Specific Relief Act (SRA)
Specific Performance of Part of a Contract: Section 12
A contract is, in principle, an indivisible whole, and the court will normally order performance of all of it or none of it. But life is untidy: sometimes a seller can convey most of what he promised but not quite all. Section 12 governs this problem. Its general rule is all or nothing, but it then carves out three exceptions that let the court enforce a part where fairness allows, on carefully controlled terms. This note works through Section 12(1) to (4) and gives the memory hook that ties them together.
Figure: Section 12: the general rule against part performance, and the three exceptions for a small part, a large or non-compensable part, and a separable independent part
1. Section 12(1): The General Rule
All or nothing ▪ The rule. Except as otherwise provided in the section, the court shall not direct the specific performance of a part of a contract. ▪ Why. A party is entitled to have the whole of his bargain, not a fragment of it forced on him. To enforce a part would be to make a new contract for the parties. ▪ The exceptions. Sub-sections (2), (3) and (4) provide the only situations in which a part may be enforced. |
2. Section 12(2): A Small Part Left Unperformed
Where the shortfall is small and compensable ▪ The condition. The part left unperformed is a small proportion of the whole in value, and admits of compensation in money. Both conditions must be satisfied. ▪ Who may sue. Either party may obtain a decree for specific performance of so much of the contract as can be performed. ▪ On what terms. The court awards compensation in money for the deficiency in performance. ▪ Example. A agrees to sell 100 square metres but can convey only 98; the shortfall is small and can be valued. The court may order sale of the 98 and compensate for the 2. |
3. Section 12(3): A Large or Non-Compensable Part Left Unperformed
Where the shortfall is large, or cannot be valued ▪ The condition. The part left unperformed forms a considerable proportion of the whole in value, or does not admit of compensation in money. ▪ Who may sue. Only the party not in default (the plaintiff), and only on strict terms. ▪ Term (a): pay the whole, take the part. He must pay or perform the whole of his side of the consideration, but takes only what the other party is able to convey or do. ▪ Term (b): relinquish the rest. He must relinquish all claim to the performance of the remaining part of the contract, and all right to compensation for the deficiency or for the loss he sustains through the default. ▪ Example. A agrees to sell a house and its garden but can make title only to the house; the garden is a considerable part. The buyer may take the house on paying the whole price and giving up all claim to the garden. |
4. Section 12(4): A Separable and Independent Part
Where the contract contains a distinct part ▪ The condition. A part of a contract which, taken by itself, can and ought to be specifically performed stands on a separate and independent footing from another part that cannot or ought not to be performed. ▪ The relief. The court may direct specific performance of the separable part on its own. ▪ The rest. The part that stands apart, and cannot be performed, is left to other remedies between the parties. ▪ Example. A single deed contains a sale of land (enforceable) and a separate agreement for personal services (not enforceable under Section 14). The court may enforce the sale alone. |
5. The Section at a Glance
Sub-section | When it applies | Who may sue | Terms |
|---|---|---|---|
12(1) | General rule | Neither: no part performance | Whole or nothing |
12(2) | Small part unperformed and compensable | Either party | Compensation for the deficiency |
12(3) | Large part, or not compensable | Plaintiff only | Pay the whole, take the part, relinquish the rest |
12(4) | Separable independent part | Either party | Enforce the separable part alone |
6. The Nature of Relinquishment under Section 12(3)
- When it is made. The relinquishment is made in the plaint, or at the latest before the decree; it is a condition on which the part is enforced.
- Its effect. Once made, the plaintiff cannot later claim the unperformed part or its value; he has given it up as the price of taking what can be conveyed.
- Why it is required. It ensures the defendant is not left exposed to a second claim; the plaintiff takes what is available and closes the account.
7. Frequently Asked Questions
Q. What is the general rule about part performance under Section 12?
A. Section 12(1) says the court shall not direct specific performance of a part of a contract, except in the three cases set out in sub-sections (2), (3) and (4).
Q. When can either party sue for part performance?
A. Under Section 12(2), where the unperformed part is small in proportion and admits of compensation in money; the court awards compensation for the deficiency.
Q. What must a plaintiff do under Section 12(3)?
A. Where the unperformed part is considerable or cannot be compensated, 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 and to compensation.
Q. What is a separable part under Section 12(4)?
A. A part that stands on a separate and independent footing from another part that cannot be performed; the court may enforce the separable part on its own.
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