The Origin of Specific Relief as an Equitable Relief

In one line

Sometimes money is not the answer, and specific relief is the law's name for giving the plaintiff the thing itself rather than its price.

In the words a student can write in an exam: specific relief is relief granted by ordering the defendant to do or to forbear from doing the very thing the plaintiff is entitled to, rather than by awarding compensation for its loss. It originated in the English courts of equity, which intervened where the common law's only remedy, damages, was inadequate; in India it is codified in the Specific Relief Act 1963 (Act 47 of 1963), which came into force on 1 March 1964. Since the Specific Relief (Amendment) Act 2018, in force 1 October 2018, specific performance in India is no longer discretionary, and section 10 provides that it "shall be enforced by the court".

Why a separate body of remedies grew up

The common law of England had one answer to a broken obligation: damages. That works whenever money can buy a substitute. It does not work at all in three situations, and those three situations are the whole justification for specific relief.

Where the thing is unique. A buyer of a particular piece of land, or of a specific painting, cannot go into the market and buy another. Damages give him the difference in price of something he never wanted.

Where the loss cannot be measured. What is the value of a right of way, or of an obligation not to publish a manuscript? A court that must put a figure on it will be guessing.

Where the wrong is continuing or threatened. Damages compensate for a wrong already done. They do nothing about one that is about to be done, or one that repeats every day.

Equity, administered by the Court of Chancery, developed remedies for these cases: specific performance, injunction, rectification, rescission, cancellation and the declaration. They came to be called equitable remedies, and two features followed from their origin, both of which matter to Indian law today.

They were discretionary. The Chancellor granted them where it was just to do so and refused them where it was not.

They were governed by maxims. "He who seeks equity must do equity." "He who comes into equity must come with clean hands." "Equity will not suffer a wrong to be without a remedy." "Delay defeats equity."

How the jurisdiction reached India

Equity as a separate system of courts never existed in India. What happened instead is that the principles were received and then codified.

The Indian courts applied equitable principles as rules of justice, equity and good conscience where no statute governed. Then the legislature enacted the Specific Relief Act 1877, which codified the subject, and that Act was replaced, on the recommendation of the Law Commission of India in its Ninth Report, by the Specific Relief Act 1963.