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Specific Performance with Compensation as a Purchaser's Remedy—A Study in Contract and Equity

Published online by Cambridge University Press:  16 January 2009

Charles Harpum
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The circumstances in which a party to a contract for the sale of land may recover damages have been the subject of considerable judicial and academic discussion recently. That discussion has focused on those situations in which the contract has been terminated for breach. The purpose of the present article is to consider the position where the purchaser either wishes or is obliged to keep the contract on foot notwithstanding the breach by the vendor. There are at least three possible situations:

(1) Where the vendor misdescribes the property in the particulars of sale. That misdescription may take one of two forms. The vendor may either misdescribe the extent of the land (for example, he agrees to sell twenty acres when he has only fifteen) or the state of his title (for example, he contracts to sell as freeholder when the property is in fact leasehold). A purchaser may terminate the contract if the misdescription is substantial even if there is a conditien of sale which states that the contract will not be vitiated by reason of, or that compensation will be payable in the event of any misdescription.

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The Cambridge Law Journal , Volume 40 , Issue 1 , April 1981 , pp. 47 - 82
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Copyright © Cambridge Law Journal and Contributors 1981

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References

1 See particularly Johnson v. Agnew [1980]Google Scholar A.C. 367 (H.L.) and Malhotra v. Choudhury [1980]Google Scholar Ch. 52 (C.A.).

2 The best overall survey of the law is by A. J. Oakley [1980] C.L.J. 58. For a discussion of the rule in Bain v. Fothergill (1874) L.R. 7 H.L. 158, see A. Sydenham (1977) 41 Conv.(n.s.) 341, and contrast C. T. Emery [1978] Conv. 338.

3 It is possible to conceive of other situations on which no English authority exists, so far as the present writer is aware. For example, a vendor, after contract, leases part of the land off, and then refuses to complete the contract. Cf. Brown v. Ward, 81 N.W. 247, 249 (Supreme Court of Iowa; 1899, Waterman J.).

4 On misdescription, see Professor Farrand, J. T.: Contract and Conveyance, 3rd ed. (1980), pp. 52–56.Google Scholar

5 That is, a misdescription “so far affecting the subject-matter of the contract that it may reasonably be supposed, that, but for such misdescription, the purchaser might never have entered into the contract at all,” per Tindal C.J., Flight v. Booth (1834) 1 Bing.(N.c) 370, 377, a definition that has always been followed; Re Belcham and Gawley's Contract [1930] 1 Ch. 56, 61Google Scholar, Maugham J.

6 Flight v. Booth (1834) 1 Bing.(N.c.) 370. This seems to be a “substantive” doctrine of fundamental breach, unique to conveyancing law: see Farrand: Contract and Conveyance, 2nd ed. (1973), pp. 53–54 (the discussion is omitted from the 3rd ed.). In Johnson v. Agnew [1980]Google Scholar A.C. 367, the House of Lords, in considering the meaning of the word “rescission,” held that contracts for the sale of land were subject to the same rules as any other contracts and that no special doctrine should attach to such contracts: see especially [1980] A.C. 367, 393E–F, per Lord Wilberforce. If the House intended to lay it down that contracts for the sale of land were always subject to the same general contractual principles as all other contracts, then the Flight v. Booth doctrine must now be in some doubt in view of Photo Production Ltd. v. Securicor Transport Ltd. [1980]Google Scholar A.C. 827 (H.L.). In that case, the House of Lords held that it was a question of construction whether or not an exemption clause in a contract was apt to cover a fundamental breach.

7 Non-disclosure is fully explained by Farrand, Contract and Conveyance, 3rd ed. (1980), pp. 62–73. At 64–65, he lists three types of defect of title which a vendor is obliged to disclose: (i) defects detracting from the vendor's good right to convey the estate he is selling; (ii) defects which prevent the vendor conveying free from encumbrances; (iii) onerous and unusual leasehold covenants, if the property is a term of years. The intricacies of the law both on misdescription and non-disclosure are outside the scope of this article.

8 On conditions of sale and non-disclosure, see Farrand, loc. tit., 71–73.

9 On the broad meaning of vacant possession, see Farrand, loc. cit., Chap. VIII.

10 Cook v. Taylor [1942] Ch. 349, 352Google Scholar, Simonds J.

11 These general principles are set out in Heyman v. Darwins Ltd. [1942]Google Scholar A.C. 356 (H.L.); Johnson v. Agnew [1980]Google Scholar A.C. 367 (H.L.); and Photo Production Ltd. v. Securicor Transport Ltd. [1980]Google Scholar A.C. 827 (H.L.).

12 s. 11 (2) of the Sale of Goods Act 1979. Throughout this article, the expression “breach of warranty” will be used as a shorthand description to designate two situations: (i) where there has been a breach of contract by the vendor which is not so substantial as to entitle the purchaser to treat the contract as at an end; (ii) where the breach is such as to entitle the purchaser to treat the contract as repudiated, but where he nonetheless elects to affirm the agreement.

13 One case where a purchaser did sue prior to completion is Grant v. Dawkins [1973]Google Scholar 1 W.L.R. 1406.

14 Leggott v. Barrett (1880) 15 Ch.D. 306 (C.A.); Knight Sugar Company Ltd. v. The Alberta Railway & Irrigation Co. [1938]Google Scholar 1 All E.R. 266 (J.C.). The authorities are discussed by Farrand, loc. cit., 194–195. A right to sue for a misdescription is usually lost on conveyance: Joliffe v. Baker (1883) 11 Q.B.D. 255; Clayton v. Leech (1889) 41 Ch.D. 103; as is one for non-disclosure: Greswolde-Williams v. Barneby (1900)Google Scholar 83 L.T. 708.

15 Hissett v. Reading Roofing Co. Ltd. [1969]Google Scholar 1 W.L.R. 1757. Similarly, a condition of sale providing for compensation in certain circumstances may as a matter of construction survive completion: Palmer v. Johnson (1884) 13 Q.B.D. 351 (C.A.).

16 Eastwood v. Ashton [1915]Google Scholar A.C. 900 (H.L.).

17 For modern discussions of the remedy, see Snell's Principles of Equity, 27th ed. (1973), pp. 592–594; and Spry, I. C. F., Equitable Remedies, 2nd ed. (1980), pp. 274–297.Google Scholar For older but still authoritative accounts, see Fry on Specific Performance, 6th ed. (1921)Google Scholar, Part V, Chap. II; and Williams on Vendor and Purchaser. 4th ed. (1936). pp. 724–727.Google Scholar

18 This pre-1858 jurisdiction is considered later in this article.

19 In Newham v. May (1824) 13 Price 749, 752 (a case on the equity side of the Exchequer), Alexander L.C.B. spoke of the jurisdiction to award compensation as “ancillary, as incidentally necessary to effectuate decrees of specific performance.”

20 “This court will execute the covenant, according to a conscientious modification of it, to do justice as far as circumstances will permit”: Lord Redesdale, Davis v. Hone (1805) 2 Sch. & Lef. 341, 347.

21 The remedy is often described as specific performance “with abatement of the purchase price” rather than “with compensation.” The point is not merely semantic and is considered in detail later in the article.

22 Topfell Ltd. v. Galley Properties Ltd. [1979]Google Scholar 1 W.L.R. 446.

23 Professor J. A. Jolowicz has explained this dearth of cases on the ease with which the Court of Chancery assimilated the jurisdiction to award damages into its practice [1975] C.L.J. 224, 225.

24 See n. 12, supra.

25 Rutherford v. Acton-Adams [1915]Google Scholar A.C. 866, 869 (J.C.), Viscount Haldane; Fry, loc. cit., 567.

26 Bowyer v. Bright (1824) 13 Price 698, 706, Garrow B. There is a direct analogy here with equity's attitude to time in a contract: Alley v. Deschamps (1806) 13 Ves. 225, 228–229, Lord Erskine.

27 “If a vendor sues and is in a position to convey substantially what the purchaser has contracted to get, the Court will decree specific performance with compensation for any small and immaterial deficiency.” Haldane, Viscount, Rutherford v. Acton-Adams [1915]Google Scholar A.C. 866, 869–70 (J.C.). See too Dyer v. Hargrove (1805) 10 Ves. 505, 507–508, Grant M.R.; Drewe v. Corp (1804) 9 Ves. 368, Grant M.R.; Fry, loc. cit., 568.

28 In Shirley v. Davis (1788) Exch. unreported, (but see the note to Shirley v. Stratton (1785) 1 Bro.C.C. 440), the court refused to decree specific performance with compensation, but Lord Eldon, who as John Scott had been counsel in the case, acted under the impression that the court had granted the decree sought: Drewe v. Hanson (1802) 6 Ves. 675. Certainly there were cases where the courts granted specific performance with compensation at the suit of a vendor where he could not convey substantially what he had contracted to. See for example Howland v. Norris (1784) 1 Cox 59, where Lord Thurlow felt himself constrained by the weight of authority to grant the remedy in circumstances in which principle seemed to dictate otherwise.

29 Drewe v. Hanson (1802) 6 Ves. 675. It is clear both from Drewe v. Hanson and Seton v. Slade (1802) 7 Ves. 265, 270, that Lord Eldon regretted the path that he felt compelled to follow. In the end, he too rebelled: Knatchbull v. Grueber (1817) 3 Mer. 124, 146.

30 Halsey v. Grant (1806) 13 Ves. 73, 76, Lord Erskine; Collier v. Jenkins (1831) Younge 295, Lord Lyndhurst L.C.B.; Re Arnold (1880) 14 Ch.D. 270, 279, James L.J., 284, Bramwell L.J.

31 (1882) 9 Q.B.D. 616, 618. The remarks refer to the defendant vendor's counter-claim for specific performance with compensation.

32 Fildes v. Hooker (1818) 3 Madd. 193. In that case the purchaser stood to lose his land if the contingency occurred. The rationale of this limitation on this remedy is, presumably, that a purchaser should not be given a mere in personam undertaking to cover the contingency.

33 The vendor's remedy neatly dovetails with the rule in Flight v. Booth (1834) 1 Bing.(n.c) 370 (see text to n. 6, supra). If the misdescription is of a substantial nature, the vendor cannot (i) obtain specific performance with compensation or (ii) rely on any exemption clause which purports to keep the contract on foot even if there is a misdescription: Jacobs v. Revell [1900]Google Scholar 2 Ch. 858.

34 (1804) 10 Ves. 292, 315–316. See too Castle v. Wilkinson (1870) L.R. 5 Ch.App. 534, 537, where Giffard L.J. appears to explain the remedy as resting on estoppel by representation. However, the remarks need to be read in context. GiffardL.J. was simply drawing a distinction between the situation where V agrees to sell a freehold to P, and where V agrees to sell such estate as he has to P and P is fully aware that V does not have a fee simple. It is obvious in the latter case, that if P takes what V has he cannot also obtain compensation.

35 Trustees of a settlement had a power to sell all or part of the settled estates at the request of the tenant for life. The life tenant requested the trustees to sell and a price was fixed by an auctioneer, who grossly undervalued the property. As the sale would have been a breach of trust, Lord Eldon refused to decree specific performance of the contract against the trustees. He also refused to decree specific performance against the tenant for life to the extent of his interest. Lord Eldon distinguished two situations: (i) where a partial owner agreed to sell the whole—in which case the purchaser could take whatever the vendor actually had, and (ii) where trustees with power to sell the whole agreed to sell at the request of a person with a partial interest in the land, but where that contract was not specifically enforceable against the trustees. The emphasis on a representation in this context is understandable. Did the defendant to the action for specific performance hold himself out expressly or impliedly as capable of selling the whole? Lord Eldon's insistence on a representation has been criticised on the ground that “even though the representation be true when made and the deficiency have resulted later, the plea of the defendant would still have been barred” (1908) 8 Col.L.R. 309, 310 (anonymous casenote).

36 Cf. Rudd v. Lascelles [1900] 1 Ch. 815, 818–819Google Scholar, Farwell J. A non-disclosure can very easily become a misdescription: Re Puckett and Smith's Contract [1902] 2 Ch. 258 (C.A.).

37 Spry, loc. cit., 286.

38 Although in Johnson v. Agnew [1980]Google Scholar A.C. 367, the House of Lords held that the measure of damages under Lord Cairns's Act and at common law was the same, it must be remembered that the court still has a discretion whether to award damages in addition to or in lieu of specific performance under that Act. In cases involving Lord Cairns's Act just as much as in cases of specific performance with compensation questions of mistake, hardship and prejudice to third parties will be taken into consideration.

39 For a useful discussion of the doctrine of mutuality, see Spry, loc. cit., 7–13. Cf. J. B. Ames (1903) 3 Col.L.R. 1.

40 [1900] 1 Ch. 815.

41 Wedgwood v. Adams (1843) 6 Beav. 600, 605, Lord Langdale M.R.; Stewart v. Kennedy (1890) 15 App.Cas. 75, 105, Lord Macnaghten; Goldsbrough Mart & Co. Ltd. (1910) 10 C.L.R. 674, 698–701Google Scholar, Isaacs J.; Wroth v. Tyler [1974] Ch. 30, 50–51Google Scholar, Megarry J.

42 (1865) 34 Beav. 611, Sir John Romilly M.R.

43 (1865) 34 Beav. 611, 612.

44 (1865) 34 Beav. 611, 613. The examples given by his lordship of fundamental defects include a man selling as a freeholder when he is in fact only a copy-holder or long leaseholder. It is probable that Sir John Romilly had in mind the situation where a man sells as freeholder, believing himself to be a free-holder, whereas it turns out that he is only a copyholder or long leaseholder. If so, these are situations where a vendor is labouring under a fundamental mistake rather than a case where he has, say, negligently or recklessly held himself out as having a title which he does not have. Such a fundamental mistake can vitiate the whole contract: Re Terry and While's Contract (1886) 32 Ch.D. 14, 22, Lord Esher M.R. If this is what Sir John Romilly had in mind then his remarks are unexceptionable.

45 This is implicit in the case itself: “I admit that the general rule is. that where there is a deficiency in quantity, such deficiency is properly the subject of compensation” (1865) 34 Beav. 611, 612–613, Romilly M.R. See too Connor v. Potts [1897] 1 I.R. 534, 539, Chatterton V.-C.

46 McKenzie v. Hesketh (1877) 7 Ch.D. 675, 682, Fry J.; Re Terry and White's Contract (1886) 32 Ch.D. 14, 22, Lord Esher M.R.

47 (1837) 1 Keen 729, Lord Langdale M.R. Lord St. Leonards had his doubts about the case: Law of Vendor and Purchaser, 14th ed. (1862), pp. 308–309; as did James V.-C., Barnes v. Wood (1869) L.R. 8 Eq. 424, 429.

48 (1837) 1 Keen 729, 747–748.

49 There are limits: “Hardship of third parties entirely unconnected with the property are immaterial”: Isaacs, J., Gall v. Mitchell (1924) 35 C.L.R. 222, 230.Google Scholar A case that goes too far is Cedar Holdings Ltd. v. Green [1979]Google Scholar 3 W.L.R. 31 (C.A.). The House of Lords has overruled the decision: Williams & Glyn's Bank Ltd. v. Boland [1980] 3 W.L.R. 138, 146,Google Scholar but the remarks of Goff L.J. at [1979] 3 W.L.R. 43E-44A on specific performance with compensation and the defence of prejudice to third parties may still be good law. For a cogent criticism of those remarks, see M. J. Prichard [1979] C.L.J. 251, 254.

50 Cf. Nelthorpe v. Holgate (1844) 1 Coll. 203 and Barnes v. Wood (1869) L.R. 8 Eq. 424.

51 Mortlock v. Buller (1804) 10 Ves. 292, 315–316, Lord Eldon; Hill v. Buckley (1811) 17 Ves. 395, 401, Grant M.R.; Western v. Russell (1814) 3 V. & B. 188, 192, Grant M.R.; Wood v. Griffith (1818) 1 Swans. 44, 54, Lord Eldon; Dyas v. Cruise (1845) 2 Jo. & Lat. 460, 487, Sugden L.C.Ir.; G.W. Ry. Co. v. Birmingham & Oxford Junction Railway Co. (1848) 2 Phi. 597, 605, Lord Cottenham; Hughes v. Jones (1861) 3 De G.F. & J. 307, 315, Lord Justice Turner; Barnes v. Wood (1869) L.R. 8 Eq. 424, 429, James V.-C; Castle v. Wilkinson (1870) L.R. 5 Ch.App. 534, 536, Lord Hatherley; Hooper v. Smart (1874) L.R. 18 Eq. 683, 685, Hall V.-C.; Bain v. Fothergill (1874) L.R. 7 H.L. 158, 210, Lord Hatherley; Burrow v. Scammell (1881) 19 Ch.D. 175, 184, Bacon V.-C; Basma v. Weekes [1950] A.C. 441, 455Google Scholar, Lord Reid; Grant v. Dawkins [1973] 1 W.L.R. 1406Google Scholar, Goff J.

52 [1915] A.C. 866, 870, Viscount Haldane.

53 Apart from the obvious limitations of laches, clean hands, hardship, mistake, and prejudice to third parties, the remedy should be refused if the purchaser is not ready, able and willing to perform the contract, if the decree would place the vendor in breach of contract: Lipmans Wallpaper Ltd. v. Mason & Hodghton Ltd. [1969] 1 Ch. 20, 38Google Scholar, Goff J.; or if the purchaser was aware of the defect in the vendor's title when he entered into the contract: Hopcraft v. Hopcraft (1897) 76 L.T. 341, Stirling J.

54 (1805) 2 Sch. & Lef. 549, 554, italics mine. The decision has been criticised: “In that case,” said Sir Edward Sugden, Lord Redesdale “laid down some rules which were not called for” Dyas v. Cruise (1845) 2 Jo. & Lat. 460, 485–487.

55 I.e. an action at law by the real owner against the plaintiff purchaser.

56 Thomas v. Dering (1837) 1 Keen 729, 747, Lord Langdale M.R.; Graham v. Oliver (1840) 3 Beav. 124, 128, Lord Langdale M.R.

57 Re Heaysman's and Tweedy's Contract (1893) 69 L.T. 89, 91, Lindley L.J.

58 Price v. Strange, [1978] Ch. 337 (CA.).Google Scholar

59 For these exceptions see J. B. Ames (1903) 3 Col.L.R. 1–2, and Pettit, P. H., Equity and the Law of Trusts, 4th ed. (1979), p. 460.Google Scholar

60 Lawrenson v. Butler (1802) 1 Sch. & Lef. 13, 20, Lord Redesdale; Thomas v. Dering (1837) 1 Keen 729, 746, Lord Langdale M.R.

61 Sutherland v. Briggs (1841) 1 Hare 26, 34, Wigram V.-C. See too Wilson v. Williams (1857) 3 Jur.(n.s.) 810, Wood V.-C.

62 [1900] 1 Ch. 815, Farwell J.

63 [1900] 1 Ch. 815, 818.

64 [1900] 1 Ch. 815, 818–819.

65 [1900] 1 Ch. 815, 819, relying on a dictum of Jessel M.R.'s in Cato v. Thompson (1882) 9 Q.B.D. 616, 618, quoted supra, text to n. 31.

66 [1900] 1 Ch. 815, 820, this emerges from the plaintiff's requisitions.

67 [1900] 1 Ch. 815, 820.

68 [1900] 1 Ch. 815.

69 [1976] Ch. 165, especially at 173. Cf. Malhotra v. Choudhury [1980] Ch. 52, 65F-GGoogle Scholar, Stephenson L.J.

70 Gander v. Murray (1908) 5 C.L.R. 575.Google Scholar

71 McGavin v. Gerraty (1911) 17 A.L.R. 85, 89Google Scholar, Madden C.J. (Victoria).

72 (1804) 10 Ves. 292, 315–316, Lord Eldon. Quoted, supra, text to n. 34.

73 (1870) L.H. 5 Ch.App. 534, 537, Giffard L.J. Explained, supra, n. 34.

74 See nn. 34 and 35, supra.

75 Tamplin v. James (1880) 15 Ch.D. 215, 221, James L.J.; Stewart v. Kennedy (1890) 15 App.Cas. 75, 105, Lord Macnaghten.

76 Hexter v. Pearce [1900] 1 Ch. 341, 346.Google Scholar The High Court of Australia has stressed that specific performance will be refused on grounds of hardship only in exceptional cases: Suttor v. Gundowda Pty. Ltd. (1950) 81 C.L.R. 418, 438–439Google Scholar, judgment of the court.

77 Tamplin v. James (1880) 15 Ch.D. 215, 221, James L.J.; Nicholas v. Ingram [1958] N.Z.L.R. 972Google Scholar, Hutchison J.

78 [1900] 1 Ch. 815.

79 Farwell J. considered that the case was covered by the authority of Earl of Durham v. Legard (1865) 34 Beav. 611, but the two cases are very different. In the Earl of Durham case, the vendor's misdescription of the acreage had not influenced in the slightest the fixing of the purchase price and had no bearing on the value of the land. The value of the land in Rudd v. Lascelles was almost certainly affected by the undisclosed restrictive covenant.

80 Lawrenson v. Butler (1802) 1 Sch. & Lef. 13, 18, Lord Redesdale; Thomas v. Dering (1837) 1 Keen 729, 746, Lord Langdale M.R.; Rudd v. Lascelles [1900] 1 Ch. 815.Google Scholar

81 Thomas v. Dering (1837) 1 Keen 729, 746–747, Lord Langdale M.R. Cedar Holdings Ltd. v. Green [1979] 3 W.L.R. 31, 38–39Google Scholar, Buckley L.J., 43–44, Goff L.J. In Scotland, there is no such remedy as specific implement with compensation, because, it seems, of this reluctance to make a new bargain for the parties: Stewart v. Kennedy (1890) 15 App.Cas. 75. 102, Lord Watson.

82 Rutherford v. Acton-Adams [1915]Google Scholar A.C. 866, and the cases listed at n. 51, supra. The argument that the court is ordering “the cy-près execution of the contract” has been rejected in Canada: Ontario Asphalt Block Co. v. Montreuil (1913) 29 O.L.R. 534. At p. 546,Google Scholar Meredith C.J. said: “This is not making a new contract for the parties, since the vendor is not compelled to convey anything which he did not agree to convey.”

83 A breach of condition: s. 13 of the Sale of Goods Act 1979.

84 ss. 11 (1) (a) and 53 (1) of the Sale of Goods Act 1979.

85 Sainsbury Ltd. v. Street [1972] 1 W.L.R. 834Google Scholar, MacKenna J. The seller contracted to sell 275 tons of barley to be grown on his land. In fact he grew only 140 tons. It was conceded that, on the facts, he was under no liability for his failure to grow the full amount, but he was held liable for failing to deliver the 140 tons that he did grow.

86 s. 52 of the Sale of Goods Act 1979. s. 52 (3) visualises that the court may decree specific performance with compensation which adds weight to the argument put forward.

87 There is never any talk of “cy-près execution” of contracts in cases on sale of goods when the buyer elects to treat a breach of condition as a breach of warranty. It may be that the remarks about “the cy-près execution” of contracts in the vendor-purchaser context date from the early nineteenth century before the modern rule had clearly emerged that an innocent party to a contract could affirm even though there had been a repudiatory breach. The modern rule was certainly established by the 1860s. In Behn v. Burness (1866) 3 B. & S. 751, 755, Williams J. said that if there had been a breach of condition “the other party may, if he is so minded, repudiate the contract in toto, and so be relieved from performing his part of it.” (Italics mine.)

88 Cf. Chanter v. Hopkins (1838) 4 M. & W. 399, 404, Lord Abinger C.B. An equivalent situation in the law of vendor and purchaser might be where V agrees to sell a plot of land to P but cannot make title to it. P seeks to compel V to convey to him another similar plot which V owns. It is inconceivable that a court would compel V to convey the similar plot if he was unwilling to do so.

89 In Cedar Holdings Ltd. v. Green [1979]Google Scholar 3 W.L.R. 31, 39, Buckley L.J. said that the existence of the remedy of specific performance with compensation “does not enable the grantee to demand a grant of some different subject-matter in lieu of that contracted for.” This does seem correct in principle.

90 [1900] 1 Ch. 815. Certain remarks of Sir John Romilly's in Earl of Durham v. Legard (1865) 34 Beav. 611, 613, may afford some support for the proposition as may his decision in Maw v. Topham (1854) 19 Beav. 576. That latter case is almost certainly bad law: Bailey v. Piper (1874) 43 L.J.Ch. 704, 705, Hall V.-C. (a report that differs substantially from that in the Law Reports sub. nom. Hooper v. Smart (1874) L.R. 18 Eq. 683).

91 (1882) 9 Q.B.D. 616, 618, quoted, supra, text to n. 31.

92 In Barnes v. Wood (1869) L.R. 8 Eq. 424, the vendor contracted to sell an unencumbered freehold but was in fact entitled only to a life estate pur autre vie. In both Hooper v. Smart (1874) L.R. 18 Eq. 683, and Burrow v. Scammel! (1881) 19 Ch.D. 175, the respective vendors were entitled only to a half share of the property. In each of these three cases the vendor was obliged to convey what he had with compensaton.

93 (1878) 9 Ch.D. 180, better reported at 38 L.T. 782. See too Grant v. Dawkins [1973] 1 W.L.R. 1406.Google Scholar

94 The point is considered later.

95 (1878) 38 L.T. 782, 784; 47 L.J.Ch. 800.

96 Specifically under the lease, but surely under the mortgage as well.

97 [1950] A.C. 441. A strong Judicial Committee included Lords Simonds, MacDermott and Reid.

98 There was no equivalent in Sierre Leone of the Law of Property Act 1925.

99 [1976] Ch. 165, 173.

1 Hooper v. Smart (1874) L.R. 18 Eq. 683 and Barnes v. Wood (1869) L.R. 8 Eq. 424 were cited in argument. Horrocks v. Rigby (1878) 9 Ch.D. 180 and Basma v. Weekes [1950] A.C. 441Google Scholar were not.

2 [1900] 1 Ch. 815.

3 Similar reasoning commended itself to the Court of Appeal in Cedar Holdings Ltd. v. Green [1979] 3 W.L.R. 31.Google ScholarBasma v. Weekes was brushed aside on the ground that there was no trust for sale in that case [1979] 3 W.L.R. 31, 39A–B, Buckley L.J.

4 [1980] 3 W.L.R. 138.

5 The House expressly approved Bull v. Bull [1955] 1 Q.B. 234 (C.A.)Google Scholar; [1980] 3 W.L.R. 138, 145, Lord Wilberforce, 149, Lord Scarman.

6 [1980] 3 W.L.R. 138, 146, Lord Wilberforce.

7 The second reason that Graham J. gave for his decision was that a decree of specific performance would prejudice a third party—the defendant's wife. This does, with respect, seem correct, and gains cogency from the decision in Williams & Glyn's Bank Ltd. v. Boland [1980] 3 W.L.R. 138.Google Scholar Although not spelt out, the wife's position would have been prejudiced in a number of ways. In particular, the purchaser would have acquired a right to possession of the property concurrent with that of the wife. (Hence Lord Denning's assertion in Bedson v. Bedson [1965] 2 Q.B. 666, 677F–GGoogle Scholar, that husband and wife joint tenants could not sever their joint tenancy?)

8 [1979] 1 W.L.R. 446, J., TemplemanRutherford v. Acton-Adams [1915] A.C. 866Google Scholar was cited in argument, Rudd v. Lascelles [1900] 1 Ch. 815Google Scholar was not.

9 [1900] 1 Ch. 815.

10 Topfell was a case on vacant possession, Rudd v. Lascelles a case on non-disclosure.

11 White v. Cuddon (1842) 8 cl. & Fin. 766, 792 (H.L.). See too, Thomas v. Dering (1837) 1 Keen 729, 746, Lord Langdale M.R.; Earl of Durham v. Legard (1865) 34 Beav. 611, 613, Romilly M.R.; Cato v. Thompson (1882) 9 Q.B.D. 616, 618, Jessel M.R.

12 Simpson v. L. & N.W. Ry. Co. (1876) 1 Q.B.D. 274, 277, Cockburn C.J.; Chaplin v. Hicks [1911] 2 K.B. 786 (C.A.).Google Scholar In Courtney & Fairburn Ltd. v. Tolaini Bros. Ltd. [1975] 1 W.L.R. 297Google Scholar, the Court of Appeal held that there could be no such thing as a contract to enter into negotiations, giving as a reason that “no court could estimate the damages” for the breach of such a contract: 301H, Lord Denning M.R. There were other, better grounds for the decision.

13 Fry, loc. cit., p. 590, para. 1276; Ramsden v. Hirst (1858) 4 Jur.(n.s.) 200, Kindersley V.-C; Barnes v. Wood (1869) L.R. 8 Eq. 424, 429, James V.-C; Goldsmith v. Smith (1951) 52 S.R.(N.S.W.) 172, 176–177Google Scholar, Hardie A.J.; McGavin v. Gerraty (1911) 17 A.L.R. 85, 89Google Scholar, Madden C.J.

14 See generally, Joseph Story, Commentaries on Equity Jurisprudence, 12th ed. (1877), Chap. XIX.

15 Royal Bristol Permanent Building Society v. Bomash (1887) 35 Ch.D. 390, 396, Kekewich J.

16 In Gilchester Properties v. Gomm [1948] 1 All E.R. 493Google Scholar, Romer J. held that specific performance with compensation was not available where a purchaser was induced to enter into a contract of sale by the vendor's innocent misrepresentation. At that time damages were recoverable for an innocent misrepresentation only if it had become a term of the contract, and “to enforce the contract on the vendor with a compulsory deduction of part of the purchase money is in a sense to award against the vendor damages for an innocent misrepresentation” [1948] 1 All E.R. 493, 497. In Curtis v. French [1929] 1 Ch. 253Google Scholar, Eve J. held that a condition of sale providing that no compensation was to be paid in the event of a misdescription or non-disclosure, precluded an action for damages for breach of contract. These two cases should be contrasted with Re Wilsons and Stevens' Contract [1894] 3 Ch. 546, where North J. held that an action for loss occasioned by the vendor's delay in completing the contract was not a “claim for compensation” within s. 9 of the Vendor and Purchaser Act 1874 (now s. 49 (1) of the Law of Property Act 1925), but one for damages.

17 King v. Poggioli (1923) 32 C.L.R. 222, 240–242Google Scholar, Higgins J. (dissenting).

18 (1810) 17 Ves. 273, 278.

19 This has been taken to mean that damages and compensation are quite different: Grant v. Dawkins [1973] 1 W.L.R. 1406, 1409Google Scholar, Goff J.; A. J. Oakley [1980] C.L.J. 58, 62, n. 17; Meagher, Gummow and Lehane, Equity: Doctrines and Remedies (1973), p. 518, para. 2304.Google Scholar

20 Flureau v. Thornhill (1776) 2 Wm. & BI. 1078; Bain v. Fothergill (1874) L.R. 7 H.L. 158.

21 Re Chifferiel (1888) 40 Ch.D. 45, 48, North J.; and perhaps by implication. Royal Bristol Building Society v. Bomash (1887) 35 Ch.D. 390, 395–396, Kekewich J.

22 [1973] 1 W.L.R. 1406, Goff J.

23 This problem can only arise if Rudd v. Lascelles [1900] 1 Ch. 815 is wrong.Google Scholar If that case is correct, then specific performance with compensation can only be sought where the defect is insubstantial.

24 Mortlock v. Butter (1804) 10 Ves. 292, 315; Todd v. Gee (1810) 17 Ves. 273, 278.

25 In principle those damages should have been the amount necessary to discharge the mortgages, but Goff J., accepting a concession by counsel, held that the damages were limited to the amount by which the value of the property exceeded the purchase price. This part of the decision has been criticised (1974) 90 L.Q.R. 297, Professor P. H. Pettit; and it must be doubted whether it is good law.

26 Because the matter would be res judicata: McCrewy v. Stallworth, 102 So. 52 (1924, Supreme Court of Alabama).

27 See for example Bells v. Neilson (1868) L.R. 3 Ch.App. 429, 441, Lord Chelmsford. The point is discussed by Professor J. A. Jolowicz [1975] C.L.J. 224, 243.

28 There is no authority known to the present writer on the point, but as specific performance with compensation is an example of equity giving relief on terms, there seems to be no good reason why a plaintiff should have to ask for it in his pleadings.

29 Prior to 1858 the point could have mattered in one situation: if the consideration for the sale was not a lump sum of money, but was, for example, a contract to exchange land, or a sale in consideration of the withdrawal of a writ ( Lake v. Bayliss [1974] 1 W.L.R. 1073Google Scholar ), then there would be no price that could be abated and the plaintiff would have been compelled to take concurrent proceedings, for specific performance in equity and for damages at law. After 1858, a plaintiff would simply seek damages in addition to specific performance under Lord Cairns's Act.

30 (1923) 32 C.L.R. 222.

31 (1923) 32 C.L.R. 222, 248, Starke J.

32 (1923) 32 C.L.R. 222, 241–243.

33 [1973J 1 W.L.R. 1406.

34 Another possible analogy would be with the indemnity that may be given when a contract is rescinded ab initio to ensure restitutio in integrum (see for example, Whittington v. Seale-Hayne (1900) 82 L.T. 49Google Scholar ). Indemnity is a restitutionary remedy the purpose of which is to put the contracting party into the position in which he would have been if no contract had been made. Compensation is quite different. It is a remedy for breach of contract and serves to recompense a party who is unable to obtain all that he contracted for.

35 Specific Performance, 6th ed. (1921), p. 600.Google Scholar

36 Cleaton v. Gower (1674) Rep.Temp. Finch 164; Hedges v. Everard (1699) 1 Eq.Cas.Ab. 18, pl. 7; City of London v. Nash (1747) 3 Atk. 512; Denton v. Stewart (1786) 1 Cox Eq.Cas. 258; Greenaway v. Adams (1806) 12 Ves. 395. See too J. Fonblanque: A Treatise of Equity, 5th ed. (1820), Vol. 1, 44–45.

37 There does seem to have been a reluctance on the part of the Court of Chancery to assess damages: Hooker v. Arthur (1671) 2 Ch. 62; Stafford v. The Mayor of London (1719) 6 Vin.Abr. 472, pl. 10.

38 Denton v. Stewart (1780) 1 Cox 258. “The issue of quantum damnificatus might be referred to a Master of the Court or to a sheriff's jury”: David Yale (1961) 79 Selden Society, Intro. 15, n. 3; Story, loc. cit., Vol. II, para. 795.

39 (1786) 1 Cox 258.

40 He had entered into possession.

41 Even now a purchaser would be unable to recover damages on these facts: Lavery v. Pursell (1888) 39 Ch.D. 508.

42 (1810) 17 Ves. 273.

43 (1786) 1 Cox 258.

44 Todd v. Gee (1810) 17 Ves. 274, 278.

45 Blore v. Sutton (1817) 3 Mer. 237, 247–248, Grant M.R.; Jenkins v. Parkinson (1833) 2 My. & K. 5, 11–12, Lord Brougham; Sainsbury v. Jones (1839) 5 My. & Cr. 1, Lord Cottenham; Aberman Ironworks v. Wickens (1867) L.R. 5 Eq. 485, 515–516, Malins V.-C.

46 Todd v. Gee (1810) 17 Ves. 274, 278.

47 There may be a good reason why the jurisdiction survived. Although made in another context, the following remarks of Lord Edmund-Davies may provide some explanation: “The fact is that for some years before the Judicature Acts of 1873 and 1875 the common law and Chancery courts had been making increasingly friendly overtures, and these had modified the attitudes of each.” Raineri v. Miles [1980] 2 W.L.R. 847, 858G (H.L.).Google Scholar

48 (1839) 2 Beav. 239, Lord Langdale M.R.

49 The terms “compensation” and “damages” are used indiscriminately in the judgment.

50 (1855) 7 De G.M. & G. 722; 25 L.J.Ch. 105.

51 It took the form of a perpetual injunction in fact.

52 (1855) 7 De G.M. & G. 722, 734, Turner L.J. The court relied on remarks in Frank v. Basnett (1835) 2 Myl. & K. 618 and Bell v. O'Reilly (1805) 2 Sch. & Lef. 430. This latter case suggests that proceedings at law might constitute a contempt of the Court of Chancery.

53 (1855) 7 De G.M. & G. 722, 734, Turner L.J. In their Third Report on the Process, Practice and System of Pleading in the Court of Chancery (1856) Parliamentary Papers, Vol. 22, pp. 1, 4, the Commissioners pointed out that the Court of Chancery's jurisdiction to award damages “has been frequently exercised of late years upon applications for a writ of ne exeat regno, or an injunction, in which the Court has declined to interfere except upon the terms of the applicant undertaking to be answerable in damages in case it should appear that he was not entitled to the relief asked; and has afterwards proceeded to assess damages.”

54 (1855) 7 De G.M. & G. 722,736, Turner L.J.

55 Phelps v. Prothero (1855) 7 De G.M. & G. 722, 734, 736, Turner L.J. (damages); Newham v. May (1824) 13 Price 749, 752, Alexander L.C.B. (compensation).

56 Todd v. Gee (1810) 17 Ves. 274, 278, Lord Eldon (damages); Newham v. May (1824) 13 Price 749, 752, Alexander L.C.B. (compensation).

57 Milligan v. Cooke (1808) 16 Ves. 1; Peacock v. Penson (1848) 11 Beav. 355; Besant v. Richards (1830) Tamlyn 509.

58 (1855) 7 De G.M. & G. 722, 736, Turner L.J.

59 After Lord Caims's Act of 1858, the Court of Chancery could refer the assessment of damages to a court of common law: s. 6.

60 Phelps v. Prothero (1855) 7 De G.M. & G. 722, 734, Turner L.J.; Nelson v. Bridges (1839) 2 Beav. 239, Lord Langdale M.R. If the contract was completed without the need to seek specific performance, the vendor would still be liable in equity for any deterioration in the property after contract, as a constructive trustee: Clarke v. Ramuz [1891] 2 Q.B. 456 (C.A.).

61 King v. Poggioli (1923) 32 C.L.R. 222, 246Google Scholar, Starke J.

62 Cf. Brown v. Ward, 81 N.W. 247 (1899, Supreme Court of Iowa); (1908) 8 Col.L.R. 309, 310.

63 Third Report of the Chancery Commissioners (1856) Parliamentary Papers, Vol. 22, pp. 1,4: “a person entitled to the specific performance of a contract, cannot in general obtain in equity compensation for losses which he may have sustained by its non performance. It is obvious that the performance of a contract at a time subsequent to that at which it ought to have been performed may be a very inadequate remedy for the injury committed by a refusal to perform it. …” See too the remarks of Sir Hugh Cairns when introducing the Chancery Amendment Bill into the House of Commons: P.D., Vol. CXLIX, 1162.

64 Re Wilson's and Stevens' Contract [1894] 3 Ch. 546, 552, North J.; King v. Poggioli (1923)Google Scholar 32 C.L.R. 222, 246, 248, Starke J. Cf. Higgins J. dissenting, at 241–243.

65 (1810) 17 Ves. 274, Lord Eldon.

66 The assertion in Meagher, Gummow and Lehane, loc. cit., 519, para. 2306 that the power conferred by the Act to award damages in addition to specific performance “probably did not add to the Court's inherent jurisdiction” is not correct.

67 J. A. Jolowicz [1975] C.L.J. 224, 225.

68 United Scientific Holdings Ltd. v. Burnley Borough Council [1978] A.C. 904, 924–925Google Scholar, Lord Diplock, 944–946, Lord Simon.

69 Johnson v. Agnew [1980] A.C. 367.Google Scholar

70 s. 1 (a).

71 In Farrand, loc. cit., 57, it is argued that if a misrepresentation becomes a substantive term of the contract this must be taken as negativing any reliance on it by the other party, relying on a dictum of Russell L.J.'s in George Wimpey & Co. v. Sohn [1967] Ch. 487, 509.Google Scholar With respect, this seems misconceived. It is a question of fact whether or not a misrepresentation induced a contract. It is quite immaterial that it subsequently becomes a term of that contract. In the remarks relied upon, Russell L.J. was simply making the point, correct at that date, but not since 1967, that a misrepresentation that became a term of the contract ceased to be actionable as a misrepresentation.

72 s. 2 (2).

73 [1979] 1 W.L.R. 446.

74 It is not yet settled whether damages under s. 2 (1) of the Misrepresentation Act 1967 are given on the tortious or contractual measure: see McGregor on Damages, 14th ed. (1980), paras. 1482–1489. The Topfell case does not really help because the judge found that the value of the property as represented and the purchase price were the same: [1979] 1 W.L.R. 446, 450F–H.

75 P. S. Atiyah and G. H. Treitel (1967) 30 M.L.R. 368, 376–377; McGregor, loc. cit., paras. 1490–1492. The reason for this point of view is to be found in s. 2 (3) of the Act. That section visualises that the measure of damages under s. 2 (1) may be greater than under s. 2 (2). As an action founded on s. 2 (1) is essentially one for negligence, consequential loss should be recoverable under that section. For reasons explained in the references given, it is not thought that consequential loss is recoverable under s. 2 (2).

76 The methods of assessment are explained below.

77 Bain v. Fothergill (1874) L.R. 7 H.L. 158. The present writer agrees with the criticisms of the rule in McGregor on Damages, Chap. 21, and would be happy to see its demise. It is anachronistic and leads to numerous illogicalities. It has recently been held inapplicable to cases involving Torrens title by the Canadian Supreme Court: A.V.G. Management Science Ltd. v. Barwell Developments Ltd. (1978) 92 D.L.R. (3d) 289.Google Scholar

78 Malhotra v. Choudhury [1980] Ch. 52 (C.A.).Google Scholar

79 “I would not however venture to suggest that anything less than lack of good faith could exclude the rule” Stephenson L.J., Malhotra v. Choudhury [1980] Ch. 52, 72F–G.Google Scholar The court rejected the contention that “without default” meant “without fraud.” Cf. Watts v. Spence [1976] Ch. 165, 174Google Scholar, Graham J.

80 In Grant v. Dawkins [1973] 1 W.L.R. 1406, the defendant clearly was at fault: see Re Daniel [1917] 2 Ch. 405.Google Scholar

81 (1874) L.R. 7 H.L. 158.

82 If, of course, the purchaser had made a bad bargain and was paying more than the land was worth without the defect, then obviously the court ought to take the lower value as the figure to work from.

83 Cf. Ford v. White [1964] 1 W.L.R. 885Google Scholar, Pennycuick J. A property which the plaintiff was purchasing was subject to restrictive covenants. His solicitor advised him that it was not. The plaintiff sued the solicitor for negligence. It was held that the measure of damages was the difference between the purchase price and the value of the property with the encumbrance. On the facts there was no difference between those figures.

84 These will include (i) where the vendor cannot show that he is without fault in his failure to make title: Day v. Singleton [1899] 2 Ch. 320 (C.A.); (ii) where the vendor is in breach of his obligation to give vacant possession: Beard v. Porter [1948] 1 K.B. 321 (C.A.)Google Scholar; and (iii) actions on the covenants for title: Lock v. Furze (1866) L.R. 1 C.P. 441 (Ex.Ch.).

85 The Law of Contract, 5th ed. (1979), 697.Google Scholar

86 “Each case depends on its own facts” Widgery L.J., Harbutt's “Plasticine” Ltd. v. Wayne Tank and Pump Co. Ltd. [1970] 1 Q.B. 447, 472–473.Google Scholar

87 [1977] Ch. 106, 332–333, applied by Oliver J. in Radford v. De Froberville [1977] 1 W.L.R. 1262.Google Scholar

88 “What the court does is to use its common sense in measuring, in the case of the individual plaintiff and by reference to his particular circumstances, what he has lost by the breach.” Oliver, J., Radford v. De Froberville [1977] 1 W.L.R. 1262, 1272E.Google Scholar

89 Examples of the cost of cure measure are to be found in cases where a vendor has failed to give vacant possession: Cumberland Consolidated Holdings Ltd. v. Ireland [1946] K.B. 264 (C.A.).Google Scholar

90 Loc. cit., 292.

91 Here too there may be a difference between compensation and damages. It had been thought by some that the measure of damages under Lord Cairns's Act might be different from that at common law: Angela Sydenham (1977) 41 Conv. (N.S.) 341, 346–348. After Johnson v. Agnew [1980] A.C. 367 that view is untenable.Google Scholar This may mean that damages under Lord Cairns's Act are not as flexible a remedy as they were thought to be. If this is correct, there may be an advantage in seeking specific performance with compensation.

92 See for example Hill v. Buckley (1811) 17 Ves. 394.

93 Topfell Ltd. v. Galley Properties Ltd. [1979] 1 W.L.R. 446, 451F–HGoogle Scholar, Templeman J.

94 Hill v. Buckley (1811) 17 Ves. 401, Grant M.R. (but in that case the principle could not be applied in an unqualified form); McKenzie v. Hesketh (1877) 7 Ch.D. 675, Fry J.

95 Usually, the vendor is one of several tenants in common. See for example Jones v. Evans (1848) 17 L.J.Ch. 469, Shadwell V.-C; Hooper v. Smart (1874) L.R. 18 Eq. 683, Hall V.-C; Burrow v. Scammell (1881) 19 Ch.D. 175, Bacon V.-C; Basma v. Weekes [1950] A.C. 441 (J.C.)Google Scholar, Lord Reid.

96 “It is the consent of the parties alone, that fixes the just price of anything, without reference to the nature of things themselves, or to their intrinsic value” J. J. Powell, Essay upon the Law of Contracts and Agreements (1790), Vol. 2, p. 229. For Powell's treatment of specific performance with compensation, see Vol. 1, pp. 147 el seq.

97 Gall v. Mitchell (1924) 35 C.L.R. 222Google Scholar; Hill v. Buckley (1811) 17 Ves. 394.

98 Proportionate abatement has been criticised in such a context: Re Terry and While's Contract (1886) 32 Ch.D. 14, 25, Lord Esher M.R.; Re Aspinall and Powell's Contract (1889) 5 T.L.R. 446, Kekewich J.

99 Hooper v. Smart (1874) L.R. 18 Eq. 683, 685, Hall V.-C. The reason being presumably, that a half share in a property is a much less marketable commodity than the whole, and would fetch less than half the value of the whole.

1 (1888) 40 Ch.D. 45, North J.

2 The land was to be developed and any road would have been “much cut up in building operations” (1888) 40 Ch.D. 45, 48.

3 Tito v. Waddell (No. 2) [1977] Ch. 106, 332–333Google Scholar, Megarry V.-C; Radford v De Froberville [1977] 1 W.L.R. 1262Google Scholar, Oliver J.

4 [1911] 1 Ch. 521. This was an action by a vendor rather than a purchaser, but this does not affect the principles applicable to the assessment of compensation.

5 It is unclear from the report whether this meant £300 less than the purchase price or £300 less than the market value of the land without the defect.

6 Balmanno v. Lumley (1813) 1 V. & B. 224, Lord Eldon; Paton v. Brebner (1819) 1 Bli. 42, 66 (H.L.), Lord Eldon; Aylett v. Ashton (1835) 1 My. & Cr. 105, 114, Pepys M.R.; Westmacoll v. Robins (1862) 4 De G.F. & J. 390, Lords Justices. Cf. Milligan v. Cooke (1808) 16 Ves. 1, Lord Eldon.

7 (1888) 40 Ch.D. 45, 48: “The damages he has sustained is the difference between the actual value of the estate as it stood at the time of the purchase and what the actual value at the same date would have been if Cuddington Avenue had been continued across the lot in the same condition … as that part of Cuddington Avenue which had been made up.” See too White v. Cuddon (1842) 8 Cl. & Fin. 766, 792 (H.L.), Lord Cottenham, Barker v. Cox (1876) 4 Ch.D. 464, 469, Bacon V.-C; Powell, J. J., loc cit., Vol. 1, p. 149.Google Scholar

8 s. 53 (3) of the Sale of Goods Act 1979.

9 Plus of course the purchaser's conveyancing costs, and his deposit with interest.

10 (1874) L.R. 7 H.L. 158.

11 (1888) 40 Ch.D. 45.

12 See Carl Emery [1978] Conv. 338, 340, n. 15.

13 This was the case in Re Chifferiel itself. The defect was not one of title but consisted of a failure by the vendor to make up a road as he had contracted to.

14 Todd v. Gee (1810) 17 Ves. 273, 278, Lord Eldon; McGavin v. Gerraty (1911) 17 A.L.R. 85, 89, Madden C.J.; and perhaps Topfell Ltd. v. Galley Properties Ltd. [1979] 1 W.L.R. 446, 451Google Scholar, Templeman J., but in that case the value of the land with vacant possession and the purchase price were the same [1979] 1 W.L.R. 446, 450F–H.

15 [1900] 1 Ch. 815.

16 The following points may be noted: (i) Damages have been awarded for breach of a restrictive covenant, Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd. [1974] 1 W.L.R. 798, 815–816Google Scholar, Brightman J. and were assessed as the sum of money which the plaintiffs would have charged the defendant developers for relaxing the covenant. That was taken to be 5 per cent, of the developers' anticipated profits on the development, (ii) The Lands Tribunal frequently awards compensation for the modification or discharge of a restrictive covenant pursuant to s. 84 (1) of the Law of Property Act 1925, and assesses it in a similar way to that employed in the Wrotham Park case: Re S.J.C. Construction Co. Ltd.'s Application (1975) 29 P. & C.R. 322 (C.A.).Google Scholar (iii) The Chief Land Registrar is obliged to pay compensation in certain circumstances for land charges affecting a purchaser's land—including restrictive covenants—which are hidden behind the root of title: s. 25 of the Law of Property Act 1969, a situation very similar to that where a purchaser seeks compensation for an undisclosed restrictive covenant.

17 [1973] 1 W.L.R. 1406.