COMPARE THE PROVISIONS OF SPECIFIC PERFORMANCE UNDER THE SPECIFIC RELIEF ACT, 1963 AND THE ENGLISH LAW

ABSTRACT

The provisions governing specific performance under English law and the Indian Specific Relief Act, 1963 are compared in this article. Instead of providing damages for a breach, specific performance is an equitable remedy that forces a party to fulfill their end of the bargain. Although particular performance is acknowledged as a remedy in both legal systems, their methods, parameters, and requirements for providing this relief vary. The article looks at the main features of the Specific Relief Act of 1963, such as the types of contracts that qualify for this type of relief, the conditions under which specific performance may be awarded, and the discretion of courts in applying it. The historical development of this remedy in the framework of common law and equity is then shown by contrasting these provisions with the English legal principles of specific performance. Practical distinctions are also discussed, including the impact of delay, the availability of substitute remedies, and the significance of good faith in upholding contractual duties. The article’s ultimate goal is to give readers a better grasp of how both legal systems handle particular performance and what it means for parties pursuing this remedy in contractual disputes.

KEYWORDS

Specific Performance, Specific Relief Act, English Law, Contractual Remedies, Equitable Remedies, Indian Contract Law, Legal Comparison, Breach of Contract, Performance of Contracts, Equity and Common Law, Remedy for Non-performance, Enforcement of Contracts, Legal Doctrine, Contractual Obligations, specific Performance vs Damages

INTRODUCTION

Instead of providing monetary compensation for a breach, specific performance is a legal remedy that forces a party to a contract to carry out their obligations precisely as agreed. This remedy is particularly crucial when the contract’s subject matter is uncommon or irreplaceable, like when selling property or valuable goods. English law and Indian law both acknowledge specific performance under the Specific Relief Act of 1963, although they do it in distinct ways. Although the goal of both legal systems is to guarantee that contracts are upheld, there are differences between them in the circumstances in which particular performance may be granted and how it is applied.

This essay will examine the parallels and discrepancies between the specific performance clauses found in English law and the Specific Relief Act. By doing this, we can have a better understanding of the principles governing the application of particular performance and how each legal system handles contract enforcement. This comparison will show how both systems strike a compromise between the practical considerations about upholding contractual obligations and the demands of justice and fairness.

WHAT IS SPECIFIC PERFORMANCE OF A CONTRACT

A court can use specific performance as a remedy, requiring a party to fulfill their end of a contract rather than merely compensating them for their failure to do so. It is typically employed when the asset promised in the contract is something special that is difficult to replace with cash, such as a rare item or a piece of real land. In many situations, merely offering monetary compensation would not be just or adequate, so the court may choose to compel the party to carry out the terms of the agreement.

For instance, rather than merely getting the money equal to the painting’s value, the buyer may ask the court to compel the seller to complete the deal and turn over the painting if the seller agrees to sell a rare painting to someone else but later declines.

Specific performance isn’t always given, though. Usually, courts only mandate it when:

The agreement is precise and unambiguous: For the court to fully comprehend what was promised, the provisions of the contract must be explicit and unambiguous.

The topic is special or irreplaceable: Specific performance may be a suitable remedy if the object of the contract is something that is difficult to substitute or purchase elsewhere (such as a rare item or unique piece of property).

Money won’t be enough: The court may decide on particular performance if providing monetary compensation would not be a just or sufficient remedy for the violation.

The party requesting specific performance has not violated the terms of the agreement: In order for the court to enforce the contract, the party requesting enforcement must have fulfilled their own end of the bargain.

The remedy is fair: The court also evaluates whether it is fair to grant specific performance in the particular circumstances of the case, given that it is an equitable remedy.

To put it briefly, specific performance ensures fairness in circumstances where other remedies wouldn’t be as effective by compelling a party to fulfill their obligations under a contract, particularly where the subject matter is something that is difficult to replace with cash.

PROVISIONS UNDER SPECIFIC RELIEF ACT, 1963

In India, laws pertaining to specific performance of contracts and other remedies like injunctions and declarations are governed by the Specific Relief Act, 1963. The main clauses pertaining to specific performance under the Act are listed below:

1. Section 10: Specific Performance of Contracts

General Rule: Unless the contract is one that cannot be explicitly enforced because of its nature or subject matter, this section stipulates that specific performance may be granted for the performance of a contract.

Contracts That Are Not Enforceable: This section enumerates the circumstances in which specified performance is not possible, such as contracts that are unlawful or void.

Unable to be carried out.
unclear or imprecise.
pertaining to individual services.

2. Section 11 – Contracts That Can Be Specifically Enforced

According to this section, several contract types may be specially enforced if they have anything to do with: Real estate, such as buildings or land.

Unique products or commodities that are challenging to replace, like rare goods or items with particular qualities.

3. Section 14 – Contracts Not Specifically Enforceable

The following section outlines the circumstances under which certain performance is not allowed:

Personal service contracts: For contracts involving personal labour or services (such as employing someone for a job), specific performance cannot be enforced.

It is not feasible to perform: agreements that are unenforceable by nature (for example, when the subject matter of the agreement is no longer in existence).

Court discretion: If the court determines that specific performance would not be reasonable or possible, it may choose not to enforce it.

4. Section 15 – Contracts for Sale of Property

This section addresses when, under specified circumstances (such as the buyer’s willingness to fulfill and the property’s condition matching the agreed-upon state), a contract for the sale of real estate can be explicitly enforced.

5. Section 16 – Party Seeking Specific Performance Must Be Ready and Willing

Throughout the process, a party seeking specific performance must demonstrate that they have been prepared, willing, and able to fulfill their end of the bargain. This guarantees that they are not looking for the remedy to get out of their own responsibilities.

6. Section 18 – Rescission of Contract

The court may order rescission (cancellation) of a contract if specified performance cannot be granted due to a breach, especially if the contract is voidable.

7. Section 20 – Discretion of the Court in Granting Specific Performance

Based on a number of considerations, including fairness, the parties’ actions, and whether damages would be a sufficient remedy, the court may decide to award or deny specific performance.

8. Section 22 – Power of Court to Award Compensation

Even in cases where specific performance is not allowed, the court has the authority to compensate parties for any losses incurred as a result of the contract’s non-performance, particularly when real estate or distinctive items are involved.

9. Section 23 – Grant of Specific Performance in Certain Cases

Under certain circumstances that the court deems reasonable, this clause permits the court to authorize particular performance of a contract, even if it is dependent on the execution of other contracts.

10. Section 24 – Effect of Performance of a Contract

The effect of specific performance is covered in this section, which also stipulates that the party carrying out the contract must do so in a way that satisfies the provisions of the agreement as intended.

11. Section 25 – Bar of Specific Performance in Certain Circumstances

If the contract relates to the transfer of property and has already been executed, such as when property has been sold and delivered, specific performance may be prohibited.

12. Section 27 – Contract to Sell Property

If the prerequisites are met and the property is identifiable, this clause permits particular performance to be awarded in situations where one party has committed to sell immovable property but refuses to do so.

PROVISIONS UNDER ENGLISH LAW

As part of the body of law created by the Court of Chancery, equity governs the remedy of particular performance under English law. Although particular performance is not as frequently awarded as damages, it is nonetheless a viable option in situations where alternative remedies—like monetary compensation—would not be sufficient. This is an explanation of how English law provides for specific performance:

1. Fundamentals of Particular Performance

Equitable Remedy: The court may grant specific performance at its discretion since it is an equitable remedy. Specific performance is only available when the court deems it to be the most equitable remedy, in contrast to legal remedies like damages, which are awarded as a matter of right.

Enforcement of Contractual Obligations: A party is required by specific performance to carry out their responsibilities in accordance with the terms of the contract. When monetary compensation is insufficient for contracts involving rare or unique commodities (such real estate or rare goods), it is usually sought.

2. Particular Performance

The following requirements must be fulfilled in order for specific performance to be given under English law:

Contract needs to be explicit and unambiguous: The contract needs to be explicit, unambiguous, and clear. Specific performance won’t be mandated if the contract’s provisions are ambiguous or unclear because the court won’t be able to pinpoint exactly what has to be done.
The topic needs to be original: Contracts containing unique objects are more likely to be awarded specific performance. Rare items and land or real estate, which are regarded as unique, are common examples. The basic premise is that specific performance might not be necessary if the contract’s subject matter could be substituted with cash (for example, easily accessible products).
The plaintiff needs to be willing and able to perform: The party requesting specific performance must have been prepared and eager to fulfill their end of the bargain. Specific performance will not be given to the party requesting the remedy if they are in violation or have not performed their own obligations.
Damages Are Not Enough: Generally speaking, specific performance is only awarded when damages (cash compensation) would not be enough to make up for the harm. The court is likely to grant damages rather than specific performance if the loss resulting from the breach may be sufficiently made up in cash.
No Equitable Considerations or Defences: The contract cannot be enforced if the defendant has any legitimate defences (such as fraud, duress, undue influence, or mistake). The court will also take into account whether it would be unjust or oppressive to grant specific performance.

3. Agreements Not Subject to Specific Performance

Under English law, specific performance is not permitted under the following contracts:

Contracts for Personal Services: Since it is against public policy to force someone to provide personal services, specific performance will not be ordered for contracts that call for personal services (such as employment or creative contracts).
Contracts to Do the Impossible: Specific performance will not be mandated if the contract’s execution has become impossible (for instance, if the subject matter is destroyed or unavailable).
Contracts Including Non-Transferable Rights: The court will not grant particular performance if the contract deals with something that is prohibited by law or statute (such as an illegal contract)

4. The Court’s Judgment in Awarding Particular Performance

When determining whether to grant specific performance, English courts have a great deal of latitude. The court may take into account the following factors:

The parties’ actions: The court may deny specific performance if one of the parties has been behaving dishonestly or has postponed it for an excessively long period of time.
Adequate remedy: If the claimant believes that damages or any other remedy would be adequate to make up for the harm caused by the breach, the court may refuse to grant particular performance.
Fairness: The court will also take into account whether it is just and equitable to enforce the contract by particular performance. The court may choose not to award particular performance if doing so would put the defendant through excessive hardship.

5. English Law’s Judicial Remedies for Contract Breach

Depending on the circumstances, the court may nevertheless grant damages, injunctions, or declarations in lieu of particular performance. A declaration may make clear the parties’ respective legal rights, or an injunction may stop one party from behaving in a way that violates the terms of the agreement.

COMPARISON BETWEEN THE INDIAN LAWS AND ENGLISH LAWS

A comparison between the provisions of Specific Performance under the Specific Relief Act, 1963 (India) and English Law reveals both similarities and differences in their approach to this equitable remedy. Both systems allow for specific performance as a remedy when monetary damages would not be sufficient, but they differ in specific details, conditions, and applications. Here’s a detailed comparison:

1. General Availability of Specific Performance

Specific Relief Act (India):

The Specific Relief Act, 1963, is the main law governing specific performance, which is an equitable remedy for contract violations. The Act grants judges the authority to impose specific performance under particular circumstances, usually in cases where the violation causes a loss for which damages are insufficient.

English Law:

An equitable remedy created under equity law is specific performance. It can only be ordered where damages are insufficient and is available at the court’s discretion.

The court uses equitable criteria to determine whether to particularly enforce the contract, and it is less frequently granted than damages.

2. Types of Contracts Eligible for Specific Performance

Specific Relief Act (India):

Contracts involving unique products (such as rare or irreplaceable things) or real property (immovable property) may be eligible for specific performance. Specific performance is not applicable to contracts that are ambiguous, private, or entail personal services.

English Law:

English law permits specific performance for special products, real estate, and contracts with irreplaceable subject matter, just like the Indian Act does.

In accordance with public policy considerations, personal service contracts—like employment contracts—are typically not subject to explicit performance requirements. Specific performance is typically not applicable to personal contracts or contracts that call for subjective performance.

3. Discretion of the Court

Specific Relief Act (India):

Although the Act stresses the preparedness and willingness of the party seeking specific performance, the court retains extensive discretion. It is not possible to order specific performance if the party has not been willing to fulfill its end of the bargain.

If the court determines that the contract is unjust or unreasonable, it may also reject specific performance.

English Law:

The court may require specific performance, but if the contract is ambiguous or unenforceable, the court will not enforce performance. The English courts consider impossibility, delay, and bad faith while determining whether to give specific performance.

The claimant must demonstrate that they have been prepared, willing, and able to fulfill their end of the bargain, much like in India.

4. Contracts Not Enforceable by Specific Performance

Specific Relief Act (India):

Section 14 makes it clear that some contracts cannot be enforced by particular performance, including those involving personal services, voidable contracts, and contracts that are unclear.

Contracts where the subject matter is no longer in existence or where performance is impossible are not included.

English law

Similarly, under English law, contracts for personal services are not subject to particular performance (i.e., the court cannot force someone to undertake personal services). Contracts involving criminal activities, uncertainty, or impossibility cannot be enforced by specific performance.

In both legal systems, impossibility of performance is a powerful defence.

5. Remedy for Breach of Contract

Specific Relief Act (India):

In India, the court may, in accordance with the provisions of the contract, award compensation in lieu of specific performance. In addition to rescinding contracts under specific circumstances, courts have the authority to impose injunctions to stop future violations.

English law

In English law, damages are typically awarded as the primary remedy when particular performance is not supplied. In order to stop violations, injunctions might also be granted.

Although the emphasis is mostly on providing damages to the harmed party, specific performance may nonetheless be an option if damages are thought to be insufficient.

6. Readiness and Willingness of the Claimant

Specific Relief Act (India):

According to Section 16 of the Act, the party seeking specific performance must demonstrate that they were prepared, willing, and able to fulfill their end of the bargain. The claimant will not be entitled to specific performance if they have themselves violated the contract or postponed performance.

English law

The same rules apply under English law. Before requesting particular performance, the claimant must demonstrate that they were capable, willing, and ready to fulfill the terms of the contract. Even if the contract is legitimate, the court may deny specific performance if the claimant has been unjust or delayed.

7. Conditions for Granting Specific Performance

Specific Relief Act (India):

The Act outlines specific conditions under which specific performance can be granted, emphasizing the adequacy of the remedy and the specificity of the contract. For contracts involving immovable property, specific performance is more likely to be granted because land is unique.

English law

English law places similar emphasis on the uniqueness of the subject matter, particularly for real estate or rare goods. The court considers the fairness of granting the remedy, including whether it would be oppressive to the defendant or unreasonable in the circumstances.

8. Impossibility of Performance

Specific Relief Act (India):

When it is impossible to carry out the contract—for instance, because the subject matter has been destroyed or is no longer available—specific performance cannot be given.

English law

Similar rules apply under English law; if the contract cannot be performed, particular performance will not be awarded. The court will also take into account whether damages or other remedies could be used to remedy the breach.

CONCLUSION

It is clear from comparing the specific performance provisions of English law and the Specific Relief Act, 1963 (India) that both legal systems acknowledge the remedy of specific performance as a crucial instrument for upholding contractual obligations in situations where monetary compensation is insufficient. Although the fundamental ideas are similar—both jurisdictions permit specific performance for contracts involving real estate or unique goods—there are notable distinctions in the procedural and discretionary elements. A more structured approach is offered by the statutory framework under India’s Specific Relief Act, which specifies particular requirements for obtaining relief, such as the claimant’s readiness, willingness, and ability to fulfill the contract. English law, on the other hand, emphasizes the court’s discretion more, with equity being a key factor in deciding whether or not specific performance is appropriate and just in each situation. Furthermore, whereas English law mainly relies on equitable principles to evaluate cases on their own merits, the Indian Act is more explicit about some limitations, such as the non-enforceability of personal service contracts and imprecise agreements. Both legal systems recognize the complexity and public policy considerations associated with compelling personal work by prohibiting personal service contracts from being enforced by specified performance. Additionally, both acknowledge the restrictions imposed by the insufficiency of alternative remedies and the difficulty of performance, guaranteeing that specific performance is only ordered when it is actually required to accomplish fairness.

In the end, even though the Specific Relief Act’s and English law’s provisions regarding specific performance are similar in many ways, each system’s actual implementation reflects its own legal traditions, with English law depending more on judicial discretion and equitable principles and Indian law being more codified. This comparison demonstrates how specific performance can be used as a remedy in a variety of countries, guaranteeing that justice can be customized to each unique set of circumstances.

REFERENCES

Specific Relief Act by S C Sarkar, Sudipto Sarkar and Sidharth Sethi Edition: 19th Edition, 2024
2023 SCC Online Blog Exp 67 Published on August 18, 2023By Bhumika Indulia https://www.scconline.com/blog/post/2023/08/18/specific-performance-and-determinable-contracts-a-comprehensive-analysis/ (Last visited 01 February 2025)
COMPARING SPECIFIC PERFORMANCE UNDER THE SPECIFIC RELIEF (AMENDMENT) ACT 2018 WITH THE CISG AND THE UNIDROIT PRINCIPLES: THE PROBLEMS OF THE “UN-COMMON LAW” IN INDIA by Ajar Rab
https://www.nlsblr.com/_files/ugd/f10044_061a01c68e864c5290c2160812260762.pdf?index=true (Last visited 01 February 2025)

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