1. Specific performance of monetary obligations

Paragraph 1 of the article grants the obligee the right to specific performance of any kind of obligation. The recognition of this right is generally accepted in the Caribbean legal systems in relation to monetary obligations.

In the civil law or continental legal systems, based on the principle of pacta sunt servanda, the obligee can compel the obligor to comply with the obligation (Articles 1.546 Colombian Civil Code and 870 Commercial Code; Articles 692 Costa Rican Civil Code and 463 Commercial Code; Articles 305 Cuban Civil Code and 329 Commercial Code; Article 1.184 French and Dominican Civil Codes; Article 1.535 Guatemalan Civil Code; Article 974 Haitian Civil Code; Articles 1.386 Honduran Civil Code and 747 Commercial Code; Articles 1.949 Mexican Civil Code and 376 Commercial Code; Article 1.885 Nicaraguan Civil Code; Articles 1.009 Panamanian Civil Code and 759 Commercial Code; Articles 1.077 Puerto Rican Civil Code and 250 Commercial Code; Articles 1.167 Venezuelan Civil Code and 141 Commercial Code; which establish for reciprocal obligations the possibility to choose between termination or specific performance). This right faces few obstacles when it comes to the delivery of an unascertained thing such as money (Article 693 Costa Rican Civil Code; Article 3:296 Dutch and Suriname Civil Code; Article 1.847 Nicaraguan Civil Code; Article 981 Panamanian Civil Code; Article 1.049 Puerto Rican Civil Code). The means of obtaining the specific performance of the monetary obligation are regulated in procedural laws (e.g. Article 527 Colombian Code of Civil Procedure; Articles 420 et seqq. Mexican Code of Civil Procedure; Articles 1.038 et seqq. Panamanian Judicial Code; Article 527 Venezuelan Code of Civil Procedure).

In common law as well if the non-performed obligation not is a payment obligation an action for an agreed sum exists. However, these actions for claiming the payment of a sum of money do not fall systematically under the remedy of specific performance, or under the remedy of the payment of damages, since the amount obtained by the injured party is nothing other than the agreed sum, plus interest sometimes. The provisions based on English law regulate two types of actions: firstly, the action for claiming a sum of money resulting from a contract, for example the price of the goods in accordance with the laws on the sale of goods (section 49 Sale of Goods Act of England, of Bahamas, Antigua and Barbuda, Montserrat, and Trinidad and Tobago; section 50 Sale of Goods Act of Belize; and section 48 Sale of Goods Act of Jamaica). Secondly, the action for claiming a reasonable price for the goods sold, in accordance with the regulations governing the sale of goods, if the price was established in the contract (section 8 Sale of Goods Act of England; section 10 Sale of Goods Act of Bahamas, Antigua and Barbuda, Montserrat, Trinidad and Tobago and Belize; and section 9 Sale of Goods Act of Jamaica). It is established as a requirement in the first case that the right of ownership has passed to the buyer; however, if the price must be paid on a particular date, regardless of the delivery, and the buyer refuses to pay, the seller has an action for claiming the price, although the right of ownership has not passed to the buyer. The United States legislation on the sale of goods also regulates the action for price in Section 2-709 UCC.

The right to claim the payment of a monetary obligation is likewise regulated in the texts of the uniform law. Indeed, and for the contract for the sale of goods, Articles 62 CISG and 132 CESL grant the seller an action for claiming the payment of the price. And, in general, for sums of money, Articles 7.2.1 UP; 9:101 PECL and 3:301 DCFR recognise the obligee‘s right to receive performance. These two last-named provisions consider the possibility provided by common law rules on the sale of goods that the obligee can continue the performance and receive the payment of the price even though it has not delivered the goods. However, they establish two limits to this right, namely: that the obligee could have carried out a reasonable replacement transaction without significant effort or cost; or that the performance was not reasonable according to the circumstances.

Hence, the proposed rule is in accordance with all the systems present in the OHADAC zone in relation to monetary obligations. This provision applies to all of the monetary obligations, whatever the currency in which the payment has to be made, and includes the obligations to pay damages if they concern the payment of a sum, which is the normal case. The procedural channels for the claim will be those set out by the national laws.

Despite the general manner in which the provision has been expressed, the right is not unlimited, but its exercise must be adequate for meeting a criterion of reasonableness. Subsequently, and in accordance with the PECL and DCFR, if the goods have not been delivered or the services have not yet been provided, these principles will advise the realisation of a reasonable replacement transaction, in accordance with the rules on mitigation of the damage (Article 7.4.3 OHADAC Principles).

2. Specific performance of non-monetary obligations

As a consequence of the binding and obligatory nature of the contract (Article 1.2 OHADAC Principles), the obligee should be able to claim the specific performance not only of the monetary obligations, but also of the non-monetary ones. However, this effect of the enforceability of the contract is not common to all the systems present in the Caribbean zone, since, while specific performance as a remedy for the non-performance of any kind of obligations is admitted without any problems in the civil law or continental legal systems, it is an exceptional remedy in common law.

Indeed, in the civil law or continental legal systems, the claim for performance has traditionally been considered the key remedy, as a consequence of the principle of pacta sunt servanda, and it is generally recognised in all of the codes for the obligations to deliver, and for affirmative and negative covenants. Hence, in the laws of the civil law tradition, provisions are contained which entitle the obligee to request the court to compel the obligor to carry out the delivery (obligations to deliver an ascertained thing); or the obligation is performed at the obligor's expense (obligations to deliver an unascertained thing and affirmative covenant); or that the harm done is undone also at the expense of the non-performing obligor (affirmative and negative covenant): Articles 1.546, 1.610, 1.612 Colombian Civil Code and 870 Commercial Code; Articles 692, 693, 694, 695, 696 Costa Rican Civil Code and 463 Commercial Code; Articles 233, 289, 290 and 291 Cuban Civil Code; Articles 1.184, 1.143 and 1.144 French and Dominican Civil Codes; Articles 1.535, 1.323, 1.324 and 1.327 Guatemalan Civil Code; Articles 974, 933 and 934 Haitian Civil Code; Articles 1.386, 1.357, 1.359 Honduran Civil Code and 747 Commercial Code; Articles 949, 2.027, 2.028, 2.064 Mexican Civil Code and 376 Commercial Code; Articles 1.885, 1.847, 1.849, 1.850, 1.853, 1.856, 1.858 Nicaraguan Civil Code; Articles 1.009, 981, 983, 984 Panamanian Civil Code and 759, 774 Commercial Code; Articles 1.077, 1.049, 1.051, 1.052 Puerto Rican Civil Code and 250 Commercial Code; Articles 997-998 Saint Lucian Civil Code; Articles 1.167, 1.266, 1.268 Civil Code and 141 Venezuelan Commercial Codes. The specific performance of non-monetary obligations is regulated in the same vein in the Dutch and Suriname Civil Code (Articles 3:296 and 3:299).

On the contrary, in Anglo-American law, the normal remedies for non-performance are the claim for an agreed sum, if the non-performance is of a monetary obligation, and the claim for damages in the other cases. The specific performance is an exceptional remedy that can to be granted on a discretionary basis by the courts in some cases. If the claim for performance is based on an obligation to deliver or an affirmative covenant, the remedy is called order or decree of specific performance; and if it is based on a negative covenant (not to do something), one is then in the presence of an injunction. However, the terminology is variable, since sometimes injunction is used for the specific performance of affirmative covenants.

The exceptional nature of the remedy [Co-operative Insurance Society Ltd v Argyll Stores Ltd (1997), UKLH 17; sections 345, 357-369 Restatement (Second) of Contracts] determines that it is only granted if the damages are inadequate to repair the non-performance [Beswick v Beswick (1968), AC 58], either due to the impossibility or extreme difficulty of the calculation of the damage, or because the service that has not been performed is unique and irreplaceable (e.g. a particular real estate property or movable property which is not easy to find in the market or which has an emotional value for the acquirer). This is also the basis of the prospect of specific performance in the laws governing the sale of goods in England and in the Caribbean territories under its influence (Article 52 Sale of Goods Act of England, of Montserrat, Antigua and Barbuda, Bahamas, and Trinidad and Tobago; Article 53 Sale of Goods Act of Belize; and Article 51 Sale of Goods Act of Jamaica).

However, in the United States, the courts have extended the remedy of specific performance to cases of sale of unascertained goods whose delivery is urgent for the buyer, or which are impossible or very difficult to substantiate under the circumstances of the case. This tendency has been confirmed legislatively in Section 2-716 UCC and although this current is not clearly appreciated in English law it has sometimes justified some terminations [Sky Petroleum Ltd v Petroleum Ltd (1974), 1 WLR 576].

On the other hand, given that it is an exceptional remedy, the courts will calibrate the provenance of the remedy, taking into account, for example, the balance between the harm that the specific performance inflicts on the obligor and the benefit obtained by the obligee, the obligee's own conduct or the contractual balance. In addition, the remedy is not available in employment contracts and contracts for personal services [Lumley v Wagner (1852), EWHC (Ch.) J96; Duff v Russell (1891), 14 NY Supp. 134]; or in the continuous contracts or contracts for continuous performance (construction contracts and contracts for other provisions of services) either, due to the difficulty of supervision of the performance on the part of the courts (difficulty of supervision); finally it is excluded if, due to the nature of the contract, the parties may not reciprocally claim specific performance.

This uneven panorama presented by the national legislations obliges us to be cautious when regulating specific performance for the non-monetary obligations in the OHADAC Principles, since the differences between the civil law or continental and Anglo-American legal systems of the Caribbean zone are not only theoretical, and the clash between principles that are fundamental in the different States must be avoided. Therefore, it has been decided to follow the example of the texts of the uniform law (Articles 46 CISG; Article 7.2.3 UP; Article 9:102 PECL; Article III-3:302 DCFR; Article 110 CESL), conceding the claim for performance in the same manner as the civil law or continental legal systems (Article 7.2.1), but regulating exceptions that tie in with the model of common law (Article 7.2.2).

This is intended to recognise the advantages of the remedy of the right to receive performance, which provides a response to the binding force of the contract and is the most adequate remedy for the full satisfaction of the obligee's right. But it is also accepted that this right to compel the obligor to render its performance must be aware of limits.

On the other hand, just like what occurred in the previous article, it will be the national legislations that will mark out the procedural channels for achieving the specific performance.

3. Scope of the right to specific performance

Paragraph 2 of the proposed provision concerns the case where the performance is not in accordance with the agreed programme of services (defective performance or partial performance). For these cases, the claim for performance involves the right to the rectification of the defects of the performance, whether through the correction or reparation of the performance, or through the replacement of the defective goods by another one in conformity.

In the Caribbean legal systems of the civil law tradition the reparation or replacement of the defective performance are not regulated, apart from the claims involving buildings in contracts for the sale of goods, which deal with the traditional topic, i.e. which permit the buyer to choose between discount of the price or termination (and not through the rectification of the defect). These cases are only regulated for consumer contracts (e.g. Article 80 Venezuelan Law for the Defence of the Persons for Access to Goods and Services; Articles 11, 13 and 29 Decree 3466 of 1982, for Colombia).

Likewise, in French and English law, the transposition of Directive 1999/44 provide consumers with the right to have non-conforming goods repaired or substituted (Articles L 211-1 a L 211-18 Code of Consummation; and Part V of Sale of Goods Act 1979), but no general regulation of the claim exists for commercial contracts. In Anglo-American law, the ordinary remedy for a defective performance is damages. The obligor can avoid the liability for damage by rectifying the defect, but it cannot be compelled to do this by the obligee.

Indeed, the reparation of the non-conforming performance is regulated in Dutch law, both generally (Article 7:21 Dutch and Suriname Civil Code), as well as in consumer contracts (Article 7:22 Dutch and Suriname Civil Code). And it is also detailed in the texts of the uniform law. Hence, Article 46.2º CISG permits the buyer to request substitution if the lack of conformity constitutes a fundamental non-performance; in other cases, it will carry out the reparation in accordance with paragraph 3 of the same article. The CESL provides for the right in general in Article 110.2º CESL, regulating this for consumer contracts in Article 111 CESL. And, finally, the remedy is also regulated in Articles 7.2.3 UP, 9:102 PECL and III-3:302 DCFR.

The right to reparation or substitution of the non-conforming performance in the OHADAC Principles is subject to the same limits as the general claim for performance, and which are enumerated in the following article.