The Burden of Loss as an Incident of the Right to the Specific Performance of a Contract

1901 ◽  
Vol 1 (1) ◽  
pp. 1
Author(s):  
William A. Keener
Keyword(s):  
Specific Performance ◽  
The Right

Introduction to Problems of Performance

2018 ◽  
Author(s):  
Melvin A. Eisenberg
Keyword(s):  
Contract Price ◽  
Contract Formation ◽  
Specific Performance ◽  
The Right ◽  
A Performance

This chapter provides an introduction to problems of performance, which for the most part concern post-contract formation issues, such as a promisee’s rights where the promisor has rendered a performance that is imperfect but substantial. Generally speaking, problems of performance concern sanctions for breach other than damages or specific performance, such as suspension of performance or termination of the contract by the aggrieved party. These sanctions are often much more severe than damages. For example, if a promisee has the right to terminate a contract the promisor may lose the profits she would have earned if the contract had continued in force, as well as the value, or at least the contract price, of the performance she rendered before the contract was terminated.

The Market

2021 ◽  
pp. 264-278
Author(s):  
Matthew Watson
Keyword(s):  
Eighteenth Century ◽  
Adam Smith ◽  
Daniel Defoe ◽  
The Self ◽  
Presentation Of Self ◽  
Market Institutions ◽  
Late Eighteenth Century ◽  
Specific Performance ◽  
The Right ◽  
Objective Existence

The market has no independent objective existence beyond the practices that are embedded within particular market institutions. Those practices, in turn, involve learning particular techniques of performance, on the assumption that each market environment rewards a corresponding type of market agency. However, the ability to reflect what might be supposed the right agential characteristics is not an instinct that is hardwired into us from birth. Instead it comes from perfecting the specific performance elements that allow people to recognize themselves as potentially competent actors in any given market context. This chapter takes the reader back to some of the earliest accounts of these performance elements, showing that important eighteenth-century debates about how to flourish as a market actor revolved around little else. In the early eighteenth century, Daniel Defoe emphasized the need for market actors to create convincing falsehoods, hiding their true feelings behind a presentation of self where customers’ whims were always catered to. In the late eighteenth century, Adam Smith was still wrestling with the dilemma of how genuinely the self could be put on display within market environments, believing that customers had a responsibility to curb excessive demands so that merchants’ interests could be respected. This meant not forcing them into knowingly false declarations, so that moral propriety and economic expedience were not necessarily antagonistic forces in the development of merchants’ character.

Termination for Breach of Contract

2020 ◽  
Author(s):  
Stannard John E ◽  
Capper David
Keyword(s):  
Final Section ◽  
Breach Of Contract ◽  
The Third ◽  
Specific Performance ◽  
The Subject ◽  
Key Topics ◽  
English Law ◽  
The Right ◽  
Legal Consequences

The aims of this book are to set out in detail the rules governing termination as a remedy for breach of contract in English law, to distil the very complex body of law on the subject to a clear set of principles, and to apply the law in a practical context. This book is divided into four parts. The first section sets out to analyse what is involved in termination and looks at some of the difficulties surrounding the topic, before going on to explain the evolution of the present law and its main principles. The second section provides a thorough analysis of the two key topics of breach and termination. The third section addresses the question when the right to terminate for breach arises. And the fourth and final section considers the consequences of the promisee's election whether to terminate or not. The final chapter examines the legal consequences of affirmation, once again both with regard to the promisee and the promisor, with particular emphasis on the extent of the promisee's right to enforce the performance of the contract by way of an action for an agreed sum or an action for specific performance.

Rescission and its Effect on Restitution

1984 ◽  
Vol 19 (3-4) ◽  
pp. 388-439 ◽  
Author(s):  
Sinai Deutch
Keyword(s):  
Civil Law ◽  
Third Parties ◽  
Specific Performance ◽  
The Law ◽  
The Right

Rescission is one of the most important activities in the law of contract. The right or the possibility to rescind is no less important than the right to specific performance or damages. Indeed, in many cases, when specific performance is either undesired or impossible, and no harm entitling damages has been caused, it will be the major right.Despite this importance, Israeli contract laws have left many questions regarding rescission open (e.g. the character of the rescission, its range, contents and results regarding both contracting parties and third parties). The silence of the Israeli legislature in these matters is typical of Israeli civil law legislation in which major areas of law are condensed into a few laconic provisions. This attitude leaves much room for construction of the statute and for judicial legislation.

17. The remedies of the buyer

2019 ◽  
pp. 419-469
Author(s):  
Eric Baskind ◽  
Greg Osborne ◽  
Lee Roach
Keyword(s):  
Consumer Rights ◽  
Specific Performance ◽  
Consumer Contracts ◽  
The Right

This chapter sets out the remedies available to the buyer under a contract of sale. Before the Sale and Supply of Goods to Consumers Regulations 2002, these remedies comprised damages for non-delivery of the contract goods, specific performance, and damages for breach of warranty. In cases of breach of condition, the buyer generally has the right to reject the goods and repudiate the contract. Since implementation of the 2002 Regulations, a buyer who deals as consumer has additional remedies of repair, replacement, reduction in price, or rescission. These additional consumer remedies are discussed after a consideration of the remedies that are available to all buyers, including consumers, beginning with those remedies granted to a buyer where the seller fails to deliver the goods, or fails to deliver on time. Certain consumer contracts entered into after 1 October 2015 are governed by the Consumer Rights Act 2015, which is also discussed.

2 Commentary on the Principle: Conditions of Application and Limitation

2020 ◽  
Author(s):  
El Far Ahmed
Keyword(s):  
Legal Protection ◽  
The Other ◽  
Specific Performance ◽  
The Right ◽  
Principal Elements ◽  
Legal Right

This chapter addresses the particulars of the principle of abuse of rights, articulating its conditions of application and shedding light on any concerns that may arise from its application. An examination of the principle’s application reveals that there is consensus among the different laws on the principal elements of abuse of rights. Precisely, the application of abuse of rights assumes the existence of an acknowledged legal right; and that such right ceases legal protection given that it has been abused by the right holder. Moreover, the act in question must have caused harm to the other party. The damage or loss sustained may be material or moral damages. Once a court is satisfied that an abuse is established, it will either award damages to the aggrieved party or grant specific 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.

Excepția de neexecutare a contractului și dreptul de retenție

2020 ◽  
Vol 2020 (2020) ◽  
pp. 129-185
Author(s):  
Flavius Antoniu BAIAS ◽  
◽  
Valentin CÎLȚEA ◽  
Keyword(s):  
Detailed Analysis ◽  
Comparative Law ◽  
Civil Code ◽  
Application Domain ◽  
Legal Institutions ◽  
Breach Of Contract ◽  
Special Effects ◽  
Judicial Practice ◽  
Specific Performance ◽  
The Right

"This study contains a detailed analysis of the Defense of refusal to perform and the Right of retention in the current Civil Code, with reference to the practice of the courts of law and to comparative law issues. Therefore, following the update of the two legal institutions, the present study mirrors the defense of refusal to perform with the right of retention (i.e. legal frame, notion, legal ground, characteristics, application domain, exercise’s conditions, operation’s mechanism, effects and transitional law). Following the examinations of the above-mentioned issues, both legal institutions are compared in order to outline the differences between them. By doing so, the article aims to settle the edge between these two means of judicial defense and to put an end to long debated controversies in the literature and judicial practice. Key-words: Civil Code; favor contractus; the rule of specific performance; the plea of breach of the contract/defense of refusal to perform/right to withhold performance of reciprocal obligation; right of retention; defense; statement of defense; counterclaim; synallagmatic contract; the special effects of synallagmatic contract; remedies for breach of contract; imperfect guarantee"

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