UNIVERSITI TEKNOLOGI MARA

CAWANGAN TERENGGANU
KAMPUS DUNGUN

BUSINESS LAW

LAW416

GROUP ASSIGNMENT: LAW OF CONTRACT

SUBMITTED BY:
1. CAHAYA ASYAQIRIM BINTI 2021856422 TBA2341A
HALID
2. BUSYRA’ BINTI MOHD 2021853716 TBA2341A
YUSRIMOHD YUSRI
3. NASRIN BINTI MOHD 2021868636 TBA2421B
NAZARI
4. RAJA NORHAYATI BINTI 2021868874 TBA2421A
RAJA MOHD NASRUNDIN

SUBMITTED TO:
PN. NOORIMAH BINTI MISNAN

DATE OF SUBMISSION:
16 DECEMBER 2021
TABLE OF CONTENTS

1.1 DEFINITION OF REMEDY AND SPECIFIC PERFOMANCE ............................................................. 1

1.2 LIMITATION PERIOD OF SPECIFIC PERFOMANCE ........................................................................ 3

1.3 TYPES OF CONTRACTS CANNOT BE ENFORCED IN SPECIFIC PERFOMANCE ............................... 4

1.5 ADVANTADES AND DISADVANTAGES, DEFENCES OF SPECIFIC PERFOMANCE........................... 5

CONCLUSION........................................................................................................................................... 6

REFERENCES ............................................................................................................................................ 7
1.1 DEFINITION OF REMEDY AND SPECIFIC PERFOMANCE

Remedies refer to legal solutions that an innocent party in entitled to if the party
breached the contract. Its means, a valid contract between two party has been made. A
promisor does not keep his promise as what was written in the contract, or he already
breached the contract. Remedies may be ordered by the court and approved by judgment
after trial or hearing, by agreement between promisor and innocent party (2020). Remedies
is the best solutions to enforce innocent party right. As is said, this solution is to confirm that
no breaching party whole. Legal and equitable remedies are the two main types of remedies
available. Consequential damages are a type of legal remedy. Consequential Damages is
monetary compensation to place the aggrieved party in the same position he would have
been in if the contract had been performed and to permit recovery of any monetary losses
suffered as a consequence of the breach. As is said, damages refer to money paid by one
side to the other. there are several types of damages which is compensatory, incidental,
consequential, nominal, liquidated, and punitive. Equitable remedies are judicial remedies
developed and granted by courts of equity, as opposed to courts of law Equitable remedies
are related to fairness, as opposed to the actual monetary damages suffered as the result of
a breach. There are many types of equitable remedies, which is specific performance,
injunction, restitution, etc. and one common type of equitable remedy used called Specific
Performance.

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 Specific performance (Kailyn Champlin) is a judicial order to the promisor that he
undertake the performance to which he obligated himself in a contract. It is governed by the
Specific Relief Act 1950 and is a judicial order to the promisor that he undertake the
performance to which he obligated himself in a contract. Specific performance is an
alternative to damages that the court may grant at its discretion, subject to a few restrictions.
When the promisee seeks to enforce a contractual provision for forbearance a promise that
the promisor would refrain from doing something an injunction, or judicial order prohibiting
the promisor from acting in a specific manner, may be appropriate. Specific Performance
applied when damages are insufficient, and in some specific instances, such as land sales,
orders of specific performance are granted. Courts provide specific performance under the
Specific Relief Act of 1963 when they believe that awarding damages will be insufficient. For
example, case Nutbrown v Thornton. The Plaintiff ordered a machine from the Defendant’s
factory. The defendant breach of contract and refused to deliver the machine. The Plaintiff
sue for Specific Performance because the machine could not be obtained elsewhere. The
court ordered the defendant to supply and deliver the machine

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1.2 LIMITATION PERIOD OF SPECIFIC PERFOMANCE

In Malaysia legal position, limitation period of action for specific performance in

contract of sale of land play an important part in all civil action (Dahlan, 2005). Based on
Limitation Act 1953 (Bhd, 2011)stated no action shall be brought by any person to recover any
land after the expiration of twelve years from the date on which the right of action accrued to
him, or if it first accrued to some person through whom he claims, so that person. For instance,
case Nasri v Mesah, (Nasri v Mesah 1971, n.d.) the appellant claimed for specific performance
of an agreement dated June 5, 1947, whereby the respondent agreed to sell to him some land
belonging to her. The appellant had paid the agreed price for the land, but no document of
transfer was executed because of the moratorium then it force. After the expiration of the
moratorium on 30 September 1949 the appellant approached the respondent on several
occasions and requested her to execute a transfer of the land. Eventually the appellant
commenced the action on March 3, 1967. The action was dismissed in the High Court on the
ground of limitation. The appellant was appealed. Held allowing the appeal. In this case
whether the action was for specific performance of an agreement for the sale of land or for a
declaration of title to land, it was essentially an action to recover land, and he period of
limitation therefore would be twelve years.

In other situation, we can look at the other cases Ng Moh v Tan Bok Kim. This is
because in this case the purchaser for a specific performance to the contract of sale enter on
a last 15 years. The cause of action was accrued to the purchaser 5 years later. Without
considering and without further examining the applicability of the period of limitation period the
federal court decided to accept the contention of the counsel that for an action to recover land
and the limitation period is 12 years.

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1.3 TYPES OF CONTRACTS CANNOT BE ENFORCED IN SPECIFIC
PERFOMANCE

According to the SPECIFIC RELIEF ACT of 1963, a plaintiff in a litigation for specific
performance of a contract might seek compensation in addition to or instead of seeking relief
for specific performance. As a result, compensation can be claimed as an alternative relief
for particular performance under the previous Act. The words "in addition to" were
substituted for the phrases "either in addition to, or in substitution of" in section 21(1) of the
original Act by The Specific Relief (amendment) Act, 2018. It means that, as of the most
recent revision, compensation can only be claimed as a supplement to, not as a replacement
for, the relief of specific performance (University, 2020). The fact that the contract has
become incapable of specific performance has no bearing on the court's ability to exercise
the power granted by this provision.

The fact that a contract provides for liquidated damages does not preclude the Court
from granting an order of particular performance. Syed Khaja v. M.L. Devender Singh
(1723)In which it was determined that a court's jurisdiction to give specific performance
"cannot be reduced or taken away by just fixing a sum even as liquidated damages" after
referring to Section 10 of the Specific Relief Act and the Explanation added thereto, as well
as Sections 14, 20, and 23. Sections 20 and 23 were construed by the Supreme Court as
requiring the court "to assess, on the facts and circumstances of each case before it,
whether specific performance of the contract to deliver a contract ought to be given." The
inference to be drawn was emphasized in terms of Explanation 1 to Section 10, which
provides that "unless and until the contrary is proved, the Court shall presume that the
breach of a contract to transfer immovable property cannot be adequately
relieved by compensated in money, and that the breach of a contract to transfer
movable property can be thus relieved."

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1.5 ADVANTADES AND DISADVANTAGES, DEFENCES OF SPECIFIC
PERFOMANCE

The specific performance remedy has the benefit of requiring a party to perform a
specific obligation or completely execute what was agreed in the contract, failing which they
may be subject to contempt orders. If a person wilfully refuses to respect a court order and
the provisions of a decision, the court may hold the defendant in contempt of court and impose
significant penalties or even imprison the party (2020). Next, litigious context as one major
disadvantages of this type of remedy which the defendant is expected to execute an obligation.
Remember the court orders specific performance in the context of a contractual dispute
between the parties. The defendant may not do so in line with expectations standards if require
rendering services or performing things. Furthermore, the court may lack the knowledge or
ability to oversee the work and guarantee that the defendant complied with the sentence.
There are several examples of defences that defendant can uses against specific performance
claim in court which are statue of frauds, undue difficulty, or an unreasonable burden to carry
out the plaintiff’s responsibilities, the plaintiff may have deceived the defendant by
misrepresenting key contract features rendering the obligation void, and laches when a plaintiff
fails to state his or her claim within a reasonable delay.

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CONCLUSION

Specific performance as one of remedies from awards of damages, rescission, and

restitution, is an equitable relief granted by court to enforce contractual obligations between
the parties. This remedy may be claim from defendant at court for the breach of clear,
specific, and legally binding obligations. But the claim cannot easily be obtained as it is an
extraordinary order from the court requiring obligation with party had agreed upon in the
contract. This type of remedy is useful when the actual performance of a party’s obligation is
the most appropriate remedy and where the award of damages may not be effective. This
claim can bring forward to court in its limitation period which is three years and it still have
disadvantages despite how special specific performance remedy. In conclusion, specific
performance is not easily be granted and usually effective when damages cannot be
measured such real property cases.

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REFERENCES

0'FLAHERTY LAW. (16 November , 2020). Retrieved from What Are Some Remedies For Breach of
Contract?: https://www.oflaherty-law.com/learn-about-law/what-are-some-remedies-for-
breach-of-
contract#:~:text=In%20contract%20law%2C%20a%20%E2%80%9Cremedy%E2%80%9D%20is
%20a%20court-
ordered,fulfilled%20his%20or%20her%20obligation%20under%20the%20agreement.

Bhd, P. (2011). In Specific Relief Act 1950 (Act 137). Selangor Darul Ehsan : Penerbitan Akta (M) Sdn.
Bhd.

Dahlan, N. H. (2005). LIMITATION PERIOD OF ACTION FOR SPECIFIC PERFOMANCE IN CONTRACT OF

SALE OF LAND. Retrieved from http://repo.uum.edu.my/9528/9/Nuarrual.pdf

Kailyn Champlin, P. S. (16 August, 2017). SPECIFIC PERFOMANCE. Retrieved from Legal Dictionary:
https://legaldictionary.net/specific-performance/

M.L DEVENDER SINGH AND OTHERS V SYED KHAJA, No. 2517 of 1969 (Andhra High Court 3 August,
1723).

Nasri v Mesah 1971. (n.d.). Retrieved from StuDocu:

https://www.studocu.com/my/document/universiti-malaya/civil-procedure-1/nasri-v-
mesah-1971-1-mlj-32/10823563

Staff, E. (26 September, 2020). Specific Performance (Best Overview: Legal Remedy and Examples).
Retrieved from incorporated zone: https://incorporated.zone/specific-performance/

University, M. (2020). StuDocu. Retrieved from SPECIFIC PERFOMANCE:

https://www.studocu.com/my/document/multimedia-university/equity-and-trusts-
ii/specific-performance-lecture-notes-5/12387377

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