oa Fundamina : A Journal of Legal History - Decreeing specific performance : a (Roman-)Dutch legacy
The remedy for specific performance is generally seen as a famous example of the divergence between the civil law and common law. Whereas the claim is readily available in continental European jurisdictions and viewed as a primary remedy of a contracting party, it is traditionally seen as a secondary action in English law: as an equitable remedy it is available only if damages do not provide adequate relief.
The origin of the divide between the continental and the English approach seems to lie in the reception on the continent of the learned law, the Roman-law based ius commune. Consequently, specific performance in South African law is described as a concept of a mixed legal system. On the one hand, its Roman-Dutch origin is reflected in the creditor's right to claim specific performance, irrespective of the obligation's source. On the other hand, this right to specific performance is not absolute, because judges enjoy a judicial discretion to decide in particular cases to refuse an order of specific performance. Here, an English common-law influence is discernable.
That the creditor is entitled to claim specific performance under South African law was already decided in 1882. In Cohen v. Shires McHattie and King Sir John Gilbert Kotzé CJ (1849-1940) stated that "by the well-established practice of South Africa, agreeing with the Roman-Dutch law, suits for specific performance are matters of daily occurrence". At the same time, common-law rules "crept in insidiously and as it were almost by accident, so much so that the grounds for refusing specific performance listed by some academic writers in the early part of the twentieth century were virtually the same as those applied by English Courts". In 1904 Innes CJ formulated the legal position as follows : "Now a plaintiff has always the right to claim specific performance of a contract which the defendant has refused to carry out, but it is in the discretion of the court either to grant such an order or not." Thus judgements expressly referred to English authorities in support of the view that specific performance should not be ordered to enforce contracts of employment, nor in cases where damages would be an adequate remedy, or where specific performance would be unjust.
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