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Page:Harvard Law Review Volume 1.djvu/363

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HARVARD


LAW REVIEW.




MARCH 15, 1888.



A BRIEF SURVEY OF EQUITY JURISDICTION.[1]




III.

IT has been stated on a previous page[2] that, while equity assumes jurisdiction over torts chiefly for the purpose of supplying a remedy by way of prevention, it assumes jurisdiction over contracts chiefly for the purpose of supplying a remedy by way of specific reparation. This latter remedy is, indeed, constantly termed specific performance; but that is in strictness a misnomer. The remedy by way of prevention is the true specific performance; for the object of that remedy is to prevent a violation by the defendant of the plaintiff’s right, and, whenever the remedy is successful, that object is completely accomplished. But to prevent a defendant from violating a plaintiff’s right is to compel him specifically (i.e., strictly and literally) to perform his duty to the plaintiff. There is, indeed, this difference between the terms “prevention” and “specific performance,” namely, that the former is negative, while the latter is affirmative; and hence when equity enforces performance of a negative duty, the remedy is properly called prevention, while, if equity did in truth enforce performance of affirmative duties, the remedy would properly be called specific performance. But, in truth, equity does not attempt to enforce performance of affirmative duties, and therefore it does not attempt to enforce performance of contracts, i. e., affirmative contracts. What is com-


  1. Continued from page 131. The case of Phillips v. Homfray, 24 Ch. D. 439, ought to have been cited at page 131, note 1. It was omitted through inadvertence.
  2. Supra, page 120.