Performance
Meaning to
be ‘bound’ Civil law:
to a promises must Common law
contract?
be kept
creditor can go to court and the creditior is allowed to claim
force the debtor to perform monetary compensation where
in natura the debtor does not perform
(in case of common goods)
the creditor is allowed to contract as an economic
claim performance in any device: a contract is conlcuded
case to make a profit, it is just as
good to get the money value as
it is to obtain performance in
natura
Civil law: Performance as the routine remedy
1. General Contracting parties can claim performance: Exécution en nature, Erfullung,
nakoming
Germany
§241 (1) BGB
The creditor is entitled ‘to demand performance from the debtor’
France
Art. 1117 CC
Art. 1221 CC
A party can require the other ‘to perform in kind unless
performance is impossible’
Depends on the contract at what point such a claim for performance can
be brought
Example
If the parties have agreed that delivery is due on 1 May, it is only
from this day onward that performance can be claimed
Netherlands
Art. 3:296 BW (a procedural process to claim performance)
§271 (1) BGB and Art. 6:38 BW
Performance can then be demanded ‘immediately’, which means
that the debtor has as much time as he reasonably needs to carry
out his obligations (a similar rule is provided by Art. 7:102 PECL)
The performance must in general match what the parties agreed upon
Dutch law Multi Vastgoed v Nethou, 2001
Facts of the case
The tiles of the façade of a newly built office building showed
cosmetic defects through corrosion
Holding
, Allowed a claim for performance (the debtor had to replace the
tiles), even though the costs of replacement amounted to Fl. 6
million and the defects were hardly visible from the street
French law Piscine, 1984
French courts also used to allow a claim for performance in cases
where the creditor seemed to suffer only little harm or
inconvenience
The swimming pool was built with three instead of four steps, the
contractor could still be obliged to perform correctly
Belhadj v Les Batisseurs du Grand Delta, 2005
Facts of the case
A family house had been built that was 33 cm lower than agreed
upon
This did not make it unfit for its purpose and use
Holding (contrary to the reasonableness and fairness, might have been
decided to differently today)
The court allowed the claim to demolish and rebuild the house
Futile defect
Art. 1221 CC (practical impossibility)
Requires the court to deny a claim for performance if there is a
manifest disproportion between its cost to the debtor and its
interest for the creditor
§275 BGB (practical impossibility)
The debtor may refuse performance ‘to the extent that
performance requires expense of the obligation and the
requirements of good faith, is grossly disproportionate to the
interest in performance of the creditor’
2. The court will naturally deny the claim if performance is impossible
Impossibility Example
of If a house burns down the day before it has to be delivered to the
performanc buyer, it would be pointless for the court to order the seller to
e perform
It may be possible to bring a claim for damages or termination (if
the requirements for these claims are met), but performance is no
longer possible
Types of impossibility
Meaning to
be ‘bound’ Civil law:
to a promises must Common law
contract?
be kept
creditor can go to court and the creditior is allowed to claim
force the debtor to perform monetary compensation where
in natura the debtor does not perform
(in case of common goods)
the creditor is allowed to contract as an economic
claim performance in any device: a contract is conlcuded
case to make a profit, it is just as
good to get the money value as
it is to obtain performance in
natura
Civil law: Performance as the routine remedy
1. General Contracting parties can claim performance: Exécution en nature, Erfullung,
nakoming
Germany
§241 (1) BGB
The creditor is entitled ‘to demand performance from the debtor’
France
Art. 1117 CC
Art. 1221 CC
A party can require the other ‘to perform in kind unless
performance is impossible’
Depends on the contract at what point such a claim for performance can
be brought
Example
If the parties have agreed that delivery is due on 1 May, it is only
from this day onward that performance can be claimed
Netherlands
Art. 3:296 BW (a procedural process to claim performance)
§271 (1) BGB and Art. 6:38 BW
Performance can then be demanded ‘immediately’, which means
that the debtor has as much time as he reasonably needs to carry
out his obligations (a similar rule is provided by Art. 7:102 PECL)
The performance must in general match what the parties agreed upon
Dutch law Multi Vastgoed v Nethou, 2001
Facts of the case
The tiles of the façade of a newly built office building showed
cosmetic defects through corrosion
Holding
, Allowed a claim for performance (the debtor had to replace the
tiles), even though the costs of replacement amounted to Fl. 6
million and the defects were hardly visible from the street
French law Piscine, 1984
French courts also used to allow a claim for performance in cases
where the creditor seemed to suffer only little harm or
inconvenience
The swimming pool was built with three instead of four steps, the
contractor could still be obliged to perform correctly
Belhadj v Les Batisseurs du Grand Delta, 2005
Facts of the case
A family house had been built that was 33 cm lower than agreed
upon
This did not make it unfit for its purpose and use
Holding (contrary to the reasonableness and fairness, might have been
decided to differently today)
The court allowed the claim to demolish and rebuild the house
Futile defect
Art. 1221 CC (practical impossibility)
Requires the court to deny a claim for performance if there is a
manifest disproportion between its cost to the debtor and its
interest for the creditor
§275 BGB (practical impossibility)
The debtor may refuse performance ‘to the extent that
performance requires expense of the obligation and the
requirements of good faith, is grossly disproportionate to the
interest in performance of the creditor’
2. The court will naturally deny the claim if performance is impossible
Impossibility Example
of If a house burns down the day before it has to be delivered to the
performanc buyer, it would be pointless for the court to order the seller to
e perform
It may be possible to bring a claim for damages or termination (if
the requirements for these claims are met), but performance is no
longer possible
Types of impossibility
