May 12, 2010


In English law damages are the normal and regular form of remedies. Nevertheless a certain number of exceptions can be seen. First a performance order can be issued in equity, then of course if the object is unique i.e. (art, jewellery, family property). The damages due are of different kinds: restitution damages, (for advanced payments for example), reliance (for expenses) and loss of expectation the victim is entitled to be in the same position as if the contract was performed.

This last category of damages is very similar to the French article 1149 of the civil code about potential loss suffered and deprived profit. Indeed French law is very protective of the victim in most the cases the creditor. The way of protecting it is by enforcing the contract, at least where it is generally possible that is to say when it deals with something to be given. As provided in article 1243 Civil Code, the creditor doesn’t have to accept other sorts of payment even if they are greater.

If the obligation concerns action, “to do or not to do something” damages are the only issue, and then the contract won’t be valid. As English law, with damages principle is assuring a kind of certainty for remedies (due as already specified in other blog entries) to commercial reasons), the French approach will be more focus on a, sometimes very abstract or even utopian idea of fairness, considering the “victim of the breach”.

But here the German way of dealing with the issue is the most open and free towards the rigour of the contract. Indeed different options are possible. As article 325 BGB provides “Rücktritt” (rescission) is only an alternative to damages, but for example of delays Article268 BGB states that compensation is needed. In French law pacta sunt servanda principle is illustrated in article1134. The clausula rebus sic stantibus theory (imprevision)has no place, English law allows revision of the contract when complete main and serious changes occur, and still based on the “True und Glauben” principle German law can allow a revision of the contract if circumstances have been frustrated.

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