SPECIFIC PERFORMANCE: ON FREEDOM AND COMMITMENT IN CONTRACT LAW

Hanoch Dagan*, Michael Heller

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

When should specific performance be available for breach of contract? This question—at the core of contract—divides common-law and civil-law jurisdictions and it has bedeviled generations of comparativists, along with legal economists, historians, and philosophers. Yet none of these disciplines has provided a persuasive answer. This Article provides a normatively attractive and conceptually coherent account, one grounded in respect for the autonomy of the promisor’s future self. Properly understood, autonomy explains why expectation damages should be the ordinary remedy for contract breach. This same normative commitment justifies the “uniqueness exception,” where specific performance is typically awarded, and the personal services exclusion, where it is not. For the most part, the boundaries of specific performance in the common law track our underlying commitment to autonomy. But not entirely. There’s still work to be done on both sides of the common/civil-law divide, and this Article points the way with doctrinal reforms that can better align specific performance with its animating principles.

Original languageEnglish
Pages (from-to)1323-1372
Number of pages50
JournalNotre Dame Law Review
Volume98
Issue number3
StatePublished - 2023

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