Contracts That Cannot Be Specifically Enforced

In one line

Four classes of contract the court will not order performed, and since 2018 the list is shorter and different from the one every older textbook prints.

In the words a student can write in an exam: section 14 of the Specific Relief Act 1963, as substituted by section 5 of the Specific Relief (Amendment) Act 2018 with effect from 1 October 2018, provides that the following contracts cannot be specifically enforced: (a) where a party has obtained substituted performance under section 20; (b) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise; (c) a contract so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and (d) a contract which is in its nature determinable.

Why there must be a list at all

Section 10 now says the court shall enforce. A rule as strong as that needs a boundary, and section 14 is one of the three boundaries section 10 names.

The four classes are not arbitrary. Each identifies a case in which a decree would either be futile, because the court cannot make it work, or wrong, because it would compel something the law should not compel.

Futile: a duty the court cannot supervise, and a contract that can be terminated the day after the decree.

Wrong: compelling a person to render personal service, which comes close to compelling labour.

Unnecessary: where the plaintiff has already taken substituted performance and been compensated for it.

The provision itself

"The following contracts cannot be specifically enforced, namely:

(a) where a party to the contract has obtained substituted performance of contract in accordance with the provisions of section 20;

(b) a contract, the performance of which involves the performance of a continuous duty which the court cannot supervise;

(c) a contract which is so dependent on the personal qualifications of the parties that the court cannot enforce specific performance of its material terms; and

(d) a contract which is in its nature determinable."

What the old section 14 said, and why it matters

This is the single most important currency point in the chapter. The pre 2018 section 14 was longer and different, and a textbook printed before 2018 will set out a list that includes:

• a contract for the non performance of which compensation in money is an adequate relief;
• a contract running into such minute or numerous details, or so dependent on personal qualifications or volition, or otherwise of such a nature, that the court cannot enforce specific performance of its material terms;
• a contract which is in its nature determinable;
• a contract the performance of which involves the performance of a continuous duty which the court cannot supervise;