| Summary: | 碩士 === 國立臺北大學 === 法律學系一般生組 === 105 === In order to clarify the position and functions of the specific performance in the system of breach of contract and its remedies, this article first overlooks contract law’s unified documents and new German civil law. Both of them describe breach of contract as non-performance. New German civil law use non-performance which means not performing any obligations according to the contracts and regulations to replace the traditional non-performance that connects to the fault theory. On the contrary, the new definition of non-performance doesn’t connect to this theory. Contract law’s unified documents’ and new German civil law’s remedies include specific performance, termination, price reduction and damages. In addition, according to change of circumstances there is contract adjustment. Specific performance has been deemed as the prior remedy under many unified document, which engenders the core issue of the article. The question is when the creditor cannot claim specific performance.
The core issue of this article is to discover the boundaries of specific performance. Contract law’s unified documents’ performance limitations were divided into two categories, monetary and non- monetary obligations. The former’s boundaries contain a reasonable substitute transaction without significant effort or expense, or performance would be unreasonable in the circumstances. The latter’s boundaries contain impossibility, unreasonable effort or expense, the performance consists in the provision of services or work of a personal character or depends upon a personal relationship, or the aggrieved party may reasonably obtain performance from another source. The aggrieved party has a duty to seek specific performance within a reasonable time.Except for CISG, according to contract law’s unified documents, if debtor was excused, creditor could not obtain specific performance and damages, which forms the general exception of the specific performance. Not until 2002 year came did the German modernize their contract law. German new civil law specific performance’s exceptions were written in article 275, which includes impossibility, significant effort or expense, and performance of an exclusively personal character. For example, performance would be unlawful or physically impossible, or seller accidently let the ring drop in the lake which would cause significant expense, or singer can not perform because her child has a fever. Undoubtedly, specific performance’s boundaries are highly in common according to the regulation of contract law’s unified documents and new German civil law. This harmonization clearly guides the way to reform the exceptions of specific performance.
Finally, this article observes our practice’s development. In the perspective of comparative law, this article tries its best to analyze the absences of our current system and provide legislation suggestions of specific performance’s boundaries, using a smaller degree to modernize our civil law and harmonizing our civil law with the international contract law.
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