Specific Relief Act (SRA)
Specific Performance versus Substituted Performance
Before 2018 an aggrieved party who wanted a contract actually carried out had only one route: to sue and ask the court to compel the defaulter. The 2018 Amendment gave a second route. Under the recast Section 20 the aggrieved party may, without the court's leave, have the contract performed by someone else and recover the cost from the defaulter. This note explains specific performance and substituted performance each in its own right, sets them side by side, works through an example, and explains why obtaining the one forecloses the other.
Figure: Specific performance and substituted performance compared, and why obtaining one forecloses the other
1. Specific Performance in Its Own Right
Specific performance works through the court and against the defaulter. The aggrieved party sues; the court, satisfied that there is a valid contract and that the plaintiff was ready and willing, decrees that the defaulter must himself perform, and enforces that decree if he does not. The whole force of the remedy is directed at compelling the very person who promised to keep his promise. It is the natural choice where only the defaulter can perform, for example a contract to convey a particular piece of land that only he owns.
2. Substituted Performance in Its Own Right
Substituted performance works outside the court and around the defaulter. Where the contract is broken, the aggrieved party may get it performed by a third party or by his own agency, and then recover from the defaulter the expenses and costs actually incurred. It is a self-help remedy, subject to one condition precedent: the aggrieved party must first give a written notice of not less than thirty days calling on the defaulter to perform, and the defaulter must fail or refuse. It suits a contract whose subject can be procured elsewhere, such as construction or supply work, where the party would rather get the work done than wait for a decree.
The mechanics of Section 20 ▪ Breach. The party who was to perform breaks the contract. ▪ Thirty-day notice. The aggrieved party serves written notice of at least thirty days requiring performance; the parties may agree a longer period. ▪ Failure. The defaulter fails or refuses to perform within that period. ▪ Performance elsewhere. The aggrieved party has the work done by a third party or his own agency. ▪ Recovery. He recovers the expenses and costs actually incurred from the defaulter. |
3. The Essential Difference
Basis | Specific performance | Substituted performance (Section 20) |
|---|---|---|
Idea | The court compels the defaulter himself to perform | The aggrieved party has the work done by a third party or his own agency |
Who acts | The court, by its decree against the defaulter | The aggrieved party, on his own, after notice |
Court's role | Central: the suit seeks the decree | None in advance; the court comes in only to recover the cost, if disputed |
Precondition | A valid contract and readiness and willingness | A written notice of not less than thirty days, then failure to perform |
Outcome | The defaulter performs the very contract | The contract is performed by someone else; the cost is recovered from the defaulter |
Compensation | Available with the decree under Section 21 | Available for further loss beyond the recovered cost |
4. Why They Cannot Both Be Pursued
Election between the two ▪ The bar. Once a party has obtained substituted performance, he cannot afterwards claim specific performance of the same contract; Sections 14(a) and 16(a) put this beyond doubt. ▪ The logic. Substituted performance already gives him the performance, from another source, and the cost from the defaulter; to allow specific performance as well would be double recovery. ▪ What survives. He keeps his right to compensation for any further loss beyond the recovered cost. |
5. A Worked Example
Suppose a builder contracts to construct a boundary wall and gatehouse for an owner, and abandons the work half-finished. The owner has a choice. He may sue for specific performance, asking the court to compel this builder to complete, though the court will weigh whether the work is defined enough to be enforced and supervised. Or he may take the substituted-performance route: he serves a thirty-day written notice requiring the builder to finish; the builder does not; the owner engages a second builder to complete the wall and gatehouse and then recovers the extra cost from the first builder. Having done so, the owner cannot also sue the first builder for specific performance of the same work, but he may still claim compensation for any further loss, such as delay, beyond the recovered cost.
6. Frequently Asked Questions
Q. What is substituted performance?
A. Under Section 20, the right of an aggrieved party, after a thirty-day written notice, to have a broken contract performed by a third party or his own agency, and to recover the cost from the defaulter.
Q. How does it differ from specific performance?
A. Specific performance compels the defaulter himself to perform, through the court's decree; substituted performance sidesteps him and has the work done elsewhere, without the court's leave in advance.
Q. Can a party pursue both?
A. No. Once substituted performance is obtained, specific performance of the same contract is barred by Sections 14(a) and 16(a); the party keeps only his right to compensation for further loss.
Q. Which is quicker?
A. Substituted performance, because it does not depend on obtaining a decree; the aggrieved party acts on his own after giving the notice.
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