Parties to a dispute can find themselves in a situation where they wish to enforce performance of a specific act rather than seeking payment of money. The appropriate remedy is to raise an action ad factum praestandum, known as specific implement where parties have a contract.

When can a performance order be sought?

A performance order can only be sought against a party who is under a legal duty to perform an act (other than making payment of money). Examples include: - (i) a landowner's duties in respect of custodianship of their land (ii) an executor or trustee's duties to administer the estate or trust; and (iii) a party's contractual obligations to its counterparty.

In the recent case of Sapphire 16 S.A.R.L v Marks and Spencer plc, the Court of Session decided that Marks and Spencer plc ("M&S") were in breach of a term of their lease to keep their East Kilbride store open after the Government had lifted the pandemic-related restriction. The court granted an interim order requiring M&S to re-open the store by 24 August 2020. The implementation and enforcement of this order is discussed below.

How precise does a performance order require to be?

The court will not pronounce an order for performance of an obligation except in terms of such precision as to leave the party against whom the order is being granted in no doubt as to the exact obligation which must be performed. It is therefore essential that court papers seeking a performance order are framed in unambiguous terms which plainly specify exactly what is to be done and the timeframe for performance.

What happens if after a court action has been raised performance of the act becomes no longer possible?

It is best practice to seek an alternative order for payment of damages to cover this situation. This protects your position where compliance with the performance order becomes impossible during the course of proceedings or where the court exercises its discretion to refuse the performance order sought.

How do you enforce a performance order?

It is within the court's power to recall the performance order and order payment of damages or make such other order as appears to the court to be just and equitable. The ultimate sanction available to the court is to grant a warrant for imprisonment of a party who is wilfully refusing to comply with a performance order.

In the M&S case, after the interim performance order was granted, M&S turned the premises into an outlet store with a smaller range of goods on sale and reduced staff. M&S did not have window displays or open all of the entrances to the store. The landlord argued that M&S were wilfully in breach of the interim performance order. M&S argued the contrary.

The Court decided that M&S were in breach of the interim performance order requiring them to keep the store open. However, the Court gave M&S the benefit of the doubt and decided that its actions were not in contempt of court. This was because the Court considered that there was a degree of uncertainty in the wording of the interim performance order and M&S had relied on legal advice in seeking to comply with the order.


An action ad factum praestandum can be an effective remedy for seeking and enforcing the performance of an act which a party has a duty to perform but care must be taken to precisely set out what is required.