11.2 First sub-question: Positioning of the right to specific performance

The first sub-question has been answered in Chapter 2. This research question was: What is the position of the right to specific performance compared to the remedies of damages and termination in those jurisdictions researched and should specific performance be the primary remedy in a future Code of European contract law?

Despite the starting point that an obligor in principle enjoys a right to specific performance of a contractual obligation according to Dutch law, the Dutch Civil Code does not contain any statutory basis for the obligor's substantive law right to specific performance. The legislature believed it to be so self-evident that an obligor has a right to the specific performance of a contractual obligation that it did not see the need to create a legal provision. It has been argued in this research that an explicit statutory basis for the claim for a right to specific performance in Book 6, Dutch Civil Code would improve the coherence of the legal remedies. Furthermore, this would also provide a legal basis for the important pacta sunt servanda principle, as well as bringing Dutch law more in line with other continental European legal systems.

In this chapter, the law on the right to specific performance in The Netherlands, Germany, France, England, a number of international instruments, as well as a number of non-Western legal systems has been described. Furthermore, this chapter provides an overview of the most important arguments put forward in the legal-economic discussion from the point of view of efficiency both for and against the use of the right to specific performance as the primary remedial sanction. Finally, this chapter delves into the principle difference between the "civil law" and the "common law" systems in the field of contract law. In civil law systems, the right to specific performance is the primary remedy, whilst in common law systems damages come first. In academic writings, scholars have speculated as to the starting point that the European legislature should take in the design of any future European Civil Code. The answer to this question is made more difficult by virtue of the fact that scholars on both sides are unable to prove that one starting point is more just or efficient than the other. For any future rule on the right to specific performance at European level, it is argued that it is desirable to follow the civil law tradition, because most European countries already adhere to this solution and such a rule at the European level would not lead to a change for the majority of inhabitants of the European Union. Preference for the right to specific performance as the primary remedy also stems from the moral value it reflects in that people are obliged to keep their promises and, if necessary, will be ordered to do so by a judge. This idea corresponds to the legal intuition of citizens and could possibly also strengthen that feeling.