Specific performance and damages in Anglo-American and сontinental law

Abstract

The article deals with moral and ethical factors of contract law influencing the choice between specific performance and damages as the main remedy. Development of the law of contracts depends on decision of three dilemmas: “deontology or utilitarianism”; “will theory or objective theory”; “pacta sunt servanda principle or its denial”. In the course of protection of the contractual interest the law of contracts tends to right-based or economic theory depending on decision of the dilemmas mentioned. The economic theory gives priority to claim for damages whereas the right-based theory to specific performance. The article reveals reasons why specific performance is not popular in the USA as well as examines specific performance as an equitable remedy. The subsidiary role of specific performance to damages is additionally disclosed with regard to the adequacy of damages criterion which has not yet been followed in continental law. The continental legal system determined balance between specific performance and damages on the basis of Roman legal procedure (cognitio extraordinaria), in operation during the post-classical period as well as the results of Roman law intellectualization represented by the doctrine of interest (F. Mommsen) whereby the creditor`s interest replaced by its equivalent after breach of contract. The aggrieved party is entitled to choose between damages or specific performance with a preliminary letter of formal notice (France, Germany) or without it (Russia).