Perhaps the commonest example of this type of situation is where the purchaser has agreed to buy upon conditions that preclude him from objecting to certain matters, or require to assume certain facts and accomplish or do certain things. Specific performance of such a contract will not be granted unless the vendor can offer to the purchaser what is sometimes called "a good holding title!"- that is, a title which, while not such as the court would force an unwilling purchaser under an open contract, yet offers the person holding under it a reasonable prospect of continuing to hold undisturbed. See the case of Best v Hamand [`1879] 12 Ch D p. 12, see also In re Scott and Alvarez’ Contract [1895] 2 Ch 605 and Beyfus v Lodge [1925] 1 Ch 350
Note further that upon a Vendor and Purchaser Summons the court is entitled to pronounce upon all the rights of the parties which come within the scope of the question raised for decision and that there is nothing to prevent the purchaser from raising the contention that the contract is not one which could be enforced against him specifically and the vendor can do so as well. Formerly, he could do this only at the price of forfeiting any deposit that he might have paid. The action for the return of a deposit was an action at law, and could succeed only where the contract had been set aside altogether as in re National Provincial Bank of England and Marsh [1895] 1 Ch 190.
It should be noted that by virtue of the provision of section 49 [2] of the Law of Property Act 1925, the court has now a discretion to order the return of the purchaser’s deposit in any case when specific performance is refused. There is further some authority for saying that the words "existence and validity of the contract" refer only to initial existence and validity, and will not prevent the court from deciding on summons whether the contract has become void as a result of subsequent events. The case in which this principle was stated turned upon the question whether a case had arisen for the exercise of a right to rescind reserved in terms by the contract, which is clearly a question of construction. For a case that illustrate or exemplify the judicial approach in this regard, see In re Jackson and Woodburn’s Contract [1887] 37 Ch D 44.
Whether the court could decide on summons that a contract had become void in consequence of supervening impossibility, or had been discharged by mutual consent, may well be doubted. On this, see Williams on Vendor and Purchaser, at p. 1068. Note that subject to the reservation that question affecting the existence or validity of contract must not be touched upon, the court is given power to pronounce on summons upon "any requisition or objections, or any claim for compensation or any other question arising out of or in connection with the contract". Such question does not exclude whether a clause in a sale agreement which has a definite and specified timeframe within which a certain step must be taken will not bring the contract to end upon the non fulfilment of or compliance with such a clause. The court can determine on this issue in a vendor-purchaser summons supported by an affidavits verifying the vendor’s and purchaser’s position under the sale agreement. A party may use this procedure that is more expeditious and less expensive or may proceed by way of a specific performance action. But specific performance action will entail pleadings and possibly a trial of issues. But note further that it seems to be a trite position of law that the court would not decide a serious question on the law of titles in a specific performance action, since the decision would be binding between the vendor and the purchaser, and the court would not force property upon an unwilling purchaser unless he were reasonably well guaranteed against possible claims of third parties and would be able in his turn to force the title upon purchasers from him. In one case where the vendor claimed under a will of doubtful construction, the court refused to decide the matter, but stood over the proceedings to enable the vendor to take out an originating summons for the construction of the will. He obtained a decision in his favour on the construction summons, but was none the less made to pay the purchaser’s costs of the Vendor and Purchaser Summons, on the ground that it was an inappropriate form of proceeding for the decision of the issues which he had raised. See In re Nichols and Von Joel" Contract [1909] 1 Ch 43.
Note further that it has been the rule of equity for a very long time that where for instance, there has been a mis-description of the property to be sold in the particulars of sale or in the sale agreement, the mis-description is not sufficiently serious to render the property as it is substantially different from the property as it is described to be, the vendor may insist upon specific performance with compensation- i.e. an abatement or call it a reduction of the exact amount needed to make up the difference in value. See the case of Calcraft v Roebuck [1790] 1 Ves 221. Note also that not every minute errors of description would render the contract unenforceable at common law. It is also the general rule that if the vendor is not in a position to convey what he has contracted to convey, the purchaser may insist on having what he has got, with compensation for any difference in value, though this rule will not be applied where it would cause great hardship to the vendor or would prejudice the rights of third parties. See the case of Rutherford v Acton-Adams [1915] A C 866, at p. 869.
Questions of this kind and any other question arising out of or in connection with the contract or sale agreement are usually dealt with on summons. This will no doubt include all questions of construction, and such matters of detail as normally arise in the working out of the contract or the sale agreement etc.
Upon a Vendor and Purchaser Summons, the court may make a declaratory order or any other type of order; e.g. to the effect that the vendor has not made a good title according to the contract, that the purchaser is in breach of the contract or a term of it or that a particular requisition by the purchaser has or has not been sufficiently answered. The court may also further provide by order for the doing of anything necessarily consequent upon its decision on the principal point. Thus if either the purchaser or the vendor takes out a summons to obtain the opinion of the court upon the title, and the court comes to the conclusion that no good title has been shown, it follows from this that the vendor has been guilty of breach of contract sufficiently serious to entitle the purchaser to rescind or repudiate and recover his deposit. The same principle will inexorably apply where the purchaser has failed to meet any condition precedent to the contract or sale agreement or a term requiring him to do certain thing within a stipulated time frame. In any of these circumstances, the court may, therefore, rescind the contract and make an order for the repayment of the deposit. See In re Hargreaves and Thompson’s Contract [1886] 32 Ch D 454. The purchaser can be awarded interest on his deposit and his expenses of investigating title. This is the full amount of damages which he would be able to recover by action in an ordinary case, although a Vendor and Purchaser Summons is not an action for damages. The position is not settled whether the court can also declare a lien in favour of the purchaser for his deposit, interest, and costs upon the land which is the subject matter of the contract. A lien in this instance will be in the form of a charge on the subject property and this is different from a situation where the purchaser merely records a sale agreement as an estate contract although this may technically speaking, operate as an equitable lien on the subject property by virtue of the provision of section 198 of the Law of Property Act 1925 which underscores the publicity principle in continental legal systems or the doctrine of notice under the English common law.
