Exploration Of The Application And Restrictive Conditions Of Specific Performance Research

As a kind of remedies for breach of contract， Specific performance isacknowledged in both Civil Law System and Common Law System. However, thereremains significant differences in the roles and scopes for specific performancebetween these two law systems. Generally speaking, the objects of specificperformance can be categorized into monetary obligation and non-monetaryobligation, this paper aims to address the problems of specific performance fornon-monetary obligation. Compared with money damages, the word “specific” meansthat the debtors fulfill the creditors’ specific interests by specific performance ofnon-monetary obligation. By comparing Civil Law System and Common Law System,this paper first summarizes the situations in which specific performance can beapplied similarly and differently. Then we review the relevant provisions about theinternational documents and analyze the inner reasons for the difference. We hope thisstudy can contribute to the improvement of our Chinese legal system.The first part deals with the concept of specific performance. Compared with thatof the Common Law System, the concept of specific performance is wider in the CivilLaw System. To lay a foundation for the comparative study, the paper defines specificperformance as follows: when one party of a contract does not fulfill the contract orthe fulfillment does not conform to the agreement, the other party is entitled to requestthe breaching party continue to perform the contract obligations rather than payliquidated damages or compensations.The second party focuses on the different roles and restrictive applications ofspecific performance in the Civil Law System and the Common Law System.Generally, in the Civil Law System, specific performance is taken as the primaryapproach for remedies. In contrast, in the Common Law System, specific performanceis applied as an supplementary remedy due to the relationship between equity law andthe common law. Although there are several distinctions, the majority situations ofapplication are the same. The differences mainly lie in the situation that whetherspecific performance should be restricted or not when the creditors can reasonablyobtain the performance elsewhere. Due to the distinct attitude towards efficientbreaching, the Civil Law System tends to support the affirmative answer while theCommon law System takes the negative answer. The third party analyses the relevant provisions in four international documents,CISG, PICC, PECL and DCFR. Among these documents, the CISG is endeavored tothe unification of the two law system with respect to the sales of goods. And the PICCand the PECL tend to restrict the application of specific performance when thecreditors can reasonably obtain the performance elsewhere. While the DCFR affirmsthe specific performance in the same situation.The fourth party mainly discusses the impact of the theory of efficient breach onthe specific performance. The reason why the two law systems have different attitudetowards the application of specific performance lies in their distinct comprehensionon the theory of efficient breach. And these distinct comprehensions is derived fromthe different understandings of contract, the relationship between default and moral,and the function of liability for breach contract in the two legal system. In this paper,in order to prove the rationality of the theory of efficient breach, we try to clarify therelations between efficient breach and the principle that the contract must be compliedstrictly, the principle of good faith. Finally, we can get the conclusion that when thecreditors can reasonably obtain the performance elsewhere, the application of specificperformance should be restricted.The last part introduces the application of specific performance in China.Because of the fuzzy expression of the law, practitioners and theorists usually havedifferent understanding about specific performance. Based on the arguments above all,this paper suggests that under the circumstances of market economy, the instrumentalvalue of contracts should be strengthened by contract law and we should accept thetheory of efficient breach. It is should be explicitly stipulated that when the creditorscan reasonably obtain the performance elsewhere, the application of specificperformance should be restricted.