A Study On Specific Performance In Anglo And American Contract Law

The Specific Performance is one of the default remedies used by many countries in the world. Unlike the Specific Performance is used as the primary relief for breach of contract in the civil law system, under the Anglo-American contract law, the Specific Performance is one of the equitable remedies for breach of contract, is a subordinate and supplementary. Through economic analysis on the Specific Performance, we find that in many cases the Specific Performance is not an effective remedy.As a relief for breach of contract, the application of the Specific-Performance system of the Anglo-American contract law is restricted by many conditions including the positive conditions and restriction conditions. The positive conditions for the Specific Performance include: damages are not sufficient, the contract under which the Specific Performance is required is a mutual relationship, the contract can be fulfilled, and the content of contract is specific. The conditions restricting the application of the Specific Performance include: the contract has a personal factor, the continuing court supervision is needed, contrary to public policy, the defendant will be put in a very difficult situation, and the interests of third parties will be affected. The civil law system has clear statute base on the Specific Performance, while in Anglo-American law system many years of judicial practices have established a series of principles for the Specific Performance. Especially in some specific types of contracts including real estate-related contracts, construction contracts, personal service contracts as well as contracts for the sale of goods fixed treatment principles are formed.China's current legislation has established the Specific Performance, but there are still many shortcomings, such as: the vague positioning of the Specific Performance, the lack of provisions of positive elements of the Specific-Performance; unspecific and vague provisions of restrictions on the Specific Performance, non-operational. The analysis and summary the legislation and case related to the Specific Performance in major countries of Anglo-American legal systems, can provide references for the improvement of our country's Specific Performance. In particular, the Specific Performance of China can be improved by the following means: to re-position the Specific Performance as a supplementary and exceptional default remedy under contract law which only is applied in specific circumstances; to further clarify and refine positive and restrictive conditions for the application of the Specific Performance so as to increase its operability; to make special provisions for special contracts so as to form specific and fixed principles of treatment; and to refine the Specific Performance system by reference to the theory of efficiency from breach of contract.