Specific Relief Act (SRA)
Specific Performance versus Rescission
Specific performance and rescission are opposite responses to the same broken bargain. One holds the parties to the contract and has it carried out; the other unwinds the contract and sets the parties back where they stood. This note explains each in its own right, compares them, works through an example, and explains the link between them in Section 29, which lets a plaintiff pray for performance and, in the alternative, rescission in the same suit.
Figure: Specific performance and rescission compared, and how Section 29 links the two roads from one contract
1. Specific Performance in Its Own Right
Specific performance treats the contract as good and subsisting and asks the court to compel its performance. The plaintiff affirms the bargain; he wants it kept, not undone. He must show a valid contract, his readiness and willingness, and no statutory bar, and the court, since 2018, shall enforce the contract subject to Sections 11(2), 14 and 16. The premise throughout is that the contract deserves to be carried out.
2. Rescission in Its Own Right
Rescission treats the contract as liable to be undone and asks the court to set the parties back where they stood before it. Under Section 27 the court may adjudge rescission where the contract is voidable or terminable by the plaintiff, or where it is unlawful for a cause not apparent on its face and the defendant is more to blame than the plaintiff. It is refused where the plaintiff has ratified the contract, where the parties can no longer be restored to their original positions, or where third parties have acquired rights in good faith and for value. And under Section 30 the party to whom rescission is granted must restore the benefits he received and do equity.
The grounds and limits of rescission ▪ Granted where the contract is voidable or terminable by the plaintiff, or unlawful with the defendant more to blame. ▪ Refused on ratification, on the impossibility of restoring the parties, or where good-faith purchasers for value have intervened. ▪ On terms. Section 30: the party rescinding must restore benefits received and make such compensation as justice requires. |
3. The Two Compared
Basis | Specific performance | Rescission (Sections 27 to 30) |
|---|---|---|
Object | To enforce the contract and have it performed | To undo the contract and set the parties back as they were |
Effect on the contract | The contract stands and is carried out | The contract is cancelled from the beginning |
Who typically sues | The party who wants the bargain kept | The party who wants to escape a voidable or unlawful bargain |
Grounds | A valid, subsisting contract, readiness and willingness | The contract is voidable or terminable, or unlawful with the defendant more to blame |
Governing law | Chapter II, Sections 9 to 25 | Sections 27 to 30 |
Restoration | Not in issue; the contract is performed | Section 30: the party rescinding must restore benefits and do equity |
4. Two Roads From One Contract
The link in Section 29 ▪ Opposite responses. Specific performance holds the parties to the contract; rescission releases them from it. ▪ Section 29 links them. A plaintiff suing for specific performance may pray, in the alternative, that if the contract cannot be enforced it be rescinded and delivered up, so a single suit can end either way. ▪ Doing equity. A party who rescinds must, under Section 30, restore what he received and make such compensation as justice requires. |
5. A Worked Example
Suppose B agrees to buy a house from A, pays an advance, and then discovers that A obtained his consent by a fraudulent misrepresentation about the title. B now has a choice, and it turns on what he wants. If he still wants the house and can take it as it is, he may affirm the contract and sue for specific performance, perhaps with compensation for the defect. If he would rather be out of the bargain, he may sue for rescission under Section 27, on the ground that his consent was vitiated, and the court will set the contract aside and, under Section 30, order A to refund the advance while B restores anything he received. Section 29 lets B hedge: he may sue for specific performance and pray, in the alternative, that if it cannot be granted the contract be rescinded, so a single suit resolves the matter either way.
6. Frequently Asked Questions
Q. What is the difference between specific performance and rescission?
A. Specific performance enforces the contract and has it carried out; rescission undoes the contract and restores the parties to their former positions.
Q. Can a plaintiff ask for both?
A. Yes. Under Section 29 a plaintiff suing for specific performance may pray, in the alternative, that the contract be rescinded if it cannot be enforced.
Q. When is rescission the right remedy?
A. Where the contract is voidable or terminable by the plaintiff, or unlawful with the defendant more to blame, so the plaintiff wants out rather than performance.
Q. Must a party who rescinds give anything back?
A. Yes. Section 30 requires the party to whom rescission is granted to restore benefits received and to make such compensation as justice requires.
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