1

Richard and Damian Taylor. Contract Law Directions (2019 7 ed). p 337.

The question has arisen whether mutuality needs to have been present from the outset—from the time of entering into the contract—or only by the time of enforcing it. The nineteenth-century formulation (in Fry on Specific Performance) expressed the doctrine as requiring that the remedy of specific performance should have been potentially available to either party at the time the contract is made.

[Example] Mutuality from the outset

D agrees to grant a lease of a house to C in return for C’s promise personally to renovate the house. D’s promise could not be specifically enforced against D [1.] since [2.] D would not be able to get specific performance of C’s obligation to renovate (it being a personal obligation). Furthermore, following Fry, the objection of lack of mutuality would still persist even if C had already done the renovation because the mutuality had to exist at the time of formation of the contract.

  1. This is a typo right? This ought be C.

  2. I don't understand the emboldened phrase. Unquestionably this is a contract?

D's promise (grant of a lease) is consideration for C's promise to renovate, and C's promise is consideration for D's promise.

This example is readying the reader for this case in the bottom para. ibid.

This view was confirmed by the Court of Appeal in Price v Strange [[1977] 3 W.L.R. 943]. The trial judge held that specific performance of an agreement to grant an underlease of a flat could not be ordered against the defendant because specific performance could not have been ordered against the claimant who had contracted to repair and decorate the flat (following Fry’s approach). The Court of Appeal reversed this decision and granted specific performance of the underlease since the claimant had done the repairs and decoration until he had been prevented from doing so by the defendant, and he had promised to pay to the defendant the cost of completing the repairs he had not done. There was therefore no danger of the defendant being left high and dry after complying with the court’s order of specific performance.

2

I don't think there is a typo.

I think the main question is whether specific performance should be enforced against D, that is, whether D should be ordered to grant the lease to C. The trial court said no, reasoning that if they did so, then they should also enforce specific performance against C, i.e. ordering C to perform the renovations himself - and they won't do that because that is a personal obligation.

(It seems to be a standard tenet of law that specific performance is generally not used when "performance consists of a personal service". Wikipedia confirms this, though without explanation. I don't know exactly why this is the practice; maybe it would be a good separate question. I might speculate that courts feel that to order a person to perform a particular service would be a little too much like involuntary servitude.)

However, the Court of Appeals said that there was no need to order C to perform the renovations, because C had already done some of them and agreed to pay for the rest. Therefore the trial court's reasoning did not apply, and there was no problem with enforcing specific performance only against D, i.e. ordering D to grant the lease.

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  • Given that the most common form of a contract for personal services is an employment contract you are bang on as to the reason why specific performance won’t happen. – Dale M Nov 18 '19 at 12:03

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