Sebastian A.E. Martens
Jahrgang 76 (2012) / Heft 4, S. 705-731 (27)
18,90 € inkl. gesetzl. MwSt.
The Debtor's Right to Specific Performance The intricacies of specific performance and the differences between the common law and the civil law systems have been widely discussed. Yet, it is usually the creditor's right to specific performance and its limits that are in the focus of attention. There is not much research on the question whether the debtor may insist on performing even if the creditor no longer wants such performance. This article examines the different approaches of the English, French and German legal systems and that of the Draft Common Frame of Reference (DCFR) to this issue. It shows that all systems try to balance the interests of the creditor and the debtor. Generally, the contract is to be executed and the debtor may perform. However, if the creditor has a legitimate interest to stop performance and the debtor's interests can be satisfied by some sort of compensation, the debtor must accept such compensation and may not insist on performance. While the English legal system and the DCFR have developed general principles along these lines, the French and the German systems have casuistic solutions with special rules for each type of contract.