Against whom Contracts cannot be Specifically Enforced
27 What parties cannot be compelled to perform cite [+]
Specific performance of a contract cannot be enforced against a party thereto in any of the following cases:
(a) 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 undue advantage taken by the plaintiff;
(b) if his assent was obtained by the misrepresentation (whether wilful or innocent), concealment, circumvention, or unfair practices, of any party to whom performance would become due under the contract, or by any promise of the party which has not been substantially fulfilled; or
(c) if his assent was given under the influence of mistake of fact, misapprehension, or surprise:
(a) 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.
(b) A directs an auctioneer to sell certain land. A afterwards revokes the auctioneer's authority as to 20 acres of this land, but the auctioneer inadvertently sells the whole to B, who has not notice of the revocation. B cannot enforce specific performance of the agreement.
Provided that, when the contract provides for compensation in case of mistake, compensation may be made for a mistake within the scope of the provision, and the contract specifically enforced in other respects if proper to be so enforced.
The effect of Dismissing a suit for Specific Performance
28 Bar of suit for breach after dismissal cite [+]
The dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff's right to sue for compensation for the breach of the contract or part, as the case may be.
Awards and Directions to Execute Settlements
29 Application of preceding sections to awards and testamentary directions to execute settlements cite [+]
The provisions of this Chapter as to contracts shall, mutatis mutandis, apply to awards and to directions in a will or codicil to execute a particular settlement.
RECTIFICATION OF INSTRUMENTS
30 When instrument may be rectified cite [+]
When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing does not truly express their intention, either party, or his representative in interest, may institute a suit to have the instrument rectified: and if the court find it clearly proved that there has been fraud or mistake in framing the instrument, and ascertain the real intention of the parties in executing the same, the court may in its discretion rectify the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
(a) A, intending to sell to B his house and one of three godowns adjacent to it, executes a conveyance prepared by B, in which, through B's fraud, all three godowns are included. Of the two godowns which were fraudulently included, B gives one to C and lets the other to D for a rent, neither C nor D having any knowledge of the fraud. The conveyance may, as against B and C, be rectified so as to exclude from it the godown given to C, but it cannot be rectified so as to affect D's lease.
(b) By a marriage settlement, A, the father of B, the intended wife, covenants with C, the intended husband, to pay to C, his executors, administrators, and assigns, during A's life, an annuity of RM5,000. C dies insolvent and the official receiver claims the annuity from A. The court, on finding it clearly proved that the parties always intended that this annuity should be paid as a provision for B and her children, may rectify the settlement and decree that the official receiver has no right to any part of the annuity.
31 Presumption as to intent of parties cite [+]
For the purpose of rectifying a contract in writing, the court must be satisfied that all the parties thereto intended to make an equitable and conscientious agreement.
32 Principles of rectification cite [+]
In rectifying a written instrument, the court may enquire what the instrument was intended to mean, and what were intended to be its legal consequences, and is not confined to the enquiry what the language of the instrument was intended to be.
33 Specific enforcement of rectified contract cite [+]
A contract in writing may be first rectified and then, if the plaintiff has so prayed in his plaint and the court thinks fit, specifically enforced.
A contracts in writing to pay his solicitor, B, a fixed sum in lieu of costs. The contract contains mistakes as to the name and rights of the client, which, if construed strictly, would exclude B from all rights under it. B is entitled, if the court thinks fit, to have it rectified, and to an order for payment of the sum, as if at the time of its execution it had expressed the intention of the parties.
RESCISSION OF CONTRACTS
34 When rescission may be adjudged cite [+]
(1) Any person interested in a contract in writing may sue to have it rescinded, and such rescission may be adjudged by the court in any of the following cases, namely:
(a) where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff; and
(c) where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made, and the purchaser or lessee makes default in payment of the purchase-money or other sums which the court has ordered him to pay.
(2) When the purchaser or lessee is in possession of the subject matter, and the court finds that his possession is wrongful, the court may also order him to pay to the vendor or lessor the rents and profit, if any, received by him as possessor.
In the same case, the court may, by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether, as the justice of the case may require.
35 Rescission for mistake cite [+]
Rescission of a contract in writing cannot be adjudged for mere mistake, unless the party against whom it is adjudged can be restored to substantially the same position as if the contract had not been made.
36 Alternative prayer for rescission in suit for specific performance cite [+]
A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly.