Specific performance is an order of the court which compels a party to execute a contract according to the precise terms agreed upon or substantially so that under the circumstances justice will be done between the parties. The court will look at the validity of the contract, its enforceability, the mutuality, and any defences.

For a contract to be enforced, it must be valid. There must be offer, acceptance, consensus and consideration. Equity does not assist a volunteer, and will not enforce a contract which does not have any consideration: Jeffreys v Jeffreys 41 ER 444. Nor will equity enforce a contract where the terms are so vague and imprecise that it cannot determine what it must order each party to perform: Joseph v. National Magazine Co Ltd [1959] Ch 14

In the present case, there are two contracts. In the first, Pat agrees to provide nursing services, and Lee to convey the house within a reasonable time. In the second, Pat further agrees to pay the legal fees associated with the conveyance. Both contracts have offer and acceptance and consideration. The expressions ‘nursing services’ and ‘reasonable time’ may seem vague. The former does not seem to have been at issue between the parties. As for the latter, equity is more indulgent than the common law in contracts where time is not stated to be of the essence. This principle is enshrined in our Property Acts (e.g., Barbados Property Act Cap 246 s 48). The Court will consider what is reasonable having regard to all of the circumstances of the case.

The Statute of Frauds, reproduced in the Property Acts of our various territories, (e.g., s.4 of Trinidad Conveyancing and Law of Property Act, Chap 56:01, s47 of Barbados Act, etc) provides that no contract for the sale of land may be enforced unless it is in writing and signed by the party to be charged or someone authorized by him. The Acts further state that this rule does not affect the doctrine of part performance. Note that the position is different in the UK where the doctrine of part performance no longer applies. [Ed: so don’t expect to find it in the most recent editions of the textbooks!]

Part performance is an equitable principle that allows a court to recognize and enforce an oral contract despite its legal deficiencies. It allows a party to establish the existence of a contract by showing his execution of the contract’s requirements.

The traditional test for being able to enforce an alleged oral agreement concerning land so as to avoid application of section 4 is the test found in the 125 year old House of Lords decision, Maddison v. Alderson (1883), 8 App. Cas. 467. It must be shown that the acts of the person seeking to enforce the alleged oral agreement were, in the words of Lord Selbourne L.C., "unequivocally, and in their own nature referable to some such agreement as that alleged." This is a very tough test to meet.

That strict test was relaxed considerably in 1976, with the House of Lords decision in Steadman v. Steadman, [1976] A.C. 536. In that case, the House of Lords held that the acts of part performance necessary for enforcement of an oral agreement need refer only on the balance of probabilities to some contract to which the claimant was a party. The Steadman version of the doctrine of part performance is so lax that some commentators said it virtually repealed section 4 of the Statute of Frauds.

In Maddison, an elderly gentleman promised his housekeeper that he would leave her a life interest in his property if she continued to work for him without wages. She did so, but he failed to leave her the life interest. The Court said that while her actions had proved the existence of some contract, they did not prove the existence of the alleged contract for land. In Steadman, a husband and wife had a "divorce package". They agreed that the husband would immediately pay arrears in maintenance, and pay a future sum, and the wife would transfer her share in the house to him. The husband paid the arrears, his lawyers explained the terms of the contract to the trial judge, and his lawyers prepared the conveyance for the wife to sign. The Court held that notwithstanding that the husband’s only act was to pay a sum of money, nevertheless, having regard to all of the circumstances, he had proved on the balance of probabilities that the contract existed.

A plaintiff must meet three requirements:

1.His acts must be in performance of the contract. It is not necessary for the contract to specifically require or authorize the act: Millett v Regent [1975] 1 NSWLR 62.

2.The act must involve a change of position on the part of the plaintiff such that he would be unfairly prejudiced if the other party were to take advantage of the absence of written evidence:

3.The plaintiff’s acts must be referable to the alleged contract.

In the present case, there is no memorandum of the agreement signed by Pat or Lee. The contract is therefore unenforceable in law. It will only be enforceable in equity if there are sufficient acts of part performance. Does Pat meet the requirements?

Pat has moved into Lee’s house and performed her nursing duties in accordance with the terms of the first contract. Even under the ‘relaxed’ rule of Steadman, these acts alone might not be sufficient acts of part performance. Although her acts are in performance of the contract, and she has changed her position, yet her acts are not really referable to the alleged contract since we are told that she has moved into the house merely for the purpose of more efficiently carrying out her duties. These acts may be therefore be referable to any contract for service, and not necessarily a contract for land.

Under the second contract, however, Pat has paid the necessary fees and the judge has confirmed the terms of the agreement with both parties. This is very similar to Steadman and having regard to all the circumstances, the Court should find that the second contract, and hence the first, have been sufficiently proven.

The contract for the conveyance of the property is therefore enforceable in equity.

Specific performance will only be granted if a contract is mutually enforceable at the time of hearing: Price v Strange [1978] Ch 337. Equity would not generally compel one party to perform his obligations if it could not also compel the other to do so. Thus, a minor would not be able to specifically enforce a contract since the other party would not be able to seek the same remedy against him. The Court will consider the obligations which remain to be performed under the contract.

Equity will not enforce a contract if to do so would result in compelling the defendant to maintain a personal relationship with the plaintiff: Giles v Morris [1972] 1 All ER 960. Since the time for mutuality is the time of hearing, if the remaining obligations under the contract involve personal service, then equity will not grant specific performance.

In the present case, this is exactly the situation. The contract requires Pat to nurse Lee until Lee’s death. This requires the two women to maintain a close personal relationship. Because the contract would be unenforceable at Lee’s request, under the doctrine of mutuality, it cannot be enforced at Pat’s request. Specific performance would therefore not be ordered. Pat will therefore have to seek the legal remedy of damages.

Defences include conduct of the plaintiff, hardship and laches.

Conduct of the plaintiff involves the principle that ‘he who comes to equity must come with clean hands’. The plaintiff must not have breached his own obligations under the contract: Dering v. Earl of Winchelsea (1787) I Cox 318. There is no evidence that Pat has breached any of her obligations, so this defence would not be available to Lee.

An order for specific performance will be refused if such an order would result in

unconscionable hardship upon the defendant, e.g., Patel v Ali [1984] Ch 283. In the present case, there is nothing to suggest that an order for specific performance would cause undue hardship on Lee.

Equity will not enforce a contract where there has been delay by the plaintiff such as to prejudice the plaintiff: Lamshed v Lamshed (1963) 109 CLR 440. In the present case, Pat has waited for three years before commencing legal action. Given that there was no time stipulation in the contract, and that there has not been any prejudice to Lee, this delay cannot be used by Lee as a defence.

Notwithstanding the lack of defences available to Lee, nevertheless specific performance will not be granted because of the lack of mutuality. Equity will not enforce the contract because it requires further personal services on the part of Pat, and for Pat and Lee to main a personal relationship. Pat must therefore be content with her legal remedy – damages. At the very least, the damages will include compensation for her nursing services and reimbursement for the fees paid.