11.4.5 Defence: partial or temporary impossibility

The question whether the obligee can defend him or herself against a claim for specific performance with the statement that performance is partially or temporarily impossible has been dealt with in Chapter 7. Par. 7.2 deals with those situations in which specific performance is partially impossible; in these cases, the obligor can still claim specific performance of the part of the obligation that is still possible and the contract can, in principle, be terminated or converted into expectation damages for that part of the obligation that has become impossible. The consequences of the partial non-performance can, however, be so radical for the obligor that partial impossibility must be treated as if it were complete impossibility. In this case, the obligor loses his or her right to specific performance and the obligee loses his or her right to perform. An obligee, who wishes to perform the part of the obligation that is still possible, has an interest in ensuring that he or she is able to perform, and that this right is not extinguished by paring the situation of partial impossibility with that of complete impossibility. In determining whether the partial impossibility can be pared with complete impossibility, the judge should use an objectified standard instead of the subjective interest of the obligor. This in order to prevent that the judge too quickly comes to the paring of the legal consequences of partial impossibility with the grave legal consequences of complete impossibility. Only if the performance is technically or legally inseparable, should partial impossibility justify the consequences of complete impossibility.

Whether the obligee can defend a claim of specific performance with the statement that performance is temporarily impossible was dealt with in par. 7.3. Furthermore, this section has dealt with the general meaning of the terras "temporary" and "permanent" impossibility in the arsenal of remedies, especially with respect to the concept of mora debitoris. The main rule under the concept of mora debitoris is that the creditor draws the debtor's attention to the obligation that is to be performed, and that he allows him an additional, reasonable period of time for performance of that obligation by notice in writing under Article 6:82(1). The temporary impossibility illustrates, on the one hand, similarities to a delay in the performance of an obligation, but is, on the other, related to permanent impossibility. Article 6:265(2), which declares that the concept of the mora debitoris requirement with respect to termination does not apply in temporary impossibility situations, leads in this author's opinion to inconsistency with respect to the mora debitoris regulation in the field of damages. It has been argued that both for expectation damages and termination the temporary impossibility should be maintained as a mora debitoris requirement. Only if it is known beforehand that a demand notice is useless, may a notice of failure not be required, and will the debtor be placed in the position of mora debitoris automatically. The statutory exception with respect to the mora debitoris requirement with respect to termination in cases of temporary impossibility (Article 6:265(2)) is caused by the unnecessary combination of the question whether the cause of fault can be attributed to the obligee and the mora debitoris requirement. The so called "slimmed down version of the notice of failure" (Article 6:82(2)) does not have any added value with respect to expectation damages or termination. This notice of failure without allowing the obligee an additional, reasonable period of time for performance is useful with respect to a claim for delay damages, because it prevents an obligee from being surprised by a claim for delay damages. On the basis of Article 6:85, an obligor only has the right to claim damages caused as a result of delay if the obligee is in a state of mora debitoris. This means that permanent impossibility does not provide the obligor with a right to damages for delay of the performance, because mora debitoris is excluded in cases of permanent impossibility. It is this author's opinion that the obligor should also have a right to damages for delay in cases of permanent impossibility, even though in that case the obligee cannot have been placed in the position of mora debitoris.

Contrary to what the parliamentary records seems to suggest, it is not clear why in cases of permanent impossibility a right to expectation damages is automatically created by operation of law. If specific performance has become permanently impossible, the legal claim to specific performance has indeed expired, but the obligor should still inform the obligee if he or she prefers expectation damages or termination of the contract. Permanent impossibility leads to the definitive cessation of the procedural right to a legal claim for specific performance and to the exclusion of the requirement of mora debitoris. Temporary impossibility does not have these drastic consequences. In exceptional circumstances, the factual circumstances of temporary impossibility can be so radical that the consequences of permanent impossibility need to be attached. A Dutch judge currently approaches these cases cautiously, and correctly so. Non-performance of a long-term contract leads, in this author's opinion, to partial permanent impossibility. For the period in which specific performance is excluded, the obligor can partially convert or terminate without bothering about the mora debitoris requirement. For the termination or expectation damages for the future, the mora debitoris requirement should in this author's opinion in principle apply, unless it has been proven that the partial permanent impossibility should be equalised with complete permanent impossibility.