Civil Procedure

Specific Performance

A court order compelling a party to perform their contractual obligation as agreed, rather than merely paying damages for breach. An equitable remedy in South African law.

Legal Definition

Specific performance is a primary remedy available to the innocent party when a contract is breached. Instead of accepting damages, the innocent party can apply to court for an order compelling the breaching party to actually perform what they agreed to do. South African courts have discretion to refuse specific performance if it would cause undue hardship, be impossible, or require ongoing judicial supervision. It is commonly awarded for unique property, share transfers, and specific obligations.

📖 Constitutional / Statutory Basis: Section 34 (access to courts)

Practical Example

A seller refuses to transfer a unique piece of land they contracted to sell. The buyer sues for specific performance — a court order compelling the seller to sign the transfer documents.

Frequently Asked Questions

Is specific performance always available when a contract is breached in South Africa?

Courts have a discretion. Specific performance may be refused if: performance is impossible; it requires continuous supervision; it would constitute personal service (courts avoid compelling personal service as it approaches servitude); or it would cause the defendant disproportionate hardship.

What is the difference between specific performance and a declaratory order in South Africa?

Specific performance compels a party to do something. A declaratory order merely declares the legal rights of the parties without ordering anyone to act. Specific performance is enforced through contempt of court; a declaratory order is not independently enforceable.

Related Terms

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