11.7.2 Narrowing the boundaries of the right to specific performance

The inclusion of a statutory provision in Book 6, Dutch Civil Code that pro-vides the obligee with a defence to a claim of specific performance of a contractual obligation for the performance of a personal service if performance of that obligation would infringe upon his or her private life (par. 4.5).

The analogous application of the duty of care lay down in Article 7:21(1)(c) to the claim of replacement with respect to consumer sales (par. 6.4.3).

The inclusion in Book 6, Dutch Civil of a provision that allows the judge a discretionary competency to determine that the obligee may specifically perform the contractual obligations at a later moment than originally agreed (par. 8.2.2).

The judge should reject a claim for specific performance if the debtor's obligation resulting from that contract is not (yet) due, and the obligor fails to state what his or her specific interest is in an order for specific performance (par. 3.3.3).

The obligee can successfully defend a claim of specific performance in cases of force majeure. If the conditions causing the force majeure have ceased, the claim for specific performance should in principle be granted (par. 5.2).

If the buyer has twice requested repair or replacement without success, the buyer should in principle be able to claim expectation damages without letter of formal notice or terminate the contract (par. 6.4.5).

If specific performance is absolutely impossible, the judge should reject the claim for specific performance, ex officio (par. 8.2.4).

A professional buyer who wrongly fails to conduct a covering transaction, retains his or her right to specific performance, but should compensate the damage that the seller thereby incurs (par. 9.3.5).