Language – ‘In Specie’

Black’s Law Dictionary (10th ed), B.A.Garner Editor in Chief says (at page 916):

[Latin “in kind”] (16c) In the same or like form; In Kind <the partners were prepared to return the borrowed items in specie>.  

Copilot Search says:

The term “in specie” is a Latin phrase meaning “in its actual form”. It refers to the transfer of an asset without converting it into cash, allowing for the direct transfer of assets such as property, shares, or securities from one entity to another. In essence, it describes the process of handling assets in their original state rather than liquidating them

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In Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14; (1985) 157 CLR 17 (12 March 1985), Mason J (as his Honour then was) said:

31. It is often said that repudiation or fundamental breach – in the sense of breach of a condition or breach of another term or terms which is so serious that it goes to the root of the contract, and thus deprives the other party of substantially the whole benefit of the contract (Federal Commerce & Navigation Co. Ltd. v. Molena (1979) AC 757, at p 779) – entitles the innocent party to rescind the contract and sue for damages for loss of the bargain (see, for example, Ogle v. Comboyuro Investments Pty. Ltd. [1976] HCA 21; (1976) 136 CLR 444, at p 458). But this does not mean that such damages are recoverable only in the event of discharge for breach though it is essential to an award of damages for loss of bargain that the defendant can no longer be required to perform his contractual obligations in specie. This essential foundation may be established by a common law rescission of the contract by the innocent party or by a termination of the contract in the exercise of a contractual power so to do. In either event, assuming repudiation or fundamental breach by the defendant, he could no longer be required to perform the contract and is liable for damages for loss of bargain. The well recognized distinction between common law rescission and termination pursuant to a contractual power supplies no reason in principle why such damages are recoverable by the innocent party in one case and not in the other, provided of course that the exercise of the power is consequent upon a breach or default by the defendant which would attract an award for such damages.

32. Termination in the exercise of a contractual power is not an affirmation of the contract which debars the innocent party from suing for damages for breach on the ground of repudiation or fundamental breach. This is because the termination, so far from insisting on performance by the party at fault, brings to an end his obligation to perform his promise in specie.

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In Wade Sawmill P/L v Colenden P/L t/a Pilks Pine [2007] QCA 455 (21 December 2007), McMurdo P said:

[18] The plaintiff contends that the success of its action in detinue means that it was entitled to choose the form of relief appropriate to vindicate its right of action. It relies upon the statement of Diplock LJ in General and Finance Facilities Ltd v Cook’s Cars (Romford) Ltd:

“… the action in detinue partakes of the nature of an action in rem in which the plaintiff seeks specific restitution of his chattel. At common law it resulted in a judgment for delivery up of the chattel or payment of its value as assessed, and for payment of damages for its detention. This, in effect, gave the defendant an option whether to return the chattel or to pay its value, and if the plaintiff wished to insist on specific restitution of the chattel he had to have recourse to Chancery. (See In re Scarth, ((1874) 10 Ch App 234) per Mellish LJ (Ibid, 235)). …..

[19] The plaintiff argues that if it has a good claim in detinue, as her Honour found to be the case, her Honour could not deny its entitlement to recover the monetary value of the chattel as at the date of judgment by limiting relief to the return of the chattel in specie. The plaintiff argues that it is entitled to choose to recover the assessed value of the chattel in accordance with the second form of order referred to by Diplock LJ.

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