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A Comparative Study of Specifrc Performance Provisions in the United A Comparative Study of Specifrc Performance Provisions in the United Nations Convention on Contracts for the International Sale of Coods (CISG) 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 Common Law and Civil Law 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 INTRODUCTION 1 CHAPTER ONE: SPECIFIC PERFORMANCE IN A BlJURlDlCAL CONTEXT: THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 4 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 CHAPTER TWO: COMPARATIVE STUDY OF SPEClFlC PERFORMANCE 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 Civil Code 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 Quebec 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.
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