Specific performance is an actual performance of a contract. the plaintiff is entitled to have the specific thing wherefore he has contracted. there are some circumstances when a contract can not be specifically enforced.
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According to Doemory:
Specific performance of contract consists in the contracting party is exact fulfillment of the obligation which he has assumed in his doing or omitting the very act which he has undertaken to do or not to do.
2. Relevant Provisions:
Sec. 20 and 21 of specific relief act.
3. General rule:
It is a general rule that the plaintiff is entitled for the thing for which he has contract and court can specifically enforce such contract.
4. Case law:
19 CLC 625.
It was held that where a part of agreement can not be specifically perfumed such part being interlined with the rest of agreement, then whole of the agreement would be hit by the same disability.
5. Exceptions to general rule:
Exception to the general rule all contained in Sec. 21 all the specific relief act.
6. Contract which can not be specifically enforced:
Following are the contracts which can not be specifically enforced.
I. Contracts where compensation is an adequate relief:
A contract for non-performance of which compensation in money is an adequate relief.
II. Contracts running into minute or numerous detail:
A contract which runs into such minute or numerous details.
III. Contracts dependant upon personal qualification :
A contract dependant upon personal qualification can not be enforced.
IV. Contracts dependent upon violation of the parties:
A contract dependent upon violation of the parties can not be enforced.
V. Uncertainty of terms:
A contract the term of which the court can not find with reasonable certainly.
A contract which is in its nature revokable.
VII. Contract made by trustee in excess of their power:
A contract made by trustees either in excess of their power or in breach of their trust.
VIII. Contract by or behalf of a corporation or public company created for special purposes:
A contract made by or on behalf of a corporation or public company created for special purposes, or by the promoters of such company, which is in excess of its powers.
IX. Contracts of performance of a continuous duty existing over a longer period than three years:
A contract, the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date.
X. Non-existence of material part of subject matter:
A contract of which a material part of the subject matter, supposed by both parties to exist, has, before it has been made, ceased to exist.
XI.Contract to refer to arbitration:
No contract to refer to arbitration shall be specifically enforced.
7. Defences of defendant:
It means a denial by the defendant of the truth or validity of the plaintiff's claim. so it is denial of plaintiff claim.
II. Defences in suit of specific performance:
Following are the defences available the defedant.
(i) Absence of writing or part performance:
The plaintiff has not performed the whole of his part of contract and that part left unperformed forms a considerable portion of the whole which does not admit for compensation in money.
(ii) Compensation in money is adequate relief:
Defendant may set up a defence that compensation in money would be an adequate relief to the plaintiff.
(iii) Uncertain terms:
The terms of the contract cannot be fined with certainty. so want of certainty is a ground for resisting specific of the contract.
(iv) Absence of consideration:
Contract without consideration is a good ground for defendant.
(v) Great hardship:
The performance of the contract would involve hardship on the defendant.
(vi) Defective title:
The plaintiff can not make good title to the property in accordance with the contract.
The assent of the defendant was obtained under misrepresentation.
(viii) Mistake of fact:
The assent of the defendant was given under mistake of fact.
(ix) Inadequate consideration:
The consideration paid by the plaintiff is grossly inadequate as to the amount to fraud or undue advantage taken by the plaintiff.
(x) Contract made by company in excess of its powers:
Contract made by the company in excess of its powers is defence for the defendant.
(xi) Unfair advantage to the plaintiff:
The contract when made gave the plaintiff an unfair advantage to the plaintiff.
(xii) Laps of time:
Suit for specific performance must be filed within three years if is filed after prescribed period it will be a defence for defendant.
To conclude I can say that, the specific performance of the contract is its actual execution. the remedy of specific performance is discretionary remedy. the court will not allow the specific performance when compensation in money is a sufficient remedy. under Sec. 21 of the specific relief act contract same be specifically enforced. the defence against performance of the contract.
Last edited by Vuhelper; 10-03-2013 at 12:05 PM.
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