Remedy of Specific Performance - Supervision and Changing Trends
![handle is hein.journals/sjls1998 and id is 156 raw text is: Singapore Journal of Legal Studies
[1998] 150- 165
REMEDY OF SPECIFIC PERFORMANCE - SUPERVISION
AND CHANGING TRENDS
Cooperative Insurance Society Ltd v Argyll Stores (Holdings) Ltd
I. INTRODUCTION
UNDER common law, damages are generally the primary remedy for an
action involving an invasion of the plaintiff's contractual rights or a failure
by the defendant to perform obligations owing to the plaintiff. Although
damages have often been given as of right, monetary compensation cannot
possibly be expected to be the panacea for all such disputes.
Specific performance, on the other hand, has traditionally been viewed
as a secondary and discretionary remedy,' and the general perception is
that it is to be considered only when damages have been found to be
inadequate. In fact, there are certain categories of disputes where, because
of other countervailing factors, the courts are known to be unwilling to
award specific performance (regardless of the inadequacy of damages).
Contracts involving personal service come readily to mind since for this
category of cases the courts are wary of infringing upon the defendant's
personal liberties or of coercing the already-embittered litigants to work
together. Another frequently encountered category comprises cases where
the courts are ill at ease with the notion of defendants having to keep in
operation businesses that are no longer profitable.
An excellent example of a case that falls within the latter of the two
aforementioned categories is the recent Cooperative Insurance Society Ltd
v Argyll Stores (Holdings) Ltd.2 The dispute for the present case sparked
off when Argyll Stores, which controlled a chain of supermarkets throughout
In contrast to the civil law system where the plaintiff has the right to exact specific
performance as the primary remedy; see Szladits, Concept of Specific Performance in Civil
Law IV Am J Comp L 208,212, Dawson, Specific Performance in France and Germany
57 Mich L Rev 495, Jackson, Specific Performance of Contracts in Louisiana 24 Tulane
L Rev 400, and Kronman, Specific Performance 45 U Ch L Rev 351.
2 [1996] 3 WLR 27 (CA); [1997] 2 WLR 898 (HL).](ViewImageLocal?handle=hein.journals/sjls1998&div=13&collection=&method=preview&ext=.png&size=3)
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