Scope and Limitations of Specific Performance under Bangladeshi Law: A Comparative Analysis

Introduction:

Specific performance is a legal remedy that compels a party to fulfill their contractual obligations as outlined in the agreement. In Bangladesh, the law governing specific performance is derived from the Specific Relief Act, 1877, which provides a framework for seeking this equitable remedy. However, the scope and limitations of specific performance under Bangladeshi law are subject to interpretation and application by the courts. This article aims to conduct a comparative analysis of the scope and limitations of specific performance under Bangladeshi law, examining key provisions, judicial precedents, and comparative practices from other jurisdictions.?

Understanding Specific Performance in Bangladeshi Law:

Under Bangladeshi law, specific performance is governed by the Specific Relief Act, 1877, which outlines the circumstances under which this equitable remedy may be granted. Section 10 of the Act specifies that specific performance may be ordered in cases where monetary compensation would not be an adequate remedy for the breach of contract. The Act further enumerates certain types of contracts where specific performance may be granted, such as contracts for the sale of immovable property or for the construction of buildings. Specific Performance is a specialized remedy used by courts when no other? remedy? (Such as? Money) will? adequately compensate? to other? party. Specific? performance? may be ordered instead of a judgment for money if the contract can still be performed and money cannot sufficiently reward the plaintiff.3 Example: When a defendant was to deliver some unique item such as an art- work and did not, a judge may order the defendant to actually deliver the art work. According to Halsbury Specific performance is “an equitable relief given by the Courts in cases of breach of contract, in the form of a judgment that the defendants do actually perform the contract according to its terms and stipulation."The right of a party to a contract to burden that the defendant be ordered in the judgment to perform? the? contract.?

According? to? Pomeroy? defines? it? as? containing? in? the? contracting? party’s? specific fulfillment of obligation which he has assumed in his doing or omitting the very act which he has assumed to do or omit. According to Equity Law, Specific performance is an order of the court requiring the Defendants to carry out his obligations under an instrument. The general rule is that Specific performance will be granted where the common law remedy of damages is inadequate. Example:? A contracts with B to paint a picture for B who agrees to pay therefore 1000 taka. The picture is painted. B is entitled to have delivered to him on payment to tender of 1000 taka.

Scope of Specific Performance:

The scope of specific performance under Bangladeshi law is broad, encompassing a wide range of contractual agreements where monetary damages may not be sufficient to remedy the breach. Contracts involving unique or irreplaceable assets, such as land or heirlooms, are typically prime candidates for specific performance. Additionally, contracts that involve personal services or require a specific skill set may also qualify for specific performance.

Furthermore, specific performance may be sought in cases where the breach of contract would result in significant hardship or loss to the aggrieved party. For example, if a seller reneges on a contract to sell land to a buyer who has already made substantial investments in reliance on the agreement, specific performance may be warranted to prevent unjust enrichment and mitigate the buyer's losses. Where the? plaintiff is? not? claiming the performance? of a specific act or the delivery of particular articles or of particular things but is merely, claiming money payable to him under a contract, the suit can in no sense be treated as a suit for the specific performance. The court always drew a distinction between the essential and non-essential terms of a contract and allowed incapacity to perform its? non-? essential terms? to be? made? the subject? of? compensation.? The scope is look into? the conduct of the plaintiff and this is done in the courts discretionary nature of equity. Before an equity court will compel specific performance, however, the contract must be one which can be specifically performed.

1.????? Basic rules of Specific performance:?

The? plaintiff? seeking? this? remedy? must? first? satisfy? the? court? that? the? normal? remedy? of? damages? is inadequate,? the? presumption? being? that? in? cases? of? specific? performances.? Even? in these? cases? specific performance is not always granted, as it is a discretionary? remedy. There? are? few basic rules of Specific performance.

A. Decree of specific performance is discretionary relief.?

B. There? should? be a? valid? contract.? Specific performance? can be? granted? only by? a court? in the implement of equity powers, consequent to a determination of whether a valid contract that can be enforced exists and an assessment of the relief sought.

C. If damages are a sufficient remedy, no specific performance would be ordered.

D. For the? act which requires continued supervision of? the court, no specific? performance would? be ordered.

?E. No specific performance would be ordered for contracts for personal work or service.

?F. Equity? will? insist? on ?the? principle of? mutuality. The person against? whom the relief is claimed may? take? plea? by? way? of? defense? under? law? relating? to ?a? contract. The? remedy? of? specific performance is in disparity with the remedy by way of damages for breach of contract, which gives pecuniary compensation? for failure? to carry? out the? terms of? the contract.? Damages and? specific performance are both, remedies accessible upon breach of obligations by a party to the contract; the former is a substantial remedy, and the latter a specific remedy. The remedy of specific performance is granted by way of exception.

2. Rules of Statutory interpretation in Specific performance:? In our sub-continent specific performances are ought to be liberally construed. The form of expression and the literal sense is not to be so much regarded as the actual meaning of the parties which the deal discloses. But this does not mean that even those documents which are not contracts may be construed as such.? Thus a? document merely reciting? the fact? that the? sale has already? been made? and BDT 1000? in cash? has already been received and that an entry has been made in the Registration regarding the remaining? constitutes an actual sale and no suit for specific performance of an agreement to sell would lie. Similarly a report of jury constituted under section 139, Cr.P.C. does not amount to a contract between the parties and cannot be made a basis for a suit for specific performance.? It involves the interpretation? agreeing to what the reader believes the author reasonably intended. But, in a specific performance the interpretation does not essentially mean an interpretation that would accomplish a change in former practice. Further, an interpretation does necessarily involve a reasonable interpretation. The court? referred? to? quote? in? the? context? of? finding? that? nominal? consideration? is? sufficient? to? support? a contract.18If? we go? through? interpretation? of statute? we can? observe? that? every contract? is? interpreted by liberal approach? and literal rule. As? most of? the specific? performances depend on a contract so generally specific performance is interpreted like this even though every so often it involves? theological and? logical interpretation.??

3. Suit for Specific performance: A party to a contract who is damaged because the contract is breached by another party has the choice to file a suit for? specific performance? compelling to complete his branch of contract. Where a? suit is brought for specific performance, the plaintiff should prove the existence of a concluded contract between himself and the defendant and that he was ready and willing at all material dates to perform his part of the contract or act. The? defenses not? available? in an? action? for? damages should? be? eliminated? or severely? restricted in? their application to actions for specific performance. Under current law, courts grant specific performance when they perceive that damages will be inadequate compensation. It must further be proved that the contract was enforceable and the enforceability of the contract must be traced back to the date of agreement and not to the date? on? which? the? decree? is? to? be? passed.? A? closely? related? requirement? of? an? action? for? specific performance? is? that? the? contract? be? “just? and? reasonable”? as? to? the? party? against? whom? the? decree? will operate. The? purpose of? Contract remedies is? to place? a disappointed promise in as good a? position as? he would? have? enjoyed? had? his? promisor? performed.? Making? Specific? performance? generally available? is unlikely to result in the efficiency losses predicted by other Commentators. The relief must be specifically claimed. When the plaintiff claims specific performance of a particular agreement that could be decreed for specific performance of only that agreement, and where the plaintiff did not discharge the burden of proving the existence of a contract, his suit for the specific performance was dismissed.?

Limitations of Specific Performance:

While specific performance is a powerful equitable remedy, its application is subject to certain limitations under Bangladeshi law. One key limitation is the discretion of the court in granting specific performance, which is guided by principles of equity and fairness. Courts may refuse to grant specific performance if it would result in undue hardship or injustice to either party, or if the contract is deemed to be unfair or unconscionable.

Additionally, specific performance may be denied if the contract is incapable of being specifically enforced, either due to its nature or the practical impossibility of performance. For example, contracts that involve personal services or continuous obligations may be difficult to enforce through specific performance, as they require ongoing supervision and cooperation from the parties involved. A suit for specific performance shall be filed within three years from the date fixed for the purpose or if no such date is fixed, then from the date when the plaintiff has notice that the subject matter is refused. Article 113 of Limitation Act visualizes two situations, one when date for performance is fixed in the contract itself and would remain suspended and the period would start to run only when the promisor refuses to perform his part and such refusal is? notified to? the promisee. Where agreement to? sell in question, did? not specify any date for? its performance. In? such case? later part of? Art.113, Limitation? Act would apply.? Limitation starts from the date? when plaintiff comes to know that defendant has declined to? abide by his commitment. Suit filed within three? years of the knowledge of plaintiff that defendant had refused to perform his part of the agreement, would be within limitation. “Rested on party pleading bar of limitation and it failed to discharge it” Therefore,? question? of bar? of? limitation did? not? arise.? Where claim? in? the suit? was? for specific movable property or for compensation for wrongfully taking or injuring, Article 49 of the Limitation Act, 1908, would be applicable. The prescribed period of limitation for a suit of specific performance is three years from the date fixed performance, or, if no such date is fixed, when the plaintiff has noticed that performance has been refused. A suit for specific performance lies when the document is essential for the completion of the contract has not been executed and if there is a valid enforceable contract either party is entitled to call upon the other to complete the transaction by the execution and registration of the document of title.? The paradigm cases in which the specific performance remedy is currently granted include sales of "unique goods, in which? alternative damages? are difficult? to? compute; sales? of? land, because? land is? presumed unique; and, more recently, long-term requirements contracts, for which damages from breach are hard to calculate. Suit filed before the date of contract merely, because the suit was brought before the contract date would not merit of dismissal or afford a ground for refusing specific performance. However, courts will not enforce such clauses; liquidated damage clauses are enforced only if they reflect a "reasonable" forecast of "actual"? damages-the? damages? courts? would? grant? if? there? were? no? liquidated? damage? clauses? in? the contracts.

Comparative Analysis:

To gain a comprehensive understanding of the scope and limitations of specific performance under Bangladeshi law, it is instructive to compare its provisions and practices with those of other jurisdictions. In many common law countries, such as the United Kingdom and the United States, specific performance is also governed by statutes and case law that provide similar principles and remedies.

One notable difference between Bangladeshi law and other jurisdictions is the level of judicial discretion in granting specific performance. While Bangladeshi courts exercise considerable discretion in determining whether to grant specific performance, courts in some other jurisdictions may adopt a more rigid approach based on statutory criteria and precedent.

Moreover, the availability of specific performance may vary depending on the legal system and cultural norms of a particular jurisdiction. In some civil law countries, for instance, specific performance may be less commonly granted compared to common law jurisdictions, where it is often considered a standard remedy for breach of contract.

Conclusion:

The scope and limitations of specific performance under Bangladeshi law are shaped by the provisions of the Specific Relief Act, 1877, as well as judicial interpretation and comparative practices from other jurisdictions. While specific performance is a valuable remedy for enforcing contractual obligations, its application is subject to judicial discretion and certain limitations based on equity and practicality. By conducting a comparative analysis of specific performance laws and practices, Bangladesh can further refine its legal framework and promote consistency, fairness, and efficiency in the enforcement of contractual rights.