(3) Conduct of the Plaintiff: can’t be a bum-fuck scum lord and get equitable remedy – need clean hands, people!
(4) Hardship: where a decree of specific performance would cause severe and unnecessary hardship to the parties, or perhaps to a third party, specific performance may be refused, leaving the plaintiff with the remedy of damages (especially if the plaintiff’s conduct has caused a change in circumstances resulting in undue hardship).
Warner Brothers Pictures Inc v Nelson. [1937] Facts: Basically a contract for life to work exclusively for WB. And it was a performance contract that obligated this. Not long after the initial contract, she entered into a subsequent contract for more money with another company.
Bette Davis (Nelson) entered a K with Warner Bros. for 52 weeks, renewable at WB’s option, whereby she would render exclusive services as a film artist to WB. A negative stipulation in the K provided that during the period of the K, she would not engage in “any other occupation” to anyone else. If she did not perform her services, WB would have the right to extend the K and all of its provisions for a period equivalent to that in which she failed to perform (clause 23). BD went to England and started working as a film artist for someone else = breach of K with WB. She admits to breach. WB wants NOT specific performance of continuing to work with WB, but rather an injunction against her working for the third person. This is a negative injunction vs. a positive one.
Issues: Can the court, through an injunction, enforce the negative stipulation in which BD promised not to work as a film artist for a third party while under K with WB?
Held: YES the court, through an injunction, enforce the negative stipulation in which BD promised not to work as a film artist for a third party while under K with WB
Reasons: The Courts will never order specific performance of a contract of personal service, but may, through an injunction, enforce a negative stipulation that a particular thing shall not be done if that is what the parties have contracted with their eyes wide open. This does not mean that the Court will enforce a covenant merely because it is expressed in the negative, and the Court will never order an injunction to enforce negative covenants if the effect would be to drive the defendant either to starvation or to specific performance of the positive covenants.
There is quite a bit of talk about positive and negative covenants. What is the difference? The former is an agreement to do something vs. an agreement not to do something
Courts will not enforce positive covenants for personal service (too close to slavery / compelling an individual to do something)
The conclusion to be drawn from the authorities is that, where a contract of personal service contains negative covenants the enforcement of which will not amount either to a decree of specific performance of the positive covenants of the contract or to the giving of a decree under which the defendant must either remain idle or perform those positive covenants, the court will enforce those negative covenants (within reason).
So basically, unless the negative covenant amounts to forcing and limiting her to do something, which is a de facto positive covenant, it can be enforced by the courts via injunction!
