11.4.3 Defence: Force majeure

Chapter 5 deals with the meaning of admissibility and non-admissibility of the non-performance with regards to the right to specific performance. Whether the obligee can claim the defence of force majeure in avoiding an order for specific performance has been dealt with in par. 5.2. It has been concluded that the obligee can claim force majeure not only with respect to a claim for damages, but also in defending him or herself against a claim for specific performance. After the conditions that created the force majeure have ceased, the obligation to specifically perform rematerialises and the obligee is liable if he or she fails to perform these conditions. However, if, after the conditions creating the force majeure have passed, performance has become unreasonably disadvantageous to the obligee, the obligee is able to claim continuedforce majeure. A seller, who has delivered faulty goods, should either replace or repair the cause of the fault in the goods if this is still possible even if he or she is not the cause of the fault. If a seller is the cause of the fault for the delivery of non-conforming goods, but not the cause with respect to the fault not having been repaired or replaced, the seller is only liable to pay compensation at the moment that repair and/or replacement is once again possible and a formal letter of notice has been sent that allows him an additional, reasonable period of time for performance of that obligation.

Chapter 5 deals with the question whether the obligee can defend against a claim for specific performance with the statement that the intentional breach of contract is efficient according to legal-economic standards. The legal-economic theory of "efficient breach" departs from the position that intentional breach needs to be stimulated, as long as it has a positively efficient effect. According to the theory of efficient breach, the primary remedy of specific performance is undesirable, because the obligor can force the obligee to specifically perform regardless of whether this would be efficient. According to the followers of the theory of efficient breach, damages should be the primary remedy. If damages are the primary remedy, the obligee can choose to perform, or breach the contract and pay damages. The theory of the efficient breach has been challenged by various legal-economists. As well as arguing on the basis of legal-economic theory, they state that the primary remedy of damages is no more efficient than specific performance. The theory of efficient breach is also challenged by social scientists. They are of the opinion that the theory of efficient breach wrongly departs from the position that human behaviour is (only) driven by rational thought instead of (also) by psychological factors. Furthermore, the legal-economic theory has been criticised by ethicists, who state that the theory of efficient breach ignores the fact that the intentional infringement of agreements is reprehensible.

After examining the pros and cons of the plethora of arguments for the theory of efficient breach, it has been concluded that the law on specific performance in Dutch law should not introduce the efficient breach theory. The obligee should not be able to defend against a claim for specific performance by using the statement that the intentional non-performance is efficient. In reaching this conclusion, it must be noted that empirical data are absent with regard to the stated inefficiency of specific performance. Secondly, the criticism that has been expressed from var

ious disciplines with respect to the theory of efficient breach does not add to the credibility of these claims. Finally, this legal-economic theory lacks conviction to be introduced in substantive Dutch law, because it departs from an over-simplified model-based approach to reality that does not do justice to multifaceted factual and legal reality.