| The United Nations Convention on Contracts for the International Sale of Goods(CISG) is intended to establish uniformity and certainty in the law governing international sales. One of the most important goals of the CISG is to achieve such uniformity and certainty with regard to the remedies available to the parties to a contract. Specific performance is one remedy for contractual breach under the CISG .In general terms,specific performance means that "a party may require the other party to performance its obigations under the contract." However, specific performance is one of the most confused observations of the CISG. On the one hand,the CISG provides for specific performance as a primary remedy in the case of breach of contract in articles 46 and 62,which grant clients the rights to performance. On the other hand,such rights are limited through article 28 which allows courts to continue to apply their demostic law in regard to CISG governed matters. These provisions reflect the divergent perception as to the role of specific performance in contracts for the sale of goods between common law and civil law countries. Most civil law courts generally regards specific performance as a primary remedy,while most common law jurisdictions allow specific performance in exceptional circumstances.In accordance with the general principle of the binding character of the contract, the UNIDROIT Principles of International Commercial Contracts(2004,UNIDROIT Principles) also provides for a right to performance. This right applies not only to monetary obligations but also to non-monetary obligations,in the latter case ,though ,the right to require performance is restricted by several exceptions.The purppose of this paper is to discuss the importance of specific performance to clients by clarifying the remedy of specific performance provided by the CISG and the UNIDRIOT Principles.Chapter One deals with the different treatment of specific performance between common law and civil law systems. Under common law,the traditional rule is that specific performance may be granted only where damages would be inadequate. While under civil law,the general remedy for breach of a contract is specific performance,although it is subject to certain exceptions.Chapter Two examines the remedy framework of specific performance in both the CISG and the UNIDRIOT Principles. The CISG gives the right to require specific performance to both the seller and the buyer. Article 46 provides this right to the buyer under certain limitations and Article 62 provides the same right to the seller. As a compromise,Article 28 was introduced for the benefit of the common law countries where the primary remedy for non-performance is damages. In sharp contrast to the CISG,however,under the Principles specific performance is not a discretionary remedy. Off course it is true that the Principles expressly provides more exceptions to the general rule on the aggrieved party's right to require performance of non-monetary obligations.Chapter Three focuses on Article 28 of the CISG and the buyer's right to require the seller to repair or replacement of defective performance under the CISG. It is suggested that in order to promote the goal of uniformity of the CISG, Article 28 should be interpreted in accordance with the criteria provided in Article 7,namely that regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade. Based on the analysis of some cases,section two of this part proposes to show that establishing specific performance as a primary remedy is of importance to the buyer of some international contracts.Chapter Four gives some suggestions for the improvement of the specific performance rule in Chinese Contract Law. It is suggested that "liability for breach of contract" should be replaced by "remedies for breach of contract" and that more express rules should be provided with regard to exceptions for specific performance. |
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