When a contract is breached, the aggrieved party's first instinct is usually to demand that the other side simply do what they promised. But Singapore law does not make this so straightforward. Specific performance is not readily granted and is usually reserved for exceptional cases. In most disputes, the courts regard damages or monetary compensation as a sufficient remedy. Specific performance, which compels a defaulting party to actually carry out their contractual obligations, belongs to the arsenal of equity, and with equitable remedies comes judicial discretion.
This article examines the principles Singapore courts apply when deciding whether to grant or refuse specific performance, illustrated through key case law.
What Is Specific Performance?
In common law, specific performance is a "decree by the court that requires the party against whom it is directed, to do what he promised to do under a contract." Created and developed by the English Court of Chancery, this equitable remedy is a manifestation of the maxim that equity acts in personam allowing a court of equity to order parties to perform their contractual obligations.
Unlike a right to damages, which arises automatically upon breach, specific performance is an equitable remedy that is only given at the discretion of the court. It is not available "as of right," and is typically only awarded if damages are deemed inadequate for the aggrieved party.
This discretionary character is the foundation of everything else. It means that even where a valid, enforceable contract exists and a clear breach has occurred, the court may still decline to compel performance. The question is always whether justice demands the remedy, not merely whether the claimant technically qualifies for it.
When Courts Will Order Specific Performance
- Inadequacy of Damages
The cornerstone requirement is that monetary compensation must be an inadequate remedy. The court will not grant this order in every breach of contract suit. It is typically only granted when monetary compensation is not considered an adequate remedy to the breach of contract. Examples when an order of specific performance is granted include contracts that involve the sale and purchase of a house, land, limited-edition goods, or art sculptures.
Land and real property sit at the heart of this doctrine. Because each piece of land is considered unique, damages are presumed to be an inadequate substitute for the thing bargained for. A buyer who contracted to purchase a specific apartment on Orchard Road cannot simply be "made whole" by a cheque, the uniqueness of the property makes the loss non-replicable in monetary terms. Singapore courts have consistently followed this reasoning.
- Specific or Ascertained Goods
Beyond real property, there are express statutory provisions that allow the court to exercise its discretion to grant specific performance for contracts for the provision of goods and services. Section 52(1) of the Sale of Goods Act, 1979 provides for specific performance as a remedy for a breach of contract to deliver "specific" or "ascertained" goods. According to the Sale of Goods Act, "specific goods" are goods that have been identified and agreed on at the time a contract of sale is made. The court has also clarified that the goods in question must also be in existence at the time of the contract for specific performance to be available, even if those goods are not yet within the seller's ownership.
- Compelling Mediation
One of the most striking recent developments is the Singapore High Court's willingness to use specific performance to enforce dispute resolution obligations. In Maxx Engineering Works Pte Ltd v PQ Builders Pte Ltd[1], the Singapore High Court held that it was just and equitable to order specific performance to compel the counterparty to perform its contractual obligation to refer the dispute to mediation.
The court's reasoning was grounded squarely in the inadequacy of damages. Among the various factors considered in determining whether an order for specific performance was warranted, the Court found that damages would have been an inadequate and unsuitable substitute for the bargain for mediation, and that there was no evidence that substantial hardship would be caused to PQ Builders or that mediation was a futile exercise.
When Courts Will Refuse Specific Performance
- Damages Are an Adequate Remedy
The principal factor affecting the court's discretion is whether damages would be an adequate remedy, a threshold requirement for specific performance. Where damages are sufficient, it is "rarely just and equitable to order specific performance." This is the most common reason courts refuse the remedy.
The adequacy of damages depends on the specific facts of each case. However, where contracts contain liquidated damages clauses, pre-determined compensation amounts for breach, this may constitute evidence that the parties themselves regarded damages as adequate, making specific performance less likely. Importantly, a claim of under-compensation alone is generally insufficient to justify specific performance. The inadequacy must be fundamental to the nature of the bargain.
- Severe hardship to Defendant
Even where damages are inadequate, the court will refuse specific performance if it would result in severe hardship to the party compelled to perform. This applies even in property sales cases. In Patel v Ali[2], where after contracting to sell her house, the seller (Mrs. Ali) suffered a series of tragic life events. She was diagnosed with bone cancer, had her leg amputated, her husband was sent to prison, and she was left with three young children. She spoke little English and relied entirely on the daily physical support of nearby relatives and neighbors. The buyer sued for specific performance to compel her to vacate and convey the house. The English court refused, ruling that forcing her to move out of the property and away from her essential support network would cause hardship amounting to "positive injustice." Instead, the court left the buyer to a remedy in damages.
- Contracts Requiring Continuous Supervision
Singapore courts are reluctant to order specific performance where enforcement would require prolonged or continuous judicial oversight. This concern is particularly acute in contracts for personal services, construction agreements, or ongoing operational obligations.
The seminal English case of Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd[3], widely followed in Singapore, established that courts should generally refuse specific performance of obligations requiring continuous supervision. As Lord Hoffmann explained in the House of Lords, "the most frequent reason given in the cases for declining to order someone to carry on a business is that it would require constant supervision by the court." The term "continued supervision" does not envisage a judge literally supervising execution, but rather the possibility of the court having to give an indefinite series of rulings on applications by the parties as to whether there had been a breach of the order; a situation regarded as undesirable.
- Where the Plaintiff Has Acted Inequitably
As an equitable remedy, specific performance is subject to the principle that "he who comes to equity must come with clean hands." If the plaintiff has acted unconscionably, engaged in sharp practice, or otherwise behaved inequitably, the court may refuse to grant the remedy.
In EC Investment Holding Pte Ltd v Ridout Residence Pte Ltd[4], the court considered the conduct of the parties in determining whether specific performance should be awarded, demonstrating that judicial discretion extends to evaluating the overall fairness of granting the remedy. The Singapore Court of Appeal in EC Investment highlighted two categories of unclean hands:
(a) cases where the applicant has materially misled the court or abused its process, and
(b) cases where the grant of specific performance would enable the applicant to achieve a dishonest purpose.
Strategic Considerations: Election of Remedies
A common concern for commercial litigants is whether seeking specific performance forecloses their ability to later claim damages or terminate the contract. The Singapore Court of Appeal addressed this directly.
In CSDS Aircraft Sales & Leasing Inc v Singapore Airlines Limited[5], the court held that SIA's original writ claiming specific performance was not an unequivocal abandonment of its common law or contractual rights to terminate. Because the alternative claim for damages was more than merely ancillary to the specific performance claim when construed in its proper context, SIA was entitled to keep its options open at least until it unambiguously elected between remedies by subsequently amending its pleadings.
Conclusion
Specific performance occupies a distinctive place in Singapore's remedial landscape. It offers the powerful ability to compel actual contractual performance rather than mere monetary compensation, but it remains an extraordinary remedy granted only in exceptional circumstances.
For commercial parties, the key takeaway is clear: while specific performance can be a potent tool in the right case, it should not be assumed. The prudent approach is to draft contracts with clear remedies, understand the nature of the subject matter, and seek legal advice early when breaches occur. In most cases, damages will remain the default and preferred remedy — but for those rare situations where money truly cannot buy what was promised, specific performance remains Singapore's most compelling equitable remedy.
Maxx Engineering v PQ Builders Pte Ltd [2023] SGHC 71 ↑
Patel v Ali [1984] 1 All ER 978 ↑
Co-operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1 ↑
EC Investment Holding Pte Ltd v Ridout Residence Pte Ltd [2011] SGCA 50 ↑
CSDS Aircraft Sales & Leasing Inc v Singapore Airlines Limited [2022] SGCA(I) 3 ↑