The Other Remedies for Breach

In one line

Beyond damages, a party has rescission with compensation under sections 39 and 75, restitution under section 65, quantum meruit under section 70, and, under the Specific Relief Act, 1963, specific performance, substituted performance, rectification, cancellation, declaration and injunction.

Specific performance, and the change of 2018

This is the most current fact on this paper and it must be stated with its date.

Before 1 October 2018, section 10 of the Specific Relief Act, 1963 made specific performance discretionary: the court may enforce specific performance in the two cases the old section listed, and section 20 gave the court a general discretion which was not to be exercised arbitrarily but which was a discretion nonetheless. Damages were the rule and specific performance the exception.

The Specific Relief (Amendment) Act, 2018, in force 1 October 2018, SUBSTITUTED section 10, which now reads: "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."

Three consequences.

Specific performance is now a right, not a remedy in the court's discretion. The old general discretion in section 20 was removed and replaced.

The exceptions are now exhaustive and statutory. They are section 11(2), a contract made by a trustee in excess of his powers or in breach of trust; section 14, the four classes of contract that cannot be specifically enforced; and section 16, personal bars to relief.

And the burden has moved. A plaintiff no longer persuades the court to exercise a discretion in his favour; the defendant must bring the case within one of the statutory exceptions.

Section 14: what still cannot be specifically enforced

Four classes, and the first is new.

(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;

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

Note what has gone from the old list. The former ground that a contract is not specifically enforceable where compensation in money is an adequate relief was removed by the 2018 amendment. So the adequacy of damages is no longer a bar, which is the practical heart of the change.

Section 20: substituted performance

A new remedy inserted by the 2018 amendment and it is the one most answers have never heard of.

20(1): where a contract is broken due to non-performance of promise by any party, the party who suffers shall have the option of substituted performance through a third party or by his own agency, and may recover the expenses and other costs actually incurred, spent or suffered by him, from the party committing such breach, except as otherwise agreed.