Introduction :Exception to general rule The general rule is that a specificperformance in Sales of Goods is granted not generally but exceptionally. In Co-operativeInsurance Society Ltd v Argyll Stores Holdings Ltd,1the undertake in a lease of retail house to keep an open for trade during the usualhours of business was not other than in unusual circumstances, specificallyenforceable, since it was the agreement made by the court was not to make anorder requiring a person to carry on a business. It was stated in this case,the court will apply the general rule in all but this however, subject to fewexceptional circumstances.
In this part, laid down all the exceptional eventwith referred cases. 1.0 Uniqueness ofgoods makes specific performance available as remedy One of the exceptions was that theGoods was that so rare or unique, Court may honor the equity relief towards theplaintiff. In the case of Falcke v Gray,2in this case the invoice was categorize as specific performance of a contractentered into between the Plaintiff, and one of the Defendants, by which he had consentedthat, at the restitution of a six months’ rent to the Plaintiff of her houseprovided with the furniture, he should have the choice of purchasing two chinajars at the price of £40.
The court stated they will impose specificperformance of the contract to purchase the Goods as the damages will not be anadequate compensation. But where the contract, although notactually done dishonestly, was one in which the parties were not on anequivalent basis, the Plaintiff knowing and the purchaser being uninformed ofthe cost of the Goods sold, and the price appeared to be inadequate, the Court shallturn down the relief. In the case of Philips v Lamdin,3there may have been some restrain in the way of the defendant evading of the houseand had this been an undertaking for specific performance, which is anequitable remedy, it is to say they had come for trial and there might havebeen satisfactory explanation in equity for the defendant being justified from anorder being made up to that time. Court can see none later on. This raresituation puts the plaintiff entitled to be granted equitable remedy.
The courtalso view this correspondence with surprise mingled with distrust. In the case of Behnke v Bede Shipping Company,4Wright J in his judgement stated it is accurate that there is no event in whichit has been held that a vessel comes within the Sale of Goods Act, but thereare cases in which it has been held that a vessels under manufacture comeswithin the Act. There is no explanation why specific performance of a contractfor the sale of a vessel should not be proclaim, mainly where, as in the presentcase, the vessel would be of a strange cost to the buyer. There is no doubt ofthe defendants doing his tasks and carry out personal services with consideringto the dry docking and repairs of the ship. All that is essential is that thedefendants should give the evitable orders, and hence, no reason for not grantingthe order for specific performance. 2.
0 Specific Performance granted forTermination of Lien The right of lien means legally rightto maintain the goods ownership until the comprehensive price is given. In thecase of Au Yong Kun Min v. Tractors Malaysia Berhad,5the high court explained that an unsettled payment seller can exercise hisright of lien when the Goods have been sold on cash, or also where the goodshave been sold on credit basis and the condition of credit has expired alsowhere the purchaser has become bankrupt even if the time of credit has not cometo an end. 3.
0 Sale not rescinded by lien may be granted specific performance asrelief In the case of Kalka Prasad Ram Charan v. HarishChandra,6 the plaintiff had entered intoa contract for sale with defendant and Goods were delivered as soon as possible.Delivery of the unsettled one, was rejected by the defendant. Plaintiff then disposethe remaining Goods and then alert the defendant about the sale. But due to a publiccontrol order the sale sell for a price prominently less than what had been consentedbetween the two.
Plaintiff brought a claim to retrieve the damages after minusoff the price from the sale. The courtheld that if lien would occur only when request for the said Goods is made thenthe explanation of Section 47 of Contract Act 1950 would be very limited. Since plaintiff had sold the Goods inrespect of lien, then Section 54 (2) of Sales of Goods Act 1957 would be relevant.The basic fact that defendant made an incorrect claim about not participatinginto a contract is not enough to take the case out of the scope of Section54(2) of SOGA. Therefore, vendor cannot request on any damages from buyer.
Subjectto the provisions of this Act, the unsettled payment from seller of Goods whois in ownership of them is entitled to maintain possession of them untilpayment of the goods have been sold without any condition as to credit or wherethe goods have been sold on credit, but the rate of credit has lapse or evenwhere the buyer becomes bankrupt or insolvent. 4.0 Inadequate relief for implied terms and conditions under SOGA 1957 In the case of Maharashtra State ElectricityBoard v Sterlite Industry Ltd,7high court seek to be depending on by the counsel for the appellants which theydid take into consideration of provision of Section 62 of the Sale of Goods Act1957 and its impact on the contract.With having Section 62 of the Sale of Goods Act 1957, it clearly identify the rightsof the parties to differ the settled occurrence of a contract by express termsof for calculation of damages in case of breach of the contract and speciallyexclude any of the terms and conditions which law affix to the contract of saleof goods. In fact, section 62 of the Sale of Goods Act 1957 is a statutory identificationof this right in the parties. 5.0 Discretion to decree specific performance under Specific Relief Act1950 In Malaysia, the equitable relief ofspecific performance is determine under Specific Relief Act 1950. Section 11 ofthe Specific Relief Act 1950 does prepare the cases which specific performancemay be granted.
However, the section is not a complete right of a claimantbecause the court is given a discretionary power to award this equitable relief.8However, under Section 11 of the Specific Relief Act 1950 does not give guaranteethat a claim of specific performance will be enforced.9Being an equitable relief, the specific performance will depend on an order ofcourt.10SRA also provide guidelines on specific performance that may be granted in theevent of uncertainty of actual damage or inadequate of monetary compensation.11 Other than this, SRA also comes to occurin cases where the in personamexception and the factors of the meaning and scope of Section 340(4)(b) of NationalLand Code and Section 26(b) of the Specific Relief Act 1950, and the confined’doctrine of the bona fide purchaser’. Apart from authority court would not anticipatethat the involvement of equity by a relief in personam based upon a proceedingto which the plaintiff and defendant were parties would be ousted by suchprovisions. As Lord Russel delivered His opinion in the Privy Council: “.
..TheTorrens system is designed to provide simplicity and certitude in transfers ofland, which is amply achievedwithout depriving equity of its ability to exercise its jurisdiction inpersonam on grounds ofconscience.The indefeasible title would not preclude an order for specificperformance of a contract for saleby the proprietor.”12 6.
0 Specific Performance granted to power ordered by public servants It was mainly stated under Section 54 of theSpecific Relief Act 1950 that legislative disallowance occur against the orderof specific performance or injunction in proceedings by or against thegovernment. The appropriate relief in such cases is a declaration of the rightsof the parties.13 7.0 liability of person whom money paid by mistakes Specific performancemay be granted In the case of Fells v Reed,14 courtwill grant a specific performance on chattel to be delivered up withoutmeasuring or carefully calculating the value, where from its nature there canbe no compensation by damages. In this instance the Defendant maintain ownershipafter the redemption of a limited time, for which he had be given it upon aspecial trust and an express engagement to reinstate and an action, which hadbeen brought, was offered ineffectual by the release of two of the owners, cooperatewith the Defendant.