but is the necessary implication of an
order requiring the player to “immediately report for service” not that he has to comply with
his contractual duties as set out in his player’s contract? Surely the second, alternative,
prayer is also open to different interpretations which would similarly expose the
respondent to the danger of being held in contempt for not complying with the specific
performance order. This should have prevented the court from ordering specific
performance. See para 4 8 4 above, for further discussion on why the case was not
suitable for specific performance.
193
2014 (4) SA 124 (CC).
194
After confirming the principle that where a purchaser has paid more than 50% of the
purchase price under an instalment sale, he may claim transfer of the immovable property
as provided for in s 27(1) of the Alienation of Land Act 68 of 1981, by registering a bond in
favour of the seller for the balance, despite being in arrears with instalment payments.
352
specific performance to compel the trustees to register the property and sign all the
documents necessary for transferring the property into her name, it would be
disproportionate and unfair towards the defendant trustees to allow registration of
transfer if the arrears had still not been paid. Therefore, the court made the registration
conditional upon payment of the arrears and the amounts she owed in municipal rates,
taxes and service fees.195
It is clear that despite our courts’ reluctance to engage in the development of rules
governing the exercise of the discretion;196 they will refuse specific performance if it
would cause undue hardship to the defendant or to third parties. It therefore appears
that Eiselen is correct in his finding that
“The point of departure is the principle of pacta sunt servanda and courts will only very
hesitantly use their discretion to refuse the remedy. There are no defined categories of cases
other than impossibility and insolvency. The English exceptions of imprecision of the
obligation, obligations for personal services, damages as a sufficient alternative, or the
inability of the court to enforce its order, all seem largely to have fallen by the wayside. The
only real exception remaining seems to be undue hardship.”197
As indicated elsewhere, there are two recognised exceptions where the discretion is
actually illusory or absent, namely impossibility of performance198 and the debtor’s
195
See para [49] esp n 70.
196
See paras 1 1 3 4 & 4 8 3 above. See also Lubbe “Daadwerklike vervulling in die Suid-
Afrikaanse reg: die implikasies van die uitoefening van die regterlike diskresie” in Smits &
Lubbe (eds) Remedies in Zuid-Afrika en Europa 51 57 ff.
197
“Specific performance and special damages” in MacQueen & Zimmermann European
198
See eg Van Rooyen v Baumer Investments (Pty) Ltd 1947 (1) SA 113 (W) 120, per
Ettlinger AJ: “It is clear that there can be no order for specific performance of an obligation
where the debtor cannot perform. That is clearly laid down in the cases of which Farmers’
Co-operative Society v Berry (1912. AD 343) and Shill v Milner (1937 AD 101) are
examples.”
353
insolvency.199 It is proposed here that this list of exceptions be expanded to

accommodate the reality that the judicial discretion is invariably exercised to refuse
specific performance in cases where specific performance would cause undue hardship
to the defendant or to third parties.200
While such an approach may at first sound rigid, the proposed exception actually, and
inevitably has a discretionary component built into it. The “undue” element relates to a
discretion insofar that if specific performance is sought by the plaintiff and this defence
is raised,201 the court should only refuse the remedy if the hardship to the defendant
and/or to third parties is excessive or disproportionate, i.e. if there is disparity between
the advantages to be gained (by the plaintiff or others) and the harm to be suffered from
ordering specific performance (by the defendant or others).202 In other words,
the limitation contains and depends on a proportionality assessment.
6 5 3 The operation of the proposed exception
In applying the proposed exception, a number of considerations are relevant.
First, the exception should clearly require taking into account third-party interests. That
our courts have considered the interests of the defaulting party as well as those of third
parties in the refusal of the order is beyond doubt.203 For example, the rejection of
specific performance by the trial court in Haynes was upheld for reasons which included
the hardship the public would have suffered in the circumstances of the case from the
199
See para 4 8 3 above & para 7 2 2 below. See also Lubbe & Murray Contract 542, and the
cases cited there.
200
See cases noted in nn 204 & 207 below.
201
The onus to raise such an impediment to an order for specific performance rests on the
defaulting party who wants to avert specific enforcement of the contract (see para 4 8 4
above). See also Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A) 442-443
(para 7 2 2 below).
202
Cf para 6 5 3 below.
203
354
municipality’s obedience to the order, had one been granted.204 This may explain why
academic commentators merely refer to “undue hardship”, i.e. undue hardship in
general. Christie, for example, refers to the “undue hardship principle”205 and Eiselen
concludes that “[t]he only real exception remaining seems to be undue hardship”.206 The
undue hardship defence usually implies undue hardship to the defendant,207 since it is
he who raises and argues the defence, but undue hardship to third parties can also
defeat a claim for specific performance. This was confirmed by decisions such as
Haynes and Barclays National Bank,208 and also by authors such as Hutchison and Du
Bois.209 It is accordingly suggested here that the authors who interpreted Haynes as
204
De Villiers AJA 1951 (2) SA 371 (A) 381C-E: “There can to my mind be no doubt that in
the present case to have ordered the respondent to release 250,000 gallons of water a
day from their storage dam while the unprecedented drought continued and the water in
the dam had sunk dangerously low would have worked very great hardship not only to the
respondent but to the citizens of Kingwilliamstown to whom the respondent owed a public
duty to render an adequate supply of water. As far as the inhabitants, who already
suffered under severe water restrictions, were concerned, the order would not only have
resulted in great hardship, but in positive danger to the health of the community and might
have disrupted the life of the town. On the other hand, as pointed out above, there is no
indication on the papers that the appellant suffered any damage. I come to the conclusion,
therefore, that no ground has been shown to justify us in interfering with the discretion
exercised by the Court a quo.” See also Barclays National Bank Ltd v Natal Fire
Extinguishers Manufacturing Co (Pty) Ltd 1982 (4) SA 650 (D) 655 per Didcott J, and
International Shipping Co (Pty) Ltd v Affinity (Pty) Ltd 1983 (1) SA 79 (C) 87B-E per
Grosskopf J.
205
Christie’s The Law of Contract in South Africa 549.
206
207
See eg Vrystaat Cheetahs (Edms) Beperk v Mapoe (unreported judgment with case no
4587/2010 delivered on 29 Sep 2010 by the Free State Provincial Division of the High
Court), and York Timbers Ltd v Minister of Water Affairs and Forestry 2003 (4) SA 477 (T).
208
See also International Shipping Co (Pty) Ltd v Affinity (Pty) Ltd 1983 (1) SA 79 (C) 87.
209
D Hutchison & F du Bois “Contracts in general” in Du Bois (ed) Wille’s Principles of South
African Law 733 873. See also S Eiselen “Remedies for breach” in Hutchison & Pretorius
355
support for a rule that specific performance may never be awarded if it would cause
undue hardship to the defendant or to third parties (which rule is also followed by the
systems discussed above), were incorrect in their interpretation, because Haynes does
not explicitly support such a restrictive approach, but correct in their ultimate position.
The rule deserves support even though Haynes did not state it as a rule. The right to
specific performance should be restricted where to enforce it would cause undue
hardship to the defendant or to third parties.
Secondly, in deciding whether the interests of the defendant and/or third parties would
be unduly affected by ordering specific performance, and hence give rise to undue
hardship, requires a balancing exercise of competing interests. Thus, the amount of
effort and/or expense performance would require from the defendant is but one of the
considerations the court should take into account in its decision to uphold or reject the
undue hardship defence.210 The interests of the plaintiff or the public in having the
contract performed in specie may outweigh the harm or disadvantage to the defendant
and/or third parties in which case their hardship should not be considered to be “undue”
(eds) The Law of Contract in South Africa 323: “for the sake of consistency and certainty
in the law, the courts tend to follow certain guidelines when deciding whether or not to
order specific performance, and this has resulted in the recognition of a number of
exceptional circumstances where specific performance is likely to be refused. The
circumstances affecting the court’s discretion include whether undue hardship and
personal services are involved … Courts will refuse to order specific performance where
to do so would cause undue hardship to the defaulting party or to third parties.”
210
See Isep Structural Engineering and Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd
1981 (4) SA 1 (A) 5E-G: “An example of such a case would be ‘where the cost to the
defendant in being compelled to perform is out of all proportion to the corresponding
benefit to the plaintiff and the latter can equally well be compensated by an award of
damages’ (Haynes v Kingwilliamstown Municipality (supra at 380B)”.
356
and the remedy awarded.211 Lubbe & Murray make an important observation in this
regard:
“The fifth example in Haynes – that specific performance will be refused where it will operate
unreasonably harshly on the defendant or involves unreasonableness or injustice – is an
example … [which] requires a consideration of the role of contract law and, as we see in the
Haynes case, might raise questions of asserting one obligation (the obligation to provide
water to the inhabitants of King William’s Town) over another (the obligation to fulfil the
contract concluded with Haynes).”212
Apart from the public service/Haynes example,213 this point can also be illustrated with
reference to a more common personal service contract. For example, if a builder, who
contracted to build an olympic-size swimming pool for a university, fails to build a
swimming pool according to contractual specifications that set out the dimensions of
olympic pools, for example if it is only 49 m and not 50 m in length, he should not be
able to raise this defence successfully. If a specific performance order is sought by the
university, its interests as well as those of the public in having an olympic-size
swimming pool by far outweighs the burden such an order would place on the
defendant. The university will not be able to claim that their pool meets olympic
standards and will not be able to host long course swimming competitions, and the
students will also not be able to train and prepare properly for long course events. An
order requiring the builder to remove the current structure and rebuild the swimming
pool according to the contract’s specifications would be justified/due even though the
order would naturally require a large amount of effort and expense from the defendant.
However, if a builder is supposed to build a regular leisure swimming pool which is 2

metres deep, but builds one which is only 1, 9 metres deep, there may be greater scope
for successfully raising this defense. An order requiring him to remove the current
211
See again passage from De Wet & Van Wyk’s Kontraktereg en Handelsreg quoted in n 2
para 6 1 above.
212
Contract 543.
213
See also decision by Pennsylvania court discussed in text to n 90 para 6 2 above.
357
structure and dig a deeper hole in order to comply with the contractual specifications,
could be disproportionally onerous in terms of cost and effort, because the fact that the
pool is 0,1 metres shallower could potentially have a very limited impact on the client’s
use and enjoyment thereof.214 This difference in depth (in contrast to the olympic pool
example) will not make the pool unsuitable for its purpose. In discussing a French
case,215 Beale et al similarly contend that to order correction of the defect, i.e. specific
performance of the initial agreement, where the difference/defect is so insignificant
would be “rather extreme” and “[i]t could be wise to take into account a cost-benefit
analysis”.216
214
For discourse on alternative remedies available to the aggrieved party, see J du Plessis
The South African Law of Unjustified Enrichment (2012) 370-371.
215
Cass civ 3, 11 May 2005, pourvoi no 03-21136, RTD civ 2005, 596. In this case the
building was 0, 33 m too low and this did not make the building unsuitable for its purpose,
and it was also not an “essential or determining element of the contract”. The Cour de
cassation nevertheless ruled that “a party owned an obligation which has not been
performed may force the other to perform whenever performance is possible”. Beale et al
also refer to an unreported French decision, Cass civ, 17 November 1984, where the court
similarly ordered specific performance of a contract for a swimming pool which required
that it be fitted with four steps but it was built with only three. The court ordered the
correction of this defect even though it had not been shown that having only three steps
would cause the plaintiff any inconvenience. See Cases, Materials and Text on Contract
Law 856-857.
216
The position in French law is thus that specific performance should not be refused simply
because the inconvenience caused to the creditor by the non-performance is slight.
French courts will order correction of the defect in spite of the harsh consequences for the
debtor, and will only refuse to order correction if it is impossible (see eg Y Laithier
“Comparative reflections on the French law of remedies for breach of contract” in N Cohen
& E McKendrick (eds) Comparative Remedies for Breach of Contract (2005) 103).
However, the cost-benefit analysis (as an expression of the notion of impracticability)
suggested by Beale et al undoubtedly provides a more equitable and economically
efficient solution. It is accordingly suggested here that if the defect would cause slight
358
The operation of the exception (or the success of the defence) will thus depend on a
balancing of interests or advantage and disadvantage.217 Specific performance will only
be refused if it would cause the defendant or third parties undue hardship. The undue
criterion also accommodates the interests of the plaintiff and third parties in having the
contract performed,218 because the order will only be refused if the detriment/hardship
to the defendant/third parties is entirely out of proportion to the benefit which the plaintiff
and/or third parties will derive from performance. For example, in Haynes, the plaintiff
claimed specific performance in spite of a severe drought and a shortage of water, and
inconvenience to the creditor, while correcting it can only be done at an excessive and
unreasonable cost (which would certainly be the case if corresponding with the contractual
specifications means rebuilding an entire swimming pool), the creditor should rely on other
remedies. Refusing specific performance may encourage him to rely on the concomitant
defence of exceptio non adimpleti contractus (if the non-performing party claims counter-
performance) for example. If the pool is used by the owner creditor though, a South
African court may exercise its discretion to prevent unfairness and relax the principle of
reciprocity by awarding a reduced contract price to the builder, a result which is mutually
beneficial and still serves reciprocity. See in this regard G Lubbe & J du Plessis “Law of
contract” in C G van der Merwe & J E du Plessis (eds) Introduction to the Law of South
Africa (2004) 243 263-264; Hutchison & Pretorius (eds) The Law of Contract in South
Africa 316-321; A Hutchison “Reciprocity in contract law” 2013 Stell LR 3; BK Tooling
(Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A); Botha v
Rich NO 2014 (4) SA 124 (CC) para [43].
217
The extent to which an obligation is defined, and the burden an insufficiently defined
specific performance order might place on the defendant and the court could thus
influence a court to refuse the remedy in terms of the proposed exception. Courts may
refuse to order specific performance on the ground that it would burden itself excessively if
it ordered specific performance (in view of possible further applications to clarify the
parties’ obligations or to determine whether imprecisely defined obligations have been
properly performed) or else that it would burden the defendant excessively if it ordered
him to perform insufficiently defined obligations in breach of which he might find himself
liable for contempt (cf text to n 217 para 5 5 above).
218
Compare American approach: text to n 93 para 6 2 above.
359
even though she did not need the water.219 The court’s refusal to order specific
performance was therefore justified, because the hardship the defendant and the town’s
residents would have suffered if specific performance was ordered outweighed the
hardship to the plaintiff if the order was refused.
This corresponds with the disproportionality restriction recognised by the civil-law

systems and international instruments examined above. The proposed approach also
reflects the limitations which Articles 7.2.2(b) PICC, 9:102(2)(b) PECL, III–3:302(3)(b)
DCFR, and 110(3)(b) CESL place on the enforcement of non-monetary obligations. It is
evident that all of the instruments under review depart from exactly the same position,
and that specific performance is recognised as the primary remedy for breach of
contract (both relating to monetary and non-monetary obligations). This point of
departure clearly resembles the civil-law tradition. However, based on the principle of
good faith, certain exceptions to the general principle of specific performance have been
recognised. And in this respect, the instruments resemble both the common- and civil-
law traditions.
It may then be concluded that, as far as exclusion of specific performance is concerned,

the approach adopted by the PICC, the PECL, the DCFR, and the CESL, provides a
more refined solution which is more conducive to legal certainty. It is submitted that this
approach provides a valuable model for the proposed reform of the South African
law.220
219
Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) 378A, 381D.
220
However, the model instruments and the continental legal systems under consideration
specifically refer to the debtor’s interests, and maintain that the remedy will not be granted
if it would be unreasonable to require the debtor to perform, i.e. if performance would
require unreasonable effort and/or expense from the debtor. Since the proposed
exception also excludes a claim for specific performance if it would cause undue hardship
to third parties, it corresponds (to a greater degree) with the approach adopted by
common-law courts, who also consider the effect of a specific performance order on third
360
6 5 4 The basis of the proposed exception
This brings us to the possible basis for the proposed development for South African law.
As indicated throughout this chapter, the courts have not explicitly recognised a rule
whereby specific performance is restricted if it would cause undue hardship to the
defendant or to third parties.221 However, as pointed out earlier222 analyses of the case
law show that when undue hardship (to the defendant and/or to third parties) is present,
there is in effect no discretion; the remedy is invariably refused.
This proposed exception can thus be inferred from South African judicial practice.223 It is
also consistent with the views of certain academic commentators.224 For example, as
mentioned earlier in chapter 4, Lubbe similarly submits that the adoption of a
Fallgruppen approach, that is the recognition of certain Fallgruppen or case groups in
which the remedy should be denied, might lead to “the denial of the remedy in cases of
impossibility falling short of the existing substantive doctrine”.225 Against this
parties, and refuse the remedy if it would cause severe hardship to third parties. See text
to nn 88 ff para 6 2 above.
221
As indicated from the outset, the court in Haynes did not make it a rule that the remedy
should always be denied if it would cause undue hardship to the defendant or to third
parties, they actually only listed it as an example of where specific performance has been
and may be refused, in the exercise of the courts’ discretion (cf para 6 1 1 above).
222
See again nn 204 & 207 above.
223
See again Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) 378H-379A;
Barclays National Bank Ltd v Natal Fire Extinguishers Manufacturing Co (Pty) Ltd
1982 (4) SA 650 (D) 658G-H; Benson v SA Mutual Life Assurance Society 1986 (1) SA
776 (A) 783D, and Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73
(C) 86H.
224
See esp Naudé (text to nn 47-49 para 6 1 2 above) and Eiselen “Specific performance
and special damages” in MacQueen & Zimmermann European Contract Law: Scots and
South African Perspectives 260. See further para 7 3 below.
225
361
background it may be argued that there is some scope for an approach which takes into
account the harsh effects of specific enforcement. Moreover, Lubbe maintains that
“[Since] South African law prides itself on its inherent equity and its dynamic and adaptable
nature which manifests itself primarily in the developmental decisions of its judges …, it
should be accepted that judicial practice in respect of the specific performance discretion
may establish guidelines capable of being absorbed into the substantive law as rules
determining when an agreement gives rise to a duty to perform and when such a duty
becomes enforceable.”226
As in English law,227 the role of good faith remains controversial in our law of contract.
Good faith may, however, be a catalyst for the development of new rules,228 but it is not
and Other Perspectives 111-113, where Lubbe correctly observes that our law “regarding
impossibility as a substantive doctrine is outmoded, and its development has not kept up
with developments in other jurisdictions” (111). See also para 4 8 3 above.
226
and Other Perspectives 115.
227
Mak Performance-Oriented Remedies in European Sale of Goods Law 106-108.
228
See eg R Zimmermann “Good faith and equity” in Zimmermann & Visser (eds) Southern
Cross 240-241; Hutchison “Non-variation clauses in contract: any escape from the Shifren
straitjacket?” 2001 SALJ 720 743-744; Lubbe “Daadwerklike vervulling in die Suid-
Afrikaanse reg: die implikasies van die uitoefening van die regterlike diskresie” in Smits &
Lubbe (eds) Remedies in Zuid-Afrika en Europa 74-75; “Contractual derogation and the
discretion to refuse an order for specific performance in South African Law” in Smits et al
(eds) Specific Performance in Contract Law: National and Other Perspectives 114 ff; L F
van Huyssteen & S van der Merwe “Good faith in contract: proper behaviour amidst
changing circumstances” 1990 Stell LR 244 248-249: “In a system of contracts based on
bona fides, a contractant should be entitled to proper conduct on the part of his co-
contractant. … A change in circumstances surrounding a contract could then result in a
refusal to enforce the contract or a specific term if insistence on its enforcement in spite of
the changed circumstances is objectively not in good faith when the relationship between
the contractants is considered.”
362
a “free-floating” principle, justifying judicial discretions to refuse to enforce contracts.229

Although it has been decided that it cannot serve as an independent basis for not
enforcing contracts, the concept of good faith may inform the development of the
proposed rule.230
6 5 5 Conclusion
This chapter also (as in chapter 4 on personal service contracts) raises issues relating
to the divergence between the theory and practice of our law governing the availability
of specific performance. It has been shown that to state that there is an open-ended
discretion to refuse specific performance is misleading, because our courts inevitably
and invariably exercise their discretion to refuse specific performance in cases where
specific performance would cause undue hardship to the defendant or to third parties. It
may be illogical to maintain this open-ended discretion, while the courts at the same
time clearly follow this practice. It is suggested that a concrete rule may be preferable to
reflect this reality, and to ensure that our law on the availability of specific performance
is more coherent. If specific performance would cause undue hardship to the defendant
or to third parties, the aggrieved party’s right to specific performance should be
restricted.231
229
See eg the statements of the majority of the SCA in Brisley v Drotsky 2002 (4) SA 1 (SCA)
paras [22]-[24] (confirmed in Afrox Healthcare Bpk v Strydom 2002 (6) SA 21 (SCA) and
referred to in Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA)),
to the effect that good faith cannot operate as an open norm on a doctrinal level; rather, it
constitutes a foundational principle that underlies contract law and finds expression in the
specific rules and principles thereof. F D J Brand, while not denying that good faith may
inform the development of new rules; rejects good faith as basis for “free-floating”
equitable discretions (“The role of good faith, equity and fairness in the South African law
of contract: the influence of the common law and the constitution” 2009 SALJ 71 89-90).
230
See again text to n 136 para 1 1 3 4 above.
231
Particularly where damages would place the aggrieved party in as good a position as he
would have been in had the contract been performed – see paras 3 4 3 & 3 4 4 above.
363
CHAPTER 7: CONCLUSIONS
7 1 Introduction
“A potential conflict of principle exists when, on the one hand it is stated that a plaintiff is
generally entitled to choose his remedy, including an order of specific performance, while on
the other hand it is said that the courts have a discretion to refuse to issue an order of
specific performance. Where does the plaintiff’s right to enforce specific performance end
and the court’s right to refuse an order begin?”1
“Bear in mind that those modern continental jurisdictions which endorse a right to specific
performance … admit ‘exceptions’ to specific enforceability, but do not usually retain the sort
of freewheeling discretion to refuse specific performance which is affirmed in Benson. How is
one to take seriously the claim that a plaintiff has a right to specific performance, if that right
can be trumped by competing considerations of social policy within the overriding discretion
of the court? The underlying difficulty is that the discretion (essentially the English law
artefact) still seems to cut the ground from beneath the right (which is the Roman-Dutch
artefact).”2
As these quotes from Lambiris and Cockrell indicate, the current state of South African
law regarding the availability of specific performance is not satisfactory.3 This can be
traced to the fact that our approach to the availability of specific performance is based
on two divergent approaches: the first approach, that of a judicial discretion (received
from English law) to refuse specific performance, conflicts with the second approach,
namely the right to specific performance (received from Roman-Dutch law).4 It was
1
M A Lambiris Orders of Specific Performance and Restitutio in Integrum in South African
Law (1989) 126.
2
A Cockrell “Breach of contract” in R Zimmermann & D Visser (eds) Southern Cross: Civil
Law and Common Law in South Africa (1996) 303 330. See again para 1 1 above.
3
See also para 1 1 above.
4
330. See also G Lubbe “Daadwerklike vervulling in die Suid-Afrikaanse reg: die
implikasies van die uitoefening van die regterlike diskresie” in J Smits & G Lubbe (eds)
Remedies in Zuid-Afrika en Europa (2003) 51 65, 71.
364
indicated at the outset that maintaining a discretion, which was occasioned by a fusion
of two clearly incompatible approaches, causes unnecessary complications.5
The central objective of the study was to explore the desirability and possibility of a
more “concrete” approach, i.e. one which recognises more clearly-defined rules or
principles with regard to when specific performance should be refused. Such an
approach could either take the form of (a) the recognition of clearly-identified principles
to guide courts in the exercise of a discretion to refuse specific performance,6 or (b) the
complete removal of the discretion and acceptance of certain defined exceptions to a
general right to claim this remedy.7
The present chapter will now seek to outline the results achieved. After summarising the
findings of the research, it will conclude with a consideration of the future of the South
African approach.
It was shown that courts continue to express great concern for the preservation of the
discretion to refuse specific performance;8 they have made it abundantly clear that the
refusal to order specific performance is a matter for a court’s own discretion and the
courts will not allow this discretion to be circumscribed by rules.9
5
See para 1 1 above.
6
7
8
134; and see paras 1 1 1 (esp n 41) & 4 8 3 (esp n 354) above.
9
According to Lambiris at 126: “courts have been consistently anxious to reserve an
unfettered discretion …, and have often spoken of their refusal to be bound by rigid and
strictly stated rules” (referring to Haynes v Kingwilliamstown Municipality 1951 (2) SA 371
(A) 378G; BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1)
SA 391 (A) 433; Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A) 440). In
addition to the authority cited by the author, see ISEP Structural Engineering and Plating
(Pty) Ltd v Inland Exploration Co (Pty) Ltd 1981 (4) SA 1 (A); National Union of Textile
365
This is especially apparent from the locus classicus, Benson v SA Mutual Life
Assurance Society.10 As the extensive discussion in chapter 3 in particular indicates,
this case evidences an acceptance of the widest possible discretion, restricted only by
the demands of justice in the particular case – and not by rigid rules.11
The court, in reasserting the unfettered discretion to refuse the remedy, unambiguously
rejected English influence, but in doing so, failed to appreciate that there are practical
and policy considerations which necessarily intrude and make literal enforcement
undesirable.12 So, authors such as Lubbe convincingly argue that
“Despite the endeavours of the Supreme Court of Appeal, the need at the level of everyday
practicalities to reduce the matter of specific performance to ‘rules of thumb’ brings with it the
risk that the discretionary approach will be reduced to a hollow formalism.” 13
It was accordingly contended that this discretionary approach does not offer a sound
solution, at least not in South African contract law. Specific performance is regarded as
the principal remedy in our remedial scheme, and contracting parties must be able to
know with some confidence whether and when they are entitled to it.14 It was argued
Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T), and Lubbe “Daadwerklike
vervulling in die Suid-Afrikaanse reg: die implikasies van die uitoefening van die regterlike
diskresie” in Smits & Lubbe (eds) Remedies in Zuid-Afrika en Europa 57 ff.
10
1986 (1) SA 776 (A).
11
See paras 3 3 & 3 4 3 above.
12
See further Lubbe “Contractual derogation and the discretion to refuse an order for
specific performance in South African Law” in Smits et al (eds) Specific Performance in
Contract Law: National and Other Perspectives 111-112.
13
and Other Perspectives 111.
14
See in this regard too C M Venter An Assessment of the South African Law Governing
Breach of Contract master’s dissertation Stellenbosch University (2004) 2, and S P Stuart-
366
that the discretionary approach is to be discouraged because it undermines doctrinal

certainty and predictability of the law.
7 2 Recommendations for reform
721 A discretion to refuse to order specific performance governed by

certain principles
Having considered the inadequacies and limitations of the current approach and having
established the need for reform, it is now essential to consider the way forward.
Returning to the hypothesis posed at the beginning of this study (and this chapter), it is
now possible to state that it may be preferable for South African courts to follow a more
concrete approach.
We will first consider the solution15 proposed by Lambiris. He recommends that courts
should retain a wide discretionary power to refuse specific performance, but that it must
be exercised in accordance with broad but well recognised principles.16 According to
Lambiris such an approach would not only preserve the objectives of freedom of
discretion, but also assure consistency in the decisions of our courts in specific
performance matters.17 It is doubtful, though, whether this will properly address the
fundamental tension outlined above.18
Steer “Reconsidering an understanding of damages as a surrogate of specific

performance in South African law of contract” 2013 Responsa Meridiana 65 96.
15
As stated in para 7 1 above. See also para 6 1 2 (esp text to n 69) above.
16
He sets out three general principles which he derives from Benson: an order of specific
performance must not have the effect of producing an injustice or inequity, it must not be
contrary to legal or public policy, and it must not require the performance of an act which
is impossible (Orders of Specific Performance and Restitutio in Integrum in South African
Law 132-133). See also para 3 4 3 (esp text to n 229) above.
17
131-132.
367
First, Lambiris’ suggestion still undermines the South African contract law doctrine that
the plaintiff has a right to specific performance. And, even if this inconsistency can
somehow be overlooked, the broad nature of the guiding principles causes concern.
The availability of the remedy will still be regulated by open-ended norms.19 The
suggested “guideline approach” though it preserves the courts’ freedom of discretion, is
still too wide to ensure legal certainty.
This is evident from the fact that Lambiris also considers “cases which do not fall within
the general principles”.20 Reference to this separate category (to which the author
devotes an entire subheading) demonstrates that the outcome in specific performance
matters will still be unpredictable and inconsistent. He points out that there are certain
cases “which do not appear to have been decided on the basis of the truly applicable
principles, and which therefore cannot be explained in terms thereof”.21 In this regard he
discusses two illustrative cases. The most noteworthy of these is Mohr v Kriek,22 in
which an undertaking, contained in a deed of dissolution of partnership, to sign and
18
See the reference to Lambiris & Cockrell in para 7 1 and the related text to nn 1-3 above.
19
See reference to Lubbe in para 1 1 1 (n 48) and the related text to n 48.
20
141.
21
141.
22
1953 (3) SA 600 (SR). The other example he refers to is Coronation Syndicate Ltd v
Lillienfeld and the New Fortuna Co Ltd 1903 TS 489, where an undertaking by a company
director to vote in support of a particular resolution at a meeting was held to be
unenforceable by means of specific performance because performance of this undertaking
to the third party conflicted with his fiduciary duties to the company. However, the case did
not warrant reference by Lambiris under the particular subheading, because it could in fact
be explained in terms of the general principles, as illegal contracts will never be enforced,
even though the court did not explicitly state that it was the basis for the refusal of the
order of specific performance. Wessels uses the (now discredited) supervision rationale –
see The Law of Contract in South Africa 2 ed (1951) vol 2 § 3126: “the court cannot order
a person in terms of his contract to vote in a certain way at a company meeting, for the
court has no means to ensure his doing so”.
368
deliver a promisory note and stop order was held to be unenforceable by means of
specific performance. The reasons provided were that performance of the undertaking
could not actually be enforced even if ordered, since it consisted of a positive act which
according to Quènet J “could not, as in the case of a valid negative obligation, be
enforced”, furthermore the judge reasoned, it consisted of an act which only the
defendant could carry out and no appropriate official could be authorised to sign the
document if he refused to comply with the order. 23
Clearly, this finding was based on two incorrect assumptions of the applicable law, as
Lambiris also correctly points out. The court drew a distinction between positive and
negative obligations and took the view that only negative obligations are enforceable by
means of specific performance. Lambiris, however, strongly disagrees, since “[o]rders
ad factum praestandum are made all the time”24 and so “there is no substance in a
distinction between positive and negative obligations in relation to ordering specific
performance”.25 He also disagrees with the court’s view that the obligation is not
enforceable as it is incapable of being delegated to a third party. This is obviously not
an accurate account of our law, since there are cases in which performance by means
of appointing someone else to act is not possible, i.e. where only the particular debtor
can perform the stipulated act. In such cases compliance would depend on the threat of
23
1953 (3) SA 600 (SR) 601C-D.
24
Citing Ranch International Pipelines (Transvaal) (Pty) Ltd v LMG Construction (City) (Pty)
Ltd 1984 (3) SA 850 (W) 880I. See also J C de Wet & A H van Wyk Die Suid-Afrikaanse
Kontraktereg en Handelsreg I 5 ed (1992) 211 n 75; A D J van Rensburg, J G Lotz & T
van Rijn (R D Sharrock) “Contract” in W A Joubert & J A Faris (eds) LAWSA 5(1) 2 ed
(2010) para 495.
25
141-142. See further De Wet & Van Wyk Kontraktereg en Handelsreg 211: “Hiervoor is in
ons gemene reg geen steun te vind nie. Ook in ons praktyk is vir hierdie stelling nie
voldoende steun aan te wys nie. In baie gevalle het ons howe al reële eksekusie
toegestaan by ‘n verpligting om iets te doen…”, and para 1 1 4 n 145 above.
369
other measures, for example, the prospect of being held in contempt of court if the
debtor fails to perform the act.26
Ultimately, Lambiris’ proposals may give rise to only more inconsistencies. His
overriding discretion, no matter how it is defined, will always compete with the plaintiff’s
right or general entitlement to specific performance as his remedy, and his broad
“guiding” principles could inevitably lead to legal uncertainty. We can now proceed to
the alternative of the complete removal of the discretionary power.
7 2 2 A general right to specific performance subject to certain exceptions
Under the second approach, the general starting point in our law remains the same: the
parties to a contract, as a matter of course, are entitled to demand performance of their
respective obligations in specie. However, this right to choose specific performance is
not absolute, but subject to certain exceptions – and it is not subject to a judicial
discretion that is influenced by certain factors.27
As noted in earlier chapters, there are already two recognised exceptions where the
discretion is absent, namely impossibility of performance and the debtor’s insolvency.28
26
142.
27
See again paras 4 8 2, 6 1 1 & 6 1 2 above.
28
See D Hutchison & C Pretorius (eds) The Law of Contract in South Africa 2 ed (2012) 322:
“The reason for the first exception is that the courts will not order something that cannot
be done, even if such impossibility is only subjective – that is, only relates to the debtor
personally. For example, if a party has sold the same thing to two different persons, and
delivered it to one of them, the courts will not order specific performance … The reason for
the second exception is to be found in the need to treat all the concurrent creditors of an
insolvent estate equally. Since there are insufficient assets in an insolvent estate to
discharge all the liabilities of the insolvent, an order of specific performance in favour of
one creditor would necessarily result in that creditor’s claim being preferred to that of the
other creditors.” The second exception is related to the first, according to Lubbe
370
The first obvious exception is (and remains) that a claim for specific performance is
excluded as far as such performance is objectively or subjectively impossible.29 This
rule is not unfamiliar to our law: it derives from the Roman principle impossibilium nulla
obligatio est (“impossibility of performance prevents the creation of obligations”).30 It
corresponds to the moral principle that “ought implies can”.31 Of course, the debtor
cannot be compelled to do that which cannot be done.32 According to this principle, a
contract is void if at the time of its conclusion its performance is objectively impossible;
so also where a contract has become impossible to perform after it had been entered
into. Here the general rule is that the position is the same as if it had been impossible
from the beginning.33 And if the contract is regarded as void ab initio, specific
performance is naturally precluded, because there is no obligation in respect of that
performance.34 Thus “refusal to order specific performance is not really the result of an
“Daadwerklike vervulling in die Suid-Afrikaanse reg: die implikasies van die uitoefening
van die regterlike diskresie” in J Smits & G Lubbe (eds) Remedies in Zuid-Afrika en
Europa (2003) 51 54. See further paras 3 2 3 (esp n 139) & 4 8 3 above.
29
See generally Van der Merwe et al Contract: General Principles 465: “If performance in
terms of an existing contractual obligation becomes subjectively or relatively impossible,
the obligations are not affected … If performance becomes objectively or absolutely
impossible, the obligation is extinguished and the duty to perform and the corresponding
right to claim performance fall away …” (citing Unibank Savings and Loans Ltd (formerly
Community Bank) v Absa Bank Ltd 2000 (4) SA 191 (W)).
30
31
206.
32
See Barkhuizen v Napier 2007 (5) SA 323 (CC) para [75].
33
See Peters Flamman and Co v Kokstad Municipality 1919 AD 427, 434.
34
See De Wet & Van Wyk Kontraktereg en Handelsreg 210 n 61; “Waar [die skuldenaar]
deur onmoontlikwording van prestasie bevry is is daar natuurlik glad nie meer ‘n
verbintenis nie.” See also G Lubbe “Daadwerklike vervulling in die Suid-Afrikaanse reg:
die implikasies van die uitoefening van die regterlike diskresie” in J Smits & G Lubbe (eds)
Remedies in Zuid-Afrika en Europa (2003) 51 54, both referring to Benson v SA Mutual
Life Assurance Society 1986 (1) SA 776 (A) 783.
371
exercise of judicial discretion against making the order but a direct consequence of the
impossibility of performance. If contractual obligations are rendered void by impossibility
there is obviously no need for a court to rely on its discretionary power to refuse and
order of specific performance”.35 One could argue that technically it is not really an
exception to specific performance, because there is no obligation at all, but that it could
practically be treated as an exception, especially since subjective impossibility “does not
prevent the creation of an obligation” and hence “if the debtor eventually does not
perform, he may be liable for breach of contract” though “specific performance would
not be granted”.36
This study proposes that the list of exceptions or defences to a claim for specific
performance be expanded. It will be recalled that chapter 4 on personal service
contracts and chapter 6 on undue hardship raised issues relating to the divergence
between the theory and practice of our law governing the availability of specific
performance. One of the more significant findings to emerge from this study was that to
pretend that there is an open-ended discretion to refuse specific performance is
misleading in two circumstances.
It is undesirable to maintain this open-ended discretion, while the courts at the same
time clearly follow certain practices. This view is supported by Lubbe, who writes:
“The Benson judgment itself recognises that factors that in the past have served as reasons
to deny specific performance remain relevant to the exercise of the discretion. The need to
preserve legal certainty and the fact that some of these factors may in particular
circumstances reflect more or less mandatory considerations of public policy, may very well
result in past patterns regarding the exercise of the discretion being repeated in the future.
Practitioners who have to advise clients on the likely outcome of claims for specific
performance will tend to base their opinions on previous decisions, so it is inevitable that
perceptions about when decrees are likely to be made and when not, will develop. The
35
134.
36
Van der Merwe et al Contract: General Principles 163, 329-330, 465.
372
concern to treat like cases alike and to differentiate between situations that are different will
further encourage the development of informal perceptions about when specific performance
is appropriate or confirm such perceptions that still exist. Guidelines will once again
crystallise at a practical level.” 37
It was accordingly argued that the law could be discredited if this reality is not reflected
in legal doctrine.38 The study suggests that a limited right to be awarded specific
performance may be preferable to a right to specific performance which is subject to an
open-ended discretion to refuse it. Such an approach, it is suggested, is more logical in
a system which traditionally does not regard specific performance as an exceptional
remedy.39 Whereas the discretionary approach is more suitable to and appropriate in
England and America, because they recognise damages as the default remedy for
breach of contract; only in exceptional circumstances, if damages will not provide
adequate relief to the aggrieved party, will courts exercise their discretion in favour of
Therefore, the alternative proposal for reform advocated in this thesis is to concretise
our courts’ approach to the remedy of specific performance by recognising certain
defined exceptions to the right to specific performance. This proposal requires that our
courts move away from the wide unrestricted (and historically contentious) discretion
and engage in the development of concrete rules aimed at narrowing the boundaries of
the right to specific performance as currently drawn by the law. These
recommendations therefore advocate the (wider) restriction of the plaintiff’s right to
37
and Other Perspectives 110-111.
38
See the reference to Lubbe in n 67 below.
39
See again Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C) 84I,
where Foxcroft J proclaims “[i]n our law, specific performance is a primary remedy and not
a supplementary remedy”.
40
See paras 1 1 2 & 2 3 2 1 above.
373
specific performance. The circumstances under which this right may be limited are
revealed in certain key chapters.
The first of these circumstances is contractual obligations for personal services, which
were considered in chapter 4. There the possibility of adopting a more concrete
approach to enforcing personal service contracts by way of an order of specific
performance was considered. It was argued that the personal character of the
contractual relationship per se does not justify the exclusion of an order for specific
performance. It was furthermore argued that the classic argument that an order for
specific performance of a contractual relationship of a personal service would infringe
upon the personal freedom of the debtor should be nuanced.
Drawing on certain international instruments and legal systems for inspiration and as a
frame of reference, it was shown that the right should be limited where performance
consists of such personal obligations that it would be unreasonable to enforce it. Thus,
we are not dealing with an exception which is identical to the impossibility and
insolvency cases; for it cannot be said that specific performance of all types of service
contracts has to be refused. According to Kerr “[t]he different kinds of contracts of
service, including contracts of employment, need to be distinguished when orders of
specific performance are under consideration” and “it is clear that no general rule can
be made for all contracts of service”.41 This is apparent from our courts’ enforcement of
employment contracts against employers, in terms of statute and of the hybrid Igesund-
type contract cases.42 It was accordingly argued that we do not have to follow the broad
approach of some instruments which provide that all personal service contracts are
unenforceable.43
41
A J Kerr The Principles of the Law of Contract 6 ed (2002) 681.
42
See text to n 50 para 4 2 1, text to nn 107, 122 & 137 para 4 2 1 2 & compare text to n
322 para 4 7 above. See also Naudé’s constitutional argument in text to n 133 para 4 2 1
2 above.
43
See paras 4 7 & 4 8 3 & 4 8 4 above.
374
The second of these considerations is undue hardship. In chapter 6 it was proposed

that courts refuse the remedy if it would cause undue hardship to the defendant or third
parties (Haynes being the classic example). The research reveals that this is already a
circumstance affecting the exercise of the courts’ discretion. According to the current
law (i.e. the discretionary approach) courts should exercise their discretion to refuse the
order if this will cause undue or disproportionate hardship to the defendant. This is an
aspect of the equitable nature of the discretion, which requires the court always to have
in mind the need to avoid injustice. Undue hardship to the defendant, as manifestation
of an injustice, was specifically mentioned in Benson.44 This study indicates that even
straightforward financial hardship, if sufficiently severe, may be enough, particularly if
the plaintiff can equally well be compensated by an award of damages.45
The third consideration is the need for constant or on-going supervision. Chapter 5
indicates that this consideration on its own does not provide sufficient justification for
refusing specific performance, but that it may be a factor to be weighed by the courts
when deciding whether to refuse specific performance under the exceptions. Thus, as
informed by experiences in the common law, supervision may be relevant, but not
conclusive. The relaxation of the traditional restriction of constant supervision on the
availability of the remedy in common law is apparent from cases and other common-law
authorities.46 This development has long been favoured by academic commentators.
For example, in his a comparative study, Dawson examined all the various doctrines of
the common law which restrict claims for specific performance and concluded that the
44
See Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) 783D-F per Hefer
JA.
45
See para 6 5 3 above. See also reference to Lubbe & Murray in text to n 50 below.
46
See Posner v Scott-Lewis [1987] Ch 25, where a landlord was compelled to comply with
an undertaking to employ a resident porter – see further paras 5 2 (iv) & 5 5 above. In the
American context, see discussion of Metropolitan Sports Facilities Commission v
Minnesota Twins Partnership in para 5 3 above.
375
wide-ranging discretion the Anglo-American judges exercise is regrettable.47

Supervision is accordingly rejected as a singular ground upon which courts can refuse
to order specific performance. Instead, it becomes one of the relevant underlying
considerations which can lead to the refusal of the remedy in terms of the broader
exception of hardship.48
Finally, there is the consideration of adequacy of damages, considered in chapter 3.

This chapter points out that the right to claim specific performance under our law does
not and should not depend on whether damages is inadequate as an alternative
remedy. However, the possibility that the plaintiff would be adequately compensated by
damages may be a factor to be weighed by the courts when determining whether such
an order would give rise to injustice or oppression in the form of undue hardship.49 Note
that in Benson, the court mentions undue hardship to the defendant, as an instance of
an injustice. Lubbe and Murray, however, rightly question whether “the financial loss
that the guilty party might suffer” should “be one of the circumstances in which, in the
words of Hefer JA in the Benson case, ‘the order will operate unduly harshly on the
defendant’?”50
The proposal is thus for a simplified yet more refined approach which can be achieved
by recognising a restricted right to specific performance. In this regard it recommends
that two exceptions (apart from impossibility and insolvency already recognised) to
specific performance should be recognised. These are the following: firstly, if the
contract sought to be enforced is of such a personal character that it would be
unreasonable to enforce it, and secondly, if specific performance would cause undue
hardship to the defendant or to third parties. This would be a matter for consideration on
the facts of each case. The proposed exceptions to the right would operate strictly. This
47
J P Dawson “Specific performance in France and Germany” (1958) 57 Mich LR 495.533.
He evidently favoured a more refined approach as exemplified by civil-law systems.
48
See para 5 5 above. See also para 6 5 3 (esp n 217) above.
49
50
376
means that if none of the exceptions are present, the court would not have a residual
discretion to refuse the remedy.51 Conversely, if one of the exceptions is present, the
court must refuse the remedy. The practical effect of the operation of one of these
exceptions is that the aggrieved party would have to be satisfied with the other
remedies available for breach of contract, i.e. either cancellation or damages or both.52
One final aspect relating to the proposal of a more concrete, exception-based approach
needs to be considered. This is the question of allocating the onus of proof in regard to
the proposed defences. In this regard the following statement by Kerr is relevant:
“The discretion to refuse to order specific performance being the court’s, the court is entitled
to arrive at its decision without being bound by any rules relating to the onus of proof. It
would be wise, however, for a defendant who wishes to persuade a court not to grant specific
performance to lead evidence of the relevant circumstances.”53
51
Much like the PECL, the PICC, the DCFR & the CESL (see paras 2 3 3 2 - 2 3 3 5 above),
and the civil-law systems under review (see text to n 246 para 3 4 3 above). See also para
6 4 2 n 160 above.
52
Of course, it is advisable for a plaintiff to ask for alternative remedies when he brings his
first action. The court in any event has the power to grant damages as an alternative for
specific performance of a contract, even when there is no alternative prayer for damages
(National Butchery Co v African Merchants Ltd (1907) 21 EDC 57). See further Lambiris
Orders of Specific Performance and Restitutio in Integrum in South African Law 167 ff;
Van der Merwe et al Contract: General Principles 333 ff, esp 334 & 347 for a discussion of
the so-called “double-barrelled procedure”. On the tenability of the view that damages as a
surrogate for specific performance could be an alternative remedy, see again para 1 1 4
above; Hutchison & Pretorius (eds) The Law of Contract in South Africa 316; Van der
Merwe et al Contract: General Principles 329, and esp Stuart-Steer 2013 Responsa
Meridiana 65-97. See also D J Joubert General Principles of the Law of Contract (1987)
228; Lubbe & Murray Contract 538, and the authority cited there.
53
The Principles of the Law of Contract 682. See also Lubbe “Contractual derogation and
the discretion to refuse an order for specific performance in South African Law” in Smits et
al (eds) Specific Performance in Contract Law: National and Other Perspectives 100.
377
According to the current approach, the defendant does not bear a full onus to prove
grounds for refusing an order for specific performance, as this would limit the discretion
of the court.54 This is apparent from the following dictum in Tamarillo (Pty) Ltd v BN
Aitkin (Pty) Ltd per Miller JA:55
“In a case in which the defendant requires the consent of a third party to enable him to
perform effectively, and at the end of the case, the defence of impossibility having been
raised and canvassed, the probabilities in regard to that issue appear to be evenly balanced,
the Court, it appears to me, might justifiably take the view that refusal of specific performance
was preferable to the grant of an order which as likely as not would prove to be ineffectual. A
rule that a defendant pleading impossibility as answer to a claim for specific performance
must necessarily discharge the onus of proving it if he is to avoid such a decree might
hamper and inhibit the Court in the exercise of its discretion.”
Analogously, under the proposed approach, the defendant would not bear a full onus to
prove circumstances which would justify the limitation of the plaintiff’s right. Instead, the
defendant would rather bear a burden of rebuttal, of raising or drawing the court’s
attention to these circumstances. The defendant only has to present evidence of the
relevant circumstances to prevent the plaintiff from succeeding with his claim, or as Van
54
See A Beck “The coming of age of specific performance” 1987 CILSA 190 201; S van der
Merwe et al Contract: General Principles 4 ed (2012) 330 n 25. According to Lambiris
Orders of Specific Performance and Restitutio in Integrum in South African Law 144, if the
onus did rest on the defendant “it must follow that, should a defendant fail to raise and
prove the appropriate circumstances, the court will not be in a position to exercise its
judicial discretion against issuing an order of specific performance”.
55
1982 (1) SA 398 (A) 443C-E. See Eiselen “Specific performance and special damages” in
MacQueen & Zimmermann (eds) European Contract Law: Scots and South African
Perspectives 256.
378
der Merwe et al state “[a] defendant would probably at least have to adduce some
evidence which would support his contention that an order should not be granted”.56
7 3 Concluding remarks
The proposed development inevitably militates against the decision in Benson, as it

entails the removal of the discretion of the court in order to achieve greater clarity in the
law.
The continued primacy of the remedy, evidenced by each plaintiff’s right to choose this
remedy, is also strongly recommended for the additional certainty it provides regarding
the purpose of our contract law and the enforceability of obligations in general.
A general right to require specific performance of obligations has certain advantages.

Through specific performance, the creditor obtains as far as possible what is due to him
and so the binding force of obligations is maintained, which is a principle applied at the
highest level in our law.57 Furthermore, difficulties in assessing damages are avoided
and it saves the costs of a judicial assessment of damages.
The approach confirms that specific performance should remain the ordinary remedy to
which a party to a contract is entitled. However, a fully contextualised study of the
research problem and comparative research into different legal systems demonstrates
that the creditor’s entitlement to require specific performance must not be boundless; it
should be restricted in terms of defined exceptions.
It was contended that the practice of the courts provides the basis for such a
development.58 If one examines the practice rather than the remarks of the courts, a
56
Contract: General Principles 330 n 25. See also Lambiris Orders of Specific Performance
and Restitutio in Integrum in South African Law 145; R H Christie & G B Bradfield
Christie’s The Law of Contract in South Africa 6 ed (2011) 547.
57
See para 4 8 2 n 340 above.
58
379
restrictive approach to specific performance emerges from the decisions. It is clear from
the decided cases that in certain instances, there is in effect no discretion; the remedy is
invariably refused.59
Although it has been the practice of the courts, they have hesitated to acknowledge this.
It also seems that commentators have known this for a long time, but the consequences
have not been fully worked out. It is suggested that it is time for the courts to bring
coherence to this unduly complex area of the law by clarifying when the remedy will not
be available. The proposed new exception-based approach could be developed
judicially as part of South African common law doctrine. It provides a theoretically sound
construction or solution,60 based on past practice. The courts therefore have sufficient
reason to overrule statements on the need for the retention of the widest possible
discretion.
The approach can also be related to certain statements made by Lubbe and Cockrell.61
Lubbe, for example, considers the comparable option of recognising certain Fallgruppen
or case groups in which the remedy should be denied.62 According to the author, the
adoption of this methodology might lead to the denial of the remedy in cases of
hardship.63 He also suggests that “a rule that specific performance generally will not be
granted as against an employee might develop from the practice of our courts in such
cases”.64 Lubbe thereby confirms that the practice of the courts in specific performance
59
60
Contract cases like Santos and Nationwide Airlines, that have been notoriously hard to
defend and explain, as it was indicated, can be explained in terms thereof (see paras 4 2
1 2 & 4 8 4 above).
61
See reference to Cockrell in para 4 8 2 (n 346) above.
62
in South African Law” Smits et al (eds) Specific Performance in Contract Law: National
and Other Perspectives.
63
112-113. See also para 6 5 4 above.
64
113. See also para 4 8 3 above.
380
matters has possibly opened the way for the development of a more restrictive
approach in future decisions.65
Finally, it is accepted that there may be some reluctance on the side of the judiciary66
and commentators67 to embrace the proposed reform.68 However, the truth of the matter
is simply that if courts do not engage in reform our law will remain uncertain and
internally incoherent or contradictory.
65
See further Eiselen “Specific performance and special damages” in MacQueen &
Zimmermann (eds) European Contract Law: Scots and South African Perspectives 257-
260, 266, 269-270. See esp reference to Eiselen in text to n 197 para 6 5 2 above.
66
See cases noted in n 9 para 7 1 above; and again paras 1 1 1 (esp n 41) & 4 8 3 (esp n
354) above.
67
See eg Lambiris Orders of Specific Performance and Restitutio in Integrum in South
African Law (1989) 131 n 29: “Whatever arguments have been adduced in the past in
support of defining specific circumstances or cases in which an order of specific
performance will be refused, this approach is no longer tenable in the light of Benson’s
case.” But see valuable statement/s by Lubbe (2008) in text to n 13 para 7 1 & text to n 37
para 7 2 2 above, which continues as follows: “Questions can therefore be raised about
the stability of the position adopted in the Benson case. The possibility that the Benson
decision may suffer the same fate as that of Haynes, and that the case law may oscillate
between a purely discretionary and a rule based approach cannot be excluded. It is
submitted that the law will ultimately be discredited if, for instance, a subliminal
understanding that specific performance will ordinarily not be granted against an
employee in respect of a contract of service is not reflected in legal doctrine.”
68
Lubbe also acknowledges that “[t]here is very little recognition of such a possibility at
present”, but goes on to say that “[a]n approach which reconsiders the objections to a rule
based approach to the granting of the remedy is preferable to one which denies the
substantive implications of the denial of the remedy” (in “Contractual derogation and the
discretion to refuse an order for specific performance in South African Law” Smits et al
(eds) Specific Performance in Contract Law: National and Other Perspectives 114-115).
See again paras 1 1 1, 4 8 3 & 6 5 4 above.
381
ADDENDUM A
1. American Law Institute’s Restatement (Second) of Contracts

2. United States Uniform Commercial Code (UCC)
3. German Civil Code (BGB)
4. German Code of Civil Procedure (ZPO)
5. Dutch Civil Code (BW)
6. UN Convention on Contracts for the International Sale of Goods (CISG)
7. UNIDROIT Principles of International Commercial Contracts (PICC)
8. Principles of European Contract Law (PECL)
9. Draft Common Frame of Reference (DCFR)
10. Common European Sales Law (CESL)
1. American Law Institute’s Restatement (Second) of Contracts
§ 261 Discharge by supervening impracticability
Where, after a contract is made, a party’s performance is made impracticable without

his fault by the occurrence of an event the non-occurrence of which was a basic
assumption on which the contract was made, his duty to render that performance is
discharged, unless the language or the circumstances indicate the contrary.
§ 357 Availability of specific performance and injunction
(1) Subject to the rules stated in §§ 359-69, specific performance of a contract duty will
be granted in the discretion of the court against a party who has committed or is
threatening to commit a breach of the duty.
(2) Subject to the rules stated in §§ 359-69, an injunction against breach of a contract
duty will be granted in the discretion of the court against a party who has committed or
is threatening to commit a breach of the duty if
(a) the duty is one of forbearance, or
382
(b) the duty is one to act and specific performance would be denied only for reasons
that are inapplicable to an injunction.
§ 358 Form of order and other relief
(1) An order of specific performance or an injunction will be so drawn as best to

effectuate the purposes for which the contract was made and on such terms as justice
requires. It need not be absolute in form and the performance that it requires need not
be identical with that due under the contract.
(2) If specific performance or an injunction is denied as to part of the performance that is

due, it may nevertheless be granted as to the remainder.
(3) In addition to specific performance or an injunction, damages and other relief may be
awarded in the same proceeding and an indemnity against future harm may be
required.
§ 359 Effect of adequacy of damages
(1) Specific performance or an injunction will not be ordered if damages would be

adequate to protect the expectation interest of the injured party.
(2) The adequacy of the damage remedy for failure to render one part of the
performance due does not preclude specific performance or injunction as to the contract
as a whole.
(3) Specific performance or an injunction will not be refused merely because there is a
remedy for breach other than damages, but such a remedy may be considered in
exercising discretion under the rule stated in § 357.
§ 360 Factors affecting adequacy of damages
In determining whether the remedy in damages would be adequate, the following

circumstances are significant:
383
(a) the difficulty of proving damages with reasonable certainty,
(b) the difficulty of procuring a suitable substitute performance by means of money

awarded as damages, and
(c) the likelihood that an award of damages could not be collected.
§ 362 Effect of uncertainty of terms
Specific performance or an injunction will not be granted unless the terms of the
contract are sufficiently certain to provide a basis for an appropriate order.
§ 363 Effect of insecurity as to the agreed exchange
Specific performance or an injunction may be refused if a substantial part of the agreed

exchange for the performance to be compelled is unperformed and its performance is
not secured to the satisfaction of the court.
§ 364 Effect of unfairness
(1) Specific performance or an injunction will be refused if such relief would be unfair
because
(a) the contract was induced by mistake or by unfair practices,
(b) the relief would cause unreasonable hardship or loss to the party in breach or to
third persons, or
(c) the exchange is grossly inadequate or the terms of the contract are otherwise unfair.
(2) Specific performance or an injunction will be granted in spite of a term of the

agreement if denial of such relief would be unfair because it would cause unreasonable
hardship or loss to the party seeking relief or to third persons.
384
§ 365 Effect of public policy
Specific performance or an injunction will not be granted if the act or forbearance that
would be compelled or the use of compulsion is contrary to public policy.
§ 366 Effect of difficulty in enforcement or supervision
A promise will not be specifically enforced if the character and magnitude of the
performance would impose on the court burdens in enforcement or supervision that are
disproportionate to the advantages to be gained from enforcement and to the harm to
be suffered from its denial.
§ 367 Contracts for personal service or supervision
(1) A promise to render personal service will not be specifically enforced.
(2) A promise to render personal service exclusively for one employer will not be
enforced by an injunction against serving another if its probable result will be to compel
a performance involving personal relations the enforced continuance of which is
undesirable or will be to leave the employee without other reasonable means of making
a living.
2. United States Uniform Commercial Code (UCC)
Article 2 – Sales (as amended in 2003)
§ 2-614 Substituted performance
(1) Where without fault of either party the agreed berthing, loading, or unloading
facilities fail or an agreed type of carrier becomes unavailable or the agreed manner of
delivery otherwise becomes commercially impracticable but a commercially reasonable
substitute is available, such substitute performance must be tendered and accepted.
(2) If the agreed means or manner of payment fails because of domestic or foreign
governmental regulation, the seller may withhold or stop delivery unless the buyer
385
provides a means or manner of payment which is commercially a substantial equivalent.

If delivery has already been taken, payment by the means or in the manner provided by
the regulation discharges the buyer’s obligation unless the regulation is discriminatory,
oppressive or predatory.
§ 2-615 Excuse by failure of presupposed conditions
Except so far as a seller may have assumed a greater obligation and subject to the
preceding section on substituted performance:
(a) Delay in delivery or non-delivery in whole or in part by a seller who complies with
paragraphs (b) and (c) is not a breach of his duty under a contract for sale if
performance as agreed has been made impracticable by the occurrence of a
contingency the non-occurrence of which was a basic assumption on which the contract
was made or by compliance in good faith with any applicable foreign or domestic
governmental regulation or order whether or not it later proves to be invalid.
(b) Where the causes mentioned in paragraph (a) affect only a part of the seller’s
capacity to perform, he must allocate production and deliveries among his customers
but may at his option include regular customers not then under contract as well as his
own requirements for further manufacture. He may so allocate in any manner which is
fair and reasonable.
(c) The seller must notify the buyer seasonably that there will be delay or non-delivery
and, when allocation is required under paragraph (b), of the estimated quota thus made
available for the buyer.
§ 2-709 Action for the price
(1) If the buyer fails to pay the price as it becomes due, the seller may recover, together
with any incidental or consequential damages under section 2-710, the price:
(a) of goods accepted or of conforming goods lost or damaged within a commercially

reasonable time after risk of their loss has passed to the buyer; and
386
(b) of goods identified to the contract if the seller is unable after reasonable effort to
resell them at a reasonable price or the circumstances reasonably indicate that such
effort will be unavailing.
(2) If the seller sues for the price, the seller must hold for the buyer any goods that have
been identified to the contract and are still in the seller’s control. However, if resale
becomes possible, the seller may resell them at any time prior to the collection of the
judgment. The net proceeds of any such resale must be credited to the buyer, and
payment of the judgment entitles the buyer to any goods not resold.
(3) After the buyer has wrongfully rejected or revoked acceptance of the goods or has
failed to make a payment due or has repudiated (section 2-610), a seller that is held not
entitled to the price under this section shall nevertheless be awarded damages for
nonacceptance under section 2-708.
§ 2-712 “Cover”; buyer’s procurement of substitute goods
(1) If the seller wrongfully fails to deliver or repudiates or the buyer rightfully rejects or
justifiably revokes acceptance, the buyer may “cover” by making in good faith and
without unreasonable delay any reasonable purchase of or contract to purchase goods
in substitution for those due from the seller.
(2) A buyer may recover from the seller as damages the difference between the cost of
cover and the contract price together with any incidental or consequential damages
under Section 2-715, but less expenses saved in consequence of the seller’s breach.
(3) Failure of the buyer to effect cover within this section does not bar the buyer from
any other remedy.
§ 2-716 Specific performance; buyer’s right to replevin
(1) Specific performance may be decreed if the goods are unique or in other proper
circumstances. In a contract other than a consumer contract, specific performance may
be decreed if the parties have agreed to that remedy. However, even if the parties
387
agree to specific performance, specific performance may not be decreed if the

breaching party’s sole remaining contractual obligation is the payment of money.
(2) The decree for specific performance may include such terms and conditions as to
payment of the price, damages, or other relief as the court may deem just.
(3) The buyer has a right of replevin or similar remedy for goods identified for the
contract if after reasonable effort the buyer is unable to effect cover for such goods or
the circumstances reasonably indicate that such effort will be unavailing or if the goods
have been shipped under reservation and satisfaction of the security interest in them
has been made or tendered.
(4) The buyer’s right under subsection (3) vests upon acquisition of a special property,
even if the seller had not then repudiated or failed to deliver.
3. German Civil Code (BGB)
§ 241 Duties arising from an obligation
(1) By virtue of an obligation an obligee [creditor] is entitled to claim performance from

the obligor [debtor]. The performance may also consist in forbearance.
(2) An obligation may also, depending on its contents, oblige each party to take account
of the rights, legal interests and other interests of the other party.
§ 249 Nature and extent of damages
(1) A person who is liable in damages must restore the position that would exist if the
circumstance obliging him to pay damages had not occurred.
(2) Where damages are payable for injury to a person or damage to a thing, the obligee
may demand the required monetary amount in lieu of restoration. When a thing is
damaged, the monetary amount required under sentence 1 only includes value-added
tax if and to the extent that it is actually incurred.
388
§ 250 Damages in money after the specification of a period of time
The obligee may specify a reasonable period of time for the person liable in damages to
undertake restoration and declare that he will reject restoration after the period of time
ends. After the end of the period of time the obligee may demand damages in money, if
restoration does not occur in good time; the claim to restoration is excluded.
§ 251 Damages in money without the specification of a period of time
(1) To the extent that restoration is not possible or is not sufficient to compensate the
obligee, the person liable in damages must compensate the obligee in money.
(2) The person liable in damages may compensate the obligee in money if restoration is
only possible with disproportionate expenses. Expenses incurred as a result of the
curative treatment of an injured animal are not disproportionate merely because they
significantly exceed the value of the animal.
§ 275 Exclusion of the duty of performance
(1) A claim for performance is excluded to the extent that performance is impossible for
the obligor or for any other person.
(2) The obligor may refuse performance to the extent that performance requires
expense and effort which, taking into account the subject matter of the obligation and
the requirements of good faith, is grossly disproportionate to the interest in performance
of the obligee. When it is determined what efforts may reasonably be required of the
obligor, it must also be taken into account whether he is responsible for the obstacle to
performance.
(3) In addition, the obligor may refuse performance if he is to render the performance in
person and, when the obstacle to the performance of the obligor is weighed against the
interest of the obligee in performance, performance cannot be reasonably required of
the obligor.
389
(4) The rights of the obligee are governed by sections 280, 283 to 285, 311a and 326.
§ 280 Damages for breach of duty
(1) If the obligor breaches a duty arising from the obligation, the obligee may demand
damages for the damage caused thereby. This does not apply if the obligor is not
responsible for the breach of duty.
(2) Damages for delay in performance may be demanded by the obligee only subject to
the additional requirement of section 286.
(3) Damages in lieu of performance may be demanded by the obligee only subject to
the additional requirements of sections 281, 282 or 283.
§ 281 Damages in lieu of performance for nonperformance or failure to render

performance as owed
(1) To the extent that the obligor does not render performance when it is due or does
not render performance as owed, the obligee may, subject to the requirements of
section 280 (1), demand damages in lieu of performance, if he has without result set a
reasonable period for the obligor for performance or cure. If the obligor has performed
only in part, the obligee may demand damages in lieu of complete performance only if
he has no interest in the part performance. If the obligor has not rendered performance
as owed, the obligee may not demand damages in lieu of performance if the breach of
duty is immaterial.
(2) Setting a period for performance may be dispensed with if the obligor seriously and
definitively refuses performance or if there are special circumstances which, after the
interests of both parties are weighed, justify the immediate assertion of a claim for
damages.
(3) If the nature of the breach of duty is such that setting a period of time is out of the
question, a warning notice is given instead.
390
(4) The claim for performance is excluded as soon as the obligee has demanded
damages in lieu of performance.
(5) If the obligee demands damages in lieu of complete performance, the obligor is
entitled to claim the return of his performance under sections 346 to 348.
§ 282 Damages in lieu of performance for breach of a duty under section 241 (2)
If the obligor breaches a duty under section 241 (2), the obligee may, if the
requirements of section 280 (1) are satisfied, demand damages in lieu of performance,
if he can no longer reasonably be expected to accept performance by the obligor.
§ 283 Damages in lieu of performance where the duty of performance is excluded
If, under section 275 (1) to (3), the obligor is not obliged to perform, the obligee may, if
the requirements of section 280 (1) are satisfied, demand damages in lieu of
performance. Section 281 (1) sentences 2 and 3 and (5) apply with the necessary
modifications.
§ 284 Reimbursement of futile expenses
In place of damages in lieu of performance, the obligee may demand reimbursement of

the expenses which he has made and in all fairness was entitled to make in reliance on
receiving performance, unless the purpose of the expenses would not have been
achieved, even if the obligor had not breached his duty.
§ 285 Return of reimbursement
(1) If the obligor, as a result of the circumstance by reason of which, under § 275 (1) to
(3), he has no duty of performance, obtains reimbursement or a claim to reimbursement
for the object owed, the obligee may demand return of what has been received in
reimbursement or an assignment of the claim to reimbursement.
391
(2) If the obligee may demand damages in lieu of performance, then, if he exercises the
right stipulated in (1) above, the damages are reduced by the value of the
reimbursement or the claim to reimbursement he has obtained.
§ 311a Obstacle to performance when contract is entered into
(1) A contract is not prevented from being effective by the fact that under section 275 (1)
to (3) the obligor does not need to perform and the obstacle to performance already
exists when the contract is entered into.
(2) The obligee may, at his option, demand damages in lieu of performance or
reimbursement of his expenses in the extent specified in section 284. This does not
apply if the obligor was not aware of the obstacle to performance when entering into the
contract and is also not responsible for his lack of awareness. Section 281 (1)
sentences 2 and 3 and (5) apply with the necessary modifications.
§ 611 Typical contractual duties in a service contract
(1) By means of a service contract, a person who promises service is obliged to perform
the services promised, and the other party is obliged to grant the agreed remuneration.
(2) Services of any type may be the subject matter of service contracts.
§ 612 Remuneration
(1) Remuneration is deemed to have been tacitly agreed if in the circumstances it is to

be expected that the services are rendered only for remuneration.
(2) If the amount of remuneration is not specified, then if a tariff exists, the tariff
remuneration is deemed to be agreed; if no tariff exists, the usual remuneration is
deemed to be agreed.
392
§ 613 Non-transferability
The party under a duty of service must in case of doubt render the services in person.
The claim to services is, in case of doubt, not transferable.
§ 631 Typical contractual duties in a contract to produce a work
(1) By a contract to produce a work, a contractor is obliged to produce the promised

work and the customer is obliged to pay the agreed remuneration.
(2) The subject matter of a contract to produce a work may be either the production or
alteration of a thing or another result to be achieved by work or by a service.
§ 632 Remuneration
(1) Remuneration for work is deemed to be tacitly agreed if the production of the work,
in the circumstances, is to be expected only in return for remuneration.
(2) If the amount of remuneration is not specified, then if a tariff exists, the tariff
remuneration is deemed to be agreed; if no tariff exists, the usual remuneration is
deemed to be agreed.
(3) In case of doubt, remuneration is not to be paid for a cost estimate.
§ 633 Material defects and legal defects
(1) The contractor must procure the work for the customer free of material defects and
legal defects.
(2) The work is free of material defects if it is of the agreed quality. To the extent that the
quality has not been agreed, the work is free from material defects
1. if it is suitable for the use envisaged in the contract, or else
393
2. if it is suitable for the customary use and is of a quality that is customary in works of
the same type and that the customer may expect in view of the type of work.
It is equivalent to a material defect if the contractor produces a work that is different

from the work ordered or too small an amount of the work.
(3) The work is free of legal defects if third parties, with regard to the work, either cannot
assert any rights against the customer or can assert only such rights as are taken over
under the contract.
§ 634 Rights of the customer in the case of defects
If the work is defective, the customer, if the requirements of the following provisions are
met and to the extent not otherwise specified, may
1. under section 635, demand cure,
2. under section 637, remedy the defect himself and demand reimbursement for
required expenses,
3. under sections 636, 323 and 326 (5), revoke the contract or under section 638,
reduce payment, and
4. under sections 636, 280, 281, 283 and 311a, demand damages, or under section
284, demand reimbursement of futile expenditure.
4. German Code of Civil Procedure (ZPO)
§ 510b Judgment requiring a party to take specific action
Should a party be sentenced to take specific action, the defendant may concurrently be
sentenced, upon corresponding application being made by the plaintiff, to pay
compensation for the case that the action is not taken within the period to be
determined; the court is to assess such compensation at its sole discretion.
394
§ 765 Orders issued by the execution court where performance is to be made

concurrently
If the enforcement depends on concurrent performance by the creditor to the debtor, the
court responsible for execution may only direct enforcement activities if:
1. Proof is provided, by submitting public records or documents, or records or

documents that have been publicly certified, and a copy of such records or documents
has already been served, that the debtor has been satisfied or is defaulting on
acceptance; no service need be made if the court-appointed enforcement officer had
already commenced compulsory enforcement pursuant to section 756 (1) and such
proof is provided by the record prepared by the court-appointed enforcement officer; or
2. The court-appointed enforcement officer has effected an enforcement measure

pursuant to section 756 (2) and this is proven by the record prepared by the court-
appointed enforcement officer.
§ 765a Protection from execution
(1) Upon a corresponding petition being filed by the debtor, the court responsible for
execution may reverse a measure of compulsory enforcement in its entirety or in part,
may prohibit it, or may temporarily stay such measure if, upon comprehensively
assessing the creditor’s justified interest in protection, the court finds that the measure
entails a hardship that due to very special circumstances is immoral (contra bonos
mores). The execution court is authorised to deliver the orders designated in section
732 (2). Should the measure concern an animal, the execution court is to consider, in
weighing the matter, the responsibility that the person has for the animal.
(2) The court-appointed enforcement officer may delay a measure serving to obtain the
surrender of objects until the court responsible for execution delivers a decision, but
may not so delay it for longer than one (1) week, if the prerequisites set out in
subsection (1), first sentence, are demonstrated to his satisfaction and if it was not
possible for the debtor to refer the matter to the execution court.
395
(3) In matters pertaining to the vacation of premises, the petition pursuant to subsection
(1) is to be filed at the latest within two (2) weeks prior to the date set for the vacation of
the premises, unless the grounds on which the petition is based came about only after
this time or the debtor was prevented from filing the petition in due time through no fault
of his own.
(4) The execution court shall reverse its order, upon a corresponding petition being filed,
or shall modify it, if this is mandated with a view to the change of the overall factual
situation.
(5) Enforcement activities may be abrogated in the cases provided for by subsection (1),
first sentence, and subsection (4) only once the order has become final and binding.
§ 883 Surrender of specific movable objects
(1) If the debtor is to surrender a movable asset or a number of specific movable

objects, the court-appointed enforcement officer is to take them away from the debtor
and to physically submit them to the creditor.
(2) Where the object to be surrendered is not found, the debtor is under obligation –
upon the creditor having filed a corresponding petition – to declare for the records of the
court, in lieu of an oath, that he is not in possession of the object and that he does not
know where it is located. The court-appointed enforcement officer competent pursuant
to section 802e shall summon the debtor to administer the statutory declaration in lieu of
an oath. The stipulations of sections 478 to 480, of section 483, 802f (4), sections 802g
through 802i and of section 802j subsections (1) and (2) shall apply mutatis mutandis.
(3) The court may decide to change the statutory declaration in lieu of an oath to reflect
the overall factual situation.
§ 884 Provision of a specific amount of fungible things
Should the debtor have to provide a specific number or amount of fungible things that in
business dealings are customarily specified by number, measure, or weight, or should
396
the debtor have to provide securities, the rule set out in section 883 (1) shall apply
mutatis mutandis.
§ 885 Surrender of plots of real estate or ships
(1) Insofar as the debtor is to surrender an immovable property or a ship entered in the
register of ships, or a ship under construction so entered in the register; or insofar as he
is to grant permission to use such property, ship, or ship under construction; or insofar
as he is to vacate them, the court-appointed enforcement officer is to remove the debtor
from possession and is to put the creditor into possession. The court-appointed
enforcement officer is to demand that the debtor provide an address at which
documents may be served, or that he name an authorised recipient.
(2) The court-appointed enforcement officer shall remove any movable objects that are
not the subject of compulsory enforcement and shall physically submit them, or make
them available, to the debtor or, if the debtor is absent, to an attorney-in-fact of the
debtor, an adult family member, a person employed by the family, or to an adult
permanent cohabitant.
(3) Where neither the debtor nor one of the persons designated is present, or where
acceptance is refused, the court-appointed enforcement officer is to take the objects
designated in subsection (2) to the storage office for attached objects, or is to ensure
their safekeeping in another way, doing so at the costs of the debtor. Movable objects in
the safekeeping of which there is manifestly no interest are to be destroyed without
undue delay.
(4) Should the debtor fail to redeem the objects within a period of one (1) month
following the vacation, the court-appointed enforcement officer shall dispose of them
and shall lodge the proceeds. The court-appointed enforcement officer shall dispose of
the objects and lodge the proceeds also in those cases in which the debtor has
demanded return of the objects within a period of one (1) month without paying for the
costs within a period of two (2) months following the vacation. Sections 806, 814 and
817 shall apply mutatis mutandis. Objects that cannot be realised shall be destroyed.
397
(5) Objects exempted from attachment, and those objects for which it is not to be
expected that their realisation will generate any proceeds, are to be surrendered at any
time at the demand of the debtor without any further requirements needing to be met.
§ 885a Limited enforcement instructions
(1) The enforcement instructions may be limited to the measures pursuant to section
885 (1).
(2) The court-appointed enforcement officer is to document in the record (section 762)
the movable objects that are obviously perceivable when he takes the enforcement
action. In preparing the documentation, he may create images in electronic format.
(3) The creditor may at any time remove those of the movable objects that are not the
subject of compulsory enforcement and is to keep them safe. He may at any time
destroy movable objects in the safekeeping of which there is manifestly no interest. The
creditor shall accept responsibility regarding the measures set out in the first and
second sentences only insofar as wilful misconduct and gross negligence are involved.
(4) Should the debtor fail to redeem the objects from the creditor within a period of one
(1) month after the creditor has been put into possession, the creditor may realise the
objects. Sections 372 through 380, 382, 383 and 385 of the Civil Code (Bürgerliches
Gesetzbuch) are to be applied mutatis mutandis. No warning shall be issued that the
objects may be sold at auction. Objects that cannot be realised may be destroyed.
(5) Objects exempted from attachment, and those objects for which it is not to be
expected that their realisation will generate any proceeds, are to be surrendered at any
time at the demand of the debtor without any further requirements needing to be met.
(6) Along with giving notice of the date set for the vacation of the premises, the court-
appointed enforcement officer shall indicate to the creditor and to the debtor the
stipulations made in subsections (2) through (5).
398
(7) The costs pursuant to subsections (3) and (4) shall be deemed costs of the
compulsory enforcement.
§ 886 Surrender in the case of a third party having custody and control
If an object to be surrendered is in the custody and control of a third party, the claim of
the debtor to surrender of the object is to be transferred to the creditor, upon his having
filed the corresponding petition, in accordance with the provisions governing the
attachment and transfer of a monetary claim.
§ 887 Actions that may be taken by others
(1) Should the debtor fail to meet his obligation to take an action, where such action can
be taken by a third party, the creditor is to be authorised by the court of first instance
hearing the case, upon his having filed a corresponding petition, to have this action
taken by a third party at the costs of the debtor.
(2) Concurrently, the creditor may file the petition that the court sentence the debtor to
make advance payment of the costs that will result from having a third party so take the
action, notwithstanding the right to any supplementary claim.
(3) The above rules are not to be applied to any compulsory enforcement serving to
obtain the surrender or provision of objects.
§ 888 Actions that may not be taken by others
(1) Where an action that depends exclusively on the will of the debtor cannot be taken
by a third party, and where a corresponding petition has been filed, the court of first
instance hearing the case is to urge the debtor to take the action in its ruling by levying
a coercive penalty payment and, for the case that such payment cannot be obtained, by
coercive punitive detention, or by directly sentencing him to coercive punitive detention.
The individual coercive penalty payment may not be levied in an amount in excess of
25,000 euros. The stipulations of Chapter 2 regarding detention shall apply mutatis
mutandis to coercive punitive detention.
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(2) No warning shall be issued regarding the coercive measures.
(3) These rules shall not be applied in those cases in which a person is sentenced to
provide services under a service agreement.
§ 890 Forcing the debtor to cease and desist from actions, or to tolerate actions
(1) Should the debtor violate his obligation to cease and desist from actions, or to
tolerate actions to be taken, the court of first instance hearing the case is to sentence
him for each count of the violation, upon the creditor filing a corresponding petition, to a
coercive fine and, for the case that such payment cannot be obtained, to coercive
detention or coercive detention of up to six (6) months. The individual coercive fine may
not be levied in an amount in excess of 250,000 euros, and the coercive detention may
not be longer than a total of two (2) years.
(2) The sentence must be preceded by a corresponding warning that is to be issued by

the court of first instance hearing the case, upon corresponding application being made,
unless it is set out in the judgment providing for the obligation.
(3) Moreover, upon the creditor having filed a corresponding petition, the debtor may be
sentenced to creating a security for any damages that may arise as a result of future
violations, such security being created for a specific period of time.
§ 893 Action brought for performance of the equivalent in money
(1) The stipulations of the present Chapter do not affect the right of the creditor to
demand performance of the equivalent in money.
(2) The creditor is to enforce his claim to performance of the equivalent in money by
filing a corresponding court action with the court of first instance hearing the case.
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§ 894 Fiction of a declaration of intent having been made
Where the debtor has been sentenced to make a declaration of intent, such declaration
shall be deemed to have been made as soon as the judgment has attained legal force.
Where the declaration of intent depends on counter-performance being made, this
effect shall occur as soon as an enforceable execution copy of the final and binding
judgment has been issued in accordance with the stipulations of sections 726 and 730.
5. Dutch Civil Code (BW)
Article 3:11 Good faith
A person has not acted in ‘good faith’ as a condition for a certain legal effect if he knew
or in the circumstances reasonably ought to have known the facts or rights from which
his good faith depends. The impossibility to conduct an inquiry does not prevent that a
person, who had good reason to doubt, is regarded as someone who ought to have
known the relevant facts or rights.
Article 3:12 The principle of reasonableness and fairness
At determining what the principle of ‘reasonableness and fairness’ demands in a

specific situation, one has to take into account the general accepted legal principles, the
fundamental conceptions of law in the Netherlands and the relevant social and personal
interests which are involved in the given situation.
Article 3:13 Abuse of right
(1) A person to whom a right belongs may not exercise the powers vested in it as far as
this would mean that he abuses these powers.
(2) A right may be abused, among others, when it is exercised with no other purpose
than to damage another person or with another purpose than for which it is granted or
when the use of it, given the disparity between the interests which are served by its
401
effectuation and the interests which are damaged as a result thereof, in all reason has
to be stopped or postponed.
(3) The nature of a right may implicate that it cannot be abused.
Article 3:296 Legal action to claim specific performance
(1) Where a person is legally obliged towards another person to give, to do or not to do
something, the court shall order him, upon a request or claim of the entitled person, to
carry out this specific performance, unless something else results from law, the nature
of the obligation or a juridical act.
(2) Where a person is legally obliged to perform something under an effective date or
expiration date or under a condition precedent or subsequent, the court may order him
to do so with observance of that time stipulation or condition.
Article 3:297 Consequence of a court decision to carry out a specific performance
If a performance is obtained through the enforcement of a judicial decision or another

executory title, then this has the same legal effect as that of a voluntary performance of
the obligation that exists according to that judicial decision or executory title.
Article 3:299 A specific performance to do or not to do something
(1) When someone fails do what he is legally obliged to do, the court may, upon a legal
claim of the person towards whom this obligation exists, authorise this last person to
effectuate himself what would have resulted from that obligation if it would have been
performed properly.
(2) In the same way a person towards whom another person is legally obliged to refrain
from doing something, may be authorised to undo what is performed in violation of that
obligation.
402
(3) The costs necessary for the implementation of an authorisation as meant in the
previous paragraphs, are chargeable to the person who did not observe his obligation.
The judicial decision in which the authorisation is granted, may order as well the
payment of these costs at display of certain documents mentioned to this end in the
decision of the court.
Article 3:300 A specific performance to complete a juridical act
(1) Where someone is legally obliged towards another person to perform a juridical act,
the court may order, upon a legal claim of the entitled person, that its judicial decision
shall have the same force as a deed that should have been drawn up in accordance
with all legal formalities by the person who is obliged to perform this juridical act or that
a representative of this person, appointed by the court, shall perform this juridical act in
his name, unless this is incompatible with the nature of the to be performed juridical act.
When the court appoints a representative, it may order as well that the juridical act that
has to be performed by this representative needs its approval in advance.
(2) Where the defendant is legally obliged to draw up a deed with the plaintiff, the court
may order that its judicial decision shall take the place of the deed or of a part of it.
Article 6:2 Reasonableness and fairness within the relationship between the
creditor and debtor
(1) The creditor and debtor must behave themselves towards each other in accordance
with the standards of reasonableness and fairness.
(2) A rule in force between a creditor and his debtor by virtue of law, common practice
or a juridical act does not apply as far as this would be unacceptable, in the
circumstances, by standards of reasonableness and fairness.
Article 6:3 Natural obligations
(1) A natural obligation is a legally not enforceable obligation.
403
(2) A natural obligation exists:
a. when the law or a juridical act denies its enforceability;
b. when someone has a pressing moral duty of such nature towards another person that
compliance with it, although legally not enforceable, has to be regarded by social
standards (common opinion) as the fulfilment of a performance to which this other
person is entitled.
Article 6:74 Requirements for a compensation for damages
(1) Every imperfection in the compliance with an obligation is a non-performance of the

debtor and makes him liable for the damage which the creditor suffers as a result,
unless the non-performance is not attributable to the debtor.
(2) As far as it is not yet permanently impossible to accomplish the indebted

performance, paragraph 1 of this Article only applies with due observance of what is
regulated in Subsection 2 for a debtor who is in default.
Article 6:75 Legal excuse for a non-performance (force majeure)
A non-performance cannot be attributed to the debtor if it does not result from his fault
and if he cannot be held accountable for it by virtue of law, a juridical act or generally
accepted principles (common opinion).
Article 6:87 Alternative compensation for damages
(1) When the debtor is in default and the creditor has notified him in writing that he
demands the payment of damages instead of the original performance, the non-
performed obligation is converted into an obligation to pay for alternative damages,
unless it already was (or had become) permanently impossible to accomplish the
original performance.
404
(2) The original obligation shall not be converted in an obligation to pay for alternative
damages when this is not justified in view of the fact that the non-performance is of
minor importance.
Article 6:248 Legal effects arising from law, usage or the standards of
reasonableness and fairness
(1) An agreement not only has the legal effects which parties have agreed upon, but
also those which, to the nature of the agreement, arise from law, usage (common
practice) or the standards of reasonableness and fairness.
(2) A rule, to be observed by parties as a result of their agreement, is not applicable

insofar this, given the circumstances, would be unacceptable to standards of
reasonableness and fairness.
Article 6:265 Rescission of a mutual agreement for a breach of contract
(1) Every failure of a party in the performance of one of his obligations, gives the
opposite party the right to rescind the mutual agreement in full or in part, unless the
failure, given its specific nature or minor importance, does not justify this rescission and
its legal effects.
(2) As far as performance is not permanently or temporarily impossible, the right to

rescind the mutual agreement only arises when the debtor is in default.
Article 7:21 Non-performance because of a lack of conformity
(1) If the object is not in conformity with the sale agreement, then the buyer may
demand that the seller:
a. supplies what is still missing;
b. repairs the supplied object, provided that the seller is reasonably able to comply with
this demand;
405
c. replaces the supplied object, unless the deviation from what has been agreed upon is
too insignificant to justify such a replacement or unless the object, after the moment on
which the buyer reasonably should have taken into account that the received
performance may have to be undone, has been destroyed or damaged because the
buyer has not ensured its preservation as a prudent debtor should have done.
(2) The costs of compliance with the obligations referred to in paragraph 1 cannot be
charged to the buyer.
(3) The seller must perform the obligations referred to in paragraph 1 within a
reasonable time and without any significant inconvenience to the buyer, taking into
account, among other facts, the nature of the object and the particular use that the
buyer intends to make of it as provided for in the agreement.
(4) In the event of a consumer sale agreement the buyer may, contrary to paragraph 1,
only then not demand the repair or the replacement of the supplied object if such a
repair or replacement is impossible or cannot be expected from the seller.
(5) In the event of a consumer sale agreement, a repair or replacement of the supplied
object cannot be expected from the seller if it imposes costs on him which are
disproportional in comparison with the costs of exercising an alternative legal right
(action) or legal remedy at the disposal of the buyer, taken into account the value of the
object if it would be in conformity with the agreement, the significance of the lack of
conformity and whether the alternative legal right (action) or legal remedy could be
completed without significant inconvenience to the buyer.
(6) If, in the event of a consumer sale agreement, the seller has not performed his
obligation to repair the supplied object within a reasonable time after he has been urged
to do so by means of a letter of formal notice to perform from the buyer, then the buyer
is entitled to have the object repaired by a third person and to recover the costs thereof
from the seller.
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Article 7:759 Repair of construction defects
(1) If construction defects, for which the constructor is liable, come to light after the
delivery of the completed construction, then the principal must give the constructor the
opportunity to repair these defects within a reasonable period, unless this cannot be
expected of the principal in view of the circumstances, all without prejudice to the
constructor’s liability for damages resulting from a poor completion and delivery.
(2) The principal may claim that the constructor repairs the construction defects within a
reasonable period, unless the costs of repair would be in no proportion to the
importance of these repairs for the principal in comparison to his interests in receiving a
financial compensation for damages.
6. UN Convention on Contracts for the International Sale of Goods (CISG)
Article 1
(1) This Convention applies to contracts of sale of goods between parties whose places
of business are in different States:
(a) when the States are Contracting States; or
(b) when the rules of private international law lead to the application of the law of a
Contracting State.
(2) The fact that the parties have their places of business in different States is to be
disregarded whenever this fact does not appear either from the contract or from any
dealings between, or from information disclosed by, the parties at any time before or at
the conclusion of the contract.
(3) Neither the nationality of the parties nor the civil or commercial character of the
parties or of the contract is to be taken into consideration in determining the application
of this Convention.
407
Article 6
The parties may exclude the application of this Convention or, subject to article 12,
derogate from or vary the effect of any of its provisions.
Article 7
(1) In the interpretation of this Convention, regard is to be had to its international

character and to the need to promote uniformity in its application and the observance of
good faith in international trade.
(2) Questions concerning matters governed by this Convention which are not expressly
settled in it are to be settled in conformity with the general principles on which it is
based or, in the absence of such principles, in conformity with the law applicable by
virtue of the rules of private international law.
Article 28
If, in accordance with the provisions of this Convention, one party is entitled to require
performance of any obligation by the other party, a court is not bound to enter a
judgement for specific performance unless the court would do so under its own law in
respect of similar contracts of sale not governed by this Convention.
Article 45
(1) If the seller fails to perform any of his obligations under the contract or this
Convention, the buyer may:
(a) exercise the rights provided in articles 46 to 52;
(b) claim damages as provided in articles 74 to 77.
(2) The buyer is not deprived of any right he may have to claim damages by exercising
his right to other remedies.
408
(3) No period of grace may be granted to the seller by a court or arbitral tribunal when
the buyer resorts to a remedy for breach of contract.
Article 46
(1) The buyer may require performance by the seller of his obligations unless the buyer
has resorted to a remedy which is inconsistent with this requirement.
(2) If the goods do not conform with the contract, the buyer may require delivery of
substitute goods only if the lack of conformity constitutes a fundamental breach of
contract and a request for substitute goods is made either in conjunction with notice
given under article 39 or within a reasonable time thereafter.
(3) If the goods do not conform with the contract, the buyer may require the seller to
remedy the lack of conformity by repair, unless this is unreasonable having regard to all
the circumstances. A request for repair must be made either in conjunction with notice
given under article 39 or within a reasonable time thereafter.
Article 61
(1) If the buyer fails to perform any of his obligations under the contract or this
Convention, the seller may:
(a) exercise the rights provided in articles 62 to 65;
(b) claim damages as provided in articles 74 to 77.
(2) The seller is not deprived of any right he may have to claim damages by exercising
his right to other remedies.
Article 62
The seller may require the buyer to pay the price, take delivery or perform his other
obligations, unless the seller has resorted to a remedy which is inconsistent with this
requirement.
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7. UNIDROIT Principles of International Commercial Contracts (PICC)
Article 1.1 Freedom of contract
The parties are free to enter into a contract and to determine its content.
Article 1.2 No form required
Nothing in these Principles requires a contract, statement or any other act to be made in
or evidenced by a particular form. It may be proved by any means, including witnesses.
Article 1.3 Binding character of contract
A contract validly entered into is binding upon the parties. It can only be modified or
terminated in accordance with its terms or by agreement or as otherwise provided in
these Principles.
Article 1.4 Mandatory rules
Nothing in these Principles shall restrict the application of mandatory rules, whether of
national, international or supranational origin, which are applicable in accordance with
the relevant rules of private international law.
Article 1.5 Exclusion or modification by the parties
The parties may exclude the application of these Principles or derogate from or vary the
effect of any of their provisions, except as otherwise provided in the Principles.
Article 1.6 Interpretation and supplementation of the Principles
(1) In the interpretation of these Principles, regard is to be had to their international

character and to their purposes including the need to promote uniformity in their
application.
410
(2) Issues within the scope of these Principles but not expressly settled by them are as
far as possible to be settled in accordance with their underlying general principles.
Article 1.7 Good faith and fair dealing
(1) Each party must act in accordance with good faith and fair dealing in international
trade.
(2) The parties may not exclude or limit this duty.
Article 1.8 Inconsistent behaviour
A party cannot act inconsistently with an understanding it has caused the other party to
have and upon which that other party reasonably has acted in reliance to its detriment.
Article 1.9 Usages and practices
(1) The parties are bound by any usage to which they have agreed and by any practices
which they have established between themselves.
(2) The parties are bound by a usage that is widely known to and regularly observed in
international trade by parties in the particular trade concerned except where the
application of such a usage would be unreasonable.
Article 6.2.1 Contract to be observed
Where the performance of a contract becomes more onerous for one of the parties, that
party is nevertheless bound to perform its obligations subject to the following provisions
on hardship.
Article 6.2.2 Definition of hardship
There is hardship where the occurrence of events fundamentally alters the equilibrium
of the contract either because the cost of a party’s performance has increased or
because the value of the performance a party receives has diminished, and
411
(a) the events occur or become known to the disadvantaged party after the conclusion
of the contract;
(b) the events could not reasonably have been taken into account by the disadvantaged
party at the time of the conclusion of the contract;
(c) the events are beyond the control of the disadvantaged party; and
(d) the risk of the events was not assumed by the disadvantaged party.
Article 6.2.3 Effects of hardship
(1) In case of hardship the disadvantaged party is entitled to request renegotiations. The
request shall be made without undue delay and shall indicate the grounds on which it is
based.
(2) The request for renegotiation does not in itself entitle the disadvantaged party to
withhold performance.
(3) Upon failure to reach agreement within a reasonable time either party may resort to
the court.
(4) If the court finds hardship it may, if reasonable,
(a) terminate the contract at a date and on terms to be fixed, or
(b) adapt the contract with a view to restoring its equilibrium.
Article 7.1.1 Non-performance defined
Non-performance is failure by a party to perform any of its obligations under the

contract, including defective performance or late performance.
412
Article 7.1.2 Interference by the other party
A party may not rely on the non-performance of the other party to the extent that such
non-performance was caused by the first party’s act or omission or by another event for
which the first party bears the risk.
Article 7.1.3 Withholding performance
(1) Where the parties are to perform simultaneously, either party may withhold
performance until the other party tenders its performance.
(2) Where the parties are to perform consecutively, the party that is to perform later may
withhold its performance until the first party has performed.
Article 7.1.4 Cure by non-performing party
(1) The non-performing party may, at its own expense, cure any non-performance,
provided that
(a) without undue delay, it gives notice indicating the proposed manner and timing of the
cure;
(b) cure is appropriate in the circumstances;
(c) the aggrieved party has no legitimate interest in refusing cure; and
(d) cure is effected promptly.
(2) The right to cure is not precluded by notice of termination.
(3) Upon effective notice of cure, rights of the aggrieved party that are inconsistent with
the non-performing party’s performance are suspended until the time for cure has
expired.
(4) The aggrieved party may withhold performance pending cure.
413
(5) Notwithstanding cure, the aggrieved party retains the right to claim damages for
delay as well as for any harm caused or not prevented by the cure.
Article 7.1.5 Additional period for performance
(1) In a case of non-performance the aggrieved party may by notice to the other party
allow an additional period of time for performance.
(2) During the additional period the aggrieved party may withhold performance of its
own reciprocal obligations and may claim damages but may not resort to any other
remedy. If it receives notice from the other party that the latter will not perform within
that period, or if upon expiry of that period due performance has not been made, the
aggrieved party may resort to any of the remedies that may be available under this
Chapter.
(3) Where in a case of delay in performance which is not fundamental the aggrieved
party has given notice allowing an additional period of time of reasonable length, it may
terminate the contract at the end of that period. If the additional period allowed is not of
reasonable length it shall be extended to a reasonable length. The aggrieved party may
in its notice provide that if the other party fails to perform within the period allowed by
the notice the contract shall automatically terminate
(4) Paragraph (3) does not apply where the obligation which has not been performed is
only a minor part of the contractual obligation of the non-performing party.
Article 7.1.6 Exemption clauses
A clause which limits or excludes one party’s liability for non-performance or which
permits one party to render performance substantially different from what the other party
reasonably expected may not be invoked if it would be grossly unfair to do so, having
regard to the purpose of the contract.
414
Article 7.1.7 Force majeure
(1) Non-performance by a party is excused if that party proves that the non-performance
was due to an impediment beyond its control and that it could not reasonably be
expected to have taken the impediment into account at the time of the conclusion of the
contract or to have avoided or overcome it or its consequences.
(2) When the impediment is only temporary, the excuse shall have effect for such period
as is reasonable having regard to the effect of the impediment on the performance of
the contract.
(3) The party who fails to perform must give notice to the other party of the impediment
and its effect on its ability to perform. If the notice is not received by the other party
within a reasonable time after the party who fails to perform knew or ought to have
known of the impediment, it is liable for damages resulting from such non-receipt.
(4) Nothing in this Article prevents a party from exercising a right to terminate the
contract or to withhold performance or request interest on money due.
Article 7.2.1 Performance of monetary obligation
Where a party who is obliged to pay money does not do so, the other party may require
payment.
Article 7.2.2 Performance of non-monetary obligation
Where a party who owes an obligation other than one to pay money does not perform,
the other party may require performance, unless
(a) performance is impossible in law or in fact;
(b) performance or, where relevant, enforcement is unreasonably burdensome or

expensive;
415
(c) the party entitled to performance may reasonably obtain performance from another
source;
(d) performance is of an exclusively personal character; or
(e) the party entitled to performance does not require performance within a reasonable
time after it has, or ought to have, become aware of the non-performance.
Article 7.2.3 Repair and replacement of defective performance
The right to performance includes in appropriate cases the right to require repair,
replacement, or other cure of defective performance. The provisions of Articles 7.2.1
and 7.2.2 apply accordingly.
Article 7.2.4 Judicial penalty
(1) Where the court orders a party to perform, it may also direct that this party pay a
penalty if it does not comply with the order.
(2) The penalty shall be paid to the aggrieved party unless mandatory provisions of the
law of the forum provide otherwise. Payment of the penalty to the aggrieved party does
not exclude any claim for damages.
Article 7.2.5 Change of remedy
(1) An aggrieved party who has required performance of a non-monetary obligation and
who has not received performance within a period fixed or otherwise within a
reasonable period of time may invoke any other remedy.
(2) Where the decision of a court for performance of a non-monetary obligation cannot
be enforced, the aggrieved party may invoke any other remedy.
416
Article 7.3.1 Right to terminate the contract
(1) A party may terminate the contract where the failure of the other party to perform an
obligation under the contract amounts to a fundamental non-performance.
(2) In determining whether a failure to perform an obligation amounts to a fundamental

non-performance regard shall be had, in particular, to whether
(a) the non-performance substantially deprives the aggrieved party of what it was
entitled to expect under the contract unless the other party did not foresee and could not
reasonably have foreseen such result;
(b) strict compliance with the obligation which has not been performed is of essence
under the contract;
(c) the non-performance is intentional or reckless;
(d) the non-performance gives the aggrieved party reason to believe that it cannot rely
on the other party’s future performance;
(e) the non-performing party will suffer disproportionate loss as a result of the
preparation or performance if the contract is terminated.
(3) In the case of delay the aggrieved party may also terminate the contract if the other
party fails to perform before the time allowed it under Article 7.1.5 has expired.
Article 7.4.1 Right to damages
Any non-performance gives the aggrieved party a right to damages either exclusively or
in conjunction with any other remedies except where the nonperformance is excused
under these Principles.
417
8. Principles of European Contract Law (PECL)
Article 1:101 Application of the Principles
(1) These Principles are intended to be applied as general rules of contract law in the
European Union.
(2) These Principles will apply when the parties have agreed to incorporate them into
their contract or that their contract is to be governed by them.
(3) These Principles may be applied when the parties:
(a) have agreed that their contract is to be governed by “general principles of law”, the
“lex mercatoria” or the like; or
(b) have not chosen any system or rules of law to govern their contract.
(4) These Principles may provide a solution to the issue raised where the system or
rules of law applicable do not do so.
Article 1:102 Freedom of contract
(1) Parties are free to enter into a contract and to determine its contents, subject to the
requirements of good faith and fair dealing, and the mandatory rules established by
these Principles.
(2) The parties may exclude the application of any of the Principles or derogate from or
vary their effects, except as otherwise provided by these Principles.
Article 1:201 Good faith and fair dealing
(1) Each party must act in accordance with good faith and fair dealing.
(2) The parties may not exclude or limit this duty.
418
Article 1:301 Meaning of terms
In these Principles, except where the context otherwise requires:
(1) ‘act’ includes omission;
(2) ‘court’ includes arbitral tribunal;
(3) an ‘intentional’ act includes an act done recklessly;
(4) ‘non-performance’ denotes any failure to perform an obligation under the contract,
whether or not excused, and includes delayed performance, defective performance and
failure to co-operate in order to give full effect to the contract.
(5) a matter is ‘material’ if it is one which a reasonable person in the same situation as
one party ought to have known would influence the other party in its decision whether to
contract on the proposed terms or to contract at all;
(6) ‘written’ statements include communications made by telegram, telex, telefax and
electronic mail and other means of communication capable of providing a readable
record of the statement on both sides
Article 1:302 Reasonableness
Under these Principles reasonableness is to be judged by what persons acting in good

faith and in the same situation as the parties would consider to be reasonable. In
particular, in assessing what is reasonable the nature and purpose of the contract, the
circumstances of the case, and the usages and practices of the trades or professions
involved should be taken into account.
Article 6:111 Change of circumstances
(1) A party is bound to fulfil its obligations even if performance has become more
onerous, whether because the cost of performance has increased or because the value
of the performance it receives has diminished.
419
(2) If, however, performance of the contract becomes excessively onerous because of a
change of circumstances, the parties are bound to enter into negotiations with a view to
adapting the contract or terminating it, provided that:
(a) the change of circumstances occurred after the time of conclusion of the contract,
(b) the possibility of a change of circumstances was not one which could reasonably
have been taken into account at the time of conclusion of the contract, and
(c) the risk of the change of circumstances is not one which, according to the contract,
the party affected should be required to bear.
(3) If the parties fail to reach agreement within a reasonable period, the court may:
(a) end the contract at a date and on terms to be determined by the court ; or
(b) adapt the contract in order to distribute between the parties in a just and equitable
manner the losses and gains resulting from the change of circumstances.
In either case, the court may award damages for the loss suffered through a party
refusing to negotiate or breaking off negotiations contrary to good faith and fair dealing.
Article 7:102 Time of performance
A party has to effect its performance:
(1) if a time is fixed by or determinable from the contract, at that time;
(2) if a period of time is fixed by or determinable from the contract, at any time within
that period unless the circumstances of the case indicate that the other party is to
choose the time;
(3) in any other case, within a reasonable time after the conclusion of the contract.
420
Article 9:101 Monetary obligations
(1) The creditor is entitled to recover money which is due.
(2) Where the creditor has not yet performed its obligation and it is clear that the debtor
will be unwilling to receive performance, the creditor may nonetheless proceed with its
performance and may recover any sum due under the contract unless:
(a) it could have made a reasonable substitute transaction without significant effort or
expense; or
(b) performance would be unreasonable in the circumstances.
Article 9:102 Non-monetary obligations
(1) The aggrieved party is entitled to specific performance of an obligation other than
one to pay money, including the remedying of a defective performance.
(2) Specific performance cannot, however, be obtained where:
(a) performance would be unlawful or impossible; or
(b) performance would cause the debtor unreasonable effort or expense; or
(c) the performance consists in the provision of services or work of a personal character
or depends upon a personal relationship, or
(d) the aggrieved party may reasonably obtain performance from another source.
(3) The aggrieved party will lose the right to specific performance if it fails to seek it
within a reasonable time after it has or ought to have become aware of the non-
performance.
421
Article 9:103 Damages not precluded
The fact that a right to performance is excluded under this Section does not preclude a
claim for damages.
9. Draft Common Frame of Reference (DCFR)
III. – 1:103: Good faith and fair dealing
(1) A person has a duty to act in accordance with good faith and fair dealing in
performing an obligation, in exercising a right to performance, in pursuing or defending
a remedy for non-performance, or in exercising a right to terminate an obligation or
contractual relationship.
(2) The duty may not be excluded or limited by contract or other juridical act.
(3) Breach of the duty does not give rise directly to the remedies for nonperformance of
an obligation but may preclude the person in breach from exercising or relying on a
right, remedy or defence which that person would otherwise have.
III. – 1:110: Variation or termination by court on a change of circumstances
(1) An obligation must be performed even if performance has become more onerous,
whether because the cost of performance has increased or because the value of what is
to be received in return has diminished.
(2) If, however, performance of a contractual obligation or of an obligation arising from a

unilateral juridical act becomes so onerous because of an exceptional change of
circumstances that it would be manifestly unjust to hold the debtor to the obligation a
court may:
(a) vary the obligation in order to make it reasonable and equitable in the new
circumstances; or
(b) terminate the obligation at a date and on terms to be determined by the court.
422
(3) Paragraph (2) applies only if:
(a) the change of circumstances occurred after the time when the obligation was
incurred;
(b) the debtor did not at that time take into account, and could not reasonably be
expected to have taken into account, the possibility or scale of that change of
circumstances;
(c) the debtor did not assume, and cannot reasonably be regarded as having assumed,
the risk of that change of circumstances; and
(d) the debtor has attempted, reasonably and in good faith, to achieve by negotiation a
reasonable and equitable adjustment of the terms regulating the obligation.
III. – 3:104: Excuse due to an impediment
(1) A debtor’s non-performance of an obligation is excused if it is due to an impediment

beyond the debtor’s control and if the debtor could not reasonably be expected to have
avoided or overcome the impediment or its consequences.
(2) Where the obligation arose out of a contract or other juridical act, non-performance
is not excused if the debtor could reasonably be expected to have taken the impediment
into account at the time when the obligation was incurred.
(3) Where the excusing impediment is only temporary the excuse has effect for the
period during which the impediment exists. However, if the delay amounts to a
fundamental non-performance, the creditor may treat it as such.
(4) Where the excusing impediment is permanent the obligation is extinguished. Any
reciprocal obligation is also extinguished. In the case of contractual obligations any
restitutionary effects of extinction are regulated by the rules in Chapter 3, Section 5,
Sub-section 4 (Restitution) with appropriate adaptations.
423
(5) The debtor has a duty to ensure that notice of the impediment and of its effect on the
ability to perform reaches the creditor within a reasonable time after the debtor knew or
could reasonably be expected to have known of these circumstances. The creditor is
entitled to damages for any loss resulting from the non-receipt of such notice.
III. – 3:301: Enforcement of monetary obligations
(1) The creditor is entitled to recover money payment of which is due.
(2) Where the creditor has not yet performed the reciprocal obligation for which payment
will be due and it is clear that the debtor in the monetary obligation will be unwilling to
receive performance, the creditor may nonetheless proceed with performance and may
recover payment unless:
(a) the creditor could have made a reasonable substitute transaction without significant
effort or expense; or
(b) performance would be unreasonable in the circumstances.
III. – 3:302: Enforcement of non-monetary obligations
(1) The creditor is entitled to enforce specific performance of an obligation other than
one to pay money.
(2) Specific performance includes the remedying free of charge of a performance which
is not in conformity with the terms regulating the obligation.
(3) Specific performance cannot, however, be enforced where:
(a) performance would be unlawful or impossible;
(b) performance would be unreasonably burdensome or expensive; or
(c) performance would be of such a personal character that it would be unreasonable to

enforce it.
424
(4) The creditor loses the right to enforce specific performance if performance is not
requested within a reasonable time after the creditor has become, or could reasonably
be expected to have become, aware of the non-performance.
(5) The creditor cannot recover damages for loss or a stipulated payment for non-
performance to the extent that the creditor has increased the loss or the amount of the
payment by insisting unreasonably on specific performance in circumstances where the
creditor could have made a reasonable substitute transaction without significant effort or
expense.
III. – 3:303: Damages not precluded
The fact that a right to enforce specific performance is excluded under the preceding
Article does not preclude a claim for damages.
10. Common European Sales Law (CESL)
Article 1 Freedom of contract
1. Parties are free to conclude a contract and to determine its contents, subject to any
applicable mandatory rules.
2. Parties may exclude the application of any of the provisions of the Common
European Sales Law, or derogate from or vary their effects, unless otherwise stated in
those provisions.
Article 2 Good faith and fair dealing
1. Each party has a duty to act in accordance with good faith and fair dealing.
2. Breach of this duty may preclude the party in breach from exercising or relying on a
right, remedy or defence which that party would otherwise have, or may make the party
liable for any loss thereby caused to the other party.
425
3. The parties may not exclude the application of this Article or derogate from or vary its
effects.
Article 89 Change of circumstances
1. A party must perform its obligations even if performance has become more onerous,
whether because the cost of performance has increased or because the value of what is
to be received in return has diminished. Where performance becomes excessively
onerous because of an exceptional change of circumstances, the parties have a duty to
enter into negotiations with a view to adapting or terminating the contract.
2. If the parties fail to reach an agreement within a reasonable time, then, upon request
by either party a court may:
(a) adapt the contract in order to bring it into accordance with what the parties would
reasonably have agreed at the time of contracting if they had taken the change of
circumstances into account; or
(b) terminate the contract within the meaning of Article 8 at a date and on terms to be
determined by the court.
3. Paragraphs 1 and 2 apply only if:
(a) the change of circumstances occurred after the time when the contract was
concluded;
(b) the party relying on the change of circumstances did not at that time take into
account, and could not be expected to have taken into account, the possibility or scale
of that change of circumstances; and
(c) the aggrieved party did not assume, and cannot reasonably be regarded as having
assumed, the risk of that change of circumstances.
4. For the purpose of paragraphs 2 and 3 a ‘court’ includes an arbitral tribunal.
426
Article 106 Overview of buyer’s remedies
1. In the case of non-performance of an obligation by the seller, the buyer may do any
of the following:
(a) require performance, which includes specific performance, repair or replacement of

the goods or digital content, under Section 3 of this Chapter;
(b) withhold the buyer’s own performance under Section 4 of this Chapter;
(c) terminate the contract under Section 5 of this Chapter and claim the return of any
price already paid, under Chapter 17;
(d) reduce the price under Section 6 of this Chapter; and
(e) claim damages under Chapter 16.
2. If the buyer is a trader:
(a) the buyer’s rights to exercise any remedy except withholding of performance are
subject to cure by the seller as set out in Section 2 of this Chapter; and
(b) the buyer’s rights to rely on lack of conformity are subject to the requirements of
examination and notification set out in Section 7 of this Chapter.
3. If the buyer is a consumer:
(a) the buyer’s rights are not subject to cure by the seller; and
(b) the requirements of examination and notification set out in Section 7 of this Chapter
do not apply.
4. If the seller’s non-performance is excused, the buyer may resort to any of the
remedies referred to in paragraph 1 except requiring performance and damages.
427
5. The buyer may not resort to any of the remedies referred to in paragraph 1 to the
extent that the buyer caused the seller’s non-performance.
6. Remedies which are not incompatible may be cumulated.
Article 107 Limitation of remedies for digital content not supplied in exchange for
a price
Where digital content is not supplied in exchange for the payment of a price, the buyer
may not resort to the remedies referred to in points (a) to (d) of Article 106(1). The buyer
may only claim damages under point (c) of Article 106 (1) for loss or damage caused to
the buyer’s property, including hardware, software and data, by the lack of conformity of
the supplied digital content, except for any gain of which the buyer has been deprived
by that damage.
Article 108 Mandatory nature
In a contract between a trader and a consumer, the parties may not, to the detriment of
the consumer, exclude the application of this Chapter, or derogate from or vary its effect
before the lack of conformity is brought to the trader’s attention by the consumer.
Article 109 Cure by the seller
1. A seller who has tendered performance early and who has been notified that the
performance is not in conformity with the contract may make a new and conforming
tender if that can be done within the time allowed for performance.
2. In cases not covered by paragraph 1 a seller who has tendered a performance which
is not in conformity with the contract may, without undue delay on being notified of the
lack of conformity, offer to cure it at its own expense.
3. An offer to cure is not precluded by notice of termination.
4. The buyer may refuse an offer to cure only if:
428
(a) cure cannot be effected promptly and without significant inconvenience to the buyer;
(b) the buyer has reason to believe that the seller’s future performance cannot be relied
on; or
(c) delay in performance would amount to a fundamental non-performance.
5. The seller has a reasonable period of time to effect cure.
6. The buyer may withhold performance pending cure, but the rights of the buyer which
are inconsistent with allowing the seller a period of time to effect cure are suspended
until that period has expired.
7. Notwithstanding cure, the buyer retains the right to claim damages for delay as well
as for any harm caused or not prevented by the cure.
Article 110 Requiring performance of seller’s obligations
1. The buyer is entitled to require performance of the seller’s obligations.
2. The performance which may be required includes the remedying free of charge of a
performance which is not in conformity with the contract.
3. Performance cannot be required where:
(a) performance would be impossible or has become unlawful; or
(b) the burden or expense of performance would be disproportionate to the benefit that
the buyer would obtain.
Article 111 Consumer’s choice between repair and replacement
1. Where, in a consumer sales contract, the trader is required to remedy a lack of

conformity pursuant to Article 110(2) the consumer may choose between repair and
replacement unless the option chosen would be unlawful or impossible or, compared to
429
the other option available, would impose costs on the seller that would be
disproportionate taking into account:
(a) the value the goods would have if there were no lack of conformity;
(b) the significance of the lack of conformity; and
(c) whether the alternative remedy could be completed without significant inconvenience
to the consumer.
2. If the consumer has required the remedying of the lack of conformity by repair or
replacement pursuant to paragraph 1, the consumer may resort to other remedies only
if the trader has not completed repair or replacement within a reasonable time, not
exceeding 30 days. However, the consumer may withhold performance during that time.
Article 112 Return of replaced item
1. Where the seller has remedied the lack of conformity by replacement, the seller has a
right and an obligation to take back the replaced item at the seller’s expense.
2. The buyer is not liable to pay for any use made of the replaced item in the period
prior to the replacement.
Article 113 Right to withhold performance
1. A buyer who is to perform at the same time as, or after, the seller performs has a
right to withhold performance until the seller has tendered performance or has
performed.
2. A buyer who is to perform before the seller performs and who reasonably believes
that there will be non-performance by the seller when the seller’s performance becomes
due may withhold performance for as long as the reasonable belief continues.
430
3. The performance which may be withheld under this Article is the whole or part of the
performance to the extent justified by the non-performance. Where the seller’s
obligations are to be performed in separate parts or are otherwise divisible, the buyer
may withhold performance only in relation to that part which has not been performed,
unless the seller’s non-performance is such as to justify withholding the buyer’s
performance as a whole.
Article 131 Overview of seller’s remedies
1. In the case of a non-performance of an obligation by the buyer, the seller may do any
of the following:
(a) require performance under Section 2 of this Chapter;
(b) withhold the seller’s own performance under Section 3 of this Chapter;
(c) terminate the contract under Section 4 of this Chapter; and
(d) claim interest on the price or damages under Chapter 16.
2. If the buyer’s non-performance is excused, the seller may resort to any of the
remedies referred to in paragraph 1 except requiring performance and damages.
3. The seller may not resort to any of the remedies referred to in paragraph 1 to the
extent that the seller caused the buyer’s non-performance.
4. Remedies which are not incompatible may be cumulated.
Article 132 Requiring performance of buyer’s obligations
1. The seller is entitled to recover payment of the price when it is due, and to require
performance of any other obligation undertaken by the buyer.
2. Where the buyer has not yet taken over the goods or the digital content and it is clear
that the buyer will be unwilling to receive performance, the seller may nonetheless
431
require the buyer to take delivery, and may recover the price, unless the seller could
have made a reasonable substitute transaction without significant effort or expense.
432
INDEX OF SOURCES
1. Bibliography
Ames J B Lectures on Legal History (1913) Cambridge, Massachusetts: Harvard

University Press
Andrews N Contract Law (2011) Cambridge: Cambridge University Press
Austen J E Aanteekeningen van Mr. Willem Schorer, over de Inleidinge tot de

Hollandsche rechts-geleerdheid vol 1 (1797) Middelburg: Pieter Gillissen
Axelrod E “Specific performance of contracts for sales of goods” (1982) 7 Vermont Law
Review 249
Backhaus R “The limits of the duty to perform in the Principles of European Contract
Law” 2004 8(1) Electronic Journal of Comparative Law 1
(<http://www.ejcl.org/81/art81-2.PDF>)
Bailey J E “Facing the truth: Seeing the Convention on Contracts for the International
Sale of Goods as an obstacle to a uniform law of international sales” (1999) 32
Cornell International Law Journal 273
Baker J H An Introduction to English Legal History 3 ed (1990) London: Butterworths
Baker J H An Introduction to English Legal History 4 ed (2002) London: Butterworths
Baker J H The Oxford History of the Laws of England VI (2004) Oxford: Oxford
University Press
Basedow J, Drobnig U & Ellger R (eds) Aufbruch nach Europa – 75 Jahre Max-Planck-
Institut für Privatrecht (2001) Tübingen: Mohr Siebeck
Basedow J, Hopt J K, Zimmermann R & Stier A (eds) The Max Planck Encyclopedia of
European Private Law I (2012) Oxford: Oxford University Press
433
Basedow J, Hopt J K, Zimmermann R & Stier A (eds) The Max Planck Encyclopedia of
European Private Law II (2012) Oxford: Oxford University Press
Basson A C, Christianson M A, Dekker A, Garbers C, Le Roux P A K, Mischke C &

Strydom E M L Essential Labour Law 5 ed (2009) Centurion: Mace Labour Law
Publications
Beale H G (gen ed) Chitty on Contracts I: General Principles 31 ed (2012) London:

Sweet & Maxwell
Beale H, Fauvarque-Cosson B, Rutgers J, Tallon D & Vogenauer S Ius Commune

Casebooks for the Common Law of Europe: Cases, Materials and Text on
Contract Law 2 ed (2010) Oxford: Hart Publishing
Beatson J & Friedmann D E (eds) Good Faith and Fault in Contract Law (1995) Oxford:
Clarendon
Beatson J, Burrows A & Cartwright J Anson’s Law of Contract 29 ed (2010) Oxford

University Press UK
Beck A “The coming of age of specific performance” 1987 CILSA 190
Beinart B “Roman law in South African practice” 1952 SALJ 145
Beinart B A Treatise on the laws abrogated and no longer in use in Holland and
neighbouring regions by Simon Groenewegen van der Made (1974)
Johannesburg: Lex Patria
Berryman J & Carroll R “Coercive relief – reflections on supervision and enforcement

constraints” draft paper prepared for Remedies Discussion Forum (Prato, Italy
June 2013) to appear in (2014) 38 University of Western Australia Law Review
Bianca C M & Bonell M J Commentary on the International Sales Law: The 1980 Vienna
Sales Convention (1987) Milan: Giuffre
434
Bigoni M, Bortolotti S, Parisi F & Porat A “Unbundling efficient breach” University of

Chicago Coase-Sandor Institute for Law & Economics Research Paper No 695
(2014) (<http://chicagounbound.uchicago.edu/law_and_economics/>)
Birks P (ed) English Private Law II (2000) Oxford: Oxford University Press
Birks P Unjust Enrichment 2 ed (2005) Oxford: Oxford University Press
Bix B H Contract Law: Rules, Theory, and Context (2012) New York: Cambridge
University Press
Blum G & Morris M B “Specific performance” 71 AMJUR 2 ed §§ 1, 9, 97, 174

(accessible via Westlaw International – database updated May 2014)
Boghossian N “A comparative study of specific performance provisions in the United

Nations Convention on Contracts for the International Sale of Goods” 1999/2000
Pace Review of the Convention on Contracts for International Sale of Goods 7
Bonell M J An International Restatement of Contract Law: the UNIDROIT Principles of

International Commercial Contracts 3 ed (2005) New York: Transnational
Publishers
Bradfield G & Lehmann K Principles of the Law of Sale and Lease 3 ed (2013) Cape
Town: Juta
Brand F D J “The role of good faith, equity and fairness in the South African law of
contract: the influence of the common law and the constitution” 2009 SALJ 71
Brassey M S M “Specific performance – a new stage for labour’s lost love” (1981) 2 ILJ
57
Bredenkamp I M The Small Claims Court (1986) Durban: Butterworths
Brenner P J “Specific performance of contracts for the sale of land purchased for resale
or investment” (1978) 24 McGill Law Journal 513
435
Brooks R “The efficient performance hypothesis” (2006) 116 Yale LJ 568
Brunner C Force Majeure and Hardship under General Contract Principles: Exemption
for Non-performance in International Arbitration (2009) Alphen aan den Rijn:
Kluwer Law International
Buckland W W A Text-Book of Roman Law from Augustus to Justinian 3 ed revised by

Peter Stein (1963) Cambridge: Cambridge University Press
Burrows A (ed) English Private Law 3 ed (2013) Oxford: Oxford University Press
Burrows A Remedies for Torts and Breach of Contract 3 ed (2004) Oxford: Oxford
University Press
Burrows A S “Judicial remedies” in P Birks (ed) English Private Law II (2000)
Burrows A S “Specific performance at the crossroads” (1984) 4 Legal Studies 102
Burrows A The Law of Restitution 3 ed (2011) Oxford University Press
Burrows P & Veljanovski C G The Economic Approach to Law (1981) London:

Butterworths
Busch D, Hondius E, Van Kooten H, Schelhaas H & Schrama W (eds) The Principles of
European Contract Law and Dutch Law: A Commentary (2002) Nijmegen: Kluwer
Law International
Cartwright J & Schmidt-Kessel M “Defects in consent: mistake, fraud, threats, unfair

exploitation” in G Dannemann & S Vogenauer (eds) The Common European Sales
Law in Context: Interactions with English and German Law (2013)
Catalano J M “More fiction than fact: the perceived differences in the application of
specific performance under the United Nations Convention on Contracts for the
International Sale of Goods” (1997) 71 Tulane LR 1807
436
Chaffee Z “Equitable servitudes on chattels” (1928) 41 Harv LR 945
Chengwei L Remedies for Non-performance – Perspectives from CISG, UNIDROIT

Principles and PECL (2007)
(<http://www.jus.uio.no/sisu/remedies_for_non_performance_perspectives_from_c
isg_upicc_and_pecl.chengwei_liu/landscape.a5.pdf>)
Chen-Wishart M Contract Law 4 ed (2012) Oxford: Oxford University Press
Christie R H & Bradfield G B Christie’s The Law of Contract in South Africa 6 ed (2011)
Durban: LexisNexis
Christie R H “The law of contract and the Bill of Rights” in Bill of Rights Compendium
(RS 33 2013) Durban: Butterworths
Cilliers A C, Loots C & Nel H C Herbstein & Van Winsen The Civil Practice of the High
Courts and the Supreme Court of Appeal of South Africa II 5 ed (2009) Cape
Town: Juta
Clive E & Hutchison D “Breach of contract” in R Zimmermann, D Visser & K Reid (eds)
Mixed Legal Systems in Comparative Perspective: Property and Obligations in
Scotland and South Africa (2004)
Cockrell A “Breach of contract” in R Zimmermann & D Visser (eds) Southern Cross:

Civil Law and Common Law in South Africa (1996)
Coester-Waltjen D “The new approach to breach of contract in German law” in N Cohen

& E McKendrick (eds) Comparative Remedies for Breach of Contract (2005)
Coetzee J “The case for economic hardship in South Africa: Lessons to be learnt from
international practice and economic theory” (2011) 36(2) Journal for Juridical
Science 8
Cohen N & McKendrick E (eds) Comparative Remedies for Breach of Contract (2005)
Oxford: Hart Publishing
437
Collins H Ewing K D & McColgan A Labour Law (2012) Cambridge: Cambridge

University Press
Cooper W E The South African Law of Landlord and Tenant 2 ed (1994) Cape Town:
Juta
Cornelius Neostadius Hollandse Praktijk in Rechten: Bestaande in Vonnissen,

Observantien van Oordeelen en Consultation (tr A Van Nispen) (1655) Rotterdam:
Joannes Naeranus
Cornelius S “Sanctity of contract and players’ restraints in South African sport” 2003
TSAR 727
Cserne P Freedom of Contract and Paternalism: Prospects and Limits of an Economic

Approach (2012) New York: Palgrave Macmillan
Cuncannon F “The case for the specific performance as the primary remedy for breach
of contract in New Zealand” 2004 VUWLR 659
Cunnington R M “The inadequacy of damages as a remedy for breach of contract” in C

E F Rickett (ed) Justifying Private Law Remedies (2008)
Curran V G “The Interpretive Challenge to Uniformity by C Witz” (1995) 15 Journal of

Law and Commerce 175
Currie I & De Waal J The Bill of Rights Handbook 6 ed (2013) Cape Town: Juta
Dannemann G & Vogenauer S (eds) The Common European Sales Law in Context:
Interactions with English and German Law (2013) Oxford: Oxford University Press
Dannemann G & Vogenauer S “Introduction” in G Dannemann & S Vogenauer (eds)

The Common European Sales Law in Context: Interactions with English and
German Law (2013)
Dawson J P “Specific performance in France and Germany” (1958) 57 Mich LR 495
438
De Vos W & Visagie G G Scheltinga se “Dictata” oor Hugo de Groot se “Inleiding tot de
Hollandsche Rechtsgeleerdheid” (1986) Johannesburg: Lex Patria
De Vries G “Recht op nakoming in het Belgisch en Nederlands contractenrecht” in J

Smits & S Stijns (eds) Remedies in het Belgisch en Nederlands Contractenrecht
(2000)
De Vries G J P “Are the Principles Of European Contract Law better than Dutch contract
law?” in M W Hesselink & G J P de Vries Principles of European Contract Law
(2001)
De Wet J C & Van Wyk A H Die Suid-Afrikaanse Kontraktereg en Handelsreg I 5 ed

(1992) Durban: Butterworths
De Wet J C & Yeats J P Die Suid-Afrikaanse Kontraktereg en Handelsreg 2 ed (1953)

Durban: Butterworths
Deakin S “The contract of employment: a study in legal evolution” (2001) 31 ESRC

Centre for Business Research, University of Cambridge, Working Paper No 203
(<http://www.cbr.cam.ac.uk/pdf/WP203.pdf>)
Decker C W (ed) Simon van Leeuwen’s Commentaries on Roman-Dutch Law II (tr Sir
John G Kotzé) (1923) London: Sweet & Maxwell
Dondorp H & De Jong H “Coercive measures to enforce obligations under Dutch law
(1838-1933)” in J Hallebeek & H Dondorp (eds) The Right to Specific
Performance: The Historical Development (2010)
Dondorp H “Decreeing specific performance: a Roman-Dutch legacy” (2010) 16(1)

Fundamina 40
Dondorp H “Precise cogi: enforcing specific performance in medieval legal scholarship”

in J Hallebeek & H Dondorp (eds) The Right to Specific Performance: The
Historical Development (2010)
439
Du Bois F (ed) Wille’s Principles of South African Law 9 ed (2007) Cape Town: Juta
Du Bois F “Introduction: history, system and sources” in C G van der Merwe & J E du
Plessis (eds) Introduction to the Law of South Africa (2004)
Du Plessis J J “Spesifieke nakoming: ‘n regshistoriese herwaardering” (1988) 51

THRHR 349
Du Plessis J The South African Law of Unjustified Enrichment (2012) Cape Town: Juta
Du Plessis J V & Fouché M A A Practical Guide to Labour Law 7 ed (2012) Durban:

LexisNexis
Du Plessis P Borkowski’s Textbook on Roman Law 4 ed (2010) Oxford: Oxford

University Press
Eiselen S “A comparison of the remedies for breach of contract under the CISG and
South African law” in J Basedow et al (eds) Aufbruch nach Europa – 75 jahre Max-
Planck-Institut für Privatrecht (2001)
Eiselen S “Remedies for breach” in Hutchison D & Pretorius C (eds) The Law of
Contract in South Africa 2 ed (2012)
Eiselen S “Specific performance and special damages” in H L MacQueen & R

Zimmermann (eds) European Contract Law: Scots and South African Perspectives
(2006)
Eisenberg T & Miller G P “Damages versus specific performance: lessons from

commercial contracts” NYU Law and Economics Research Paper No 13-09 (2013)
(<http://ssrn.com/abstract=2241654>)
Erasmus H J “Roman Law in South Africa today” (1989) 106 SALJ 666
440
Erauw J & Flechtner H M “Remedies under the CISG and limits to their uniform
character” in P Sarecevic & P Volken (eds) The International Sale of Goods
Revisited (2001)
Ernst W “§ 275” in Krüger W (ed) Münchener Kommentar zum Bürgerlichen

Gesetzbuch 2 Allgemeiner Teil: §§ 241-432 6 ed (2012) München: C H Beck
Evans W D Pothier’s Treatise on the Law of Obligations vol 1(1853) Philadelphia: RH

Small
Fagan E “Roman-Dutch law in its historical context” in R Zimmermann & D Visser (eds)
Southern Cross: Civil Law and Common Law in South Africa (1996)
Falcón y Tella M J Equity and Law (2008) Leiden: Martinus Nijhoff Publishers
Farnsworth E A “Legal remedies for breach of contract” (1970) 70 Colum LR 1145
Farnsworth E A An Introduction to the Legal System of the United States 4 ed (2010)

New York: Oxford University Press
Farnsworth E A Contracts 3 ed (1999) New York: Aspen Law & Business
Faust F & Wiese V “Specific performance – a German perspective” in J Smits et al (eds)

Specific Performance in Contract Law: National and Other Perspectives (2008)
Favre A Rationalia in Pandectas II (1659) Lyons: Phil. Borde, Laur. Arnaud, & Claud.
Rigaud
Felemegas J (ed) An International Approach to the Interpretation of the United Nations

Convention on Contracts for the International Sale of Goods (1980) as Uniform
Sales Law (2007) Cambridge: Cambridge University Press
Felemegas J “The right to require specific performance: a comparison between

provisions of the CISG regarding the right to require specific performance and the
counterpart provisions of the UNIDROIT Principles” in J Felemegas (ed) An
441
International Approach to the Interpretation of the United Nations Convention on

Contracts for the International Sale of Goods (1980) as Uniform Sales Law (2007)
Fitzgerald J “CISG, specific performance, and the civil law of Louisiana and Quebec”
(1997) 16 Journal of Law and Commerce 291
Flambouras D P “The doctrines of impossibility of performance and clausula rebus sic

stantibus in the 1980 Convention on Contracts for the International Sale of Goods
and the Principles of European Contract Law – a comparative analysis” (2001) 13
Pace International Law Review 261
Floyd T “The constitutionality of the onus of proof when enforcing restraint-of-trade

agreements: an appropriate evaluation of the common-law rules” 2012 THRHR
521
Foran M A Williston on Sales III 5 ed (1996) Deerfield: Clark Boardman Callaghan
Fourie J S A Die Dienskontrak in die Suid-Afrikaanse Arbeidsreg LLD thesis UNISA

Pretoria (1977)
Freedland M R & Kountouris N The Legal Construction of Personal Work Relations

(2011) Oxford: Oxford University Press
Freedland M R The Contract of Employment (1976) Oxford: Clarendon Press
Freedland M R The Personal Employment Contract (2003) Oxford: Oxford University

Press
Friedmann D “Economic aspects of damages and specific relief” in D Saidov & R

Cunnington (eds) Contract Damages: Domestic and International Perspectives
(2008)
Friedmann D “The efficient breach fallacy” (1989) 18 J Legal Stud 1
Friedmann D “The performance interest in contract damages” (1995) 11 LQR 628
442
Friedmann D E “Good faith and remedies for breach of contract” in J Beatson & D E
Friedmann (eds) Good Faith and Fault in Contract Law (1995)
Furmston M P “Breach of contract” (1992) 40(3) Am J Comp L 671
Furmston M P Cheshire, Fifoot & Furmston’s Law of Contract 16 ed (2012) Oxford:

Oxford University Press
Gane P The Jurisprudence of My Time (Heedendaegse Rechtsgeleertheyt) by Ulric

Huber vol 1 (1939) Durban: Butterworths
Gane P The Selective Voet: Being the Commentary on the Pandects III (1956) Durban:
Butterworths
Garro A M “Reconciliation of legal traditions in the UN Convention on Contracts for the

International Sale of Goods” 1989 The International Lawyer 443
Glover G (ed) Essays in Honour of AJ Kerr (2006) Durban: LexisNexis Butterworths
Gordley J & Von Mehren A T An Introduction to the Comparative Study of Private Law:
Readings, Cases, Materials (2006) Cambridge: Cambridge University Press
Gordley J (ed) The Enforceability of Promises in European Contract Law (2001)

Cambridge: Cambridge University Press
Greenberg H “Specific performance under section 2-716 of the UCC” (1982) 87

Commercial Law Journal 583
Grigsby W E Story’s Equity Jurisprudence 2 ed (1892) London: Stevens and Haynes
Grogan J Employment Rights (2010) Cape Town: Juta
Grogan J Workplace Law 10 ed (2009) Cape Town: Juta
Gross P “Specific performance of contracts in South Africa” 1934 SALJ 347
443
Gubbels M & Jansen C J H (eds) Regio: Rechtshistorische Opstellen Aangeboden aan

dr. P.P.J.L. van Peteghem (2010) Nijmegen: Gerard Noodt Instituut
Haas D & Jansen C “Specific performance in Dutch law” in J Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives (2008)
Haas D “Searching for a basis of specific performance in the Dutch Civil Code” in J
Hallebeek & H Dondorp (eds) The Right to Specific Performance: The Historical
Development (2010)
Haas D De Grenzen Van Het Recht Op Nakoming doctoral thesis Vrije University
Amsterdam (2009)
Haas D, Hesen G & Smits J “Introduction” in J Smits et al (eds) Specific Performance in

Contract Law: National and Other Perspectives (2008)
Hackney P “Is the United Nations Convention on the International Sale of Goods
achieving uniformity?” (2001) 61 Louisiana Law Review 473
Hallebeek J & Dondorp H (eds) The Right to Specific Performance: The Historical
Development (2010) Antwerp: Intersentia
Hallebeek J & Merkel T “Simon Groenewegen van der Made on the enforcement of
obligationes faciendi” in J Hallebeek & H Dondorp (eds) The Right to Specific
Hallebeek J “Direct enforcement of obligations to do: two local manifestations of the ius
commune” in M Gubbels & C J H Jansen (eds) Regio: Rechtshistorische Opstellen
Aangeboden aan dr. P.P.J.L. van Peteghem (2010)
Hallebeek J “Specific performance in obligations to do according to early modern

Spanish doctrine” in J Hallebeek & H Dondorp (eds) The Right to Specific
444
Handler M “Specific performance under section 2-716(1) of the Uniform Commercial

UCC – What other proper circumstances?” (1971) 33 U Pitt LR 243
Harris D, Ogus A & Phillips J “Contract remedies and the consumer surplus” (1979) 95
LQR 581
Hartkamp A S & Sieburgh C H Verbintenissenrecht: De Verbintenis in het Algemeen 6-II

(2009) Deventer: Kluwer
Hartkamp A S, Tillema M M M & Ter Heide A E B Contract Law in the Netherlands 2 rev
ed (2011) Alphen aan den Rijn: Kluwer Law International
Hartkamp A, Hesselink M W, Hondius E H, Mak C & Du Perron C E (eds) Towards a

European Civil Code 4 rev ed (2011) Alphen aan den Rijn: Kluwer Law
International
Hawthorne L “The principle of equality in the law of contract” 1995 THRHR 157
Heldrich A & Rehm G M “Modernisation of the German Law of Obligations:

Harmonisation of Civil Law and Common Law in the Recent Reform of the German
Civil Code” in N Cohen & E McKendrick (eds) Comparative Remedies for Breach
of Contract (2005)
Herman S “Specific performance: a comparative analysis” (2003) 7(1) Edin LR 5
Hesen G & Hardy R “Is the system of contract remedies in the Netherlands efficient
from a law and economics perspective?” in J M Smits et al (eds) Specific
Performance in Contract Law: National and Other Perspectives (2008)
Hesselink M W & De Vries G J P Principles of European Contract Law (2001) Deventer:

Kluwer
Heutger V & Oosterhuis J “Specific performance within the hierarchy of remedies in

European contract law” in J Smits et al (eds) Specific Performance in Contract
Law: National and Other Perspectives (2008)
445
Hijma J & Olthof M M Compendium Nederlands Vermogensrecht 8 ed (2002) Deventer:

Kluwer
Hijma J Bijzondere Overeenkomsten: Koop en Ruil 5-I (2007) Deventer: Kluwer
Hogg M Promises and Contract Law: Comparative Perspectives (2011) Cambridge:

Cambridge University Press
Holdsworth W S A History of English Law (1924) Boston: Little Brown & Company
Holmes Jr O W “The path of the law” (1897) 10 Harv LR 457; (1998) 78 Boston
University Law Review 699
Holmes Jr O W The Common Law (1881) Boston: Little Brown & Co
Honnold J O Uniform Law for International Sales under the 1980 United Nations
Convention 4 ed (2009) Austin: Wolters Kluwer Law & Business
Horack H C “Insolvency and specific performance” (1918) 31 Harv LR 702
Huber U Praelectiones Iuris Civilis vol 1 (1766) Lovanii: Joannis Francisci van Overbeke
Hutchison A “Change of circumstances in contract law: the clausula rebus sic stantibus”
2009 THRHR 60
Hutchison A “Gap filling to address changed circumstances in contract law – when it

comes to losses and gains, sharing is the fair solution” 2010 Stell LR 414
Hutchison A “Reciprocity in contract law” 2013 Stell LR 3
Hutchison A “The doctrine of frustration: a solution to the problem of changed

circumstances in South African contract law” 2010 SALJ 84
Hutchison D “Non-variation clauses in contract: any escape from the Shifren

straitjacket?” 2001 SALJ 720
446
Hutchison D & Du Bois F “Contracts in general” in F Du Bois (ed) Wille’s Principles of

South African Law 9 ed (2007)
Hutchison D & Pretorius C (eds) The Law of Contract in South Africa 2 ed (2012) Cape
Town: Oxford University Press
Jaeger W H E Williston on Contracts 3 ed (1968) vol 11 New York: Baker Voorhis & Co
Inc
Jakutytė-Sungailienė A “The application of specific performance in contractual relations”

(2010) 2(6) Social Sciences Studies 227
(<www.mruni.eu/lt/mokslo_darbai/sms/archyvas/dwn.php?id=257440>)
Jeremy A “Pacta sunt servanda the influence of Canon Law upon the development of
contractual obligations” (2000) 144 Christian Law Review 4
Jolowicz H F & Nicholas B Historical Introduction to the Study of Roman Law 3 ed

(1972) Cambridge: Cambridge University Press
Jones G & Goodhart W Specific Performance 2 ed (1996) London: Butterworths
Jones G “Specific performance: a lessee’s covenant to keep open a retail store” (1997)
56 CLJ 488
Jordaan B & Stelzner R G L “Sport and the law of employment” in J A A Basson & M M
Loubser (eds) Sport and the Law in South Africa (2000)
Jordaan B “Employment relations” in R Zimmermann & D Visser Southern Cross: Civil

Law and Common Law in South Africa (1996)
Joubert D J “Die kontraktuele verhouding tussen professionele man en kliënt” 1970 Acta
Juridica 9
Joubert D J General Principles of the Law of Contract (1987) Cape Town: Juta
447
Kaser M Roman Private Law (tr R Dannenbring) 3 ed (1980) Pretoria: University of

South Africa
Kastely A H “The right to require performance in international sales: towards an

international interpretation of the Vienna Convention” (1988) 63 Washington Law
Review 607
Kerr A J The Law of Sale and Lease 3 ed (2004) Durban: LexisNexis Butterworths
Kerr A J The Principles of the Law of Contract 6 ed (2002) Durban: Butterworths
Khouri N C Z “Efficient breach theory in the law of contract: an analysis” (2002) 9

Auckland University Law Review 739
Klass G “Efficient breach is dead; long live efficient breach” Georgetown Public
Law and Legal Theory Research Paper No 13-018 (2013)
(<http://scholarship.law.georgetown.edu/facpub/1185>)
Klass G “Efficient breach” in Klass G, Letsas G & Saprai P (eds) The Philosophical
Foundations Of Contract Law (forthcoming) Oxford University Press
Klass G Contract Law in the USA (2010) Alphen aan den Rijn: Kluwer Law International
Kleinheisterkamp J “UNIDROIT Principles of International Commercial Contracts

(PICC)” in J Basedow et al (eds) The Max Planck Encyclopedia of European
Private Law II (2012)
Kornhauser L “An introduction to the economic analysis of contract remedies” (1986) 57

University of Colorado Law Review 683
Kraus J S “A critique of the efficient performance hypothesis” (2007) 116 Yale LJ Pocket
Part 424
Kröll S, Mistelis L & Viscasillas P P (eds) The United Nations Convention on Contracts
for the International Sale of Goods: Commentary (2011) München: C H Beck
448
Kronman A T “Specific performance” (1978) 45 U Chi LR 351
Küsters H Social Partnership: Basic Aspects of Labour Relations in Germany (2007)

Friedrich-Ebert-Stiftung
Laithier Y “Comparative reflections on the French law of remedies for breach of

contract” in N Cohen & E McKendrick (eds) Comparative Remedies for Breach of
Contract (2005)
Lambiris M A Orders of Specific Performance and Restitutio in Integrum in South

African Law (1989) Durban: Butterworths
Landman A A “Saving of costs: a ground for reducing specific performance of a claim

sounding in money?” 1997 SALJ 263
Lando O & Beale H (eds) The Principles of European Contract Law Parts I & II (2000)
The Hague: Kluwer Law International
Lando O “CISG and its followers: a proposal to adopt some International Principles of
Contract Law” (2005) 53 Am J Comp L 379
Lando O “Non-performance (breach) of contracts” in Hartkamp A, Hesselink M W,

Hondius E H, Mak C & Du Perron C E (eds) Towards a European Civil Code 4 rev
ed (2011)
Lando O “Salient features of the Principles of European Contract Law: a comparison

with the UCC” (2001) 13 Pace International Law Review 339
Le Roux R “How divine is my contract? Reflecting on the enforceability of player or

athlete contracts in sport” 2003 SA Merc LJ 116
Le Roux R “The evolution of the contract of employment in South Africa” 2010 Ind LJ
139
Lee R W An Introduction to Roman-Dutch Law 5 ed (1953) Oxford: Clarendon
449
Lewis C “The uneven journey to uncertainty in contract” 2013 THRHR 80
Linzer P “On the amorality of contract remedies” (1981) 81 Colum LR 111
Loeb B M “Deterring player holdouts: who should do it, how to do it, and why it has to be
done” (2001) 11 Marquette Sports Law Review 275
Lord R A Williston on Contracts 4 ed (2004) vol 25 New York: Lawyers Co-operative

Publishing Co
Low G “A psychology of choice of laws” 2013 European Business Law Review 363
Low G “Performance remedies and damages – a selection of issues”, unpublished

paper presented at a conference on The Relationship between European and
Chinese Contract Law hosted by the Tsinghua University in Beijing 16-17 February
(2012)
Lubbe G & Du Plessis J “Law of contract” in C G van der Merwe & J E du Plessis (eds)
Introduction to the Law of South Africa (2004)
Lubbe G “Contractual derogation and the discretion to refuse an order for specific
performance in South African Law” in J Smits et al (eds) Specific Performance in
Contract Law: National and Other Perspectives (2008)
Lubbe G “Contractual derogation and the discretion to refuse an order for specific
performance” in G Glover (ed) Essays in Honour of AJ Kerr (2006)
Lubbe G “Daadwerklike vervulling in die Suid-Afrikaanse reg: die implikasies van die
uitoefening van die regterlike diskresie” in J Smits & G Lubbe (eds) Remedies in
Zuid-Afrika en Europa (2003)
Lubbe G F & Murray C M Farlam & Hathaway Contract: Cases, Materials and
Commentary 3 ed (1988) Cape Town: Juta
450
Lubbe G F “Cession” (original text by P M Nienaber) in L T C Harms & J A Faris (eds)

LAWSA 3 3 ed (2013) Durban: LexisNexis para 165
Lubbe G F “Ex Africa semper aliquid novi? – the mixed character of contract law in the
new South Africa” in J M Smits (ed) The Contribution of Mixed Legal Systems to
European Private Law (2001)
Maasdorp A F S The introduction to Dutch jurisprudence of Hugo Grotius: with an

appendix containing selections from the notes of William Schorer (1903) Cape
Town: Juta
Macdonell Sir John The Law of Master and Servant 2 ed (1908)
Mackay J (ed) Halsbury’s Laws of England 4 ed reissue vol 16(2) (2003) London:
LexisNexis
Macneil I R “Efficient breach of contract: circles in the sky” (1982) 68 Virginia Law
Review 947
MacQueen H L & Macgregor L J “Specific implement, interdict and contractual

performance” 1999 Edin LR 239
MacQueen H L & Thomson J Contract Law in Scotland 3 ed (2012) West Sussex:

Bloomsbury Professional
MacQueen H L & Zimmermann R (eds) European Contract Law: Scots and South
African Perspectives (2006) Edinburgh: Edinburgh University Press
MacQueen H L “The Europeanisation of contract law: the Proposed Common European

Sales Law” University of Edinburgh School of Law Research Paper No 17 (2014)
MacQueen H L, Dauner-Lieb B & Tettinger P W “Specific performance and right to cure”

in G Dannemann & S Vogenauer (eds) The Common European Sales Law in
Context: Interactions with English and German Law (2013)
451
Magnus U (ed) CISG vs. Regional Sales Law Unification: With a Focus on the New
Common European Sales Law (2012) München: Sellier European Law Publishers
Magnus U “CISG vs. CESL” in U Magnus (ed) CISG vs. Regional Sales Law Unification:
with a Focus on the New Common European Sales Law (2012)
Mak V Performance-Oriented Remedies in European Sale of Goods Law (2009) Oxford:

Hart Publishing
Markesinis B, Unberath H & Johnston A The German Law of Contract: A Comparative

Treatise 2 ed (2006) Oxford: Hart Publishing
Martin J E Hanbury & Martin’s Modern Equity 19 ed (2012) London: Sweet & Maxwell
Mattei U A, Ruskola T & Gidi A Schlesinger’s Comparative Law: Cases, Text, Materials
7 ed (2009) New York: Foundation Press
McClintock H L “Adequacy of ineffective remedy at law” 1932 Minn LR 233
McKendrick E & Maxwell I “Specific performance in international arbitration” 2013 The

Chinese Journal of Comparative Law 195
McKendrick E Contract Law 8 ed (2009) Basingstoke: Palgrave Macmillan
McKendrick E Contract Law: Text, Cases, and Materials 2 ed (2005) Oxford: Oxford
University Press
McLennan J S “Specific performance and the court’s discretion” 1986 SALJ 522
McMeel G “Anchors away” 1998 LQR 43
McQuillen M “The development of a Federal CISG Common Law in U.S. courts:

patterns of interpretation and citation” (2006-2007) 61 University of Miami Law
Review 509
452
Meyer L Non-Performance and Remedies under International Contract Law Principles

and Indian Contract Law: A Comparative Survey of the UNIDROIT Principles of
International Commercial Contracts, the Principles of European Contract Law, and
Indian Statutory Contract Law (2010) Frankfurt: Peter Lang
Mills S “Specific performance: sale of land” 2006 New Zealand Law Journal 196
Mitchell C et al (eds) Goff & Jones The Law of Unjust Enrichment 8 ed (2011) London:
Sweet & Maxwell
Möllers T M J “European Directives on civil law – shaping a new German Civil Code”
(2003) 18 Tulane European & Civil Law Forum 1
Mould K “A critical study of the recurring problem of repudiation in the context of

professional rugby in South Africa with particular emphasis on transformative
constitutionalism” (2010) 35(1) Journal for Juridical Science 49
Mould K “The suitability of the remedy of specific performance to breach of a ‘player’s

contract’ with specific reference to the Mapoe and Santos cases” 2011 PELJ 189
Naidu A “The right to be free from slavery, servitude and forced labour” 1987 CILSA 108
Naudé T & Lubbe G “Exemption clauses – a rethink occasioned by Afrox Healthcare

Bpk v Strydom” 2005 SALJ 441
Naudé T “Specific performance against an employee: Santos Professional Football Club

(Pty) Ltd v Igesund” 2003 SALJ 269
Naudé T “The function and determinants of the residual rules of contract law” 2003
SALJ 820
Naudé T “The law of lease” 2007 ASSAL 871
Newman R A Equity and Law: A Comparative Study (1961) New York: Oceana
Publications Inc
453
Nichols M “Remedies – specific performance and long-term supply contracts: an

application of U.C.C. § 2-716” (1976) 30 Arkansas Law Review 65
Nienaber P M “Building and engineering contracts” in L T C Harms & J A Faris (eds)

LAWSA 2(1) 2 ed (2003) Durban: LexisNexis para 478
Northcote G R A Treatise on the Specific Performance of Contracts by Sir Edward Fry 6

ed (1921) London: Sweet & Maxwell
Oleck H L “Specific performance of builders’ contracts” (1952) 21 Fordham LR 156
Oosterhuis J Specific Performance in German, French and Dutch Law in the Nineteenth
Century: Remedies in an Age of Fundamental Rights and Industrialisation (2011)
Martinus Nijhoff Publishers
Palmer V (ed) Mixed Jurisdictions Worldwide (2012) Cambridge University Press
Palmer V V “Mixed legal systems” in M Bussani & U Mattei (eds) The Cambridge
Companion to Comparative Law (2012) Cambridge: Cambridge University Press
Peel E Treitel’s Law of Contract 13 ed (2011) London: Sweet & Maxwell
Perillo J M (ed) Corbin on Contracts 12: Restitution, Specific Performance and Election
of Remedies Interim ed (2002) New Jersey: Matthew Bender & Co
Perillo J M Calamari and Perillo on Contracts 6 ed (2009) Saint Paul, Minnesota: West
Academic Publishing
Peters E A “Remedies for breach of contract relating to the sale of goods under the
Uniform Commercial UCC: a roadmap for article 2” (1963) 73 Yale LJ 199
Phang A “Specific performance – exploring the roots of ‘settled practice’” 1998 Modern
Law Review 421
454
Pomeroy Jr J N A Treatise on the Specific Performance of Contracts 3 ed (1926) New

York: Banks & Company
Pomeroy Jr J N Pomeroy’s Equity Jurisprudence and Equitable Remedies VI 3 ed

(1905) San Francisco: Bancroft-Whitney Company
Posner E A “Economic analysis of contract law after three decades: success or failure?”
(2003) 112 Yale LJ 829
Posner R A The Economic Analysis of Law 8 ed (2011) New York: Aspen Publishers
Poste E Institutes of Roman law by Gaius (1904) London: Oxford University Press
Potter H An Historical Introduction to English Law and Its Institutions 3 ed (1948)

London: Sweet & Maxwell
Pound R “The development of American Law and its deviation from English law” (1951)
67 LQR 49
Prinsloo M W “Enkele opmerkinge oor spelerskontrakte in professionele spansport”

2000 TSAR 229
Rabel E “A draft of an international law of sales” (1938) 5(4) U Chi LR 543
Randall A E Principles of the Law of Contracts by S Martin Leake 7 ed (1921) London:

Stevens and Sons
Rautenbach I M “Introduction to the Bill of Rights” in Bill of Rights Compendium (RS 33

2013) Durban: Butterworths
Reid K & Zimmermann R (eds) A History of Private Law in Scotland II: Obligations
(2000) Oxford: Oxford University Press
Reid K & Zimmermann R (eds) A History of Private Law in Scotland I: Introduction and
Property (2000) Oxford: Oxford University Press
455
Reid K & Zimmermann R “The development of legal doctrine in a mixed system” in K

Reid & R Zimmermann (eds) A History of Private Law in Scotland I: Introduction
and Property (2000)
Reiter B J & Swan J (eds) Studies in Contract Law (1980) Toronto: Butterworths
Rickett C E F (ed) Justifying Private Law Remedies (2008) Oxford: Hart Publishing
Rowan S Remedies for Breach of Contract: A Comparative Analysis of the Protection of

Performance (2012)
Roycroft A & Jordaan B A Guide to South African Labour Law 2 ed (1992) Cape Town
Juta
Sacco R “Legal formants: a dynamic approach to comparative law” 1991 Am J Comp L

1
Sadanand A “Lost profits, market damages, and specific performance: an economic

analysis of Buyer’s breach” (1987) 20(4) The Canadian Journal of Economics 750
Saidov D & Cunnington R (eds) Contract Damages: Domestic and International

Perspectives (2008) Oxford: Hart Publishing
Salmond Sir John & Williams J The Principles of the Law of Contracts 2 ed (1945)
London: Sweet & Maxwell
Saner J Agreements in Restraint of Trade in South African Law (loose-leaf) Durban:

Butterworths
Sarecevic P & Volken P (eds) The International Sale of Goods Revisited (2001) The
Hague: Kluwer Law International
Schlechtriem P “The German Act to Modernize the Law of Obligations in the context of
Common Principles and Structures of the Law of Obligations in Europe” (2002)
Oxford University Comparative Law Forum 2
456
Schmitt M A & Pasterczyk M “Specific performance under the Uniform Commercial

Code – will liberalism prevail?” (1976-1977) 26 De Paul Law Review 54
Schulte-Nölke H The New German Law of Obligations: An Introduction

(<http://www.iuscomp.org/gla/literature/schulte-noelke.htm>)
Schulze R (ed) Common European Sales Law (CESL) – Commentary (2012) München:
C H Beck
Schwartz A & Markowits D “The myth of efficient breach” 2010 Yale Law Faculty
Scholarship Series Paper 93
Schwartz A “The case for specific performance” (1979) 89 Yale LJ 271
Schwartz A “The myth that promises prefer supra compensatory remedies” (1990) 100
Yale LJ 369
Schwenzer I (ed) Commentary on the UN Convention on the International Sale of

Goods 3 ed (2010) Oxford: Oxford University Press
Schwenzer I “Force majeure and hardship in international sales contracts” (2008) 39

VUWLR 709
Schwenzer I “The Proposed Common European Sales Law and the Convention on the
International Sale of Goods” (2012) 44 Uniform Commercial Code Law Journal
457
Scott R E & Kraus J S Contract Law and Theory 3 rev ed (2003) New Jersey:
LexisNexis
Sharpe R J “Specific relief for contract breach” in B J Reiter & J Swan (eds) Studies in
Contract Law (1980)
Sharpe R J Injunctions and Specific Performance (1983) Toronto: Canada Law Book
Limited
457
Sharrock R, Van der Linde K & Smith A Hockly’s Insolvency Law 9 ed (2012) Cape
Town: Juta
Shavell S “Specific performance versus damages for breach of contract: an economic

analysis” 2006 Tex LR 831
Shavell S “The design of contracts and remedies for breach” (1984) 97 Quarterly
Journal of Economics 121
Shavell S Foundations of Economic Analysis of Law (2004) Cambridge, Massachusetts:

Harvard University Press
Smit N Labour Law Implications of the Transfer of an Undertaking LLD thesis Rand
Afrikaans University (2001)
Smith A “Specific implement” in K Reid & R Zimmermann (eds) A History of Private Law
in Scotland II: Obligations (2000)
Smith L “Understanding specific performance” in N Cohen & E McKendrick (eds)

Comparative Remedies for Breach of Contract (2005)
Smits J & Lubbe G (eds) Remedies in Zuid-Afrika en Europa: Bijdragen over

Privaatrecht en Constitutioneel Recht in Zuid-Afrika, Nederland en België (2003)
Antwerp: Intersentia
Smits J & Stijns S (eds) Remedies in het Belgisch en Nederlands Contractenrecht

(2000) Antwerpen: Intersentia
Smits J M (ed) Elgar Encyclopedia of Comparative Law 2 ed (2012) Cheltenham:

Edward Elgar Publishing
Smits J M (ed) The Contribution of Mixed Legal Systems to European Private Law
(2001) Antwerp: Intersentia
458
Smits J M “A European private law as a mixed legal system” (1998) 5 Maastricht

Journal of European and Comparative Law 328
Smits J, Haas D & Hesen G (eds) Specific Performance in Contract Law: National and
Other Perspectives (2008) Antwerp: Intersentia
Smits M H J Efficient Breach and the Enforcement of Specific Performance LLM thesis
Amsterdam Law School (2014)
Spry I C F The Principles of Equitable Remedies 5 ed (1997) London: Sweet & Maxwell
Spry I C F The Principles of Equitable Remedies: Specific Performance, Injunctions,

Rectification and Equitable Damages 8 ed (2010) London: Sweet & Maxwell
Stevens R S “Involuntary servitude by injunction” (1921) 6 Cornell Law Quarterly 235
Steyn I C Gijzeling: The Historical Development of the Mode of Proceeding in Gijzeling

in the Provincial Court of Holland from 1531 (1939) Leiden: Burgersdijk &
Niermans
Stolp M M Ontbinding, Schadevergoeding en Nakoming: De Remedies Voor

Wanprestatie in Het Licht van de Beginselen van Subsidiariteit en Proportionaliteit
(2007) Deventer: Kluwer
Stone R The Modern Law of Contract 10 ed (2013) Abingdon: Routledge
Stuart-Steer S P “Reconsidering an understanding of damages as a surrogate of

specific performance in South African law of contract” 2013 Responsa Meridiana
65
Sutherland P J The Restraint of Trade Doctrine in England, Scotland and South Africa
PhD thesis Edinburgh (1997)
Szladits C “The concept of specific performance in civil law” (1955) 4 Am J Comp L 208
459
Tettenborn A M “Absolving the undeserving: shopping centres, specific performance

and the law of contract” 1998 Jan/Feb Conveyancer and Property Lawyer 23
Thomas J A C Textbook of Roman Law (1976) Amsterdam: North-Holland Publishing

Company
Torsello M “Remedies for breach of contract” in J M Smits (ed) Elgar Encyclopedia of

Comparative Law 2 ed (2012)
Treitel G H “Remedies for breach of contract” in IECL VII (1976) Tübingen: Mohr &
Siebeck ch 16
Treitel G H “Specific performance in the sale of goods” 1966 Journal of Business Law
211
Treitel G H Frustration and Force Majeure 2 ed (2004) London: Sweet & Maxwell
Treitel G H Remedies for Breach of Contract: A Comparative Account (1988) Oxford:

Clarendon
Treitel G H The Law of Contract 7 ed (1987) London: Stevens
Ulen T S “The efficiency of specific performance” (1984) 83 Mich LR 341
Unberath H & McKendrick E “Supervening events” in G Dannemann & S Vogenauer

German Law (2013)
Van der Keessel D G Select Theses on the Laws of Holland and Zeeland being a
Commentary of Hugo Grotius’ Introduction to Dutch Jurisprudence 2 ed (tr C A
Lorenz) (1901) Cape Town: Juta
Van der Linden J Regtsgeleerd, Practicaal en Koopmans Handboek (1806) Amsterdam:

Johannes Allart
460
Van der Merwe C G & Du Plessis J E (eds) Introduction to the Law of South Africa
(2004) The Hague: Kluwer Law International
Van der Merwe S W J, Van Huyssteen L F, Reinecke M F B & Lubbe G F Contract:

General Principles 4 ed (2012) Cape Town: Juta
Van Hecke M T “Changing emphasis in specific performance” (1961-1962) 40 North

Carolina Law Review 1
Van Heerden B J “An exploratory introduction to the economic analysis of law” (1981) 4
Responsa Meridiana 147
Van Huyssteen L F & Van der Merwe S “Good faith in contract: proper behaviour amidst
changing circumstances” 1990 Stell LR 244
Van Jaarsveld F & Van Eck S Principles of Labour Law 2 ed (2002)
Van Loggerenberg D E Jones & Buckle: The Civil Practice of the Magistrates’ Courts in
South Africa I 10 ed (2012) Cape Town: Juta (loose-leaf)
Van Rensburg A D J, Lotz J G & Van Rijn T (revised by R H Christie updated by R D

Sharrock) “Contract” in W A Joubert & J A Faris (eds) LAWSA 5(1) 2 ed (2010)
Durban: LexisNexis paras 495-496
Van Warmelo P An Introduction to the Principles of Roman Civil Law (1976) Cape
Town: Juta
Varul P “Performance and remedies for non-performance: comparative analysis of the

PECL and DCFR” 2008 Juridica International 104
Venter C M An Assessment of the South African Law Governing Breach of Contract

master’s dissertation Stellenbosch University (2004)
Vogenauer S & Kleinheisterkamp J (eds) Commentary on the UNIDROIT Principles of

International Commercial Contracts (PICC) (2009) Oxford: Oxford University Press
461
Von Bar C & Clive E (eds) Principles, Definitions and Model Rules of European Private
Law: Draft Common Frame of Reference (DCFR) I (2009) München: Sellier
European Law Publishers
Von Mehren A T & Gordley J R The Civil Law System: An Introduction to the
Comparative Study of Law 2 ed (1977) Boston: Brown, Little & Co
Walsh W F A Treatise on Equity (1930) Chicago: Callaghan and Company
Walt S “For specific performance under the United Nations Sales Convention” (1999) 26
Texas International Law Journal 211
Walter P “Commercial impracticability in contracts” (1987) 61 St John’s Law Review 225
Warkol C S “Resolving the paradox between legal theory and legal fact: the judicial
rejection of the theory of efficient breach” (1998-1999) 20 Cardozo Law Review
321
Webb C “Performance and compensation: an analysis of contract damages and

contractual obligation” (2006) 26 OJLS 41
Wehberg H “Pacta sunt servanda” (1959) 53 American Journal of International Law 775
Weir T “Contracts in Rome and England” (1992) 66 Tulane LR 1615
Weiss M & Schmidt M Labour Law and Industrial Relations in Germany 4 rev ed (2008)
Alphen aan den Rijn: Kluwer Law International
Wessels J W History of the Roman-Dutch Law (1908) Grahamstown: African Book

Company
Wessels J W The Law of Contract in South Africa II 2 ed (1951) Durban: Butterworth &
Co
462
Wethmar-Lemmer M “Specific performance as a remedy in international sales

contracts” (2012) 4 TSAR 700
Whittaker S & Riesenhuber K “Conceptions of contract” in G Dannemann & S

Vogenauer (eds) The Common European Sales Law in Context: Interactions with
English and German Law (2013)
Yeo H Y “Specific performance: covenant to keep business running” 1998 May Journal
of Business Law 254
Yorio E & Thel S Contract Enforcement: Specific Performance and Injunctions 2 ed

(2012 update) New York: Wolters Kluwer Law & Business
Zeller B CISG and the Unification of International Trade Law (2007) Abingdon:
Routledge-Cavendish
Zimmermann R & Visser D (eds) Southern Cross: Civil Law and Common Law in South
Africa (1996) Cape Town: Juta
Zimmermann R & Visser D “Introduction: South African Law as a mixed legal system” in
R Zimmermann & D Visser (eds) Southern Cross: Civil Law and Common Law in
South Africa (1996)
Zimmermann R “‘Double Cross’: comparing Scots and South African law” in R

Zimmermann, K Reid & D Visser (eds) Mixed Legal Systems in Comparative
Perspective: Property and Obligations in Scotland and South Africa (2004)
Zimmermann R “Good faith and equity” in R Zimmermann & D Visser (eds) Southern
Cross: Civil Law and Common Law in South Africa (1996)
Zimmermann R “Mixed legal systems” in J Basedow et al (eds) The Max Planck

Encyclopedia of European Private Law II (2012)
463
Zimmermann R “Remedies for non-performance: the revised German law of obligations,

viewed against the background of the Principles of European Contract Law” (2002)
6 Edin LR 271
Zimmermann R “Roman-Dutch jurisprudence and its contribution to European private

law” (1992) 66 Tulane LR 1685
Zimmermann R “Synthesis in South African private law: civil law, common law and usus
hodiernus pandectarum” (1986) 103 SALJ 259
Zimmermann R The Law of Obligations: Roman Foundations of the Civilian Tradition

(1990) Cape Town: Juta
Zimmermann R The New German Law of Obligations: Historical and Comparative

Perspectives (2005) Oxford: Oxford University Press
Zimmermann R, Reid K & Visser D (eds) Mixed Legal Systems in Comparative

Perspective: Property and Obligations in Scotland and South Africa (2004) Oxford:
Oxford University Press
Zweigert K & Kötz H An Introduction to Comparative Law (tr T Weir) 3 ed (1998) Oxford:
Clarendon
464
2. Index of cases
Canada
Domovics v Orsa Investments Ltd [1993] 15 OR (3d) 661 (OCGD)
John E Dodge Holdings Ltd v 805062 Ontario Ltd [2001] 56 OR (3d) 341 (OSCJ)
Semelhago v Paramadevan [1996] 2 SCR 415 (SCC)
Southcott Estates Inc v Toronto Catholic District School Board 2012 SCC 51
England
Adderley v Dixon (1824) 1 Sim & St 607
Alexander v Standard Telephones and Cables plc [1990] ICR 291
Anglo-Australian Life Assurance Co v British Provident Life and Fire Society (1862) 3
Giff 521
Ascherson v Tredegar Dry Dock & Wharf Co Ltd [1909] 2 Ch 401
Ashton v Corrigan (1871) LR 13 Eq 76
Bankers Trust Co v P T Jakarta International Hotels Development [1999] 1 Lloyd’s Rep

910
Behnke v Bede Shipping Co Ltd [1927] 1 KB 649
Beswick v Beswick [1968] AC 58
Blackett v Bates (1865) 1 Ch App 117
Braddon Towers Ltd v International Stores Ltd [1987] 1 EGLR 209
Brett v East India and London Shipping Co Ltd (1864) 2 Hem & M 404
Buxton v Lister (1746) 26 ER 1020
CH Giles & Co Ltd v Morris [1972] 1 WLR 307
Chapman v Westerby [1913] WN 277
465
Clark v Price (1819) 2 Wils Ch 157
Clifford v Turrel (1841) 1 Y & C Ch Cas 138
CN Marine Inc v Stena Line A/B (The Stena Nautica) (No 2) [1982] 2 Lloyd’s Rep 336
Cohen v Roche [1927] 1 KB 169
Coles v Trecothick (1804) 9 Ves 234
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1996] Ch 286
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1997] 2 WLR 898
Coulls v Bagot’s Executor and Trustee Co [1967] ALR 385
Cud v Rutter (1720) 1 P Wms 570
De Francesco v Barnum (1890) 45 Ch D 430
Denne v Light (1857) 8 De GM & G 774
Doherty v Allman (1878) 3 App Cas 709
Doloret v Rothschild 57 ER 233 (1824)
Dominion Coal v Dominion Iron & Steel [1909] AC 293
Dowty Boulton Paul v Wolverhampton Corporation [1971] 2 All ER 277
East India Co v Vincent (1740) 2 Atk 83
Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd 1968 AC 269
Eurico SpA v Philipp Bros (The Epaphus) [1987] 2 Lloyd’s Rep 215
Evans Marshall & Co Ltd v Bertola SA [1973] 1 WLR 349
Falcke v Gray (1859) 4 Drew 651
Fothergill v Rowland (1873) LR 17 Eq 132
Francis v Cowcliffe (1977) 33 P & CR 368
Gould v Kemp (1834) 39 ER 959
Harnett v Yielding (1805) 2 Sch & Lef 549

466
Harvela Investments Ltd v Royal Trust Co of Canada (CI) Ltd [1986] AC 207
Haywood v Cope (1858) 25 Beav 140
Howard E Perry & Co v British Railways Board [1980] 1 WLR 1375
In Re Scott [1895] 2 Ch 603
In Re Wait [1927] 1 Ch 606
Isenberg v East India House Estate Co Ltd (1863) 3 De GJ & S 263
Jeune v Queens Cross Properties Ltd [1974] Ch 97
Johnson v The Shrewsbury and Birmingham Railway Company (1853) 43 ER 358
Johnson v Unisys Ltd [2003] 1 AC 518
Jones v St John’s College (1870) LR 6 QB 115
Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154
Joseph v National Magazine Co Ltd [1959] Ch 14
Kenney v Wexham (1822) 6 Madd 355
Lumley v Wagner (1852) 1 De G M & G 604
MacDonald v Casein Ltd [1917] 35 DLR 443
Malloch v Aberdeen Corporation [1971] 1 WLR 1578
Millican v Sullivan (1888) 4 TLR 203
Moffat v Touyz & Co 1918 EDL 316
Molyneux v Richard [1906] 1 Ch 34
Mosely v Virgin 30 ER 959 (1796)
Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535
O’Neill v Ryan (No 3) [1992] 1 IR 166
Paddock v Davenport 107 NC 710 (1890)
Parker v Camden London Borough Council [1986] Ch 162

467
Patel v Ali [1984] Ch 283
Phipps v Jackson (1887) 56 LJ Ch 350
Pickering v The Bishop of Ely (1843) 2 Y & C Ch Cas 249
Pollard v Clayton (1855) 1 K & J 462
Posner v Scott-Lewis [1987] Ch 25
Powell v Duffryn Steam Coal Co v Taff Vale Railway Co (1874) 9 Ch App 331
Powell v London Borough of Brent [1987] IRLR 466
Price v Strange [1978] Ch 337
Rainbow Estates Ltd v Tokenhold Ltd [1999] Ch 64
Ranelaugh (Earl) v Hayes (1683) 1 Vern 189
Redland Bricks Ltd v Morris [1970] AC 652
Ridge v Baldwin [1964] AC 40 65
Rigby v Connol (1880) 14 Ch D 482
Ruxley Electronics & Construction Ltd v Forsyth [1996] AC 344
Ryan v Mutual Tontine Westminster Chambers Association [1893] 1 Ch 116
Shiloh Spinners Ltd v Harding [1973] AC 691
Sky Petroleum Ltd v VIP Petroleum Ltd [1974] 1 WLR 576
Societe des Industries Metallurgiques SA v Bronx Engineering Co [1975] 1 Lloyd’s Rep

465
Sporle v Whayman (1855) 20 Beav 607
Subaru Tecnica International Inc, Prodrive Limited v Richard Burns, CSS Stellar
Management Limited, Automobiles Peugeot SA 2001 WL 1479740 Ch D
Sudbrook Trading Estate Ltd v Egerton [1983] 1 AC 444
Swift v Swift (1841) 31 IR Eq 267
Swiss Bank Corporation v Lloyds Bank Ltd [1982] AC 584

468
Tamplin v James (1880) 15 ChD 215
Thames Sack & Bag Co Ltd v Knowles (1918) 88 LJKB 585
Thames Valley Power Ltd v Total Gas and Power Ltd [2006] 1 Lloyd’s Rep 441
The City of London v Nash (1747) 26 ER 1095
Thorn v Public Works Commissioners (1863) 32 Beav 490
Thornborow v Whitacre (1705) 2 Ld Raym 1164
Tito v Waddell (No 2) [1977] Ch 106
Verrall v Great Yarmouth Borough Council [1981] QB 202
Warner v Murdoch, Murdoch v Warner (1877) 4 Ch D 750
Watson v Marston (1853) 4 De Gex, M & G 230
Wheeldon v Moldenhauer 1910 EDL 97
Whitwood Chemical Co v Hardman [1891] 2 Ch 416
Wilson v Northampton and Banbury Junction Railway Co (1874) 9 Ch App 279
Wolverhampton Corporation v Emmons [1901] 1 QB 515
Wroth v Tyler [1974] Ch 30
Young v Robson Rhodes [1999] 3 All ER 524
France
Cass civ, 14 March 1900, S 1900.1.489
Cass civ, 17 November 1984 (unreported “swimming pool” case)
Cass civ 3, 11 May 2005, pourvoi no 03-21136, RTD civ 2005, 596
Germany
BAG, NJW 1956, 359 (10.11.1955)

469
BGH, BGHZ 62, 388 (21.6.1974)
BGH, NJW 1988, 799
Netherlands
HR 15 November 1957, NJ 1958, 67 (Baris/Riezenkamp)
HR 16 January 1981, NJ 1981, 312 (X/Y)
HR 21 December 1956, NJ 1957, 126 (Meegdes/Meegdes)
HR 21 May 1976, NJ 1977, 73 (Oosterhuis/Unigro)
HR 27 June 1997, NJ 1997, 641 (Budde/Toa Moa Cruising Ltd)
HR 5 January 2001, NJ 2001, 79 (Multi Vastgoed/Nethou)
HR 9 May 1969, NJ 1969, 338 (Van der Pol/De Jong)
New Zealand
Butler v Countrywide Finance Ltd [1993] 3 NZLR 623 (HC)
Day v Mead [1987] 2 NZLR 443 (CA)
Newmans Tours Ltd v Ranier Investments Ltd [1992] 2 NZLR 68 (HC)
Van Camp Chocolates Ltd v Aulsebrooks Ltd [1984] 1 NZLR 354 (CA)
Scotland
Co-operative Insurance Society Ltd v Halfords Ltd 1998 SC 212
Highland & Universal Properties Ltd v Safeway Properties Ltd 2000 SLT 414
Parks Investments Ltd v The Royal Bank of Scotland plc (No 2) 1996 SC 227
470
South Africa
Abdullah v Kouga Municipality [2012] 5 BLLR 425 (LC)
Abrahams v Drake & Scull Facilities Management (SA) (Pty) Ltd [2012] 5 BLLR 434
(LC)
Afrox Healthcare Bpk v Strydom 2000 (6) SA 21 (SCA)
Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration 1974 (3) SA 506
(A)
Associated South African Bakeries (Pty) Ltd v Oryx & Vereinigte Bäckereien (Pty) Ltd
1982 (3) SA 893 (A)
Baragwanath v Olifants Asbestos Co (Pty) Ltd 1951 (3) SA 222 (T)
Barclays National Bank Ltd v Natal Fire Extinguishers Manufacturing Co (Pty) Ltd 1982
(4) SA 650 (D)
Barker v Beckett & Co Ltd 1911 TPD 151
Barkhuizen v Napier 2007 (5) SA 323 (CC)
Basson v Chilwan 1993 (3) SA 742 (A)
Beeton v Peninsula Transport Co (Pty) Ltd 1934 CPD 53
Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A)
Bhima v Proes Street Properties (Pty) Ltd 1956 (1) SA 458 (T)
BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A)
Bonthuys v Central District Municipality [2007] 5 BALR 446 (CCMA)
Botes v Botes 1964 (1) SA 623 (O) 629
Botha v Rich NO 2014 (4) SA 124 (CC)
Bredenkamp v Standard Bank of South Africa Ltd 2010 (4) SA 468 (SCA)
Breslin v Hichens 1914 AD 312
Brisley v Drotsky 2002 (4) SA 1 (SCA)
Brummer v Gorfil Brothers Investments (Pty) Ltd 1999 (3) SA 389 (SCA)
471
Bryant & Flanagan (Pty) Ltd v Muller 1977 (1) SA 800 (N)
Carpet Contract (Pty) Ltd v Grobler 1975 (2) SA 436 (T)
Chauncey v Blood’s Estate 1911 WLD 213
Coetzee v Comitis 2001 (1) SA 1254 (C)
Cohen v Shires, McHattie and King (1882) 1 SAR TS 41
Colonial Mutual Life Assurance Society Ltd v Macdonald 1931 AD 412
Consolidated Frame Cotton Corp Ltd v President of the Industrial Court 1985 (3) SA
150 (N)
Contract Forwarding (Pty) Ltd v Chesterfin (Pty) Ltd 2003 (2) SA 253 (SCA)
Coronation Syndicate Ltd v Lillienfeld and the New Fortuna Co Ltd 1903 TS 489
Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd
1991 (1) SA 525 (A)
Dey v Goldfields Building Finance & Trust Corp 1927 WLD 180
Douglas v Baynes 1908 TS 1207 (PC)
Du Plessis v Rolfes Ltd 1997 (2) SA 354 (A)
Dukes v Marthinusen 1937 AD 12
East London Municipality v Murray (1894) 9 EDC 55
Edrei Investments 9 Ltd (In Liquidation) v Dis-Chem Pharmacies (Pty) Ltd 2012 (2) SA
553 (ECP)
Ellerines Bros (Pty) Ltd v McCarthy Ltd 2014 (4) SA 22 (SCA)
Farmers’ Co-operative Society (Reg) v Berry 1912 AD 343
Fick v Woolcott & Ohlsson’s Cape Breweries 1911 AD 214
First National Bank of SA Ltd v Lynn 1996 (2) SA 339 (A)
Gijzen v Verrinder 1965 (1) SA 806 (D)
Glen Anil Finance (Pty) Ltd v Joint Liquidators, Glen Anil Development Corporation Ltd
(in liquidation) 1981 (1) SA 171 (A)
472
Gracie v Hull Blythe and Co (SA) Ltd 1931 CPD 539
Gründling v Beyers 1967 (2) SA 131 (W)
Harlin Properties (Pty) Ltd v Los Angeles Hotel (Pty) Ltd 1962 (3) SA 143 (A)
Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A)
Headleigh Private Hospital t/a Rand Clinic v Soller & Manning 2001 (4) SA 360 (W)
Hersman v Shapiro & Co 1926 TPD 367
Hesselmann v Koerner 1922 SWA 40
Heynes Mathew Ltd v Gibson NO 1950 (1) SA 13 (C)
Hirt & Carter (Pty) Ltd v Mansfield 2008 (3) SA 512 (D)
Horne v Williams & Co 1940 TPD 106
Hunter v Cumnor Investments 1952 (1) SA 735 (C)
Industrial & Mercantile Corporation v Anastassiou Brothers 1973 (2) SA 601 (W)
Ingle Colonial Broom Co Ltd v Hocking 1914 CPD 495
International Shipping Co (Pty) Ltd v Affinity (Pty) Ltd 1983 (1) SA 79 (C)
Isaacson v Walsh & Walsh (1903) 20 SC 569
ISEP Structural Engineering and Plating (Pty) Ltd v Inland Exploration Co (Pty) Ltd 1981
(4) SA 1 (A)
Johannesburg Stock Exchange v Northern Transvaal (Messina) Copper Exploration Co

1945 AD 529
Joss v Western Barclays Bank Ltd 1990 (1) SA 575 (T)
Keyter v Terblanche 1935 EDL 186
Klimax Manufacturing Ltd v Van Rensburg 2005 (4) SA 445 (O)
Linda Erasmus Properties Enterprise (Pty) Ltd v Mhlongo (2007) 28 ILJ 1100 (LC)
Longhorn Group (Pty) Ltd v The Fedics Group (Pty) Ltd 1995 (3) SA 836 (W)
Lottering v Lombaard 1971 (3) SA 270 (T)

473
Lucerne Asbestos Co Ltd v Becker 1928 WLD 311
Mabaso v Nel’s Melkery (Pty) Ltd 1979 (4) SA 358 (W)
Magna Alloys and Research (SA) (Pty) Ltd v Ellis 1984 (4) SA 874 (A)
Majake v Commission for Gender Equality 2010 (1) SA 87 (GSJ)
Malkiewicz v Van Niekerk and Fourouclas Investments CC [2008] 1 All SA 57 (T)
Manasewitz v Oosthuizen 1914 CPD 328
Marais v Bezuidenhout 1999 (3) SA 988 (W)
Marais v Cloete 1945 EDL 238
Masetlha v President of the Republic of South Africa 2008 (1) SA 566 (CC)
Maw v Grant 1966 (4) SA 83 (C)
Minister van Polisie v Gamble 1979 (4) SA 759 (A)
Mink v Vryheid Coal & Iron Co (1912) 33 NPD 182
Mohr v Kriek 1953 (3) SA 600 (SR)
Morettino v Italian Design Experience CC [2000] 4 All SA 158 (W)
Mostert v Old Mutual Life Assurance Co (SA) Ltd 2001 (4) SA 159 (SCA)
Motor Industry Bargaining Council v Mac-Rites Panel Beaters & Spray Painters (Pty)
Ltd 2001 (2) SA 1161 (N)
Mpange v Sithole 2007 (6) SA 578 (W)
Mtetwa v Minister of Health 1989 (3) SA 600 (D)
Myburgh v Daniëlskuil Munisipaliteit 1985 (3) SA 335 (NC)
Myers v Abramson 1952 (3) SA 121 (C)
National Butchery Co v African Merchants Ltd (1907) 21 EDC 57
National Union of Textile Workers v Stag Packings (Pty) Ltd 1982 (4) SA 151 (T)
Nationwide Airlines (Pty) Ltd v Roediger 2008 (1) SA 293 (W)
474
Naude v Kennedy 1909 TS 799
Nedcor Investment Bank v Pretoria Belgrave Hotel (Pty) Ltd 2003 (5) SA 189 (SCA)
Ngwenya v Natalspruit Bantu School Board 1965 (1) SA 692 (W)
Nisenbaum and Nisenbaum v Express Buildings (Pty) Ltd 1953 (1) SA 246 (W)
Nkengana v Schnetler [2011] 1 All SA 272 (SCA)
Norex Industrial Properties (Pty) Ltd v Monarch SA Insurance Co Ltd 1987 (1) SA 827
(A)
NUMSA v Abancedisi Labour Services (857/12) [2013] ZASCA 143 (30 Sep 2013)
Otto v Basson 1994 (2) SA 744 (C)
Pam Goldings Properties (Pty) Ltd v Erasmus (2010) 31 ILJ 1460 (LC)
Parke v Hamman 1907 TH 47
Peters Flamman & Co v Kokstad Municipality 1919 AD 427
Peters Flamman and Co v Kokstad Municipality 1919 AD 427
Phaka v Bracks (JR1171/11) [2013] ZALCJHB 91
PL v YL 2013 (6) SA 28 (ECG)
Pougnet v Ramlakan 1961 (2) SA 163 (N)
Raik v Raik 1993 (2) SA 617 (W)
Rampathy v Krumm 1978 (4) SA 935 (D)
Ranch International Pipelines (Transvaal) (Pty) Ltd v LMG Construction (City) Pty Ltd v
1984 (3) SA 861 (W)
Rex v Milne and Erleigh (7) 1951 (1) SA 791 (A)
Richter NO v Riverside Estates (Pty) Ltd 1946 OPD 209
Roberts Construction Co Ltd v Verhoef 1952 (2) SA 300 (W)
Roffey v Catterall, Edwards & Goudré (Pty) Ltd 1977 (4) SA 494 (N)
Rogers v Durban Corporation 1950 (1) SA 65 (D)

475
SA Broadcasting Corporation v McKenzie (1999) 20 ILJ 585 (LAC)
SAPU v National Commissioner of the South African Police Service [2006] 1 BLLR 42
(LC)
Sandown Travel (Pty) Ltd v Cricket South Africa 2013 (2) SA 502 (GSJ)
Sandton Town Council v Original Homes (Pty) Ltd 1975 (4) SA 150 (W)
Santos Professional Football Club (Pty) Ltd v Igesund 2002 (5) SA 697 (C)
Santos Professional Football Club (Pty) Ltd v Igesund 2003 (5) SA 73 (C)
Schierhout v Minister of Justice 1926 AD 99
Seloadi v Sun International (Bophuthatswana) Ltd 1993 (2) SA 174 (BG)
Shakinovsky v Lawson and Smulowitz 1904 TS 326
Shill v Milner 1937 AD 101
Silverton Estates Co v Bellevue Syndicate 1904 TS 462
Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A)
South African Harness Works v South African Publishers Ltd 1915 CPD 43
Spurrier v Coxwell NO 1914 CPD 83
Stacy v Sims 1917 CPD 533
Stein v Rising Tide Productions CC 2002 (5) SA 199 (C)
Stewart Wrightson (Pty) Ltd v Thorpe 1977 (2) SA 943 (A)
Steynberg v Kryger 1981 (3) SA 473 (O)
Swartz & Son (Pty) Ltd v Wolmaransstad Town Council 1960 (2) SA 1 (T)
Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (A)
The Treasure Chest v Tambuti Enterprises (Pty) Ltd 1975 (2) SA 738 (A)
Thomas Construction (Pty) Ltd (In Liquidation) v Grafton Furniture Manufacturers (Pty)
Ltd 1988 (2) SA 546 (A)
Thompson v Pullinger (1894) 1 OR 298

476
Tiger Bakeries Ltd v FAWU (1988) 9 ILJ 82 (W)
Toerien v Stellenbosch University 1996 (1) SA 197 (C)
Troskie v Van der Walt 1994 (3) SA 545 (O)
Tshabalala v Minister of Health 1987 (1) SA 513 (W)
Tshandu v City Council Johannesburg 1947 (1) SA 494 (W)
Tuckers Land & Development Corporation (Edms) Bpk v Van Zyl 1977 (3) SA 1041 (T)
Uitenhage Municipality v Schuddingh 1936 CPD 506
Unibank Savings and Loans Ltd (formerly Community Bank) v Absa Bank Ltd 2000 (4)
SA 191 (W)
Van Rensburg v Straughan 1914 AD 317
Van Rooyen v Baumer Investments (Pty) Ltd 1947 (1) SA 113 (W)
Van Wyk v Albany Bakeries Ltd [2003] 12 BLLR 1274 (LC)
Viljoen v Visser 1929 CPD 473
Visser v Neethling 1921 CPD 176
Vrystaat Cheetahs (Edms) Bpk v Mapoe (unreported judgment with case no 4587/2010
delivered on 29 Sep 2010 by the Free State Provincial Division of the High Court)
Walker v Syfret 1911 AD 141
Ward v Barrett NO 1963 (2) SA 546 (A)
Waterval Joint Venture Property Co (Pty) Ltd v City of Johannesburg Metropolitan

Municipality [2008] 2 All SA 700 (W)
Woods v Walters 1921 AD 303
York Timbers Ltd v Minister of Water Affairs and Forestry 2003 (4) SA 477 (T)
United States of America
Adams v Peabody Coal Co 82 N.E. 645 (1907)
477
Arthur v Oakes 63 Fed. 310 (7th Cir. 1894)
Ball v Coggs (1710) 1 Bro Parl Cas 140
Beck v Allison (1874) 56 N.Y. 366
Bethlehem Engineering Export Co v Christie 105 F.2d 933 (2d Cir. 1939)
Beverly Glen Music Inc v Warner Communications Inc 178 Cal. App. 3d 1142 (1986)
Bolin Farms v American Cotton Shippers Association, 370 F. Supp. 1353 (W.D. La.
1974)
Bomer v Canady 30 So. 638 (1901)
Cities Service Oil Co v Viering 89 N.E.2d 392 (1949)
Clardy v Bodolosky 679 S.E.2d 527 (Ct. App. 2009)
Clark v Flint 39 Mass. 231 (1839)
Colorado-Ute Electric Association Inc v Envirotech Corp 33 U.C.C. Rep. Serv. 965 (D.
Colo. 1981)
Columbia Gas Transmission Corp v Larry H Wright Inc 23 U.C.C. Rep. Serv. 910 (S.D.
Ohio 1977)
Cook v Deltona Corporation 753 F.2d 1552, 1557 (11th Cir. 1985)
Copylease Corp of America v Memorex Corp 408 F. Supp. 758 (S.D.N.Y. 1976).
Cumbest v Harris 363 So. 2d 294 (Miss. 1978)
Cummings v Nielson 129 Pac. 619 (1912)
De Caro v De Caro 97 A.2d 658 (1953)
Dells Paper & Pulp Co v Willow River Lumber Co 173 N.W. 317 (1919)
Dexter Bishop Co v B Redmond & Son Inc 22 U.C.C. Rep. Serv. 406 (1st Dep’t 1977)
Dills v Doebler 62 Conn. 366 (1892)
Domowicz v Orsa Investments Ltd (1993) 15 O.R. (3d) 661
Eastern Airlines Inc v Gulf Oil Corp 415 F. Supp. 429 (S.D. Fla. 1975)
478
Express Shipping Ltd v Gold 880 N.Y.S.2d 183 (2d Dep’t 2009)
Feld v Henry S Levy & Sons Inc 335 N.E.2d 320 (NY 1975)
Fitzpatrick v Michael 177 Md. 248, 9 A.2d 639 (1939)
Fleischer v James Drug Stores 62 A.2d 383 (1948)
Fowler v Sands 73 Vt. 236 (1901)
Gay v Seafarer Fiberglass Yachts Inc 14 U.C.C. Rep. Serv. 1335 (N.Y. Sup 1974)
Geo E Warren Co v AL Black Coal Co 102 S.E. 672 (1920)
Gingerich v Protein Blenders Inc 95 N.W.2d 522 (1959)
Grayson-Robinson Stores v Iris Construction Corporation 168 N.E.2d 377, 379 (N.Y.
1960)
Hamilton West Development Ltd v Hills Stores Company 959 F.Supp. 434 (N.D.Ohio
1997)
Hilmor Sales Co v Helen Neushaefer Division of Supronics Corp 6 U.C.C. Rep. Serv.
325 (N.Y. Sup 1969)
Hunt Foods Inc v O’Disho 36. 98 F. Supp. 267 (N.D. Cal.1951)
Hurley v Thomas 169 So. 2d 519 (Fla. Dist. Ct. App. 2d Dist. 1964)
In re Koreag, Controle et Revision SA 17 U.C.C. Rep. Serv. 2d 1036 (2d Cir. 1992)
Jamison Coal & Coke Co v Goltra 143 F.2d 889 (1944)
Jones v Parker (1895) 163 Mass. 564
Kahn v Wausau Abrasives Co 129 A. 374 (1925)
King Aircraft Sales Inc v Lane 68 Wash.App. 706 (1993)
Klein v Shell Oil Co 386 F.2d 659 (8th Cir. 1967)
Knott v Cutler 31 S.E.2d 359 (1944)
Lee v Crane 120 So. 2d 702 (1960)
Louisville Southern Railway Co v Ragland 15 Ky. L. Rep. 814 (1894):
479
McClurg v Crawford 209 Fed. 340 (1913)
McCutcheon v National Acceptance Corp 197 So. 475 (1940)
Mellon v Cessna Aircraft Co 64 F.Supp.2d 1061 (D. Kan 1999)
Metropolitan Sports Facilities Commission v Minnesota Twins Partnership 638 N.W. 2d

214 (Minn. Ct. App. 2002)
Morad v Silva 117 N.E.2d 290 (Mass. 1954)
Nakdimen v Atkinson Improvement Co 233 S.W. 694 (1921)
National Bank of Kentucky v Louisville Trust Co 67 F.2d 97 (C.C.A.6th, 1933)
Old Colony Railway Corp v Evans 6 Gray (Mass.) 25 (1856)
Park v Johnson 4 Allen (Mass.) 259 (1862)
Park v Minneapolis Railway Co 89 N.W. 532 (1902)
Patton v Mid-Continent Systems Inc 841 F.2d 742 (7th Cir.1988)
Pierce-Odom Inc v Evenson 33 U.C.C. Rep. Serv. 1693 (1982)
Plantation Land Co v Bradshaw 207 S.E.2d 49 (Ga. 1974)
Real Estate Analytics v Vallas 160 Cal.App.4th 463 (2008)
Rimes v Rimes 111 S.E 34 (1922)
Rockhill Tennis Club of Kansas City v Volker 56 S.W.2d 9 (Mo. 1932)
Roundtree v McLain Hempst 245, 20 F.Cas 1260, 1262 (1834)
Rutland Marble Co v Ripley (1870) 77 U.S. 339
Ryan v McLane 46 A. 340 (1900)
Schweber v Rallye Motors Inc 12 U.C.C. Rep. Serv. 1154 (N.Y. Sup 1973)
Seaboard Air Line Railway Co. v Atlanta B. & C. R. Co., 35 F. (2d) 609 (1929)
Sedmak v Charlie’s Chevrolet Inc 622 S.W.2d 694 (Mo.App.1981)
Simpson v Green 231 S.W. 375 (Tex. Comm’n App. 1921)
480
Snell v Mitchell 65 Me. 48. (1876)
Standard Fashion Co v Siegel-Cooper Co 157 N.Y. 60 (1898)
Stanton v Singleton 59 P. 146 (1899)
Technical Assistance International Inc v United States 150 F.3d 1369 (1998)
Tower City Grain Co v Richman 17 U.C.C. Rep. Serv. 1011 (N.D. 1975)
Union Pacific Railway Co v Chicago Rock Island & Pacific Railway Co 163 U.S. 564
(1896)
Warren v Goodloe’s Executor 20 S.W. 2d 278 (1929)
Wilhite v Skelton 149 Fed. 67 (1906)
Wilson v Sandstrom 317 So. 2d 732 (Fla. 1975)
Wilson v Sandstrom 317 So.2d 732 (Fla. 1975)
York Haven Water & Power Co v York Haven Paper Co 201 F. 270 (C.C.A.3d, 1912)
3. Index of legislation
England
Employment Rights Act 1996
Sale of Goods Act 1979
Supreme Court of Judicature Act 1873
Trade Union and Labour Relations (Consolidation) Act 1992
Germany
Federal Law of the Republic of Germany (GG)
German Civil Code (BGB)
German Code of Civil Procedure (ZPO)
481
Protection Against Unfair Dismissal Act 1951 (KSchG)
Netherlands
Constitution of the Kingdom of the Netherlands
Dutch Civil Code (BW)
South Africa
Abolition of Civil Imprisonment Act 2 of 1977
Alienation of Land Act 68 of 1981
Basic Conditions of Employment Act 75 of 1997
Constitution of the Republic of South Africa 1996
Consumer Protection Act 68 of 2008
Employment Equity Act 55 of 1998
Labour Relations Act 66 of 1995
Magistrates’ Courts Act 32 of 1944
Small Claims Courts Act 61 of 1984
Annotated Code of Maryland (Commercial Law)
Field Civil Code (1865)
Field Code of Civil Procedure (1848)
Thirteenth Amendment to the US Constitution
Uniform Commercial Code
Uniform Sales Act 1906

482
4. International instruments
Forced Labour Convention of 1930
United Nations Convention on Contracts for the International Sale of Goods (CISG)
1980
European Commission on European Contract Law The Principles Of European Contract

Law (PECL) 2002
Study Group on a European Civil Code & Research Group on Existing EC Private Law
Principles, Definitions and Model Rules of European Private Law: Draft Common Frame
of Reference (DCFR) 2009
UNIDROIT Principles of International Commercial Contracts (PICC) 2010
European Commission Proposal for a Common European Sales Law (CESL) 2011
5. Official publications
American Law Institute Restatement (Second) of the Law of Contracts (1981)

Minnesota: American Law Institute Publishers
483

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A Comparative Evaluation of the Judicial

Discretion to Refuse Specific Performance

Supervisor: Prof Jacques du Plessis

S van der Merwe November 2014

‘n Ondersoek van die aanwesigheid van hierdie remedie in ander regstelsels en

Die gevolgtrekking is dat ‘n beperkte aanspraak op spesifieke nakoming meer wenslik is

My greatest debt is to my supervisor, Professor Jacques du Plessis. I would like to

I will always be indebted to my family, my brother David-John in particular, and my

Am J Comp L American Journal of Comparative Law

TSAR Tydskrif vir die Suid-Afrikaanse Reg

CHAPTER 1: INTRODUCTION ...................................................................................... 1

CHAPTER 2: HISTORICAL AND COMPARATIVE BACKGROUND........................... 37

2 3 1 1 Specific performance as the primary remedy in German law ................ 48

CHAPTER 3: ADEQUACY OF DAMAGES .................................................................. 98

CHAPTER 4: PERSONAL SERVICE CONTRACTS .................................................. 163

CHAPTER 5: SUPERVISION OF PERFORMANCE .................................................. 251

CHAPTER 6: UNDUE HARDSHIP ............................................................................. 301

CHAPTER 7: CONCLUSIONS ................................................................................... 364

ADDENDUM A ............................................................................................................ 382

INDEX OF SOURCES................................................................................................. 433

bargained for.3 This ideal, is however, counterbalanced by a number of factors. As Sir

point of departure that specific performance is an exceptional, discretionary remedy. A

This principle was famously encapsulated as follows in Farmers’ Co-operative Society

possess a discretionary power to derogate from the consequences of a contract on

The proposed study problem has been investigated by a number of local

a comparative52 and historical nature.53 However, no recent in-depth South African

1 1 2 Historical and comparative overview54

The remedy of specific performance is a well-known example of divergence between

adequate remedy.63 It is suggested that this development could be informative in the

As mentioned above, the remedy of specific performance assumes an extensive field of

In Germany, parties to a contract as a matter of course are entitled to demand

Various international restatements of contract law also contain provisions explicitly

The CISG incorporated a largely unrestricted right to require performance,89 mirroring

1 1 3 Considerations relevant to the courts’ discretion

1 1 3 2 Personal service contracts

A contract involving personal service,107 for example, a contract of employment, has

In many instances, specific performance is denied where courts would be unduly

It is immediately apparent that the court refrained from engaging in a process of

114 Execution of orders for specific performance and the possibility of

The enforcement of an order for payment of a sum of money seems to be less

1 2 Purpose, motivation and significance of the study

According to Cockrell we cannot conclude that specific performance is the most

development of our law. It is submitted that these developments necessitate the

CHAPTER 2: HISTORICAL AND COMPARATIVE BACKGROUND

2 2 1 Specific performance of contracts in Roman law

cogi ad factum (“nobody can be compelled to perform an obligation to do”, as opposed

2 2 2 Specific performance of contracts in Roman-Dutch law

2 2 3 Reception of Roman-Dutch law in South Africa

2 3 Comparison: specific performance in selected national legal systems and

2 3 1 Specific performance in modern civil law, exemplified by German law and

2 3 1 1 Specific performance as the primary remedy in German law

The right to specific performance is traditionally the primary remedy of an aggrieved

2 3 1 2 Specific performance as the primary remedy in Dutch law

the obligation is of a highly personal nature.107 Non-performance of these obligations

2 3 2 Specific performance in common law: early development

inadequate in many circumstances to achieve justice between the parties.126 There

The common-law approach to the remedy of specific performance will now be

2 3 2 1 Specific performance as a secondary remedy in English law

i. Damages provide an adequate remedy;142