COMMENTS

DOCTRINE OF PART PERFORMANCE-ENGLISH AND CANADIAN ATTITUDES

Christopher Granger*

I. INTRODUCTION

During the past two years, the doctrine of part performance was con-sidered in a number of English and Canadian cases. One English case,decided at first instance, was Wakeham v. Mackenzie. 1 Canadian casesinclude: Pearson v. Skinner School Bus Lines (St. Thomas) Ltd., 2 a decisionof the Ontario High Court; Brownscombe v. Public Trustee,' a decision ofthe Supreme Court of Canada on appeal from the Court of Appeal of Alber-ta, and Erb v. Wilson4 in the Saskatchewan Court of Queen's Bench.

A reading of these cases, which accurately reflect the law and attitudesas they now stand in their respective jurisdictions, reveals that Canadian andEnglish courts differ in approach to, and understanding of, the doctrine ofpart performance and the implementation of the policies behind it. The aimof this paper is to state how they differ, to consider the origins, effects, andnature of the differences, and to suggest which of the two systems has takenthe better approach.

II. THE DOCTRINE OF PART PERFORMANCE-ORIGINS AND DEVELOPMENT

A. General

The doctrine of part performance developed in the courts of equity.Its primary function was to further the policies behind the Statute of Frauds.In appropriate circumstances, part performance could provide a device forevading the operation of that statute when rigid application of it would ac-tually result in sanctioning a fraud, causing injustice in the name of techni-

*LL.B., 1965, University of Southampton; LL.M., 1966, University of Michigan,Assistant Professor of Law, Faculty of Law (Common Law Section), University ofOttawa.

1[1968] 2 All E.R. 783 (Ch.).2 [1968] 2 Ont. 329 (High Ct.).3[19691 Sup. Ct. 658, 68 W.W.R. (n.s.) 483, 5 D.L.R.3d 673. The decision of the

Court of Appeal is to be found in 64 W.W.R. (n.s.) 559, 69 D.L.R.2d 107 (Alta. 1968).4 69 W.W.R. (n.s.) 126 (Sask. Q.B. 1969).

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cality. The following situation is typical. A contracts to buy Blackacrefrom B. With the exception that it is oral, the contract is valid and enforce-able. The Statute of Frauds, or similar legislation, in order to prevent fraudand perjury requires that the contract be in writing or supported by writing,and failure to comply with this requirement renders the contract unenforce-able. If A seeks the common-law remedy of damages for breach of thiscontract, he will not succeed because the court will not treat the contractas enforceable. ' It is settled law that he cannot obtain damages in equityunless he could obtain either specific performance or an injunction.

If A seeks specific performance, B may raise the defence of non-com-pliance with the Statute of Frauds. However, if B does not, then the courtwill ignore this factor. If B raises this defence, the courts of equity, like thecourts of common law, will deal with the matter on the basis that if the con-tracting party has not complied with the statute, the contract is regarded asunenforceable by action, including an action for specific performance. Al-though this will inevitably be the end of the matter at common law, it neednot be so in equity. Equity concerns itself with the real purpose of the statute,which is to prevent fraud. If one party can show that a straight applicationof the statute will itself result in a fraud, and there is a clearly evidencedcontract between the two parties and matters have gone so far that one partyhas relied on the contract to his detriment, it may allow specific performancenotwithstanding the Statute of Frauds.

In summary then this is the reasoning behind the doctrine of part per-formance, through which, if the rules which have developed around it aresatisfied, the courts may grant the equitable remedy of specific performanceor equitable damages or both, notwithstanding non-compliance with theStatute of Frauds or similar legislation. This doctrine constitutes a mostimportant manifestation of the wide general jurisdiction and policy of equityto grant relief against fraud "even against the words of statute." '

The doctrine emerged as early as 1685 ' and seemed firmly establishedby 1701. ' There were two major factors which contributed to the emer-gence of the doctrine. Firstly, there were the basic policies of equity whichstress the enforceability of promises and the prevention of fraud. Secondly,the courts of equity desired to give a remedy only where it was realisticallyneeded and, to avoid conflict with the basic concepts of contract as foundin the common law and in statutes, certain practical limitations were pro-duced. For example, it is necessary for a party relying on part performanceto show a "change of circumstance" or "detrimental reliance," such that he

-'This is the result of the long-standing interpretation of Lord Cairn's Act (The

Chancery Amendment Act, 21 & 22 Vict., c. 27, § 2 (1858)). the jurisdiction whichit confers has been kept alive by subsequent legislation, explained in Lavery v. Pursell,39 Ch. D. 508, at 519 (1888) (Chitty, I.).

6Viscountess Montacute v. Maxwell, I P. Wms. 618, at 620, 24 Eng. Rep. 541,at 542 (Ch. 1720) (Parker, L.C.).

7 See Butcher v. Stapeley, 1 Vern. 363, 23 Eng. Rep. 524 (Ch. 1685).s See Lester v. Foxcroft, 1 Colles 108, 1 Eng. Rep. 205 (H.L. 1701).

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cannot be easily reinstated, that is, to constitute the fraud on which equity canact. There must be shown a real, existing contract and the provisions there-of, which could be suitably enforced by the remedy of specific performance.

The interaction of these factors in their historical context produced thedoctrine and surrounding rules of part performance. Varying emphasis,whether deliberate or unintentional, upon each factor at different times hasproduced basic restrictions on the doctrine, and created differences in bothapproach and area of application which are illustrated by the variance be-tween recent English and Canadian decisions in the area.

Most of the basic principles of part performance may be seen in thecase of Maddison v. Alderson, ' which might be taken as the common de-nominator from which the present divergence between English and Canadianlaw developed.

Before the doctrine of part performance can be used, one has to complywith certain practical rules. It must be established through clear evidence,parol or otherwise, that there was a clear, definite contract which was specifi-cally enforceable between the parties. If the agreement is such that it is"subject to contract," "0 void for uncertainty," illegal, " or one for whichspecific performance would, for other reasons, not be granted, " then thisrequirement would not be satisfied, and there would be no room for the ap-plication of the doctrine of part performance. Starting with the basic premisethat the courts of equity developed the doctrine of part performance for con-tract situations, and could originally use only the remedy of specific per-formance to give effect to their policies, this rule automatically follows.

Secondly, to comply with the doctrine of part performance the plaintiffmust show that he performed certain acts. These acts must have been doneby him, or on his behalf, or at his request, on the faith of the contract andwith the knowledge of the defendant. "' The acts must be, to use the lang-uage of Lord Selbome in Maddison v. Alderson, 1 "unequivocally, and intheir own nature, referable" to the transaction alleged. These acts of partperformance must be satisfactorily proved before, in theory at least, the courtmay proceed to hear oral testimony as to the terms of the transaction itself. "The effect of satisfactorily proving such acts is "to open the door to parolevidence of the whole agreement." 1,

18 App. Cas. 467 (1883).'0 See, e.g., Ex parte Foster, 22 Ch. D. 797, at 808 (C.A. 1883)."See, e.g., Waring & Gillow Ltd. v. Thompson, 29 T.L.R. 154 (C.A. 1912)."See, e.g., Ewing v. Osbaldiston, 2 My. & Cr. 53, 40 Eng. Rep. 561 (Ch. 1837).13 Where the decree would be ineffective, for instance, such as in Ryan v. Mutual

Tontine Westminster Chambers Ass'n, [1893] 1 Ch. 116 (C.A. 1892), or where thereis some reason for refusing to exercise discretion in favour of the plaintiff, such as delay,or failure to come to equity with "clean hands."

14 See, e.g., Dann v. Spurrier, 7 Ves. 231, 32 Eng. Rep. 94 (Ch. 1802)."Supra note 9, at 479."See, e.g., Sutherland v. Briggs, I Hare 26, at 32, 66 Eng. Rep. 936, at 939

(Ch. 1841).'" Brough v. Nettleton, [1921] 2 Ch. 25, at 28 (Lawrence, J.).

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Thirdly, reliance by the defendant on non-compliance with the Statuteof Frauds as a means of escaping his contractual obligations or promisesmust amount to a fraud on the plaintiff.

These rules do not stand alone but interact to produce the overall doc-

trine. The last rule, concerning fraud, may be related to the policy of equitythat promises are enforceable and, therefore, fraud based on non-performanceof these promises should be prevented. It also ties in with the requirementthat the plaintiff must show acts of part performance, a rule which basicallyimplements and defines the circumstances in which the policies of enforce-ment of promises and prevention of fraud will apply. It is referable to thefactor respecting detrimental reliance. From this, it seems clear that the ruleconcerning the acts of part performance is the keystone to the whole ques-tion of the practical nature, interpretation, and application of the doctrine,around which all other rules revolve.

Since all other rules depend upon the requirements concerning the actsof part performance, which constitute the controlling and defining factor inthe practical and theoretical operation of the doctrine, we shall consider thedifferences of opinion regarding these requirements, and, keeping in mind thepurposes and overall practical and theoretical context of this doctrine, reachconclusions on the precise limits of the rule. We shall be concerned with thevarious legal interpretations of the phrase "acts unequivocally and in theirown nature referable" to the transaction before the court. It will be my pur-pose to suggest how this phrase should be interpreted.

B. Maddison v. Alderson

Lord Selborne, in Maddison v. Alderson, stated: "All the authoritiesshow that the acts relied upon as part performance must be unequivocally,and in their own nature, referable to some such agreement as that alleged.. . ., Lord Fitzgerald acknowledged the accuracy of this statement, butwished to add that the acts must also "necessarily relate to and affect the landthe subject of that agreement." 19 He considered that, although the doctrinewas too well-established to be questioned, the court should "rather confinethan enlarge its limits." 0 Lord Blackburn appears to have considered thatthe whole doctrine was an anomaly created in error, and said: "I do not thinkthis anomaly should be extended . . ." ,' It should be noted, however, thathe was speaking of delivery of possession as an act removing the bar of thestatute.

It seems clear that all the members of the House of Lords who expressedjudgments in this case were motivated by a desire to restrict the scope of thedoctrine of part performance. One reason for this attitude may be suggested.The Lords were very doubtful as to the existence of a contract and were re-

IsSupra note 9, at 479 (emphasis added).9 Id. at 491.

20 Id.2 Id. at 489, also at 478, 482 (Selborne, LC.), and at 483 (Lord O'Hagan).

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luctant to rely on the findings of the trial judge in that respect. 2 They wereafraid to give relief in the case before them on any basis which might laterpermit the use of the doctrine of part performance to enforce doubtful con-tracts. This could lead to the result that both the Statute of Frauds and thedoctrine of part performance itself were designed to prevent, namely, fraud.

The evidence in Maddison v. Alderson on which the jury, answering aquestion of fact, and the judge at first instance, drawing a conclusion of lawbased on the finding of the jury, found that a clear contract existed, was ap-parently the uncorroborated testimony of the plaintiff herself. 2 This cir-cumstance, taken in conjunction with the clear statement by Lord O'Haganexpressing dissatisfaction because the lower court first found the contract andthen connected the acts of part performance to it, instead of the reverse, mayexplain the real concern of the House of Lords which resulted in the attemptto limit the scope of the whole doctrine of part performance by stringentlydefining the test of sufficiency of acts of part performance.

The reasoning of the House of Lords might be summarized in the follow-ing way. The doctrine of part performance was recognized as law. It wasbased on the concept of preventing fraud in circumstances where there hasbeen detrimental reliance creating a situation where the plaintiff cannot beput back in his original position. This situation was created by what wasintended to be a binding contract. ' To allow the defendant to escape hisobligations in such circumstances by raising a technicality would result infraud. But the theory was that the doctrine was not to be used outside thisconcept in such a way that a plaintiff could easily himself commit fraud. There-fore, one must be sure that all the necessary elements involved in the con-cept behind the doctrine are satisfied. This means that, inter alia, one mustbe absolutely certain that there was a contract, and that because of the re-liance on, and performance, at least to some extent, of that contract, theplaintiff was put in a position where justice could only be done by forcingthe defendant to complete fully his side of the bargain. The problem,therefore, to be faced by the Lords was what to do in the case at bar whereat first instance a contract had been found, although the Lords themselvesactually disagreed with that finding. They could either accept that findingand go on to say that therefore the remedy must lie, creating the risk thatsituations, even more doubtful on the facts, might end up with the same result,or accept the finding of the contract (though making sure to indicate prac-tical doubts on the matter), and narrow the definition of "sufficient acts" of

22 Id. at 471-72 (Selborne, L.C.); at 483, 484 (Lord O'Hagan); at 487, 488 (LordBlackburn); and at 491-92 (Lord FitzGerald).

"31d. at 471-72 (Selborne, L.C.); at 487 (Lord Blackburn); and at 493 (LordFitzGerald). The only "corroboration" seems to have been the unattested will, whichmade no mention of any prior inducement or contractual relationship.

2This view is apparent from the remarks of Lord Selborne, id. at 474-79. It isnot fully considered or explained by the other law lords, who might be taken, however,to concur with Lord Selborne's remarks, with the exception of Lord Blackburn, whocould be taken to be denying them, id. at 490.

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part performance in such a way as to screen out this and other doubtfulcases.

The House of Lords in Maddison v. A Iderson chose to follow the secondcourse of action. They shifted the emphasis from proving the contract andplaced it upon the more legal question of showing a connection between actsdone by the plaintiff and the relationship being alleged.' They then wentfurther, as, having taken that initial step, it is suggested they had to do, andtightened the definition of what would be sufficient acts to raise the doctrine.They endorsed the proposition that the court must look at the acts first to dis-cover what they might point to. and then decide if that fitted with the relation-ship and circumstances alleged by the plaintiff. The Lords proceeded evenfurther, though this is subject to interpretation of the words of the individualjudgments, to suggest that the acts alleged must point, not merely to any re-lationship of contract, but to a relationship which either concerned the landor title in question or was even exactly parallel to the contract alleged.

It has been argued that the discussion of the doctrine of part perform-ance in Maddison v. Alderson is entirely obiter. One argument has been thatif the Lords really held that no contract had been proved, that holding wassufficient to dispose of the case, and any discussion of anything else musttherefore be obiter. 26

Another such argument is based on the attempt by the plaintiff to usethe doctrine of estoppel by representation. " It is suggested that althoughthese arguments possess some academic merit, they are not effective in deny-ing the precedential value of Maddison v. Alderson. It is proposed here toaccept Maddison v. Alderson as a leading authority, cited as such in bothEnglish and Canadian cases subsequent to it, and to concentrate upon con-sidering the validity of interpretations of it, especially in the light of whathas been set out above.

In summary, it is suggested that the policy of the House of Lords indeciding Maddison v. Alderson was to confine the limits of the doctrine ofpart performance to "clear cut" cases. This policy, made especially signifi-cant by the facts before them in that case, was based on a fear caused by thenew system for the determination of facts by juries and the procedure prev-alent at that time, then applicable to what were formerly equity cases, as aresult of the Judicature Acts. ' The Lords chose to implement this policy

2 See, e.g., Lord O'Hagan, id. at 483: "Too much attention was bestowed uponthe proof of the contract and too little on the sufficiency of the performance ....-

26 See, e.g., remarks by Riddell, L.A., in Fox v. White, [1935] Ont. W.N. 316commented on and disapproved of by Cartwright, J.. in Deglman v. Guaranty TrustCo. of Canada, [1954] Sup. Ct. 725, at 731, [1954] 3 D.LR. 785, at 791. See also,H. HA.BuRY, MODERN EQUrrY 540-41 (8th ed. 1962).

2 7 See H. HANBuRy, supra note 26, at 541.28 Support for this premise may be found clearly stated both within Maddison v.

Alderson itself and in later comment. In the judgment of Lord Blackburn, the fearthat entrusting juries with fact-finding in this type of case is dangerous is flatly ex-pressed in the following two passages. After referring to the evidence in the case,Blackburn says:

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by limiting the law relating to the sufficiency of acts of part performance.However, the measure of the limitation is debatable because of the variousinterpretations which might be given to the individual judgments.

It is suggested that (1) Maddison v. Alderson is open to interpretationas far as it lays down limits as to what are sufficient acts of part performance;(2) the procedural situation, and the risks inherent in it, which existed at thetime of Maddison v. Alderson has been changed sufficiently to allow inter-pretation from this point as well. Therefore, the real basis for emphasizingthe "legal" aspect of establishing a strong connection leading from acts to analleged relationship and subordinating to that the question of actually provingthe facts of the alleged relationship, has disappeared. With it has gone theneed, if any, to concentrate upon creating a rigid test for the sufficiency ofthe acts of part performance. When this is removed from Maddison v.Alderson, very little is left of the case except fundamental explanations of thebasis of the doctrine as mentioned above, and a decision on the facts.

C. Canadian Developments from Maddison v. Alderson

This section will not attempt to deal with every decided case on thisarea in Canada. In view of one early, and two recent, Supreme Court de-cisions, and an intervening attempt by other courts to take a new approach,firmly quashed by the latter Supreme Court cases, it is only necessary torefer to a relatively brief selection of cases.

The earliest case we need refer to is McNeil v. Corbett, " a 1907 de-cision of the Supreme Court of Canada. In that case, Mr. Justice Duff,citing Maddison v. Alderson and the statement of Lord Selborne therein thatacts relied on as part performance must be "unequivocally, and in their ownnature, referable to some such agreement as that alleged," " added that this

I do not think there is any rule of law which prevents such unconfirmedevidence from being admissible, or that would prevent a jury from be-lieving and acting on such evidence, though it ought to be strongly pointedout to them how dangerous it would be to do so. The risk of a jury comingto such a decision, and the consequent practical change in the doctrine ofspecific performance, is one of those which the Legislature, in amalgamatinglaw and equity, did not perhaps sufficiently provide for.

8 App. Cas. 467, at 487 (1883). He continues: "There are many rules laid down asto what should guide a judge, determining for himself what the facts are, in thinkingthe proof of a contract sufficient. I see great difficulty, now that equity is to be ad-ministered by a Court which has the facts found by a jury, in applying these to a trialby jury, but that is a question not raised now." Id. at 489 (1883). In a note onMcManus v. Cooke, 4 L.Q.R. 114-15 (1888), just five years after the decision inMaddison v. Alderson, it is said that Kay, J., expressed the view that the doctrine ofpart performance applied in his estimation to more than just cases involving an interestin land, but to any case in which a suit for specific performance would have been en-tertained if the alleged contract had been in writing, and that "[t]he doctrine is one tobe applied with extreme caution. The policy of the Statute of Frauds was and is toprevent important classes of contracts resting on the 'frail testimony of memory,' andis not to be too readily relaxed because the Statute sometimes shelters fraud."

2939 Sup. Ct. 608 (1907)."Supra note 9, at 479.

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meant on the facts before him "an agreement respecting the lands them-selves." " He decided that: "[I]t is only after such acts unequivocally refer-able in their own nature to some dealing with the land which is alleged tohave been the subject of the agreement sued upon have been proved thatevidence of the oral agreement becomes admissible for the purpose of ex-plaining those acts." He concluded that, on the evidence (which, it shouldbe noted, he found dubious): "Here there is nothing in the nature of the actsproved which bears any necessary relation to the interest in land said to havebeen the subject of the agreement in question. A sale and purchase of thestock and bonds actually transferred would suffice to explain them." "

It is suggested that, since 1907, the Canadian law respecting sufficiencyof acts of part performance has been firmly based on the case of Maddisonv. Alderson. Mr. Justice Duff appears to have adopted a limited interpre-tation of Lord Selbore's phraseology, namely, that the court should lookat the acts of part performance proven and see whether they point to a con-tract of the nature of the one alleged, in the sense of being reasonably ex-plainable only by some agreement respecting the lands in question. It issubmitted that this must involve a reasonable similarity between the actsalleged and the agreement alleged. One cannot look at acts strictly in theabstract and try to see where they could point. That would effectively pre-clude almost any successful use of the doctrine of part performance. ' Ifone can characterize Lord Selborne's phraseology as capable of two extremesof interpretation, then it would seem that Mr. Justice Duff took a view mid-way between them. One extreme would involve the necessity that the actsbe capable of one explanation only on the basis of the actual contract alleged.The other extreme would be that it was necessary only that the acts, whenreasonably compared with the parol evidence in toto, and the contract alleged,support clearly the conclusion that there must have been some definite con-tract, and fit in with the contention that that contract is the one alleged. It issuggested that the first of these extreme interpretations would be ridiculousbut that either the second interpretation or a mid-way view, such as that ex-pressed in McNeil v. Corbett, are possible realistic interpretations of Maddi-son v. Alderson. Which of these interpretations is adopted depends on basicpolicy considerations which are not often expressed.

The interpretation of Maddison v. Alderson adopted by Mr. JusticeDuff in McNeil v. Corbett was followed in Meston v. Gray. ' This decision,however, makes no reference to McNeil v. Corbett. Mr. Justice Turgeonstated in Meston that "the acts performed must speak for themselves, and

31 Supra note 29, at 611.

32 Id.S3Id. at 611-12.34 See Jennings v. Robertson, 3 Grant Upper Can. Ch. 513, at 523-24 (1852)

(Chancellor Blake), cited by Meredith, C.J.O., in Wilson v. Cameron, 30 Ont. LR. 486,at 493 (1914), rebutting a suggestion that the judgments of Lord Selborne and LordO'Hagan in Maddison v. Alderson stating the rule about sufficiency of acts of partperformance should be strictly interpreted. Id. at 491-93.

[1925] 4 D.L.R. 887 (Sask.).

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must point unmistakably to a contract affecting the ownership or the tenureof the land, and to nothing else." " It should be observed that the court,although refusing to apply the doctrine of part performance, considered thealleged agreement well proved by parol evidence, and indeed went on topermit recovery by the plaintiff on the basis of quantum meruit, an approachlater generally adopted by the Supreme Court of Canada in Degiman v.Guaranty Trust Co. of Canada. "

Although the Ontario Court of Appeal at first appeared to accept thetest of sufficiency of acts of part performance which McNeil v. Corbett hadlaid down, ' it tried to break with this interpretation of Maddison v. A Idersonin subsequent years with the hope of introducing a more liberal test. Twocases in which this attitude is apparent are the 1914 case of Wilson v.Cameron, " and Fox v. White ' in 1935.

In the earlier of these cases, Chief Justice Meredith accepted the lawas stated in Fry's Specific Performance and in Halsbury's Laws of England. ' 1

He cited Lord Selborne's words and explained them as follows: "It is plain,I think, that the Lord Chahcellor, by the use of the words 'some such agree-meat as that alleged' did not intend to state the principle in narrower termsthan those in which it is stated in Fry... and Halsbury's Laws....," ,' Aftersupporting this interpretation by reference to the cases cited by Lord Selborne,he concluded that the case before the court fell within the test set out inMaddison v. Alderson, and relief should be granted.

Mr. Justice Riddell in Fox v. White, after stating that the court wasunanimously satisfied that the contract alleged had been established, " pro-ceeded to adopt the test of sufficiency of acts of part performance laid downby Fry and Halsbury. He attempted to distinguish Maddison v. Alderson onthe ground that the statements in that case regarding the doctrine of partperformance were obiter, being unnecessary to the decision of the case sincethe House of Lords found no proven relationship of contract. "

Other members of the court in Fox v. White seem more cautious.Justices Martin and Middleton, after reiterating the unanimous opinion of thecourt that the oral agreement alleged had been clearly established, stated"the services rendered . . . were distinctly and definitely attributable, andattributable solely, to the agreement as established." " In short, they

"Id. at 888.[1954] Sup. Ct. 725, [1954] 3 D.L.R. 785.

88See, e.g., Coulter v. Elvin, 2 Ont. W.N. 678, at 679-80 (1911).'630 Ont. L.R. 486 (1914).40 [1935] Ont. W.N. 316.41 This test is to be found stated in E. FRY, A TREArISE ON THE SPECIFIC PBR-

FORMANCE OF CONTRACTS (5th ed. 1911) (6th ed. 1921) and for which see infra notes75, 83; and in 27 HAJ.SBuRY, THE LAws OF ENGLAND 31-32, § 49 (1st ed. 1907), nowre-stated in 36 1d. at 292-93, § 413 (3d ed. 1961).

Supra note 39, at 491."Supra note 40, at 316.

Supra note 40, at 317.4Id.

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avoided stating a clear test for sufficient acts of part performance, whileagreeing with the result in the case at bar.

Summarizing these two cases, it may be said that both contain supportfor the wider test as to sufficiency of acts of part performance laid down byFry and Halsbury. In the one case, the principal judicial advocate of thistest does not find it necessary to avoid Maddison v. Alderson, but suggeststhat a wider test may validly be extracted from that case by interpretation.In the other, the leading judicial advocate for the liberal test feels it necessaryto distinguish Maddison v. Alderson and hold it inapplicable. This, it issuggested, was not necessary, nor was the ground suggested for making thedistinction convincing. In both cases, there seems to have been a "clearcut" fact situation supporting the plaintiff's allegations of the contract, and inboth decisions McNeil v. Corbett is ignored.

It is interesting to observe that, in Foster v. Royal Trust, ' decided somefifteen years after Fox v. White, the Ontario High Court seemed to be takinga new stand. It distinguished Maddison v. Alderson on its facts, retained(in theory) a strict test as to sufficiency of acts of part performance, but(in fact) did not apply it to the facts of the case. The judge, sitting withouta jury, was clearly satisfied of the truth of the plaintiff's case. The factsin the case were similar to those in Maddison v. Alderson, but the evidencewas much stronger. The judge's problem was to avoid arriving at a decisionsimilar to that which was reached in Maddison v. Alderson. He did this bydistinguishing Maddison v. Alderson on the facts on the ground that the actsof part performance alleged therein were equivocal, as they could havepointed to a contract for wages whereas this was not so on the facts of thecase before him. " He states: "[T]he plaintiff's acts.., are not referable to acontract for wages, and I cannot apprehend to what kind of contract theycould be said to be referable unless to some such as the plaintiff asserts." 43He continues: "I am satisfied that the conduct of the plaintiff and theHollowells, . . .was unequivocally referable to the agreement alleged by theplaintiff and to nothing else; .... "

This approach, which is in effect nothing more than the English ap-proach but which is not stated as such, has its attractions. Disregardingresult and referring only to the method used to get that result, the advantagesare these. The court can actually avoid stating precisely what test for suf-ficiency of acts of part performance it is using, while theoretically and byimplication following the strict test. The technique used also facilitatesdistinguishing decisions of higher courts on the facts of each case. Disad-vantages would seem to be that its use creates another apparent precedent,

' [1950] Ont. 673, [1951] 1 D.L.R. 147 (High Ct. 1950)." Id. at 679, [1951] 1 D.L.R. at 152. It should perhaps be mentioned that the

judge in Foster also observed that a factor assisting the plaintiff in the case before himwas that there was no question of her trying to upset an attested will and being subjectto the heavy burden of proof in so doing.

4"Id. at 680, [1951] 1 D.L.R. at 153.4'1d. at 681-82, [1951] 1 D.L.R. at 154-55.

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strengthening the position for a strict test. Its effective employment dependsupon the possibilities of simply stating, but not always being able to demon-strate, that the facts proven satisfy that strict test, and being able to dis-tinguish the case or cases one has to avoid, in order to support the desiredresult. It suggested, with respect to this last point, that neither the attemptto distinguish Maddison v. Alderson by arguing that the majority of what issaid in it is obiter, nor the ingenious device of distinguishing it on the groundsuggested in Foster v. Royal Trust, should be supported.

In 1954, the Supreme Court of Canada handed down its decision inDeglman v. Guaranty Trust Co. of Canada." This decision, on factsweaker than those of Maddison v. Alderson, represents the law in Canadatoday. In DegIman, the Supreme Court of Canada decided that there wasno case for specific performance on the facts, since there were not sufficientacts of part performance to enable the doctrine to be used to avoid the ap-plication of the Statute of Frauds. However, it held that the plaintiff shouldrecover on the basis of quantum meruit. It is suggested that the SupremeCourt was more concerned with establishing the latter point, than with care-fully considering the former.

Mr. Justice Rand, with whom both Chief Justice Rinfret and Mr. JusticeTaschereau concurred, states that the leading case on part performance isMaddison v. Alderson, and that he was "quite unable to distinguish thatauthority from the matter" " before the Court. He quotes from the judg-ments of Lords Selborne, O'Hagan, and Blackburn, and appears to accept theideas that part performance is an anomaly which should not be extended, "and that it should be used only when the "acts are referable and referableonly to the contract alleged." " He states: "[Sitrict pleading would seem torequire a demonstrated connection between the acts of performance and adealing with the land before evidence of the terms of any agreement is ad-missible." " He concludes: "The facts here are almost the classical caseagainst which the statute was aimed: they have been found to be truly statedand I accept that; but it is the nature of the proof that is condemned, not thefacts, and their truth at law is irrelevant." ' He then continues, to findthat since services had been rendered, not gratuitously but on the basis of afactual contractual relationship, there could be recovery for those serviceson the basis of "restitution against what would otherwise be an unjust en-richment of the defendant at the expense of the plaintiff." "

Mr. Justice Cartwright, delivering his judgment on behalf of JusticesEstey, Locke and Fauteux, considers the doctrine of part performance morethoroughly. He states that, firstly, it was clear that none of the acts done by

11 [1954] Sup. Ct. 725, [1954] 3 D.L.R. at 785.51 Id. at 728, [1954] 3 D.L.R. at 787.32"d.531d.541d.'Id. at 728, [1954] 3 D.L.R. at 788.56 Id.

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the plaintiff were in their own nature unequivocally referable to any dealingwith the land in question, but secondly, on the facts, they were in their ownnature referable to some contract existing between the parties, "' and thirdly,the Ontario Court of Appeal, considering Maddison v. Alderson, and Foxv. White, adopted the test propounded by Mr. Justice Riddell in the lattercase, and therefore found a good case for specific performance. He thenproceeds to examine the view of the Ontario Court of Appeal, and comingto the conclusion that it was not a correct one, " adopts the stricter test im-plied in his first statement.

Mr. Justice Cartwright points out that the earlier Supreme Court ofCanada decision of McNeil v. Corbett does not appear to have been referredto either in the argument or in the judgments in Fox v. White and Wilson v.Cameron, " but that the reasoning in McNeil was followed in Meston. ' Heagrees with the view of Maddison v. Alderson expressed in McNeil, and doesnot think that it can be distinguished on the ground suggested by Mr. JusticeRiddell in Fox v. White, or that it can be interpreted in the way that ChiefJustice Meredith attempted in Wilson v. Cameron to fit in with the statementsof Fry and Halsbury. 61 Mr. Justice Cartwright does not think that Mr.Justice Duff's remarks in McNeil could be considered obiter, and does notthink it necessary to decide whether that passage is binding since he believesit states the law correctly in any event. ' He also notes that neither Mr.Justice Middleton nor Mr. Justice Masten, though agreeing with Mr. JusticeRiddell in dismissing the appeal in Fox v. White, concurred with the latter'sreasons for doing so. '

The judgments of Mr. Justice Cartwright, who goes on to permit re-covery on the basis of quantum meruit, and of Mr. Justice Rand clearly leadto the conclusion that the Deglnan decision of the Supreme Court of Canadareaffirms McNeil v. Corbett and overrules Wilson v. Cameron, Fox v. White,and similar decisions, in stating, upon interpretation of Maddison v. Alderson,a strict test of the sufficiency of acts of part performance. This test is thatit is not sufficient that those acts must be in their own nature unequivocallyreferable to some contract and consistent with the actual contract alleged, butthat those acts must be unequivocally and in their own nature explainable by,or pointing to, a dealing with the land in question, if land is concerned, or, ifland is not concerned, then the acts in question must in the same waypoint to the contract alleged, not necessarily exactly as it is, but at least tothe type of contract and subject matter it is alleged to deal with. In otherwords, if the acts in question, taken in context and reasonably viewed, couldbe explained by a non-contractual relationship, or by a contractual relation-

5Id. at 729, [1954] 3 D.LR. at 789.58Id. at 730, [1954] 3 D.L.R. at 790."Id. at 733, [1954] 3 D.LR. at 793."oId. at 734, [1954] 3 D.L.R. at 793-94. See supra text accompanying notes

30-35 for that reasoning."Id. at 732, [1954] 3 D.LR. at 792.62 Id. at 733, [1954] 3 D.LR. at 792."Id. at 730, [1954] 3 D.L.R. at 790.

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ship of a different subject matter and order than the one alleged, then therewould be no room for the application of the doctrine of part performance.

The Deglman case has been applied consistently in subsequent Canadiancases. " One recent case involving such application is Brownscombe v.Public Trustee. ' In this case, the Alberta Court of Appeal unanimouslydisagreed with the lower court which held that the plaintiff was entitled tospecific performance and, as the property in question had been sold, receivethe proceeds of the sale and a declaration of title respecting a certain truck.The Court of Appeal considered that the acts alleged as part performancewere not sufficient, but, evidence of the relationship and services renderedon the basis of this relationship being clear and certain, relief by way ofquantum meruit for such services should be granted on the same ground asin Deglman.

The Court of Appeal, although accepting that an oral contract had beenproved, " decided on the basis of the test laid down in McNeil and Deglmanthat none of the acts alleged, for example, acts of labour, and the buildingof a house, were "'unequivocally and in their own nature referable' to anagreement that the land on which the acts were performed was to be left bywill to the person who did the labour." "

The case was appealed to the Supreme Court of Canada, which pro-nounced judgment in May, 1969." Mr. Justice Hall, concurred in by Jus-tices Martland, Judson, Ritchie and Spence, restored the judgment of thecourt of first instance. Mr. Justice Hall expressly accepted the test laid downin McNeill v. Corbett and approved of in Deglman and simply stated thatin his view "the building of the house on the lands in question ... at thesuggestion of Vercamert almost, if not wholly, at the appellant's expense was,as the learned trial Judge found 'unequivocally referable' to the agreementwhich the appellant alleged had been made" "' even though he found it wasclear that "not all the acts relied on . . .can be regarded as 'unequivocallyreferable in their own nature to some dealing with the land,' .... ,

Thus, it is submitted, we may accurately say that the Canadian law, ex-pressed in Deglman and subsequent cases such as Brownscombe, requiresstringent demonstration of a connection between the acts alleged as part per-formance and the contract alleged, and is based on a strict interpretation ofMaddison v. Alderson. It has adopted the policy of restricting the applica-tion of the doctrine of part performance by shifting the emphasis from theproof of facts to the legal questions of sufficiency of acts of part performance,and defined such questions very strictly. The Canadian law has gone further

"See, e.g., Baker v. Guaranty Trust Co. of Canada, [1956] Ont. W.N. 120, 1D.L.R.2d 448 (High Ct.); Kramaruk v. Kushnir, [1956] Ont. 392, 2 D.L.R.2d 452; andmost recently, Erb. v. Wilson, 69 W.W.R. (n.s.) 126 (Sask. Q.B. 1969).

[1969] Sup. Ct. 658, 68 W.W.R. (n.s.) 483, 5 D.L.R.3d 673."64 W.W.R. (n.s.) 559, at 562, 69 D.L.R.2d 107, at 109.67d. at 565, 69 D.L.R.2d at 111." [1969] Sup. Ct. 658, 68 W.W.R. (n.s.) 483, 5 D.L.R.3d 673.69 Id. at 664, 68 W.W.R. (n.s.) at 490, 5 D.L.R.3d 673, at 678.70 Id. at 664, 68 W.W.R. (n.s.) at 480, 5 D.L.R.3d at 678.

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in attempting to create a new ground for relief in appropriate cases wherethe facts are clearly proved, but the application of that strict legal test re-garding the acts of part performance precludes relief by specific performanceor damages in lieu thereof, on the basis of unjust enrichment. We shall es-timate the validity of that solution, in terms both of theory and practicaleffect, after considering the attitude of the English courts to this same prob-blem area.

D. English Development after Maddison v. A lderson

Despite some possible initial reluctance to interpret Maddison v. Alder-son liberally, the law in this area has tended to become more flexible. It haspresently reached a position such that the effect of the Statute of Frauds, asreappearing in section 40 of the Law of Property Act, 1925, "' has been re-duced to a bare minimum in cases where the facts are, as a matter of straightevidence, reasonably certain.

The 1917 decision of the Court of Appeal in Chaproniere v. Lambertmight at first sight be taken as containing a restrictive interpretation of Maddi-son v. Alderson. In that case Lord Justice Warrington, citing Fry's SpecificPerformance states that "the acts of part performance must be such as notonly to be referable to a contract such as that alleged, but to be referableto no other title." 7' He then seems to suggest that this means proving thatthe acts are "referable only to the contract alleged and no other." "' How-ever, it should be noted that he was far more concerned with the element offraud and whether the payment of purchase-money by itself was an act makingit a fraud on the part of the defendant to take advantage of the contract notbeing in writing (he correctly concludes it was not), than with defining thecorrect test of sufficiency of the connection between the acts and the allegedtransaction. Lord Justice Warrington cited only part of the passage by Frydealing with part performance. ' His only reference to the "test of refer-

71 15 & 16 Geo. 5, c. 20, § 40(1) (1925).- [1917] 2 Ch.D. 356 (C.A.).73

1 d. at 361.74 Id.7 The passage in E. FRY, A TREATISE ON TH SPECIFIC PERFORMANCE OF CON-

T-Acrs at 291, § 580 (5th ed. 1911) states:In order thus to withdraw a contract from the operation of the statute,several circumstances must concur: 1st, the acts of part performance must besuch as not only to be referable to a contract such as that alleged, but to bereferable to no other title, 2ndly, they must be such as to render it a fraudin the defendant to take advantage of the contract not being in writing; 3rdly.the contract to which they refer must be such as in its own nature is enforce-able by the Court; and 4thly, there must be proper parol evidence of thecontract which is let in by the acts of part performance.

Warrington. L.J., after stating that every one of those four conditions is essential, makesit quite clear that he is concerned primarily with the second of them. It should benoted that E. FRY, A TREATISE ON THE SPECIFIC PERFORNLANCE OF CONTRACTS, (5thed. 1911), as used by Warrington, goes on to explain what is meant in the above pas-sage. In discussing the first condition, Fry states that: "The true principle, however,of the operation of the acts of part performance seems only to require that the acts in

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ability" was completely indirect and not necessarily intended to be a carefuldefinition of that test. Therefore, one cannot take Lord Justice Warringtonas clearly stating a test of sufficiency of acts of part performance in strictterms. One can, however, conclude that Lord Justice Warrington acceptedFry's text (then in its fifth edition) as containing the correct law on thedoctrine of part performance. Since there was no change in the key para-graphs on sufficiency of acts of part performance in the sixth edition of Fry'sbook, it may be concluded that he would still accept Fry's statement as cor-rectly stating the law on this point. As will be seen shortly, Fry states aliberal test, not a restrictive one. This would seem to support the view thatLord Justice Warrington did not intend any restrictive test, but was talkingpurely in terms of "detrimental reliance" and the need to demonstrate thisbefore the doctrine of part performance could be used at all.

Neither Lord Justice Swinfen Eady nor Lord Justice Bankes appear tostate anything about the "test of referability." The latter correctly statesthat he thinks "the point as to part performance is not open to the plaintiffon the authorities." 7' The judgment of the former is based on the premise,supported by Maddison v. Alderson, that a mere payment of money, whichcan be recovered, is not a sufficient act of part performance in that it doesnot "change the relative positions of the parties," ,' unlike a change of pos-session or nature of tenure, which satisfies the concept of "charging thedefendant on the equities" to prevent fraud resulting from a situation of detri-mental reliance.

It is submitted that it is, therefore, not necessarily correct to take Chap-roniere v. Lambert as stating a strict test for the sufficiency of acts of partperformance with regard to their connection with the alleged contract. Evenassuming that the case might be validly taken as such, it seems clear that latercases have rejected a strict test, and rejected Chaproniere v. Lambert if in-deed it does attempt to define rigidly the connection between acts and thealleged agreement.

In 1963, the English Court of Appeal in Kingswood Estate Co. v. An-derson "8 accepted the test set out in Fry's Specific Performance, as it appearsin both the fifth and sixth editions, with regard to the sufficiency of acts ofpart performance. Lord Justice Willmer stated that it was not his under-standing that "part performance must necessarily be referable to the agree-ment, and only the particular agreement, relied on,"'" and adopted the word-ing used by Anson that the acts of part performance relied on "must of them-

question be such as must be referred to some contract, and may be referred to thealleged one; that they prove the existence of some contract, and are consistent withthe contract alleged." Id. at 292, § 582 this phraseology is exactly the same as appearsin E. FRY, SPEcIFic PERFoRmANCE (6th ed. 1921), as quoted in later English cases,such as Kingswood, see infra note 78. It seems inconceivable that Warrington failedto read beyond the passage he quotes himself.

" Supra note 72, at 360.77 Id. at 359.78 [19631 2 Q.B. 169 (C.A. 1962).9Id. at 181.

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selves suggest the existence of a contract such as it is desired to prove," " andheld that there was ample proof of part performance within that principle.Lord Justice Upjohn stated that the facts presented "a complete text-bookcase of part-performance," "' mentioned that the idea of a restrictive interpre-tation of the phrase "referable to a contract such as that alleged, but . . .to no other title" " was "long-exploded," and concluded the true rule, as itappears in Fry's book, to be that: "The operation of acts of part-performanceseems only to require that the acts in question be such as must be referredto some contract, and may be referred to the alleged one; that they prove theexistence of some contract, and are consistent with the contract alleged." "Applying this rule, he found the requirements of the doctrine of part perform-ance to be satisfied on the facts, and Lord Justice Russell agreed with thisconclusion. "

Mr. Justice Stamp, in the 1968 High Court decision of Wakehanz v. Mac-kenzie, ' followed Kingswood in applying the test adopted therein, based onthe passage quoted above from Fry's book. He stated that he was satisfied"not merely on the balance of probability, but beyond all reasonable doubt" "that the contract existed as alleged. He attacked with vigour the misuseof the Statute of Frauds, as re-enacted in the Law of Property Act, in orderto escape contractual liabilities:

It is an unhappy reflection that in this year of grace it should be possible,and indeed the duty of the defendant as an executor and in answer to acontract so very clearly proved, to rely, if it applies, on a statute replacingone passed nearly three hundred years ago for "prevention of many fraudu-lent practices which were commonly endeavoured to be upheld by perjuryand subornation of perjury"; a statute passed at a time in the history of ourlaw, when the defendant to an action could not give oral evidence and when,as until recently, in the action at law on a contract the facts were fouud by ajury; a statute which, almost from the outset of its existence, was held bythe judges was not to be used as an engine of fraud or to cover fraud; astatute which was held not to operate to avoid a contract but merely to pre-vent an action being brought on it. Nothing could have been more fraudu-lent to the way of thinking of the old equity lawyers than that Mr. Ball, orhis executor standing in his shoes, having induced performance of the con-tract and enjoyed the benefits of that performance, should have repudiatedhis obligations in reliance on the statute. And the question which I haveto decide is whether that performance was such as to raise equities which,consistently with the authorities, entitle the plaintiff to have the contractperformed by the defendant: authorities which are neither consistent nor easyto reconcile because the common law judges until comparatively recent times

81 W. ANSON, PRINCIPLES OF THE ENGLISH LAw OF CoNTtcr 78 (22d ed. A.Guest 1964).

"' Supra note 78, at 189.2 Id.

83E. FRY, SPECIFIC PERFORMANCE 278, § 582 (6th ed. 1921). See also E. FRY,A TREATISE ON THE SPECIFIC PERFORMANCE OF CONTRACTS at 292 (5th ed. 1911).

SSupra note 78, at 193.s [1968] 2 All E.R. 783 (Ch.). See also Bicknell, Comment, Part Performance,

118 NEw LJ. 830 (1968).ss [1968] 2 All E.R. 783, at 784 (Ch.).

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regarded as most satisfactory a statute which the equity judges, not dependenton a jury to find the facts, would, if the doing of equity required it, en-deavour to circumvent. 87

Mr. Justice Stamp suggested also that if Chaproniere v. Lambert at-tempted to establish on the basis of an interpretation of Maddison v. A Idersona strict rule about the sufficiency of acts of part performance, the attempt wasoverborne by Kingswood. Quoting from the judgments in Kingswood, "' heconcluded that the true rule is contained in the passage quoted above fromFry's book.

In their recent decisions, therefore, the English courts have placed a veryliberal interpretation upon Maddison v. Alderson as far as the test of "con-nection" between the acts alleged as part performance and the contract al-leged are concerned, and prefer to place the emphasis on proving the con-tract as a question of fact.

III. COMPARATIVE ANALYSIS

As was said above, the doctrine of part performance is based upon thepolicies of enforcing promises and preventing fraud. S" It is limited funda-mentally by the fact that it is used to give the remedy of specific performance,and, therefore, the requirements surrounding that remedy must be satisfiedbefore the doctrine can be used at all. It is further limited by the require-ment that the plaintiff must show that, in effect, he is in a situation whereno other remedy is just or practical, and that to give him either no remedyat all or any other available remedy will result in the defendant having gainedan unfair advantage. In short, he must show that he has actually reliedon his bargain with the defendant to his detriment, and that to do justicein all the circumstances of that reliance, which must have been active andnot merely passive, he must have the bargain specifically enforced, It isbeyond question that these limitations are necessary to the very nature of thedoctrine of part performance as it stands. If they were altered or removed,we should be dealing with something other than that doctrine. It is probablyunrealistic to suggest that either English or Canadian courts would attemptto go beyond these basic confines.

The question then becomes one of whether further restrictions shouldbe placed on the operation of the doctrine as it is outlined above. It is sub-mitted that such restrictions would basically be unnecessary as far as estab-lishing the fundamental nature of the doctrine is concerned. This is, inessence, the same question raised earlier: should the courts restrict furtherthe operation of the doctrine of part performance by limiting the definitionof acts of part performance necessary for the successful use of the doctrinein any given case?

'Id. at 785-86 (emphasis added).8 Id. at 786.8' See text, Part 11(A), for the preliminary premises of the whole doctrine.

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One may eliminate here one possible source of misunderstanding. Alimitation has been placed upon the type of acts which can be used to raisethe doctrine of part performance. Thus, for example, a mere payment ofmoney by itself has been consistently held not to be a sufficient act of partperformance. However, this restriction is not in question, since it is merelya manifestation of the basic limitation mentioned above as going to the rootof the whole doctrine. The doctrine is designed only to take effect in caseswhere a situation is not justly and practically remediable except by grantingspecific performance. Money paid can be restored and no injustice done, ifno other "reliance" has been placed upon the bargain which is irremediable.We are here concerned with other limitations over and above this basic one.

We have already seen that possibly early English cases, and certainlymodem Canadian ones, placed an additional limitation on the operation ofthe doctrine by stringently defining the necessary connection between the actsalleged as acts of part performance and the agreement alleged. We havealso seen that modem English law does not support such a limitation.

What justification can be found for such a limitation, and how valid isit today, in the light of the basic nature and purposes of the whole doctrine?

One justification, the validity of which cannot basically be doubted,flows from the original purpose of the doctrine as a device for evading theoperation of the Statute of Frauds. The purpose of that statute is toprevent a plaintiff from coming to court and convincing it that he is entitledto a remedy based on a situation which is not as he says it is, that is, toprevent a court from being deceived into doing injustice by false oral testi-mony. The doctrine of part performance is a way of avoiding the effectsof the statute, and hence there is a danger that the doctrine could be usedto deceive a court into granting a remedy which it should not grant. There-fore, the court must always be very wary of permitting the doctrine to bemisused in this way and of sanctioning fraud. This policy, of course, mustbe given effect. The question is, how should it be given effect?

In early English law, the policy was, naturally, recognized. In Maddi-son v. Alderson it is quite obvious that the House of Lords was greatlyafraid of doing or saying anything which might defeat it. The Lords wereespecially aftaid that allowing the doctrine to rest essentially on questions offact found by a jury (an innovation in equity cases at that time introducedas a result of the Judicature Acts) would have exactly that effect. It there-fore could be said that it is not enough that you convince a jury as a questionof fact that you made a contract, that you performed certain acts in relianceon that contract, and that the terms of that contract were X, Y, and Z. Youcould be fooling that jury by unsupported testimony. You must also satisfythe judge that the facts you proved to the jury can only be explained by acontract such as the one you allege. And you must not simply be able tosay, "here are the facts, they point to some contract, therefore they supportthe contract I am alleging." You must be able to say "here are the facts,they can point only to a contract of the type I am alleging, concerning that

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subject-matter I am talking about, and they cannot be reasonably explainedin any other way."

The English courts, in more recent decisions, have felt that it is notnecessary to say this. They do not feel that they will be confronted withunreliable findings of fact, especially since the majority of such findings are nolonger made by a jury in civil cases. They are quite satisfied that the court,on hearing and weighing all the evidence, is reasonably capable of disting-uishing doubtful cases from cases in which the Statute of Frauds, or similarlegislation, should not constitute a bar to a bona fide plaintiff. Thus, withoutdenigrating from the policy of restricting the doctrine of part performanceto clear-cut cases, they have felt able to rely on the whole of the evidence,and require only a simple connection between the acts and agreement alleged.They say show us what happened, and if, when we have ascertained the truesituation as a whole, you can show us that what you did can only reasonablybe explained on the basis of some contract, and would not conflict with theprecise contract you allege, we will help you. If you can satisfy us as towhat really happened, we don't need to bother too much with the secondpoint, which will follow anyway.

The Canadian courts, in theory at least, do not follow this approach.They prefer to restrict the doctrine to a minimal area of effective operation.They seem also to consider that this will not create injustice, even in suchcases where it is quite obvious that what the plaintiff alleges is correct. Thejustification for this seems to be that in such situations, even if because ofa legal technicality the plaintiff cannot use the doctrine of part performanceand get specific performance, the plaintiff can still be restored substantiallyto his original position without loss, through, for example, the application of atheory of unjust enrichment. Thus, if the plaintiff clearly rendered, amongstother things, services based on a contract, (not gratuitous) he can recover thefair value of such services in quantum meruit. This approach has its at-tractions, but is not satisfactory.

If the court is satisfied that the facts are plain enough to support a claimin quantum meruit for services not rendered gratuitously or "voluntarily," buton the basis of a "contractual relation," "' or on the basis that the defendantreceived the "benefits of the full performance of the contract" since the actsdone were "clearly done in performance of the existing but unenforceablecontract," " then the court is surely admitting that it is in effect satisfied thatthe acts are referable to a contract, and that such contract has, on all theevidence, been clearly established. If that is so, to refuse specific perform-ance on the basis that the doctrine of part performance is inapplicable becauseof a strict test as to the sufficiency of the acts of part performance amounts topermitting a mere technicality to stand in the way of substance, which isagainst the very nature of the doctrine itself. If that is so, the court cannot

"DeglIman v. Guaranty Trust Co. Canada, [1954] Sup. Ct. 725, at 728, [1954]3 D.L.R. 785, at 788 (Rand, J.).

91 Id. at 735, [1954] 3 D.L.R. at 795 (Cartwright, J.).

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justify the use of a strict test based on fear of doubtful evidence; such a testwould be a misuse of the doctrine. In effect, by doing this, the court iscontradicting itself on its own reasoning. If it is able in a clear case togrant relief by quantum meruit, it is suggested that it has no valid justificationfor refusing to apply the doctrine of part performance and to grant specificperformance.

The court may also be sanctioning a fraud in such cases. The remedyof quantum meruit, based on the concept of restitution or prevention ofunjust enrichment, may be inadequate in the circumstances. The wholeconcept of restitution is based on the idea of compensation, and of restoringone party to his original position. It is submitted, although this point re-mains undecided, ' that if justice cannot be done through restoration, that is,if there has been a practical "irremediable change of circumstances," thenthere should be no room for the application of a restitutionary remedy. Tyingthis in with the preceding paragraph, it is difficult to accept the contradictioninvolved in saying: "You have shown, on the evidence, a clear contract andacts obviously in substantial performance of it. You have shown perform-ance of services, not alone, but in conjunction with other acts. The effectof all that you have done together is that you have substantially performedyour side of the bargain to a point where you cannot in fact be easilyrestored to your original position, for example by returning your money paidout in reliance on the bargain. Because these acts, if taken out of the wholecontext and viewed by themselves, are strictly 'equivocal' from a legal pointof view, you cannot raise the doctrine of part performance and get specificperformance. Despite the clear evidence as to what did happen, because ofa legal technicality, that is impossible. However, because you did theseacts, and did them in reliance on this clearly existing, but unenforceable,contract, we will make believe that we can restore you to your originalposition, at least in certain respects, by granting you some money throughthe remedy of quantum meruit for the services you performed." This couldmean that a plaintiff, who effectively gives up a possible way of life in relianceon the defendant's bargain, might get only the reasonable value of the actualservices he performed for the defendant. Although we know that "restitution"is inadequate in all circumstances, we use it as a "sop" to the plaintiff. Thismay be partial justice only. It may be, therefore, equally partial injustice. Ifthe situation demands, technicality apart, the remedy of full enforcementof the contract as shown, since nothing other than going forward from theexisting position will do justice, then there is no room for going backwardsthrough a concept of restitution and its remedies. This would be a "com-promise" which is an inherent contradiction in terms of theory and practicaleffect.

2 See, e.g., Granger, Equity, Law and Restitution, 2 OTrAWA L REv. 154, at 201(1967) referring to Denning, The Recovery of Money, 65 LQ.R. 37, at 49 (1949);Jones, Change of Circumstances in Quasi-Contracts, 73 L.Q.R. 48 (1957); and S. S'rOL-.A., THE LAw or QUASI-CONTRACTS 31-39 (1964).

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Thus, it is suggested, the Canadian approach is not justifiable because,in the first place, it is not necessary to limit the application of the doctrineof part performance by removing the emphasis from proving the facts andthe whole situation and placing such emphasis on showing a strict legal "one-way connection" between certain of those facts and the contract alleged.The policy of ensuring that doubtful cases do not succeed does not, it issubmitted, demand this kind of rigid limitation in the present day system.Secondly, it is not justifiable, because if one does establish such a limitation(mistakenly it is suggested), one cannot then try to mitigate the effectsof such limitation by giving factually clear cut, but technically doubtful, casesan alternative restitutionary remedy, since this must be, by definition, aninappropriate, inadequate, and, therefore, unjust solution in such cases.

The English approach, in the light of all the points made so far, seemspreferable. It gives effect to the basic nature and implicit limitations of thedoctrine of part performance. It ensures that the doctrine will fulfil itsessential functions without introducing inconsistencies such as seem inherentin the Canadian approach. Further, the proper application of the Englishapproach does not give rise to the dangers of defeating the objectives of thedoctrine by permitting it to mitigate against a defendant in doubtful cases.

It might well be argued that in practical effect the Canadian approach isused in exactly the same way as the English version, and that the strict legaltest stated in judgments merely conceals under its exterior a realistic approach.In short, it may be suggested that practice in both English and Canadiancourts is the same, but the Canadian decisions, like the earlier English de-cisions, state a strict legal theory in limited terminology for the sake ofconsistency and to provide a symbol of the courts' desire to emphasize thatthey will not countenance any undue extension of the doctrine. Therefore,their restrictive legal statements should be interpreted and understood in thismanner and not taken literally as guides to particular cases. "

It may be argued that, since there could be enough justification forhaving to explain that the situation is not as it seems from the decisions,there is a corresponding risk that the situation may be misinterpreted, perhapsjudicially. This risk should logically be eliminated if the process of elimina-tion of the legal statements of strict test which create this possible risk ofmisinterpretation does not involve any dangers. Therefore, to state that therule is not what it is said to be is not valid justification for the maintenanceof the Canadian, and earlier English, approach.

What, it may be asked, happens if, as occurred in the Brownscombecase, the defendant or his representatives have already sold property whichis the subject matter of the contract, and a bona fide third party has acquiredtitle to it? Does this mean that specific performance cannot be decreed,and if that is so, no damages can be awarded, either at common law because

"See, e.g., R. MEGARRY & H. WADE, THE LAw OF REAL PROPERTY 573-77 (3ded. 1966).

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of the Statute of Frauds or in equity? '

It is suggested that, even in such a case, the successful plaintiff, if he isnot to be left with an inadequate remedy, or no remedy at all, should andcould be given damages amounting to the total proceeds of sale at marketvalue. If this is not so, then, whenever a case is made for the application ofthe doctrine of part performance, whether on a strict test or otherwise, thedefendant would, if he acts quickly enough, be able to escape his obligationsand perpetrate a fraud in the sense contemplated by the doctrine; and there-fore prevent that for which the doctrine exists. Therefore, damages shouldbe awarded.

Such damages could be awarded if it is accepted that damages in suchcases are being awarded in lieu of specific performance, which could itselfhave been awarded had it not been for the subsequent fraudulent action of thedefendant. The meaning of the rule that equitable damages cannot beawarded if specific performance could not be awarded should be given thesense it was meant to have. It only applies to cases where specific per-formance could at no stage in the proceedings be awarded because of the con-tractual situation as crystallized before breakdown. An example of thiswould occur where, on the simple contractual relationship before the court,the court could not award specific performance because the contract is solelyfor personal services, or because the plaintiff did not come to court with"clean hands." It does not apply to cases where the court would normallyaward specific performance but cannot, because by the time the case is heardand disposed of the defendant has taken some further "wrongful" step whichmakes it practically impossible to order him to perform his side of the bargainwhich he should, his own acts apart, have been ordered to perform. Thisreasoning, though not expressly stated in the judgment, seems to have beenaccepted and applied by the Supreme Court in the Brownscombe case, by therestoration of the decision at first instance.

IV. CONCLUSION

In conclusion, it is submitted that the doctrine of part performanceshould be handled in the same way as recent English decisions advocate.The test as found in Fry's Specific Performance, and as quoted in the Kings-wood case, should be openly admitted or adopted, and the possibility of con-fusion and complication arising from the present Canadian position elimin-ated.

One may, of course, point out that many problems would be eliminatedif parties to contracts would take the sensible steps of putting what they wishto bargain for in writing and refrain from taking steps in reliance thereonunless they have done so, and that, assuming human beings will continue toact as "unreasonable men," and fail to take elementary precautions in theirdealings with each other, consideration might be given to the question of

94 For the reasons given in Lavery v. Pursell, see supra note 5.

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amendment or even abolition of the Statute of Frauds and similar legislation,much of which, it can be tenably argued, no longer serves any useful purposebut to present lawyers with the problem of devising new ways of evading theeffects of anachronistic law. If lawyers would take the approach that, in-stead of exercising their manifest ingenuity in the evasion of old concepts,they would recognize and press for the removal of anachronisms directly,we could well see the end of the doctrine of part performance. If that werelikely, there would have been little point in the above discussion. Since,however, it does not appear likely in the near future, and human problemswill not wait on long term legal reform, this paper justifies its own existenceand justifies the author in limiting its scope, for the present, to the confinesof the doctrine of part performance.