SPECIFIC PERFORMANCE OF CONTRACTS. Prof. J. B. Ames. ENGLISH and American lawyers are so familiar with the jurisdiction of equity in enforcing the specific performance of con tracts, that it probably occurs to very few of them that there is anything extraordinary in this remedy of the courts of chancery. The doctrine of specific performance is, however, one of the paradoxes of legal history. Only in the United States and the British Empire, the two countries in which popular govern ment has attained its highest development, is it permitted so far to invade the liberty of the individual as to compel him specifically to perform his contracts upon pain of im prisonment. " Nemo potest pracise cogi ad factum," was a rule of the Roman law. In France, Germany, and presumably in the other European States, pecuniary compen sation is the sole remedy for a breach of contract.1 Even in England the practice of the chan cellors met with strenuous opposition from the common-law judges, and was finally es tablished only at a comparatively late pe riod. Mr. Spence, it is true, has expressed the opinion, to which Lord Justice Fry has added the weight of his authority,2 that "bills for specific performance of contracts for the sale of land are amongst the earliest that are recorded in the court of chancery." 3 But this opinion would seem to be erroneous. In its support these eminent writers cite a case of the time of Richard II.4 (1377- 1399). The bill alleged that the plaintiff, trusting in the defendant's promise to convey certain land to him, had paid out money in travel ling to London and consulting counsel, and 1 Fry, Specific Performance (2d ed.), 3. 2 Ibid., 8. 3 1 Spence, Eq. Jur. 645.
- 2 Cal. Ch. II. Two similar cases are reported : 1
Cal. Ch. XLI. and Y. B. 8 Edw. IV. 4, pi. 11. The other authorities cited by Mr. Spence are cases of uses.
prayed for a subpoena to compel the defend ant to answer of his " disceit." There is no allusion to specific performance; the bill sounds in tort rather than in contract; and its object was, in all probability, not specific performance but reimbursement for the ex penses incurred. Indeed, this probability becomes almost a certainty when it is re membered that equity at this time gave no relief even against feoffees to uses who re fused to convey to their cestuis que usent, and that the common law gave no action for dam ages for the breach of a parol promise. It is probable that the willingness of equity to give pecuniary relief upon parol promises hastened the development of the action of assumpsit. Fairfax, J., in 1481, advised pleaders to pay more attention to actions on the case, and thereby diminish the resort to chancery;1 and Fineux, C. J., remarked, in 1505, after that advice had been followed and sanctioned by the courts, that it was no longer necessary to sue a subpoena in such cases.2 Brooke, in his " Abridgment," adds to this remark of Fineux, C. J. : " But note that he shall have only damages by this [action on the case], but by subpoena the chancellor may compel him to execute the estate or imprison him ut dicitur." 3 Brooke died in 1558. This note by him and the following meagre report of a case in 1547,4 — " It is ordered that the defendant and his wife shall make an absolute assurance for the extin guishment of her right in the lands," if, in deed, this can be said to be in point, — seem to be the earliest allusions to the equitable doctrine of specific performance. Against these should be set the statement of Dyer, J., 1 2 8 4
Y. B. 21 Edw. IV. 23, pi. 6. Y. B. 21 Hen. VII. 41, pi. 66. Bro. Ah. Act. on Case, pi. 72. Carington v. Humphrey, Toth. 14.
