Chapter 11 - Performance (I)

Question 1

What is non - performance?

Answer 1

anything falling short from a ‘perfect’ performance constitutes non - performance

Question 2

what are the types of non - performance?

Answer 2

1. defective - not match exactly what the debtor promised
2. impossible - impossible for factual or legal reasons
3. incomplete - not fully fulfilled.
4. delayed - non - performance has to do with time - not delivering in time the wedding dress

Question 3

approach of civil law to non - performance

Answer 3

Civil law: the creditor is entitled to obtain specific performance - obtain anything that was promised to him. If the debtor refuses, the creditor can obtain a court order that forces the debtor to perform. - ‘performance in kind’

Common law: the standard remedy is to pay damages (monetary compensation) since Common Law tends to consider contracts as an economic device, generally concluded to make a profit, so the monetary value is as fair as the performance. In principle, the creditor is not entitled to the performance in kind, unless you convince the judge otherwise and it is an exceptional case

Question 4

In French law, performance can be claimed unless..

Answer 4

1. It is impossible
2. ‘Manifest disproportion’ - what the creditor asks is higher than what the debtor owes. Ejemplo de la empresa de transport

Question 5

The need for court order

Answer 5

In civil law, in order to oblige the other party to perform, a judicial resolution must be done by a court, can’t be you own means

Question 6

What are the 5 things that can happen if the debtor does not comply with the Court order?

Answer 6

1. Imprisonment - GER + ENG
2. Payment of money - bailiff gets the money
3. Performance by bailiff
4. Performance by a third party
5. Monetary penalty for non-compliance