Specific performance is a court order requiring a party to fulfill their contractual obligations. It is a discretionary remedy granted when monetary damages are inadequate. Certain types of contracts, such as those involving land or unique goods, are more likely to receive specific performance. Parties can generally contract out of specific performance by including damages provisions or defenses to the remedy. However, courts may scrutinize such provisions between parties with unequal bargaining power.

1. SPECIFIC PERFORMANCE
ISSUE(S)
Is it legally possible for parties to contract out of specific performance?
THE LAW
Specific performance is an order of the court requiring the defendant to carry out his obligations under
an instrument (contract) according to its terms. It is a discretionary remedy.
Specific performance as a general rule is granted where the common law remedy of damages is
inadequate. If damages will put the plaintiff in the position where hewould have been in had the
instrument/contract been performed, equity will not intervene and thus specific performance will not
be granted.
There are however instances where the court will decline to grant specific performance even though the
damages awardable are inadequate. Here the court will be taking into account special circumstances
surrounding a case, inter alia, the conduct of the plaintiff that may disentitle him to the remedy of
specific performance. This is the discretionary nature of equitable remedies. Much as the court has that
leeway, it is notable however that discretion shall only be exercised under well settled principles.
Further and as a general rule the award of specific performance is available only to parties to a contract;
those who can be sued or sue for specific performance. However the exception is if it is shown that a
third party involved in the transaction is not a bonafide purchaser for value without notice, that is, he
has contributed to the breach by one party, in which case he can be enjoined as aparty in such
proceedings.
Specific performance is granted for enforcement of positive contractual obligations. The party in breach
of the obligations imposed on him by a contract will be ordered to take positive steps to remedy a
wrong or to do something that he has failed to do. It follows therefore that matters for specific
performance must be heard and determined before specific performance is granted.
CONTRACTS THAT ARE SPECIFICALLY ENFORCEABLE.
Contracts related to land. It is admitted in equity that damages will be inadequate compensation to a
purchaser, mortgagee, charge etc when the subject matter of dispute is land. The uniqueness of land

2. places it at a privileged position and thus any contract as long as it relates to land is specifically
enforceable.
Contracts related to personality/chattels of unique value are specifically enforceable. It must be
shown that the chattel is a rare commodity or of unusual beauty and that damages will be inadequate as
compensation. If the article/chattel is an ordinary article of commerce, then specific performance will
not be ordered.
Contract to pay money to a third party1
will ordinarily attract the award of specific performance. In
such circumstances the discretion of the court is checked.
Contract to secure loan and money is lent before mortgagor executes the mortgage deeds calls for
specific performance. In a situation like this the mortgagee can obtain an order of the court ordering the
mortgagor to execute the instrument. Usually the banks will rely on the loan agreement as there is a
clause in the loan agreement that the mortgagor when called upon to do so by the mortgagee shall sign
the mortgage. Default therefore on the part of the mortgagor cannot be countenanced and specific
performance will be ordered as against him.
Where a contract is with a company to take up and pay for debentures, the contract may be
specifically enforceable2
.
CONTRACTS THAT ARE NOT SPECIFICALLY ENFORCEABLE.
A contract requiring constant supervision is not specifically enforceable. The rationale is that equity
does not act in vain and accordingly the court will be reluctant to grant specific performance if the
contract requires constant supervision; the court may find it difficult to ensure that the contract is
supervised.
The limbs of contracts falling under this category are contracts for building. As a general rule specific
performance will not be granted in respect of a contract to build or repair. However the courts have
1
Beswick v Beswick [1968] AC 58
2
Section 94 of the Companies Act, cap 486 Laws of Kenya.

3. developed in-roads into this general rule where three basic conditions are met3
: firstly, the building plan
must be sufficiently defined by the contract (by providing detailed building plans) and the builder must
have provided everything; secondly, the plaintiff must have substantial interest in the performance of
the contract such that damages would not compensate him for the defendant’s failure to build; thirdly,
the defendant must be in possession of the land so that the Plaintiff cannot employ another person to
build without committing a trespass.4
Contracts involving personal skill are not specifically enforceable. The rationale is that the court will be
unwilling to decide subsequently applications that the contract has not been properly performed. These
contracts involve personal service and once an employee has fallen out of favour of his employer, it will
be impracticable to grant specific performance since that will amount to forcing a person to remain in
the relationship of employer-employee when there is an indication that they no longer want to continue
with the relationship5
.
Contracts lacking mutuality. The rule is that where specific performance is available to one party, it
must be available to the other party. The remedy must be available to both the seller and the buyer and
either party can sue or be sued under contract. therefore, specific performance cannot be ordered
against a person lacking capacity because of lack of mutuality.
However, there are certain contracts that may be specifically enforced in part (part-performance). If
there exists matters that can be isolated from the contract (severance of contract), then they can be
severed and enforced specifically. Even so, if those matters are actually dependent on one another, then
severance is not possible and consequently the contract cannot be enforced in part. If in the contract,
certain matters may be legal while others are illegal, so long as they are not dependent, they can be
severed and the legal matters specifically enforced.
3
Wolverhampton Corp v Emmons [1901] 1 KB 515: Here the plaintiff acquired land for an improvement scheme
and sold part of it to the defendant, who covenanted to demolish houses on it and build new ones. The demolition
was carried out and plans for new houses approved. The defendant then refused to continue. It was held that
specific performance would be ordered on grounds that: the defendant's obligations were precisely defined by the
plans; damages would be inadequate because the defendant had possession of the site; and, the plaintiff could not
get the work done by employing another contractor.
4
Where the building is to take place on the defendant’s land as opposed to the plaintiff’s land. In the latter
damages will be adequate and the plaintiff can always hire another contractor and if there be extra cost that are
incurred he can always ne ameliorated by an award of damages but in the former, that is will constitute trespass
5
“The courts are bound to be jealous lest they should turn contracts of service into contracts of services.”

4. Agreements without consideration
An agreement where one party has not provided consideration will not be specifically performed. This is
because equity will only come to the aid of a bona fide purchaser for value without notice as opposed to
a volunteer.
OTHER FACTORS TO CONSIDER BEFORE GRANT OF THE EQUITABLE REMEDY OF SPECIFIC
PERFORMANCE/ DEFENCES.
a) Hardship. It is not mere inconvenience but hardship that amounts on injustice6
. The hardship
could either be to the plaintiff, the defendant or to a third party. Worth to note that financial
inability to complete the contract as hardship is insufficient for one to escape specific
performance.
b) Where there is no effective contract—prerequisites of contract have not been met.
c) The absence of writing for land transactions—section 3 (3) of Law of Contract Act is echoed
here.
d) Where the plaintiff is guilty of some conduct that would disentitle him from getting the remedy
of specific performance.
e) Fundamental mistake. If the mistake is of such a nature that it precludes the consensus ad
idem, it will be sufficient rationale to ground refusal of specific performance to a deserving
party. Specific performance will still be unavailable whether caused solely by the defendant or
not or whether in any way induced by the plaintiff if granting specific performance will occasion
hardship amounting to injustice.
f) Misrepresentation may also remove the remedy of specific performance from the ambit of the
party affected, so does misdescription.
g) Laches. Should a party be guilty of laches by sleeping on his rights, the courts may most likely be
unready to grant specific performance.
h) Illegality. If performance of a contract will occasion or lead to a perpetuation of an illegality, the
courts will not order for specific performance.
i) Defective title. If the title sought to be conveyed/transferred is defective, the courts may not
order for specific performance.
APPLICATION OF THE LEGAL PRINCIPLES THE ISSUE IN POINT.
In summary, the whole question will turn on one fundamental point, what is the nature of the
contract the parties intend to enter into, is it one that is specifically enforceable or not. If the
answer is in the negative, then the parties should examine whether the contract still falls under
6
PATEL V ALI (1983) Ch. 283

5. the territory of exceptions to the general rules. If not, specific performance will not pose any
problem since the courts will not award it anyway. Put slightly differently, if the contract is
generally unenforceable specifically but falls within the exceptions, the implication is that it is,
in effect, enforceable and attracts specific performance as a remedy.
If the answer to the prefacing question, that is whether the contract is specifically enforceable
is in the affirmative, or if the contract falls within the exceptions to the generally unenforceable
contracts, the parties may:
a) Opt to give a provision for damages as sufficient compensationin lieu of specific
performance in case of default of either party. My view is based on the fact that since
the court shall be looking at all the surrounding circumstances, it is highly probable that
it shall find specific performance as an inappropriate remedy in the face of definite
provision for damages. Besides, courts give effect to contractual obligations as
contained in an instrument; they don’t write contracts for the parties.
b) Another way addressing the issue is by bringing the foregoing ‘defences to specific
performance’ within the domain of the contract. The contract shall provide explicitly
that ‘’specific performance may not be available to either party in case of …then
enumerate the above defences”.
c) Alternatively, include a provision in a paragraph dealing with breach of the obligations
to the effect that….provided that it shall be a defence for a party in breach of the
conditions/obligations to show that….then here enumerate the above points.
It is also necessarily for the parties to bear in mind and interrogate issues of bargaining power
vis a vis consumer protection especially under the evolving jurisprudence on consumer
protection.

6. CONCLUSION
It is foreseeable that the court may frown at explicit provisions that bars specific performance
especially where the parties do not have equal bargaining power and to the extent that the
courts may feel that such provision is one-sided, doubts may arise as to how the courts will
address this issue. Rather than going this uncharted paths, I would propose the adoption of the
above alternatives.