Chapter 12 Guidance for end of chapter questions

Specific remedies

Question 1

Question

Abi, a talented musical diva, agrees to play a violin piece at a concert organized by Music Box Ltd. The contract between Abi and Music Box states: 'the Performer will perform exclusively for the Promoter during the Term of this agreement.'

The definitions at the beginning of the agreement define 'Performer' as Abi, 'Promoter' as Music Box Ltd and the 'Term' as 1 November until 14 November.

The first concert takes place on 1 November and Abi plays brilliantly but, just as she is about to start the final movement of the piece, she gets up, takes a bow and hurries off-stage. She asks David, the Chief Executive of Music Box, for her money and he says 'Get lost, you're getting nothing. You only played half of the music!' Abi demands her money, claiming that she played her 'interpretation' of the piece and she would sue Music Box if they did not pay her.

Later in the evening, David finds out that Abi has played that same evening for a rival promoter and is scheduled to play for them every night for the next two weeks. David wants to keep Abi for future performances because he has sold lots of tickets on the basis that she is playing, but he does not want her to play for his rival, who has a concert hall across the road from his, because he thinks that this would cause a drop in the sale of tickets on the night.

Advise David.

Answer

There are three main issues which arise in this problem question:

  1. Is Music Box liable to pay Abi for her performance?
  2. Can Music Box compel Abi to perform in the future?
  3. Can Music Box prevent Abi from performing for the rival promoter?

Is Music Box liable to pay Abi for her performance?

  • You are not given any details for how Music Box will pay Abi: is there a separate agreement for the services provided by Abi with the contract described in the question limited to restricting Abi from performing for anyone else?
  • Is there an implied or express agreement to pay Abi a certain or reasonable sum of money? Is this obligation severable so that there is an obligation to pay for each concert performed or is Abi obliged to play all two weeks' worth of concerts before being entitled to the money?
  • If the obligation is severable for each concert, can Abi claim that she performed the obligation in relation to the first concert even though she missed out the last movement? Given Abi's commitment later that night it will be difficult to argue that she played the piece in full and had artistic reason to omit the last movement - likely that she gave partial but defective performance because the omission was of a significant part of the recital (e.g. as in Bolton v Mahadeva (1972)), compare to if she had missed out a single note.
  • Don't forget that Abi herself is in breach of contract if you conclude that she did not give full performance. Consider what loss Music Box has suffered and what it may claim. Also, has Abi benefited Music Box by giving part of a concert - could she have a claim in unjust enrichment?

Can Music Box compel Abi to perform in the future?

  • Music Box would need to apply to the court for an order of specific performance in order to compel Abi to perform until 14 November
  • It is highly unlikely that the court will order Abi to perform her personal service contract

Can Music Box prevent Abi from performing for the rival promoter?

  • Music Box would need to apply to the court for an injunction in order to prevent Abi from perform for a rival between 1 November and 14 November
  • Injunctions are not generally granted if it would force a person to work for the Claimant (e.g. Page One Records Ltd v Britton) but you may like to argue that the short term (two week) nature of the contract means that Abi would not be forced to work for Music Box (although she would be tempted to as that is the only way she could earn any money those two weeks)
  • Also, a two week restriction on Abi performing for other promoters may be seen as reasonable (and hence the courts are more likely to exercise their discretion) as it is a necessary and proportionate way to protect Music Box's interest in Abi's concerts under her contract with them (i.e. it protects their exclusive right to Abi; if a customer wants to see Abi then he has to come to Music Box's concert). Compare to the injunction granted in Warner Bros Inc. v Nelson (1937) to protect the Claimant's films from devaluation as a result of Bette Davis appearing in rival films.

Question 4

Question

Specific performance should be the primary remedy for breach of contract. Discuss.

Answer

This is how you might plan your essay, paragraph by paragraph (take about 5-10 minutes for this in an exam, depending on how long you have to answer the question):

  • Paragraph 1 - Introduction: brief outline of the current law. The questions asks should specific performance be the primary remedy and so you should focus on this normative question, but you cannot sensibly do this until you have introduced the current law.
  • Paragraph 2 - Justification for the current law. By explaining why damages are currently the primary remedy for breach of contract you introduce reasons against the statement posed.
  • Paragraph 3 - Is this a compelling justification? Here you can attack the current position in order to produce a balanced argument.
  • Paragraph 4 - How can the position be improved to address your criticisms?
  • Conclusion - Wrap up what you have argued in a short neat one or two sentence paragraph. It's good if this can relate to your introduction so that the essay has come full circle.

Paragraph 1 - Current Law

Primary remedy is damages - aim is to put C in position as though contract performed (protect expectation interest) - limits to this e.g. duty to mitigate loss and remoteness rules. Specific performance is secondary remedy available at courts discretion - limited to where damages are inadequate - other limits e.g. personal contracts, supervision, mutuality, etc.

Paragraph 2 - Justification

Two reasons:

  1. Damages encourage efficient breach e.g. breach contract and provide service to person who values service more.
  2. Damages contain duty to mitigate loss so C encouraged to put himself in the position as though contract performed - parties move on quickly from a breach - specific performance encourages C to do nothing and rely on court to bring him to position of full performance.

Paragraph 3 - Compelling justification?

Not really - aim of damages is to put C in position as though contract performed but the most obvious way of doing this is to order specific performance - currently damages do not accurately compensate lost performance even if they do provide efficient and quick solution to breach.

Paragraph 4 - Improvements

Damages need to match performance more accurately - e.g. 'consumer surplus cases' Ruxleygive cost of cure to more accurately reflect performance consumer bargained for? Skinner already gives damages for non-pecuniary loss - more accurately compensates for lost performance.

Paragraph 5 - Conclusion

Aim of contract law to protect performance - damages appropriate as primary remedy because of incentive provided by duty to mitigate and efficient breach theory - despite specific performance being the more obvious choice for protecting performance.