Equitable remedy: specific performance

Abstract

Contract, generally, is a binding agreement between two or more persons which creates mutual rights and duties and which are enforceable at law. Remedy will be available to the innocent parties if the other party fails to perform his part of agreement. For building contract, damages will be an adequate compensation for a breach due to majority of issues and disputes in building contract involves money. The parties nonetheless can choose to seek for specific performance. Specific performance is one of the equitable remedies where the court will ask the party to perform his part of a contract. However, the parties in a building contract do not favour this right in remedying the breach, and similarly there is not much law cases that illustrate the specific performance has been exercised especially in building contract. Hence, this master project has been done to identify the reason for not granting specific performance by the court with respect of building contract. The law cases collected from year 1980 to year 2009 is done mainly through documentary analysis of law journals and law reports via Lexis-Nexis website, e.g. Malayan Law Journal, Building Law Report, Construction Law Report, etc. The results show that there are 7 reasons in which the specific performance will not be granted to the parties in a building contract such as when there is adequacy of legal remedies, constant supervision from the court, uncertainty terms in a contract, on the ground of hardship, vacant possession of site, willingness and readiness as well as whether valid contract has exists or not. This research will shed some light in exposing what are the possible reasons that the court may refuse to grant specific performance and forms a guideline for the parties in a building contract when they resort to specific performance.