Die Vertragstreue

Under German law, the sanctity of contracts ( pacta sunt servanda) consists of three elements: the binding force of contract, the principle of specific performance and the principle of good faith. Marc-Philippe Weller analyzes these elements and compares them to the sanctity of contracts in common law.
The sanctity of contracts does not benefit the creditor alone; it can also benefit the debtor. One of the theories advocated by the author is that according to German law the debtor has an (unenforceable) right to perform the contract specifically. The actionability of the creditor's primary right to specific performance in the German Civil Code can be traced back to Savigny and Windscheid. Thus the structure of claims under the German Civil Code differs from the structure of claims in common law, where a difference is made between the (non-actionable) primary right to performance and the (actionable) remedy of specific performance. This difference in the structure of claims explains some important differences in the design of the contractual legal framework in common law systems and in civil law systems as well.