Ritik Kesh, BA.LL.B, School of Law, Narsee Monjee Institute of Management Studies, Bengaluru
ABSTRACT
The term ‘Specific Performance’ refers to the exact attainment of the obligation provided in the contract made between parties, in case of a breach by any party. It ensures the fulfilment of the obligation which a person is promised in a contract and therefore should be entitled to demand for. It is a remedy in which a party involved in a contract is forced to perform or refrain from performing the acts that he has agreed to perform or refrain from performing in case of a breach.
The Specific Relief Act 2018, has introduced substantial modifications to the law relating to contract enforcement, making specific performance the primary remedy in disputes. Specific performance was previously an alternative equitable remedy which aimed at the exact fulfilment of an obligation and granting or refusing an order for specific performance was primarily left up to the discretion of the courts. It was a particular remedy adopted by courts when no other remedy (such as monetary relief) would sufficiently recompense the other party.
I completely agree to the point that a legal system that imposes severe restrictions on the provision of specific performance reduces the parties' trust in the contract. And when individuals get into a contractual agreement, they expect the other party to follow through on their promises. Hence, specific performance is the best means of repaying a promisee for contract violation, since it provides the exact performance that was agreed upon. The promisor, on the other hand, is only obligated to perform what they willingly agreed to do.
However, in certain circumstance, it is noticed that enforcing an action on someone does not provide the ideal resolution to disputes raised in a contract. Specific enforcement can sometimes have serious outcomes for parties. It may be impractical, if not physically impossible, for parties to carry out their initial commitments when circumstances have changed substantially.
Furthermore, fulfilment of obligation based on the personal judgment or capabilities of a person on which the request is made, is very often ordered by the court. The reason behind it is that a coerced party will often act below the party's regular standard and expectation, even when it is in the party's ability to do so.
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