The excluded questions affecting the existence or validity of the contract (d) appear to he such contentions as put in issue the existence or validity of the contract at law; and it appears that, as the contractors are in the same position on a Vendor and Purchaser summons as if they were parties to an action for specific performance of their agreement (e), they are not precluded from raising in such a summons any objection to carrying out the contract, which would be a good ground of defence to an action for specific performance, but not to an action for breach of the contract at law(f). For example, either party may so raise any objection to the performance of the contract on the ground of unfairness, including such innocent misrepresentation or such non-disclosure of some matter of title as would not avail to set aside the contract at law(g). It appears too that an objection to perform the contract specifically on the ground of mistake, coupled with hardship (h), might well be raised in a Vendor and Purchaser summons, especially as it would probably involve the resistance of a claim for compensation (i). And the defence that the title is too doubtful to force upon an unwilling purchaser may be raised in such proceedings (k). Here it may be remarked that in a Vendor and Purchaser summons the position of each party, as regards the specific performance of the contract, is determined, not by the incident of his having taken out or being a respondent to the summons, but by the contention, which he raises therein. Thus we have seen (l) that a purchaser insisting as plaintiff on the specific performance of the contract must accept such title as the vendor has contracted or is able to give; although if the purchaser were the defendant, he might be able to require a better title as the condition of the vendor's enforcing specific performance against him. There may be the same difference in the purchaser's position in a Vendor and Purchaser summons according as he contends that the vendor shall carry out the contract, or that he himself is not liable to perform it specifically. But he may himself take out a Vendor and Purchaser summons to establish the latter contention (m).

Objections to specific performance which would be no defence at law.

(c) See Re Terry & White's contract, 32 Ch. D. 14; Re Fawcett & Holmes, 42 Ch. D. 150; Re Hare & O'More's contract, 1901, 1 Ch. 93; Re Puckett & Smith's contract, 1902, 2 Ch. 258; above, pp. 634 - 644, 744.

(d) Above, pp. 1016, 1017. (c) Above, p. 1016.

(f) See above, pp. 996 sq.

(g) Re Marsh, & Earl Granville, 24 Ch. D. 11; Re Davis & Cavey, 40 Ch. D. 601; Re National Provincial Bank of England & Marsh, 1895, 1 Ch. 190; Re Haedicke & Lipski's contract, 1901, 2 Ch. 666 (sed quære, whether in this case the learned judge was right in ordering the return of the deposit); see above, pp. 32, 51, 64, 65, 89, 90, 158, 160, 165 - 170, 685 & n. (a), 687, 688, 743.

(h) Above, pp. 636, 638, 693, 694; see also Wood v. Scarth, 2 K. & J. 33; Rudd v. Lascelles, 1900, 1 Ch. 815, 820.

The parties' position varies according to the contention raised by-cither.

If the controversy be whether the contract has been discharged or not (n),it appears that, in general, this cannot be determined on a Vendor and Purchaser summons; for such a contention puts in issue the very existence of the contract, and the question would, in general, be one of controverted fact (o). It has been held, however, that the Court has jurisdiction so to determine the question, whether a power contained in the contract for either party to rescind it (such as the common power for the vendor to rescind on an unwelcome requisition (p)), has been well exercised (q). This was so decided on the ground that the Vendor and Purchaser Act only excluded the consideration of questions of the initial existence or validity of the contract, and did not prohibit the Court from pronouncing on the true construction of a power to rescind, which was an express term of the agreement itself (r). The construction of any clause contained in the contract may certainly be determined in a Vendor and Purchaser summons (s); but it is submitted that the excluded questions are not only those relating to the initial validity or existence of the contract. And it is thought that if either party contend that the contract has been discharged by mutual assent (t), otherwise than under an express power of rescission, and the other party dispute this, the controversy could only be determined by the Court in an action. As to discharge for impossibility of performance (u), it appears that the Court might in a Vendor and Purchaser summons determine whether, upon the true construction of the contract, the sale were made subject to such a condition as would, in case of the impossibility of its fulfilment, cause the parties to be discharged from their agreement (x). But if this were decided in the affirmative, it is thought that the question, whether the parties were in fact so discharged, could only be tried in an action. It is also submitted that an action is the proper proceeding for the trial of disputed questions of fact, as to whether the contract has been discharged by bankruptcy (y) or by performance (a), or whether the right of action arising from a breach of the contract has been discharged by any means (a), or barred by any Statute of Limitations (b).

Questions of the discharge of the contract.

Discharge by exercise of an express power of rescission.

(i) Above, p. 1016.

(k) Re New Land Development Association & Gray, ]892, 2 Ch. 138; Re Hollis' Hospital & Hague, 1899, 2 Ch. 540; Re Sandman & Wilcox's contract, 1902, 1 Ch. 599.

(l) Above, pp. 69, 1013.

(m) Re Davis & Cavey, 40 Ch.

D. 601; Re Scott & Alvarez's contract, 1895, 1 Ch. 596; Re Hollis' Hospital & Hague, 1899, 2 Ch. 540; Re Handman & Wilcox's contract, 1902, 1 Ch. 599; above, pp. 166 - 168, 600, n. {k).