Preparation for BJS Examination(Notes on Specific Relief Act,1877-Part-1)
Notes On
Part-1
Ø Specific relief how given
Section:-5.
(a) by taking possession and delivering it;
(b) by specific
performance of a contract.
(c) by injunction
(d) by declaratory
suits ; or
(e) by appointing receiver.
In short:- {(a)possession, (b)specific
performance of contract, (c)injunction, (d)declaratory suits,(e) receiver}
Ø Relief not granted to enforce penal law
Section:-7.
Specific relief cannot be granted for the mere
purpose of enforcing a penal law.
Ø Recovery of specific immoveable property
***Section:-8.
A person entitled to the possession
of specific immoveable property may
recover it in the manner prescribed
by the Code of Civil Procedure.
Discussion:-
·
Person= Jurisprudence( can sue and can be
sued) Includes- Natural Person.+ Artificial Person/ Juristic Person +Section
3(39) of the General Causes Act,1897.
I.
Any company;
II.
Association;
III.
Body of individuals.
·
Im. P.= Immovable Property.
I.
Section-3(25) of the General Causes
Act,1897.
II.
Section 2(6) of the Registration Act,1908.
III.
Section -3 of the T.P. Act, 1882.
IV.
Section-2(16),2(16a), 2(15) of the SAT Act, 1950.
V.
Section 2(4) of the NAT Act, 1949.
Specific Im. P.= In
Section 58 of the TP Act,1882.= “ A mortgage is the transfer of an interest in
specific immovable property…….”
In section 105 of the TP
Act, 1882.= “A lease of immovable property is a transfer of a right to
enjoy such property…….”
·
Movable Property:-
I.
S.3(34)- of the General Causes Act,1897
II.
S.2(9)- of the Registration Act,1908.
·
Manner= That is to say CPC,1908 is a
procedural law. And the SR Act,1877 is a substantive law/ adjective law.
***SR Act, 1877=
Substantive Law/ adjective law.
***Court fee= Ad valorem.
***Limitation Period= 12
YR.(Article-142 of the Limitation Act, 1908)
# Relation between –S.8,
42 of the SR Act,1877.
Ø Suit by person dispossessed of immoveable
property
***Section-09 is more
important than section 08 for exam. This section 9 is important for problematic
question also.
***Section:-9.
If any person is dispossessed without his consent of immoveable property otherwise than in due
course of law, he or any person claiming through him may, by suit recover
possession thereof, notwithstanding any
other title that may be set up in such suit.
Nothing in this section
shall bar any person from suing to establish his title to such property and to
recover possession thereof.
No
suit under this section shall be brought against the Government.
No
appeal shall lie from any order or decree passed in any
suit instituted under this section, nor
shall any review of any such order or decree be allowed. (***Appeal, Review=No, Revision=Yes)
Discussion:-
Appeal= From section
(96-112) + Orders-41,42,43,45 of the CPC, 1908.
Review= Section -114+
Order 47 of the CPC,1908.
Revision= Section-115 0f
the CPC, 1908.
***ONLY POSSESSION is a deciding factor of a suit under section-9 of
the SR Act, 1877.
·
Res Judicata & Section-9 of the SR
Act, 1908.
ü Res
Judicata S.11 of the CPC,1908.
·
Section-145 of the Cr.P.C. 1898 &
Section-9 of the SR Act, 1877.
*** Court Fee= ½ of Ad
valorem court fee.
***Limitation Period= 6
M.(Article -3 of the Limitation Act, 1908)
Ø Cases
in which specific performance enforceable
***Section-12. The specific performance of any contract may
in the discretion of the Court be
enforced-
(a) In case of a trust;
(b) when there exists no standard for ascertaining the actual damage.
Illustrations
·
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.(*Dead)
(c) when the act agreed
to be done is such that pecuniary
compensation for its non-performance would not afford adequate relief;
Illustrations
·
A contracts with B to sell him a house for taka 1,000. B is entitled to
a decree directing A to convey the house to him, he paying the purchase-money.(*House = Im. P.) (***Breach of a contract
to transfer immoveable property= SPC)
· In
consideration of being released from certain obligations imposed on it by its
act of Incorporation, a railway-company contract with Z to make an archway
through there railway to connect lands of Z severed by the railway, to
construct a road between certain specified points, to pay a certain annual sum
towards the maintenance of this road, and also to construct a siding and a
wharf as specified in the contract. Z is entitled to have this contract
specifically enforced for his interest in its performance cannot be adequately compensated for by money: and the Court may
appoint a proper person to superintend the construction of the archway, road,
siding and wharf.(*No adequate
compensation)
·
A contracts to sell, and B contracts to
buy, a certain number of railway-shares of a particular description. A refuses
to complete the sale. B may compel A specifically to perform this agreement,
for the shares are limited in number and
not always to be had in the market, and their possession carries with it
the status of a share-holder, which cannot otherwise be procured.(*Shares are limited)
·
***A
contracts with B to paint a picture for B, who agrees to pay therefor taka
1,000. The picture is painted. B is
entitled to have it delivered to him on payment or tender of the taka 1,000.
(d) when it is probable that pecuniary compensation cannot be got .
Illustrations
·
A transfers without endorsement, but for
valuable consideration, a promissory note to B. A becomes insolvent, and C is
appointed his assignee. B may compel C to endorse the note, for C has succeeded
to A's liabilities, and a decree for pecuniary compensation for not endorsing the note would be fruitless.
***Explanation - (***Breach of a contract to transfer
immoveable property= SPC=YES)
Discussion:-
Here grounds are 4 for the specific performance of a
contract.
I.
Trust;
II.
No standard for ascertaining the actual
damage;
III.
Pecuniary compensation for its
non-performance would not afford adequate relief;
IV.
When it is probable that pecuniary
compensation cannot be got.
***Limitation Period for
SPC= 1 YR. (Article -113 of the Limitation Act,1908)
Ø Contracts not specifically enforceable
Section:-21.
The following contracts cannot be
specifically enforced:–
a)
Contract in which money is an
adequate relief;
Illustrations
· A
contracts to sell, and B contracts to buy, a
lakh of taka in the four per cent loan of the Government. As here both A
and B, would be reimbursed by
compensation in money; there cannot be SPC.
· A
contracts to sell, and B contracts to buy, 40 chests of indigo at taka 1,000 per chest: As here both A
and B, would be reimbursed by
compensation in money; there cannot be SPC.
· In
consideration of certain property having been transferred by A to B, B
contracts to open a credit in A's favour to extent of taka 10,000, and to honour A's drafts to that amount: As here A would be reimbursed by compensation
in money; there cannot be SPC.
b)
A contract into such minute or
numerous details, dependent on the personal qualifications, and the uncertainty
of the nature of the contract.
Illustrations
·
A contracts to render personal service to B:
·
A contracts to employ B on personal service:
·
A, an author,
contracts with B, a publisher, to
complete a literary work:
Here, B cannot enforce
specific performance of these contracts.
·
A contracts to buy B's business at the
amount of a valuation to be made by two valuers, one to be named by A and the
other by B. A and B each name a valuer, but before the valuation is made, A instructs his valuer not to proceed.
·
By a charter-party entered into in
Chittagong between A, the owner of a ship, and B, the charterer, it is agreed
that the ship shall proceed to Karachi and
there load a cargo of rice, and thence proceed to London, freight to be paid, one-third
on arrival at Karachi, and two-thirds
on delivery of the cargo in London:
·
A lets land to B and B contracts to
cultivate it in a particular manner for three
years next after the date of the lease:
·
A and B contract that, in consideration of
annual advances to be made by A, B will for three years next after date of the contract grow particular crops
on the land in his possession and deliver them to A when cut and ready for
delivery:
·
A contracts with B that, in consideration
of taka 1,000 to be paid to him by B, he
will paint a picture for B:
·
A contracts with B to execute certain
works which the Court cannot superintend:
·
A contracts to supply B with all the goods
of certain class which B may require:
·
A contracts with B to take from B a lease
of a certain house for a specified term, at a specified rent, "if the
drawing-room is hand somely decorated", even if it is held to have so much
certainty that compensation can be recovered for its breach:
·
A contracts to marry B:
#The above contracts
cannot be specifically enforced.
c)
A contract without of reasonable
certainty
Illustrations
·
A, the owner of a refreshment-room,
contracts, with B to give him accommodation there for the sale of his goods and
to furnish him with the necessary
appliances. A refuses to perform his contract. The case is one for compensation and not for specific performance, the
amount and nature of the accommodation and appliances being undefined.
d)
Revocable contract
Illustrations
·
A and B contract to become partners in a
certain business, the contract not
specifying the duration of the proposed partnership. This contract cannot
be specifically performed, for, if it were so performed, either A or B might at once dissolve the partnership.
e)
A contract in breach of trust by
trustee
Illustrations
·
A is a trustee of land with power to lease
it for seven years. He enters into a contract with B to grant a lease of the
land for seven years, with a covenant to
renew the lease at the expiry of the term. This contract cannot be
specifically enforced.
·
The Directors of a company have power to
sell the concern with the sanction of a general meeting of the shareholders.
They contract to sell it without any
such sanction. This contract cannot be specifically enforced.
·
Two trustees, A and B, empowered to sell trust-property worth a lakh of taka contract to sell it to
C for taka 30,000. The contract is so disadvantageous as to be a breach of
trust. C cannot enforce its specific performance.
·
The promoters of a company for working
mines contract that the company, when formed, shall purchase certain mineral
property. They take no proper
precautions to ascertain the value of such property- and in fact agree to
pay an extravagant price therefore. They also stipulate that the vendors shall
give them a bonus out of the purchase-money. This contract cannot be
specifically enforced.
f)
Contacts in which corporation or
public company excess of its powers
Illustrations
·
A company existing for the sole purpose of making and working a railway contract for the purchase of a piece of land for the purpose of erecting a cotton-mill thereon. This contract cannot be
specifically enforced.
g)
Performance of a contract which
involves continuous duty more than three
years from its date
Illustrations
·
A contracts to let for twenty-one years to B the right to use
such part of certain railway made by A as was upon B's land, and that B should
have a right of running carriages over the whole line on certain terms, and
might require A to supply the necessary engine-power, and that A should during
the term keep the whole railway in good repair. Specific performance of this
contract must be refuse to B.
h)
In which a material part of the
subject- matter ceased to exist before the contract has been made
Illustrations
·
A contracts to pay an annuity to B for the
lives of C and D. It turns out that, at
the date of the contract, C, though supposed by A and B to be alive, was dead. The contract cannot be
specifically performed.
No
contract to refer present or future differences to arbitration shall be
specifically enforced.
Discussion:-
Here, grounds are 8 (EIGHT ) in number for not granting
the specific performance of a contract.
I.
Contract in which money is an adequate
relief;
II.
A contract into such minute or numerous
details, dependent on the personal qualifications, and the uncertainty of the
nature of the contract;
III.
A contract without of reasonable certainty;
IV.
Revocable contract;
V.
A contract in breach of trust by trustee;
VI.
Contacts in which corporation or public
company excess of its powers;
VII.
Performance of a contract which involves
continuous duty more than three years
from its date;
VIII.
In which a material part of the subject-
matter ceased to exist before the contract has been made.
Ø Discretion as to decreeing specific
performance
***This
section is important for problematic question.
Section:-22.
The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief
merely because it is lawful to do so;
but the discretion of the Court is not arbitrary but sound and reasonable, guided
by judicial principles and capable of correction by a Court of appeal.
The following are cases
in which the Court may properly exercise a discretion not to decree specific performance:-
I. 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 misrepresen-tation on the plaintiff's part.
Illustrations
(a) A, a tenant for life
of certain property, assigns his interest therein to B. C contracts to buy, and
B contracts to sell, that interest. Before the contract is completed, A
receives a mortal injury from the effects of which he dies the day after the
contract is executed. If B and C were
equally ignorant or equally aware of the fact, B is entitled to specific
performance of the contract. If B knew the fact, and C did not, specific
performance of the contract should be refused to B.
(b) A contracts to sell
to B the interest of C in certain stock-in-trade. It is stipulated that the
sale shall stand good, even though it should turn out that C's is interest is
worth nothing. In fact, the value of C's interest depends on the result of
certain partnership-accounts, on which he is heavily in debt to his partners. This indebted is known to A, but not to B.
Specific performance of the contract should be refused to A.
***(c)
A contracts to sell, and B contracts to buy, certain land. To protect the land
from floods, it is necessary for its owner to maintain an expensive embankment.
B does not know of this circumstance, and A conceals it from him. Specific
performance of the contract should be refused to A.(Previous Judiciary Written Question-2011)
(d) A's property is put
up to auction. B requests C, A's attorney, to bid for him. C does this
inadvertently and in good faith. The
persons present, seeing the vendor's attorney bidding, think that he is a mere
puffer and cease to compete. The lot is knocked down to B at a low price.
Specific performance of the contract should be refused to B.
II. Where the performance
of the 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.
Illustrations
(e) A is entitled to some
land under his father's will on condition that if he sells it within
twenty-five years, half the purchase-money shall go to B. A, forgetting the
condition, contracts, before the expiration of the twenty-five years, to sell
the land to C. Here the enforcement of
the contract would operate so harshly on A, that the Court will not compel its
specific performance in favour of C.(C vs. A)
(f) A and B, trustees,
join their beneficiary, C, in a contract to sell the trust-estate to D, and
personally agree to exonerate the estate from heavy encumbrances to which it is
subject. The purchase-money is not nearly enough to discharge those
encumbrances, though, at the date of the contract, the vendors believed it to be sufficient. Specific performance of
the contract should be refused to D.
(g) A, the owner of an
estate, contracts to sell it to B, and stipulates that he, A, shall not be
obliged to define its boundary. The estate really comprises a valuable
property, not known to either to be part of it. Specific performance of the contract should be refused to B unless he
waives his claim to the unknown property.
(h) A contracts with B to
sell him certain land, and to make a road to it from a certain railway-station.
It is found afterwards that A cannot
make the road without exposing himself to litigation. Specific performance
of the part of the contract relating to the road should be refused to B.
(i) A, a lessee of mines,
contracts with B, his lessor, that at any time during the continuance of the
lease B may give notice of his desire to
take the machinery and plant used in and about the mines, and that he shall
have the articles specified in his notice delivered to him at a valuation on
the expiry of the lease. Such a contract
might be most injurious to the leasee's business, and specific performance of
it should be refused to B.
(j) A contracts to buy certain
land from B. The contract is silent as
to access to the land. No right of way to it can be shown to exist. Specific
performance of the contract should be refused to B.
(k) A contracts with B to
buy from B's manufactory and not elsewhere all the goods of a certain class
used by A in his trade. The Court cannot compel B to supply the goods, but if
he does not supply them, A may be ruined, unless he is allowed to buy them
elsewhere. Specific performance of the contract should be refused to B.
The following is a case
in which the Court may properly exercise a discretion to decree specific performance: –
III. Where the plaintiff has done substantial acts or suffered losses in
consequence of a contract capable of specific performance.
Illustration
A sells land to a
railway-company, who contract to execute
certain works for his convenience. The company takes the land and used it
for their railway. Specific performance
of the contract to execute the works should be decreed in favour of A.
Discussion:-
I.
Jurisdiction;(The Civil Courts Act, 1887,
The CPC,1908-sections-(9-24A))
II.
Decree;(Section-2(2) of the CPC, 1908)
III.
Discretionary;
IV.
Court is not bound;
V.
Merely because it is lawful to do so;
VI.
Discretion of the Court is not arbitrary
but sound and reasonable;
VII.
Discretion of the Court is guided by
judicial principles; and
VIII.
Capable of correction by a Court of appeal.
***Related Sections- Sec.
151 of the CPC, 1908.(INHERENT POWERS OF COURT)
Ø Relief against parties and persons
claiming under them by subsequent title
***The examples of this
section are important for the exam.
Section:-27. Specific performance of a contract may be
enforced against-
(a) either party thereto;
(b)*** any other person claiming under him by a
title arising subsequently to the contract,
Illustrations***
·
A contracts to convey certain land to B by
a particular day. A dies intestate before that day without having conveyed the
land. B may compel A's heir or other
representative in interest to perform the contract specifically.
·
A contracts to sell certain land to B for
taka 5,000. A afterwards conveys the
land for taka 6,000 to C, who has notice of the original contract. B may
enforce specific performance of the contract as against C.
·
A contracts to sell land to B for taka
5000. B takes possession of the land. Afterwards A sells it to C for taka
6,000. C makes no inquiry of B relating
to his interest in the land. B's possession is sufficient to affect C with
notice of his interest, and he may enforce specific performance of the
contract against C.
·
A contracts, in consideration of taka
1,000 to bequeath certain of his lands to B. Immediately after the contract A dies intestate, and C takes out
administration to his estate. B may enforce specific performance of the
contract against C.
·
A contracts to sell certain land to B.
Before the completion of the contract, A
becomes a lunatic and C is appointed his committee. B may specifically
enforce the contract against C.
(c) any person claiming under a title which, though prior to the
contract and known to the plaintiff, might have been displaced by the
defendant;
Illustrations
·
A, the tenant for life of an estate, with
remainder to B, in due exercise of a power conferred by the settlement under
which he is tenant for life, contracts
to sell the estate to C, who has notice of the settlement. Before the sale
is completed, A dies. C may enforce specific performance of the contract
against B.
·
A and B are joint tenants of land, his
undivided moiety of which either may alien in his life time, but which, subject
to that right, devolves on the survivor. A
contracts to sell his moiety to C and dies. C may enforce specific
performance of the contract against B.
(d) when a public company has entered into a contract and subsequently
becomes amalgamated with another public company, the new company which
arises out of the amalgamation; (Public
Company(1)+ Public Company(2)= New Public Company)
(e) when the promoters of
a public company have, before its incorporation, entered into a contract, the company: provided that the company
has ratified and adopted the contract and the contract is warranted by the
terms of the incorporation.
Ø Specific performance in case of part
performance of contract to lease
Section:-27A.
Where a contract to lease immoveable property is made in writing signed by the
parties thereto or on their behalf, either party may, notwithstanding that the
contract, though required to be
registered, has not been registered, sue the other for specific performance
of the contract if,-
(a) where specific
performance is claimed by the lessor,
he has delivered possession of the
property to the lessee in part
performance of the contract; and
(b) where specific
performance is claimed by the lessee,
he has, in part performance of the
contract, taken possession of the
property, or, being already in
possession, continues in possession
in part performance of the contract, and has done some act in furtherance of the contract:
Provided
that nothing in this section shall affect the rights of a transferee for
consideration who has no notice of the contract or of the part performance
thereof.
Ø What parties cannot be compelled to
perform
***The examples of this
section are important for the exam.
Section:-28.
Specific performance of a contract cannot be enforced against a party thereto
in any of the following cases:-
(a) if the consideration to be received by him is
so grossly inadequate, with
reference to the state of things existing at the date of the contract, as to be
either by itself or coupled with other circumstances evidence of fraud or of
undue advantage taken by the plaintiff;
(b) if his assent was obtained by the
misrepresentation (whether wilful or innocent), concealment, circumvention or unfair practices,
(c) if his assent was given under the influence of mistake of fact,
misapprehension or surprise:
Illustrations:-( Of
clause(c))
Ø A,
one of two executors, in the erroneous belief
that he had the authority of his co-executor, enters into an agreement for
the sale to B of his testator's property. B cannot insist on the sale being
completed.
Ø A
directs an auctioneer to sell certain land. A afterwards revokes the auctioneer's authority as to 20 bighas of this
land, but the auctioneer inadvertently sells the whole to B, who has not
notice of the revocation. B cannot enforce specific performance of the
agreement.
Ø Contract of which the subject has
partially ceased to exist
Section:-13. A
contract is not wholly impossible of performance because a portion of its subject-matter, existing at its date, has ceased to exist at the time of the
performance.
Illustrations
(a) ***A contracts to
sell a house to B for a lakh of taka. The day after the contract is made the
house is destroyed by a cyclone. B may
be compelled to perform his part of the contract by paying the purchase-money.
(b) In consideration of a
sum of money payable by B, A contracts to grant an annuity to B for B's life.
The day after the contract has been made, B
is thrown from his horse and killed. B's
representative may be compelled to pay the purchase-money.
Ø Specific performance of part of contract
where part unperformed is small
Section:-14.
Where a party to a contract is unable to perform the whole of his part of
it, but the part which must be left unperformed bears only a small proportion
to the whole in value, the Court may, at
the suit of either party, direct the specific performance of so much of the
contract as can be performed, and
award compensation in money for the deficiency.
Illustrations
·
A contracts to sell B a piece of land
consisting of 100 bighas. It turns out
that 98 bighas of the land belong to A, and the two remaining bighas to a
stranger, who refuses to part with them. The
two bighas are not necessary for the use or enjoyment of the 98 bighas, nor so
important for such use of enjoyment that the loss of them may not be made good
in money. A may be directed at the
suit of B to convey to B the 98 bighas and to make compensation to him for not
conveying the two remaining bighas;
or
B may be directed, at the suit of A,
to pay to A, on receiving the conveyance and possession of the land, the
stipulated purchase-money less a sum awarded as compensation for the deficiency.
·
In a contract for the sale and purchase of
a house and lands for two lakhs of Taka, it is agreed that part of the furniture should be taken at a valuation. The court may
direct specific performance of the contract notwithstanding the parties are unable to agree as to the
valuation of the furniture, and may either have the furniture valued in the
suit and include it in the decree for specific performance, or may confine its
decree to the house.
Ø Specific performance of part of contract
where part unperformed is large
Section:-15.
Where a party to a contract is unable to
perform the whole of his part of it, and the part which must be left
unperformed forms a considerable portion of the whole, or does not admit compensation in money, he is not entitled to obtain a decree for
specific performance.
Illustrations
(a) A contacts to sell to
B a piece of land consisting of 100 bighas. It turns out that 50 bighas of the
land belong to A, and the other 50 bighas to a stranger, who refuses to part
with them. A cannot obtain a decree
against B for the specific performance of the contract; but if B is willing
to pay the price agreed upon, and to take the 50 bighas which belong to A,
waiving all right to compensation either for the deficiency or for loss
sustained by him through A's neglect or default, B is entitled to a decree
directing A to convey those 50 bighas to him on payment of the purchase-money.
(b) A contracts to sell
to B an estate with a house and garden for a lakh of taka. The garden is important for the enjoyment of the house. It turns out that A is unable to convey the
garden. A cannot obtain a decree against B for the specific performance of the
contract, but if B is willing to pay the price agreed upon, and to take the
estate and house without the garden, waiving all right to compensation either
for the deficiency or for loss sustained by him through A's neglect or default,
B is entitled to a decree directing A to convey the house to him on payment of
the purchase-money.
Ø Unregistered contract for sale not
specifically enforceable
Section:-21A.
No contract for sale of any immovable property can be specifically enforced unless–
(a) the contract is in
writing and registered under the Registration Act, 1908, whether or not the transferee has taken possession of the property or
any part thereof; and
(b) the balance amount of
consideration of the contract is deposited in the court at the time of filing
the suit for specific performance of the contract.
Discussion:-
{***Related sections from
Registration Act, 1908-(S.47, 48,49,50.),(S.17,17A,17B,18)}
Ø Who may obtain specific performance
Section:-23. The specific
performance of a contract may be obtained by-
(a) any party thereto;
(b) the representative in interest, or the principal, of any party thereto:
***Provided that, where
the learning, skill, solvency or any personal quality of such party is a
material ingredient in the contract, or where the contract provides that his
interest shall not be assigned, his representative in interest or his principal
shall not be entitled to specific performance of the contract, unless where his
part thereof has already been performed;
(c) where the contract is
a settlement on marriage, or a compromise of doubtful rights between
members of the same family, any
person beneficially entitled thereunder;
(d) where the contract
has been entered into by a tenant for life in due exercise of a power, the remainder man;
(e) a reversioner in possession, where the agreement is a covenant
(f) a reversioner in remainder, where the agreement is a covenant,
(g) when a public company
has entered into a contract and subsequently becomes amalgamated with another
public company, the new company
which arises out of the amalgamation;
(h) when the promoters of
a public company have, before its incorporation, entered into a contract for
the purposes of the company, and such contract is warranted by the terms of the
incorporation, the company.
Ø Personal bars to the relief
Section:-24.
Specific performance of a contract cannot be enforced in favour of a person-
(a)
who could not recover compensation for its
breach;
Illustrations
A, in the character of
agent for B, enters into an agreement with C to buy C's house. A is in reality acting, not as agent for B,
but on his own account. A cannot enforce specific performance of this contract.
(b)
who has become incapable of performing, or
violates, any essential term of the contract that on his part remains to be
performed;
Illustrations
·
A contracts to sell B a house and to
become tenant thereof for a term of fourteen years from the date of the sale at
a specified yearly rent. A becomes
insolvent. Neither he nor his assignee can enforce specific performance of
the contract.
·
A contracts to sell B a house and garden
in which there are ornamental trees, a
material element in the value of the property as a residence. A, without B's consent fells the trees.
A cannot enforce specific performance of the contract.
·
A, holding land under a contract with B
for a lease, commits waste, or treats
the land in an unhusbandlike manner. A cannot enforce specific performance
of the contract.
·
A contracts to let, and B contracts to
take, an unfinished house, B contracting to finish the house and the lease to
contain covenants on the part of A to keep the house in repair. B finishes the house in a very defective
manner: he cannot enforce the
contract specifically, though A and B may sue each other for compensation for
breach of it.
(c)
***who has already chosen his remedy and obtained
satisfaction for the alleged breach of contract; or
Illustrations
· ***A
contracts to let, and B contracts to take, a house for specified term at a
specified rent. B refuses to perform the contract. A thereupon sues for, and obtains, compensation for the breach. A
cannot obtain specific performance of the contact.
(d) who, previously to
the contract, had notice that a settlement of the subject-matter thereof
(though not founded on any valuable consideration) had been made and was then
in force.
Ø Contracts to sell property by one who has
no title, or who is a voluntary settler
***The examples of this
section are important for the exam.
Section:-25.
Illustrations
(a) A, without C's authority, contracts to
sell to B an estate which A knows to belong to C. A cannot enforce specific
performance of this contract, even though C is willing to confirm it.
(b) A, being in
possession of certain land, contracts to sell it to Z. On inquiry it turns out
that A claims the land as heir of B, who left the country several years before,
and is generally believed to be dead, but
of whose death there is no sufficient proof. A cannot compel Z specifically
to perform the contract.
(c) A, out of natural
love and affection, makes a settlement of
certain property on his brothers and their issue, and afterwards enters into a contract to sell property to a
stranger. A cannot enforce specific
performance of this contract so as to override the settlement, and thus
prejudice the interest of the persons claiming under it.
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