Enforced Performance in Common Law Versus Civil Law Systems: An Empirical Study of a Legal Transformation

2020 ◽  
Vol 68 (1) ◽  
pp. 1-54
Author(s):  
Leon Yehuda Anidjar ◽  
Ori Katz ◽  
Eyal Zamir
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Policy Implications ◽  
Breach Of Contract ◽  
Lab Experiments ◽  
Specific Performance ◽  
Lively Debate ◽  
The Common ◽  
Injured Party ◽  
Equitable Relief

Abstract Legal systems differ about the availability of specific performance as a remedy for breach of contract. While common law systems deny specific performance in all but exceptional cases, civil law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practice of litigants and courts actually reflects the doctrinal divergence. An equally lively debate revolves around the normative question: Should the injured party be entitled to enforced performance or rather content itself with monetary damages? Very few studies have used qualitative methods, vignette surveys, or incentivized lab experiments to empirically study these issues, and none has quantitatively analyzed actual court judgments. Against the backdrop of the comparative law and theoretical debates, this Article describes the findings of a quantitative analysis of judgments concerning remedies for breach of contract in Israel during a sixty-nine-year period (1948–2016). The judicial and scholarly consensus is that the Remedies Law of 1970 revolutionized Israeli law by turning enforced performance from a secondary, equitable relief to the primary remedy for breach of contract. We nevertheless hypothesized that no such revolution has actually occurred. In fact, neither the common wisdom that the resort to enforced performance has significantly increased following the 1970 Law, nor our skeptic hypothesis that no such increase has occurred, were borne out. According to our findings, the resort to enforced performance actually decreased considerably after 1970. We examine several explanations for this result, and show that this unexpected phenomenon is associated with the increasing length of adjudication proceedings. The theoretical and policy implications of these findings are discussed.

scholarly journals The Case for Specific Performance as the Primary Remedy for Breach of Contract in New Zealand

2004 ◽  
Vol 35 (3) ◽  
pp. 657
Author(s):  
Fionnghuala Cuncannon
Keyword(s):  
New Zealand ◽  
Historical Development ◽  
Common Law ◽  
Civil Law ◽  
Breach Of Contract ◽  
Administration Of Justice ◽  
Specific Performance ◽  
The Common ◽  
The Right ◽  
Practical Impact

This article examines the appropriateness of damages as the primary remedy for breach of contract in New Zealand. It argues that the civil law approach to contractual remedies, which gives primacy to performance of the obligation, is superior to New Zealand's common law position, which merely seeks to replace the right to performance with an award of damages. The importance of both the normative and practical impact of the remedial framework is examined in order to demonstrate that specific performance is better able to facilitate commercial endeavours. The three justifications for the primacy of damages in the common law (the historical development, the economic theory of efficient breach, and the concern that specific performance will overburden the administration of justice) are examined but rejected as adequate justification for the common law position. It contends that specific performance should be the primary remedy because it is more consistent with the principles that underlie the law of contract. It also contends that specific performance is more practical because it reduces conflict and promotes efficiency. The recommendation is that any change should be through appropriate legislation.

The Efficient Breach Theory under Jordanian Civil Law

2016 ◽  
Vol 30 (4) ◽  
pp. 336-356
Author(s):  
Yusuf Mohammed Gassim Obeidat
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Good Faith ◽  
Breach Of Contract ◽  
Law System ◽  
Legal Rules ◽  
Specific Performance ◽  
History Of ◽  
The Common ◽  
The Right

This study examined the ‘efficient breach’ theory and its possible application under Jordanian Civil Law. The theory says the promisor has the right to breach a contract and pay damages whenever his profit from breach exceeds his expected profits from performance. As a prerequisite for its application, the theory requires the general remedy for breach to be the payment of damages, rather than forced performance. Thus, the main area for its application is the common law system, since it favours damages as a primary remedy. This study reached the conclusion that the theory cannot work under Jordanian Civil Law, where the primary remedy for breach of contract is specific performance, that forces the promisor to complete the contract. In addition, it contradicts the good faith principle that Jordanian law is based upon, amongst other principles, and goes against the history of Jordanian legal rules.

Claims for Performance

2017 ◽  
Author(s):  
Hein Kötz
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Breach Of Contract ◽  
Specific Performance ◽  
The Common ◽  
The Difference

This chapter examines what the contract law says about claims for performance. It first considers the difference between the civil law in which claims for the performance of the contract are generally admitted, and the common law where ‘specific performance’ is awarded only exceptionally. A closer analysis shows, however, that the gap between the civil law and the common law is not as great as it might appear, and it is on that basis that the chapter discusses in some detail the harmonisation of the European rules on claims for the performance of contracts. The chapter also looks at the idea of an ‘efficient breach of contract’ as it relates to claims for performance.

Part VIII Remedies For Default, 27 Debt and Other Agreed Sums

2021 ◽  
Author(s):  
Andrews Neil
Keyword(s):  
Common Law ◽  
Practical Importance ◽  
Case Law ◽  
Fundamental Principle ◽  
Breach Of Contract ◽  
Self Help ◽  
Liquidated Damages ◽  
Specific Performance ◽  
The Common ◽  
Judicial Remedies

This Part mostly concerns judicial remedies for breach of contract (the self-help remedy of forfeiture of a deposit is noted at [27.109]). The chapter sequence reflects both the division between Common Law (chapters 27 and 28) and Equity (chapter 29) but, more importantly, the practical importance of the judicial remedies, debt mattering more than damages, and in turn damages more than specific performance or injunctions. And so chapter 27 concerns ‘Debt’ (but agreed damages, ie liquidated damages clauses, are treated in the same chapter because the sum payable is, by definition, fixed or calculable in advance; but technically, agreed damages are damages and not a cause of action sounding in debt). Chapter 28 concerns damages, that is, compensation. Damages is a branch of the law which continues to generate a mass of intricate case law. Finally, chapter 29 concerns the equitable remedies of specific performance, injunctions, account of profits, and declarations. It is a fundamental principle that specific performance can be granted only if the Common Law remedies (debt and damages) are inadequate on the relevant facts. Chapter 27: The predominant claim for contractual default is the action for debt, to compel payment. Statistically this is the front-runner amongst remedies for breach. The availability of interest is also noted in this chapter.

scholarly journals Tradición romanística y perspectivas de reforma en sede de cláusula penal

2012 ◽  
Author(s):  
Alejandro Valiño Arcos
Keyword(s):  
Civil Law ◽  
General Rule ◽  
Civil Code ◽  
European Contract ◽  
Breach Of Contract ◽  
Specific Performance ◽  
El Sistema ◽  
The Common ◽  
Civil Codes ◽  
Preliminary Draft

El autor analiza el tratamiento legal de la cláusula penal en el Derecho civil español, con especial atención a la regulación que ofrece el Código civil en los artículos 1152 a 1154, las diferentes funciones que la cláusula penal cumple y el distinto régimen presente en la Lex 518 del Fuero Nuevo de Navarra, lo cual evidencia el dualismo habido en el sistema jurídico español entre el Derecho civil común (representado por el Código civil) y el derecho foral o especial (representado por distintas compilaciones de ámbito regional). La regulación del Código civil español configura la pena contractual en primer término como sustitutiva de la indemnización de daños y perjuicios prevista en el artículo 1101 del Código civil para el caso de incumplimiento contractual o para los supuestos de cumplimiento deficiente o tardío por parte del deudor. De este modo, se dispensa al acreedor de tener que recurrir a una valoración del daño efectivamente causado, de modo que la cláusula penal viene a ser una estimación anticipada del daño que sustrae al acreedor de la prueba de su existencia. Esta regulación, que se ha mantenido invariable desde la promulgación del Código civil, ha sido objeto de especial atención por parte del Anteproyecto de Modernización del Derecho de Obligaciones elaborado por la Comisión de Codificación del Ministerio de Justicia en 2009, siguiendo las orientaciones presentes en otros Códigos civiles europeos así como las aportaciones de prestigiosos académicos, que son expresión del esfuerzo en pro de la armonización del Derecho contractual europeo.The author analyses the legal treatment of the penalty clause into Spanish Civil Law, with special attention to the regulation offered by the Civil Code in their articles 1152 to 1155, the differents functions which the penalty clause achieves and the differentiated regulation into Fuero Nuevo of Navarra in the Lex 518. All of this can be seen as a reflection of the dualism in Spanish Legal System between the Common Civil Law (represented by the Spanish Civil Code) and the Foral or Special Law (represented by differents regionals compilations). The regulation of the Spanish civil code sets as general rule the contractual penalty as substitute of the regime of compensation into the article 1101 of spanish Civil Code in case of breach of contract or in case of defective or untimely performance by the debtor. This provision allows to the creditor to avoid a real damage assessment, so that the penalty clause lets a advanced estimate of damages without needing to prove them. But also admits the regulation of the penalty clause into the spanish Civil Code other functions, for instance the cumulative penalty (with the legal and previously valued compensation of damages or with the specific performance). This regulation, unchanged since the enactment of the spanish Civil Code, has been object of special attention by the preliminary draft to modernisation of the law of obligations drawn up by the Commission of Codification of the Ministry of Justice in 2009, picking up some of the guidelines present in other European Civil Codes as well as in the contributions of prestigiouses scholars, which are expression of the effort aimed at the harmonisation of European Contract Law.

11. Remedies Part III: Non-compensatory Remedies

2021 ◽  
pp. 340-376
Author(s):  
André Naidoo
Keyword(s):  
Common Law ◽  
Breach Of Contract ◽  
Unjust Enrichment ◽  
Specific Performance ◽  
The Common ◽  
Compensatory Damages

This chapter identifies some alternative, exceptional remedies that could be available to an innocent party following a breach of contract. Generally, they can only be used when an award of compensatory damages would for some reason not be adequate or is unavailable. The chapter starts with specific performance and injunctions. Both remedies were developed in equity rather than the common law. This means that their application is largely discretionary and so the chapter looks at the factors that could be relevant to the exercise of that discretion. It then turns briefly to the remedy of restitution for unjust enrichment. While this is a different area of law, it can provide a remedy where there was thought to have been a contract but it turns out there was not one. In certain circumstances, it could also provide a remedy following a breach. A basic grasp of this area will also help to understand the very exceptional ‘restitution for a wrong’ remedy. Finally, the chapter considers the remedy of negotiating damages as well as agreed damages clauses.

Breach of Contract: Automatic and Unilateral Price Reduction

2018 ◽  
Vol 14 (1) ◽  
pp. 24-59
Author(s):  
Lorenzo Bertino
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Framework ◽  
Price Reduction ◽  
Breach Of Contract ◽  
Law System ◽  
Innovative Solutions ◽  
The Common ◽  
Italian Model ◽  
General Instrument

AbstractThe recent reforms of the French Civil Code have also regulated remedies for breach of contract, by introducing price reduction as a general instrument that can be applied to all contractual types. Firstly, the article analyses the harmonisation projects and regulations on which the French reform claims to be based, for the purposes of verifying whether the French legal framework only reproduces solutions already tested or whether it is innovative with respect to such models. This study highlights the introduction of innovative solutions through which price reduction is achieved. Whilst price reduction is usually ordered by the court, following a claim by the non-breaching creditor, under the French model the price reduction remedy does not require the court’s intervention as it can be performed directly by the creditor: this is an automatic and not a court-based remedy. Secondly, the article also analyses whether the same outcome that is obtained through the automatic price reduction can also be achieved through the use of other legal instruments. This article focuses on a comparative law analysis with the common law system with respect to compensation for damages under English law. With respect to the civil law models, the article examines the Italian model in which parties generally resort to actions for compensation and the exception of partial breach.

5. Contract IV: discharge of contract and remedies for breach

2019 ◽  
pp. 67-80
Author(s):  
James Marson ◽  
Katy Ferris
Keyword(s):  
Common Law ◽  
Contract Law ◽  
Law Reform ◽  
Breach Of Contract ◽  
Essential Information ◽  
Specific Performance ◽  
The Common ◽  
The Law ◽  
Contractual Obligations

Each Concentrate revision guide is packed with essential information, key cases, revision tips, exam Q&As, and more. Concentrates show you what to expect in a law exam, what examiners are looking for and how to achieve extra marks. This chapter focuses on contract law. It discusses the discharge of contracts and the remedies for breach of contract where one of the parties has failed in their contractual obligations. Contracts can be discharged through performance, agreement, frustration, or breach. In the event of frustration, the parties can establish their own remedies or they can rely on the provisions developed through the Law Reform (Frustrated Contracts) Act 1943. Remedies have been established through the common law and equity. Damages are the primary remedy in most cases, but equitable remedies include specific performance, injunctions, and rectification.

11. Damages

2019 ◽  
pp. 174-190
Author(s):  
James Devenney
Keyword(s):  
Common Law ◽  
Great Emphasis ◽  
Breach Of Contract ◽  
Specific Performance ◽  
Questions And Answers ◽  
The Common

The Concentrate Questions and Answers series offers the best preparation for tackling exam questions. Each book includes typical questions, answer plans and suggested answers, author commentary and other features. The common law places great emphasis on damages as the primary remedy for breach of contract, reinforced by the fact that although a victim of a breach may seek specific performance or an injunction, such orders are equitable in nature and therefore discretionary. In claiming damages, the victim of a breach will need to establish that: the claimed method for assessing damages is appropriate (measure); the damages are not too remote (remoteness); if relevant, compensation for inconvenience and/or disappointment caused by the breach is recoverable (non-pecuniary losses); the losses could not have been reasonably mitigated (mitigation); and the recoverable losses have been properly quantified (quantification). Separately, the validity of any agreed damages clause will need to be determined.

Is Style of Reasoning a Fundamental Difference Between the Common Law and the Civil Law?

2017 ◽  
Vol 17 (2) ◽  
pp. 238-290
Author(s):  
Colm Peter McGrath ◽  
◽  
Helmut Koziol ◽  
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Fundamental Difference ◽  
The Common
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