TOPIC- A COMPARTIVE STUDY ON THE SPECIAL RELIEF

ACT BETWEEN INDIA AND FRANCE

SUBJECT- LAW OF CONTRACTS

SEMESTER II

SUBMITTED BY,
TANAY DINESH BOTHRA,
B.B.A. L.L.B.,
SAP ID- 81022019351,
DIVISION- F,
ROLL NO- F008,

SUBMITTED TO,
PROF. MEENAZ KAZI

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Abstract
Relief Act in India was formulated in 1963, the main purpose of this act was to establish
remedies if there was a breach of contract. This act was recently amended in 2018 as well.
The main objective of this paper will be to compare the remedies to breach of contract in
India to and remedies to breach of contract in France. Both India and France are
commonwealth countries, that means both have similar provisions under common law. Under
study we will be comparing a different aspect which codified in both the countries but don’t
have the exact same provisions which is contract law. Contract as a definition is similarly
identified throughout all the common law countries which is “ A contract is a legally binding
agreement that defines and governs the rights and duties between or among its parties. A
contract is legally enforceable when it meets the requirements of applicable law. A contract
typically involves the exchange of goods, services, money, or a promise of any of those”. The
basic requirements of a contract are also similar between both the countries but our main
objective will be to compare the Specific Relief Act 1963 and Civil Code of France.

Introduction
Aim- Through this study we will make an attempt to carry out a comparative study between
Indian contract law and the French contract law, although we will be focusing on only one
aspect of contract law. For the purposes of this paper we will focusing on remedies for breach
of contract of both the countries, where both of these laws are codified in Specific Relief Act
1963 and Civil Code of France. We will begin this study by analysing and understanding the
Specific Relief Act by understanding the different nuances of it, further on we will study and
analyse the Civil Code of French in the part where it talks about the remedies to contract

Relief Act in India

Laws fall into three categories-
 Those which define Rights.
 Those which define Remedies.
 Those which define Procedure.
The Law of Specific Relief belongs to the second category. It is a law which deals with-
Remedies‘.

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The expression Specific Relief means a relief in specie. It is a remedy which aims at exact
fulfilment of an obligation. The suit under Specific Relief Act may be brought to compel the
performance of the contract by the person in default. Such relief may be either positive or
negative. It is positive when a claim to the performance of it and negative when it is desired
to prevent the doing of thing enjoined or undertaken as not to be done. The Specific Relief
Act explains and enunciates the various reliefs which can be granted under its provisions,
provides the law with respect to them. It provides for the exact fulfilment of the obligation or
the specific performance of contract. It is directed to the obtaining of the very thing which a
person is deprived of and ought to be entitled to ask for. It is a remedy by which party to a
contract is compelled to do or omits the very acts which he has undertaken to do or omit. The
remedies which has been administered by Civil Courts of Justice against any wrong or injury
fall broadly into two classes, (i) those by which the suitor obtains the very thing to which he
is entitled, and (ii) those by which he obtains not that very thing, but compensation for the
loss of it. • The former is the specific relief. Thus specific relief is a remedy which aims at the
exact fulfilment of an obligation. It is remedial when the court directs the specific
performance of contract and protective when the court makes a declaration or grants an
injunction.
Reliefs regarding possession of movable and immovable property
 Immovable Property- Section 5 of the Specific Relief Act deals with the recovery of
specific immovable property.
Recovery of specific immovable property.—A person entitled to the possession of specific
immovable property may recover it in the manner provided by the Code of Civil Procedure,
1908
(5 of 1908).
The section in simple words provides that any person who is lawful owner of immovable
property can get the possession of such property by due course of law. It means that when a
person is entitled to the possession of specific immovable property he can recover the same
by filing the suit as per provisions of CPC. He may file suit for ejectment on the strength of
his title and can get a decree for ejectment on the basis of title within 12 years of the date of
possession. Section 5 of the Act declares that in a suit for recovery of immovable property by
person ‗entitled to‘ provisions Order XXI, Rule 35 and 36 of CPC would apply.
There are three types of actions which can be brought in law for the recovery of specific
immovable property:
a) A suit based on title by ownership;
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b) A suit based on possessory title;
c) A suit based merely on the previous possession of the plaintiff where he has been
dispossessed without his consent otherwise than in due course of law.
The last remedy is provided in Section 6 of the Act. The suits of the first two types can be
filed
under the provisions of CPC.
The word ‗entitled to possession‘ means having a legal right to title to possession on the
basis of ownership of which the claimant has been dispossessed. Plaintiff must show that he
had possession before the alleged trespasser got possession. In Ismail Ariff v. Mohammed
Ghouse, the Privy Council held, ―the possession of the plaintiff was sufficient evidence a
title of owner against the defendant by section 6 of the Specific Relief Act, 1962, if the
plaintiff has been dispossessed otherwise than in due course of law.‖ there may be title by
contract, and prescription or even by possession and the last will prevail where no preferable
title is shown.
Section 6 Suit by person dispossessed of immovable property.—
1. If any person is dispossessed without his consent of immovable property otherwise than in
due course of law, he or any person claiming through him may, by suit, recover possession
thereof, notwithstanding any other title that may be set up in such suit.
2. No suit under this section shall be brought—
a. after the expiry of six months from the date of dispossession; or
b. against the Government.
3. No appeal shall lie from any order or decree passed in any suit instituted under this
section, nor shall any review of any such order or decree be allowed.
4. Nothing in this section shall bar any person from suing to establish his title to such
property and to recover possession thereof.
The main object of Section 6 is to discourage forcible dispossession on the principle that
disputed rights are to be decided by due process of law and no one should be allowed to take
law into his own hands, however good his title may be. Section 6 provides summary remedy
through the medium of Civil Courts for the restoration of possession to a party dispossessed
by another within 6 months of its dispossession leaving them to fight out the question of their
respective title in a competent Court if they are so advised. The object of this section appears
to have been to give special remedy to the party illegally
dispossessed by depriving the dispossessor of the privilege proving a better title to the land in

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dispute. Section 6 should be read as part of the Limitation Act and its object to put an
additional restraint upon illegal dispossession with a view to prevent the applicant of that
dispossession, from getting rid of the operation of the Act by his unlawful conduct. If the suit
is brought within
the period prescribed by that Section, even the right of the land is precluded from showing his
title.
Movable Property
Section 7 - Recovery of specific movable property —A person entitled to the possession of
specific movable property may recover it in the manner provided by the Code of Civil
Procedure, 1908.
Explanation 1.—A trustee may sue under this section for the possession of movable property
to the beneficial interest in which the person for whom he is trustee is entitled.
Explanation 2.—A special or temporary right to the present possession of movable property
is sufficient to support a suit under this section.
Property of every description except immovable property is movable property. Example:
Government Securities, share certificates are movable property but not money. For
application of the section it must be specific i.e. ascertained and ascertainable capable of
being seized and
delivered. The remedy of recovery of specific movable property means the property itself and
not its equivalent. Section 7 provides for the recovery of movable property in specie i.e. the
things itself. The things to be recovered must be specific in the sense they are ascertained and
capable of identification.
The nature of things must continue without alteration.
Section 7 and 8 embody the English Rules as to detinue. An action in detinue would lie only
for some specific article of movable property capable of being recovered in species and of
being seized and delivered up to the party entitled. A person can seek recovery of his
personal belongings under this section. The cases in which movable property can be
recovered in specie are given under Section 8. However if the goods have ceased to be
recoverable the remedy lies in compensation .
Who can sue under Sec 7-
To succeed under this section it is sufficient if the plaintiff seeking possession has a right to
present or immediate possession or by way of special or temporary right to present possession

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i.e. of a bailee, Pawnee, finder of lost goods. A trustee can sue under this section possession
of movable property to protect the beneficial interest of the beneficiary and it is not necessary
to make the beneficiaries, parties to the suit.

Damages/Compensation Indian Contract Act

Breach of Contract

Special Relief Act

Specific Performance

French Civil Code

More than 210 years after it was drafted, the “Civil Code of the French people” is still in use
in France... My real glory lies not in the fact that I won forty battles; Waterloo will erase the
memory of so many victories; what nothing will erase, what will exist forever, is my Civil
Code. Napoléon Bonaparte
Mechanisms encouraging the performance of the contract
(i) Liquidated damages clause (“clause pénale”)
Penalty clause pursuant to which a co-contracting party undertakes, in the event of non-
performance of its main obligation (or in the case of delayed performance) to pay the other
party as damages a lump-sum amount that, in

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principle, cannot be decreased or increased by a judge, unless it is clearly excessive or is
derisory.
(ii) The exception of non-performance (“exceptio non adimpleti contractus”)
The exception of non-performance enables a party faced with non-performance by its partner
to suspend the performance of the contract. Although the Civil Code does not expressly
contain this principle, it nevertheless refers to the latter, in particular, as regards sales (C. civ.,
art. 1612).
French case law has extended the exception to include all bilateral relationships,
characterised by the interdependence of reciprocal obligations.
The non-performance, whether complete or partial, must be sufficiently serious to justify the
suspension of the contract.
B. Sanctions in response to the non-performance of the contract attributable to the
debtor
Article 1184 of the Civil Code provides:
“A condition subsequent is always implied in bilateral contracts in the event that one of the
parties does not perform its undertaking.
In this case, the contract is not rescinded by operation of law. The party in whose favour the
undertaking has not been performed has the choice either to force the other to perform the
agreement, if this is possible, or to request rescission with damages.
Rescission must be requested by an action at law and, depending on the circumstances,
additional time may be granted to the defendant.”
The main options available to the victim of contractual non-performance are:
(i) Enforcement (“exécution forcée”)
(ii) Rescission (“résolution”)
(iii) Damages (“dommages et intérêts”)

II. Order No. 2016-131 of 10 February 2016 reforming contract law, the general
rules and the proof of obligations
New article 1217 lists the sanctions for contractual non-performance:
“The party to whom the obligation was not performed or that was partially performed, can:
• refuse to perform or suspend the performance of its own obligation;
• enforce the specific performance of the obligation;
• request a reduction of the price;
• rescind the contract;
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• request reparation for the consequences of the non-performance.
Sanctions that are not incompatible can be accumulated; damages can be added to these at
any time”.
II. Order No. 2016-131 of 10 February 2016 reforming contract law, the general
rules and the proof of obligations
Main modifications as regards contractual non-performance:
Enforcement of specific performance can be excluded if there is an imbalance between the
cost of the enforcement of specific performance for the debtor and its benefit for the creditor;
A contracting party who is a victim of a non-performance that is sufficiently serious will have
two options:
- it can either petition a judge for rescission
- or it can notify it to the debtor
Accordingly, unilateral rescission is established as a competing principle of a judgment
voiding a contract
[résolution judiciaire];
The exception of anticipatory non-performance (“exceptio timoris”), a new provision in the
Code, inspired by the Principles of European contract law (Art. 9: 201), will entitle a creditor,
after notice to remedy, to unilaterally suspend the performance of its obligations if:
- it is clear that its co-contracting party will not perform its obligations by the stipulated date
- the consequences of this non-performance will be sufficiently serious on its interests; The
creditor can have a third-party perform the obligation entered into by the defaulting debtor, at
the latter’s expense, without petitioning a judge for prior authorisation.
Art. 1217. The party to whom the obligation was not performed or that was partially
performed, can:
• refuse to perform or suspend the performance of its own obligation;
• enforce the specific performance of the obligation;
• request a reduction of the price; -rescind the contract;
• request reparation for the consequences of the non-performance.
Sanctions that are not incompatible can be accumulated; damages can be added to these at
any time. Art. 1218. Contractual force majeure exists if an event outside the control of the
debtor and that could not be reasonably foreseen at the time the contract was entered into, the
effects of which cannot be avoided by appropriate measures, prevents the performance of its
obligation by the debtor. If the impediment is temporary, the performance of the obligation is
suspended unless the resulting delay justifies the rescission of the contract. If the impediment
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is permanent, the contract is automatically rescinded and the parties are released from their
obligations in the conditions defined in Articles 1351 and 1351-1.
Sub-section 1 - Defence based on non-performance
Art. 1219. A party can refuse to perform its obligation, even though said obligation is due, if
the other party does not perform its own obligation and if this non-performance is sufficiently
serious.
Art. 1220. A party can suspend the performance of its obligation if it is clear that its co-
contracting party will not perform its own obligations on a timely basis and that the
consequences of this non-performance are sufficiently serious for it.
Sub-section 2 - Enforcement of specific performance
Art. 1221. The party owed an obligation can, after notice to perform, enforce specific
performance unless this performance is impossible or if there is a clear imbalance between its
cost for the debtor and the benefit of the performance of said obligation for the party who is
owed the latter.
Art. 1222. After notice to perform, the creditor can also, within a reasonable period of time
and for a reasonable cost,
itself have the obligation performed, or, if authorised in advance by a judge, it can destroy
what has been performed in violation thereof. It can ask the debtor to reimburse the amounts
incurred for this purpose. It can also petition a court to have the debtor advance the amounts
necessary to this enforcement or to this destruction.
Sub-section 3 - The reduction of the price
Art. 1223. The creditor can, after notice to perform, accept a partial performance of the
contract and request a proportional reduction of the price.
If it has not yet paid, the creditor shall notify its decision to reduce the price as quickly as
possible
Art. 1224. Rescission shall result either from the application of a termination clause or, in the
case of sufficiently serious
non-performance, from a notification of the creditor to the debtor or by a court decision.
Art. 1225. The termination clause specifies the obligations the non-performance of which
shall give rise to the rescission of the contract.
Rescission is conditional upon notice to perform going unheeded, if it has not been agreed
that the latter would result merely from non-performance. The notice to perform shall only be
effective if it expressly mentions the termination clause. Art. 1226. The creditor can, at its
risk, rescind the contract by notification. Except in the case of an emergency, it must first
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give the defaulting debtor notice to perform its obligation within a reasonable period of time.
The notice to perform must expressly mention that if the debtor fails to perform its obligation,
the creditor shall be entitled to rescind the contract. If the non-performance persists, the
creditor shall notify the debtor of the rescission of the contract and the reasons for said
rescission. The debtor can at any time contest the rescission by referring the matter to a judge.
In this case, the creditor must prove the seriousness of the non-performance.
Art. 1227. Regardless of the circumstances, rescission can be requested in legal proceedings.
Art. 1228. Depending on the circumstances, the judge can formally acknowledge or announce
the rescission or order the performance of the contract, if applicable, by granting a period of
time to the debtor to perform the latter, or it can
simply award damages.
Art. 1229. Rescission shall terminate the contract.
Rescission takes place, as the case may be, either in the conditions defined by the termination
clause, or on the date of receipt by the debtor of the notification made by the creditor, or on
the date defined by a judge or else, on the day of the summons to appear in court.
If the services exchanged could only be useful in the case of the complete performance of the
rescinded contract, the parties must return everything they received from each other.
If the services exchanged were useful as and when each of the parties performed the contract,
restitution is not necessary for the period preceding the last service for which the
corresponding service was not performed; in this case, rescission is deemed as termination.
Restitutions take place in the conditions defined in Articles 1352 to 1352-9.
Art. 1230. Rescission shall not affect the clauses concerning the resolution of disputes, nor
those intended to apply even in the case of rescission, such as the confidentiality and non-
competition clauses.
Sub-section 5 - Reparation of the loss resulting from the non-performance of the contract
Art. 1231. Unless the non-performance is permanent, the damages shall only be due if the
debtor has first been served notice to perform within a reasonable period of time.
Art. 1231-1. If applicable, the debtor is ordered to pay damages, either for the non-
performance of the obligation, or for the delayed performance, if it does not prove that
performance was impeded by force majeure. Art. 1231-2. In general, the damages due to the
creditor are the loss that was made and the gain that was deprived, save for the exceptions
and modifications below.

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Art. 1231-3. The debtor is only bound to pay the damages that were provided for or that
could be provided for at the time the contract was entered into, unless non-performance is due
to gross or intentional negligence
Art. 1231-4. In the event even that the non-performance of the contract results from gross or
intentional negligence, the
damages only include those that were the immediate and direct result of the non-performance.
Art. 1231-5. If the contract stipulates that the defaulting party shall pay a certain amount as
damages, a larger or smaller amount cannot be awarded to the other party.
However, the judge can, including on its own motion, decrease or increase the thus agreed
penalty, if it is manifestly excessive or is ridiculous. If the obligation was partially performed,
the agreed penalty can be reduced by the judge, including on its own motion, in proportion to
the benefit obtained by the creditor as a result of the partial performance, without prejudice to
the application of the previous paragraph.
Any stipulation that conflicts with the two previous paragraphs is deemed not written.
Except for permanent non-performance, the penalty is only incurred if the debtor has been
given notice to perform.
Art. 1231-6. The damages due for a delay in the payment of an amount of money consisting
of the interest at the official rate, as of the notice to perform. These damages are due without
the creditor being required to prove any loss. The creditor, to whom its delayed debtor
caused, due to its bad faith, a loss independent of this delay, can obtain damages separate
from the delay interest. Art. 1231-7. In any case, the order to pay a compensation shall entail
interest at the official rate, including in the absence of a request or a special provision in the
judgment. Unless otherwise provided for by law, this interest shall accrue as of the handing
down of the decision, unless otherwise decided by the judge. In the event that the appeals
judge unconditionally confirms a decision awarding compensation as reparation of a damage,
the latter shall automatically accrue interest at the official rate as of the first instance
judgment. Otherwise, the compensation awarded on appeal shall accrue interest as of the
appeal decision. The appeals judge can derogate from the provisions of this paragraph at any
time.

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