Specific Relief Act (SRA)
Injunction to Enforce a Negative Agreement: Section 42
A contract often contains two promises: an affirmative one to do an act, and a negative one not to do another. A singer agrees to sing for a theatre, and not to sing for any other. The affirmative promise, resting on personal skill, cannot be specifically enforced; the court will not compel the singer to sing. But Section 42 says the court's inability to compel the positive act shall not prevent it from enforcing the negative promise by injunction, provided the plaintiff has kept his own side of the bargain. This note explains the rule, its condition, where it applies, its outer limit under Section 27 of the Contract Act, and the leading case.
Figure: Section 42: the affirmative and negative parts, the condition, where the section bites, the outer limit, and the leading case
1. The Provision
Section 42 ▪ The setting. A contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act. ▪ The rule. The circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement. ▪ The condition (the proviso). The plaintiff must not have failed to perform the contract so far as it is binding on him. He who asks the court to hold the defendant to the negative promise must himself have kept his side. |
2. How the Two Parts Work
Affirmative and negative ▪ The affirmative part may be unenforceable. The promise to do the act, such as to sing, to serve, or to supply, may be one the court cannot specifically enforce, for example because it depends on personal skill and falls within Section 14. ▪ The negative part can still be enforced. The promise not to do the other act, such as not to sing elsewhere or not to supply a rival, can be enforced by injunction, notwithstanding that the affirmative part cannot. ▪ The plaintiff must be in the right. By the proviso, a plaintiff who is himself in breach of his obligations under the contract cannot ask for the injunction. |
3. Where Section 42 Bites
- Employment and service contracts. A negative covenant operating during the term of employment, such as an exclusive-service clause, may be enforced by injunction while the contract subsists.
- Commercial contracts. Exclusive-dealing and exclusive-supply clauses, and non-compete clauses that operate during the subsistence of the contract, may be enforced by injunction.
4. The Outer Limit: Section 27 of the Contract Act
What a negative covenant cannot do ▪ No enforcement of what the law forbids. A negative covenant cannot be used to enforce indirectly what the law forbids. ▪ Post-termination restraint is void. A restraint of trade operating after the contract has ended is void under Section 27 of the Indian Contract Act, and Section 42 cannot revive it. ▪ Only while the contract subsists. The injunction runs only during the subsistence of the contract; it will not bind a former employee not to compete after the employment has ended. |
Gujarat Bottling Co Ltd v Coca Cola Co (1995) 5 SCC 545 A negative covenant operating during the subsistence of the contract, restraining a party from dealing with competitors, is valid and enforceable by injunction. Such a covenant is not a restraint of trade hit by Section 27 of the Contract Act, because it applies only while the contract lasts and is in furtherance of it, not after it ends. Section 42 permits the injunction, subject to the plaintiff's own performance of the contract. |
5. Section 42 Distinguished
Pair | The distinction |
|---|---|
vs Section 14 | Section 14 bars specific performance of the affirmative act; Section 42 rescues the severable negative promise, which the injunction enforces separately |
vs Section 41(e) | Section 41(e) refuses an injunction to prevent breach of a contract not specifically enforceable; Section 42 is the express exception for a severable negative covenant |
Negative injunction vs specific performance | The court does not compel the positive act, but restrains the breach of the negative promise, which comes to much the same practical result while the contract lasts |
6. Frequently Asked Questions
Q. What does Section 42 allow?
A. It allows the court to enforce, by injunction, the negative part of a contract, even though the affirmative part cannot be specifically enforced, provided the plaintiff has performed his own obligations.
Q. Can a negative covenant restrain a former employee after the job ends?
A. No. A post-termination restraint of trade is void under Section 27 of the Contract Act, and Section 42 cannot revive it; the injunction runs only while the contract subsists.
Q. What is the condition for enforcing a negative covenant?
A. The proviso to Section 42: the plaintiff must not have failed to perform the contract so far as it is binding on him.
Q. What does Gujarat Bottling decide about negative covenants?
A. That a negative covenant operating during the subsistence of the contract, restraining dealing with rivals, is valid and enforceable and is not a restraint of trade hit by Section 27, because it applies only while the contract lasts.
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