Right to Specific Performance: Is There a Divergence between Civil- and Common-Law Systems and, If So, How Has It Been Bridged in the DCFR?

Abstract

ABSTRACT: Civil- and common-law systems are asserted to treat the right of a party to a contract to specific performance in quite different ways: in civil-law systems, this right seems to be a fundamental right of a creditor, emanating from the adagium ‘pacta sunt servanda’ itself; common-law systems, on the contrary, are supposed to grant this action to the creditors only in the exceptional case that their usual remedy, damages, would not achieve appropriate justice. One might expect that this well-known divergence between the before-said law systems has posed quite a problem to the draughtsmen of the Draft Common Frame of Reference (DCFR); since it is to serve as an international instrument, unitary rules were needed, and therefore, it might be expected that its draughtsmen have reached a laborious compromise between the before-said law systems in a laborious way. The following questions will be addressed: does this divergence between civil- and common-law systems exist realiter and, if so, how has it been bridged in the DCFR? In order to answer these questions, rights of a party to a contract of monetary obligations have been distinguished from rights to non-monetary ones. It will turn out with respect to each of these types of obligations that the beforesaid divergence between civil- and common-law systems is not as wide as might have been expected. The remaining divergences between the law systems have been bridged by the draughtsmen of the DCFR in different ways, dependent on the type of obligation at stake. With respect to monetary obligations, they have chosen for the common-law solution, that is, damages instead of a right to specific performance. With respect to non-monetary obligations, the civil-law solution that these draughtsmen have, on the contrary, chosen for the civil-law solution as the basic rule is the right to specific performance; their task to include the rights that the European Union confers on consumers in the DCFR may account for this latter choice.