11.5 Fourth sub-question: Judicial competence

The fourth sub-question has been dealt with Chapter 8, namely: Which role should the judge play in determining the admissibility of a claim for specific performance?

Broad judicial competence, as in the `common law' system, to reject a claim for specific performance on policy grounds, forms a potential restriction on the right to specific performance. In the scope of answering the fourth sub-question, research has been conducted as to whether the Dutch judge has an ex officio discretionary competency to reject claims for specific performance, or whether the Dutch judge should have such a competency.

It has been determined that the competency of the judge to ex officio apply good faith clause (Article 6:248(2)) does not contain the competency to apply the "Multi Vastgoed" norm ex officio. The assessment competency of the judge is, therefore, restricted with respect to this aspect. It has been argued that the scope of the judicial assessment competency should be enlarged with regard to one point. The Dutch judge would be better able to deliver case-by-case work if, as is the case in France, the judge would be assigned the discretionary competency to impose a delai de grdce to suspend the specific performance obligation of the obligee if he or she determines there to be good grounds for such an action.

It has been argued in this research that the judge should be obliged ex officio to reject the specific performance obligation in cases of absolute impossibility, because the legal claim has automatically failed by operation of law. The rejection ground of absolute impossibility is not that the obligor has insufficient interest in his or her claim (Article 3:303), but that he or she is not able to succeed in the evidential burden as regards the existence of an enforceable contractual obligation. The notion of absolute impossibility in Dutch law should be further explained utilising the German notion of Unmeklichkeit and its different Fallgruppen. One of the subcategories of absolute impossibility is legal impossibility.