Seminar Centre for the Study of European Contract Law

Towards a better defined Restriction on the Right to Specific Performance in European Contract Law

ABSTRACT

Different (European) Principle projects point towards a default rule that entitles the creditor with a prima facie right to specific performance (Draft Common Frame of Reference art. III.-3:302; Principles of European Contract Law art. 9:102; Unidroit Principles art. 7.2.2). These principle projects all contain a restriction on the right to enforced performance when performance is ‘unreasonably burdensome or expensive'. Although the comments on the projects do provide with some examples when performance is unreasonably burdensome, the expressions that are used to limit the scope of this remedy are intrinsically vague. Since it is not clear beforehand when performance is unreasonable burdensome or expensive, the broadly formulated exceptions pose a degree of legal uncertainty and may even jeopardize the primacy of specific performance in European contract law. In this presentation I will explore whether a well-defined standard can be used as an alternative for the openly formulated restriction clauses on the right to specific performance.