On the Enforcement of Specific Performance in Civil Law Countries

Abstract:Proponents of specific performance as a remedy for breach ofcontract have found support in the alleged use of the remedy inCivil Law countries. However, we provide evidence that specificperformance is in fact a rare remedy in Denmark, Germany andFrance, and under CISG, when performance requires actions to beundertaken, and we relate this to costs of enforcement. We arguethat it is administratively costly to run a system of enforcementthat renders specific performance attractive to the aggrieved party,and that the Civil Law countries have (like Common Law countries)chosen not to incur these costs of enforcement. This is especiallyclear in the case of Denmark, where specific performance of actionshas been abandoned as a legal remedy.At the normative level, we argue that enforcement costs providesan additional rationale, over and above the rationales of the theoryof efficient breach, for damages and against specific performanceas the general remedy.