Partial Specific Performance versus Entire Specific Performance

The starting point of the law is that a contract is enforced as a whole: the court will not carve out a part and enforce that alone. Section 12(1) states this rule, that the court shall not direct specific performance of a part of a contract, and Sections 12(2) to (4) are the only exceptions. This note explains entire and partial performance each in its own right, compares them, works through an example, and sets out the three cases in which a part may be enforced.

Figure: Entire against partial specific performance, and the all-or-nothing rule with its three exceptions

1. Entire Performance in Its Own Right

Entire performance is the general rule. A contract is an indivisible whole, and the court ordinarily enforces the whole of it or none of it. Section 12(1) provides that, except as otherwise provided in the section, the court shall not direct the specific performance of a part of a contract. The reason is that a party is entitled to the whole of his bargain, not a fragment forced on him; to enforce a part would be to make a new contract for the parties. Either party may sue for performance of the whole.

2. Partial Performance in Its Own Right

Partial performance is the exception, allowed only in the three cases in Sections 12(2) to (4). Where the part left unperformed is a small proportion in value and admits of compensation, either party may enforce the rest, with compensation for the deficiency (12(2)). Where the unperformed part is large or not compensable, only the plaintiff may sue, and only on paying the whole of his side, taking what can be conveyed, and relinquishing all claim to the rest (12(3)). And where a part is separable and independent, it may be enforced on its own (12(4)).

3. The Two Compared

4. All or Nothing, with Three Exceptions

5. A Worked Example

Suppose a seller agreed to sell a plot of one thousand square metres but can make good title to only nine hundred and ninety, the missing ten being a trifling strip. The unperformed part is small and can be valued, so under Section 12(2) either party may enforce the sale of the nine hundred and ninety, with compensation for the ten. Now vary it: the seller can convey only half the plot, the other half belonging to someone else, and the two halves are not separable in any meaningful way. The unperformed part is large; under Section 12(3) only the buyer may sue, and only if he pays the whole price, takes the half the seller can convey, and relinquishes all claim to the rest. The general rule would have denied any part performance; Sections 12(2) and (3) are what let the buyer take what is available.

6. Frequently Asked Questions

Q. What is the general rule about part performance?
A. Section 12(1) says the court shall not direct specific performance of a part of a contract; ordinarily the whole is enforced or none of it, save in the three exceptions in Sections 12(2) to (4).

Q. When can either party enforce a part?
A. Under Section 12(2), where the unperformed part is small in proportion and admits of compensation; the court awards compensation for the deficiency.

Q. What must a plaintiff do under Section 12(3)?
A. Where the unperformed part is large or not compensable, only the plaintiff may sue, and only if he pays the whole of his side, takes what can be conveyed, and relinquishes all claim to the rest.

Q. What is a separable part under Section 12(4)?
A. A part that stands on a separate and independent footing from the rest, which the court may specifically perform on its own.