11.7.1 Clarification of the boundaries of the right to specific performance

The inclusion of a statutory provision in Book 6, Dutch Civil Code that pro-vides an obligor with a substantive right to specific performance (par. 2.2).

The European legislature should take the standard of the "civil law" as the starting point with regard to the development of a rule for European contract law (par. 2.5).

The inclusion in Book 6, Dutch Civil Code of a evidential presumption of relative impossibility, that should the costs incurred through specific performance be greater than 130% of the objectified interest of the obligor, the obligee should, in principle, be released from his or her obligation to specifically perform (par. 6.3).

The inclusion in Book 7, Dutch Civil Code of a provision whereby the seller is provided with the competency to refuse the form of specific performance requested by the buyer, if the costs of performance are 20% higher than the costs of alternative methods of performance (par. 6.4.2).

The claim for specific performance of an obligor who has failed to send a formal notice or informal reminder for performance should not be rejected. The obligor should instead be ordered to pay the procedural costs if dwing the hearing the obligee states that he or she is prepared to perform (par. 3.3.4.4).

According to the current law, it is sufficient that a buyer, who claims replacement because the goods received do not satisfy the contractual terms, simply state that the goods are faulty; the buyer should not be burdened with the requirements of claim that non-conformity constitutes a fundamental breach (par. 3.3.5).

In assessing whether partial impossibility can be equalized with total impossibility, the judge should depart from an objectified standard of contract interpretation (par. 7.2.3).

The current law that, the judge should not reject a claim for specific performance due to the possible enforcement problems, should not be changed (par. 8.2.6).

With the assistance of an objectified contract interpretation method, it should be determined whether the delivery of replacement goods can be regarded as performance of a specific obligation (par. 9.2.3.3).