A remedy is specific when the plaintiff seeks to get the court to coerce the defendant into doing (or not doing) a particular thing. The word ‘coercion’ is used advisedly. The court orders the defendant to do (or not to do) the particular thing, and if the defendant refuses to comply, the court may use measures such as imprisonment, sequestration and fines to encourage compliance with its order. The two most important examples of specific relief in Australia are the decree of specific performance and the injunction. This chapter will consider specific performance, and the next chapter will consider injunctions. Specific performance relates to ordering the defendant to comply with the terms of a contract, but injunctions may be ordered across private law and beyond. Specific performance is exclusively equitable, and generally operates in relation to a common law cause of action; namely, breach of contract.

A contract may be breached by one party (the defendant) through defective performance, delayed performance, or a total failure to perform. If the contract breached is enforceable at common law, the innocent party (the plaintiff) can generally claim common law damages for any loss suffered as a result of the breach. The assessment of such damages and the attribution of responsibility for such loss are generally governed by the rules discussed in Chs 2 to 4 for civil wrongs in general. Specific rules for breach of contract are discussed in this chapter: the assessment of damages and the attribution of responsibility.

Damages is the most significant common law remedy for breach of contract. An innocent party to a breached contract is entitled to damages as of right if a compensable loss occurs which is not too remote and which could not have been avoided by mitigation. This chapter therefore commences with the concept of damages as being the primary form of compensation for breach of contract, introducing the seminal case on the topic, Robinson v Harman followed by the variations on that fundamental concept, including a discussion of the various bases for the assessment of loss, then the various restrictions on recovery, namely causation, remoteness, and contributory negligence.

The work of codification of civil and commercial law, which began in 1908 under the direction of French draftsmen, produced the desired result in 1925 only after Phraya Manavarajasevi (Plod na Songkhla) became involved. Plod was instrumental in replacing the French Civil Code of 1804 with the German Civil Code of 1900 (“BGB”) as the principal model and introducing the Japanese Civil Code of 1898 (“JCC”) and a copying method which he referred to as the ‘Japanese method’ to the new Thai-dominated drafting committee. The JCC and the ‘Japanese method’ were chosen owing to Plod’s conviction that the Japanese had established their civil code by copying the BGB. In reality, the JCC was influenced by a variety of foreign laws, including German and French law. The drafting committee’s lack of knowledge about the rules and concepts they borrowed and the method they adopted led to difficulties in interpreting the rules and concepts in question. This chapter will explore Plod’s fundamental misconception in the drafting of the TCCC and its consequences with a particular focus on the principle of fault in breach of contract.