Injunction to Perform a Negative Agreement

In one line

The court cannot make a singer sing, but it can stop her singing for somebody else, and section 42 is the provision that says so.

In the words a student can write in an exam: section 42 of the Specific Relief Act 1963 provides that "Notwithstanding anything contained in clause (e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement", provided that the plaintiff has not failed to perform the contract so far as it is binding on him.

A numbering note. Older reports and textbooks cite this provision as section 57 of the Specific Relief Act 1877, and even judgments under the 1963 Act sometimes carry the old number in their catchwords. The current number is 42.

The problem the section solves

Two provisions, read together, would otherwise produce an unsatisfactory result.

Section 14(c) says a contract so dependent on the personal qualifications of the parties that the court cannot enforce its material terms cannot be specifically enforced. So a court cannot order a singer to sing or an employee to work.

Section 41(e) says an injunction cannot be granted to prevent the breach of a contract the performance of which would not be specifically enforced. So, on the face of it, the court cannot even stop the singer performing elsewhere.

Put together, an employer or a promoter who has bargained for exclusivity would have no remedy but damages, which are hard to prove and often useless.

Section 42 breaks that chain. It begins with the words "Notwithstanding anything contained in clause (e) of section 41", and says that the inability to compel the affirmative promise is no obstacle to enjoining the negative one.

The distinction in a line: the court will not compel a person to work; it will hold him to his promise not to work for a rival.

The provision itself

"Notwithstanding anything contained in clause (e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement:

Provided that the plaintiff has not failed to perform the contract so far as it is binding on him."

Broken down

The conditions

Four, and all are needed.