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UNDERSTANDING OF SPECIFIC PERFORMANCE

Thank You!

Specific Performance

Definition

• Performance defined as the action or process of carrying out or accomplishing an action, task, or function.

• Specific means particular

Contractual Remedy

Contractual Remedy

❖ the court orders a party

❖ to actually perform its promise as closely as possible

❖ because monetary damages are somehow

inadequate to fix the harm.

A contractual remedy in which

Specific Relief

Remedy obtained through Specific Relief Act, 1877 (“Act”) called Specific Relief

Relieves

Act deals with following Relieves

❖ Recovery of possession of moveable or immovable

property

❖ Performance of Contract

❖ Rectification of Instrument

❖ Rescission of Contract

❖ Cancellation of Instrument

❖ Declaring the rights of a party

❖ Appointing a Receiver

❖ Enforcement of Public duties

❖ Temporary and perpetual injunctions (“Stay Order”)

An Agreement

Agreement

❖ An act in law

❖ Executes declare their consent to do something which is not forbidden by law

❖ Settled terms and conditions with free of consent

❖ Against valuable and lawful consideration

Performance of agreement

• Performance of every agreement is binding upon the parties unless forbidden by law

• If a person not performing his part of contract

• The aggrieved person invokes the provisions of Specific Performance for the enforcement of contractual obligations

❖ Damage for non-performance is not ascertainable

❖ Pecuniary compensation is not adequate relief

❖ Pecuniary compensation cannot be awarded

Exploration Of Court

*Passed directions to defaulter of agreement to

perform the agreement specifically in terms of

agreement executed between the parties

Forbidden By Law

Forbidden By Law

❖ Force Majeure

❖ Against law

❖ Circumstances not allow to perform

Force Majeure

Force Majeure

❖ Its French phrase which means “Greater Force”

❖ Unforeseeable circumstance that prevent someone

from fulfillment of contract

Cases on Force Majeure

Cases on Force Majeure

Classic Maritime Inc. versus Limbungan Makmur SDV BHD & Anor [2019] EWCA Civ 1102

1

• Appellant have to ship certain quantity of iron between July 2015 to June 2016 from Brazil to Malaysia

• Appellant took plea that due to Dam Burst Mines were not working and this was the reason that contractual obligations were not fulfilled.

Court's Observation

❖ Appellant was never ready to perform even the Dam was not Burst

❖ Clause should be considered in its own words and

surrounding circumstances

❖ Defendant should have to show that he was able to perform but default was based on circumstances

Court observed that

Fibula Air Travel versus

Just-US Air (October 2020)

• Fibula Air send advance notice to Just-US Air for termination of lease due to force majeure

2

• Before the first installment due and before the any flight has been taken place

• Fibula Air approached the Court to stop Just-US Air disposing of the security deposit

• Termination sought on 17 March 2020 due to suspension of flight between Romania and Turkey

• Due to corona virus pandemic

• No flight restrictions were imposed till 28 March 2020

• First installment was due on 18 March and 2nd of 1st April

• No flight is allowed under the lease agreement until payment of 2nd installment

• Court announced that the Just-US was entitled to retain the security deposit

• Force Majeure clauses can only be relied upon as a

reason to terminate a contract where the factual

matrix supports the assertion of this right.

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