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    Saturday, 19 August 2017

    Person against whom Contract cannot be enforced Specifically

    1. INTRODUCTION
    The specific Relief Act provide detail of such persons who cannot be compelled to perform the specific performance of the contract. Where persons under misrepresentation, fraud, mistake, accident entered into the contract. Such persons cannot be compelled to perform.

    2. RELEVANT PROVISIONS
    Sec. 28 Specific Relief Act 1877.

    3. APPLICATION OF SEC. 28
    Specific Relief Act reaps to contracts that cannot be enforced because they are invalid on account of Fraud, undue advantage misrepresentation etc . it does not apply to contracts which are legally valid though there is unfair advantage on one side .

    4. PERSONS WHO CANNOT BE ,COMPELLED TO PERFORM

    In the following cases persons cannot be compelled specific performance of the contract.

    I. INADEQUATE CONSIDERATION

    If the consideration to be received by him is so grossly inadequate, with reference to the state of things existing at the date of the contract, as to be either by itself or coupled with other circumstances evidence of fraud or of under advantage taken by the plaintiff.

    (a) Discretion of the Court
    The court is the only forum in order to Judge the inadequacy of price.

    (b) Contract by Paradanashin Lady
    Where a contract of sale is entered into by a Paradnashin lady without any independent advice and the price fixed is highly inadequate, the contract cannot be specifically enforced.

    II. ASSENT OBTAINED BY MISREPRESENTATION

    If the accent was obtained by the misrepresentation (whether willful or innocent), concealment circumvention or unfair practices, of any party to whom performance would become due under the contract, or by any promise of such party which has not been substantially fulfilled.

    (a) Misrepresentation
    Misrepresentation is the positive assertion in a manner not warranted by the information of the person making, of which is not true. A contract under misrepresentation cannot be enforced.

    b. Concealment
    Active concealment of a material fact is fraud. so contract cannot he enforced.

    c. Voidable Contract
    Under Sec. 28(ii) the contracts are called voidable.

    d. Illustration
    A sells horse to B. Horse is unsound. A does not inform B about the. defect. A has committed fraud, thus it cannot be enforced specifically.


    III. CONTRACT BY MISTAKE OF FACT

    If the assent was given under the influence fo mistake of fact, misapprehension or surprise, such cannot be enforced specifically.

    Illustration
    A, one of two executors, in the erroneous belief that he had the authority of his co-executor, enters into an agreement for the sale to B of his testator's property B' cannot insist on the sale being completed.

    5. CONCLUSION

    To conclude I can say that, under specific Relief Act, there are certain cases in which specific performance of a contract cannot be enforced against a party. Where there is no misrepresentation on the part of the plaintiff and there is no fraud but the dispute is caused by the negligence of the defendant the contract may be specifically enforced.
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    Item Reviewed: Person against whom Contract cannot be enforced Specifically Rating: 5 Reviewed By: Usman Ali
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