Malaysia legislation
Section 25
Section 25
Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought, except with the variation so set up, in the following cases, namely:
(a)
where by fraud or mistake of fact the contract of which performance is sought is in terms different from that which the defendant supposed it to be when he entered into it;
(b)
where by fraud, mistake of fact, or surprise the defendant entered into a contract under a reasonable misapprehension as to its effect as between himself and the plaintiff;
(c)
where the defendant, knowing the terms of the contract and understanding its effect, has entered into it relying upon some misrepresentation by the plaintiff, or upon some stipulation on the plaintiff’s part, which adds to the contract, but which he refuses to fulfil;
(d)
where the object of the parties was to produce a certain legal result, which the contract as framed is not calculated to produce; and
(e)
where the parties have, subsequently to the execution of the contract, contracted to vary it.
(a)
A, B, and C sign a writing by which they purport to contract each to enter into a bond to D for RM1,000. In a suit by D, to make A, B and C separately liable each to the extent of RM1,000, they prove that the word
“each” was inserted by mistake; that the intention was that they should give a joint bond for RM1,000. D can obtain the performance sought only with the variation thus set up.
Specific Relief 25
(b)
A contracts in writing to let to B a wharf, together with a strip of A’s land delineated in a map. Before signing the contract, B proposed orally that he should be at liberty to substitute for the strip mentioned in the contract another strip of A’s land of the same dimensions, and to this A expressly assented. B then signed the written contract, A cannot obtain specific performance of the written contract, except with the variation set up by B.
(c)
A contracts in writing to let a house to B, for a certain term, at the rent of RM100 per month, putting it first into tenantable repair. The house turns out to be not worth repairing, so, with B’s consent, A pulls it down and erects a new house in its place. B contracting orally to pay rent at RM120
per mensem. B then sues to enforce specific performance of the contract in writing. He cannot enforce it except with the variations made by the subsequent oral contract.
Against whom Contracts may be
Specifically Enforces
Relief against parties and persons claiming under them by subsequent title