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1.4 The Contemporary Contribution of Equity to English Law 11 Even where damages are considered to be an inadequate remedy, the court will not necessarily order specific performance of the defendant’s obligations. This remains a dis cretionary remedy that is not ordered as a matter of course, but with reference to careful consideration of the facts. Specific factors may prevent an order for specific performance from being made. These factors include the poor conduct of the party seeking specific performance, so that a claimant who is not ready and willing to perform their own con tractual obligations will not be able to obtain an order for specific performance 42 —such a claimant does not have clean hands; 43 similarly if the claimant delays unreasonably in seeking the order; 44 or if the grant of specific performance would cause unnecessary hardship to either party, or to a third party. 45 The court’s only sanction for breach of an order for specific performance is punishment for contempt of court, but this is a powerful weapon which might be considered to be heavy-handed. Where the threat of punishment influences the defendant to carry on with performance of their contractual obligation, even though it might not have been in their economic interests to do so, this would be another reason why specific performance should not be awarded. 2. Rescission This is a remedy 46 that enables a voidable contract 47 to be treated as though it had never come into existence. 48 A contract will be voidable where there was a flaw in its making that impaired the consent of one of the parties to it, such as where they were induced to enter into it as a result of a misrepresentation or undue influence. Once a contract is rescinded, it is nullified and everything that has been done under it is liable to be undone, so that the parties are restored to their original pre-contractual position; there is a giving and a taking back on both sides. 49 Rescission can be effected at Common Law or in Equity depending on the type of flaw, known as a vitiating factor, which affected the making of the contract. The Common Law recognizes far fewer vitiating factors than Equity, but all the factors that are recognized at Common Law are also recognized in Equity by virtue of Equity’s concurrent jurisdiction, so that the party who wishes a contract to be rescinded may have a choice as to whether to seek rescission at Common Law or in Equity. Usually equitable rescission will be prefer able, because of the more extensive vitiating factors that are recognized, the less restrictive approach to the bars on rescission, and the remedial consequences which are more likely to be beneficial to the party who seeks rescission. Rescission at Common Law is a self-help remedy that takes effect by the act of the party seeking rescission, 50 which is usually effected by communication to the other party to the contract and without requiring a court order. 51 In Equity, rescission is a form of equitable © Oxford University Press 45 Patel v Ali [1984] Ch 283. 46 See generally McBride, ‘Rescission’ in Commercial Remedies: Resolving Controversies , ed. Virgo and Worthington (Cambridge: Cambridge University Press, 2017), ch. 7. 47 Rescission can also be used to set aside other transactions such as wills, deeds of gift and other voluntary settlements such as a disposition to trusts: Pitt v Holt [2013] UKSC 26, [2013] 2 AC 108. See Section 9.3.3, p. 296. 48 Johnson v Agnew [1980] AC 367, 393 (Lord Wilberforce). 49 Shalson v Russo [2003] EWHC 1637 (Ch), [2005] Ch 281, [122] (Rimer J). 50 Halpern v Halpern (No 2) [2006] EWHC 1728 (Comm), [2007] QB 88, [26] (Nigel Teare QC); O’Sullivan, ‘Rescission as a Self-Help Remedy: A Critical Analysis’ (2000) 59 CLJ 509. 51 Brotherton v Aseguradora Cobeguros (No 2) [2003] EWCA Civ 705, [2003] 3 All ER (Comm) 298, [27] (Mance LJ) and [45] (Buxton LJ). 42 Cornish v Brook Green Laundry [1959] 1 KB 394. 43 See Section 2.5, p. 37. 44 MEPC Ltd v Christian-Edwards [1981] AC 205.

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