Specific Performance After 2018: the Rule, Not the Discretion

In one line

The single most important sentence in this Module: since 1 October 2018 specific performance is what a court must grant, not what it may grant if it feels the case deserves it.

In the words a student can write in an exam: section 10 of the Specific Relief Act 1963, as substituted by section 3 of the Specific Relief (Amendment) Act 2018 with effect from 1 October 2018, provides that "The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16." The old section 10 provided that specific performance "may, in the discretion of the court", be enforced, and it listed cases in which the court was to presume damages inadequate. That discretion is gone.

Why this chapter has to be read before any textbook

Almost every book on this subject opens Module IV with the proposition that specific performance is a discretionary equitable remedy, granted only where damages are an inadequate remedy. That proposition was correct until 30 September 2018 and has been wrong ever since.

The trap is worth naming plainly, because it costs marks. Books reprinted after 2018 without revision, coaching notes copied from older editions, and answers written from memory all still carry the discretion. A student who writes that specific performance is discretionary is writing the law that was repealed.

There is a second reason this chapter comes first. MU's own syllabus proves that the University is examining the amended Act, because topic 4.2.4 is "Substituted Performance of Contract", and substituted performance did not exist before 2018: section 20 used to be the discretion section and was replaced by it. So the syllabus is post 2018 even though it does not say so.

The provision, before and after

Section 10 as it now stands:

"The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16."

What it replaced. The old section 10 provided that, except as otherwise provided in the Chapter, the specific performance of any contract "may, in the discretion of the court", be enforced, and set out two cases in which the court was to presume that a breach could not be adequately relieved by compensation in money: where the act to be done was in the performance wholly or partly of a trust, and where there existed no standard for ascertaining the actual damage caused by non performance, or where money would not afford adequate relief.

The change in a sentence: "may, in the discretion of the court" became "shall".