Section 12 versus Section 13

Sections 12 and 13 both help a buyer whom the seller cannot fully satisfy, but they answer different problems. Section 12 is about the quantity the seller can convey: where he can give only a part of the property, it decides when the buyer may take that part. Section 13 is about the quality of the seller's title: where his title is no title or imperfect, it arms the buyer to compel him to perfect it, or to recover his money. This note explains each in its own right, compares them, and works through an example.

Figure: Section 12 against Section 13, the quantity of the property against the quality of the title

1. Section 12 in Its Own Right

Section 12 meets the problem that the seller can convey only part of what he promised. Its general rule, in Section 12(1), is that the court shall not direct specific performance of a part of a contract; its exceptions, in Sections 12(2) to (4), let the buyer take a part in defined cases: a small compensable part with compensation (12(2)); a large or non-compensable part on paying the whole and relinquishing the rest (12(3)); and a separable independent part (12(4)). The defect it addresses is one of extent, how much of the property can be conveyed.

2. Section 13 in Its Own Right

Section 13 meets a different problem: the seller's title is no title or imperfect. It arms the buyer with rights against such a seller: to compel him to make good the contract out of an interest he later acquires, to compel him to procure the concurrence of others needed to validate the title, to compel him to redeem a mortgage where the property is mortgaged, and, where the seller sues but his suit is dismissed for want of title, to recover the deposit with interest and costs, with a lien on the seller's interest. The defect it addresses is one of validity, how good the seller's title is.

3. The Two Sections Compared

4. Quantity of the Property against Quality of the Title

5. A Worked Example

Suppose a seller agreed to sell two adjoining plots, A and B. If it turns out he owns plot A entirely but not plot B, the problem is one of quantity, how much he can convey, and Section 12 governs: the buyer may, depending on the proportions, take plot A with compensation, or on relinquishing plot B, under the sub-sections of Section 12. Now suppose instead the seller owns both plots but his title to them is clouded by an undischarged mortgage. The problem is now one of quality, how good his title is, and Section 13 governs: the buyer may compel the seller to redeem the mortgage and give a clear title, or, if the seller sues and fails for want of title, recover his deposit with interest and a lien. Same seller, two different defects, two different sections.

6. Frequently Asked Questions

Q. What is the difference between Section 12 and Section 13?
A. Section 12 is about the quantity the seller can convey, deciding when a part may be enforced; Section 13 is about the quality of his title, arming the buyer where the title is no title or imperfect.

Q. Which section applies where the seller can convey only part of the property?
A. Section 12, which lays down the general rule against part performance and the exceptions in Sections 12(2) to (4).

Q. Which section applies where the seller's title is defective?
A. Section 13, which gives the buyer rights to compel the seller to perfect the title, redeem a mortgage, or recover his deposit with a lien.

Q. Can both arise in the same transaction?
A. Yes, but they address different defects: Section 12 the extent of what can be conveyed, and Section 13 the validity of the seller's title to it.