The Position Of Specific Performance In The Remedy System Of Breach Of Contract

The purpose of remedy of contract law should make the promisee indifferent between performance and legal relief. Specific performance and damages are primary means of breach of contract remedies, but the sequence of application between specific performance and damage in two legal systems are different. This difference reflects different position of specific performance in the two legal system. How to position the specific performance in the remedy system of contract law if the value of specific performance is best used? Some people think that damages can replace specific performance, the most powerful support to replace specific performance is the theory of efficient breach. Is there a possibility that damages can replace the specific performance? Does the specific performance need to be located under the remedy system of contract law? How does legislation treat the relationship between specific performance and damages? This article is divided into three parts to analyze these questions.The first chapter of this article gives a brief introduction on the provisions of specific performance in two legal systems, and does a comparative analysis on the attitudes of two legal systems to specific performance. By comparative analysis, we found there are some differences in understanding specific performance. First, there exist some different understandings on the nature of liability of contract. Second, there exist some different understandings on whether the breach of contract deserves moral condemnation. Third, there exist different impacts on economic efficiency factors in two legal systems. These differences result in different effects of implementing specific performance in two legal systems. Under the common law, specific performance is an exceptional remedy, to be granted only if damages would not be adequate. Under the civil law systems, specific performance is always routinely granted, but there are still some differences in the same law system.The second chapter of this article has analyzed the necessity of specific performance in the remedy system of contract law. Efficient breach supports damages to replace specific performance, which push damages to the extreme. Is efficient breach perfect? By analyzing the disadvantages of efficient breach, we can see the existence of specific performance can not be replaced. Efficient breach theory has some shortcomings so that some situations can not be dealt with when the subject matter of the contract can not be replaced, when the performance benefits can not be accurately calculated, and when other costs can not be calculated. Efficient breach is not always the best effective allocation of resources. By analyzing the defects of damages, we can see specific performance is the most important way to protect the indifference principle of contract, and it has a kind of natural advantage compared to damage. Specific performance can be replaced by damages if the damages can attain the goal of fulfilling the interests of victims as same as the contract is performed, because the ultimate goal of breach of contract remedies is that remedies can make the promisee indifferent between performance and legal relief. But there are some circumstances damages is not a good solution, under these circumstances specific performance can not be replaced. First, subject matter as an equivalent of the breached contract can not be found from the market in all cases. So this moment can only be inferred damages by calculating the loss and the price of equivalent subject, so the victims are often unable to achieve its original purpose of concluding contracts. Second, specific performance can avoid the calculation of expectation interests of the creditor. Third, the contract law limits the scope of damages, so that damages can not completely replace specific performance. By the analysis of damages for breach of contract and efficient breach, we found that specific performance provides promisee with a more reliable remedy, that specific performance is more in line with the indifference principle than damages. Therefore, the specific performance is a necessary remedy of breach of contract.The third chapter of this article, we have analyzed the application and perfection of specific performance in remedy system of breach of contract. Author gives some suggestions to make up for the defects of specific performance.Firstly, by the concept and nature of specific performance, we can see that specific performance is a form of liability for breach of contract, rather than simply fulfill obligations of contract, and specific performance of our country must be depended on compelling force to ensure its implementation. Next, it is showed that the change of specific performance evolved from principles of specific performance to a kind of remedy, and article 107, 109, 110 on specific performance of contract law. It is can be seen from the analysis of specific performance which is closer to common law, the manner of application of specific performance is similar to common law, which allow breaching party the right of defense, but the applied scope of specific performance is limited more by the common law than ours'.Secondly, specific performance is not reasonable remedy measure under any circumstance, because the traditional specific performance has some shortcomings, which exist in the legislative, judicial, law enforcement stage. Above problems of specific performance originate from legal enforcement of specific performance, which brings about inevitably the serious judicial and law enforcement difficulties owing to legal enforcement. Second, specific performance is lack of clarity in the application of conditions, there are some conditions need to determine before grant specific performance so that lead to the application of specific performance are always associated with inefficiency. Promisee'right of asking for specific performance and legal enforcement result in some defects in the system of specific performance.Finally, author tried to expand the scope of damages which is a prior suitable to certain conditions of breach of contract, not only will this change be a better solution over the compulsory implementation of the traditional specific performance, but also improve the efficiency of market transactions. These conditions includes that performance interest is only an objective economic interest, alternatives exist in the market, practical channels for obtaining alternatives and victims will be compensated through damages sufficiently. Expanding the scope of application of damages, which allow the debtor to have the right of defense Contract is a kind of bargain which reflect the freedom of contract, the purpose of liability of breach is to remedy rather than punishment. After breaching contract, there would be no necessary for specific performance if the damages can save compensation for the loss. Expanding the scope of application of damages and giving priority to some situations that are successfully solved by damages. Based on the purpose of positioning reasonably the status of specific performance, author suggests that "creditor can not reasonably obtain alternatives from other channels" is written into the article 110 of contract law, which could make specific performance better in remedy system.