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32-04 Specific Relief

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CHAPTER 32-04SPECIFIC RELIEF32-04-01.When specific relief given.Specific relief may be given in the casesspecified in this chapter and in no other cases.32-04-02. How specific relief given. Specific relief is given:1.By taking possession of a thing and delivering it to a claimant;2.By compelling a party to do that which ought to be done; or3.By declaring and determining the rights of parties, otherwise than by an award of<br>damages.32-04-03. Specific relief not given to enforce penal law. Specific relief cannot begranted to enforce a penal law, except in case of nuisance, nor to enforce a penalty or forfeiture<br>in any case.32-04-04.Method of recovering real property.A person entitled to specific realproperty by reason either of a perfected title, or of a claim to title which ought to be perfected,<br>may recover the same either by a judgment for its possession to be executed by the sheriff, or by<br>a judgment requiring the other party to perfect the title and to deliver possession of the property.32-04-05.Method of recovering personal property.A person entitled to theimmediate possession of specific personal property may recover the same in the manner<br>provided by this title.32-04-06. Specific delivery of personal property compellable. Any person having thepossession or control of a particular article of personal property of which such person is not the<br>owner may be compelled specifically to deliver it to the person entitled to its immediate<br>possession.32-04-07. When specific performance compelled. Except as otherwise provided inthis chapter, the specific performance of an obligation may be compelled.32-04-08. Remedy of specific performance must be mutual.Neither party to anobligation can be compelled specifically to perform it, unless the other party thereto has<br>performed, or is compelled specifically to perform, everything to which the former is entitled<br>under the same obligation, either completely or nearly so, together with full compensation for any<br>want of entire performance.32-04-09. Presumption as to relief for not transferring property. It is to be presumedthat the breach of an agreement to transfer real property cannot be relieved adequately by<br>pecuniary compensation and that the breach of an agreement to transfer personal property can<br>be thus relieved.32-04-10. Specific performance compelled though contract signed only by one. Aparty who has signed a written contract may be compelled specifically to perform it, though the<br>other party has not signed it, if the latter has performed or offers to perform it on the latter's part<br>and the case is proper otherwise for enforcing specific performance.32-04-11. Contracts compelled though penalty imposed or damages liquidated. Acontract otherwise proper to be enforced specifically may be thus enforced, though a penalty is<br>imposed, or the damages are liquidated, for its breach, and the party in default is willing to pay<br>the same.Page No. 132-04-12.What obligations cannot be enforced specifically.The followingobligations cannot be enforced specifically:1.An obligation to render personal service.2.An obligation to employ another in personal service.3.An agreement to perform an act that the party has no power lawfully to perform<br>when required to do so.4.An agreement to procure the act or consent of the spouse of the contracting party or<br>of any other third person.5.An agreement, the terms of which are not sufficiently certain to make the precise act<br>that is to be done clearly ascertainable.32-04-13. When specific performance cannot be enforced against one. Specificperformance cannot be enforced against a party to a contract in any of the following cases:1.If the party has not received an adequate consideration for the contract.2.If it is not as to that party just and reasonable.3.Ifsuchparty'sassentwasobtainedbymisrepresentation,concealment,circumvention, or unfair practice of any party to whom performance would become<br>due under the contract, or by any promise of such party which has not been<br>substantially fulfilled.4.If the party's assent was given under the influence of mistake, misapprehension, or<br>surprise, except that when the contract provides for compensation in case of<br>mistake, a mistake within the scope of such provision may be compensated for and<br>the contract specifically enforced in other respects, if proper to be so enforced.32-04-14. When specific performance cannot be enforced in favor of one. Specificperformance cannot be enforced in favor of a party who has not fully and fairly performed all the<br>conditions precedent on such party's part to the obligation of the other party, except when such<br>party's failure to perform is only partial and either entirely immaterial or capable of being fully<br>compensated, in which case specific performance may be compelled upon full compensation<br>being made for the default.32-04-15. Effect of imperfect title. An agreement for the sale of property cannot beenforced specifically in favor of a seller who cannot give to the buyer a title free from reasonable<br>doubt.32-04-16. When enforced against subsequent holder.Whenever an obligation inrespect to real property would be enforced specifically against a particular person, it may be<br>enforced in like manner against any other person claiming under that particular person by a title<br>created subsequently to the obligation, except a purchaser or encumbrancer in good faith and for<br>value, and except also that any such person may exonerate himself or herself by conveying all<br>such person's estate to the person entitled to enforce the obligation.32-04-17. Revision of contract for fraud or mistake. When, through fraud or mutualmistake of the parties, or a mistake of one party which the other at the time knew or suspected, a<br>written contract does not truly express the intention of the parties, it may be revised on the<br>application of a party aggrieved so as to express that intention so far as it can be done without<br>prejudice to rights acquired by third persons in good faith and for value.Page No. 232-04-18.Intention to make equitable agreement presumed.For the purpose ofrevising a contract, it must be presumed that all the parties thereto intended to make an equitable<br>and conscientious agreement.32-04-19. Court may inquire what instrument was intended to mean. In revising awritten instrument, the court may inquire what the instrument was intended to mean and what<br>were intended to be its legal consequences, and it is not confined to an inquiry as to what the<br>language of the instrument was intended to be.32-04-20. Contract first revised then enforced. A contract may be revised first andthen specifically enforced.32-04-21. When rescission of contract adjudged. The rescission of a written contractmay be adjudged on the application of the party aggrieved:1.In any of the cases mentioned in section 9-09-02;2.When the contract is unlawful for causes not apparent upon its face and when the<br>parties were not equally in fault; or3.When the public interest will be prejudiced by permitting it to stand.32-04-22. Rescission not adjudged for mere mistake. Rescission cannot be adjudgedfor mere mistake, unless the party against whom it is adjudged can be restored to substantially<br>the same condition as if the contract had not been made.32-04-23. Compensation may be required. On adjudging the rescission of a contract,the court may require the party to whom such relief is granted to make any compensation to the<br>other which justice may require.32-04-24. When cancellation of instrument adjudged. When a written instrument, orthe record thereof, may cause injury to a person against whom such instrument is void or<br>voidable, such instrument, in an action brought by the party injured, may be adjudged void and<br>the same ordered to be delivered up for cancellation and the record thereof canceled, whether or<br>not extrinsic evidence is necessary to show its invalidity.32-04-25. Partial cancellation. When an instrument is evidence of different rights orobligations, it may be canceled in part and allowed to stand for the residue.Page No. 3Document Outlinechapter 32-04 specific relief