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Specific performance

Masum, Ahmad and Ahmad, Muhamad Hassan and Mohamed Nafees, Seeni Mohamed (2022) Specific performance. In: Equity & trusts in Malaysia: law & practice. Thomson Reuters Asia Sdn. Bhd., Subang Jaya, Selangor, pp. 121-168. ISBN 9789672723165

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Equitable remedies are those remedies which were historically granted by the courts exercising an exclusive equitable jurisdiction, and which unlike common law remedies, are broader and more sympathetic in granting relief to deserving plaintiffs. Under common law, remedies at law were limited to recovery of the property or damages. A wider range of remedies was introduced by equity. These include specific performance, injunctions, rectification, rescission, cancellation, declaration, election, appointment of receivers, etc. A distinguishing feature of all equitable remedies is that they are discretionary, i.e. not available as of right. Equity has supplemented the limited range of legal remedies by acting in personam and by providing a wide range of new remedies. These equitable remedies are founded simply upon the fact that the normal common law remedy for breach of contract, namely damages, is not in all cases an adequate remedy. Therefore, the inadequacy of the common law remedies in general and incompleteness of the compensatory remedy in specific became the foundation of equitable remedies. There are instances when damages are considered as an inadequate relief. In such circumstances, a plaintiff may sue for specific performance and apply for a court order to direct a defendant to fulfil his obligations and perform the terms of the contract as agreed. This chapter addresses the operation of specific performance in-depth in order to have a better understanding of the rules governing the issuance of the remedy by the court of law. Specific performance is an equitable remedy. As such, the decision whether or not to grant an order of specific performance is at the discretion of the court in the case of executory contracts. The rule governing specific performance in Malaysia is statutorily embodied in the Specific Relief Act 1950. The Act contains elaborate provisions governing the remedy of specific performance. The equitable remedy of specific performance in Malaysia is extensively embodied in Chapter II of Part II of the Specific Relief Act 1950. The provisions contained therein specify which contracts may be specifically enforced and which contracts may not be specifically enforced.

Item Type: Book Chapter
Uncontrolled Keywords: Equity, Equitable Remedies, Specific Performance.
Subjects: K Law > K Law (General)
Kulliyyahs/Centres/Divisions/Institutes (Can select more than one option. Press CONTROL button): Ahmad Ibrahim Kulliyyah of Laws
Ahmad Ibrahim Kulliyyah of Laws > Department of Civil Law
Depositing User: Dr. Muhamad Hassan Ahmad
Date Deposited: 10 Mar 2023 16:23
Last Modified: 10 Mar 2023 16:23
URI: http://irep.iium.edu.my/id/eprint/103929

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