STUDY ON A CONTRACT WHICH CAN AND CANNOT BE SPECIFICALLY ENFORCE UNDER SPECIFIC RELIEF ACT, 1963 Introduction Specific performance is equitable relief, given by the court to enforce against a defendant, the duty of doing what he agreed by contract to do. Thus, the remedy of specific performance is in contrast with the remedy by was of damages for breach of contract, which gives pecuniary compensation for failure are both, remedies available upon breach of obligation by a party to he contract; the former is ‘substitutional’ remedy, and the latter a ‘specific’ remedy. The remedy of specific performance id granted by way of exception. The plaintiff seeking this remedy must first satisfy the court that the normal remedy of damages is inadequate;
The requirements for an actionable misrepresentation are that; the misrepresentation must be a statement of existing fact or past events, and not a statement of opinion; it must induce a person to enter into the contract; it must be material in that it relates to a matter which would influence a reasonable person’s decision whether to enter into the contract. (Misrepresentation Act, Cap 390) There are three types of misrepresentation: The first is innocent misrepresentation - when the representor had reasonable grounds for believing that his or her false statement was true. The second is negligent misrepresentation - a representation made carelessly or without reasonable grounds for believing its truth. The third is fraudulent misrepresentation - where a false representation has been made knowingly, or without belief in its truth, or recklessly as to its truth. The affect of a finding of misrepresentation, regardless of whether it is innocent, negligent or fraudulent, is that the contract is voidable, and the innocent party may rescind the contract, which generally means terminating the contract and returning the parties to the position they were before the
Materiality. Misrepresentation must be material in order to afford a right to rescind. The most significant meaning credited to material in the misrepresentation is that the misrepresentation should be of such nature that it must have natural and likely effect of inducing reasonable person to enter into a contract. Misrepresentation as a defence The process of pleading misrepresentation as a defence is generally considered to a form of rescission since a representee must contend and prove the same facts that are necessary for the remedy of rescission . Damages In this case whether the representee decided to cancel or stand by the contract, he/she may in addition be entitled to recover damages in respect of any patrimonial loss by misrepresentation, depending on the state of mind with which the representation was made.
Firstly, the plaintiff must prove that the defendant owed the plaintiff a duty of care. What is duty of care in this context? It is the responsibility to avoid careless actions that could cause harm to one or more persons. Secondly, the plaintiff bears the onus to prove that the defendant failed to succumb to the proper standard of care that a reasonable person would have provided in a similar situation. Standard of care is a way of measuring how much care one person owes another.
The classic definition of consideration was adopted by Lush J in the case of Currie v. Misa where he stated: ‘’A valuable consideration, in the sense of the law, may consist either in some right, interest, profit, or benefit accruing to the one party, or some forbearance, detriment, loss, or responsibility, given, suffered, or undertaken by the other.’’ Consideration is an essential part of English contract law and it is used to define whether a contract is legally enforceable. Both parties must provide something in exchange of the other’s promise. If a contract is made by deed there is no need of consideration because there is a document containing promises. Furthermore, it must be noted the difference between unilateral and
Condition and warranties are very different in contract. Condition is a term of the contract which is a necessary issue, in the sense that any breach will allow the other party to abrogation. Warranties is less important terms which are secondary to the main purpose of the contract (Topic 2: Contract Law, p37-38 ). The difference between these is of fundamental importance in assessing whether a failure to perform them represents a breach of contract. The innocent party’s rights in response to a breach of a term depend on how serious or fundamental the actual breach is.
To effectively rule out all possible liabilities for negligence, exclusion clauses contained in the contract are required to have an exceptionally thorough standard. In Harvey’s case, Clause 2 stated “no liability can be accepted for loss or damage to the customer’s goods”. As said above, in order to successfully rule out liability for negligence, the exclusion clauses in the contract has to be very clear and precise. If Capability Limited attempts to reject liability for any loss or damage, Clause 2 may possibly be ineffective as it is not adequately precise and particular regarding the cause. In Harvey’s case, both exclusion clauses undoubtedly made no specific mention of negligence.
First, the requirement it has to show that one of the parties such as an offender is in a situation to dominate the willpower of the other. The first component is “domination”. Secondly, the dominating litigant use their position to obtain an unfair benefit over the other party. For example, it must be show the contract that the party enter into with appears, either on the face of it or the evidence offered, to be excessive. Under English Law, the two elements “domination” and “a relationship between trust and confidence” are totally different from Malaysia Law.
The only exception to the consideration rule is for the goods of a seal. 3. to . A mere agreement between two or more parties does not guarantee the existence of a contract. The contracting parties should have the intentions to enter into an agreement that is legally binding. It is thus necessary for the parties to a contract to create a legal relationship.
Mehta & Sons Ltd. V. Century Spg. & Mfg Co. Ltd , The Court held stated that: “The proper test………would be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is open to question in the sense that it is not finally settled by this Court or Privy Council or by the Federal court……or calls for discussion of alternative view……” However if the question involved has already been settled apex court or the High Court and the lower court has applied this question correctly in the case, then that shall not be considered by the High Court. It is when there are grey areas involved in the question of the law involved in the case, the Court shall consider that question. There should be an adequate scope to interpret the question and that it should be debatable. The law should not be finally settled by the court of the law.