Comparative Analysis of the Relationship Between Damages, The Binding Force of the Contract and Efficiency of the Remedy for Non-Performance: The Case of Lucrative Breach in US Common Law and French Civil Law

Abstract

In civil contract law, the assessment and award of damages is only a matter of fact and not a matter of law. Hence trial judges have sovereign power. French academics and judges have also traditionally shown great interest for reliance and specific performance. Until recently, they have relatively disregarded the economic efficiency of remedies and monetary reliefs as a compensation for non-performance. As a consequence, the French system is great to protect the contract and less so to protect the victim. Nevertheless the principle is, full compensation is rarely actually achieved when non-performance happens and parties are not willing to keep the contract going. Moreover, when it is achieved, one can hardly predict the calculation methods the judge will use to award damages. This article tends to address one main issue: How to reconcile the fundamental principles of civil contract law and the legitimate demands of the victim of non-performance for a more complete and foreseeable compensation? Based on a comparative analysis with the relevant American common law and the most recent trends observed in civil law doctrine and practice, the author argues that a more liberal interpretation of full compensation principle -- associated with more objective and controlled valuation methods -- is an adequate solution. The conclusion calls for a discussion with American lawyers and explores various reforms in order to implement that solution.