To what extent does property have to be ‘special and unique’ for an order of specific performance to be made? Consider the factors a court will take into account when making such an order, making sure you include any relevant case law or journal articles.

Essay Instructions:

To complete Part 1, you will need to draw on knowledge gained from Unit 2 of the module materials, together with Chapter 23 (on specific performance) of the module textbook (4th edition, Oxford University Press, 2020). You may also draw on your knowledge gained from Unit 1 of the module materials. The question requires consideration of the use of specific performance and how the courts decide whether to issue such orders. You should first consider explaining specific performance by using the module materials before embarking on your own independent research to gain further knowledge and understanding. What criteria do judges look at before making a specific performance order and more specifically orders of specific performance involving property? You will want to make use of Westlaw and Lexis+UK resources to locate relevant journal articles and cases, however, there are many other resources that may also be helpful in your research journey. Do remember however that the question requires analysis and discussion, so using excessive sources is unlikely to assist in answering the question appropriately. The essay requires you to identify relevant law, identify and analyse key principles of case law, and to discuss those in a short essay. As this is a level 3 module there is an expectation that the essay will follow the correct structure (introduction, a main body of discussion and a conclusion), with referencing completed in accordance with university guidance. Section 6.2 of the Law Undergraduate Guide provides definitions of words used in assessments: Law undergraduate guide: 6.2 Words used in assessments (open.ac.uk) and Section 6.1.3 provides guidance on essay structures: Law undergraduate guide: 6.1.3 Essay questions (open.ac.uk). If you would like further support and guidance with referencing and the development of your referencing skills, you might find it helpful to work through the Cite Them Right section of OU Library. Use all the 1000 words available to you to ensure a well-reasoned, succinct, coherent, well-structured and readable essay. A set of bullet points will not be acceptable. Remember also the essay must be written in the third person and in an appropriate academic style. The essay task requires some explanation of the law, which is likely to be descriptive. You should aim to go beyond mere description to include, where possible, critical analysis of equitable remedies as they apply within the context of the provided statement. At every stage of W302 you must demonstrate the skills of an independent learner and researcher, which means not simply describing the ‘how’ of the law but also the ‘why’.

Essay Sample Content Preview:

TO WHAT EXTENT DOES PROPERTY HAVE TO BE ‘SPECIAL AND UNIQUE’ FOR AN ORDER OF SPECIFIC PERFORMANCE TO BE MADE? CONSIDER THE FACTORS A COURT WILL TAKE INTO ACCOUNT WHEN MAKING SUCH AN ORDER Student’s Name Course Professor’s Name University City (State) Date Table of Contents TOC \o "1-3" \h \z \u Introduction PAGEREF _Toc180248784 \h 3Analysis of Property has to be 'Special And Unique' for an Order PAGEREF _Toc180248785 \h 3Context of Specific Performance, Legal Framework and Principles PAGEREF _Toc180248786 \h 3Case Law Analysis: Beswick v. Beswick [1968] AC 58 PAGEREF _Toc180248787 \h 4Criteria for 'Special and Unique' Determination PAGEREF _Toc180248788 \h 4Judicial Discretion in Granting Specific Performance PAGEREF _Toc180248789 \h 5Critical Analysis of Judicial Trends and Theoretical Perspectives PAGEREF _Toc180248790 \h 5Conclusion PAGEREF _Toc180248791 \h 6Reference List PAGEREF _Toc180248792 \h 7 Introduction This essay considers the criterion under which property must be considered 'special and unique' to entitle courts to order specific performance, an equitable remedy where money damages are inadequate to do justice. Specific performance is discussed as a particular instance of a legal principle throughout property law and a point where the division between property and contract law seems thin. It will be followed by a detailed exploration of how courts understand and apply the 'special and unique' criterion and comparative analysis of important case law. It is necessary to examine this to understand how such decisions affect contract enforcement in enforcing equitable justice in complex property transactions. The essay concludes by summarising the critical discussions and broad implications for the body of property law. Analysis of Property has to be 'Special And Unique' for an Order Context of Specific Performance, Legal Framework and Principles Specific performance is an equitable remedy that orders a party to perform its contract according to its terms rather than providing monetary damages to the other party. It is imperative in those instances where the subject matter of the contract is of such a singularly unusual nature that financial compensation is inadequate (The Open University, 2020a). In real estate transactions and deals involving rare or unique items, when there is no substitute, it is used for the aggrieved party to get the actual benefit he bargained for in the contract (The Open University, 2020b). As per Rickett and Grantham (2020), the doctrine presupposes the principle under which equity adopts as that which should have been done to safeguard the integrity of contracts via specific actions consented to by the parties. Considering the legal framework, when the property or service involved is 'special and unique', such that damage caused by non-performance cannot be repaired with ordinary damages, 'specific performance' is granted. The governing principles of specific performance include the case's uniqueness, balancing hardships between parties, and other public interests (Dagan and Heller, 2022). Therefore, The remedy is cautious; courts are rigorous in handling it to ensure no injustice or unfairness in enforcing it. Case Law Analysis: Beswick v. Beswick [1968] AC 58 The landmark case of Beswick vs. r. Ifor Jones. Pivotal to enforcing contracts serving specific objects that are unique and can not be sufficiently remedied ...

Updated on January 14, 2025

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