Учебный год 22-23 / The Law of Obligations

praetor to grant him an action; the formula of this action contained the programme of litigation, i.e. the sum total of all matters which the iudex had to investigate in the second stage of the proceedings and which thus determined his decision. As far as that decision was concerned, there were only two alternatives: condemnation or absolution. All formulae ended with the stereotype order (to thejudge) ". . . condemnato, si non paret, absoivito".152 In the latter case the plaintiff lost his claim completely.153 But what did he ultimately get if the defendant was condemned? Where a specific sum of money (certa pecunia) was owed, it was, of course, this sum of money which became the object of the condemnation: "Si paret Nm Nm A" A° sestertium decem milia dare oportere, iudex Nm Nm A° A° sestertium decem milia condemnato, si non paret, absolvito."154 Where a specific object was owed (certum dare obligation), thejudge had to assess the pecuniary value of that object:

"Si paret N'" N!" A" A° tritici Afnci optimi modios centum dare oportere, quanti ea res est, tantam pecuniam iudex Nm N'" A° A" condemnato, si non paret, absoivito."153

Then there was a variety of situations where the relevant clause read "quanti ea res erit, tantam pecuniam . . ."!56 or "quanti ea res fuit, tantam pecuniam . . .":157 here, again, thejudge was required to assess the pecuniary value of the object in dispute: either at the time when judgment was rendered or at a certain moment in the past (namely the instant when the delict was committed). Many practically very important claims were based on a formula which contained the clause "quidquid Nm Nm A° A° dare facere oportet" in their intentio: the bonae fidei iudicia belonged to this category, and so did actiones stricti iuris where an incertum was owed. "Quidquid" being taken to imply a conversion into a sum of money, thejudge was once again instructed "tantam pecuniam . . . Nm Nm A° A° condemnato, si non paret, absoivito". The same applied in those cases where the action lay for "quantum iudici bonum et aequum videbitur".158

2. Omnis condemnatio pecuniaria

The situation was thus relatively simple and straightforward: whatever performance the defendant owed, he was invariably condemned into a

contestatio: the dare or facere oportere was turned into a condemnari oportcre.

154Cfsupra, p. 36.

155Cf. supra, p. 36.

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specific sum of money.159 "Omnis condemnatio pecuniaria" was the general rule which dominated the formulary procedure160 and indirectly also exercised a significant influence on the rules of substantive Roman law (ubi remedium, ibi ius!).161 With the demise of the formulary procedure, however, the necessity of a condemnatio pecuniaria was bound to wane. Cognitio, which developed under the Principate as a procedure extra ordinem,162 but soon became exclusive in post-classical times,163 was characterized by its lack of formality and by the prominent role attributed to the imperial jurisdictional official. He was the master of the trial from beginning to end, and the search for equitable solutions to the problems submitted to him was largely left to his discretion. This entailed that the judicial officer was no longer bound either to absolve or to condemn the defendant into the equivalent in money of what had been claimed. Judgment could be for less than the plaintiff had originally asked for,164 and it could also be for other kinds of performances than payment of money.165 The trend towards judicial decrees of specific performance was reinforced by the inflationary tendencies and the general decline of the economy during the 3rd and 4th centuries.1(l6 Where performance in specie was possible, it could, as a rule, be enforced by the creditor. Thus the defendant could, for instance, be condemned to transfer a specific object, to conclude a contract or to provide security. Execution of the judgment, too, became entirely State-controlled and aimed at providing the plaintiff with whatever performance was due to him under the judgment rendered in his favour.167

3. Condemnatio pecuniaria and specific performance under Justinian

Justinian, the great champion and restorer of classical Roman private law, did not resuscitate the structure and principles of the formulae procedure. In that regard he usually accepted and consolidated the policy of his predecessors.168 Thus it is obvious that he did not revert to

159 Gai. IV, 48: "Omnium autem formularum quae condemnationem habent ad pecuniariam aestimationcm condemnatio concepts esc"; Gai. IV, 51: "Iudex, si condemnet, certain pecuniam condcmnare debet."

160For details, see Kaser, RZ, pp. 286 sqq.; Kelly, Roman Litigation, pp. 69 sqq.; Angela Romano, "Condanna 'in ipsam rem' e condanna pecuniaria nella storia del processo romano", (1982) 28 Labeo 131 sqq.

161Cf. e.g. supra, pp. 35 sq.

162Kaser, RZ, pp. 339 sqq.

163For all details, see Kaser, RZ, pp. 410 sqq.

164Kaser, RZ, pp. 383 sq., 475 sq.

165Kaser, RZ, pp. 392, 498 sq.; Karoly Visky, "Quelques rcmarques sur la these ipsam rem condemnare et ses rapports economit|iies", (1972) 19 RIDA 474 sqq.

1(16 Kaser, RPr II, p. 343; Visky, (1972) 19 RIDA 489 sqq. 167 For details, see Kaser, RZ, pp. 511 sqq.

1f'8 Although, of course, the separation of the (classical) rules of substantive law from their procedural framework was bound to lead to awkward incongruities.

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the principle of omnis condemnatio pecuniaria. Institutiones IV, 6, 32 ("Curare autem debet iudex, ut omnimodo, quantum possibile ei sit, certae pecuniae vel rei sententiam ferat, etiam si de incerta quantitate apud eum actum est") may even lead us to believe that the creditor was in principle entitled to demand that a contractual obligation be performed in specie.169 A phrase contained in Ulp. D. 6, 1, 68 has been taken to point in the same direction. Here we find a statement (attributed to Ulpian, but inserted into the text by the interpolators) to the effect that having been ordered by the judge to hand over a thing, a party could be dispossessed "manu militari" at the judge's direction, provided the party still had the object in question. This assertion is then generalized in the following way:

"[H]aec sententia generalis cst ct ad omnia, sive interdicta sive actiones in rem sivc in personam sunt, ex quibus arbitratu iudicis quid restituitur, locum habct."170

Strictly speaking, however, this passage deals only with claims directed at a restitutio. Read in conjunction with a variety of other texts scattered throughout the Corpus Juris, it rather leads one to the conclusion that the principle of specific performance was restricted to dare (and reddere) obligations.171 Both where a praestare and a facere was owed, Justinian may well be seen to have retained (or reverted to) the principle of the condemnatio pecuniaria. How else can one interpret the fact that he incorporated the following statement of Ulpian referring to the actio empti (that is, the practically most important praestare obligation) into the Digest: "Si res vendita non tradatur, in id quod interest agitur, hoc est quod rcm habere interest emptoris"?172 And as far as those cases were concerned where the debtor was bound to do something (facere), we have a very clear and generally worded testimony in D. 42, 1, 13, 1: ". . . quia non facit quod promisit, in pecuniam numeratam condemnatur, sicut evenit in omnibus faciendi obligationibus."173 All in all, the Corpus Juris provides a somewhat patchy picture and leaves it open to considerable doubt how far the principle of specific performance had in actual practice been substituted for that of omnis condemnatio pecuniaria.

4. The distinctions of the ius commune

Not surprisingly, therefore, this topic became the subject of an intense and controversial discussion among the medieval lawyers. Since the

l 69Kaser, RPr II, pp. 343 sq.

170Cf. also С 7, 4, 17 (Just.).

171Cf. Hermann Dilcher, "Geldkondemnation und Sachkoiidemnarion in der mittel-

alterlichen Rechtstheorie", (1961) 78 ZSS 278 sqq.; but cf. recently also J.J. du Plessis, "Spesifieke nakoming: 'n Regshistoriesc herwaardcring", (1988) 51 THRHR 349 sqq.,

Ulp. D. 19, 1, 1 pr. This is, however, in conflict with Insi. II, 7, 2 (dealing with donation, but referring also to the contract of sale). 173 But there were exceptions; cf. D. 3, 3, 35, 3 and D. 4, 8, 3.

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days of the glossators, the threefold subdivision of the possible contents of an obligation as contained, for instance, in D, 44, 7, 3 pr. ("Obligationum substantia . . . in eo consistit . . . ut alium nobis obstringat ad dandum aliquid vel faciendum vel praestandum"),174 provided the generally accepted starting point for this debate.175 But even within these categories, further subtle distinctions were drawn in order to provide some sort of systematic framework for the rich casuistry of the Corpus Juris.176 Thus, by the end of the Middle Ages, cases where the creditor could insist on specific performance were recognised within all three groups of obligations; but they stood side by side with other instances where the debtor could be forced only to pay the equivalent in money. Generally speaking, though, there was a continuing trend towards condemnation in specie: "praecise tenetur" is what was said about the debtor in these cases. Most of the dare obligations fell into this category,177 and so, according to the majority view178 and because it so closely resembled a dare obligation, did the actio empti. Other tradere obligations (as far as they were discussed at all) were usually subjected to the regime of condemnatio pecuniaria. With respect to facere obligations, Azo, Accursius and many other glossators, by giving the creditor the choice,179 in fact recognized the possibility of a condemnation in specie. The commentators were at first reluctant to accept this. "Nemo potest praecise cogi ad factum" was the view they tended to adopt, but in the course of time more and more exceptions came to be identified.180 Petrus de Bellapertica (Pierre de Belleperche) accepted condemnation in specie in the case of a scriptor; Jacobus de Ravanis (Jacques de Revigny), wherever services (operae) were owed; Johannes Faber, whenever the debtor was insolvent; Bartholomaeus Salicetus (and others), in cases where the obligation had been confirmed by oath; and Yason de Mayno, in a sweeping statement, "quando est tale pactum, quod faciliter et de levi potest expediri".

5. Roman-Dutch law; modern German law

The controversy continued among the humanists as well as among the authors of the usus modernus pandectarum.im The rule of "nemo

174Derived from Gai. IV, 2.

175In the place of praestare, one soon started to refer, more specifically, to tradere.

176For a detailed discussion, see H. Dilcher, (1961) 78 ZSS 283 sqq.

177But not those arising from innominate real contracts; cf. e.g. Bartolus, Commentaria, D. 19, 5, 5, 1, § Etsi quidem, 4.

17H The dispute arose among the quattuor doctores. Martinus argued in favour of specific performance; his view was adopted by Pillius, Roffredus, Accursius, Ravanis, Bellapertica, Cinus, Bartolus, Baldus, Paulus dc Castro and Jason de Mayno. Contra (". . . non tenctur emptor precise ad rem tradendam") Bulgarus and, following him, Rogerius, Placentinus, Johannes Bassianus and Azo. Cf. H. Dilcher, (1961) 78 ZSS 287 sqq.; H.F.W.D. Fischer, De geschiedenis van de reek executie bij hoop (1934), pp. 123 sqq.

179 Cf. e.g. Accursius, gl. In aliis autcm casibus ad С 7, 47.

Ш| For all this cf. H. Dilcher, (1961) 78 ZSS 293 sqq., 298 sq., 301 sq. 181 Coing, pp. 432 sqq.

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potest praecise cogi ad factum" dominated the discussions relating to obligationes ad faciendum. It appears to have been widely accepted that a debtor cannot be forced to do something and that he is therefore able to discharge his obligation by paying damages (id quod interest). Ludovicus de Molina even referred to a communis opinio (of which he himself, however, disapproved).182 Via Pothier183 this doctrine found its way into art. 1142 code civil, which states: "Toute obligation defaire ou de ne pas faire se resout en dommages et interets en cas d'inexecution de la part du debiteur."ls* The actio empti,185 on the other hand, was likened by a majority of writers to the dare obligations; strictly speaking, to be sure, the vendor merely owed vacuam possessionem tradere, but this handing over was intended to transfer ownership and hence to constitute a datio in the technical sense of the word.186 As a result, it was widely recognized that the purchaser could insist on specific performance, as long as the vendor was still able to transfer the object: "non enim solvendo interesse liberari potuit, qui rei tradendae facultatem habuit." This is how the Hooge Raad van Holland, Zeeland en West-Vriesland put it very crisply.187

Roman-Dutch law generally took a remarkably progressive attitude.188 Few authors were prepared to follow Grotius when he stated that although by natural law a person who has promised to do something is bound to do it in case it admits of being done, he may, nevertheless, "пае 't burger-recht" effect his release by paying id quod interest.189 Only Voet took a similarly antiquarian line and regarded specific performance as both impossible and undesirable in cases of obligationes ad faciendum.|yn Contrary to Grotius191 (but like Donellus before him),192 he viewed the vendor's duty under a contract of sale in

I H2 Molina, De iustitia et hire. Tract. II. Disp. 562.

183Traite des obligations, n. 157.

184'"phg underlying idea is that, man being a free and responsible being, he should not be

coerced by the state into behaving in a particular way. This is a most praiseworthy idea but it is far too vague, and its formulation in art. 1142 Code civil . . . is much too sweeping":

Zweigert/Kotz/Weir, p. 145.

э For a comprehensive discussion of the historical development of specific performance with regard to the contract of sale, cf. Fischer, op. cit., note 178, passim, e.g. pp. 181 sqq.

ш> Cf. e.g. Gai. IV, 4.

8 Reported by Cornelius Neostadius, "Dccisioncs supremi senatus Hollandiae, Zelandiae et Frisiae", in: idem, Decisiottes (Hagae Comitis, 1667), Oecis. L. Cf. also Pothier, Traite du cotilrat de vente, n. 68 and art. 16HI code civil. This ties in with the general principle laid down in art. 1184 II code civil, according to which a creditor who has not received what he was promised may require his debtor to perform the agreement in so far as that is still possible. For further details of the application of this rule in French practice (and particularly on the specific coercive technique ot "astreinte"), see Zweigert/Kotz, pp. 186 sqq.

xm Cf. Wessels, History, pp. 612 sqq.; Philip Gross, "Specific Performance of Contracts in South Africa", (1934) 51 SAL] 348 sqq.; Du Plcssis, (1(»88) 51 THRHR 357 sqej.

Im Inleidin^, Ill, III, 41.

iyo Commentartus ad Pandectas, Lib. XLV, Tit. I, VIII.

m Melding, I II, XV, 6.

192 Cf. Fischer, op. cit., note 178, pp. 184 sq.

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776 The Law of Obligations

the same light.193 By and large, however, Groenewegen's comment appears to be representative:

"Hodie in omnibus faciendi obligationibus praecise ad factum cogi potcst ncque solvendo interesse libcratur promisor, qui faciendi facultatem habet."144

If a creditor was thus given the right to claim specific performance (not only of obligationes ad dandum but also) with regard to facere obligations, then the same was bound to apply to the tradere obligations (such as the actio empti) which fell somewhere in between the two. "Senatus condemnatum civili custodia sistendum (quod gyselinge houden dicimus) pronunciavit, quoad rem tradidisset":19S this gives an impression of how a decree of specific performance was enforced.

In Germany, the last vestiges of omnis condemnatio pecuniaria were ultimately overcome in the course of the 19th century; for the pandectists, this principle was merely a kind of historical reminiscence which they discarded without much ado.146 In modern German law, it is a matter of course that the parties to a contract are entitled to demand performance of their respective obligations in specie. "The effect of an obligation", says § 241 at the outset of Book II of the BGB, "is that the creditor is entitled to claim performance from the debtor.'' The implication is: specific performance.197

6.Specific performance in English law

(a)The concept of contract

It is most interesting to see that the same battle between specific performance and release from an obligation by payment of damages has been raging in the English common law. Unlike in Germany, it has not, however, ended in an out-and-out-victory for the former remedy, but in a rather uneasy truce between the two. The English common law does not traditionally conceive of contract as engendering enforceable duties to perform what has been promised.198 A promisor is merely seen to assume the risk of a certain event either happening or not happening, no matter whether he promises to deliver a bale of cotton or whether the promise is that it shall rain tomorrow.194 The only universal consequence of a legally binding promise is

195Cf. Neostadius. loc. cit.

196Cf. Amdts. Pandek ten, § 219; Wachte r, Pandek ten, § 167.

For further discussion, see John P. Dawson, "Specific Performance in France and

Germany", (1959) 57 Michigan LR 495 sqq.; Zweigert/Kotz, pp. 181 sqq.

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"that the law makes the promisor pay damages if the promised event docs not come to pass. In every case it leaves him free from interference until the time for fulfilment has gone by, and therefore free to break his contract if he chooses".2'*'

The reason for this (from a civilian perspective) rather peculiar attitude lies in the historical origin of modern English contract law in the action of assumpsit.201 Assumpsit, in turn, grew out of tresspass — that is (in modern parlance), a delictual remedy202 by means of which the plaintiff was allowed to claim compensation in money for a wrong that had been done to him.203 In every writ of tresspass the defendant's harmful behaviour had to be described. In many cases it was quite obvious that such behaviour constituted a wrong, and in the course of time a number of standard forms were developed to cover these situations. Sometimes, however, additional explanations had to be provided by the plaintiff in order to establish the wrongfulness of the defendant's act: more particularly, he had to allege that the defendant had been under a duty to do or not to do what he had done or failed to do. This allegation was set out in a kind of demonstratio, a specific part of the formula introduced by the word "cum"; and since this "cum" clause contained all the relevant details particular to the case in question, such an action was referred to as a "special" writ of tresspass or as an action "on the case".

(b) The rise of assumpsit

Amongst these early actions on the case there was a group in which the duty of the defendant (and hence his liability in case of failure to comply with it) was based upon a prior (informal) transaction which he had entered into with the plaintiff. Thus, for example, we read of suits against a surgeon who treated a finger of his patient so incautiously that a great part of it was lost;204 of a ferryman who killed a mare, entrusted

200Holmes, The Common Law, p. 301.

201For what follows, see A.W.B. Simpson, History, pp. 199 sqq.

In a very similar fashion, of course, contract had grown out of delict in Roman law: cf. supra, pp. 4 sqq. And if its delictual origin is the historical reason why a contractual remedy for specific performance is (normally) not available according to the English common law, the same is true of the Roman rule of omnis condemnatio pecuniaria. A person who was "liable" because he had committed a wrong, was originally exposed to the injured party's power of seizure. But he could redeem himself by payment of a (monetary) composition. The State, of course, favoured this kind of release from liability which avoided crude forms of corporeal execution. Thus it had to make sure that the person liable (and his friends and relations) knew exactly how much money had to be paid in order to prevent manus iniectio from being granted. Thus, in every case where somebody was liable, a specific sum of money had to be determined in order to facilitate release from liability. This stage of the development was petrified in the rule of omnis condemnatio pecuniaria. Cf. e.g. Kaser, RZ, p. 287.

2113 For details, see S.F.C. Milsom, "Tresspass from Henry 111 to Edward III". (1958)

74 LQR 195 sqq., 407 sqq., 561 sqq.

204 Cf. A.K.R. Kiralfy, The Action on the Case (1951), pp. 224 sq.

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778 The Law of Obligations

to him, as a result of overloading his boat;205 or of a farrier who lamed a horse which he was shoeing.2W> In the course of the 14th century, the word "assumpsit" came to be commonly used in these kinds of actions: the defendant had undertaken to cure the finger, to transport the mare or to shoe the horse and could thus be seen to have assumed responsibility if something were to go wrong due to his lack of skill.207 For more than a century, the development of assumpsit was checked by the "nonfeasance doctrine":208 an action on the case based upon an assumpsit could not succeed if the defendant had merely failed to comply with what he had agreed to do; he had to have done something wrong (a misfeasance). It was only at the beginning of the 16th century209 that assumpsit was made available also in cases of a pure nonfeasance. As a result of this, it had become a general action for the breach of informal agreements and thus effectively superseded the ancient contractual action of covenant: under covenant, the plaintiff had also been able to claim damages for breach of an agreement, but only if he was able to produce a sealed instrument ("make profert a specialty") to witness the latter.210 This change of legal doctrine may well have been motivated by the activities of the Chancellors who had established a wide-rangingjurisdiction over contracts in cases where no remedy was provided by the common law.2" Parole agreements were one such situation, and by abandoning the nonfeasance doctrine, the "ordinary" courts merely accepted for the common law what reason and conscience had obliged the Chancellors to recognize in equity. This entailed a (from the point of view of the common-law courts, welcome) shift in jurisdiction, for the extension of assumpsit largely removed the necessity for plaintiffs who wanted to enforce parole agreements to turn to equity.

The celebrated decision in Slade's case212 was a further important milestone in the advance of assumpsit, for here it was settled that assumpsit could be used to force a person to pay a debt, i.e. a definite

21 ь The case of the Humber Ferryman (Buckton v, Townsend 1348); for the text, see Simpson, History, pp. 623 sq.; for a discussion, see A.K.R. Kiralfy, "The Humber Ferryman and the Action on the Case", (1951-53) 11 Cambridge LJ 421 sqq.; Simpson, History, pp. 210 sqq.

206 Cf. Kiralfy, op. cit., note 204. p. 142.

2(17 On the exact meaning of the term "assumpsit". cf. Simpson, History, pp. 215 sqq. 20H On which, see Simpson, History, pp. 222 sqq.

2W With Orwell v. Mortaft (1505); cf. A.K.R. Kiralfy, Л Source Book of English Law (1957), pp. 150 sqq.; for a comprehensive discussion, see Simpson, History, pp. 248 sqq.

210 On covenant, see Simpson, History, pp. 9 sqq. He draws attention to the fact that originally specific relief could be granted under covenant.

W.T. Barbour, "The History of Contract in Early English Equity", in: Oxford Studies in Social and Legal History, vol. IV (1914), pp. 66 sqq.; Simpson, History, pp. 275 sqq.

212Slade's case (1602) 4 Co Rep 91 a; for a discussion, see Kiralfy, op. cit., note 204, pp. 164 sqq.; A.W.B. Simpson, "The Place of Slade's Case in the History of Contract", (1958) 74 LQR 381 sqq. (but cf. idem. History, p. 305); H.K. Lucke, "Slade's Case and the Origin of the Common Counts", (1965)81 LQR 422 sqq., 539 sqq.; (1966) 82 LQR 81 sqq.; J.H. Baker, "New Light on Slade's Case", (1971) 29 Cambridge LJ 51 sqq., 213 sqq.

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sum of money owed. Again, this development heralded the demise of an older remedy. The action of debt "sur contract" had once been designed to cover exactly this type of situation, but it involved the outdated and unsatisfactory trial by wager of law (compurgation).213 Based on the more rational procedure of trial by jury, assumpsit appealed to plaintiffs as well as judges; with Slade's case, debt sur contract was bound to sink into oblivion, and assumpsit firmly established itself as the regular common-law contractual action. As a matter of course, assumpsit lay for damages only, and thus the common law effectively gave the promisor an option to perform his contract or to compensate the promisee for non-performance.

(c) Common-law remedy and equitable relief

It soon became apparent, though, that the availability merely of a remedy for breach of contract rather than for the actual performance thereof could not always be regarded, from the point of view of the creditor, as adequate and equitable. Of course there are many cases in which specific relief is simply not possible. In other instances substantial practical difficulties can arise: one may think, for instance, of promises to paint a picture, to build a house or to sing in an opera.214 And even in cases where the enforcement of specific performance would not create any difficulty,215 the award of damages may often be regarded as perfectly adequate. Thus it can be argued, for instance, that in a market economy money ought to enable the disappointed purchaser of chattels to arrange a substitute transaction.216 Things appear different, however, when it comes to items which are considered to be unique.217 For the medieval English lawyers the "unique" item par excellence was land. If a vendor refused to transfer the piece of property which he had sold, the purchaser could hardly be

213 On the action of debt sur contract, see Simpson, History, pp. 53 sqq.; on trial by wager of law, idem, pp. 136 sqq. The defendant had to find 11 compurgators who were prepared to swear an oath with their hands upon the Bible that he owed nothing, and then to kiss the Bible. If this procedure had been performed successfully, the defendant was said to have made his law "twelvehanded" (for he himself had to go through the same ceremony) and won the action.

214 The main difficulty in these and similar cases lies in the fact that specific relief requires the cooperation of the (defaulting) promisor: cf. e.g. E.A. Farnsworth, "Legal Remedies for Breach of Contract", (1970) 70 Columbia LR 1150. How, under these circumstances, can a judgment for specific performance be enforced? For the answer in German law cf. §§ 883 sqq. ZPO and Zweigert/Kotz, pp. 183 sqq.; for French Law (with its characteristic institution of "astreinte"), see Zweigert/Kotz, pp. 187 sqq.

215As, for instance, with regard to an obligation to pay a sum of money.

216Farnsworth, (1970) 70 Columbia LR 1154, quoting a book by C.A. Huston on the

enforcement of decrees in equity: "The law, concerning itself more and more with merchandise bought or sold for money, with things having a definite and calculable exchange value, came to conceive that the money compensation . . . was an entirely adequate remedy in the common case."

On the traditional distinction between unique and non-unique goods, see Anthony F. Kronman, "Specific Performance", (1978) 45 University of Chicago LR 351 sqq.

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expected to accept with equanimity a sum of money and look for a similar estate elsewhere. He wanted the vendor to honour his promise in a more specific manner. Under these circumstances, it was again to the equitablejurisdiction of the Chancellors that disappointed plaintiffs turned; for even if equity was no longer concerned with the enforceability of promises that would have been unenforceable at common law, it could, of course, still be invoked where the common-law remedy turned out to be deficient. The Chancellors, in turn, merely had to draw upon the canon law that they had studied (usually at Oxford) in order to find the appropriate answer to the problem.

The medieval canonists had been the first to break away decisively from omnis condemnatio pecuniaria; even for obligationes ad faciendum they had advocated the possibility of a condemnatio in specie.218 A promise must be kept, for "mendacium est, si quis non impleat, quod promisit".219 A decree of specific performance was thus ultimately designed to make the defendant act in accordance with good conscience and to coerce him to honour his promise, for the avoidance of sin. This is exactly what suited the Chancellors,220 who could (as clerics) not be attracted at all by the common-law notion that promises may be broken and paid for rather than be kept. Not surprisingly, therefore, they were quite prepared to grant specific relief within their sphere of jurisdiction. These decrees in equity took the form of a personal command to the defendant to do or not to do something, and as a consequence it was said that equity acted in personam, that is, against the person of the defendant, whilst the common law acted in rem, i.e. against his property.221 But when did the common-law remedy have to be applied for and when could equitable relief be obtained? The long jurisdictional struggle was ultimately settled by means of an "adequacy" test: specific performance was available only where the award of damages was inadequate. Payment of damages remained the rule, specific performance the exception. Moreover, specific relief was not granted as a matter of right; the equitable remedy was not only extraordinary but also discretionary; for since the Chancellor acted according to conscience, he could withhold relief where considerations of fairness or morality induced him to do so.222

(d) The position today

Today, only one Supreme Court of Judicature exists, and all its branches are empowered to apply the rules developed "at law" and "in

2 1 M H. Dilcher, (1961) 78 ZSS 302 sqq.

219 Cf. supra, p. 542, note 224.

2211 Cf. also Simpson, History, pp. 595 sq.

221Farnsworth, (1970) 70 Columbia LR 1152 sq.

222Farnsworth, (1970) 70 Columbia LR 1154 sqq.

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