Personal Bars to Relief

In one line

Three bars that attach to the plaintiff himself rather than to the contract, and the third of them, readiness and willingness, is the defence most specific performance suits are actually lost on.

In the words a student can write in an exam: section 16 of the Specific Relief Act 1963 provides that specific performance of a contract cannot be enforced in favour of a person (a) who has obtained substituted performance of the contract under section 20; (b) who has become incapable of performing, or violates any essential term of the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by it; or (c) "who fails to prove" that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Why these bars survive the 2018 amendment

Section 10 makes specific performance the rule. Section 16 is one of the three limits it preserves, and it is the one that looks at the plaintiff.

The logic is straightforward. Specific performance compels the defendant to perform his side. It would be indefensible to compel him while the plaintiff has not performed his own, or cannot, or has behaved in a way that destroys the basis of the bargain. The remedy is mutual or it is nothing.

So although the discretion has gone, the requirement that the plaintiff come to court having done, and being ready to do, what he promised has not. If anything it matters more, because it is now one of only three ways a defendant can resist.

The provision itself

"Specific performance of a contract cannot be enforced in favour of a person

(a) who has obtained substituted performance of contract under section 20; or

(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.

Explanation. For the purposes of clause (c),

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction."