Specific Performance: A Comparative Analysis (2)

Abstract

The first part of this article appeared in the first issue of this volume of the Edinburgh Law Review. The article explores the regulation of specific performance of sales by reference to Spain and the USA and speculates on the interaction of these municipal laws with the United Nations Convention on Contracts for the International Sale of Goods (CISG). The first part compared Spanish and United States approaches to specific performance. In this second part the CISG's approach to specific performance is examined with the goal of inquiring, on one hand, whether the drafters have successfully accounted for both Anglo-American and Romano-Germanic preferences, or, on the other hand, whether the CISG's synthesis of the preferences is faulty and manifests incompatible goals that may be difficult to harmonise. Recent US decisions on specific performance under the CISG are discussed as well as some of the assumptions underlying the reasoning processes of US courts in commercial cases. The final section speculates on reasons for the intensity of the rivalry between proponents of specific performance as a primary remedy and those favouring damages as a primary remedy.