Can the doctrine of part performance be used as a shield not as a sword?
Asked by: Art Marks II | Last update: January 28, 2026Score: 5/5 (11 votes)
Yes, the doctrine of part performance (especially under India's Section 53A of the Transfer of Property Act) is generally a shield, not a sword, meaning it protects a buyer's possession against eviction by the seller but doesn't grant them a full right to enforce the title or claim possession as a plaintiff; it's an equitable defense to prevent fraud where a buyer, having acted on an oral agreement and paid consideration, is in possession, preventing the seller from denying the contract.
What does it mean that promissory estoppel is a shield not a sword?
Promissory estoppel operates as a shield, not a sword. This means the doctrine can only be used as a defence, not as the basis for bringing an independent claim. In other words, it does not create new causes of action, it only prevents a party from enforcing their rights when it would be unfair to do so.
What actions qualify as 'part performance'?
Requirements For Part Performance
Not every action taken under an oral agreement qualifies as part performance. Acts Must Be Referable To The Contract: Your actions must point unmistakably to the existence of the specific contract you're claiming. They can't be explained by any other reasonable interpretation.
What's the evidentiary standard for part performance?
The three examples of proof under the part performance doctrine are: (1) Where the buyer pays a part of the purchase price and has taken actual and exclusive possession of the property; (2) Where the buyer has made permanent, valuable, and substantial improvements to the property with the consent of the seller; and (3) ...
What is the doctrine of part performance?
The doctrine of part-performance, if a person has taken possession of an immovable property on the basis of a contract of sale and has either performed or is willing to perform his part of the contract, he cannot be evicted from the property because the sale was unregistered and the legal title has not been transferred ...
Doctrine of Part Performance - Section 53A - YG Law
What does part performance mean?
[91] Part performance is that somewhat mysterious doctrine which permits contracts for the sale of land to be enforced, notwithstanding their non-compliance with the Statute of Frauds 1677 (Imp). The relationship between part performance and statute over more than four centuries is deeply intertwined.
What are some examples of part performance cases?
Real-world examples
Example 1: A homeowner verbally agrees to sell their house to a buyer. The buyer then invests in renovations and improvements, believing the sale is forthcoming. If the homeowner later refuses to sell, the buyer may invoke the part-performance doctrine to enforce the agreement.
Where did the doctrine of part performance originate?
The doctrine originated in England and the leading case in Maddison V. Aiderson. The Statute of Frauds required that all contracts relating to land must be in writing.
What are the 7 requirements of a valid contract?
The seven essential elements for a valid contract are Offer, Acceptance, Consideration, Capacity, Legality, Mutual Assent (Meeting of the Minds), and Certainty (Clear Terms), ensuring all parties understand the agreement, have the legal ability to enter it, and the purpose is lawful, with a clear exchange of value for enforceable promises.
What is the part performance exception to the Statute of Frauds?
Definition of part-performance doctrine
It acts as an exception to the Statute of Frauds, designed to prevent fraud or severe hardship when one party has already invested substantial time, money, or effort based on a verbal commitment.
What role does equity play in part performance?
Significantly, the doctrine of part performance is based on principles of equity, in particular, recognition of the fact that the purpose of the Statute of Frauds is to prevent frauds, not to enable a party to perpetrate a fraud by using the statute as a sword rather than a shield.
What is the difference between partial and substantial performance?
Partial performance must be accepted by the other party.
In other words, the party who is at the receiving end of the partial performance has a genuine choice whether to accept or reject. Substantial performance, on the other hand, is legally enforceable against the other party.
Does a written agreement need to exist?
Most contracts can be either written or oral and still be legally enforceable. However, some agreements must be in writing to constitute a binding agreement. Oral contracts are difficult to enforce. They don't include a clear record of the legal requirements of an enforceable contract.
Is equitable estoppel a shield not a sword?
Generally speaking, estoppel does not give rise to a new cause of action and most commonly is used as a shield (defence) and not a sword (affirmatively). In other words, other than the exceptions mentioned, the estoppel is used as a form of defence as opposed to basing an entire claim on that point.
What is the fiduciary shield doctrine?
The fiduciary shield doctrine holds that “a nonresident corporate agent generally is not individually subject to a court's jurisdiction based on acts undertaken on behalf of the corporation.” 1The doctrine originated in New York in the mid-1960s 2 but became more widely adopted by the mid-1980s.
What three conditions must be met before the principle of promissory estoppel can be applied?
The doctrine of promissory estoppel is invoked in the interests of justice when three conditions are met: (1) the promise is one that the promisor should reasonably expect to induce the promisee to take action or forbear from taking action of a definite and substantial character; (2) the action or forbearance is taken; ...
What voids a contract?
The contract can also be considered void if an unlawful object or consideration is involved in the agreement. This can include the promise of sex, an illicit substance, or anything else causing one or both parties to break the law.
What three parts of a contract are necessary in order for it to be legally binding?
There are three key elements of a binding contract, and they are what are known as the offer, the acceptance, and the consideration.
What is the benefit detriment test?
The first is "benefit-detriment theory," in which a contract must be either to the benefit of the promisor or to the detriment of the promisee to constitute consideration (though detriment to the promisee is the essential and invariable test of the existence of a consideration rather than whether it can be constituted ...
What is the exception to part performance?
Exception to the doctrine of part performance
This means that the provision will not be applicable to bona fide transferees who, after entering into a contract, are unaware of the terms of the contract and its part performance by the transferor. The Supreme Court in the case of Hemraj v.
What is the case law on the doctrine of part performance?
Rajalakshmi (2011): In the landmark case, the Supreme Court reaffirmed the principles of the Doctrine of Part Performance as enshrined in Section 53A of the TPA, 1882. The case involved an oral agreement for the sale of immovable property between the parties.
What is the doctrine of part performance under section 53A?
Part performance. -- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has.
What contracts Cannot be specifically performed?
(1)The following contracts cannot be specifically enforced, namely:— (a)a contract for the non-performance of which compensation in money is an adequate relief; (b)a contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise ...
What is the most famous contract law case?
Hadley v Baxendale. Hadley & Anor v Baxendale & Ors [1854] EWHC J70 is a leading English contract law case. It sets the leading rule to determine consequential damages from a breach of contract: a breaching party is liable for all losses that the contracting parties should have foreseen.
What is the principle of part performance?
A doctrine of equity that a contract required to be evidenced in writing will still be enforceable even if it is not so evidenced provided that one of the parties does certain acts by which the contract is partly performed.