Specific Performance

Specific performance is a remedy available for the innocent party at the

event of breach, the specific performance is an order from the court
making the defendant to perform his legal obligation as precise as he
promised as part of the contract which he breached. Specific Performance
is an alternative towards other remedies which has its own ways.

The specific performance remedy is stated in the Specific Relief Act 1950
in Chapter II. Under this law, section 11 states that specific performance
of any contract may be granted at the discretion of the court. (Refer to
appendix), it stated few circumstances which explained detailed in terms
of case and scenarios which the specific performance may be granted by
the course.

a) When the act agreed to be done in the performance, wholly or partly

of a trust. (section 11:1)

This part is referring on trust means that ones property will be held by the
other for the benefit of that person. This means that if the trustee (Person
B) wrongfully disposed of a share or stock that belongs to person A. Then
Person A may sue person B for specific performance. The case Gan Realty
Sdn.Bhd &Ors v Nicholas &Ors explains on this point.

The case Gan Realty Sdn. Bhd & Ors v Nicholas & Ors is the case on
shares. The court has granted specific performance for the shares which is
limited and not always had in the open market.

b) When there exists no standard for ascertaining the actual damage

caused by the non-performance of the act agreed to be done.

This subsection states that when the breach of contract does not provide
any standard for determining the actual damage caused by the non-
performance (when the contract has not being performed), the court may
grant the plaintiff or the innocent party specific performance. For
example, when person A breached the contract by not performing the
promised performance, and the actual damage is unascertained, person B
(the innocent party) may get specific performance as a remedy if the
court intents.

c) When the act agreed to be done is such that pecuniary

compensation for its non-performance would not afford adequate
relief.

Subsection C explains on when a deed is not performed, the monetary

compensation or damages will be sufficient relief for the injured party. A
scenario where the court rules that monetary compensation is sufficient,
the court may not grant the injured party specific performance. This
section refers to the part which Specific performance will not be granted
to the plaintiff as the damages can be adequately compensate.

d) When it is probable that pecuniary compensation cannot be got for

the non-performance of the act agreed to be done.

Subsection D states on the scenario where monetary compensation

cannot induce the performance to be done or agreed to be done.

Section 11(2)

Section 11 (2) states that unless and until the contrary is proved, the
court shall presume that the breach of a contract to immovable properly
cannot be adequately relieved by compensation in money and that the
breach of to transfer movable property can be thus relieved.
Firstly, immovable property refers to land, houses etc. while movable
property is such as vehicles or anything can be moved. Here it stated that
the court will presume that breach of a contract to transfer immovable
property cannot be sufficiently relieved with monetary compensation
while monetary compensation can relieve breach of a contract to transfer
moveable property. Thus, transfer of immovable property contract breach
may entitle the injured party towards specific performance. However,
lawyers may rebut the presumption.

The case that argues on this point is Zaibunsa Binte Syed Ahmad v Loh
Koon May. The case states that Zaibunsa (the defendant) and Loh Koon
May (The plaintiff) over a contract of selling a mining land. As initially
Zaibunsa agreed to sell a land to Loh Koon May, however the defendant
has defaulted on his promise and the plaintiff has brought this case to
court. As plaintiff pray for specific performance of the agreement and the
court granted specific performance by considering many elements
including oral agreement which was taken admissible by the court. Thus,
Loh Koon May was granted specific performance over this contract.

Referring to Section 11 and Section 11 (2), the specific performance was

granted to the plaintiff mainly because of the subsection C which states
when the act agreed to be done is such that pecuniary compensation for
its non-performance would not afford adequate relief. Section 11 (2) which
states the presumption that the breach of contract of transfer immovable
property cannot be adequately relief by compensation in money.

Referring to this two points, the court granted specific performance as the
property held between the plaintiff and defendant was a land, thus
immovable. As well as the common presumption that monetary
compensation will not be adequately relief for the non-performance of the
agreement, the court thus granted specific performance to the plaintiff. In
my opinion, that if a breach occurs in a contract of immovable property
transfers, it create issues where it can be consider that the non-
performance of the act does not have any standard for ascertaining the
actual damage. As the plaintiff may have several plans to be conducted in
the land, thus considering possibilities, granting specific performance is
appropriate.

Section 20: Contracts that cannot be specifically enforced

The contracts stated on this section cannot be specifically enforced due to

some reasons. The contracts are explained below:

a) A contract for the non-performance of which compensation in

money is an adequate relief.
This states that specific performance cant be enforced or granted by the
court if the breach of a contract can be compensating in money
adequately or sufficiently. As explained under section 11, specific
performance will be granted if the pecuniary compensation would not
afford adequate relief. This subsection A under section 20, states the
opposite, whereas if compensation of money is sufficient, specific
performance is unenforceable.

b) A contract which runs into such minute or numerous details, or

which is so dependent on the personal qualifications or volition of
the parties, otherwise from its nature is such, that the court cannot
enforce specific performance of its material terms.

This subsection states that a contract which comprising of many details or

comprising of tiny details as well as dependent on personal qualification of
the parties cant obtain specific performance. Firstly, a contract with many
details or including tiny details make the contract to be very specific thus
leaves no room for any other opportunity. In another word the contract is
too tight for any chances of specific performance, thus the court will not
grant the plaintiff specific performance.

c) A contract the terms of which the court cannot find with reasonable
certainty.

A contract should comprise of the basic 3 elements which are it must be

certain, it must be specific, there must be an intent. When the certain is
lacking in a contract, it automatically becomes very wide and does not
have a term which can be used for specific performance. Thus the court
cannot grant specific performance to the plaintiff.

d) A contract which is in its nature revocable

This is where the contract itself

e) A contract made by trustees in excess of their power or in breach of

their trust.

This subsection explains on the trustees which defined as a fiduciary

character as a representative who involves in the trust. This is where the
trustee is making a contract which exceeds their power or authority
involving the trust, by doing do, the trustees action is a breach of their
trust (real owner). Specific performance will not be granted to this
scenario because first the trustee made a contract more than their power
or authority which they arent supposed to do and it is a breach of trust for
the owner of the trust. Thus the contract is disadvantageous, thus cannot
be specifically enforced.
 f) A contract made by or on behalf of a corporation or public company
created for special purposes, or by the promotors of the company
which is in excess of their powers.

This subsection F is similar with subsection E, however with several

differences on the mistake party and the concept. This is where the
managers of a corporation or public company created for special
purposes, which can be anything, however a contract made which in
excess of their powers. This refers to any contract which is also over rights
its sole purpose of existence. As the illustration given, a company with a
sole purpose of building railway purchased a land to build cotton-mill, this
cannot be enforced.

g) A contract the performance which involves the performance of a

continuous duty extending over a longer period than three years
from its date.

This subsection states on the continuous duty contract with extending

over more than 3 days from its date of contract. As considering 3 years
can be referred as a long time for any continues service contract.

h) 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.

This explains on the contract made about a subject matter, and the
subject matter ceased to exist before the contract come into force. Thus,
this contract cant be specially enforced.

Section 21

Section 21 states that The jurisdiction to decree specific performance is

discretionary, and the court is not bound to grant any such relief merely
because it is lawful to do so; but the discretion of the court is not arbitrary
but based on sound and reasonable principles, guided by judicial
principles which are capable of correction by a court of appeal.

This section explains on the courts and judges judgment on specific

performance is open and flexible. The court is not obligated to grant
specific performance just because it is lawful. Moreover, the court does
not rule out specific performance randomly or by chance but based on
sound and reasonable principles behind the case as well as the judicial
principles. Thus granting the specific performance is solely up to the court
based on the norms.

Section 21 (2)

This section refers to the scenarios where the court may discrete not to
grant specific performance.

1. Where the circumstances under which the contract is made are such
as to give the plaintiff an unfair advantage over the defendant,
though there may be no fraud or misinterpretation on the plaintiffs
part.

This is mainly in order to prevent unfair advantage to the plaintiff. Based

on the circumstances when the contract was made, some events tend to
give unfair advantage to the plaintiff which enables he/she to have
advantage over the defendant. This is where on some occasions, the
plaintiff may not be involved in fraud or misinterpretation, however some
circumstances made it this way, thus the specific performance will not be
granted by the court.

2. Where the performance of a contract would involve some hardship

on the defendant which he did not foresee, whereas its non-
performance would involve no-such hardship on the plaintiff.
This explains when the defendant is facing hardship or any issues if he
perform the contract however he did not foresee during the time of
making the contract. However the non-performance does not brings any
hardship on the plaintiff. This explains the concept of law beings fair and
square, as the whole scenario explained in order to prevent any bias or
prejudice judgment towards a party in a case requesting for specific
performance.

The case Venkatachalam Chettiar & Ors v Arunasalam Chettiar explains on

this point.

Section 18 (3)

The section 18 (3) explains on if in any such suit the court decides that
specific performance ought to be granted, but that it is not sufficient to
satisfy the justice of the case, and that some compensation for the breach
of the contract should also be made to the plaintiff, it shall award him
such compensation accordingly.

This explains if the court will grand specific performance and

compensation if the plaintiff proven to suffer any monetary loss with the
defendants refusal or inability to perform the performance. This section
gives power to the court to award compensation to the plaintiff even after
specific performance has been granted.

Supporting cases

Nutbrown v Thornton

The case illustrates on specific performance where the defendant is a

seller of machines and the plaintiff and defendant had made a contract of
buying and selling of the machine. The defendant however breached the
contract and refused to deliver the machines. On the normal occasions of
non-performance regarding the goods, usually damages will be granted,
however in this scenario, the defendant is the sole producer of the
machines. In this case, the court held it as the damages would
inadequately compensate the plaintiff as he would not be able to
purchase the goods anywhere else, thus court granted the plaintiff
specific performance. As the goods cant be purchased elsewhere the
court granted specific performance, however if the plaintiff was able to
purchase elsewhere yet chose not to do so, only damages will be granted
instead of specific performance.

This case states that non-performance and if the plaintiff is unable to

purchase the good elsewhere, the specific performance is granted.
However in a scenario where if the plaintiff is able to purchase the goods
elsewhere (involving a third party) however expensive than the original
contract. The plaintiff can sue the defendant (initial contract) for damages
on the extra charges the plaintiff paid to purchase the same goods from a
third party seller.

Cohen v Roche

The case illustrates on the point where specific performance is not

granted. This is where the plaintiff ordered chairs from the furniture store,
however the defendant has refused to deliver the chairs, thus resulted in a
breach of contract. The plaintiff sued for specific performance which would
force the defendant to deliver the goods. However, the court held that
chairs are ordinary articles of commerce and of no special value or
interest, thus refused to grant a specific performance to the plaintiff. On
the other facts, the plaintiff could have purchased the chairs elsewhere, as
the chairs he found originally in the defendants store does not have any
specific values or historical background.
The court would have grant specific performance to the plaintiff if the
chair was one of a kind or if it has some background where it has some
significant history behind it.

Patel v Ali

The case illustrates on the on Mr. and Mrs. Patel who wanted to sell their
house to Ali (plaintiff). However it was delayed when Mr. Patel was
bankrupt, and during the time of making the contract Mrs. Patel was
healthy. During the delaying period, Mrs. Patel was diagnosed with bone
cancer and had her leg amputated and had further children. Thus, she
became dependent on her neighbors to assist her daily activities in the
place. Thus the plaintiff has sought for specific performance. The court
denied the specific performance by addressing the pain and suffering Mrs.
Patel may face if she was forced to move out of the place however as Mr.
Ali is also not the party at fault in this scenario, the court held it as
hardship amounting to injustice if the specific performance was granted.

On this logic, Mr. Ali can obtain specific performance as the house is an
immovable property. However, if specific performance is granted, it would
impose hardship on the defendant. In law, the judgement must be fair,
therefore the specific performance was not granted to the plaintiff.

Walters v Morgan

The case illustrates on silence and specific performance. In this case, the
defendant bought a land and plaintiff wish to mine in that land. Thus, the
plaintiff produced a draft lease and forced the defendant into signing the
lease, afterwards the defendant realizes the true value of the land and
refused to allow the plaintiff to mine the land. Therefore, the plaintiff sued
for breach of contract and sought for specific performance while the
defendant sought for contract to be rescinded for misinterpretation.
The court held it that there was no misinterpretation since the plaintiff did
not said anything or did anything to deceive the defendant regarding the
value of the land. Silence is not equivalent to misinterpretation. Yet the
court refused to grant specific performance as the plaintiffs intended to
take advantage of the defendants unawareness by rushing him into
signing the contract.
Commonly specific performance will be granted for immovable property
transfers, however in this case there was silence however the court stated
that it is not equivalent to misinterpretation. However the plaintiffs
behavior in rushing the defendant to sign the lease contract proved that
the plaintiff is trying to take advantage of defendants ignorance,
therefore granting specific performance to the plaintiff would be injustice
to the defendant. Thus the specific performance was denied by the court.