Theory Of Actual Performance As The International Sales Of Goods Contract Default Remedies

As one of the remedies for breach of contract, specific performance exists in contract laws of many countries. Because of the difference in legal history and theory between continental legal system and Anglo-American legal system, specific performance has different roles in these two legal systems. Traditionally, the continental legal system values justice, in which a contract must be complied with. Accordingly, specific performance becomes the primary method of remedies for breach of contract. While the Anglo-American legal system treats specific performance as a supplementary remedy after damages, which means only when the amount of money paid to the requesting party is not enough to cover his loss, will the court approve specific performance.In the process of international sales of goods, remedies for breach of contract are important as well. Since parties to a contract usually locate in different countries, and the process of trade is complicated, in case one of the parties chooses an improper remedy, his interest may not be well protected. Though specific performance is also stipulated in CISG, great limitations also exist. Because goods involved in international trade are always replaceable, when facing breach of contract of the opposite party, the other party often chooses to resell the goods and claim damages toward the breaching party in consideration of efficiency instead of requesting specific performance. Thus, specific performance is barely used in the international trade as remedies for breach of contract.The Contract Law of China also stipulates specific performance, which is considered the primary method of undertaking liability for breach of contract in view of the sequence of the clauses. Such arrangement of clauses on one hand is influenced by the principle of specific performance which was a basic principle of contract law in the Soviet Union; On the other hand, it reflects the reference to the Principles of International Commercial Contracts (PICC). However, during the process of domestic trade, such problems as in the international trade also exist. In some events, requesting specific performance is not the best way to protect one’s interests.And even if the court approves specific performance during the international trade dispute, the execution of such judgment faces various kinds of problems. First, specific performance requires that the obligor conduct some behavior, while a court’s decision is not able to coerce someone to do something. Only when the obligor refuses to fulfill his obligation will the court cast punishment upon him. Such situation is not favorable for the party who requests specific performance. And after the process of international trade litigation, many trade conditions such as export and import license and quota would expire, which cannot be acquired again. Also, during this period of time, trading environment may change as well, which makes specific performance meaningless or even impossible for the parties.Therefore, specific performance may not be the best way to protect one’s interest when he is confronted with breach of contract during international trade, unless the goods bear special meaning to him. Choice of remedies shall be made with prudence for the benefit of the party.