Legal principles are formulated in conjunction with the society’s needs for them. As the issues in the society grow, new legal principles are wanted to resolve such issues. One such legal principle is of deciding the kind of remedy that will work in a breach of contract case. Sometimes imposition of fines by the government is enough and solves the issue. However, it does not work in every case. For other such breach of contract cases there is another remedy which goes by the name “equitable remedy” that gives the court power to direct the defendant to do his part of the contract. One such equitable remedy is “Specific performance”.
Courts allow the remedy of Specific performances only in the circumstances enumerated in the law and these circumstances are as follows: 1. Damages cannot be ascertained - Damages in simple terms is nothing but money value. If it is difficult to ascertain the money value of loss suffered by the non breaching party the court will grant specific performance. For example, Ravi enters into a contract with Amit to sell an African artifact to him in India but fails to deliver his promise. The value of the artifact cannot be ascertained in India because there is no other such artifact which can be compared to this one, to know the money value of the artifact.
- Compensation is not an adequate relief - This scenario comes when the money value is not the relief that will make good the loss the non breaching party suffered on the part of breaching party. For example, In a town there are two contractors, one is Sunil. Sunil enters into a contract with Anil to fix Anil’s leaking roof before the rainy season comes. Sunil breaches the contract on a short notice and Anil is unable to hire the other contractor because he already has another project. This point is explained in the law by further particular enumerations, these are:
(i) Immovable property - Immovable property in the law is a term used to define land. Contract to transfer land requires the remedy of specific performance.
(ii) Movable property - Movable property will only get the special remedy of specific performance and these situations are specifically enumerated in the law. First being, when it is not an ordinary article of commerce, there is only on M.F. Hussain (the famous painter) and his original work is not an ordinary article of commerce. If Adil entered into a contract to sell Afaq M.F. Hussain’s one of the famous paintings, court will grant specific performance. Second, if it of special value or interest to the plaintiff. Rama enters into a contract with Asha to sell an heirloom necklace which belonged to Asha’s grandmother, and is her last memory for Asha. Third, the property is held by the defendant as agent or trustee of the plaintiff. Amita enters into a contract with Rachita to keep his jewelry as a trustee when Rachit goes abroad to pursue higher education. Amita has to return the jewelry under the remedy of specific performance on Rachita’s demand.
It is noteworthy that the remedy of specific performance though available in the contract is only given on the discretion of the court.
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