11.3 Second sub-question: Requirements

The second sub-question is dealt with in Chapter 3: Which requirements of claim must the obligor satist in order to be able to obtain an order for performance? An obligor who claims specific performance only needs to argue that the contract exists and that the contractual obligation flows from this contract. The obligor needs neither state that the opposing party has failed to perform, nor satisfy the more arduous requirement of a qualified non-performance which means a non-performance of an obligation which is due and, if the performance is still possible, that the debtor is placed in the position of mora debitoris. An obligor must state that performance of the debtor's obligation resulting from the contract is due, or which specific interest he or she has in obtaining a declarative judgment for an obligation not yet due. Unlike damages and termination of the contract, failure to perform is not a requirement for specific performance. An obligor claiming specific performance will in practice send a formal notice of failure, even though he or she is not bound by the formal requirements of Article 6:82(1). If the obligor fails to communicate to the opposing party that he or she desires specific performance of the contract, the judge will not reject the claim for specific performance, but may order the obligor to pay costs if dwing the hearing the obligee agrees to specifically perform the obligation. A non-consumer buyer who claims replacement of faulty goods only needs to state that the seller has delivered non-conforming goods. A buyer who claims replacement is not required, according to Dutch law, to state that the non-conformity is serious enough to justify replacement of the goods (Article 7:21(1)(c) in combination with Article 7:17).