A Comparative Study of Specifrc Performance Provisions in the United

Nations Convention on Contracts for the International Sale of Coods


By Nayiri Boghossian

institute of Comparative Law

McGill University

Montreal, Canada

November 1999

A thesis submitted to the Faculty of Graduate Studies and Research in partial fÙIfiIlrnent

of the requirements of the degree of Master of Laws

0 Nayiri Boghossian 1999 National Library Biblioth&que nationale 191 0r-a du Canada Acquisitions and Acquisitions et Bibliographie Services senrices bibliographiques 395 Wellington SWwt 395. nia Wellington ûiiawaON KlAûN4 ûüawaON KlAW Cuiada CaMda

The author has granted a non- L'auteur a accordé une licence non exclusive licence aiiowing the exclusive permettant à la Natiod Library of Canada to Bibliothèque nationale du Canada de reproduce, Ioan, distri'bute or sel1 reproduire, prêter, distn'buer ou copies of this thesis in microform, vendre des copies de cette thèse sous paper or electronic formats. la forme de microfiche/fiim, de reproduction sur papier ou sur format électronique.

The author retains ownershtp of the L'auteur conserve la propriété du copyright in this thesis. Neither the droit d'auteur qui protège cette thèse. thesis nor substantiai extracts îiom it Ni la thèse ni des extraits substantiels may be printed or otherwise de celle-ci ne doivent être imprnnés reproduced without the author's ou autrement reproduits sans son permission. autorisation. Ac knowledgments

First 1 would like to thank my supervisor, Professor Daniel Jutras, for al1 the heIp and guidance he offered me. I leamt a great deal from his invaluable ideas and suggestions.

1 am also gatehl to Albert Kritzer, the Executive Secretary. Institute of International

Commercial Law, Pace University School of Law for his comments.

I would like to express rny gratitude to Shervin Majlessi for his support and editing this thesis.

Finally, 1 would like to thank Professur Genvieve Saumier for her cooperation and the staff of the Law Library for their assistance.

1 will always be indebted to my parents for their unconditional support throughout the years of my studies, this thesis is dedicated to them. Abstract

The United Nations Convention on Contracts for the International Sale of Goods (CISG), adopted in April 11, 1980, is an attempt to unify mles of international trade. A large number of States that represent a vanety of legai systerns and of degrees of development have adhered to this Convention.

-4s a result of the divergence of approaches and desin these systems, several issues were debated during the negotiations, among others the remedy of specific performance.

This thesis examines the provisions regarding specific performance in the Convention in attempt to reveal the divergence of approaches between and by means of a comparative study of the two systems.

The purpose is to assess the extent to which uniformity is achieved in the Convention. The study shows that the solution adopted regarding specific performance was a compromise that threatens uniformity to a certain degree. La Convention de Vienne sur tes contrats de vente internationale de marchandises (CVTM), ratifiée le 11 avril 1980 est l'une des tentatives d'unification des droits nationaux dans le domaine du commerce international. Un grand nombre d'Etats qui représentent des systèmes juridiques variés et des niveaux de déveioppement differeats ont adhéré à cette Convention.

Au cours des négociations plusieurs sujets fiirent discutés. Des divergences entre Common Law et Civil Law appanirent, notamment quant au remède d'exécution en nature.

Cette dissertation examine les articles de la Convention qui règlent ce remède. Une étude comparée des règles des deux systêmes darifie la divergence. Cette dissertation a pour but d'évaluer cette tentative d'unification pour réveler si l'unification est achevée dans la Convention. L'étude montre que la solution adoptée en ce qui concerne l'exécution en nature est une sorte de compromis qui menace l'unification des droits nationaux. Table of Contents

RisumJ iii

Table of Contenrs iv



1-Cenerd introduction to the Convention 1-1 History of ivrgoriazions -4-Civil Lm-Common Law Debate B-East- West Debate C-Norrh-Soutlt Debate 1-2 General Features of the Convention

?Specilic Performance in the Convention 2-1 General Introducrion ro rhe Provisions Refated ro Specific Performance 2-2 Rm'cIe 46: Buyer 's Righi ro Compel Perf5rmance ,&The Right to Requtre Specific Performance

B- Recourse [O Inconsistent Remedies C-Rationale of drrtcie 46 D-Pamgraphs (2) and (3): Compeliing Delive- of Substtmte Goorls or Repatr E-.4ssessing the Article 2-3 Article 62: Seller's Right to Compel Performance .4 -Rurionale of -4nicle 62 B-.-îssessing rhr .-irriclr 2-4.4rticlr 28: Limitations on Specijic Performance .4-Mraning of .-irricle 28 B-Rurionale of.-îrricle 28 C-.4aessing .-îrricle 28


1-Meaning of the Term Specific Performance 1-1 Introduction 1-2 Specific Performance irr Common Law: The Uni/urm Commercial Code 1-3 Exécution en Nature in Civil Law: Articles 1l&lZ# in French il-.4rricle 1 143: Elinilnaring the Violanon ar the Erpense ofrhe Debror B-.-irricle II#: Peflormancr at the Erpense of rite Debtor 1-4 .Ifeaning of Specific Performance in the Convention

2-Primacy of the Remedy 2-1 Introduction 2-2 Specific Performance as a Seconder-Remedy in Common Law A-Hisroc: Developmenr of &qui& Cotrrrs B-Characrer of the Remedv a-E~ceptionai b-Discretionary C-Damages: The Primaq Remedv a-Inadequacy ofdamages b-Uniqueness D-Specifc Pe$onnance in the Unijonn Commercial Code a-Section 2-716 ofthe UCC b-Critickm ofthe Provision c-Seller's Right to Payment ofPiice: Section 2-709 2-3 Erécution en Nature as the Primary Remedy in Civif Law .4-Histo~y:Erécurion en ~Varurein Roman Law B-Characrer of the Remedv a-Prllriary b-A Right of the Plaintiff C-ErJcurion en Nature in the French Civrl Code: Rerieiv of-..frticles I 141-1 144 a-AnicIe 1142: Substitution of Performance by Damages b-Article 1143: Elimination at the Expense of the Debtor c-Article 1 144: Performance at the Expense of the Debtor D-Sprcific Perjïormance in Lmv 2-4 The Primary Remedy in rhe Convenrion .-!-The Prirnaq of Sprcrfic Performance rn the Convention B-..lssessing the Prinraq of Specific Performance Rule a-hportlince oFBuyer's Right to Specific Performance in International Sales b-[rnportance of Seller's Right to Specific Performance in InternationaI Sales c-Importance of Specific Performance for Developing Counmes C-..lpplicarion of the Rule a-interpretation c-Article 28 and Uniformity

CONCLUSION The importance of international transactions has increased in recent decades as result of the reduction of trade barriers and the globalization trend. Countnes have started to extend their relations with each other thus creating a situation of interdependence. This globalization trend requires elimination of obstacles to trade. One of such obstacles is the divergence of rules among legaI systems. which gives room to litigation thus increasing the costs for al1 parties.

A means to eliminate this obstacle is to unify rules regulating international transactions through international conventions to which many countries will adhere. The purpose of such conventions is to elirninate or at lem reduce ihe potential conflicts when an international transaction is concluded.'

The United Nations Convention on Contracts for the International Sale of Goods (CISG)' is an exarnple of this method of unification. ïhe Convention, which is the result of decades of work, tries to uni@ the rules that govern contracts for international sale of goods. Although the Convention has attained its purpose to a certain extent, it did not fuIly achieve it because the differences are so deeply rooted that it is sometimes very dificult to elirninate them.

I Although legal and econornic systems differ fiom a country to another, comrnon niles exist in the field of international commerce. The teason for this is that businesmen use the same techniques when canying out international transactions no rnaner whkh country they corne fmm. ïhis is achieved as mule of the kedom given for parties to stipulate the iem they want in their contracts These niles are based on usages of made and they are considered as the new Ler iidercaroria. When one admin the existence of nich niIes. the role of unification becornes Iess significant and some scholan question the necessity of unification. For Merdiscussion of this view see R.H. Graveson. 'The International Unification of Law" ( 1968) 16 Am J. Cornp. L. 4. Xeverthetess, the mie th unification plays is important because the niles developed through the pnctice of businesspeople may not be hown in countries that have entered the intemationat aade field only recently nich as east bloc and deveioping counmes. Furthermore, unified mies are more certain because they receive full recognition hmnational legislators. Lrnified rules and the LaMercatoria cm complement each other. See H.J., Berman, & C., Ka- "The Law of inremational Commercial Transactions (Lex Mercatoria)" (1978) 19 Harv-int'l. L. f. 721 at 275-277. United Nations Conventian on Contracts for the [ntemational Sale of Goods, Apr. 1 1, 1980. üN Doc. NCONF. 97/18, reprinted in (1980) 19 1.L.M. 671E;iereinafter the Convention]. Many issues were debated during the negotiations for the Convention. Among others was the remedy of specific performance. Remedies being an important issue in contracts and specific performance being the remedy that has raised much contmversy, it is interesting to examine this remedy. In order to reach a unified rule the divergence of the rules regulating specific performance in legal systerns should be exarnined and reasons for this difference be clarified.

The general purpose of al1 contract remedies is to place the aggrieved party in as good a position as he would have enjoyed had the other party perforrned his obligations rising from the contract. This means that al1 contract remedies seek to protect one's contractua1 rights. Specific performance is one of those remedies available to the aggieved Party, the purpose of which is to help the creditor obtain--as much as possible-the actual subject matter of his bargain. Specific performance means the execution of a contnct according to the precise terms agreed upon. But granting specific performance is not kee of' restrictions in al1 legal systems. Common Law and Civil Law have different approaches to this matter, a fact that rendered agreement on specific performance rules in the Convention a difficult matter.

This thesis includes in the first chapter an ovewiew of the Convention. After a brief look at the history of negotiations and the main features of the Convention, the provisions regulating specific performance will be examined. Each provision wiil be explained and its rationale reviewed and an assessrnent of it will be made. The second chapter deals with comparative issues regarding specific performance. That is the major differences between the two systems, which are reflected in the meaning of the term and the importance of the role that the remedy plays in each systern. The French Civil Code' will be studied as an exmpIe of Civil Law countries and the Uniform Commercial Code' as Cornmon Law representative.' The meaning of the term in these two Codes as well as the rules that regulate specific performance will be exarnined in detail. How these differences are

3 Co& Civil des Français (1804) Ah 1142-1 154 CS. ' [inifont Commercial Code. U.C.C. 4 2-716 (1978 version) 5 The French Civil Code is chosen in this snidy because of its being adopted by a grnt number of countnes in the world As for the Uniform Commercial Code, it is also a code that is adopted by a great number of States. reflected in the Convention will be clarified by the study of the meaning of the term and the primacy of specific performance in the rules of the Convention.

The purpose is to highlight the differences between Common Law and Civil Law in order to mess whether a unified rule was reached in this regard and propose certain amendments that help achieve better the purpose of unification. Chapter One: Specific Performance in a Bijuridical Context: the

Convention on Contracts for the International Sale of Goods

1-General Introduction Co the Convention

1-1 History of Negotiurions

International trade has increased substantively in recent decades and is no longer controlled by the few countries that have reached a certain degree of developrnent. Its mles are now set by countries with different degrees of deveiopment both econornicaliy and legally. This situation creates a very diverse IegaI framework for international transactions in which different legal systems are involved. The differences in concepts. legal techniques and procedures that exist arnong those systems are reflected in the mles that govem the transactions. These differences have turned out to constitute an obstacle to international trade. Many of the problems and conflicts that occur in international transactions are due to the differences in legal systerns. Having received their training within their national systems, jurists are often cornpleteiy unaware of the differences of concepts and terminology that exist between their own legal system and Foreign ones. The ignorance about other systems gives rise to misunderstandings and difficulties in prelirninary negotiations for a contract, which corne to the surface very clearly when the contract has to be executed-what one party interprets in a way the other party rnay interpret in a different way. Even if both parties use the same terminology they may still face this problem because some legal terms have different meanings in different systems. As a resuIt, conflicts occur and parties have recourse to litigation-a process that causes losses in rnoney and time for the parties involved."

L. Lafiiii F. Gevurtz & D. Campbell. eds., Stirvey of the Intenraiionai Safe of Gao& (Deventer. KIuwer, 1986) at 3. Trade of goods being one of the most cornmon activities in international [rade, countries have realized the importance of facilitating transactions in this field. In order to overcome the barriers raised by the divergence of legal systems, attempts to harmonize and uni& niles of international trade law have been made.

Efforts of unification started in the 1930's, launched by the Rome Institute for the Unification of Private Law (LINIDROIT). The Institute appointed a group of European scholars to draft a uniform law for the international sale of goods. The work of the group led to the creation of two conventions: the Unifom Law for the Intemationai Sale of Goods (ULIS)and the Unifonn Law on the formation of Contracts for the International Sale of Goods (ULF).' Cuuntries adopting these two conventions were mostly European.' This is not surprising given the fact that the scholars who prepared the drafls were hm continental Europe and civii law concepts prevailed in the conventians."

Creating an internationally accepted convention in the field of internationai trade required world-wide participation. In order CO pursue this goal, the United Nations Commission on International Trade Law (UNCITRAL) was estabLished in t966.'9e mission of this Commission is to prornote harmonization and unification of international trade law.

With the aim of creating a uniform law for international sale of goods on its mind, the Commission Cirst considered the possibility of prornoting a wider acceptance of the LILIS and ULF conventions. The response of govemments to this proposal was not positive. A working group was established with world-wide representation. Basing its work on ULIS and ULF, the efforts of the working group culrninated in a conference held in Vienna in 1980 to finalize the draft of a Convention on Contracts for the International Sale of Goods. Sixty-two States and eight intemationat organizations participated in the

ULIS and üLF, luly I. 1964.833 U.N.T.S. 107, L69.3 I.L.M. 854 (1964); P. Schlechtriem Lrniform Sales Lmv: The UN-Canvennonon Conmcrsfor the international Sale of Goods (Vienna: Manz, 1986) at 17. 3 Twenty-mo of the twenty-sewn signatories were Ewpean countrïcs. Developing and sociaiist couniries were not represented and therefore the GUS and ULF did not teceive my acceptance hmthese counuies. 9 5. Honnoid, Un@rm Law /or Inremarional Sales Under rite 1980 Unired Nations Corneniion, 2" ed. (Eloston: Kluwer. 1991) at 5. 10 This Commission is a represennave body with deiegates hmthirty-six states fiom ail regions of the wodd conference. After deliberations and some amendments the draft was approved on April 1 1, 1980."

It was not an easy task to create a convention that can be accepted by such a large number ofcountnes with different legal systems and divergent political and economic policies."

Negotiations, therefore. were not easy to conduct. CVhat makes reaching unitied mles even more difficult is the fact that participating delegates cany with them the conviction of their legal system being the best, and the expectation that concepts and techniques of their domestic law be embodied in the convention. When each delegate participates in the negotiations with this state of mind-expecting the international convention to resemble its oivn law-reaching a consensus becomes impossible. Even a compromise becomes dificult to achieve."

The degree to which States were ready to compromise was diverse. Those who have a powerful position in the field of international trade had less reasons to seek a compromise." The method of work adopted by the delegates was to seek pnctical solutions for different situations without letting the concepts and techniques of one system prevail in the Convention. l5

It is possible to categorize the divisions arnong negotiating parties into the following: CiviI Law-Comrnon Law, East-West and North-South conflict, each category raising a problem different fiom the other.'"

II Twenty-one counties signed the Convention by its deadline. September 30, 198 t and the Convention entered into force on lanuary 1, 1988. Sec P. Voken & P. Sarcevic, Inremurionul Sale 4 Gooh: Dubrovnik Lecnrres (New York: Oceana Publications. 1986) at 2-6. '' AM. Gm, "ReconciIiation of Legal Traditions in the CTN Convenùon on Contracts for the International sale of Goods" (1989) 23 Int Law. 443 at 480. " A, Kanorowska, Internarional Trad.convenrionr and Their Effectiveness: Present and Furure (Hague: Kiuwer, 1995) at 9. i1 Garro, supra note 12 ac 15 1. 15 This method was viewed by Civil Law delegates as being the Common Law approach of fmding solutions on 3 case-bytase bais rather than fomuia~gpredetermined mlts and then appIying hem to cases. See AM. btely, 'The Right to Require Performance in International Sales: Towards an uiterna~ooal[ntetpreration of the Viema Convention* ( 1988) 64 Wash. L. Rev. 607 at 609. Ib See geaeraiiy G. Eorsi. "A Propos the 1980 Vienna Convention on Contracts for International Sde of Goods" (1983) 3 1 AmL Comp. L. 333. -4-Civil LuwConinion Law Debare

The Convention represents a compromise between the two systems, reflecting sometimes concepts that are unique to one system and not the other." As result of the diversence between the hvo systems, several issues becarne debatable during the negotiations. These issues included: the rule of con~ideration'~proper to common law systems, the time of the formation of contract-whether it is the time in which the acceptance is sent or received", the irrevocability of an offe?, and the issue of the primary rernedy, which is specific performance in Civil Law and darnages in Common Law. Also price reduction as well as the notion of nuchfrisr-fixing an additional period of time for performance-were matters where the views differed greatly since these hvo notions were foreign to Common Law. The solutions adopted reflected the mles of both systems. In certain provisions the rules of Common Law prevailed while in others rules of the Civil Law. The method satisfying the parties From both systems was to adopt the mle of one system and add exceptions to it derived frorn the mles and concepts of the other system.

B-Easr- West Debare

The debate between eastern bloc and western bloc countries can be characterizeu as a debate between rigidity and flexibiiity. Socialist countries wanted to ensure security and foreseeabiiity while western systems opted for flexibility in contractual relations. The different views were reflected in the mles regarding the requirement of writing, which is a precondition for concluding a contract in planned economies and not in western legal systems. Requiring a contract to be wrinen ensures certainty for east bloc countries while

If The Convention does not adopt the division of contracts into commercial and non-commercial as is the alse in Civil Law systems. 1% This matter did not mise real connoveay because conuacts of saIe iue not gratuitous in any case. AIso because the issue of the vdidity of a contract is not covered by the Convention. l9 In Civil Law, an acceptance does not produce its effects until it rexhes the other parry while in Common Law acceptance produces its effect upon diiatch when it is sent by post and not by instantaneous means of communication. " In most Civil Law jurisdictions, an offer cannot be revoked for a reasonable period of cime dess the offeror indicates the opposite while rhïs is not the case in Cornmon Law where the offeror can rcvoke until the contract is concluded For further discussion of the binding force of an offer in cüfferent legal systems and the compromise solution reached in the Convention see S. Malik, "Offer RevocabIe or Errevocabie. Will An 16 of the Convention on Conmcts for the International Sale Ensure Unifomiity?" (1985) 25 Indian 1. uitl L 26. western countries view that condition as hindering fast conclusion of the contract. As a result of this difference in views, the Convention adopted the western approach but gave the option for countries that do not agree with it to exempt themselves hmthis rule.''

Another issue was the open price tenn that the socialist group opposed strongly because it does not fit with their predetennined economic planning. This was the view of some Civil Law systems too. In contrast, western countries and especially the US were in favor of open pnce contracts." The provisions of the Convention regarding this matter seem to permit the open price nile.'-'

The role of usages was also debatable. For western countries usages ensured flexibility, something that eastem countries seemed not to care about. Socialist countries suspectai that giving a role to trade usages in the convention will lead to uncenainty because these usages can differ greatly fiom a country to another." Usages are accepted as means of regulating the relation between the parties in the Conventi~n.~

One Iast issue that raised controveny between these two pups was the tom of acceptance. Socialist systems, require that acceptance be identical to the offer for the contract to be validly fonned. This nile, which is aIso shared by many western countries, is not applied in the US where the contract cm be forrned even when acceptance difers fiom offer unless it alters it materially. The Convention adopted the first point of view because it was supported by rnajority of the delegate~.'~Nevertheless, the second view is also accepted, since the Convention mentions that alterations cm be considered as acceptance as long as they are not "material"."

" J.D. Felthan 'The United Xations Convention on Contracts for the IntemationaI Sale of Go&" ( 1981) 1981 J. Bus, L. 346 at 350; See genenlly S. Bainbridge, Trade Usages in International Sale of Goads: An Analysis of the 1964 and 1980 Sales Conventions" (1984) 24 Va. J. Int'l L. 619. -77 - S.G. Zwart, "The New internationa1 Law of Sales: A Maniage Between SociaIist, 'Ihird Worid comrnoa and Civil Law Principles" (1988) 13 N-Car. l. int'l. L. &Con Reg. at 118. " The open price mle is permitted except where conîxary to an applicable domestic validity de. See AH. Ktiaer, Guide io Practical iippiications of the United Nations Convention on Connacts /or the International Sale of Goo& (Deventer: KIuwer Law and Taxation Publishers, 1989) at 157-159. " Feltharn, supra note 21 at 350. '5 Ibid. at 116-118. Ibid. at 352. " Pnce, payment, place and rime of delivery are examptes of issues that are material. C-North-SouthDebate

The difference in the levels of development and in the nature of economic activities between developed and developing countries gave rise to many confiicts during the ~egotiations.~in generai, developing countries try to get more advantageous conditions in negotiations on the international level. Their excuse is their weaker economic position and their intemai motivation is the suspicion of the intentions of developed countries.

One of the issues discussed was the time limit within which the buyer should give notification for non-codormity of goods. The lack of expertise in developing countries made those couutries demand a longer period of time and les harsh sanctions for failing to give notice. They were womed that a buyer hma developing country will not be able to discover the defects in a reasonable time and thus he will not be able to give notice to the other party in due time.?g

Another issue that Developing countnes opposed was suspension of performance and anticipatory breach by a party who betieves that the other is unabie to meet his promises. Developing countries wanted to ensure that the grounds for suspension be objective because they feared the abuse of power by a party hma developed country.'

Similar to east bloc countries, developing councn'es also opposed the application of usages. The reason was their conviction tbat trade usages reflect the interests of developed countries because these usages were estabIished by them. Opposing this view, developed countries gave a lot of importance to usages because bey provide flexibiiity and efficiency."

Devcloping counfries cqma dyr;iw materiai and agricultirral producto and impact technology and fmished goods. Developing colmtnts impon complcx machiucry and tbercforc it may be dificuit for a buyer hma developing country to discovcr the defects of the pmduct In addition to tbat, thcy usuaüy need help fmm foreign experts to test the rnachincry, which inay add to the dclay. 30 DtveIopmg counuies worried that a paqfrom a doreloped country rnay abuse his mnger position to modify the tmns of the contraa by requirhg assurance of performance hmthe othef Party, a rcquirement that will raise the costs of ptrfice. Sce Gam, supra note 12 at 469-476; G.S Brussel, "The 1980 United Nations Convention on Contracts hr the [ntematioaal Sale of Goods: A Lcgislative Study of the nonh-South Debatcs" (1993) 6 N. Y. uit'l L. Rev. 53 at 65-68; Set gmdyM.G. Smb,The Convention on IntexnationaI Sait of CbdqAnticipatory Rcpudiation Provision and Developing Countries" (1989) 38 O int'l & Comp. L. Q. 475. '' Gam, supra note 12 at 477. In al1 of the aforementioned situations, a settlement was reached, The views being very diverse, the solution adopted was always a compromise and not a solution to which al1 parties gave full consent. Nevertheless, compromises usually satisfy partially each participating party.

1-2 General Features of tire Convention

The Convention is drafted in a simple and clear manner. The fact that negotiators were from different legal backgrounds made it necessary to draft the Convention in a langage that is comprehensible to al1 parties. The need for clarity aises also fiom the fact that the convention is addressed not only to jurists but also or even mainly to businessmen.'' In this respect, the Convention differs fiom its ancestors ULIS and ULF, which were compiicated texts that included greater number of provision^.^'

The Convention applies to contracts for the sale of goods3' when parties have their places of business in states that are parties to the Convention or when the rules of private international law determine the law of a contracting state as the law appiicable to the tran~action.'~Nevertheless, parties to a contract have the right to exclude the application of the Convention.'"

The Convention rules regarding the formation of a contract require that the offer be sufficiently definite and indicate the intention to be bound?' As for acceptance, it may be communicated verbally or by conduct indicating a~sent.~'There are no requirements regarding the f~rm.'~

3' Voiken & Sarcevic. supra note 1 1 at 7. " The Convention combined the mles regarding the formation of contracts and niles of duties of parties which were separated fomerly in the two texts of üLIS and ULF. See F. Femri, "Uniform hterpremaon of the 190 Uniform Sales Law" (1994) 24 Ga I. int'l. & Comp. L. 183 at 195. 34 Contracts for the sale of goods for personal, famiiy or household use are not govemed by the Convention. Also contracts of services are not included. Certain issues are also excluded hmthe Convention scope such as validity of contract, the tiability of the seller for death or persona1 injury caused by the goods. 35 See Art. 1 of the Convention; L, LaNi F. Gevurtz & D. Campbell, supra note 6 at IO. See Art. 6 of the Convention; SchIechtriem, supra note 7 at 24. " Articles 14-17 of the Convention include the rules regardmg offer. 3s .kticIes 18-23 include the mies regarding acceptance. See ibid. at 48-56; See generaliy Stem. "A Pnctitioner's Guide to the United Nations Convention for the international Sale of Goods" ( 1983) 16 N. Y- U. J. Int'l. L. & Pol. 81. j9 Feltham, supm note 21 at 350. Obligations of both the seHer and the buyer as well as the remedies available to each of them are dealt with in Part III of the Convention. This part also contains rules regarding the passing of nsk and some general and common provisions to both seller and buyer.'"

Obligations of the seller include delivering goods that are in conformity with the contract and handing over the documents that transfer the property of the goods." The buyer's obligations are taking delivery and payrnent of price." The buyer should also examine the goods to verify their conformity and give notice of non-confomity to the seller within a reasonable period of time."

The remedies available for both the buyer and the seller are described in a unified scheme that is clear and easy to foll~w.~They reflect some Civil Law aspects.'' Their range is wider than what is available lrnder Common Law and some of these remedies are even foreign to Common Law.'" The issue of remedies is one of the fields in which the diversity of legal systerns is obvious."

The remedy that raised most controversy was specific performance. In Civil Law, specitic performance is the prirnary remedy while in Cornrnon Law the primacy is for damages. The Convention makes specific performance available to both the seller and the buyer. The provisions regarding this matter will be examined in detaii iater in this thesis. The other remedies available for the buyer include avoidance-which can be exercised in case of fundamenta1 breach and in the case of fixing an additional time for performance at the end of which the buyer has not performed, damages and price reduction."

As for the seller's remedies, they include requinng the buyer to perform by paying the price or taking ddivery, avoidance of contract when the breach is fùndamental and

ul Articles 25-88 govem these issues. See Homold, supra note 9 at 62-66. 41 See Art. 30 of die Convention; Feltham, supra note 21 ac 353. " ~eeAR 53 of the Convention. 43 L. Lafiri, F. Gewm & D. Campbell, supra note 6 at 14. LI Remedies avaiiable to buyer are mentioned in Amcle 45 and remedies zvailable to seller in Article 61. See W. Mapp & C. Nicolt, "The Vienna Convention on international Sale of Goods: Obligations under the contract and rernedies for breach" (1993) 1993 New Zealand L. L 3 16 at 3 ifl-319. 4s Rendering specific peerfarmance a right of boch the seIler and the buyer retïects the Civil Law aspect while the section regarding damages is based on Common Law rules. '" Reduction of prie is an example of remedies foreign to Common Law. I?L. Laî2i. F. Gewrtz & D. Campbell, supra note 6 at 14. damages. Similar to the buyer's right, the seller cm also fix an additional time for performance at the end of which he is free to avoid the contract."

The Convention includes certain provisions that are common to the obligations of both the seller and the buyer. These provisions deal with suspension of contract, avoidance before the date of performance, damages and exemptions.*"

Suspension of contract means that a party cm suspend the performance of his obligations if it becomes clear afier the contract is concluded that the other party will not perform a substantial part of his obligations." Anticipatory breach gives a party the right to avoid the contract if he detects that the other will commit a fundamental breach before the performance is exec~ted.~'

As for darnages. they include not only the compensation for the expenses incurred by a party but also the loss of profit. The amount of damages is limited by two conditions; foreseeability and mitigation. Foreseeability means that darnages may not exceed the loss that the party in breach foresaw or stiould have fore~een.~~The mitigation le imposes on the innocent party the duty to mitigate the 10~s.~'The right to receive interest is also available in addition to the right to da mage^.^'

The Convention also deals with situations in which a party is not able to perform due to rnatenal inability or when performance constitutes a heavy burden.'"

The last part of the Convention contains the final provisions according to which a State may formulate its reservations." A contracting State cm choose to exclude the

48 See generaIIy O. Gonzalez, "htemtional Sales Convention Remedies" (1984) 2 ht'l Tax & Bus. Law. 79. a9 Feltham, supra note 21 at 356; Mapp & NicoU, supra note 44 at 3 19. 50 See Articles 71-88; HonnoIdsupra note 9 at 483-553. '' Voiken 8: Sarcevic, supra note Il at 24I. '' Feltharn, supra note 21 at 358. 53 Schiechmem supra note 7 at 97. Y The buyer may do this through the purchse of %O& hma thÏrd party and the seller by rcselling the oods rejected by the buyer. 'See Art. 78 of the Conventio.: Feltham, supra note 21 a 359. '' lbid. See Ah 92 of the Conventioa application ofthe provisions regarding the formation of contract or those related to sale of goods.'"

-4fter having briefly exarnined the history and general provisions of the Convention one can notice that an agreement with this scope is difficult to achieve and the solutions adopted reflect the influence of different legal systems involved. The field of sale of goods and international tnde in general is a Field in which a uniforrn law cm be reached because of the similarity of business transactions camed out in different parts of the world.

The provisions regarding specific performance have been the target of debate in the negotiations and therefore it is exarnined in this thesis in order to highlight differences in concepts and techniques of the two systems and to demonstrate how a compromise was reached in the Convention.

2- Specific Performance in the Convention

2-1 General Iniroductiorr to the Provisions Related to Specific Performance

The Convention gives the right to require specific performance to both the seller and the buyer. Article 46 provides for this right to the buyer under certain limitations and Article 62 provides the same nght to the selIer. The Convention adopts the primacy of specific performance as a nile, therefore, one may think that Civil Law has prevailed with regard to this remedy. In fact, a compromise was reached in this matter as was the case in other provisions of the Convention. The middle ground reached is reflected in the adoption of Article 28. This acticle was introduced in the Convention for the purpose of satisQing Common Law countries where the prirnary rernedy for non-performance is damages and specific performance has a lirnited role. An aggrieved party can only have recourse to specific performance under certain conditions that will be examined later in this thesis. According to Article 28 a cous is not bound to grant specific performance unless it would do so under its own law in respect of similar contracts not governed by the Convention9

Schiechmem, supra note 7 at 111-1 13. 59 Gonzalez, supra note 48 at 96. 2-2 Article 16: Buyer's Right to Compel Performance

Article 46 deals with the situations in which a buyer cm have recourse to specific performance. It states that:

(1) The buyer may require performance by the seiler of his obligations unless the buyer has resorted to a remedy which is inconsistent with this requirement.

(2) If the goods do not conform with the conmcc. the buyer rnay require delivery of substitute goods only if the lack of conformity constitutes a fundamental breach of contract and a request for substitute goods is made either in conjunction with notice given under anicle 39 or within a reasonable time thereafter.

(3) If the goods do not conform with the contract, the buyer may require the seller to remedy the lack of conformity by repatr. unless this is unreasonable having regard to al1 the circumstances. A request for reparr mut be made either in conjunction with notice given under anicle 39 or within a reasonable time thereafter.

The text of this article is anaIyzed in the following sections:

-4-The Righr ru Reyztire Specific Performance

Specific performance is the pnmary remedy available in Article 46. Courts do not have the nght to refuse granting specific performance when the buyer claims it.* The Convention has certain provisions that demonstrate the priority given to specific performance even more clearly. The buyer, for example, has the right to fix an additional time for performance. Also, the seIIer has the right to cure before the contract is avoided- The seller's right to cure and the buyer's nght to fix an additional time are precluded onIy when the breach is fundamental. In this case, the buyer has the nght to avoid the contract without asking for specific pet5ormance.b'

@ A buyer can choose between damages and specific performance and he does not have to prove that he is unable to buy substitute goads in order to receive performance. 61 P. Schlechmem, Commenrac on the W Cornenrion on the Inremutional Sale of Goodr (CISG), 2* ed, (Oxford: Clarendon Press, 1988) at 376. B-Recourse io Iticotlsisienr Remetlies

The right to require performance is subject to the condition of not having recourse to other remedies that are inconsistent with it." Inconsistency aises when the buyer voids the contract because in doing so he releases the other party from his contractua1 obligations and he can no longer demand perf~rmance."~The other remedies inconsistent with specific performance are the reduction of price and damages-unless darnages are for late performance-because these rernedies and specific performance compensate for the same thing and it is not reasonable that the buyer receives compensation twice."> The buyer can require performance in both cases of non-delivery of goods or of documents that transfer the pr~perty.'~

C-Raiionale of Article 46

The Convention gives the right to require performance although this is not the primary remedy adopted by al1 Iegal systems and although there has been opposition to this provision." The reason for adopting this rule is that the contract being reached with the consensus of the two parties, each party is entitkd to receive exactly what he contracted for.n'

Another reason, which applies especially IO international sales is that a buyer in certain countries cannot find the goods ht contracted for in his local market or other markets to which he has access. Even when goods are available, it will be hard to find substitute goods with the same quantity and quaIity he had contracted for. The substitute goods may aIso be for an unreasonable price or rnay not be available within the required time lirnit.

'' This limitation to the right to specific performance is an expIicit one. There is also an implicit limitation which is the good faith requirement Specific performance wiII not be gmted when the buyer has asked for it in bad faith in order to cause hiudship to the seiler. 03 HonnoId, supra note 9 at 282. 64 J.M. Catalano. "More Fiction ttian Fact: 'The Perceived Differences in the Application of Specific Performance under the United Xations Convention on Contracts for the international Sale of Goods" (1997) 71 Tulane L. Rev. 1807 at 18 10. 65 Kastely. supra note 15 at 6 13. W During the negotiations, several deleptes supporteci the remedy of specific performance. The French delegate considered enforcing the contract as the essential remedy. The BeIgian delegate went even fier by considering specifïc performance as the fotmdation OPthe Convention. '' Delegates believed that law shouId not force a non-breacbg party to accept anythuig Iess than performance. In fact, this is exactly why a buyer wiii tum to the international market to procure hirnself with the needed goods.*

Another argument set forth by speci.6~performance promoters is that granting damages requires theto assess the amount and quantify the loss which wiii result in expenses and waste of time for parties, but this inconvenience appiies also in the case of gcanting specific performance since the buyer may have recourse to iitigation and rime and money wiil be wasted. The only diffefezlce wiii be that there will be no need to assess or quantify damaga.@

D-P aragraphs (2) and (3): Compelling Delivery of Substiîute Goods or Repair

Paragraph (2) of the article gives the buyer the right to require the deiivery of substitute goods when the goods delivered are not in conformity'" with the contract and this non- conformity constitutes a fundamental breach." Requiring delivery of substitute goods is one form of specific performance limited by the condition of the breach being fiindamental in addition to the conditions of not having recourse to inconsistent remedies and giving notice in a reasonable time.n When breach is not fundamentai, the buyer has recourse to repair, price reduction or damagesn

The right to require repair is provided for in paragraph (3). It is limited to situations where it is reasonable to repair with regard to the circumstances."

The reason why delivery of substitute goods is available oniy in case of fundamental breach is to avoid hardship to the seller, since the deiivery of certain goods and especialiy heavy machinery is very costly. The seller has to bear the costs of transporthg the new

9 KasteIy, supra notc 15 at 639. 69 btety, supra notc f 5 at 614-615. Goods are not m conformity when they are defcctive or when they do not have the qudities they are supposed to have according to the contract Ah, when they are of a type différent hmthat which is desmiin the contract. '' Brcach is considerrd to be fundammtai when the dissimilarity between the goods tendered and the tetms of the contract is of an important degree when judged objectivety. See S. Fitzgerald, "Rccent Development Relaiing ta CISG: CISG, Specüic Performance, and the Civil Law of Louisiana and Quebec" (1997) 16 J. L. & Corn. 291 at 5. The buycr cannot daim dtlivery of substinrte goods unies he is abk to remthe goods deiivdto i6e seliw, Schiechaian, supra note 61 at 38 1-382, Cbid at 377. 74 Catalane, supra notc 64 at 18 1 1. conforrning goods to the buyer and the costs of transporting the non-conforming soods back to his place of business. Or, he may resell the ncn-conforming ones, which will ais0 be dificult if he does not have the necessary network in that foreign market. Another burden may also rise when the delivered goods have perished as result of improper storage.-j For al1 these reasons it is unfair to put such a heavy burden on the seller when the non-conformity is not so important. Repair in similar cases wilI give satisfaction to the buyer without causing unnecessary hardship to the seller.

The same concem for not causing hardship to the seller is present in the provision regarding the right to repair. The buyer can require repair if it is reasonable to do so. This means that when repair by the seller is very onerous, the buyer cannot ciaim repair, especially that it may be possible for the buyer himself to do the re~air.-~[t is aIso not reasonable to require repair when its cost is higher than the costs of buying new goods. The reasonableness of the demand is judged according to the circumstances surrounding the contract and the conflicting interests of the parties.

Whenever the repair is not reasonable. the buyer will get damages or reduction in price. In both cases mentioned in paragraphs (2) and (3)' the notice of non-conformity must be - given within a certain time limit provided for in the Convention." The time limitation serves the interests of both parties, it is important for the buyer to receive the goods within a certain period of time at the end of which receiving the goods will have no meaning for him. As for the seller, he should be protected From being in constant threat of clairns."

The provisions of Article 46 reflect a concem for the respect of a contract. The buyer's right to require performance makes the seller respect more the agreement. This view reflects the Civil Law approach, which considers a contract as the law goveming the relation between the parties.

75 Schlechtriem supra note 61 at 377. 76 Hounold, supra note 9 at 364 7 ïhe time limit for giving a notice is explained in Article 39 of the Convention. The notice shouid be given within a reasonable the afier the buyer has discovered the non-confomity or ought to have diicovered it. In any case, the notice should be given within two years at the latest fiam the date in whicb the gaods were handed to the buyer. unless the goods were gwranteed for a different period of tirne. 7a Schlechcriea supra note 7 at 76. E-.4ssessïtig die Article

The availability of specific performance is questioned by some with regards to its effïciency. In rnany cases a buyer will not request specific performance because it is time consuming for hirn and he needs to receive the goods within a certain time limit, therefore it rnay be easier and faster to buy goods el~ewhere.~

On the other hand. it may not be possible for the buyer to find substitute goods with the same quantity and quality as required, especially in an international sale. A buyer will oRen tum to the international market because he can not find the goods in his local market. Another difficulty in finding sirnilar goods in the intemational market is that the buyer rnay not have access to other markets or he may not have the possibility to find other sellers. These two difficulties are especially true in the case of buyen frorn planned economies and developing countries where the availability of goods is lirnited and where access to other parts of the world is not casy. Getting in touch with the outside world in these countries is hindered by the underdevelopment of communication systerns and by the restrictions imposed by govements. Taking into considention these factors one will find specific performance beneficial for international sales. Besides, should not the interests of developing countries be even more protected in international conventions? The purpose of international conventions is to promote the weifare of countries through cooperation and common efforts. Developing countries need help from other countries more than developed ones and therefore in every international convention the situation of developing countries should be given enough consideration.

This is with regards to the practicai benefit of specific performance. As for its benefits in theory, one rnay argue that specific performance rnotivates the seller into respecting the agreement knowing that if he does not do so voluntariiy he rnay be compelled to do so because of the buyer's right to specific performance. Such a situation will reduce bad faith breaches.

79 In similar situations gmting damages is coosidered to be more efficient Damages permit the buyer to procure the goods ehewhere and receive compensation by the seiier. 2-3 Article 62: Seller's Right to Compel Performance

The Convention provides for the seller's right to specific performance too. Article 62 is drafied in an anaIogous way to article 46. It States that "[tlhe seller may require the buyer to pay the price, take delivery or perform his other obligations, unless the seller has resorted to a remedy which is inconsistent with this requirement".

According to this Article. the seller may force the buyer to perfom his obligations, which are primarily taking delivery and paying the price.'"

The rationale behind this provision is the same as in article 46: promoting respect for the agreement and giving adequate compensation. Darnages may take time to be assessed and they may not be adequate because they do not compensate for certain expenses the innocent party had to suffer. hother rationale in the case of the buyer's breach is the difticulty for the seller to dispose of the goods when the buyer refuses to take delivery."

Article 62 includes a provision similar to that of Article 46 about resorting to inconsistent remedies. The seller may not compel performance if he has chosen a rernedy inconsistent with specific performance. An inconsistent remedy in this case is avoidance."

In considering the right to compel payment of price as one type of specific performance. the Convention dilfers hmsome domestic laws. In certain systems the right to compel paying the price when the buyer has accepted the goods is a right to collect a debt and does not fa11 under the rules regulating specific performance. The Convention aiso differs hmcertain legal systems where the seller cannot force the buyer to accept the goods unless he is unable to resell them after reasonable effort.93The Convention gives the seller the right to compet acceptame without the aforementioned condition."

M) Homold. supra note 9 at 434. '' Kstely, supra note 15 at 614615. '' Fitzgerald. supra note 71 at 5; Catalano, supra note 64 at 1810. " This rule appltes in the Uniform Commercial Code. SI Honnold, supra mte 9 at 434436; Kritzer, supra note 23 at 419. The right of the seller to enforce performance eliminates the expenses of negotiating a substitute transaction in attempts to find another buyer, especially when the goods have reached the destination port and the buyer refuses to take delivery. In such a situation the seller rnay not be able to resell the goods in that market because of it being foreign to him. tt is also more cornpensatory than damages because it gives a seller exactly what he expected From the c~ntract.'~

On the other hand, forcing the buyer to perform rnay impose some burden on him. The refusa1 of the buyer to take delivery may be due to certain changes that have occurred in the market where he wants to sel1 the goods, which makes it either diCficuIt to sel1 or not profitable. In this case, he will suffer some losses in order to Save the seller's interestç. This is not entirely fair because the buyer is not responsible for the changes in the conditions of the market. The changes may not be predictable even for a prudent businessman. This is especially tme in countries where the economy is regulated strictly by the governent that rnay issue regdations limiting the price of selling to consumers, thus reducing the benefit margin for the party who has already made an international contract. Other regulations that rnay reduce the profits of the deal are regufations increasing the tariffs irnposed on imponed goods. In these circumstmces, it is unjust to compel the buyer to take delivery or pay the prie.

2-4 Article 28: Limitations on Speci'c Performance

As rnentioned earlier, the drafiers of the Convention tried to reconciie Civil and Common Law systems. This task becomes the most difficult when there is a major discrepancy between the desin a certain field and this was the case for specific performance.

The Civil Law approach prevailed in Articles 46 and 62 by making specific performance the primary remedy granted without the condition of adequacy of damages and without the courts having any discretion in granting it as is the case in Common Law countries, The notion of inadequacy of damages on which the system of specific performance is

" Fitzgerald, supra note 71 at 105. based in Cornmon Law does aot exist in Civii Law. Common Law's appmach to specific performance is based also on concems for ewnomic efficiency. It may be more efficient to try to find a substitute transaction &er than forcing the other party Ulto performance." Wevertheless, the victory of specific performance over other medies was not complete. The objections to specific performance emanathg hm delegates of Common Law couutries made it necessary to introduce into the Convention iimitations on specific performance based on îhe niles of domestic Iaws. This was achieved by adding Article 28 in the Conve~tion.~

A-Meaning of Article 28

Article 28 reads as follows:

ff, in accordance with the provisions of this Convention, one party is entitied to requke performance of any obligation by the 0thparty, a court is not band to enter a judgment for specific performance unlcss the court would do so under its own law in respect of similar contracts of sale not govemed by ihis ~onmtion?~

The language of the Article is not entirely ch.Therefore, one must start wiîh examining the terms that are ambiguou. These are "its own law" and "similar contract of sale not governed by this Convention". Also the tenn "specific performance" itself has different connotations depending on whether it is read by a Comrnon Law or a Civil Law jurisLa9

The phrase "its own lad' raises the question of whether the law rneant is the substantive law of the forum or its entire law incIuding ruIes of conElicts of law. Examinhg the purpose of the article rnakes it clear that what was rneant is the substantive taw of the forum. The purpose of the article is ta permit the court to preserve its domestic Iaw regarding specific performance by not forcing it to order specific performance when it is not available in domestic law. Interpreting "its own law" as meaning the des of confiict

SchiecbEricm, supra note 61 at 200. CI Gmo,supm note 12 at 458-459. In dic II78 Draft, it was pnmitted to a court not to gmt specifk performance dess it "could" do so under its m Iaw. This language forced a court to render spcciftc performance whentver its domestic law gave the court Lhc discrcrrcrcrron ta do it in domestic contracts. Thc United Kingdom objected that language because it wodd force a court to rendet speciîïc performance in many cases while the court wodd ody do so in ftw cases. Thenfore, the Unittd Kinghm pmposed changing "couid" mto "wouid" dius creating more chancc for ihe coum noc to grant spccific performance. Fitzgdd, supra note 71 at 7. of the court will make the law applicable that of a foreign country, which may grant freely specific performance. This will eliminate the chance of the court to preserve its national Iaws that do not grant specific performance. In doing so, the whole purpose of the Article will not be attained.""

The other purpose of Article 28 is to rivoid the problern that may anse when specific performance is claimed in a country the national laws of which have no mechanisms for enforcing specific performance. Therefore, by interpreting the term "its own law" as being the substantive law of the fomm the purpose of Article 28 is a~hieved.~'

As for the meaning of "similar contncts", the term embraces ail sale contracts that are outside the scope of the Convention. That includes the domestic contracts of sale and contracts between parties fiom countries not member to the Convention, excluding the contracts listed in Article 2 of the Convention."'

As for the term "specific performance", revealing the meaning of the term requires comparison of its meaning in the nvo systems and this will be done later in this thesis.

B-Rurionule of Article 28

It is evident that the reason for Article 28 to be included in the Convention was to satisfy Common Law countries." The Convention being the result of negotiations and compromises between the delegates of different counmes, it was necessary to make the provisions regarding specific performance more flexible. In order to preserve the tradition of Common Law countries and not force them to make a major change in their position

W S. Walt, "For Specifk Performance Linder the United Nations Sales Convention" (1991) 26 Ta. int'l. L. I. 2 11 at 2 18-219; Catalano. supra note 64 at 18 19; Honnold supra note 9 at 195. 91 Kastely, supra note 15 at 637-638; SchIechmem, supra note 61 at 205. " Article 2 includes sales of goods bought for personal, family or household use. unless the seller did not know of the purpose of buying. It also inchdes sales by auction. execution or authority of Iaw, sales of stocks, shares. investment securities, negotiable instruments or money. Sales of shps, vesseis. hovercraft or ailcraft and sales of electricity; Fitzgerald, supra note 71 at 8; Walt, supra note 90 at 220: CataIano, supm note 64 at 18 19. q3 There were two arguments presented by the US against the granting of specific performance. One was that the sanctions for violatïng the court order of specific performance are very severe in Cornmon Law. Corn have the right to imprison rhe defendant in addition to Unposing fuies. The other argument was that specific performance may cause ineficiency. The United Kingdom was also in favor for iimitïng the availabiIity of specific performance in the Convention. towards specific performance, a compromise solution was adupted in Articfe Especially that, as mentioned earlier, the issue of specific performance was a field of major differences behveen the nvo systems regarding its avaifability" and the mechanisms of enforcing it."

C-.-lssessingArticle 28

The purpose of the Convention is to create a uniform law for international sales and ensure that countries will apply the same rules to similar cases. Article 28 is therefore inconsistent with the aim of the Convention because it allows the application of different rules to a litigation, depending on the law of the forum,'" thus, impeding unification of law~.~~

In addition to hindering unification, the Article gives nse to uncertainties in the application of the Convention. The outcome of a litigation regarding remedies will depend on the laws of the forum.'"

On the other hand, one may argue that although the Convention does not impose the remedy of specific performance on domestic Iaws, it creates the chance to broaden the application of specific performance by giving a court the right to choose behveen applying the mies of domestic law and the rules of the Convention. Thus, even when the domestic iaw does not provide for specific performance in a certain case, the court may grant specific performance relying on the provisions of the Conventi~n.'~

Also, some argue that the cases in which specific performance is requested by parties to an international sale are cases where specific performance is granted in Cornmon Law systems too.'"

C;;irni, srpnote 12 at 459. 95 WaIt, supra note 90 at 218. * CataIano, supra note 64 at 1814; Kastely, supra note 15 at 625. 97 Some criticize Article 28 because they believe it gives mom for forum shopping. " Garro, supra note 12 at 459. 99 CamIano, supra note 64 at 18 15; Kasteiy, supra note 15 at 627. lmGonzalez, supra note 48 at 97; Kastely, supra note 15 at 638; Honnold supra note 9 at 273. 'Ot Schlechtriem, supra note 61 at 202. .4 true assessrnent of the effect that Article 28 has on uniformity can be done only after examining domestic rules of specific performance in Common and Civil Law jurisdictions. This will be done in the following chapter of this thesis. Chapter Two: Comparative Study of Specific Performance

1-Merning of the Term Specific Performance

Using the term "specific performance" in the Convention gives rise to a certain ambiguity as to its precise meaning. This uncertainty is not due to an unclear drafiing langage as much as it is due to divergence of concepts behveen legal systems. The confusion caused by using the term "specific performance" arises from its having different connotations in Civil Law and Common Law systems.

.hbiguities in international conventions may be resolved when drafters make some clarification about their intentions and the meaning they wanted the term to have. Unfortunately the drafters of the Convention did not state clearly what they meant by it, therefore clarifying the meaning requires a comparative analysis of what the term connotes in each system and an effort to reveaI what was exactly intended by the terni in the context of the Convention.

The meaning that the term specific performance has for a Common Law jurist is different From the meaning it has for a Civilian. Its equivatent in French Civit Code is eréclition en nattire and differences exist between the content of céczltion en nature and that of "specific performance", even though both terms represent the same type of remedy which makes contractual obligations enforced and protect the expectations of the parties.

1-2 Specific Performance in Common Law: The Uniform Commercial Code

When granting specific performance in Comrnon Law, the court addresses the order to the defendant to do specifically what he has promised, thus the order forces the defendant to perform himsetf the obligation. Not performing the order of the court is a contempt of court and it may be sanctioned by fines or imprisonment. There are no rules of executing at the expense of the debtor, as is the case in Civil Law systems."'? This difference makes the content of e-~éctrrionen rtature wider than that of specific performance.

Another distinction is that specific performance in Civil Law includes al1 kinds of obligations whether they are in the form of tnnsfemng property or in the form of doing a specific act-with certain limitations in the last case. Conversely, ordering the buyer to pay the price in Comrnon Law is not an order of specific performance."" AIso, requiring the seller to repair is not considered as specific performance while it is so in Civil Law and in the Convention. Examining the Uniform Commercial Code as an exarnple of Common Law jurisdictions helps understand these differences better.

The desrelating to specific performance in the Uniform Commercial Code are provided in section 1-716 of the Code. Paragraph (1) of this section gives the buyer the rijht to specific performance when the goods are unique. The order for specific performance is addressed to the seller. While paragraph (3) of the section states the right to replevin. which is an authorization to seize the goods and deliver them to the buyer, and is done by the shen ElM

The buyer has a right of replevin for goods identified to the contract if afier reasonable effort he is unable to effect cover for such goods or the circumstances reasonably indicate that such effort will be unavailing or if the goods have been shipped under reservation and satisfaction of the secunty interest in them has been made or tendered.

Replevin gives the buyer the means to recover the goods From the seller by way of seinire. This act of the third party-the sheriff-is not considered specific performance because the right to replevin is based on a property right and not on a contractual right. ïhis means that performance by third party is not part of ordering specific performance as is the case in Civil Law.'''

As for the seller's right to receive the price, it is govemed by section 2-709 of the UCC that states that:

'O' There are no rules that give the creditor the right to receive performance at the expense of the debtor but the resuIt obtained by a damages award resembles the resuIt of Civil Law niles that permit performance at the expense of the debtor. See HonoId, supra note 9 at 269. 103 KasteIy, supra note 15 at 633-634. IM HomoId, supra note 9 at 275. 'OS H. Greenberg, "Specific Performance Under Section 2-716 of the Uniform Commercial Code: "A More LiberaI Attitude" in the "Grand Style" (1982) 17 N.E. L. Rev. 321 at 324-325. (1) When the buyer fails to pay the pice as it becornes due the seller may recover. together with any incidenml damages under the next section, the price

(a) of goods accepted or of conforming goods iost or damaged within a cornrnercially reasonable time after risk of their Ioss has passed to the buyer; and

(b) of goods identified to the contract if the seller is unable after reasonable effort to resell them at a reasonable price or the circurnstances reasonably indicate that such effort will be unavailing.

The action for the price is not an action for specifk performance. The provisions relating to it are mentioned in a section different From the buyer's right for specific performance and the term "specific performance" is not mentioned in this section. This shows that the drafters of the UCC did not consider the seller's right to recover the price as specific performance and this is different form the Civil Law approach.

1-3 Exécution en Nature in Civil Law: Articles ll&lI& in French Civil Code

In Civil Law, an order of eréciition en natwe includes not only forcing the debtor to perform himself his obligations but also giving the creditor the right to receive performance at the expense of the debtor. This may only be possible when the personal participation of the debtor is not necessary for the performance of the obligation.'"

When a Civil Law court gives an order of exécution en nuttire, this means the plaintiff will receive what he is entitled to by the contract. Receiving performance does not necessarily mean execution by the defendant himself since there are several means for the court to enforce performance. It may be done by a third party-a sheriff-or by the defendant's act. The plaintiff can have the obligation carried out by executing it himself at the expense of the debtor.

Ereattion en nature is also wider in the sense that it is used to enforce obligations to do and to refiain, while obligations to retiain are enforced in Common Law by way of

'06 Fitzgedd supra note 71 at 7. prohibitory injunctions.'"' These differences in the content of the term crécrrtton en nature must be borne in mind when examining niles relating to it.'"'

Taking the French Civil Code as an example of Civil Law systerns, the difference becomes clear when exarnining Articles 1143 and 1144 of the Code. These two Articles state in a very clear language the nght of the creditor to execute the contract at the expense of the debtor.

A-.Article 1143: Elinlittuting the Violation ut the fipense of the Debtor

Article 1 143 deals with the case of the debtor who violated an obligation to reFrain.'@ The Article gives the innocent party the right to eliminate what the other party has done in breach of the contract at the latter's expense."" The Article reads as folIows:

:Vt;anmoim. le criancier a le droit de demander que ce qui aurait iti fui! par contravention u 1 'engagement soit ditmit; et il peul se faire uiuoriser a le ddnrire atlr &pem hl dibitair. sans prijtrdice cles dommages et intt;rt;rs.s'il j. u lieu.

When the debtor has acted in violation of the agreement, the creditor rnay ask the court the permission to destroy or eliminate what the debtor has done as infringement of his obligations."' This kind of enforcement does not require the participation of the debtor and it does not impose anything on his person because its coercion is indirect and its final effect on the debtor is merely financial. The debtor only has to pay for the expenses of the destruction,"'

B-Article 1144: Performance at the &pense of the Debtor

This Article applies to obligations to do. It may also apply to obligations to give. It States that:

107 J. Msnwaring, Les conrrau at 135. 108 L.L. Romero, "Specific Performance of Conlracts in Comparative Law: Some Preliminary Observantions" ( 1986) 27 C. de D. 785 at 788-790. t09 A. Btnabtnt. Droit civil; les obligations, 3d ed. (Park: Montchrestien, 199 1) at 364. "O Swiss Law bas a sirnilar provision that pemits the creditor to execute at the expense of the debtor. III An example of this situation is the closing down of a business that has been undertaken in violation of an agreement aot to compete. Set Y.J. Goldstein, L'est;cutionforcie en nature des obligations contractuelles (Lyon: Bosc, 1959) at 73; P. Wéry, L't~~icutionforcée en nahcte des obligations contractuelles non pécuniaires (Brussels: Kluwer, 1993) at 99-100. 'II C. Szladits, "The Concept of Specitic Performance in Civil Law" (1955) 4 Am I. Comp. L. 208 at 217; G., Marty. P., Raynaud & P.. ktaz Droit civil: les obligations 2& ed. (Paris Sirey, 1989) a&251. Le criancier peut aussi, en cm d 'ineir~curionGtre autorise a faire erL;cziter lui-m&ne l'obligation audipens du dibitrrir.

This Article ;ives the promisee the right to receive performance at the expense of the debt~r."~This can be done only when the cooperation of the debtor is not necessary.'14 The execution of the obligation rnay be perfomed by the creditor himself or by a third party such as a court official. The Article makes no distinction between obligations to do and obligations to give, which indicates that it applies to both."$ The court in such cases gives permission to the creditor to receive performance and the debtor pays the expenses. It may be possible for the creditor to receive an advanced payrnent from the debtor. The debtor here is only required to pay the expenses, which rneans that from his side the obligation resolves into the payment of a sum of money while fiom the creditor's side the obligation is perfomed."" An example of this situation is when the seller does not deliver goods that are generic and the creditor buys the goods elsewhere and then receives compensation frorn the debtor. When the obligation is to do a legal act such as transferring the property as resuit of a promise of sale, the judgment of the court constitutes a good title for the creditor.'"

When the obligation is to give, attachent of the chattei and handing it to the creditor will result in performance of the contract."' Nevertheless, when the obligation is to do an act that cannot be performed by a party other than the debtor, Article 1 144 cannot be applied because the participation of the debtor is required. This may be the case, for example, of a seller who manufactures the goods and has special skilIs in doing so or he uses speciaI material that may not be avaiiable to other seilers. In such a case, the debtor is forced into doing the act unless it requires coercion on his pe~son."~

Il3 Goldstein, Supra note 11 1 at 74. 'la German Civil Code has a similar provision. When the obligation is one that does not involve personal skills of the debtor and can be execu~edby a thxd party, the court rendea a judgment that gives the promisee the ri& to perform at the expense of the debtor. 11s Sdadits, supra note 112 at 217; Bembent, supra note 109 at 364; C. Larroumet, Droit civil: les obligations. le connat 4' ed., (Paris: Economica, 1998) at 58-59. 1 L6 A. Sériaux, Droit des obligations 2* ed., (Paris:Presses Universitaires de France, 1998) at 252. 117 B. Starck H-Roland & L. Bayer, Droit civil: fer obligations, contrat 6' ed. (Paris: Litec, 1998) at 572. Il8 Iestaz, Marty, Raynaud & supra note 1IL at 249; Bénabent, supra note 109 at 365. . . 119 The extent to which forcing a debtor to perfonn is pennissible wiil be explained Iater when exammg Article 1142 of the Code which Iimits the use ofcoercion on the person of the debtor. 2-4 Meurting of Specific Performaim in the Coriventim

When one wants to determine the meaning of a Iegal rem in an international convention such as the CISG, one should bear in mind that the terms are not used within the meaning they have in certain Iegai systems but that they have a meaning attribut& to them according ro the intentions of the Convention's drafiers.''' Therefore, in chriQing the meaning of specific performance. one musc reject the connotations of the term in dornestic laws and try to reveal the meaning of it as was intended in the Convention.'"

The Convention has provisions regarding its interpretation so chat uniform application of the Convention wiil be realized. it is not enough to establish uniform rules and incorporate them in an international convention. In order to achieve uniformity in rules arnong conrmcting States, it is necessary to apply the provisions of the Convention in a uniform way, This requires that parties to the Convention interpret the niles in the same manner. The draAers of the Convention were mare of the imponance of this issue. Therefore, niles and general principks for interpretation were included in the Convention. These rules give guidance to courts when appIying the provisions of the Convention.

The bigger the number of participating countries in a convention is, the more problematic becomes the issue of interpretation. Therefore, it is necessary to examine the provisions regarding interpretation in the CISG to be able to determine the rneaning of specific performance.'"

One of the principles for interpretation stated in the Convention is co take into consideration the international character of the Convention.13 This means that the terrns used in the Convention do not have the same meaning as they do in a national system, and some concepts cannot be explained under the principles of the domestic [aw because they

'3There are two opposing points of view rcgarding the înterpretation of international conventions. The first point of view is lhat when an international convenhon k adopted by the state it becomes part of the domestic law and therefore the mles and techniques uzed in interpreting the domestic law are zIso applied when interpreting the convention. The apposite view is that an international convention should bc interpreted independently- The Convention adopa explicitiy the second view. '" Kastely, supra note 15 at: 634. '" Ferrari. supra note 33 at 198. See Art 7 ofthe Convention; Felhm, supra note 21 at 349. rnay be alien to it."' In order to facilitate the interpreting process, one may look at the deliberations and negotiations that led to the final drafiing of the Convention. Preparatory materials deal with each article of the Convention and they may give imponant information about each provision regarding its purpose and rati~nale.'~Consulting foreign case Iaw rnay also help in achieving this p~rpose.'~

The term specific performance is used in Article 28 of the Convention and it refen to orden of performance addressed to the seller or the buyer. The preparatory materials of the CISG rnake it clear that the seller's action for the price is considered as specific performance although the term specific performance is not used in Article 62. Article 38 of the Convention, which puts limitations to the right to performance denved frorn the law of the forum, States that it applies to both Article 46 and Article 62 which deals with the selier's nght to compel performance. Also, a comrnentary of the Secretariat on Article 16 of ULIS, which is the predecessor of Article 28 mentions the seller's right to require the pnce as being a claim for specific performance."' This rneans that the action to recover the price is considered to be specific performance. Therefore, specific performance in the Convention includes any order compelling any of the parties to perform the contractual obligations.

As for the right to repair, paraagaph (3) of Article 46, which is the main article dealing with the buyer's right to compel performance, gives the buyer the right to daim repair when the goods are not conforming with the contract. This shows that repair is one way of specific performance, contrary to its character in Cornmon Law.'"

'" Femri, supra note 33 at 199-202; Kaczorowska, supra note 13 at 58. Cornmon Law and Civil Law have different approaches to the importance of prepmtory mterhls. It is a long estabtished practice in Civil Law counmes to refer to travau preparatoires when artemptuig ro understand ;t certain tegislation includiig international conventions. The situation is no&the same in Common Law, refeeg to ptepantory materiais ha become a pmctice ody recenciy especinlty in the üK. Nevertheless, this practice is being encouraged in both the US and the CIK. See Ferrari supra noie 33 at 207-208; Kaczorowska, ibid at 58. 126 See generally J. Homold, 'The Sales Convention in Action - Uniform hternationak Words: Uniforni A lication?" ( 1988) 8 1. L. & C. 207. '-.YP J. Honnold. Documentay Hirtoty of the Uniform Lrnvfir international Suies, (Deventer: Kluwer, 1989) at 417. '% Kastely, supra note 15 at 635. As for performing at the expense of the debtor, there are no rules in the Convention that provide for this arrangement, which means that the Civil Law approach in this matter is not adopted. When the non-conformity of the goods does not amount to fundamental breach and repair is not reasonable, the buyer has the right to damages or price reduction. He has no right for performing at the expense of the debtor.I3

From the previous discussion one may conclude that the rneaning of the term specific performance in Article 28 of the Convention has some connotations sirnilar to Civil Law and some connotations of the Common Law. Therefore, when applying the rules of specific performance, judges shouid bear in mind the scope of the term as is indicated in the Convention. t- Primacy of the Remedy

The importance of the role given to specific performance constitutes a major difference in the two systems. In Comrnon Law, the primary remedy is damages. This means that a court rnay only grant specific perfonnance when it is not possible to gant damages because of their being inadequate compensation. The court has also a discretionary power in granting specific performance. It is not a right of the plaintiff which he can claim but it is lefi to the court to decide whether to gant it or not.

The situation is entirely different in Civil Law. Contrary to Common Lw, darnages are only a secondary rernedy. The primary remedy being specific performance, the court has to gant it unless the circumstances give Rse to certain exceptions, A Civil Law court does not have a discretionary power over granting specific performance.

This divergence of approaches cm be explained to a great extent by historicaI reasons. Therefore, it is necessary to examine the historical deveIopment of specific performance rules in the two systems and how the differences are reflected in current legislation.

'" Schlechtriem supra note 7 at 76. 2-2 Spec~jZcPerformance as a Secondary Remedy in Common Law

=I-Hisroq-: Developrtienr of Epity Courts

When examining the rules of specific performance in Common Law, one should start with reviewing how Equity courts have developed because specitic performance was introduced into Common Law countries by these courts. Their main role was to alleviate hardship by offering remedies that were not available in law and that insure adequace compensation for the plaintiff. One could only have recourse to an equity court when the remedy available in law was not adequate.

Rules of equity came to complement the mles of law, which were formed in a general manner and did not give room for exceptions. The rigidity of rules of law had to be surmounted in order to apply full justice in society. This is where equity intervened and alieviated har~hness.~'"The complementary role of equity was ernbodied in the mie that "equity follows the law", equity could only interfere when the rules provided in law were not efficient in protecting a party's risht. It is only then that a court of equity could order specific performance to ensure the plaintiff gets full protection of his rights by receiving exactly what he was entitled to in the contract.

With time, a set of rules for granting specific performance was f~rmed'~'and separation between law and equity took place in the fourteenth century in England. Equity was applied by Courts of Chancery. In exercising his powers the Chancellor had recourse to the requirements of con~cience.'~' These requirements varied depending on the Chancellor's persona1 beliefs. Thus, it was exercised in a discretionary manner because mord values differ among indi~idua1s.l~~

130 RA. Newman, Equity and Law: a Comparative Smdv (New York: Oceana Publications, t96I) at 11; I., Wanwaring, supra note 107 at 134; T.H. Jackson, Ir., "Specific Performance of Contraas in LouisÏana" (1950) 21 Tul. L. Rw. 101 at 403. 131 Jackson, Ir.. ibid at 105406. 13' Szladits, supra note 112 at 209; David & Brierly. Mojor Legal Sytems IR the World Today 3d eb. (London: Stevens & Sons, 1985) at 324-326. 133 RA. Newman, Equity in the WorldS Legal Svstems: A Comparative Smdv (Btusseis: Etablissemenn Emiie Bmyhnt, 1973) at 211-212. A Chancellor would impose a behavior "consistent with the dictates of conscience". He would order the defendant to do a certain act that is conscientious. The act could only be executed by the defendant-in this respect, specific performance in Common Law differs from Civil Law where the purpose is to gant the defendant what he expects From the contract and this rnay be achieved without the participation of the pIaintiff.'" In forcing a defendant to do the required act, the equity court had recourse to irnpnsoment or fines.[3' The threat of imprisonrnent would coerce a reluctant defendant into performing his obligations but this mle changed with time because the notion of imprisoning for civil debts became unthinkable in modem societie~.'~"

3-Cliaracrer of the Remedv

As rnencioned earlier equity courts couId oniy interfere when the remedies in iaw were not adequate. therefore the remedies they granted acquired an exceptional character and this of course applies to specific performance. The exceptional charactcr of specific performance rnakes it a secondary remedy in Comrnon Law systems. This means that it can only be awarded when it is not possible to award the primary remedy, which is damages.I3' Thus, the main condition for granting specific performance is inadequacy of darnages. When damages do not compensate for the Ioss, the court may order specific performance. This condition will be examined later in detail. There are also some other conditions, which have a less important role. Nevertheless, they rnay bar the granting of specific performance.

One of the restrictions to specific performance is the case in which performance requires constant supervision by the court."8 This arises when the act required is continuous. The costs of ensuring performance in such a situation may outweigh the benefits that the piaintiff receives. Therefore, the court will not order specific performance because it will

'" Romero, supra note 108 at 798. Is5 Jackson Ir., supra note 130 at 404. 1% Romero. supra note 108 at 800-803; Szladits, supra note 112 at 212. 137 Szladits, ibid. at 210; Jackson, Sr., supra note 130 at 407. 138 Construction contracts are standard situations where continuous supervision of the court is UV. be too costIy to do so and it will result in waste of time and money.13' Another restriction is Iack of mutuality, which means that each party must have the rïght to get specific performance at the time the contract was concluded. The rationale behind this condition is to ensure that the defendant who is obliged to perform wiIl have the right to receive the counter-promise.""

One important limitation is when specific performance imposes restrictions on the personal fieedorn of the defendant."' But this problem does not aise in contracts of sale of goods."' Other situations in which Common Law courts do not gant specific performance include gratuitous promisest" and situations where the performance of the contnct is against public p~licy.'~Courts also refuse to gram specific performance when it causes hardship to the defendant or when there has been an unfair conduct by the ~laintiff."~

The discretionary character of specific performance is the result of its being created by courts of equity to satisfL the requirements of conscience. As mentioned earlier, the mlcs

"'ïhis attitude has been modifie4 courts are granting specific performance when certain conditions are met. These conditions are the cenalnty of the acts requircd, the plaintiff having an inrerest in the performance and that the defendant has acquircd through the contnct the land on which the construction will take place. See J. Berryrnan. 'The Specific Performance Dmages Continuum: An Historical Penpective" (1985)17 Ottawa L. Rev. 795 at 315; A.S. Burrows, "Specific Performance at the Cmsnoads" (1984)J Legal Studies IO2 at 107: J.P.. Dawson "Specific Performance in France and Germany" ( 1959) 57 Mich. L. Rev. 495 at 536. '* Dawson. tbiri. at 536. rat Romero. supra note 108 at 80 1. '"' This restriction pIays an important role in contracts for personal services where specific performance will result in the oppression of the debtor. The enforcement of similar contracts will cause the subordination of the defendant to the other party and it is unthhkable to encourage such subordination in present hes. In these cases, even when damages are not compensatory enough, the court wtiI not enforce the contract because respect for the individual's freedom outweighs the necessity to protect the other party's expectations. Enforcing conaacts of persona1 services also dimirbs peace in society. See Romero. supm note IO8 at 801. 143 Specific performance can onIy be granted when there is considention no matter what the value of the tonsidention is. See G. Jones & W. Goodhart, Specifc Perj&nnance,Z& ed. (Landon :Butterwoch, 1996) at 242.5. lu When the connct is illegai or immoral or against public policy, specific performance cannot be granted because enforcing such contracts may have detrimental consequences on society. The aegality or UnmoraIity of the connct is judged according to the niles of the country in which the contract Ïs to be erformed See Ibid. at 63. '"The court may climinate or add conditions to the performance if in doing so it aileviates ùardship. kr Ibid. at 112-1 18; .LA. Riest, "Hardship and Specific Performance" ( 1983) 134 New L. 1.927 at 927. of equity were based on the imperatives of conscience determined by the Chancellor. There was no set of rules or precedents established. Therefore, the conditions of granting specific perfomance differed depending on the befiefs of the Chancellor. He was not under the obIigation to gant specific performance whenever clairneci by the plaintiff, it was left to his discretion to do so. Nowadays, this discretionary character stiil exists but there are certain rules and precedents estabiished, which dari@ the conditions of granting specific performance,'* The degree of discretion in curent Iegisiation wiH be claritïed Iater when examining the rules of the Uniforrn Commercial Code.

C-Daniages: The Primury Remedv

Specific performance developed in Common Law as a result of the inadequacy of damages in cenain cases. The rule is that whenever damages are enough to compensate for the Ioss of the plaintiff there is no reason to gant specific perforrnmcç. Damages being the pnmary remedy, specific performance would be granted as an exception."'

The condition of adequacy of damages raises controversies as to the assessrnent of adequacy. Appreciating whether damages are adequate or not is done by the judge and criteria of adequacy di ffer arnong people depending on their pre ferences. There fore, whether damages are enough compensation or not is effected to a great extent by a subjective test and gives the judge a discretionary power in assessing the compensation. Such a situation creates uncenainties but ~hisissue was settled to a certain degree afier the Hadley v. Barendale" case, which laid down the nile of Iirniting the responsibility of the breaching party to the Iosses that are within the reasonable contemplation of the parties.'"

The reason why damages should be the primary rernedy is explaineci by a concern for &dom of contract. A party to a contract should not be forced to perform an obligation if he does not want to. He should have the ight to choose between performance and

'* David & Brierly, supm note 132 at 343. '" Rometo, supra nore 108 at 808. 'a Hadley v. Baxendde. [18541, 156 E.R 145 (Eu.CL); For a detailed discussion of dis case see A.G. Murphey, Ir., Tonsequential Damages in Conmcis for the international Sale of Gdand the Legacy of Hadley" (1989)23 Wash I. kt1 L. & Ecou 415. IJ9Becryman, supra note L39 at 307-3 LO. payrnent of damages. This concern for the freedom of contract makes any obtigation rising from the contract changeable to monetary compensati~n.'~~

The purpose of remedies is to compensate a party for his loss and when money cm do so, damages are the sole remedy avaitable. But damages are not always the adequate remedy.

When darnages are not enough compensation, specific performance is the adequate remedy.'" A contract for sale of land is a standard situation for specific performance."' [t is argued that each piece of land has its characteristics and the loss of that specifk piece cannot be compensated by darnages since it has a special value for the purchaser.'" This subjective value is respected bu& granting specific performance.15' As for sale of goods, damages are considered to be adequate compensation and there is no reason for granting specific perf~rmance.'~~Nevertheless, there is another criterion, the satisfaction ofwhich gives room for specific performance in sale of goods and that is uniqueness.

Whenever the thing contracted for is unique, specific performance should be granted because damages cannot My compensate since the thing contracted for cannot be purchased from another seller.

Another reason that makes uniqueness a case for granting specific performance is that the unique character makes it dificuit to assess damages.'"

The uniqueness condition is very closely comected to the condition of adequacy of damages because whenever a thing is unique damages are not adequate compensation.

'" Ibid. at 308. 151 J.N. Pomeroy & J-C. Marin, R Trearise on the Specifc Performance of Contracts 3". cd(Buffa10: William S. Hein Company, 1986) at 9; Comment, "Limitations on the Availability of Specific Performance" (1950) 17 U. Chi. L. Rev. 409 at 409-110 '52 Romero, supra note 108 at 800; Berryman. supra note 139 at 3 12. Is3 Sdadits. supra note 112 at 2 10. Is T.J. Muris, "The Costs of Freety Granting Specific Performance" (1982) 82 Duke L. J. IO53 at t056; See genenlly, A. Herschom, "Spedc Performance of Agreements for the &hase and Sale of Land" ( 1990) 12 Advocate's Q. 171. '" See Macdonald, E., The hdequacy of Adequacy: The Granting of Specific Performance" (1987) 38 N. hl. Leg. Q. 24at 248. h standard situation of uniqueness is the sale of works of art. A work or art is considered to be unique and damages are not enough to compensate. In addition to that, it is difficult to assess damages in such cases. The value of the work of art is difficult to measure, because there may not be simiIar objects in the market according to the value of which the thing contracted for may be assessed.'"

As for goods which are neither works of art nor have a unique character, the exception does not apply. There is no reason to ptspecific performance because they are FungibIe and the buyer can acquire the goods needed from another party and be compensated adequately with damages. Nevertheless, there may be situations in which the goods contracted for are not unique but it is very dificult or costly for the pIaintiff to buy the goods elsewhere. The difficulty to buy substitute goods gives the goods conrncted for a character of commercial uniqueness. This was the case in S@ Perroletrnl Ltd. V. YIP Petroletm Ld.'" Petroleum is not a unique good in normal circumstances but in this case it had become a rare good because there was not enough suppIy. The court enforced the performance of the sale of petroleum because of the circumstances sunounding the contract. which made it a commercially unique

Granting specific performance in cases of commercial uniqueness has aIso a rationale other than the inability to cover. In situations where the good becomes rare, it is not possible to assess the damages because the value of the thing contracted for cannot be determined in an accurate way. When one cannot measure the amount of damages, it is wiser to grant specific performance because it is more likely to be fair than damages in such circumstances, The Sky Petroleum Ltd- V. VIP Petroleum Ltd is a case in which the result achieved can be expIained by the difficulty of assessing the damages. It was explained on the grounds of commerciai uniqueness but it is obvious that the difficulty or even impossibility of assessing the damages also applies to this case. The same reason

The amount of damages wodd be uncertain and speculative in case of unique goo& aad this render damages inadequate compensation. '" Muris. supra note 154 at 1056; bianwaring, supra note 107 at 135. 15s Sky Peroleurn Lrd. v. VfPPetroleum Ltd. [I9741 1 W.L.R 576. Bumws, wpm note 139 ac 103. that rnakes the goods unique, which is their becoming a rare good, makes it also difficult to mess damages. lbl'

Xithough specific performance was first created as an exceptional rernedy and it still has that character, courts have pted specific performance in a wide range of cases whenever principles of faimess required them to do so. The liberalizing approach was also adopted by the legislator and the Uniform Commercial Code is an example of that approach.

D-Spec~ficPerformance in the Utrijorni Commercial Code

The Uniform Commercial Code (UCC) was enacted in order to promote uniformity of laws arnong the States and to keep up with the ernerging commercial practices by adopting rules that are fit for modem practices.'"' The Code is supposed to have a liberalizing effect by creating more roorn for granting specific performance and prornoting a Liberal attitude among courts. This attitude is clearly mentioned in the Officia1 Comment on the Code.'"'

[n Comrnon Law systems, specific performance is not granted in contracts for the sale of goods because the buyer can buy substitute goods in the market with the amount of damages he is granted, Damages rnay only be inadequate when it is not possible to find substitute goods and this occurs when the goods are of a unique character. This is why uniqueness has been introduced as a precondition for granting specific performance in contracts for the sale of goods. a-Section 2-71 6 of the UCC

Specific performance as a rernedy in contracts of sale of goods is rnentioned in section 2- 716(1) of the Code: "Specific performance rnay be decreed where the goods are unique or in other proper circumstances". This provision deals only with the buyer's right to enforce performance. Using ntay indicates that the party to the contract does not have the right to

'a) Szladits. supra note 112 at 2 IO. Ibl H.D. Gabriel The ioappticability of the United Nations Convention on the international Sale of Goods as a Mode1 for the Revision of article Two of the Uniform Commercial code" (1998) 72 Tul. L. Rev. 1995 at 1996: Comments, '"Specific Performance Ender Section 2-716 of the Uniform Commercial Code-What "Other Proper Circumstances'? (1971)33 U. Pitt. L. Rev. 243 at 251. choose specific performance, it is in the court's power to decide whether to grant specific performance. The discretionary power of the court, as mentioned earlier, is a characteristic of Common Law and was mentioned also in the Uniform Sales Act, which was enacted in the 1920's to regulate contracts for the sale of g~ods.'"~The scope of the discretionary power is extended in the UCC by using the term "other proper circumstances". The legislator has left to the courts to decide which are the circumstances in which specific performance would be a proper remedy.

The Code mentions uniqueness as an example of situations where specific performance may be granted.'"' The concept of uniqueness is of course not new in the Code. [t is an essential criterion for granting specific performance in Common Law systems.

Uniqueness has acquired a wide meaning when applied by the courts and the Code adopted this wide meaning, thus rendering this practice more certain and predictable. Goods are not only unique because they are so in their nature, they may become unique because of the surrounding circumstances.'" Coal was considered a unique sood when it became scarce in the market and thus specific performance of the contract was ganted.'" A court judges uniqueness based on the general situation in which the contract shall be performed. Thus goods which are not intrinsically unique may be considered so for the purposes of enforcing the contract.'" In 1959 a US court ordered specific performance of a contract of Franchise to sel1 bottled gas because obtaining a fkanchise in that field was not easily available in the rnarket.Ia Also, in 1946 it was ordered that a contract for the sate of a restaurant and mail liquor business be specifically enforced because the thing

'O' U.C.C. 2-7 16 Comment 1 ( 1978 version); See Greenberg, supra note 105 at 322-324. IO3 The Act gave the court the right to order specific performance when the goods art specific or ascemined if the court th& it is fit to do so. 1 M AT. Kronman, "Specific Performance" (1978)45 U. Chi. L. Rev. 351 at 355-365. le5 The cypical unique goods in Common Law were heuloom, works of an and antiques but a new wider meaning is introduced now accordhg to which ouput and cequirements contncu are considered ris unique when rhey involve a panicular source or market. lm Tmessrr Valley Auth. v. Mmin Coal. Inc., 384 F. Supp. 1107 (EB.Tem. 1974); See Gree~berg,supm note IO5 at 349. 167 The Comment of the Code clearly states that uniqueness shouId be judged according to the totat situation surrounding the contnct. By snting this rute. the Code incorporates whitt was practiced by courts for a long tirne. See Greenberg, supra note IO5 at 322. la Hogan v. rVorf7eet II3 So. 2d 437 (Ra. App. 1959). The judgment in this case was based on the provisions of the Unifonn Sales Act which was enacted in the 1920s. 'Ibis Act gave the court the ngbt to gmtspecific performance when the conmact includes the sale of specific or ascertaincd gaods. contracted for cannot be purchased in the market since obtaining a license for retaiI liquor business is not easily ac hie~able.'~'

What is meant by "proper circurnstances" are situations where it is left to the court's discrerion to decide granting specific performance based on the hcts of the case. These situations are judged on the basis of the difficulty to replace the goods. This rneans that "other proper circurnstances" include situations where it is not easy to fÏnd substitute soods in the market and where the Party asking for specific performance will have diffrcuities to ~over.'~In fact, the iriability to cover was a pre-condition for pting specific performance in earlier draftfts of the Code because it demonstrated that the soods contncted for are not readily available on the market. In 1948 when cars becamc scarce after WorId War II, a contract for the sale of a car was specifically enforced because a simiIar car was not readily avaiIabIe in the market.'?' Even a contract for the saIe of tobacco was enforced because of shortage of tobacco as result of the war.'" This requirement was changed later and inadequacy of damages becarne the prerequisite for yranting speciftc performance and uniqueness was introduced as an additionai reason for granting speci fic performan~e.'~~

In considering the difficulty to cover as a reason for granting specific performance, US courts have had two different positions. Some betieve that specific performance should be granted only when it is impossible to find substitute goods in the market while others, and this is the majority's view, gant specific performance when cover is merely difficult."' Situations that render cover difficult are normdiy situations where the good is scarce. This may occur when there is a shortage or a monopoly. In 1973 when the prices of Cotton increased greatly, the cowt ordered specifrc performance of the conmct because substitute goods could not be found."' Dificukty aiso inchdes situations where it is costly

lb9 Cochmne v. S-pakowski 49 A. 2d 692 (Pa Sup. CL 1946); See Comment, rupm note 16 1 at 246. 170 Canlano, rupra note 64 at 1825. "' Heidner v. Kewin Chevroh Co. 199 P. Zd 481 (Kan. Sup. CL 1948). 'r_ Girek v. Beer 33 N.Y.S. 2d 833 (App, Div. 1942); See Commeat, srcpra note 161 at 248. ln Greenbes supra note 105 at 329-33 1. 11Walt, supra note 90 at 226; CataIano, rupra note 64 at 1827. 175 Bolin Fgnnr v. Amen'can Conon Shippers Assn. 370 0- Supp. 1353 (W.D. La 1974); See Grewberg, supra note 105 at 344-345. to cover."" US Courts have granted specific performance in contracts for the supply of fuel when the price of fuel was rising because of the economic situation, which made it very costly to cover.'"

The degree to which it is possible to replace the goods is not the only factor that courts take into considention. The quality of substitute goods is also an issue. It may be possible to find goods of the same kind in the market but their quality may be inferior. In such a case. it is not fair to aivard damages instead of specific performance. There have been cases where the court has vted specifk performance because the quality of the replacing goods have been inferior.lTg

This shows that the criterion used in this provision is the ability to cover goods that correspond to the buyer's needs.ln When there is possibility to cover-and this may be done without real dificulties-darnagcs is the onIy remedy available. b-Criticism of the Provision

The L'CC provisions were criticized because of using the term "proper circumstances". which does not give a prectse description of the situations meant by the provision. The term was considered to be tao vague and unclear. It allows a judge to use it as a pretext for not finding proper circumstance in the case before hirn when he does not want to gant specific performance. This practice by courts will limit the granting of specific performance, thus giving a result contrary to what the drafiers of the Code had intended.18" There has also been criticism as to who is empowered to define these circumstances. These two criticisms ignore the fact that the legislator wanted to inmduce a liberal approach by leaving it to the courts to determine the proper situations, Giving an exhaustive list of the situations for granting specific performance will limit to a great extent the availability of specific performance. It is Iefl to the courts to judge whether granting specific performance is appropriate in the given circumstances. Uniqueness and

'" Walt, supra note 90 at 228. 177 Eastern Airlines, Inc. v. GulfOif Corp. 415 F. Supp. 429 (S.D. Ra 1975): See Gceenberg, supra note 105 at 347. la Copylease Corp. of America v. ibfemorer Corp 408 F. Supp. 758 (S.D.N.Y. 1976); See WaIt. supra note 90 at 225; CataIano, supra note 64 at 1828. 179 Greenberg, supra note 105 at 336. ''O Comment, supra note 161 at 250. ability to cover are the standards against which 'proper circurnstances" are determined. By doing so the Iegislator has introduced the flexibility necessary in judging commercial cases where the practices of commerce are constantly changing and require that legislation be adaptable to the modem pra~tices.'~' c-Seller's Rieht to Pavrnent of Price: Section 2-709

As for the seller's right to payment of price, which is the action for the pnce, it is governed by section 2-709 of the UCC that States that:

( 1) When the buyer fails to pay the price as it becornes due the seller may recover. together with any incidental damages under the next section. the pnce

(a) of goods accepted or of confonning goods lost or darnaged within a cornmercialIy reasonable tirne after risk of their loss has passed to the buyer: and

(b) of goods tdentified to the conmct if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will br unavailing.

This section enumerates in an eshaustive marner the situations in which a seller is entitled to the price. The seller has the right to receive the pnce when the goods are accepted and received by the buyer and when the goods perish afier the risk has passed to the buyer."' In the case of goods that are not delivered, the seller can require performance if he is unable to resell the goods after a reasonable effort or when it is indicated fiom the circumstances that efforts to resell will give no re~ult.'~'

The term specific performance is not used in the provisions regiuding the payment of the price. This reflects the fact that payment of price by the buyer is not considered as specific performance in Cornmon Law systems. The situation is different in Civil Law, where performance of the obligation to pay the price is ~~écririonen narure.

"' Greenberg, supra note 105 at 341. '" E.A. Peten, "Remedies for Breach of Contract ReIating to the SaIe of Goods under the Uniform Commercial Code: A Roadmap for AmcIe 2" (1963) 73 YaIe L. 1. 199 at 241. Honnold, supra note 9 at 275-276. 2-3 Exécution en Nature as the Primary Remedy iii Civil Law

-4-Histoy: Exécution en Nature iti Roman Law

The methods of enforcement in Roman Law were not sirnilai- to today's erécrrriori en nature. The creditor had the right to imprison his debtor and take him for enslavement and eventually kill him. This fom of enforcement was not coerced by the public authorities. It was a method Ieft to a creditor's wiII and represented one sort of self help that the creditor could have recouse to.lw

During the classical period, a creditor had the right to monetary compensation. The judgment of damages was entered by the praeror in obligations to do or to refrain and it would be executed on the property of the debtor.'" No judgments of specific performance were issued. A creditor would onIy receive damages as result of the non-performance of the obligation.'" Later, courts issued orders of scizurc, the chattel that should be delivered would be seized and handed to the creditor.

These foms which were regulated by Roman Law for the enforcernent of contractual obligations did not contain any fonof physicd restraints on the person of the debtor. An order of the court could be executed onIy on the property of the debtor.'''

The notion of cxéczition en nature ernerged later during the Middle Ages through the work of the comrnentators. By making their cornmentaries on the texts of Roman Law, cornmentators developed the idea of enforcing a contractual obligation on a debtor. In these commentaries, a distinction between obligations to do or not to do and obligations to give was drawn. This distinction according to Bartolus, who was one of the rnost important commentators, meant that when the obligation is one to give, it is possible to

II4 Jackson, Jr., supra note 130 at 407408. las Dawson. supra note 139 at 496. 196 There is a certain opposition to this view that States hat contracts of sale were specifically enfonted but this view is not supponed by the majority of scholarç. 187 There is evidence that during the past-classid peciod speciîic performance became an avaiIable remedy as result of the jurisdiction of ecciesiastid courts which considered the breach of a promise made under oath as a sin thus specific performance became the prirnary remedy in Canon Law. Later in lustinian's specific performance bmeavdable when the obtigation is to give. See Romero, supm note IO8 at 803-804; Jackson. Jr., supm note 130 at 408; G. Viavianos "Specific Performance in the Cid Law: enforce its performance but when it is an obligation to do or not to do, enforcement is not acceptable because it threatens the personal freedom of the debtor.'"

The distinction was adopted later by Pothier, the witings of whom in law of obligations had a great influence on the drafters of the French Law of obligations. This reasoning was embodied later in the famous mavim "Nento potesr praecise cogi ad facturn" which means that no one can be forced into a specific act.'" According to Pothier, obligations to give may be enforced by seizure. Obligations to do or not to do may not be enforced and the plaintiff receives darnages except in certain situations of obligations to refrain.'" This means that the maxim was rigidly applied in cases of obligations to do or not to do."' This notion was adopted by scholars in defending the personal freedom of the debtor from any attack and protecting him in person from vi~lence.'~'

The concem for the personal freedom of the debtor and the desire not to coerce any kind of violence against an individual is reflected in Article 1142 of the French Civil Code which wiit be examined later in detail.

B-Characrer of the Remedv

As rnentioned earlier, a distinction between obligations to do or not to do and obligations to give has been drawn in Civil Law. The purpose of the distinction is to respect the Freedom of person by not enforcing obligations to do or to refrain when it requires the use of direct coercion on the person of the debtor, In this kind of obligations the creditor has only a right to darnages, but this le does not make erécution en nature a secondary remedy because of the wide meaning the term has. Exécution en nature does not include only performance by the debtor himself but also receiving performance at the expense of the debtor. This rnakes performance achieved every tirne the creditor has received what

Mediating Between Inconsistent Principles Inherited hma Roman-CanonicaL Tradition via the French -4srreinre and the Québec hjunctionw(1993) 24 RG.D. 515 at 520-523. LBB Romero, supra note 108 at 805; Dawson. supra note 139 at 504; E., Massin De l'esicunon fircee des obligations defiaire ou de ne pasfare. (Park Libraires de la cour d'appel 1893) at 258. 189 Dawson, supra note 139 at 506. 190 Jackson, Jr., supra note 130 at 413. 19 1 Dawson, supra note 139 at 509. he was eepecting from the contract whether this was done by the debtor or not. The range of obligations eeecutable at the expense of the debtor being quite broad. e.r4ctrtiotr err ncirnre is attained in most of the cases. Thus it becomes the pnmary remedy in Civil Law and the court cannot gant damages when it is possible to perform the contract.19' Nevertheless, exictrrion en natrire is not so fieely available. Its availability is restncted by a number of limitations that ensure the proper application of this institution and the protection of the opposing interests of the parties. b- A Right of the Plaintiff

Contrary to the rules of specific performance in Common Law where the court has a discretionary power in granting performance, erécritiott en nullire is a right of the pIaintiff in Civil Law systems.

CVhenever the conditions of granting e~écrrcionen nattire are met, the court is under the duty of granting it without hriving any discretionary power in the matter,'" Nevertheless. there may be some circumstances in which the right to receive performance is restricted. [n judging these circumstances, the court exercises a certain discretionary power.

The first situation is the case of impossibility to perform. When it is possible to cany out the obligation, the court enforces performance. But there rnay be circumstances in which it is impossible to carry out the ~ontract."~In such cases, the court may refuse to enforce the contract and the plaintiff should be satisfied by an award of darnages.lN

Iq' Romero. supra note 108 at 806. 193 The specific performance being the primary remedy means in Germany that, in theory, the plaintiff cannot ask for damages when performance is possible. Nevenheless. the practice is different ui Swiss Iaw, the plaintiffs demand for damages is refused when specific performance is possible. But coum have created exceptions to this nile. they do not enforce performance in certain cases nich as the buyer's duty to accept the gwds. LW Szladits. supra note 112 at 217. 19' Massin, supra note 188 at 239. 1% The impossibility of performance shouId be clear from the circumst;inces in a way that the judge has no doubt about it being absolute irnpossibility. It is only afier being convinced by objective proofs that an order of performance will give no result that the judge can rehe granting exécution en naare. One of the situations that fdwithin the realm of impossibility is when performance will deprive a third Party from a right that he has acquired in good faith. Another situation in which it is impossible to enforce performance is when this cannot be achieved without exercising violence on the person of the debtor, Sec Sziadits, supra note 112 at 2163 W. leandidier. "L'exécution forcée des obligations conaactuelles de faire" (1976) Rev. TNiI Dr. Civ. 700 at 7 13-71 8. Another restriction to the right of receiving performance is when it is not conscionable or it is unfair to cany out the performance of the contract. In awarding any kind of a remedy, a court must weigh the interests of the two parties and gant the remedy that is the most fair for both parties. In the case of e.rémtion en narure, even if the plaintiff has the nght to receive performance, the court may refuse to enforce the contract when it will be unfair to do so. This rnay arise when enforcing the contract will result in oppressing the defendant."' It also arises when the benefits of enforcing the contract are outweighed by the detriment it causes to the defendant. In such a case, damages may be a more adequate remedy.

Granting performance may be unconscionable when the plaintiff dues not have a reaI interest in the pehrmance and damages may be enough for him.lm There is a notion of good faith that shouid be respected.lW This condition has as its purpose to alleviate hardship on the defendant. Thus, it is similar to Common Law niles about hardship in speci fic performance.

The aforementioned Limitations create room for the coun to exercise a discretionary power. But it is a narrow field since it is Iimited to the assessrnent ofthe impossibility of performance and in judging whether the performance is fair to the promisor.'"

C-Exécution en Nature in the French Civil Code: Review of Arricles ii4,I-i144

Jurisdictions bdonging to the Civil Law systern do not have the exact same niles regarding specific performance. Certain differences exist between those countries. Some have certain techniques of enforcement that are not familiar to the others, such as the case of the French rlstretnre.'D1the German Civil Code ensures respect for the court's

197 An example OPthis stmtion is when the costs of carrying out performance are very high. 190 SzIadirs. supra note I 13 at 216-217. This norion is stared in both Gcrnwi and Swiss Civil Codes. When granting performance is against the requirements of good hith the court witl oot enter a judgment of akçuion en narure. The court may also refuse granting spdcperformance whcn doing so witl affect the rights of a third

%e Arrreinre is a modcmnatioo m pay a of mncy foi each day of dehy in performance. Tbe mount is not fixed in advance, the court detennines an amaunt of money that is nkcn as the basis for masuring the artreinre. The more the performance k &iayed the more the debtor bas to pay, ihis coercion imposes a pressure on the will of the debtot but it bas as iis target the debtor7s assets. The mnernre represents an important means for ensuring akcurion en naîure, it k an efficient means of pressure because judgment of specific performance by means of fine or irnpri~onrnent.'~'Also, different notions and conditions for enforcement may exist such as good faith.

These differences are due to the variances of environment in which each systern has evolved. The rules in a country develop according to the general social and political philosophy of the society and draRers of a code try to adopt the solutions that suit best the society. Thus, the Iaw in each country reflects local beliefs and convictions and has a national characteri~tic.'~'

Nevertheless, there is also a geat deal of similarity. ïhe main concepts are the same and therefore exarnining the provisions that regulate exécurion en narttre in one system can help in understanding how this institution is organized in Civil Law in general.'"'

The provisions of the French Civil Code are chosen for this purpose because this Code has been adopted by a great number of countries in the world.

Erectrrion en nantre is regulated in articles 1142 to 1144 of the French Civil Code. a-Article 1 142: Substitution of Performance bv Dama~es

This Article States that: "[r]oute obligation de faire oli de ne pas faire se résout en dommages er inrérèts, en cas d 'ine.recltrion de la part du débiteur".

no matter how wealthy a debtor may be. his wealth cannot resist the augrnenting arnount of the astreinte. Nevenheless, the judge may reduce the mount to be paid to be proponionate with the ioss suffered by the plaintiff. in giving a judgrnent of astreinte. the court has a dismtionary power in determining the amount depending on the degree of wealth of the debror and also depending on his degree of refusal to perfonn Therefore. the asmeinte ha an arbitrary character. It has aiso a conuninatory character. it threatens the debtor for his rehisal to perform and it puts pressure on him, which gives it its coercive character. It is not a means of performance of the obligation. it is an indirect coercive method Nevenheless, it has been crïticized because it gives the creditor a sum that he does not desente. It enriches him at the expense of the debtor. Io' Jackson, Jr., supra note 130 at 418. "'Dawson, supra note 139 at 525; Romero. supra note 108 at 811. In Gerrnan Law, a contractual obiigation entitles the promiset to clah prrformmce, which is the normal right of a promisee. The principle niles is that whenever specifc performance is available, it is the only remedy that cm be pted and the promisee cmot clami damags. Damages wilI be granted when performance becomes impossible or when it would involve dispmportionate cos& or when the contract is for an anistic or intellectual work Courts have no dimetionary power in this matfer. Nevenheless, the pnctice is nther different In conmcts for saie of gaods a hi@ percentage of promisees prefer to receive damages and the courts grant them what they want. In Swiss Iaw, the rules are similar to the German hw but he creditor's right to specific performance is not stated clearly. The creditor cannot choase damages when specific performance is possible. In French Iaw, a distinction betiveen obligations to do or not to do and obligations to give exists. Thus, the enforcement of an obligation differs depending on its kind, Enforcing an obligation to give, which is an obligation to transfer the property, does not give nse to any difticulties. When the thing is detemined, ownership is transferred by the mere conclusion of the contra~t.'~~As for delivery of the goods contracted for, it may be done hmu& attachent executed by an oKciaI designated by the co~rt.'~Delivery rnay also take place by forcing the seIler to deliver.'" When the thing transferred is not detemined the seller has an obligation of ascenaining, which is an obligation to do, so that property is tnnsferred.

As for obligations to do and not to do, the first is one in which the debtor has to perform a positive act or a service other than transfer of property. The latter is an obligation to refrain hmcertain act~.~'Such obligations give nse to some dificulties regarding their enforcement. This can bt: clarified by examining Article 1147, which deals with these obligations.

At first glance to this Article one may think that a debtor has always the right to choose damages and escape the duty to perform because the Article States that "every obligation to do or not to do resoives itself in damages in case of non-perfomance".'"> A closer examination of the Article reveals the opposite. tt makes clear that a creditor hathe right to clah performance of the contract and that e.riczrrion en natrtre is the primary remedy in the French system, Reviewing the reasons for the existence of this Article is relevant to this examination.

The historical explmation for adopting this article in the French CiviI Code is two fold. Before 1789, judges had great power because their positions could be inherited or sold. This situation created an elite that had great control and power over the popuIation. In order to protect the people, this power had to be resuicted and this was done by giving the

LOS J. Fiour & J.L Aubert. Les obligarions: 1 acre juridique 8h eé(Paris.Dalloz, 1998) at 25. loa Szlûdits, supra nate Il2 at 2 t4-215; G. Mq,P. Raynaud & P. lesraz. supra note 1t2 at 249- 37 ui German Civil Law. an obligation ta give is executed by way of seizure by a court oficer when die debtor refuses to deliver. "' Flow & Aubert, supra note 205 25-26: P. Detekque & FJ. Pansiet, Droit des obligations: responsubilité civife-conrrotZ* cd., (Paris: Lie1998) ût 2-3. Sziadits, supm note 1 12 at 2 14. debtor the right to choose between performance or darnages and not leaving the matter to the discretion of a judge, who may impose harsh conditions on the debtor."' The second reason is that notions of Freedorn and liberty proponed by the Revolution were Fresh in the minds of the drafters of the French Civil Code and Article Il42 was adopted in order to protect this ireedom." l

As for the practical reason for this approacb, it is the voluntary character of contracting. Parties to a contract promise to perform certain obligations by their own will. The voluntary character of obligations in a contract constitutes its main characteristic and a contract has no real significance if parties are forced into performance. The main role of the contract is to let parties organize their relations the way they think is best for their mutual interests. Forcing someone into doing something he does not want to do will result in a poor quality work. Also, enforcement requires the use of force and violence and this disturbs the peace in the society.?'?Taking into consideration these concems, the drafters of the French Civil Code have implemented this provision.

Nevertheless, the same Code States in another article that a contract is the law that govems the relation between parties.'" This means that each party should respect the obligations that arise hmthe contract the way each individual in society has the duty to respect law. Also, it is important to ensure that parties to a contract receive what they contracted for in order to secure transactions and ensure stability."'

As a result of these two opposing considerations, the voluntary character of contracting and the contract being the Iaw of the parties, the general view is that Article 1142 does not give the promisor the absolute right to choose between performance and da mage^."^ What the Article is intended to do is to impede direct enforcement of a promise through the use of force because this wiII result in violence against the promisor and it is a

'Io Dawsoa supra note 139 at 510. :"SacksonJr.. supra note 130 at 413. '15 Sfacck, Roland & Boyer, suprn note 117 at 566. "3 This is stated in Article LI 34 of the Code which reads as foUows: "Les conventions Iégdement fomk tiennent Iieu do loi i ceux qui les ont faites: "'J.L. Baudouin "L'exécution spicifique des contrats en droit quibecois" (1958) 5 McGiII L. J. 108 at 117. violation of his right to be secure."Wenying the nght to enforce is not absolute and it does not apply to ail the cases in which the obligation is to do or to refrain, the denia1 is restricted to the cases where the rneans of enforcement are unacceptabte such as direct enforcement.'" Earlier in tirne, imprisonment for civil debts was allowed in the French CiviI Code but nowadays that is no longer acceptab1e.'l8 .kticle 1 143 has as its purpose the assertion that coercive procedures directed to the penon of the debtor are not accepiable."'

A coercive procedure is normally required when the act is one that has to be performed by the debtor himself. Therefore such personal acts cannot be enfor~ed.~'Article 1142. in the view of courts and scholars, does not create a bar to specific performance unless the required act is pe~sonal.~'The promisee has the right to require performance and he is entitled to receive performance without having to show that the non-performance will cause him a detriment.'"

Therefore. Articie 1142 applies only when it is not possible to perform because of the personal character of the obtigation that requires the special skiils of the debtor, [n such a case the performance may not be provided by anybody else and it is not possible ta force the debtor either and the only remedy available for the creditor is damages. Obligations that require artistic or intellectual activity fa11 into this category, so do contncts OP employment. These contracts cannot be enforcedmg

=15 Giving the creditor the right to force the debtor to perform is not statcd cleady in any anicle of the Code. it is Article 1134 that is taken as the basis for explaining the primacy ofspecific performance in the French s stem See Viavianos supm note 187 at 535. ''Ramem rupru note 108 ïx 806. "'it is only physical pressure tht is considered as inadmissible as means of coercion See Jeandidier. supra noie 196 at 704-705. "'imprisonmenr for civil obligations was abolished by the law of 22 July 1867. "'Romero, supra note L08 at 807 Jackson. supra note 130 ai 4 L4. "l Goldstein, Supra note IL 1 at 72 i*t - leandidier, supra note 196 at 706. IR addition to the concm for pmoml kedom the= ïs another reason for not gnnting yecific performance in contracrs for utÏstic or ÏntelIectual works. The valut of such a work lies in the skills and ÏnspinUon of the debtor. tt is unWbie htsuch a work can have the same value when pressure is exercised on the peaon of the debtor. Pressure kilis inspication or any dent and thecefore the quaiity of the wotk will be extremeIy par. Set Starck, Roland & Boyer, supra note 1L7 at 568-569; Ph. Malaurie & L. Aynes Droit civil: les obligationr 8' ed, (Paris: Cujas, t998) at 594-595; Jeandidier, supra noie 196 at 717. It can be concluded that persona1 acts cannot be enforced because they require direct means of coercion that put pressure on the person of the debtor and this is not permitted while indirect ways are acceptable."' Therefore, in any obligation that does not involve the person of the debtor, the creditor has the Rght to arécrttion en nature. This concIusion about the rneaning of Article 1142 is reinforceci when examining Articles 1143 and 1144. b-Article 1 143: Elimination at the Ex~enseof the Debtor

Article 1143 gives the creditor the right to daim the elimination of what has been done in violation to the contract, He can ask the court for authorization to do so at the expense of the debtor. This kind of enforcement does not constitute an attack on the person of the debtor, and therefore does not contradict with Article 1142.= Since Article 1143 cm be applied to almost ail obligations to refrain, the primary remedy in such obligations is e.récrrtion en nanrre. When the creditor asks the court to ,gant him this remedy, the court cannot refuse to do so since the Ianguage of the Article is clear. c-Article 1 144: Performance at the Emense of the Debtor

According to Article 1144, the promisee can be authorized to receive performance of the promise at the expense of the ~rornisor.~Performance may be executed by the promisor himself or by a third Party. Of course, this Article can be applied only when the cooperation of the debtor is not necessary."' Contracts where the personal skills of the promisor are required cannot be enforced this way, such as a contract for painting.

AAer exarnining Articles 1142 thmugh 1144, it can be concluded that aécrition en natrtre is achievable in al1 obligations where the person of the debtor is not involved. Therefore, it is a right of the creditor because it represents the primary remedy in the French system.

23G. Marty, P. Raynaud & P. lestaz, supra note 1 12 at 25 1. "Szladits, supra note 1 12 at 2 17; fbid. at 25 t . Goldstein, Supra note Il t at 74. Ge- Civil Code has a sdarprovision. When the obligation is one that does not mvolve penod skills of the debtor and can be executed by a third party, the court renden a judgment htgives the promisee the right to perfonn at the expense of the debtor. D-Specific Perfornzarlce in Qrrèbec Law

After having examined the rules of specific performance in both Common Law and Civil Law systems, it is interesting to examine how these two systems are mixed in Québec Iaw. The concepts regulating specific performance are borrowed Frorn the French Civil Code while the Comrnon Law influence is clear in the use of injunctions and in the restrictions on granting speci fic performance."

Articles 1065 and 1066 of the Civil Code of Lower Canada= read as follows:

Art. 1065 Every obligation renders the debtor Iiable in damages in case of breach of it on his part. The creditor may. in cases which admit of it, demand also a specific performance of the obligation, and that he be authorized to execute it at the debtor's expense:. ..

Art. 1066 The creditor. without prejudice to this claim for damages, may require also. that any thing which has been done in breach of the obligation shall be undone, if the nature of the case will permit: and the court may order this to be etfècted by its otlïcers. or authorize the injured party to do it. at the expense of the other.

These provisions give the creditor the right to require specific performance unless it is not permissible due to the circumstances. It also gives him the right to receive performance at the expense of the debtor. These rules are sirnilx to the rules of ereczrrion en nanrre in the French CiviI Code. The same concepts of respecting the debtor's freedom apply here.>"

On the other hand the Comrnon Law injunction is used in enforcing specific performance orders. lnjunction is regulated in Article 751 of the Code of Civil Procedures', which permits the use of injunction to force a debtor to perfonn or refrain form certain acts. This means that injunction can be used to force obligations CO do and no to do thus rendering specific performance an available remed~.~'Nevertheless, Common Law restrictions are also taken into consideration when ordering specific performance and this has been dernonstrated in certain judgments where the use of injunction was considered as an exceptional rerned~.~~

xn Fitzgerald supra note 71 at 19. Civil Code of Lower Canada. .h.1065-1066 CC.L.C. "O Viavianos supra note 187 at 534-546. '3'Code of Civil Procedure, Art 751 CCP. 32 Viavianos supra note 230 at 551. s3 See Côté v. Fortin, [tg791 RP. 2 l8 (C.S.) Adopting the Civil Law rules of specific performance the same time as the Common Law means of enforcement has created a certain conflict in the law of Québec. The notion of respecting the person of the debtor by not forcing any direct coercion on him cannot be associated with the harsh sanctions that may result from injunction such as irnprisonment."'

The provisions of the Civil Code of Lower Canada were replaced by the mles of the Civil Code of Québec."' The new Code adopts a Freer approach towards specific performance by valuing the importance of respecting promises. Article 1601 of the Codes States that: "[a] creditor may, in cases which admit of it, demand that the debtor be forced to make specific performance of the obligation". Article 1601 of the Code gives the creditor the right to have the obligation performed at the expense of the debtor.

The general view is that although the new code respects the persona1 freedorn of the debtor by limiting specific performance to the cuses which udntit of il, it broadens the range of situations in which specific performance cm be ~rdered.~"

2-4 TJre Primary Remedy in the Convention

A-The Primaq of Specijîc Performance in the Convention

Articles 46 and 62 of the Convention give the right to specific performance to both the buyer and the seller. The Ianguage in which these Articles are drafied shows that specifrc performance is meant to be the primary remedy in the Convention.

Article 46 deals with different situations of breach, hndamental and non-fhdamental, and gives the buyer a right to require performance depending on the type of breach. The buyer can choose between darnages and specific performance, without any discretion left

rw I.L. Beaudouin. "L'Exécution Spécifique des Contrats en Droit Québecois" (1958) 5 McGiII L. I. 108 at 129. 35 Cid Code of Quebec, Art. 1601-1602 CCP. a This concIusion about the Code's approach towards specific performance is reidorced by the provision of Article 1590 of the Code which snces cfearIy the creditor's rïght to require performance. to the courz. The primacy of specific performance is confimed even more by the provisions of Articles 48 and 49.37

Paragaph (1) of Article 48 States that:

Subject to Article 49, the seller may, even after the date for delivery, remedy at his own expense any failure to perform his obligations, if he can do so without unreasonablc delay and without causing the buyer unreasonable inconvenience or uncertainty of reimbunement by the seller of expenses advanced by the buyer. However. the buyer retains any right to claim damages as provided for in the Convention.

This Article gives the seller the right to cure under certain conditions that secure the buyer's interests. The seller can either remedy the non-conformity or deliver substitute good~.~Theopportunity to cure given to the selIer saves the contract from avoidance. Thus performance of the contract is more likely to take place with the provision of this Article.

As for Article 49, it gives the buyer the right to grant an additional period of time for perfomance before he declares the contract avoided. in such a case the buyer will not avoid the contract immediateiy when the seller does not deliver the goods he will do so after fixing an additional penod of time for performance with which the seller did not ~ompIy.~'This notion of Nuchfrit, which is foreign to Comnton Law jurists is borrowed from the Gerrnan Civil Code.:M

This shows that the Convention's provisions have as their purpose saving the contract from avoidance as much as possible. The provisions of Article 46 along with those of Articles 48 and 49 help circumvent avoidance by keeping the deal together. Generally limiting avoidance to the case in which the non-conformity constitutes a fundamental breach and providing for the seller the opportunity to cure ensure achieving this aim.

'37 Schlectitriem, supra note 61 at 376. HonnoId, supra note 9 at 294. CorneIl International Law Journal, ed, Revie,v of the Convennon on Connacufor the International Suie of Cook (ClSG) 1995 (Hague: Kluwer, 1996) at 30-32. '* Articles 47. 49(1) and 63 of the Gerrnan Civil Code; See Mapp & Nicoll, supra note 44 at 3 18; For further discussion regarding the notion of nachfit in both CEG and the Gemian Civil Code see generalIy M. DiPalma "Nachfnsr under National Law. the CISG, and the LJNiDROiT and European P~cipIes:A Cornparison" ( 1999) 5 intanationai Contract Adviser 28. They dernonstrate clearty the prirnacy of specific performance as a remedy and the preference of specific performance over other remedies such as damages or avoidance in the Convention.'"

This rule was followed by the coun of appeal in France, which granted avoidance afier the buyer of hi&-tech equipment had requested the seller to repair the defects but the seller did not respond. The buyer had the right to avoid the contract because he had @en notice of non-confonnity and asked for repair and had fixed an additional period of tirne for ~erformance."~

B-Rssessing rhe Prima- of Specific Performance Rule a- [moortance of Buver's Rieht to Saecific Performance in International Sales

Choosing specific performance as the primary remedy in the Convention is not surprising. In international sales. the buyer ne& to secure receiving rhe goods he contracted for because it may not be possible for him to find the required goods ebewhere. A buyer will nomally tum to international market because he cmot find the goods in his local market or because they are not of a good quality. Granting him damages in similar cases will not be very helpfui since he will not be able to End substitute goods." In addition to that before concluding a contract of sale, a buyer has to engage in a thorough search CO find goods of a quality and a pnce that conform to his needs and ihis process requires tirne and money. The amount of time and money spent, grow even larger in an intmationa1 sale thus rendering specitic performance more necessary. When the buyer has to find a substitute transaction he has to start a new search one more tirne. The costs will be exacerbaeed because of the immensity of the intemationd market that provides for the

"' .hocher indication for preferring performance of the contnct is in the Secrem-îat's Commennry. Alt'ough liqui&ted damges are not mentioned in the Convention, the Commentary menrioas it as a means to ensure performance. "'Court of Appeal Versaiiles, 29 January 1998, Société Giustina International v. Société Perfect Circle Europe, onlie:

There have been many cases, govemed by the Convention, in which the innocent party has preferred to receive performance. For example, repair was clairned in a case decided by the Court of Appeal of Grenoble in a sale of used warehouses. The goods were slightly defective and the seller replaced the defective parts by new parts that were very slightly bent out of shape. The court viewed this as in conformity with article 46(3) of the C~nvention.'~'

In another case of a contract for the sale of windows, part of the delivery was not in conformity with the contract and the seller sent substitute windows.

These cases prove the importance of Article 46 when it is more favorable to perform by repair or delivery of substitute goods nther than avoiding the contract or claiming damages.'* b-Imuortance of Seller's Ri~htto Saecific Performance in International Sales

As For the seller's right to specific performance, it is regulated in Article 62 of the Convention that has been discussed earlier in this thesis. The seller may require the performance of any obligation such as payment of price, taking delivery or any other obligation that aises frorn the contract."' In a case decided by a Gennan court, the assignee of the seller's right to payment was entitled to receive the payment in ItaIian Liras because the contract provided for payment in that currency. The court enforced the

Grossfeld, "Money Sanctions for Breach of Conmct in a Comrnunist Economy" (1963) 72 Yale L. 1. 1326 at 1330-1331, 'UTme and money spent in fmding and negotiating the deal is difficult to estimate and therefore dmges wiII not cornpensate for it. Another argument set forth is that in intemational connacts. parties e.xpect to receive specific performance because the Civil Law system which recognizes the right to specific performance. has influenced the legal systems of many counmes of the world. -" Court of Appeal Grenoble, 26 Apnl 1995, M. Marques Roque Joachim v. La Sarl Holding Manin Rivière, online: Pace Law SchooI Instimte of intemationai Cornmerciai Law ~hm://www.cise.law.~ace.edu~cise/te~- (larnodified 13 July 1999)- 246 Oberlandesgencht Hamm Germany. 9 June 1995, onlime: Pace Law School Instiaite of international Commercial Law ~httaJIwww.cise.law.oace.edu/cise:/text/ (Iast rnodifkd 13 Jury 1999). '" Schlechtriem supra note 6 1 at 483. buyer's obligation to pay the price in the specified currency according to the parties' agreement.""

In another case decided by an Arbitral Panel of the [CC, a Bulgarian buyer had not paid the price to the Austrian seller within the time period agreed in the contract and although an additional period of tirne for performance was fixed by the seller. The panel enforced the performance of the buyer's ~bligation."~

The seller has this right without any restrictions except for not resorting to an inconsistent rernedy. He may force the buyer to take delivery of goods without having to prove that he was unable to resell the g~ods.~'' c- Im~ortanceof Soecific Performance for Deveiooine Countries

Al1 the aforementioned diffrcuities becorne even more significant for buyers in developing countnes. Access to other markets is normally not an easy task for someone doing business in a developing country. [t is hindered by the underdevelopment of communication, which also costs more, thus, raising the costs of locating a seller, and by govenunent regulations, that tend to be as restrictive as possible in certain countries (for no good reason but to ensure tight control over citizens). In those countries, as result of the weak economic situations and the govemments' desire to ensure their control (by lirniting access to other parts of the world) modem means of communication are not introduced in the local business practice. The costs of iocating a selIer and negotiating the deal are higher than what a buyer fiom the developed countries would bear. It will be unfair after so much costs and difficulties to rnake a buyer from a developing country negotiate for a substitute deal. Receiving damages as a remedy will surely not cover al1 these costs especially that judges, unaware of these market conditions, wil1 not take into

248 Kammergerich Berlin Germany, 24 Iaauary 1994. online: face Law School Insatute of International Commercial Law ~htt~:!lwww.cise.Iaw.aace.edulcisdte~e-rm-62.hmI~~(1st modified 13 IuIy 1999). Ia9 Case No. 7197 (1992). (Intesuational Chamber of Commerce), online: Pace Law School Institute of intemtional Commercial Law

Even when the buyer tries to reduce his costs by trying to End a substitute deal in his local market or the neighboring markets, he wili face another problem and that is the non- availability of the goods. Markets of the developing countries do not have a variety of goods as is the case in developed countries. Certain goods are not available at all. A buyer From a developed country does not have to worry about not finding substitute goods ifhe cmot get specific performance, damages will be enough compensation. The goods cm be assessed and damages ganted. In a developing country, rnonetary compensation rnay not be a substitute for goods because the flow of goods is Iimited in these markets."' This is especially true for certain goods that require hi& skill such as highiy technical equipment. As a result of the developed countries specialization in skill-intensive products and the developing countries in Iabor-intensive products, a contract of sale behveen a buyer lrom a developing country and a seller hm a developed country will nomally include skill-intensive goods that are not available in the buyer's market.25' When deciding a case where these conditions apply, the buyer being from the deveioping country and the goods industrial products, a judge should keep in mind that darnages may not be adequate.

In addition to these economic factors, a buyer is faced with govemment regulations. [mport restrictions may inchde barriers to imports uriginating from certain countries, or high tariffs are imposed on these imports. A buyer has to take into consideration these factors when choosing the market from which he wants to buy. These restrictions wiH limit even more the range oCchoices availabte. There may also be restrictions on transfer of payments. Paying for the imported goods may raise certain difficulties when there are strict desregarding the transfer of rnoney.

Wben a buyer has to take into consideration al1 these aforementioned regulations and restrictions, he has to vend time and money to be able to finalIy conclude a contract-

"' Grossfeid, supm note 243 at 133 1. '5' A. Wood, NorthSourh Tde. Emphyment and 1nequaIit-ÿ (CIartndon Press: Oxford, 1994) at 4; A. Fishiow et al., Rick and Poor Nutiom in rhe World Economy (Council on F~rrignRelations: New York, 1978) at 56-57. Therefore, a buyer from a developing country is apt to value specific performance much more than a buyer from a developed country, He rnay view specific performance as the only cornpensatory rernedy.

As for repair, which is one forrn of specific performance provided for in the Convention, it also has greater importance for developing countries. When the goods need to be repaired, the buyer may not be able to find the necessary expertise in his own country. He will have recouse to international market. therefore having the seller do the repair will be significant for the buyer. It will Save him the trouble of looking for experts in other markets and taking care of the expenses.

As for the seller's right to speciftc performance, forcing the buyer to take delivery of the goods is significant for the seller when it is difficult for him to find a substitute transaction. These difficulties may be more significant in case of sellers from developing countries because they do not have easy access to the international market. Communication and transportation being Iess developed and more costly, a seller from a developing country will have much difficulty in finding a substitute deal, especially when the goods have arrived to the destination port and the buyer refuses to take delivery. The seller may not have the necessary information about that market and therefore, he will have immense trouble in tinding a new buyer. If he cannot tind a buyer in that market, he wiil have to transport the goods back to his own country or to another market and that wi1I multiply the costs of the transaction. Not granting specific performance in such a case will cause hardship to the seller.

On the other hand, as mentioned earlier, it may be unfair to force the buyer into performing the contract when the conditions of the market have changed in a way that renders the contract unprofitable. Concerns of economic efficiency arise in this case.

C-Application of the Rule

When applying an international convention in domestic courts, certain issues regarding interpretahon are raised. It is more difficult for a judge to apply an international convention than to apply domestic legislation because the meaning of the tems used in dornestic law is well established and known, while this is not the case for an international c~nvention.~~'Therefore, the issue of interpreting a convention becornes crucial for the proper application of the convention.

[n order to understand the exact rneaning of a term, the intentions of the drafiers have to be taken into consideration. This can be achieved by reviewing preparatory material and deliberations that led to the adoption of the convention. It rnay also be helpful or perhaps even necessq, in order to reach the sarne results in practice, to consuit fooreign case iaw. But this rnay be difficult to do because access to foreign case law may not be possible.'"

In addition to understanding the rneaning of a term, another issue cornes up when applying a convention and that is uniformity of appli~ation.~~

The CISG is not an exception to the aforementioned rules. In fact, unifom interpretation and application is a necessity in the case of the CISC. A convention that ha as its purpose the unification of rules of pnvate law requires uniform application in al1 member States othenvise the main purpose of the convention wili not be achieved. The issue of detemining the meaning of a term has been exarnined earlier in this thesis in an attempt to define the exact meaning of specific performance. It became clear that determining the rneaning of a term in the Convention may not be an easy trisk because of the different connotations it may have in different legal systerns.

The rneaning that the term specific performance has in domestic laws is different from its meaning in the Convention. Therefore when applying the Convention the domestic connotation of the term should not be the one according to which the court's judgment is based. A court should appIy the meaning of the term in the Convention otherwise different applications of the mle wiIl occur.

Even when the terms are understood in the same rnanner, uniform application requires a uniform interpretation. This issue being very significant for the Convention, which tries to

'53 Schlechmem, supra note 61 at 61. * Kaaorowska, supra note 13 at 62. 255 ConsuiMg foreign decisions in this case helps achieve this purpose. promote unifomity in international sale of goods, the drafiers of the Convention have included within it certain provisions related to this matter.""

Paragraph (1) of Article 7 reads as foIIows:

In the interpretation of this Convention, 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 nade. The importance of taking into consideration the international character has been discussed above when detemining the meaning of specific performance.

As for the observance of good faith, some view it necessary not only when interpreting the Convention but also in the relation between contracting partie^.^' Good faith is often mentioned in domestic laws as well, although it may have different meanings and different degrees of importance depending on the system.

In Civil Law systerns, parties are required to observe good faith in the phase of negotiation and performmce of the contract as well as in its interpretation."'

In Common Law, the duty to respect good faith is imposed only in the performance of the c~ntract.~"This divergence in approach rendered the issue a debatable one during the negotiations of the Conventi~n.'~The result of this debate was the inclusion of Article 7, which States that the Convention should be interpreted taking into consideration good faith in international trade. The meaning of good faith shall be determined according to

36 For a discussion of how dificuit it may be to achieve unifonnity in the tieId of the Convention see genenily RA. Hillman "Applying the United Nations Convention on Contncts for the international Sale of Goods: The Elusive Goal of ünifonniry" in CorneIl Revïew of the Convention on Contracts for the Inre~ona[Saleof Goodr 1995 (Boston: Kluwer, 1996) at 21. "'Ferrari, supra note 33 at 213-213. "'Not performing the obligations king tiom the contract without good reason is to be considered as bad faith conduct. See L Klein. "Good Faith in Intemational Transactions" (1993) 15 Liverpool L. Rev. 115, Online: Pace Law School Insanite of International Commercial Law

In a case behveen a French seller and a buyer based in the US it was agreed that the goods purchased were to be sent to South Arnerica and AFrica. But later the seller discovered that they had been sent to Spain. The seller refused to continue the relationship and the court found that the conduct of the buyer was contrary to the principle of good faith in international trade."'

When applying the provisions regarding specific performance, interpretation niles help a judge in his task. Good faith shouid be taken into consideration when determining whether to gant specific performance. tt may be possible that a party is seeking to enforce this remedy not because of its being the only adequate remedy but because he wants to impose an extra burden on the other party, thus, causing hardship and abusing his right,'" The concem for avoiding hardship to a party is clear in Article 46. Requiring substitute goods is only perrnitted when the breach is fundamental and it should be claimed within a reasonable period of tirne in order not to give the buyer means for avoiding the contract out of bad faith or because he has found a better deal. Also in paragraph (3) repair cannot be claimed unless it is reasonable to do so. When forcing repair imposes hardship to the selier, the judge should not gant iteZMIn the case mentioned above for the sale of used warehouses, the court found the buyer's claim (that the seller had to restore the warehouse to a new state) as unreasonable to enforce because it would have multiplied the value of some of the elements sold by a factor of 40. ïhis would have caused hardship to the buyer, and therefore, the court found that replacing the defective goods by slightly bent ones was satisfactory perf~rmance.~'

Garro, supra note 12 at 465467;Kaczorowska, supra note 13 at 66. Court of Appeal GrenobIe, 26 April 1995, M. Marques Joachim v. La Sad Holding Manin Riviére. online: Pace Law School instimte of International Commercial Law

The notion of good faith is related to the eficient breach theory, which permits a party to breach the contract when it is more efficient economically to do so and does not harm the other party.'" In accepting that a court shoutd not ptspecific performance when there is bad faith on the pan of one party, efficient breaches will not be pemitted. Whether specific petformance is Iess efficient than damages has long been a debated issue in the Common Law. No clear answer is provided, scholan have divergent opinions and each has convincing reasons for his attitude.'"

Some view specific performance as the most compensatory because it respects the subjective value that a party puts on the contract, while others consider damages to be compensatory en~ugh"~because it pennits a party to buy substitute goods that conform to his needsn This was the case of a buyer of compressors for air conditioners who

Kleim supra note 258. D. Baumer & P. MarchaII, "WiIIfÙl Breach of Contract for the Sale of Goods. Can the Bane of Business be an Economic Bonanza?" (1992) 65 Tempk L. Rev. 159 at t6I. IsB Some view damages as being under-compensatory because consequential diunages may not be proved and because of tnnsaction costs in addition to attorney fees. Some consider specific perfomnce as the adequate remedy out of moral concerns for keeping one's promise- Ib9 One of the reasons tht render damages not compensamry enough is that a court may err in esbting the costs since substitute goods rnay be of a different quaiity. This is especially me in intemtionai transactions where it is not possible ta fiid identical produca. ïkerefore, in assessing &mages, the court may ignore issues nich as quality, warranty that cornes with the pmduct and the reputation of the brand Damages are considered not be compensatory &O because rhey are based on the market value and the subjective value rhat the non-bmching party puts on the go6ds. Compensation bemg the purpose of aU remedies, they should respect the subjective due in order ta achieve full compensation. Specific dormance is the remedy that cm satisfy this goal by respecting the subjective value. 'Muris. rupm note 154 e 10541055; TS. Ulm The Eficiency of Specifc Pedomnw: Towmis a Unified Theory of Conmcr Remedies" (1984) 83 Micb L Rev. 34 1 at 365. received defective goods and aRer trying to cure it himself (which he was not able tu) he asked for damages instead and bought substitute goods elsewhere. In this case, apparently it was more efficient for him to claim darnages."' The issue being unsettled, it is lelt to the judge to decide whether specific performance is more efficient. This assessrnent cannot exclude the good faith requirernent that is implemented in the Convention, therefore the task becomes even more difficult.

In a case decided by an -4rbitral Tribunal, the contract was between a Russian tirm as seller and a group of companies. The contracts concluded were for instaltment of raw aluminum ~hatextended through several years. When the seller was privatized, the new owner stopped to deliver the goods and the buyer sued for specific perrormance. This demonstrates that installment contncts may be a case where a buyer would prefer to receive performance because he will be unable to find a substitute transaction. Nevertheless, the claim was rejected and damages were atvarded as result of the ditricuIty to enforce such a claim. Specific performance in this case would require constant supervisions by the court through several years and the court found it impossible to enforce an award of specific performance in Russia. This case shows also that when pting the proper remedy, issues of difficulty to enforce play a role in the court's opinion.:"

In another caseLna Swiss buyer, placed an order with an Italian selIer containing a request that the goods be delivered within the following 10 to 15 days. Two months later, the seIler, afier asking the buyer to confirm its order, specified the purchase price and assured the buyer that ail the goods would be dispatched within a week. Two months later, the buyer had not yet received the goods. As a consequence, the buyer sent the seller a notice cancehg the order and requiring refund of the price. In his case the buyer asked for

"' Delchi Carrier S-p.R. v. Rocoret Corp. (US. Dist CL 1994). online: Pace Law Schooi Institute of intemtional Commercial Law ~htt~:/lwww.cisa.law.~ace.edulciseitext/ (last modified 13 JuIy i999). 'z Ziirich Arbiaation Proceeding, 31 May 1996, online: Pace Law School Instimte of Intemational Commercial Law ~hmr/fwww.cise.Iaw.~ace.ed~cisdtextle-te-6- (Iast modifiai 13 Iuly 1999). " Prenua circondariale di Parma ImIy, 24 November 1989, FoEopack Ag v. Daniplast S.pA. online: Pace Law School institute of International Commercial Law

These cases show that different factors are involved when deciding the proper remedy. There are certain factors that courts take into consideration when granting a remedy and there are other factors that business-people take into consideration when clairning a remedy.

The main concem of a businessperson would be the profit. When it is more profitable for him to receive specific performance he will ask for it. Sometimes it is in the advantage of the innocent party to clairn damages when it is possible to find substitue goods because it rnay be faster. Another reason Cor preferring damages is that the confidence between the nvo parties is affected when one of hem breaches. An innocent party rnay no longer want the other party to perform because he can no longer trust the quality of the performance. ïhe duration of the relation between the parties also affects the decision taken.

As for factors that affect a decision to breach, they include in addition to the economic gain the concem for reputation. A party rnay try his best to keep a deal together out of concem for his reputation. Pte-determined des regarding these matters cannot be reached, the issue has to be examined on a case-by-case basis.

It is perhaps reasonable to let the parties choose the remedy that satisfies them best because they know better their mutual needs, but this rnay create roorn for bad faith practice by certain parties.I7' c- Article 28 and Uniformitv

As mentioned above, the scope of ArticIes 46 and 62 is Iimited to a great extent by Article 28, which rnakes the granting of specific performance subject to the laws of the forum. Article 28 was introduced so that Common Law countries would not have to make changes in their rules about specific performance. This Article is criticized as constituting

"'Leaving it to businesspeopie to decide the proper remedy may create similar practices in the field of remedies became the reasons influencing their decisions are simitar, tbis situation renders the pnctice of courts aiso sirniiar thus it creates uniformity independently from uniform iaws. Nevenheiess, differences in this field arise as resuIt of the divergence of the surroundhg citcumstances in which business people conduct their business. a threat to uniformity. It is not clear whether this assurnption is entirely true because it can be argued that the results reached under Common Law rules are similar to the results reached in Civil Law.

Taking the UCC as an txarnple it is mentioned above that the Code limits granting speciftc performance to situations in which the goods are unique or when there are other pmper circumstances. It may be difticult to End uniqueness in the saies governed by the Convention but it may not be hard to find 'other proper circurnstances". As mentioned earlier when discussing these provisions, courts ,orant specific performance in circumstances where it is difficult to find substitute goods. They also grant it when it is costiy to cover or when the substitute goods are nor of the same quality. These conditions may apply to international sales. It is very likely that a buyer will face great dificulties in trying to replace the contract, he may not find substitute goods or they rnay be of a poor quality. It wilI require him additional effon and rnoney. In such situations, a Common Law court wiIl be inclined to grant specific performance because it woutd have done so in domestic contracts.

Furthemore, the notion of commercial uniqueness rnay apply in international sales. A good may only be found in certain counmes, thus, becoming a commercially unique good rendering specific performance the adequate remedy. This is especially true for developing countries and ptanned economies where the choice of goods is very limited and many goods are scarce or even non-existent in the local market or the markets to which the buyer has access taE5

One may argue also that the restrictions on granting specific performance in both Cornmon Law and Civil Law systems are based on concems for persona1 ~edom.'" Specific performance is not ptedwhen it involves the person of the promisor and this

"' This i. dernonsmted by a case where an Egypiian busiaessman ordered used prinring machines From a Gemian comp;uiy. The seller did nat perform his obligations to deIiver the goads and the seller fied an additional period of time for performance at the end of which the seller had still not perfomd and the seller had to avoid the contract. See Oberlandesgericht CeIle Germany, 24 May (995, oniine: Pace Law School lnstirute of International Commercial Law <~~:/lwww.cis~.law.~ace.edrticise/textle-f0(t-5l.h~ (Juiy 13 1999). is not the case in contracts of sale of goods. Whether it is the buyer's freedorn or the seller's freedom one is concemed with, none of them is threatened. Therefore, this ntionale for not granting specitic performance does not exist in the sphere of the Convention.

Another reason for not ~mtingspecific performance is the efficiency of the remedy. It is argued-especially in Comrnon Law countnes-that damages are more efficient because in some cases it is better to breach the contract than to carry it out. This issue is not resolved and it will be left to courts to decide it in each case. But it may be possible that neither the buyer nor the seller will claim specific performance when it is not economically eficient to do so."' This means that remedies wted in both systems will be similar when the circurnstances surrounding the contracts are the same. Therefore, the result of a litigation will not depend on the rules of the forum as much as it will depend on the conditions in which the contract is being carried out,

-4s result of these arguments, one may not see Article 28 as a threat to unifonnity as it has always been accused of. There is room for courts to apply uniform niles in the sphere of the Convention because the niles oi Common Law systems give that chance to their courts.

The Convention even broadens the scope of specific performance in Common Law countnes because it gives a court the choice between applying the provisions of the Convention, which provide for specific performance freely, or applying its domestic Law, which may not be so liberal in granting this remedy.

Nevertheless, the aforementioned arguments do not give enough assurance that unifonnity will be reached. When arguing that Comrnon Law courts have the chance to freely gant specific performance under their domestic legislation, the first issue that arises is that the uniform apptication of the Convention depends on how the coun interprets the domestic law. Assessing whether proper circumstances exist and whether it is more efficient to grant specific performance is left entirely to the court. This situation

"6 Concem for persona1 freedom is the main rationale for Article 1142 of the French Civil Code. " This argument is supported by a case meotioned above in which the buyer did not claim specific performance and prefened to receive damages. See supra note 27 1. threatens uniformity to a geat extent. When each court is the oniy authority to judge the case without having to conform to more fixed rules, it is hard to imagine that uniformity can be achieved.

When courts have the chance to apply the Convention in different ways, there is a great likelihood that divergent practices will occur. In Delchi Carrier S.p.A. v. Roiorex Corp. the case was judged by a US court. The court did not enforce specific performance and gave damages instead according to the plaintiff s demand.13 On the other hmd, a German court. which represents the Civil Law tradition, found that the buyer had the duty to t7x an additional period of tirne for delivery with which he did not cornply. Therefore, he could not avoid the contract and he had to pay the price.';" The goods in this case were fabrics, which are tungible goods but the court examined first the Iikelihood for requiring performance through fixing an additional penod of tirne. The German court preferred enforcing performance aIthough in doing so it ened in interpreting the Convention because fixing an additional time for performance is not a duty of the buyer. These two cases show how the Convention is applied differently by courts depending on their nationai systems.

The Convention, which tries to reconcile different approaches does so by means of sacrificing the goal of uniformity. When delegates from different countries rneet in order to negotiate a unifying Convention, their efforts should be oriented to achieving uniformity and this cm be done onIy when the rules adopted in the Convention apply without exceptions to al1 participating countries.

It is rather disappointing to see that afier so much deiiberation and negotiation and afier so rnany years (CEG being preceded by ULIS and LJLF) the solution was to add Article 28. This resulted in keeping the divergent approaches as rhey are and eliminating every way of applying uniform rules regarding specific performance.

-38 Supra note 27 1. Oberlandesgericht Diisseldorf Germany, IO February 1994, odine: Pace Law School institute of International Commercial Law ~htto~Illwww.~~.law.~ace.edu/cu~itexd(Last updated 13 July 1999). [t is perhaps necessary that negotiaton of this Convention adopt a more courageous solution, the fear of not upsetting any party results in the existence of such mles that do not give fixed and detennined answers and Leave the achievement of uniformity to domestic courts.

ïhis situation not only hinders uniformity bur even creates more uncertainty. The result of the litigation may vary depending on which country has jurisdiction. Conclusion

The importance of unified niles in the field of international contncts of sale is widely recognized in present tirnes, Conventions for the unification of rules of private law create more certainty and facilitate ûade. Domestic rules are created in order to govem interna1 relations. They are not suitable for reglating intemational contracts and therefore a body of rules that is created with the consent and participation of many countries is more suitable for that role. Also, in some countries the legal system is not developed enough to be able to organize trade and commerce on the international level. Therefore, the CISG plays an important role in the international sale of soods.

The difficulty to reach consensus was demonstrated in this thesis and the important differences between Common Law and Civil Law were reflected in the rules regarding specific performance. Enorrnous efforts were made in order to narrow the gap between different legal systems during the nego~iations,Unification was reached in many matters but it was not entirely attained in al1 the issues governed by the Convention.

Whenever major differences in the views of delegates arose, the solution was to adopt a rule that is a mixture of the different approaches. This was done through adding exceptions to the rule. The reason for this was the drafters' desire to conciliate the different views without forcing any party to sacrifice his own rules. The result was that a set of mles regulating contracts for the saIe of goods was reached giving the impression that unification was achieved in this Convention. But a closer examination of these ntles shows that the concern to keep al[ parties satisfied by incorporating the rules of each system in the Convention prevailed over the concern for creating fixed and certain ruIes. Rarely did the contracting States have to make major compromises. The conflict of rules between North-South, East-West and Common Law-CiviI Law was surmounted by adopting a mle of one system and adding exceptions derived of the other system. This may seem a satisfactory solution but it does not help the Convention achieve its purpose, which is creating uniform niles and certainty, The outcome of these rules is uncenain, because the result of a litigation still greatIy depends on the mles of the fonun. These shortcomings of the Convention are especially clear in the case of specific performance. The difference behveen Common Law and Civil Law in this matter is deep enough to make a compromise solution the only way to deal with this matter. This was reflected in the adoption of Article 28. [t is hard to imagine that uniformity cm be achieved when it is leFt to domestic courts to decide of the uniformity. The purpose of an international convention is to decide rules that apply to al1 parties without giving discretion to domestic courts but this is not the case in specific performance rules in the Convention.

Different means of achieving uniform application of the Convention have been suggested by scholars such as the creation of an administrative body in charge of supervising decisions of courts applying the Convention. Another suggestion is to publish decisions of courts in different countries. The first proposal is not achievable because it interferes with a country's sovereignty and the second suggestion may be helpful but it does not ensure uniformity because it would only give guidance to courts without ensuring any uniform practices.

An eficient solution would be to review the provisions that do not determine fixed rules and try to adopt more radical provisions. Delegates should be willing to give concessions in negotiations of such a scope. It is trtie that the Convention may create some certainty but that is not so clear. The unification is not achieved in al1 the issues regulated by the Convention and specific performance is an example.

The uncertainty about specific performance may be eliminated in the future when parties to the Convention come to negotiate again or reaIize the necessity of change. This cannot be done easily because it requires years of application of the Convention and a thorough study of cases that were judged according to this de. When this is done, it is possible to determine whether this nile has to be changed by eliminating the choice provided to Comrnon Law countries in Article 28.

This is not a suggestion to adopt ngid rules because, as demonstrated in this thesis, countries have different economic situations and a certain remedy may be more adequate than another depending on where the contracting paq is carrying out his business. The suggestion is to adopt a fixed ruie and clear criteria that permit derogating fiom the mle. The criteria must be based on a country's needs and econornic conditions, not on the fact that certain niles that have been inherited from the past should not be challenged. Articles

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luternational Materials

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Code civil des Français (1804) Art, 1143-1 144 C.N.

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Cases on Internet

Court of Appeal Versailles, 29 January 1998. Société Gitcstina International v. Société Perfect Circle Europe, online: (1st modified 13 July 1999).

Court of Appeal Grenoble, 26 April 1995, M. Marques Roque Joachim v. La Sarl Holdit~g Manin Rivière, online: Pace Law School Institute of International CommerciaI Law

Oberlandesgericht Hamm Germany, 9 lune 1995, online: Pace Law School [nstitute of [nternational Commercial Law (Iast modified 13 July 1999).

Karnmergerich Berlin Germany, 24 January 1994, online: Pace Law Schoot Institute of International Commercial Law (last modi fied 13 July 1999).

Case No. 7197 (1992), (international Chamber of Commerce), ontirte: Pace Law School Institute of InternationaI Commercial Law (last modified 13 July 1999).

Court of Appeal Grenoble. 26 April 1995, M. Marques Joachim v. La Sarl Holding Manin Rivière, online: Pace Law School Institute of International CommerciaI Law

Delchi Carrier S-p.A. v. R0tore.r Corp. (U.S. Dist. Ct. 1994), online: Pace Law School Institute of International Commercial Law (Iast modified 13 July 1999). Ziinch Ahitration Proceeding, 3L May 1996, online: Pace Law School Institute of International Commercial Law (last modified 13 July 1999).

Pretura circondariale di Parma Italy, 24 November 1989. Foliopack Ag v. DanipIast S.P.A. online: Pace Law School Institute of International Commercial Law (July 13 1999).

Oberlandesgericht Celle Germany, 24 May 1995, online: Pace Law School Insticute of International Commercial Law (July 13 1999).

Oberiandesgericht Düsseldorf Germany, 1 O Febmary 1994. online: Pace Law School Institute of International Commercial Law ~http:/lwt~.cisg.la~v.pace.edw'cis~text/e- text-l6.htmlhse> (Last updated 13 July 1999).