Editing Specific performance (section)

==Exceptional circumstances==
{{Contract law}}
An order of specific performance is generally not granted if any of the following is true:

* Specific performance would cause severe hardship to the defendant.
* The contract was [[unconscionable]].
* Money damages are an adequate remedy.<ref name="Dougan v Ley">{{cite AustLII|HCA|3|1946|litigants=Dougan v Ley |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1946/3.pdf (1946) 71 {{abbr|CLR|Commonwealth Law Reports}} 142] |courtname=auto}}.</ref><ref name="Loan Investment v Bonner">{{cite BAILII |litigants=Loan Investment Corporation of Australasia v Bonner |year=1969 |court=UKPC |num=33 |format=1}} {{cite NZLII |court=NZPC |num=1 |year=1969 |parallelcite=[1970] [[New Zealand Law Reports|NZLR]] 724 |courtname=[[Judicial Committee of the Privy Council|Privy Council]] (on appeal from New Zealand)}}.</ref>
* The claimant has misbehaved ([[unclean hands]]).
* Specific performance is impossible.
* Performance consists of a personal service <ref name="Patricks v MUA">{{cite AustLII|HCA|32|1998|litigants=[[Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia]] |parallelcite=(1998) 195 [[Commonwealth Law Reports|CLR]] 1 |date=4 May 1998 |courtname=auto}}.</ref>
* The contract is too vague to be enforced.
* The contract was terminable at will (meaning either party can renege without notice).
** Note that [[consumer protection law]]s may disallow terms that allow a company to terminate a [[consumer contract]] at will  (e.g. [[Unfair Terms in Consumer Contracts Regulations 1999]]<ref>(c)making an agreement binding on the consumer whereas provision of services by the seller or supplier is subject to a condition whose realisation depends on his own will alone, http://www.legislation.gov.uk/uksi/1999/2083/schedule/2/made</ref>)
* The contract required constant supervision.<ref name="CIS v Argyll">{{cite BAILII |court=UKHL |year=1997 |num=17 |litigants=Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd |parallelcite=[1998] [[Appeal Cases Law Reports|AC]] 1 |courtname=auto}}.</ref>
* Mutuality was lacking in the initial agreement of the contract.
* The contract was made for no [[consideration]].
* The contract at issue was void or unenforceable. The exception to this (in equity) is in relation to estoppel or part performance.<ref name="Goldsbrough v Quinn">{{cite AustLII|HCA|20|1910|litigants=Goldsbrough, Mort and Co Ltd v Quinn |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1910/20.pdf (1910) 10 {{abbr|CLR|Commonwealth Law Reports}} 674] |courtname=auto}}.</ref>
* Where an injunction to restrain an employee from working for a rival employer will be granted even though specific performance cannot be obtained. The leading case is ''[[Lumley v Wagner]]'', which is an English decision.<ref>{{cite BAILII |litigants=[[Lumley v Wagner]] |year=1852 |court=EWHC |division=Ch |num=J96 |parallelcite=(1852) 64 [[English Reports|ER]] 1209 |courtname=[[High Court of Chancery]] (England and Wales)}}.</ref>

Additionally, in [[England and Wales]], under s. 50 of the [[Senior Courts Act 1981]], the [[High Court of Justice|High Court]] has discretion to award a claimant damages ''in lieu'' of specific performance (or an [[injunction]]). Such damages will normally be assessed on the same basis as damages for breach of contract, namely to place the claimant in the position he would have been had the contract been carried out.