Remedies for breach of contract: a comparative analysis of the protection of performance

292 Pages·2012·2.21 MB·English

by  Rowan

REMEDIES FOR BREACH OF CONTRACT
A Comparative Analysis of the Protection of Performance
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Remedies for Breach of
Contract
A Comparative Analysis of the
Protection of Performance
SOLÈNE RO WAN
1
3
Great Clarendon Street, Oxford OX2 6DP
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For Gregg and Louis
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Preface
My interest in comparative law began during my legal studies in England and
France, initially as an undergraduate in London and Paris, and then as a graduate
in Cambridge. It is an interest that has not stopped growing, leading me to embark
upon the doctoral research which lay the foundations for this monograph.
Both my doctoral thesis and this monograph have benefi ted from the help of a
number of people to whom I would like to express my sincere thanks. I am grateful
to my thesis supervisor, and now colleague, Professor John Bell, for his constant
support and encouragement. He has been unfailingly generous in the time that he
has spent guiding my research, reading my work, discussing my ideas, and advising
me in relation to my career.
My thanks also go to colleagues and friends for discussing and comment-
ing upon aspects of the book. I am particularly indebted to Professor Richard
Fentiman, Dr Ruth Sefton- Green, Dr Peter Turner, and to my two PhD examin-
ers, Professor John Cartwright and Professor Simon Whittaker. I would also like
to thank the staff of the Squire Law Library for their assistance in locating books
and articles. I am equally grateful for the support given to me by the President and
Fellows of my employer, Queens’ College, Cambridge.
Special thanks are due to my parents for steering me through many years of
study. Th ey have always insisted on the value of hard work and the importance of
higher education. As I grow older, I am increasingly grateful for their persistence.
I am reminded in particular of the unchanging birthday wish of my father, which
was ‘des bonnes notes à l’école’. My sister also deserves my thanks for the ambition
that she has always instilled in me. More recently, I have been helped by the sup-
port of my family- in- law. Th ey have been particularly kind in taking care of my
baby son, Louis, as this monograph neared completion.
Th is monograph is dedicated to my husband, Gregg, as well as to Louis. I owe
my greatest debt to Gregg. Quite simply, the monograph would not have been
written without him. He has been a source of love, patience, and encouragement.
I am grateful for his support and confi dence in me, which has never once failed.
He has graciously listened to and discussed ideas relating to my work on countless
occasions. Undoubtedly he has, in spite of himself, become very knowledgeable in
comparative contract law. And to Louis, of course, for being the most wonderful
baby in the world.
Solène Rowan
Cambridge
August 2011
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Contents
Table of Cases xiii
Table of Legislation and Other Materials xxiii
Introduction 1
A Contractual Performance 1
B Th e Protection of Contractual Performance 3
C Remedies under Consideration 4
D Comparative Considerations 5
E Reform at European Level 9
F Th e Monograph in Outline 11
1 Th e structure of the monograph 11
2 Th e arguments of the monograph in outline 12
I THE SPECIFIC ENFORCEMENT AND
THE DISCHARGE OF PRIMARY OBLIGATIONS
1 Compulsion 17
A Introduction 17
B Specifi c Remedies in English Contract Law 20
1 Th e award of an agreed sum 21
2 Specifi c relief in equity: specifi c performance and injunctions 25
3 Concluding remarks on specifi c remedies in English law 36
C Specifi c Remedies in French Contract Law 37
1 Th e wide availability of specifi c remedies 37
2 Th e reasons underlying the wide availability of specifi c remedies 49
3 Concluding remarks on specifi c remedies in England and France 52
D A Wider Approach to Specifi c Remedies in English Contract Law? 56
1 Th e surmountable objections of ‘constant supervision’ and
‘contempt of court’ 56
2 A narrow approach to the interests of the injured promisee 59
3 F urther policy objections to specifi c performance and
mandatory injunctions 62
4 Widening the availability of specifi c remedies in English contract law 63
E Conclusion 68