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.

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.

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.

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.

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

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 Dividend Smoothing and Investor Protection

2019 ◽  
Vol 22 (2) ◽  
pp. 55-70
Author(s):  
Ante Džidić ◽  
Silvije Orsag
Keyword(s):  
United States ◽  
Common Law ◽  
Investor Protection ◽  
Civil Law ◽  
Legal Origin ◽  
Agency Model ◽  
Dividend Smoothing ◽  
Widespread Phenomenon ◽  
The Common ◽  
The Difference

Abstract This paper examines the agency model of dividends where the importance of dividends depends on the level of investor protection. The importance of dividends is presented by the dividend smoothing concept, while the level of investor protection is determined by the legal origin. Within this, the sensitivity of dividends to earnings changes was analyzed to examine the universality of the dividend smoothing phenomenon. Subsequently, the difference in proportions of dividend smoothing firms within the common law and civil law countries was tested to determine which of these two systems attributes more importance to dividends. Finally, the application of Lintner’s model was examined in transition countries as well as in United States. Research results show that dividend smoothing is a globally widespread phenomenon, but the likelihood to reduce or cut dividends is greater in civil law countries. Also, the largest percentage of dividend smoothing firms was recorded in common law countries.

Formation of Contract and Stipulations for Third Parties in Indonesia

2018 ◽  
Author(s):  
Gary F Bell
Keyword(s):  
The Netherlands ◽  
Common Law ◽  
Civil Law ◽  
Essential Element ◽  
Contract Law ◽  
Third Parties ◽  
Legal Tradition ◽  
The World ◽  
The Common ◽  
The Law

Indonesia is one of the most legally diverse and complex countries in the world. It practises legal pluralism with three types of contract law in force: adat (customary) contract laws, Islamic contract laws (mostly concerning banking), and the European civil law of contract, transplanted from the Netherlands in 1847, found mainly in the Civil Code (Kitab Undang-Undang Hukum Perdata). This chapter focuses on European civil law as it is the law used for the majority of commercial transactions. The civil law of contract is not well developed and there is a paucity of indigenous doctrine and jurisprudence, since most significant commercial disputes are settled by arbitration. The contours of the law are consistent with the French/Dutch legal tradition. In the formation of contracts, the subjective intention of the parties plays a greater role than in the common law. As with most jurisdictions with a Napoleonic tradition, the offer must include all the essential element of the contract, there is no concept of ‘invitations to treat’ or of ‘consideration’, the common law posting rule is rejected, and the contract is formed only when the acceptance is received. There are generally few requirements of form but some contracts must be in writing and some in a notarial deed.

THE THOUGHTS ON THE DIFFERENCES IN THE CONTRACT LAW TRADITIONS IN THE COMMON LAW AND THE CIVIL LAW LEGAL SYSTEMS

2021 ◽  
Vol 21 (3) ◽  
pp. 108-116
Author(s):  
K.A. USACHEVA
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Legal Systems ◽  
The Common

The extent to which the contract law traditions in the common law systems really differs from those in the civil law ones is discussed in the article. Today, the existence of such differences is difficult to reject, but their modern description looks more like rough cartoon sketches, which do not take into account lots of additional factors. The article proposes considering this matter more carefully.

scholarly journals THE ISSUE OF VARIANCE IN TRANSLATION OF TERMS IN THE FIELD OF CRIMINALISTICS AND FORENSIC EXAMINATION

2021 ◽  
pp. 200-215
Author(s):  
T. Kryvak
Keyword(s):  
Beneficial Effect ◽  
Common Law ◽  
Civil Law ◽  
Professional Communication ◽  
Law System ◽  
Forensic Examination ◽  
English Speaking ◽  
The Common ◽  
The Difference ◽  
Civil Law System

The article deals with the features of translation of terms in the field of criminalistics and forensic examination and the issue of variance that arises in the process of translation. It is noted that variance in the translation of terms in the field of criminalistics and forensic examination is both a positive and a negative phenomenon. However, the emergence of variance, as practice shows, is a prerequisite for the acquisition of an exact and unambiguous equivalent in language, depending on the context. The article indicates that the translation of terminology in the field of criminalistics is of particular interest, since the language of law, as a language of professional communication, has a vivid national specificity, due to the legal realities of national legal systems. Therefore, in the case of translations from English into Ukrainian and from Ukrainian into English, one should take into account the difference between the common law system, which is applied in English-speaking countries, and the civil law system, which also includes the Ukrainian legal system. The lexical transformations that are used when translating terms are analyzed and the need to achieve the effect of meaningful and contextual identity when translating terms is determined. It is concluded that as criminalistics and forensic examination develop, there is a rethinking and transformation of existing terminological units. Moreover, international cooperation has a beneficial effect on the work of not only terminologists, but also criminologists and forensic experts, since the unification of terminology facilitates communication between specialists. Terminology serves as the basic conceptual apparatus for any field of knowledge, and forensic science is no exception.

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