Specific performance of contract
(Which may be specifically enforced)
Q define the term specific performance
Q when specific performance of a contract in enforceable. Discuss any two circumstance? Also state what types of contracts cannot be specifically enforced? Give illustrations.
Q narrate the circumstance in which specific performance of the contract is enforceable
SPECIFIC PERFORMANCE
A contract is an agreement upon sufficient consideration to do or not to do a particular thing and the person on whom this contractual obligation rests if fails to discharge it, there results to the other party a right either to insist on the literal and actual performance of the contract or to obtain compensation for the non-performance of it. the former is called specific performance . in the words of Fry, the specific performance of the contract is its actual execution according to its terms and condition and is contrasted with damages or compensation for the non-execution of the contract.
According to Austin, every contract creates not only a right but also a corresponding obligation upon another person, failing which the other party has the right to insist on the actual performance of the contract.
Hence, specific performance is defined as an equitable relief given by the court in cases of breach of contract in the form of judgement and decree that the defendant opponent must actually perform the contract according to its terms and stipulation.
The relief of specific performance is a relief of “grace and indulgence”. It cannot be claimed or granted as a matter of right. But the remedy is a conscious attempt on the part of the court to do complete justice to both the parties. And it is granted on the theory that the award of damages will not put party in a situation as beneficial to him as if agreement was specifically performed.
Cases in which specific performance is enforceable :
Specific performance cannot generally be claimed as a matter of legal or absolute right but remedy rests on sound, equitable principle subject to the discretion of the court. Following are the circumstances enumerated in section 12 under which specific performance may be granted:
When the acts agreed to be done on the basis of contract:
When damages cannot be ascertained: section 2 clause b postulates that when there exists no standard for ascertaining ( determining) the actual damage caused by non-performance of the act agreed to be done then specific performance is to be enforced Damages cannot be assessed in respect of unique, precious or immovable articles or property due to its
For example A agrees to buy and B agrees to sell, a picture by a dead painter and two rare china vases. A may compel B specifically to perform this contract, for there is no standard for ascertaining the actual damage which would be caused by its non-performance.
Where pecuniary or monetary compensation is not adequate relief: clause c of the section says that when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief. It provides that compensation even if calculated and can be granted will not provide substantial relief to the aggrieved party to heal his wounds. In other words the money value of the property does not provide relief to the purchaser.
For example; A contracts with B to sell him a house for Rs. 1000. B is entitled to decree directing A to convey the house to him, on paying the purchase money.
Non-probability of obtaining compensation: according to clause d of section 12, when it is probable that pecuniary compensation cannot be got for the non-performance of the act agreed to be done. This clause refers to those cases where it is not possible to obtain compensation or damages from the defendant though the damages of compensation may be ascertainable. The inability of the defendant to pay the damages may be due to any cause. It means that when court in all probity come to the conclusion where there is every likelihood that pecuniary compensation even if awarded cannot be recovered and it will amount only to paper decree, clause d will provide a good ground for enforcing the specific performance of the contract.
It shall be noted that Under section 12, while granting a decree for specific performance of the contract unless otherwise proved in case of immovable property the court shall presumed that the breach of the contract to transfer immovable property cannot be relieved by way of compensation. Whereas the breach of contract to transfer movable property can thus be relieved by monitory compensation.
Here is the case where specific performance has been granted
Agreement of sale, part payment of price and transfer of possession on execution of sale agreement admitted, vendee would be entitled to specific performance of agreement in view of admitted facts. 1986 CLC 1887.
