Section 38 versus Section 39

Sections 38 and 39 are the two provisions that say when a perpetual injunction and a mandatory injunction are granted. Section 38 is the general provision: it states when a perpetual injunction, usually prohibitory, may be granted to prevent the breach of an obligation, and sets out particular grounds for property cases. Section 39 is the special provision for the affirmative form: it says when the court may compel a positive act. This note explains each in its own right, compares them, and works through an example.

Figure: Section 38 and Section 39 compared, from what each governs to their relationship, and how the two fit

1. Section 38 in Its Own Right

Section 38 governs the grant of a perpetual injunction. A perpetual injunction may be granted to prevent the breach of an obligation existing in the plaintiff's favour, whether the obligation is express or implied; and where the obligation arises from contract, the court is guided by Chapter II. Where the obligation is to refrain from invading the plaintiff's right to, or enjoyment of, property, Section 38(3) sets out the grounds: the defendant is a trustee of the property; there is no standard for ascertaining the actual damage; compensation in money would not afford adequate relief; or an injunction is necessary to prevent a multiplicity of proceedings. It is chiefly a prohibitory provision.

2. Section 39 in Its Own Right

Section 39 governs the grant of a mandatory injunction. When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is able to enforce, the court may in its discretion grant an injunction to compel those acts. It is the affirmative counterpart of Section 38: instead of restraining, it commands. Its distinctive requirement is that the act to be compelled must be one the court is capable of enforcing; a vague or endless obligation the court cannot supervise will not be ordered by mandatory injunction.

3. The Two Sections Compared

4. How the Two Fit

5. A Worked Example

Suppose a neighbour is about to build over the plaintiff's right of way. While the wrong is only threatened, the plaintiff seeks a perpetual injunction under Section 38 restraining the neighbour from building, an ordinary prohibitory order to prevent the breach of the plaintiff's easement, and one that fits Section 38(3) because damages would be an inadequate substitute for the loss of a right of way. Now suppose the wall is already up. Restraining is no longer enough; the plaintiff needs the wall removed, so he invokes Section 39 for a mandatory injunction directing its demolition, and the court will grant it because the act, demolition, is one it can enforce. Section 38 supplies the restraining order; Section 39 supplies the positive one.

6. Frequently Asked Questions

Q. What is the difference between Section 38 and Section 39?
A. Section 38 governs the grant of a perpetual injunction, usually prohibitory, to prevent the breach of an obligation; Section 39 governs the grant of a mandatory injunction, compelling a positive act.

Q. What are the property grounds in Section 38(3)?
A. Where the defendant is a trustee, where there is no standard for ascertaining the damage, where compensation would not be adequate, or where an injunction is needed to prevent a multiplicity of proceedings.

Q. What is the distinctive requirement of Section 39?
A. That the act to be compelled is one the court is able to enforce; a vague or endless obligation the court cannot supervise will not be ordered by mandatory injunction.

Q. How do the two sections relate?
A. Section 38 is the general provision for perpetual injunctions; Section 39 is the special provision that allows the injunction to take the affirmative, mandatory form.