The Criterion of the Apparent Mismatch between the Specific Performance Cost Incurred by the Debtor and the Interest Gained by the Creditor as an Impediment for the Specific Performance of the Obligation in the French Law

Authors

Yousef Shandi, Civil Law department, Faculty of Law, Arab American University, PalestineFollow

Abstract

This paper dealt with the specific performance of the contractual obligations under the Articles (1221 and 1222) of the French civil law as introduced by (Decree 2016 – 131, dated 10/2/2016 amending the contract law, general provisions and evidence). These Articles reinforce the general rule in contracts, i.e. the contractual obligation shall in principle be specifically performed. However, Article (1221) introduces an important exception to this rule. The judge may refuse specific performance requested by the creditor, if there is "an apparent mismatch between specific performance cost incurred by the debtor and the interest gained by the creditor thereof." This exception is in fact a criterion for excluding specific performance. Therefore, this paper shed the light on this criterion by analyzing it according to the French doctrine and jurisprudence. The paper also discussed the reasons and justifications to establish this criterion, and its judicial application in terms of standards and restrictions, with reference to some problems that may arise in this respect.

Recommended Citation

Shandi, Yousef (2023) "The Criterion of the Apparent Mismatch between the Specific Performance Cost Incurred by the Debtor and the Interest Gained by the Creditor as an Impediment for the Specific Performance of the Obligation in the French Law," Journal of the Arab American University مجلة الجامعة العربية الامريكية للبحوث: Vol. 9: Iss. 2, Article 4.
Available at: https://digitalcommons.aaru.edu.jo/aaup/vol9/iss2/4