Remedies - Scottish Construction Contracts - page 256

andcontractor.hecourtsinEnglandhavemadeitclearthattheywillnotenforce
an agreement for two people to live peaceably under the same roof, see hompson v.
Park (1944). They have also expressed the opinion that a repudiatory breach cannot
be ignored where it can be shown that the innocent party has no legitimate interest
in performing the contract, provided that damages would be an adequate remedy
andkeepingthecontractalivewouldbeunreasonable,see Ocean Marine Navigation
Ltd v. Koch Carbon Inc ('The Dynamic') (2003). The rationale behind this is identical
to that identified by Lord Reid in White & Carter (Councils) Ltd .Amultitudeof
practical problems would arise if the courts compelled performance.
In these circumstances, the authors respectfully suggest that the obiter comments
of Lord Reid in White & Carter (Councils) Ltd should generally apply in relation to
building contracts and the innocent party's right to insist upon performance limited.
Support for this proposition is to be found in the case of London Borough of Houn-
slow v. Twickenham Garden Developments Ltd (1970). In essence, the innocent party
may be forced to accept a repudiation and rescind the contract, see Decro-Wall Inter-
national SA v. Practitioners in Marketing Ltd (1971) and Ocean Marine Navigation
Ltd . The nature of building contracts is such that the option to ignore an employer's
repudiation may not be one that is open to a contractor.
10.3 Specific implement
When parties enter into a contract, they each undertake certain obligations. In Scot-
land, it is presumed that contractual obligations will be enforced by the courts, unless
there are considerations which make implement impossible or unjust, see Stewart
v. Kennedy (1890) and Beardmore v. Barry (1928). The remedy open to the inno-
cent party to compel performance of contractual obligations by the party in breach
is known as specific implement.
As with rescission, the innocent party, in most circumstances, has a choice. Either
theycaninsistupontheirentitlementunderthecontract,ortheycanseekdamagesfor
the breach, see Holman & Co .v. Union Electric Co . (1913). Damages are considered in
Section 10.4. It will, however, always be at the discretion of the court as to whether the
remedy of specific implement or that of damages is the appropriate one, see Graham
v. Magistrates and Police Commissioners of Kirkcaldy (1881). Specific implement is not
anappropriateremedyineverycase.Itisnotavailableinrespectoftheenforcementof
a party's monetary obligations under a contract, see White & Carter (Councils) Ltd v.
McGregor (1962).Itisalsoaninappropriateremedywhereperformancewouldrequire
the party in breach to become a partner in a commercial undertaking, see Pert v. Bruce
(1937). It is an inappropriate remedy where performance is impossible, see McArthur
v. Lawson (1877). There are a number of other instances in which specific implement
has been held to be inappropriate. A more detailed examination of these is beyond
the scope of this topic.
The issue of specific implement in the context of building contractsis a difficult one.
It raises similar issues to those that arise in relation to rescission. In London Borough
of Hounslow v. Twickenham Garden Developments Ltd (1970), it was argued on behalf
of the borough that the contract (which incorporated the RIBA conditions) was not