Specific Relief Act (SRA)
Contracts Which Can Be Specifically Enforced: Section 10
Section 10 is the gateway of the whole law of specific performance. It answers the question: which contracts will the court order to be performed? The 2018 Amendment rewrote this section completely, and in doing so changed the very nature of the remedy. Where the old law asked whether damages were an inadequate remedy and left the matter to the court's discretion, the new law says the court shall enforce the contract, subject only to a few named exceptions. This note explains the old and the new Section 10 and the three gates that still remain.
Figure: Section 10 before and after 2018: from a discretionary remedy limited by the adequacy of damages to a general right, subject to Sections 11(2), 14 and 16
1. The Old Section 10: Specific Performance as the Exception
The position before 1 October 2018 ▪ A limited remedy. Specific performance may be enforced in two cases only: where there was no standard for ascertaining the actual damage caused by non-performance; or where money would not afford adequate relief. ▪ The property presumption. The explanation presumed that, for a contract to transfer immovable property, damages were not an adequate relief; and that, for movable property, damages ordinarily were adequate. ▪ Discretion on top. Even where a case fell within Section 10, relief was discretionary under the old Section 20; the court could refuse it on equitable grounds. |
2. The New Section 10: Specific Performance as the Rule
The position from 1 October 2018 ▪ A general right. The specific performance of a contract shall be enforced by the court subject to the provisions of Sections 11(2), 14 and 16. ▪ The adequacy test is gone. The old two-case rule and the property presumption have been removed. Whether damages would be adequate is no longer the gateway. ▪ Discretion narrowed. The wide discretion under the old Section 20 was repealed. The court no longer refuses performance merely because damages would meet the case. ▪ Effect. Performance is now the norm and damages the alternative, reversing the earlier order of priority. |
3. "Shall Be Enforced" Is Not Absolute: The Three Gates
The word 'shall' is subject to three express cross-references. A contract that clears Section 10 must still pass through these gates.
The remaining bars ▪ Section 11(2): trust cases. A contract made by a trustee in excess of his powers, or in breach of trust, cannot be specifically enforced. ▪ Section 14: contracts not enforceable. A contract for which substituted performance has been obtained; one whose performance involves a continuous duty the court cannot supervise; one so dependent on the personal qualifications of a party that the court cannot enforce its material terms; and a determinable contract. ▪ Section 16: personal bars. Relief cannot be granted to a claimant who has obtained substituted performance under Section 20, who has become incapable of performing or violates an essential term, or who fails to prove readiness and willingness under Section 16(c). |
4. The Practical Effect of the Change
Question | Under the old law | Under the new law |
|---|---|---|
Is performance the rule? | No: it was the exception | Yes: the court shall enforce |
Adequacy of damages | The gateway test | No longer relevant |
Immovable property | Presumed damages inadequate | Enforced as a matter of course, subject to the bars |
Court's discretion | Wide, under old Section 20 | Narrow: only the named bars remain |
Burden on the plaintiff | Show damages would not do | Show a valid contract and readiness and willingness |
5. Frequently Asked Questions
Q. What did the 2018 Amendment do to Section 10?
A. It rewrote it. Specific performance is no longer limited to cases where damages are inadequate; the court shall enforce the contract, subject only to Sections 11(2), 14 and 16.
Q. Is the adequacy of damages still the test?
A. No. For contracts on or after 1 October 2018 the adequacy of damages is no longer the gateway; the old two-case rule and the property presumption were removed.
Q. Does 'shall be enforced' mean the court has no discretion at all?
A. It is a general rule, not an absolute one. Enforcement is subject to the bars in Sections 11(2), 14 and 16, which the court must apply.
Q. Which law applies to a contract made before October 2018?
A. The old, discretionary Section 10 and Section 20 continue to govern contracts entered before the amendment came into force.
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