How can I get my supplier to give me the goods I’ve paid for? Rebecca Harries writes for The Times
09 September 2021
I paid for some goods and the seller has not provided them. We had a contract and I don’t want compensation or money back, I just want the goods. I cannot get them elsewhere. What can I do?
The usual remedy for this scenario is to try to recover damages, which is hardly satisfactory if you have spent time hunting down something unique and you cannot simply buy it elsewhere. In these situations the courts have the power to compel a defaulting party to fulfil its contractual obligations. This is generally called “specific performance”.
The first thing to note is that there is no general right to specific performance; it is a discretionary and exceptional remedy. The basic requirements are: 1) there must be a valid, enforceable contract (which is unlikely to be an issue if you have a written contract) and 2) damages would not be an adequate remedy for the breach.
Focusing on the second question, in the majority of cases damages will be an adequate remedy. In most commercial settings you would enter into a substitute contract (ie buy the same goods elsewhere) and claim your losses from the seller under the original contract. These losses would be calculated by reference to the difference between the price under the original contract and the amount paid in the market for the substitute contract. They may also include loss of profit if you had planned an onward sale.
Generally, in order to establish that damages are not adequate, the goods you ordered must be unique or so rare that you are unable to find alternative substitutes. Examples might be the sale of land (as no two pieces of land are the same), a one-off antique or custom-made artwork, historical artifacts or intellectual property rights. In these scenarios, damages would be an inadequate remedy as no market substitute exists and so you would be unable to secure equivalent performance, no matter what the price.
It is also worth noting that even if you can satisfy both requirements, it does not automatically follow that an order for specific performance will be granted by the court. There are a number of grounds to refuse specific performance, one example being impossibility, such as where the seller does not actually own the goods in question and cannot supply them.
My tips: getting a court to order specific performance is tricky. Communication is the key. You need to understand from the seller whether there might just be a delay or whether they are outright refusing to provide the goods: if the latter, consider whether there are alternative sellers who you could contract with for the same goods (and then discuss with the original seller loss and the likely compensation). If all else fails, more serious steps including a threat of specific performance might help.
This article was first produced for The Times Enterprise Network. Please note this article is behind a paywall.