11.7.4 Other recommendations

The mora debitoris requirement should be separated from the elements of default (par. 7.3.4).

The rule (Article 6:252(2)) that for the termination in cases of temporary impossibility no mora debitoris is required, should be scrapped (par. 7.3.4).

Article 6:85 should be amended so that the right to compensation in an action for delay is not limited to the cases in which the obligee is in a state of mora debitoris, but also covers the delay damage that occurs when performance is impossible (par. 7.3.7).

The inclusion in Book 7, Dutch Civil Code of a statutory basis for the client party to hire a third party, at the cost of the contractor, to remove a fault in a delivered structure, after he or she has allowed the constructor by witten notice to repair the defect, in vain (par. 9.3.3).

If specific performance remains impossible, the obligor should communicate to the obligee whether he or she wishes expectation damages or termination of the contract (par. 7.3.3).

Temporary non-performance of a contractual obligation from a long-term contract leads for the period of no-performance to a partial permanent impossibility. The mora debitoris requirement should, in principle, apply with regards the termination or the claim for expectation damages of the contract for the future (par. 7.3.8.4).

The obligor's refusal of the obligee's offer to compensate the damages in natura, can entail an infringement of the obligor's obligation to mitigate one's damages (Article 6:101) (par. 9.2.2.4).

The judge does not possess a wider assessment competency with regards the decision on a claimed judicial approval then with regards the assessment of a claim for specific performance (par. 9.3.2.3).

The judge should, in principle, reject a claim for judicial approval if the obligor has failed to send the opposing party a formal notice in writing that allows the obligee an additional, reasonable period of time for performance of that obligation (par. 9.3.2.4).

The obligee should not be liable for the costs he or she has saved as a result of a third party having repaired the fault in the performance, if the obligor had not informed the obligee by means of a letter of formal notice of the fault and provided the obligee the possibility to repair it him or herself (par. 9.3.4).