(c) Sug. V. & P. 406; Re Johnson and Tustin, 30 Oh. D. 42.

(d) Stat. 37 & 38 Vict. c. 78, s. 1.

(e) Sug. V. & P. 406, 414 et seq., 447 - 460; 1 Dart, V. & P. 142, 143, 310 et seq., 47, 5th ed., 159, 160, 350 et seq., 170, 6th ed., 155, 156, 345 et seq., 481, 7thed.; 1 Davidson, Prec. Conv. 550, 4th ed., 457, 5th ed.

(f) Flower v. Hartopp, 6 Beav. 476; Curling v. Austin, 2 Dr. & Sm. 129; 1 Davidson, Prec. Conv. 557, 4th ed., 163, 5th ed.

(g) See Re Willett and Argenti, Times L. R. 476; Re Stuart Sec.

Olivant and Seadon's Contract, 1896, 2 Ch. 328.

(h) Stat. 44 & 45 Vict. c. 41, s. 3, sub-s. 6, reversing the previous rule.

(i) Sug. V. & P. 406, 429, 430; Wms. Conv. Stat. 47 - 50.

(k) See Halsey v. Grant, 13 Ves. 73. 77 - 79; Flight v. Booth,

1 Bing. N. C. 370; Re Arnold, 14 Ch. D. 270; Jacobs v. Revell, 1900. 2 Ch. 858; U, Ware and O'More's Contract, 1901, 1 Ch. 93; Re Puckett and Smith's Contract, 1902, 2 Ch. 258; below, Chap. XII., Sec.4.

W

(l) Wms. Real Prop. 452, 13th ed., 594, 595, 21st ed.

(m) Re Gary Elwes' Contract, 1906, 2 Ch. 143, 149.

(n) Engell v. Fitch, L. R. 4 Q. B. 659; Royal Bristol, etc. Building Society v. Bomash, 35 Ch. D. 390.

(o) See post, p. 46.

(p) Sug. V. & P. 561, see 557-8; Dart, V. & P. 707, 721, 722, 5th ed.; 798, 814, 6th ed.; 714, 723, 7th ed.; 1 Davidson, Prec. Conr. 570-2, 612, 4th ed., 477-9, 5th ed.; lie Sander and Watford's Contract, 1900, W. N.

183; 83 L. T. 316

(q) Sug. V. & P. 407, 433; Re Buthy and Jesson's Contract, 1898, 1 Ch. 419.

(r) Stat. 37 & 38 Vict. c. 78, s. 2 (rule 4).

(s) Cooper v. Emery, 1 Ph. 388; Sug. V. & P. 446 - 450, 453; stat. 44 & 45 Vict. c. 41, s. 9; the vendor must also furnish the purchaser with attested copies of such last-mentioned muniments of title, if the purchaser require them, but at the purchaser's expense; stat. 44 & 45 Vict. c. 41, s. 3 (6).

The most prominent term of the contract is that which requires the vendor to show a good title. This obligation is the cause of most of the disputes and litigation between buyers and sellers of land. As is well known, the procedure usually adopted to secure the fulfilment of the vendor's duties is for the purchaser's advisers, after they have perused the abstract of title, to send in written requisitions dealing with the points in which they consider the title to be deficient or insufficiently proved or the vendor's obligations to be otherwise imperfectly discharged. To these requisitions the vendor returns written answers confessing or repudiating his liability to comply with them, as the case may be. Unless he accede to every requisition, his answers will evoke replies from the other side; and these again will demand further response. So the contest continues until all grounds of difference are removed, the title is accepted, and the parties proceed to completion, or the questions on which neither party will give way are submitted to the determination of the Court. In advising as to the conduct of these negotiations, it is of course of the highest importance to know when to insist and when to yield. On each point the conveyancer's attitude will be determined by the countenance he may expect his contention to receive from the Court, in case he should fail to convince his opponent; and at every step he must consider the alternative of submission or litigation. It is thought therefore that, before entering into a detailed examination of the terms of the contract, it will be well to take a brief survey of the remedies provided to secure its performance and of the principles on which the Court will administer relief against its breach (x).

Proof of title.

Requisitions and answers.

(t) Baxter v. Lewis,Forrest, 61; Martin v. Smith, 6 East, 555:

Poole v. Hill, G M. & W. 835;

Bug. V. & P. 240, 241

(u) Cary Elves' Contract, 1906. 2 Ch. 143.

3(2)

In the case of a breach of any of the main duties of the contract (i.e., those duties of which the performance by one of the contractors is a condition precedent to the other party's liability, as for the vendor to show a good title to or to convey the property sold or for the purchaser to pay the price (y)), the party injured is at liberty, where the contractors can be restored to their former position, either to rescind the contract and to obtain restitutio in integrum including the return of any property transferred and the reimbursement of the expenses incurred by him in consequence of the contract, or to affirm the contract and recover damages thereunder for the breach. These rights are given by the common law: but the party electing to rescind the contract for such a cause may either bring an action for the required return of property or reimbursement of money under the common law jurisdiction of the Court, or sue under its equitable jurisdiction to enforce rescission and procure the consequent restitution. Where the contract has been so far performed that restitutio in integrum is impossible, or where the duty broken is such that its performance is not a condition precedent to the other party's liability, the party aggrieved is not entitled to rescind the contract, and his only remedy at common law is to sue for damages in affirmance of the contract (z). The damages recoverable by a vendor of land for breach of the contract for sale are governed by the general common law rule as to the measure of damages, by which the parties are to be placed in the same position, so far as can be attained by a money payment, as if the agreement had been actually performed (a). Thus if the vendor have conveyed the land to the purchaser without receiving payment, he can recover the whole price. But if he sue at law for breach of contract, without having parted with his legal estate in the land, he cannot recover the full price as damages, but is limited to the amount of the loss he has actually sustained (b). The damages recoverable at law by a purchaser of land for breach of the contract are regulated by an exceptional principle; and, as a rule, he is not enabled to recover any damages for loss of his bargain, but can only obtain reimbursement of his expenses of investigating title, etc. and the amount of his deposit, if any (c). This exception to the common law rule regarding damages for breach of contract seems to have been allowed in consideration of the difficulties attending the fulfilment of the vendor's obligation to show a good title. But the most effective remedy of either party is one which the common law did not afford, and which is granted or withheld on principles entirely different from those of the parties' legal liability for breach of their agreement - that is, to enforce the specific performance of the contract under the equitable jurisdiction of the Court. The administration of this relief, though in unobjectionable cases it is granted as much of course as damages are given at law (d), is nevertheless held to be in the discretion of the Court - a discretion however which is not arbitrary or capricious, but judicial, to be exercised according to fixed rules and principles (e). To obtain a decree of specific performance is not a matter depending merely on proof of the contract and refusal to perform it, but the Court will have regard to circumstances outside the contract, and especially to the conduct of the parties, and, considering these, will determine whether it is equitable (that is, in accordance with the principles by which Courts of Equity are guided) to grant the desired relief or not (f'). Thus it is that in deciding whether the specific performance of a contract should be enforced, the Court enters into considerations, which it would not examine in adjudging what relief either party should have for a breach of the same contract at law (g). For example, a vendor of land will not be entitled to enforce specific performance of the contract unless his conduct has conformed to the standard of fair dealing, which the Courts of Equity have set; although he may be allowed at the same time to stand upon his contractual rights at common law, and to exact his full measure of compensation thereunder. If therefore special stipulations restrictive of the purchaser's rights be inserted in the contract in a manner which a Court of Equity regards as unfair, the Court will not grant specific performance of the contract at the instance of the vendor (h); notwithstanding that the vendor may be able to insist on those same stipulations in any proceedings in which the relief administered is determined solely by the rules of law (i). So also the Court may decline to enforce the specific performance of a contract on the ground that that would involve great hardship on the contractor in default, but may at the same time adjudge him to be liable in damages for a breach of the agreement (k). Besides an action for damages at law or specific performance in equity, there is another proceeding in which questions arising between vendors and purchasers of land may be decided. This is a summons under section 9 of the Vendor and Purchaser Act, 1874 (l). In such a summons the rights of the parties may be measured by the rules of equity or law, according to the relief claimed. Questions, of which the solution must result in binding either party to complete the purchase (as where it is claimed that the vendor has shown such a title as the purchaser is bound to accept) are determined according to the rules of equity applied in actions for specific performance. But if the purchaser claims not only to be relieved from performing the contract, but also to have his deposit (if any) returned to him, and his expenses of investigating the title paid, he is virtually pursuing the remedy accorded for breach of the contract in a Court of law (m); and his title to relief will be governed strictly by the rules of law, without reference to the considerations which would guide the Court in granting or withholding specific performance (n).