Reproduced with permission of 16 Journal of Law and Commerce (1997) 291-313
The United Nations Convention on Contracts for the International Sale of Goods (CISG)  contains some remedial provisions for breach of contract that are familiar to common law lawyers. Other remedial provisions are familiar (or at least more familiar) to civil law lawyers. Such a mixing of remedies is bound to occur given the long negotiation and compromise process that led to the final text of CISG. Compromise is understandable, but the commingling of different remedies in one integrated document by no means creates a model of clarity or certainty. Both civil and common law lawyers must function within CISG's potentially confusing text. Part of this function will likely take the form of advising clients which remedies to seek. Specific performance is one remedy available under CISG, and clients may well wish to pursue it. Unfortunately, specific performance is one of the more confused areas of CISG and was one of the biggest obstacles to reaching a compromise on the final text. Therefore, the availability of specific performance in all but the clearest cases is likely to be uncertain.
In the face of this uncertainty, CISG commands that it be interpreted so as to further its goal of uniformity in international sales law and take into consideration its international character. The lack of coherence in CISG's specific performance rules can therefore undermine the express directives of Article 7(1), if courts are left to apply the specific performance provisions without guidance from a source that would promote uniformity and CISG's international character. Such a source could be the text of CISG or an outside source. To date, it is impossible to tell [page 291] whether courts have applied the specific performance provisions in ways that contravene uniformity and international character because there are no reported cases that deal with specific performance to any substantive extent. Article 28, however, expressly instructs a court to apply the limits on specific performance contained in the court's domestic law. Given these instructions, the potential exists for the application of CISG in a non-uniform (indeed, highly parochial) way. Besides detracting from the uniformity and international character of CISG, a parochial or variable application of the specific performance provisions will lead to uncertainty in international commercial transactions. Parties will be unsure whether specific performance will be available in a given transaction if a suit can be brought in two or more places, one of which disfavors specific performance. Certainty and predictability are goals that CISG should aim for, and the term "uniformity" embodies those goals to some extent.
There are several solutions to these potential problems. One obvious solution is for the parties to state in the contract whether specific performance is available as a remedy, or to exclude the application of whatever specific performance provisions they wish. Also, a choice of forum clause will add certainty to the transaction by eliminating the Article 28 problem. Another solution is for the party who is uncertain about the availability of specific performance to sue for damages instead. These solutions are certainly practical, but not without their own problems. International agreements are hard enough to conclude when the parties concentrate only on substantive performance and ignore the possibility of breach. Damages may not be what the aggrieved party wants. The solution this paper suggests is that courts confronted with requests for specific performance consult what appears to be a middle ground [page 292] between the civil law and common law. Three of the main common law jurisdictions have smaller civil law jurisdictions within them: Louisiana in the United States; Quebec in Canada; and Scotland in the United Kingdom. Obviously, a court outside Louisiana or Quebec cannot use jurisprudence from those jurisdictions as controlling precedent or doctrine. However, the methodology and results of specific performance cases in Louisiana and Quebec can teach courts and others that specific performance is not something to be applied or rejected based entirely on doctrinaire thinking. This paper emphasizes how Louisiana and Quebec jurisprudence can affect common law thinking, although civil law courts are also bound to consider Article 28 in matters of specific performances.
This paper first discusses the CISG provisions that govern specific performance as an introduction to the relevant law and its difficulties. Then, specific performance is considered in the context of the "real world" of international commercial transactions. The paper discusses the treatment of specific performance in that world, in both common law and civil law systems. This paper then takes the differences revealed in comparing the common and civil law approaches and examines how Louisiana and Quebec have dealt with these differences. Using the Louisiana and Quebec examples, courts can help develop a model for a unified and international interpretation of CISG. Finally, the paper concludes by acknowledging the limitations and problems inherent in attempting a unified and international interpretation of CISG.
II. Specific Performance Under CISG
Article 46 is divided into three subparts.Article 46(1) sets out the buyer's general right to specific performance of the seller's obligations, provided that the buyer has not pursued a remedy inconsistent with requiring performance. Article 46(2) grants the buyer the right to require delivery of substitute goods in the case of non-conforming goods and under certain circumstances. Article 46(3) provides that the buyer may require the seller to repair non-conforming goods under circumstances [page 293] similar to those in Article 46(2). All three subparts can be grouped under the buyer's right to specific performance because the nature of the remedy in all the subparts requires the seller to deliver conforming goods or perform other obligations. Articles 46(2) and 46(3) describe remedies which are generally not available in a common law system.
Article 46 gives the buyer an apparently broad right to require performance. Other than references to inconsistent remedies, Article 46 imposes no limits on the right to require performance within its text. The reason Article 46 mentions no limitations is apparently to impress upon the seller the importance of his or her obligations. This in terrorem effect of Article 46 is embodied in another Latin phrase familiar to the civil law: pacta sunt servanda. Professor Will asserts that the seriousness of the seller's obligations can lead the buyer to require performance through a "mere declaration" or through a court order. This is not surprising, considering that the buyer is free to declare whatever he or she wants; the problem is, of course, getting the seller to act on the declaration. However, merely reading Article 46 might sway a recalcitrant seller. The inconsistent remedies referred to in Article 46 are avoidance of the contract under Article 49  and price reduction under Article 50. The buyer's election of those remedies prevents the buyer from later demanding performance. All other remedies, significantly damages, are not inconsistent with requiring performance. Damages are expressly made consistent with most other remedies under Article 45. Professor Honnold suggests, however, that inconsistency of remedies may arise in other situations depending on the facts of the transaction and the timing of the remedies. The obligations that the buyer may require the seller to [page 294] perform are covered under Articles 30 through 34, and under Articles 41 and 42. Those obligations include the obligation to produce, procure, or deliver goods at a place or time required by the contract  and the obligation to deliver the goods free from third-party claims.
Articles 46(2) and 46(3) contemplate seller's delivery of nonconforming goods and the buyer requiring substitute goods, or repair of defective goods. The availability of these two remedies is restricted by the terms of Article 46. Article 46(2) restricts the buyer's right to require delivery of substitute goods to situations where the nonconformity amounts to a fundamental breach under Article 25. Article 46(3) restricts the buyer's right to require repair to situations where it is reasonable. Both provisions require that the request for repair or substitute goods be given with the notice of nonconformity indirectly required under Article 39  or within a reasonable time thereafter. Strangely, neither Article 46(2) nor 46(3) refers to inconsistent remedies. However, it appears that the choice of an inconsistent remedy does preclude the buyer from later demanding repair or substitute goods. Article 81 dictates this result by providing that avoidance of the contract releases both the buyer and the seller from their obligations under the contract. Essentially, the avoiding buyer releases the seller from the obligation to provide repair or substitute goods. Also, the requirement in Article 46(3) that repair be reasonable in the circumstances may operate to prevent inconsistent remedies; if the buyer declares the contract avoided, it would seem more unreasonable for the seller who relied on the avoidance to be expected to repair after taking the usual steps attending avoidance (such as resale or taking back the [page 295] goods). Despite this, the reference to reasonableness in Article 46(3) recognizes mainly practical difficulty in repair, i.e., expense.
Despite the broad pronouncements of Article 46, there are important limitations elsewhere in CISG that affect the buyer's right to compel performance. Most importantly, Article 28 can restrict the ability of a court to require performance and is discussed in detail below. Article 7 indirectly requires that all remedies be exercised in good faith. The oblique requirement of good faith effectively prevents the buyer from speculating at the seller's expense and from punishing the seller by requiring performance when it would be onerous to do so.  Article 77 is CISG's mitigation of loss provision; other provisions deal with the buyer's duty to preserve the goods. Mitigation and preservation duties can affect the availability of specific performance, especially if the buyer would be forced to resell the goods to prevent rapid deterioration. Professor Kastely disagrees with Professor Honnold and notes that Article 77's language does not support its connection with the specific performance provisions, and that its drafting history reveals that it was never meant to limit specific performance remedies. Both Professors Honnold and Kastely have persuasive arguments, so that a court applying CISG may have to decide which of them is correct. In short, it can certainly be said that Article 77 might operate to limit the availability of specific performance. Finally, it should be noted that circumstances outside of the contract can prevent one party from requiring another's performance.
Much of what was said of the buyer's right to compel performance applies to the seller's right to compel performance under Article 62. Because there are fewer buyer's obligations, Article 62 is conceptually [page 296] simpler than Article 46. Article 62 sets forth in broad terms, the seller's right to require payment of price, taking delivery, or any other buyer's obligations. The concept of pacta sunt servanda likely is responsible for the use of language that mirrors the broad language of Article 46.
Analogous to Article 46, the seller loses the right to require performance by choosing an inconsistent remedy. The only inconsistent remedy available to the seller is avoidance under Article 64. Professor Knapp notes that the seller's election of Nachfrist avoidance procedure (Article 63) is inconsistent only so long as the Nachfrist period lasts. The biggest potential problem with Article 62 is what happens when a seller tries to force a buyer to accept goods he or she does not want, or to pay for goods that have been delivered but not accepted. The plain language of Article 62 indicates that the buyer may be required to pay the price, accept the goods, or perform other obligations unless the buyer or seller successfully avoids the contract. Professor Kastely states simply that this is what may be demanded of the buyer. Of course, the right to require performance is limited by Article 28, as is discussed below. Also, Professor Honnold asserts that Articles 85 and 88 will eventually force a seller into resale when the buyer is especially reluctant to take the goods. Finally, the good faith and mitigation of damages provisions discussed above will prevent the seller from "punishing" the buyer or speculating at the buyer's expense.
Article 28 is the compromise that grew out of the tension between the civil law and the common law over specific performance. A careful reading of Article 28 reveals that the language is rather straightforward with only a few ambiguities. Specifically, the phrases "judgment of specific performance," "under its own law," and "similar contracts of sale not governed by this Convention" are rather vague. Each of these phrases will be dealt with in turn.
The main problem with the phrase "judgment of specific performance" is that its meaning varies depending on whether a civil law lawyer or a common law lawyer is reading it. In common law, a decree of specific [page 297] performance refers to an order that could only have been made by a court of equity. The concept of specific performance in the civil law is much broader and can encompass any mechanism that lets the aggrieved party receive what he or she is entitled to under the contract. The civil law notion of specific performance can therefore include such common law remedies as recovering the price of cover or purchasing substitute performance at the breaching party's expense. In addition to the disjointed references between the common law and civil law, there are specific remedies within CISG that do not quite fit into the common law notion of specific performance. Professor Honnold points out that a judgment of specific performance at least includes actions under Articles 46 and 62. However, requiring substitute delivery or repair is largely unknown under common law. Therefore, a question arises whether Article 28 would limit the applicability of Article 46(2) or 46(3) remedies, when they are not cognizable at common law as judgments for specific performance. Professor Kastely argues that the resolution of this question could severely limit the applicability of several remedies, contrary to the intent of Article 28's drafters. Clearly, the phrase "judgment of specific performance" is sufficiently ambiguous to support the conclusion that both common law courts and civil law courts will be affected by Article 28. In any event, the ambiguity of the phrase "judgment of specific performance" may make it quite difficult for any court to apply its own domestic law. Because of this difficulty and because Article 28 seems to apply equally to civil law and common law courts, perhaps both systems should modify their stances on specific performance in order to avoid any difficulty.
The ambiguity in the phrase "under its own law" is apparent. Nearly all the commentators view the phrase to mean the law of the forum where suit is brought, and not the law that would govern the case through choice of law principles. Any other construction has the potential to make Article 28 a nullity or to create problems of renvoi. Despite the agreement of the commentators, which is based both on policy and [page 298] drafting history, the phrase "under its own law" is unclear on its face and may confuse courts that do not have the benefit of commentary.
The final problem with Article 28's wording is the phrase "similar contracts of sale not governed by this Convention." Professor Walt concludes that this phrase should be read to mean contracts that are outside the scope of CISG, i.e., primarily domestic contracts for sales of goods. Therefore a court would not be required to grant specific performance under CISG unless it would do so under the court's substantive law of contracts in a domestic sales case. This is certainly a reasonable interpretation, but it would require a civil law court to examine what it has done in similar domestic cases. This is not entirely consistent with the civil law judge's function.
The three ambiguous phrases reveal the potential problems of Article 28 and also reveal its application to an extent. However, the problems only hint at how or why Article 28 serves to restrict the availability of specific performance in either common law or the civil law jurisdictions. Professor Honnold indicates that Article 28 is meant to restrict specific performance in both the common law and civil law courts by referring to restrictive domestic common law and to domestic civil law (which is permissive in theory but restrictive in practice). In short, this plain meaning-based argument is: common law courts will be referred to their own restrictive law, which may leave room to grant specific performance as a discretionary remedy; civil law courts will be referred to their own permissive law, but will have Article 28 to rely on in refusing to grant specific performance when the burdens are too great. For Professor Honnold, the compromise lies in the fact that both civil and common law courts will be able to deny specific performance when it would be wasteful or onerous to grant it.
Both Professors Kastely and Walt view the compromise of Article 28 differently. Professor Kastely maintains that the negative phrasing of Article 28 and Article 7's mandate of uniform and international interpretation counsel toward common law courts granting specific performance as a discretionary remedy even when the court's domestic law would not [page 299] require granting specific performance. Because specific performance would therefore be a discretionary remedy, Professor Kastely argues that the expectations of the parties to a typical international transaction and their typical circumstances create the need and opportunity for the liberalized granting of specific performance. Professor Walt uses his comparison analysis to determine that the contracts similar to international contracts to which CISG applies are contracts where the buyer's market has a limited or static supply of goods. From Professor Walt's point of view, contracts where goods are unusual or in fixed supply in the buyer's market should be compared at the international and domestic levels. Professor Walt notes that U.C.C. § 2-716 and the cases thereunder routinely grant specific performance in such circumstances. In essence, Professor Walt's argument is: (1) one reason international sales occur in the first place is because goods are in short or fixed supply in the buyer's market; (2) when goods are in short or fixed supply, an aggrieved party often requests specific performance; (3) United States domestic law routinely grants specific performance under U.C.C. § 2-716 in cases where goods are in short supply in the buyer's market; so therefore, (4) Article 28 really does not impose any limitation because the typical international sale presents a situation that, under domestic law, would lead to the granting of specific performance.
So far, CISG's specific performance provisions seem to raise more questions than they answer. Above all, there is still the spectre of a non-uniform and parochial interpretation of CISG invited by Article 28. The dilemma of uniformity in specific performance can best be understood by taking a realistic view of the problem.
III. Specific Performance in the Real World
In a common law jurisdiction, specific performance in its broadest sense refers to a decree made and enforced in equity. The separation of law and equity caused the restrictive state of specific performance in the common law today. While common law courts awarded damages, equity courts could grant specific performance and other extraordinary remedies. The theory of adequacy of damages developed to minimize the conflict [page 300] between the two court systems. If damages adequately compensated the aggrieved party at law, he or she could not turn to equity for specific performance. The common law is not as hostile to specific performance as it once was. Section 2-716 of the UCC provides for specific performance by the seller when the goods are unique "or in other proper circumstances." The proper circumstances tend to approach uniqueness of the goods, but the court is still left with discretion. There are other limits imposed by the U.C.C. and by various common law doctrines.
In recent years, there have been several calls for the increased availability of specific performance in all contracts. Most of the commentaries focus on the idea that "efficient breach" is not efficient (because it presumes without proof that damages adequately compensate) or the idea that specific performance is more efficient than breach (because it achieves the goal of compensation better and reduces transaction costs in the negotiation and performance of contracts). As shown earlier, both Professors Walt and Kastely advocate the increased availability of specific performance under CISG. Professor Walt devotes a substantial portion of his article to economic analysis of specific performance in the international sales setting. Professor Kastely also mentions the inadequacies of efficient breach theory, although the main point of her argument is that CISG requires specific performance by its own terms.
In contrast to the common law, civil law systems view specific performance as the preferred remedy for breach of contract. Part of the reason for this is probably because there was never a separation of law and equity in continental Europe where the civil law developed. Professor Treitel points out the differences in terminology that tend to confuse the comparison of specific performance in civil law and common law systems. Because of the broader scope of the term specific performance when used in the civil law, common law lawyers looking to a civil law system are likely to see remedies that look like cover or consequential damages labeled as specific performance. The difference in terminology [page 301] does not dispel all differences between the common law and civil law, and the fact is the preferred remedy is to force the breaching party to perform. A complete explanation of specific performance is beyond the scope of this paper. Professor Treitel's treatment of specific performance under civil law systems can be summarized briefly as follows: although specific performance is the premiere remedy in civil law, it is restricted in one way or another in all jurisdictions. Thus, obligations to do something are treated more restrictively in French civil law than obligations to give something (via a sale). Also, German law recognizes, inter alia, an exception to the general rule of specific performance where enforcing performance requires or involves unreasonable effort or expense. There are several ways in which the breaching party's performance is compelled, which can range from fines, to contempt, to payment of money damages to the aggrieved party. Contempt is a rarely used enforcement mechanism in nearly all legal systems. This cursory introduction to specific performance in the civil law requires explanation of the terminology. Civil codes, and therefore the civil law, generally refer to the breaching party as the debtor or obliger and the aggrieved party as the obligee or creditor. This results from the usual treatment of contract law in civil codes, which is generally codified in a book or chapter entitled "Obligations."
After highlighting the differences between the civil law and common law one must look at the practical implications of the different theories. A way of phrasing this inquiry would be to ask what these differences really mean in practice. The most succinct answer to that question is "not much." All the CISG commentators cited above acknowledge that there is little practical difference between the use of specific performance  in the common law as compared to the civil law. Studies reveal that demands for civil law specific performance are rarely made and the demands are usually only granted in situations where a common law [page 302] court would do the same. The reasons for the practical similarity are generally grounded in the reality of business transactions. Where goods are fungible and easily obtainable, an aggrieved party will generally seek cover rather than wait for litigation to get goods he or she presumably needs. Likewise, a seller may simply resell rather than have goods sitting idle and taking up space until the outcome of litigation. After procuring cover, the option of specific performance is generally foreclosed. Finally, an aggrieved party may not want the breaching party's performance after the breach because the breach reflects the quality of their goods or performance.
In the area of international sales, however, the realities may counsel more toward specific performance than in other situations. First, Professor Walt is probably correct in assuming that international sales are largely driven by a fixed supply in the buyer's local market. Despite Professor Walt's questionable assumptions about the underlying reasons for international sales, there is a more persuasive argument that an international sale where the goods are locally scarce is a convincing case for specific performance. A seller would have a strong argument for specific performance when the goods have been shipped to a foreign port where the seller is not likely to have any facilities set up for reselling the goods. The expectation of the parties may be that specific performance would be granted because of the prevalence of specific performance in several legal systems worldwide. Finally, one of the criticisms levied against the theory of efficient breach is that the parties are in the best position to determine whether damages or specific performance is the better compensatory device. This rationale may be especially true when the parties are from different parts of the world and must gauge the need for the other party's performance from a distance and possibly through several legal cultures. When these factors combine with the use of Article 7 to prevent punitive and bad faith demands for specific performance, a fairly strong argument for its increased availability develops. In any [page 303] event, reality and theoretical counter arguments weaken the case for the restricted availability of specific performance.
IV. The Relevance of Civil Law Islands
The relevance of Louisiana and Quebec to the argument over specific performance is not readily apparent. Louisiana and Quebec seem to present a natural middle ground because they are civil law "islands." As such, they influence and are influenced by the common law jurisdictions that surround them. Hopefully, the Louisianian and Québécois approach to specific performance can give insights into what an international or uniform interpretation of Articles 46 and 62 might look like.
It should be noted from the outset that both Louisiana and Quebec follow a mixed approach to deciding cases under their respective civil codes. A pure civil law approach would require courts to consult the code as the primary authority and apply its general principles to the case at bar without relying on precedent. Both Louisiana and Quebec decisions make use of case law and develop opinions very similar to those seen in common law jurisdictions. A pure common law approach would rely more heavily on case law and statute; if a code of some kind were applicable to the case, the relevant provision would be construed with reference to things outside the code, rather than be viewed as the whole law of the case. Both Louisiana and Quebec courts place a higher significance on their respective codes and in most cases develop principles more than they interpret. The difference is essentially one of logic. The common law method is to deduce generally applicable principles from specific cases and facts. The civil law method is to start with the general principles of the code and figure whether they apply to the specific case. The main difference is in the area of interpretation of a general principle. A common law court will construe a general principle, whether derived from a statute or case, by referring to other cases or statutes or canons of construction -- things outside the statute itself. A civil law court is at least more reluctant to do so, but the methods do overlap.
Because of the in-depth treatment of the problems of specific performance earlier in this paper, the following sections on Louisiana and Quebec only point out the highlights of specific performance in each jurisdiction. The objective here is not to create a treatise about the substantive provisions of Louisiana and Quebec law, but rather to show the similarities between the civil codes and CISG. If the codes are similar to CISG, then perhaps the way courts operate within them should be considered as a guide. One obvious weakness of this argument is that the [page 304] civil codes contain no restriction like Article 28. However, Louisiana and Quebec have inherited some restrictions from the common law outside their borders (although Quebec seems to have inherited the restrictions to a lesser extent). Finally, this paper deals mainly with specific performance as it relates to sales of goods rather than real property. This, of course, limits the available jurisprudence quite significantly, but also serves to draw a closer parallel between CISG and the civil codes.
The Louisiana Civil Code has several articles that deal with specific performance. The most general article, Article 1758, states "[a]n obligation may give the obligee the right to . . . [e]nforce the performance that the obligor is bound to render. . . ." Article 1758 also provides that the obligee may receive substitute performance at the obligor's expense and may recover damages as well. This rather broad language reappears in Article 1986:
Upon an obligor's failure to perform an obligation to deliver a thing, or not to do an act, or to execute an instrument, the court shall grant specific performance plus damages for delay if the obligee so demands. If specific performance is impracticable, the court may allow damages to the obligee.
Upon a failure to perform an obligation that has another object, such as an obligation to do, the granting of specific performance is at the discretion of the court.
The broad phrasing of these articles is quite similar to the specific performance provisions of CISG. These two articles apply generally to all contracts, or more precisely all conventional obligations. The Comments to Article 1986 provide that the obligee has a right to specific performance and not just the right to appeal to a court's discretion. The Comments further state that specific performance is restricted when impracticable  and when the obligation is an obligation to do. Finally, the Comments provide that the court can permit the obligation to be performed at the obligor's expense, which essentially means the obligee [page 305] can bill the obligor the cost of cover. The influence of French civil law, discussed above, is clearly seen in these two articles.
Articles 2485 and 2549 deal specifically with specific performance in the sales context. As should be expected in a code, both articles use rather broad language to explain the substantive law. Article 2485 states that "[w]hen the seller fails to deliver or to make timely delivery of the thing sold, the buyer may demand specific performance of the obligation of the seller to deliver, or may seek dissolution of the sale." The Comments to Article 2485 emphasize the broad application of specific performance by expressly providing that the remedies under Article 2485 are subject to the general rules of obligations including Article 1986. Article 2549 does not mention anything about specific performance, and instead states that the buyer's obligations are to pay the price and take delivery of the thing. Moreover, the Comments do not refer to the general provisions on obligations as do the Comments to Article 2485. Article 2555 provides that the buyer who fails to take delivery or pay the price is liable for the seller's storage expense and other damages. It would seem therefore, that despite the broad language describing the buyer's obligation in Article 2549, the only code provisions that explicitly grant the seller specific performance are Articles 1758 and 1986. The case law under Article 2549 indicates that specific performance is available to the seller to recover the price if the buyer has accepted the goods, but there is no case law concerning the seller's ability to compel the buyer to accept delivery.
The Louisiana case law concerning specific performance in the sales of goods is rather sparse. The Louisiana Supreme Court recently reaffirmed specific performance as a substantive right under Article 1986 in Lombardo v. Deshotel. Lombardo involved the sale of real property, but the court's discussion of specific performance was confined to Article 1986 generally; Article 1986 applies to the buyer's right of specific performance in the sale of goods through Article 2485. In another specific performance case, the Louisiana Supreme Court held that specific [page 306] performance was a substantive right and a plaintiff did not have to show any special need before claiming the remedy. The court held in that case that the plaintiff was not entitled to specific performance because of impracticability.
There are two cases of note that deal with specific performance in the sale of goods, although both cases were decided before the 1993 revision of the sales articles of Louisiana's Civil Code. In Staple Cotton Cooperative Ass'n v. Pickett, the Louisiana Supreme Court affirmed the granting of specific performance for the buyer of cotton under an output contract. Specific performance was allowed despite the fact that cotton was an easily obtainable commodity and the contract appeared to contain a liquidated damages clause. Although the case arose under the old Civil Code's sales provisions, the court referred to the general provisions of specific performance found in the initial parts of the book on Obligations. In Austin's of Monroe, Inc. v. Brown, the court held that the trial court did not abuse its discretion in refusing specific performance on the grounds of impracticability. The contract in the case was for the sale and installation of a computer system in plaintiff's restaurant. The court first determined that the contract was a contract to deliver rather than a contract to do, despite features of the contract that required installation and modification after sale. The court upheld the denial of specific performance on the grounds that the defendant had no employees capable of performing at the time the plaintiff requested, and that no evidence was adduced at trial indicating what the cost of performance would be.
The Quebec Civil Code sets forth the right to specific performance in a single sentence in Article 1601: "A creditor may, in cases which admit of it, demand that the debtor be forced to make specific [page 307] performance of the obligation." Little else in the Civil Code deals directly with specific performance. Article 1602 provides that the creditor entitled to performance has the option of having the performance rendered at the debtor's expense if not performed by the debtor.
The most recent case dealing with specific performance in Quebec is Varnet Software Corp. v. Varnet U.K. Ltd. In that case, the Court of Appeals held that plaintiff was entitled to specific performance of a licensing and distribution contract, whereby the plaintiff was granted the rights to market the defendant's software. The court noted that specific performance of contracts is the general rule under Quebec's civil law. This case can be compared with Nault v. Canadian Consumer Company Ltd., where the Supreme Court of Canada noted that cases where the goods being sold are unspecified in the contract are not cases that admit of specific performance. The contract in the case was for the sale of knives, but there was no indication of what kind of knives were to be sold. The case was decided mainly on procedural grounds. However, the Court discussed the limitation of specific performance to cases where the goods were specified in the contract and stated that such a limitation is traditional under Quebec civil law.
The Nault case illustrates the tension, in Quebec law, between obligations to do and obligations to give. In Nault, the fact that the defendant would have to specify the types of knives to be sold was viewed as an obligation to do and therefore not specifically enforceable under Quebec law. This distinction was inherited from French law, which inherited it through several misinterpretations of Roman law. The distinction between obligations to do and obligations to give is largely artificial. However, the distinction gave rise to the civil law maxim nemo praecise cogi potest ad factum -- no one is able to be forced to the deed. The meaning of this maxim is that a court should not force a party to do an act because such a use of force threatens personal liberty to an intolerable [page 308] extent. A necessary corollary to this rule is that forcing a party to give something does not violate personal liberty.
Professor Jukier charges that the nemo praecise rule has influenced the development of specific performance in Quebec law to an illogical point. Many Quebec cases that deny specific performance can best be understood as cases involving obligations to do rather than obligations to give. Also, Professor Jukier notes that Quebec jurisprudence contains the common law principles of adequacy of damages and difficulty of supervision that serve to restrict the availability of specific performance. In Quebec, therefore, both civil law and common law influences restrict the availability of specific performance. Recently, however, Quebec cases show that the availability of specific performance is becoming less restricted; the Varnet case is just one example of the increased availability of specific performance.
That the text of the Louisiana and the Quebec Civil Codes are similar is not very surprising. Both codes are descended from French law. The Louisiana Civil Code refers to the Quebec Civil Code in several places. However, there is a striking similarity between both codes and CISG. The provisions on specific performance are phrased broadly in all three documents. Also, all three documents restrict the availability of specific performance in one way or another. The most significant difference between the codes and CISG is in the area of restrictions on specific performance. While the Louisiana and Quebec codes restrict specific performance from within, CISG's significant restriction comes from outside its text through Article 28. Overall, however, the codes and CISG emphasize the prevalence of specific performance through strong and stark language.
The cases decided under the Louisiana and Quebec codes show that the specific performance provisions are given a great deal of respect in theory if not in practice. The cases above that deny specific performance do so in a way that would likely be done in a common law jurisdiction; [page 309] impracticability and the lack of specified goods are typical defenses to specific performance in the common law. The doctrines that allowed the courts to deny specific performance in the cases cited above are set out in the respective codes. In a CISG case, such restrictions would come from a forum's substantive law under Article 28. There is a large theoretical difference between these two types of restrictions. In the case of internal restrictions, the restrictions on specific performance are on equal footing with the provisions requiring specific performance. Because a code must be read together as a whole, neither provision will generally trump the other one; which provision gets applied in case of a conflict would depend on the circumstances of the case. The same thing cannot be said for the approach used under Article 28. Under Article 28, the forum's law is given the power to trump the specific performance provisions of CISG.
One way to illustrate better the differences between Louisiana and Quebec civil law and the common law is to analyze the cases above under the common law. The discussion of Quebec law reveals that the common law doctrines of adequacy of damages and difficulty of supervision have influenced Quebec law so that many cases that deny specific performance do so under these doctrines. Other common law doctrines that restrict the availability of specific performance include the doctrines of mutuality and impracticability. Mutuality says that before an aggrieved party can demand specific performance, he or she must also be ready to perform. Unfortunately, there were no cases concerning the sale of goods that illustrate the mutuality requirement. The Lombardo case, however, clearly is a case of impracticability. In effect, the result in Lombardo should be the same in a common law jurisdiction because specific performance was denied using an essentially common law doctrine. Therefore, in at least some cases, the same result is reached under either a civil law system or a common law system. Since the doctrines of impracticability, adequacy of damages, and difficulty of supervision cross civil and common law boundaries, it can also be said that, in some cases, both systems will use essentially the same reasoning.
Another way to illustrate the differences between approaches is to analyze the cases above under the U.C.C., which is a most appropriate analysis because the cases above concern the sale of goods. Fortunately, there have been a few cases with similar facts as the Staple Cotton case so the analysis does not have to be hypothetical. In Weathersby v. Gore, the court denied specific performance under U.C.C. § 2-716 where an [page 310] alternative supply of cotton was available but inconvenient to procure. Such a situation did not fall under the "other proper circumstances" envisioned by § 2-716(1). Professor Walt calls this the minority view of § 2-716. In contrast, the court in Mitchell-Hunt Cotton Co. v. Waldrep granted specific performance on essentially the same facts, i.e., cotton was difficult to procure during a shortage, but not impossible. Professor Walt calls this the majority view of "other proper circumstances" under § 2-716. The results of all three cases suggests that the Louisiana approach to specific performance coincides with some approaches to U.C.C. § 2-716. Beyond that, however, it is hard to generalize any common rationale. In fact, the only thing that may be common between Staple Cotton and Mitchell-Hunt is the result. Both cases view the cotton shortage as a proper instance for specific performance, but there is really little analysis beyond that. It should be noted that the Weathersby case may have turned more on Mississippi state law than on the U.C.C.
In reality, there appears to be little difference in result between the civil law approaches of Louisiana and Quebec and the common law approaches embodied in the general common law and the U.C.C. This may be because specific performance is only requested in Louisiana and Quebec in situations where it would be granted in the common law. Perhaps, however, the restrictions on specific performance infiltrated the civil codes from the surrounding common law jurisdictions; this is what happened in Quebec, but it may also have happened in Louisiana. It is certainly not a reckless assumption that the two jurisdictions, which borrow the injunction from common law, might have gotten common law restrictions in the bargain. If such is the case, then the restrictions actually come from outside the code, just like they do in CISG. Except for Quebec, it is impossible to tell from the case law or from the codes exactly what the real source of the restrictions is.
Obviously, no court outside Louisiana or Quebec is normally required to accept the authority discussed above. The similarity between the law of those jurisdictions and CISG has been pointed out, but this does not justify letting Louisiana or Quebec law govern questions of specific performance arising under CISG. What the similarity does is to reveal that courts operating in systems that mix some common law approaches with some civil law approaches have managed to arrive at a [page 311] point where specific performance is respected as a substantive right but restricted as a real remedy. What this means for CISG is that Article 28, which on its face has the potential to result in the nonuniform use of specific performance, need not result in a one-sided deal in which common law courts are the only courts restricting specific performance.
With respect to the increased availability of specific performance, the jurisprudence of Louisiana and Quebec is rather inconclusive. The recent trend identified in Quebec law has not completely run its course, although its general direction can be inferred from the Varnet case. As to Louisiana, there does not seem to be a preference for specific performance other than that set forth in its civil code. Apparently, the law that would grant increased access to specific performance is in place; however, the actual amount by which specific performance is more available than in the common law is not clear. Probably the main reason for this is that, in reality, there is little difference between the common law and civil law when it comes to specific performance. If this is the case, then Article 28 may well promote uniformity by letting reality, reflected through forum law, govern specific performance rather than the text of CISG. Of course, this assumes that CISG would be interpreted to require specific performance in most cases absent Article 28. There is no basis for assuming that would be the case, since cases are judged by people who do not ordinarily ignore the practical consequences of their decisions.
The problems of specific performance under CISG are not easily solvable. Most importantly, the impediment that Article 28 imposes on achieving a uniform and international interpretation of CISG is quite real. Despite the fact that Article 28 grew out of a compromise between the common law and civil law, its special status as a compromise should not be allowed to jeopardize the future uniform and international interpretation of the convention. All these assertions are a matter of theory, and are justified or at least justifiable on that level.
What practice reveals, however, is that there is little danger in letting a forum's substantive law govern the availability of specific performance. This assertion is somewhat supported by the reality of business transactions and by the examples of Louisiana and Quebec. In the Introduction to this paper, it was hoped that a model would develop from the examples of Quebec and Louisiana. That model appears to be: let reality govern. In short, whether specific performance is routinely available or [page 312] whether it is restricted in the current way in common law will probably not matter most of the time. In cases where it does matter, a court is bound to follow forum law most of the time. Given the examples of Louisiana and Quebec, it appears that forum law need not work a great injustice in either granting specific performance or in denying it. [page 313]
2. See id. arts. 46(1), 62, 74, 75.
3. See id. arts. 46(2), 46(3), 49(1)(b), 50, 64(1)(b).
4. See Amy H. Kastely, The Right to Require Performance in International Sales: Towards an International Interpretation of the Vienna Convention, 63 Wash. L. Rev. 607, 610 (1988).
5. CISG, supra note 1, at art. 7.
6. CISG Article 28 states:
If, in accordance with the provisions of this Convention, one party is entitled to require performance of any obligation by the other party, a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention.
CISG, supra note 1, at art. 28 (emphasis added).
7. See CISG, supra note 1, at art. 6. But see Ole Lando, Article 28 Commentary, in Commentary on the International Sales Law: The 1980 Vienna Sale Convention 232, 239 (Cesare Massimo Bianca & Michael Joachim Bonell eds., 1987) (criticizing the premise that parties may not exclude application of Article 28) [hereinafter Bianca & Bonell].
8. While a choice of law clause may add certainty to the transaction, it will not solve the problem of which law governs specific performance; a choice of forum clause will. See the discussion of Article 28 infra Part 1.
9. See Michael Will, Article 46 Commentary, in Commentary on the International Sales Law: The 1980 Vienna Sale Convention 333, 341 (Cesare Massimo Bianca & Michael Joachim Bonell eds., 1987).
10. This paper discusses only Louisiana and Quebec mainly because of the author's familiarity with those jurisdictions and in the interest of brevity. Admittedly, these are arbitrary reasons.
11. See John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention 276 (2d ed. 1991).
12. See CISG, supra note 1, at arts. 46(1), 46(2), 46(3).
13. See CISG, supra note 1, at art. 46(1).
14. See CISG, supra note 1, at art. 46(2).
15. See CISG, supra note 1, at art. 46(3).
16. See CISG, supra note 1, at art. 46.
17. See U.C.C. § 2-508 (1991) gives the seller the option of curing or repairing defective delivery, but does not require the seller to do so or provide that the buyer may make the seller do so. See Harry M. Flechtner, Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C., 8 J.L. & Com. 53, 58 (1988) (indicating specific performance may require the seller to cure or repair under certain circumstances).
18. See Will, supra note 9, at 336.
19. Id. at 336 (§ 2.1.2).
20. See CISG, supra note 1, at art. 49(1)(a); see Honnold, supra note 11, at 361.
21. See Will, supra note 9, at 336.
22. See CISG, supra note 1, at arts. 45(1), 45(2).
23. See Honnold, supra note 11, at 362. Professor Walt asserts that damages claimed under Article 74, measured by market price less contract price, are an inconsistent remedy within the meaning of Article 46. See Steven Walt, For Specific Performance Under the United Nations Sales Convention, 26 Tex Int'l. L.J. 211, 214 (1991). Professor Walt apparently erred in referring to Article 74. Article 76 contains damage provisions based on the contract price-market price differential. Article 75 deals with damages based on cover price. Damages under Articles 75 or 76 are inconsistent with requiring performance under Article 46 because avoidance of the contract is a prerequisite to claiming damages under either article. Article 74 is a general damages provision and is not on its face inconsistent with Article 46.
24. See Will, supra note 9, at 335-36.
25. See Honnold, supra note 11, at 360.
26. See CISG, supra note 1, at arts. 30-34.
27. See id. at arts. 41-42.
28. See id. at art. 46(2).
29. See id. at art. 46(3).
30. Article 25 provides that a breach is fundamental if it "results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract. . . ." CISG, supra note 1, at art. 25.
31. Article 38 imposes a duty on the buyer to inspect the goods. See CISG, supra note 1, at art. 38. Article 39 does not require the buyer to give notice of nonconformity to the seller, but the buyer loses the right to "rely" on the nonconformity (presumably as a basis for fundamental breach) unless he or she does so. See CISG, supra note 1, at art. 39(1).
32. See Honnold, supra note 11, at 362; see also Will, supra note 9, at 338.
33. See CISG, supra note 1, at art. 81(1).
34. Honnold, supra note 11, at 364; Will, supra note 9, at 338-339.
35. Article 7(1) states that "[i]n interpretation of this Convention, regard is to be had . . . to the need to promote uniformity in its application and the observance of good faith in international trade." CISG supra note 1, at art. 7(1).
36. See Honnold, supra note 11, at 365; see also CISG, supra note 1, at art. 79.
37. See CISG, supra note 1, at art. 77.
38. See id. at arts. 85, 86, 88.
39. See Honnold, supra note 11, at 364-65.
40. See Kastely, supra note 4, at 622. A substantial part of the drafting history supports Professor Kastely, but the final text of Article 77 is broad enough to conclude that mitigation of loss principles apply to all remedies. Some drafting history suggests that the use of such broad language was intentional. See id. at 621-23.
41. See Flechtner, supra note 17, at 60-61 (noting that creditor's interests in goods may prevent specific performance).
42. See CISG, supra note 1, art. 62.
43. See Victor Knapp, Article 62 Commentary, in Commentary on the International Sales Law: The 1980 Vienna Sale Convention 451, 454 (Cesare Massimo Bianca & Michael Joachim Bonnell eds., 1987).
44. See Kastely, supra note 4, at 613-14.
45. See Honnold, supra note 11, at 439.
46. For the text of Article 28, see note 6 supra.
47. See G.H. Treitel, Remedies for the Breach of Contract 46 (1988).
48. See id.
49. See id.; Honnold, supra note 11, at 269.
50. See Honnold, supra note 11, at 365, 438.
51. See Kastely, supra note 4, at 635-36.
52. See id. at 636.
53. See Honnold, supra note 11, at 276, 360-61.
54. See Honnold, supra note 11, at 272-73; Kastely, supra note 4, at 637-38; Walt, supra note 23, at 219.
55. See Walt, supra note 23, at 220-21.
56. Professor Walt cannot be faulted for this consequence; his article advocates the increased availability of specific performance in common law courts.
57. See Honnold, supra note 11, at 274-77.
58. "In sum, domestic rules mitigating the harshness and the dangers of abuse from the demands for coerced performance are available in any forum where the Convention is in force." Honnold, supra note 11, at 277.
59. See Kastely, supra note 4, at 638-39.
60. See id. at 639.
61. See Walt, supra note 23, at 223.
62. See id. at 227-29.
63. See generally Treitel, supra note 47.
64. See id. at 64.
65. U.C.C. § 2-716(1)(1991).
66. See Walt, supra note 23, at 225-26.
67. See Flechtner, supra note 17, at 61-62.
68. See Treitel, supra note 47, at 68.
69. See generally Alan Schwartz, The Case for Specific Performance, 89 Yale L.J. 271 (1979); Ian Macneil, Efficient Breach of Contract: Circles in the Sky, 68 Va. L. Rev. 947 (1982).
70. See Walt, supra note 23, at 233-51.
71. Kastely, supra note 4, at 629-32.
72. See generally Treitel, supra note 47.
73. In this paper, the unqualified term "specific performance" refers to specific performance in the narrow, common law sense, i.e., a decree commanding a breaching party to perform.
74. For exhaustive treatment of the subject and in-depth comparison between common law and civil law, see Dr. E. Zamir, Toward a General Concept of Conformity in the Performance of Contracts, 52 La. L. Rev. 1 (1991) (charging a lack of coherence in the treatment of nonconformity to contract obligations illustrated by various approaches to specific performance) and John P. Dawson, Specific Performance in France and Germany, 57 Mich. L. Rev. 495 (1959) (tracing the history of specific performance from Roman Law to modern civil law in France and Germany).
75. See Treitel, supra note 47, at 53.
76. See id. at 53.
77. See id. at 54, 62.
78. Hereinafter, specific performance means an order forcing the breaching party to perform; this is the common law interpretation of the term.
79. This is apparently common knowledge. All the commentators refer to it but do not cite to any specific authority for the proposition. See, e.g., Lando, supra note 7, at 233-34.
80. Professor Walt would go further and probably presume that contracts under CISG are enforceable by specific performance because the scarcity of goods in the buyer's local market leads to enforceability by specific performance under most domestic law.
81. This is the real thrust of Professor Walt's argument. See Walt, supra note 23, at 222-23.
82. See Lando, supra note 7, at 234.
83. See Kastely, supra note 4, at 640-41 (Article 28 undermines this expectation).
84. See id. at 629; Schwartz, supra note 69, at 277.
85. See La. Civ. Code Ann. arts. 1758, 1986, 1987, 2485, 2549 (West 1995).
86. See id. at art. 1758 (A)(1).
87. See id. at art. 1986.
88. See id. at Cmt. (a) (citing Girault v. Feucht, 41 So. 572 (La. 1906)).
89. See id. at Cmt. (b).
90. See id. at Cmt. (c). Obligations to do are distinguished from obligations to give.
91. See id. at Cmt. (d).
92. See id. at arts. 2485, 2549. Both articles are grouped under Title VII, "Of Sales," in Book III.
93. See id. at art. 2485.
94. See id. at Revision Comment-1993, Cmt. (b).
95. See id. at art. 2549.
96. See id. at art. 2555. The Comments make clear that "other damages" refers to damages under Article 1989 et seq.
97. See e.g., Madere v. Cole, 424 So. 2d 1125 (La. Ct. App. 1982).
98. Lombardo v. Deshotel, 647 So. 2d 1086, 1090 (La. 1994).
99. J. Weingarten, Inc. v. Northgate Mall, Inc., 404 So. 2d. 896, 900-901 (La. 1981). The contract at issue in the case was an attachment to a lease regarding renovation of the tenant's store.
100. See id. Specific performance would require tearing down a large structure and cost over $4 million.
101. Staple Cotton Corporate Ass'n v. Pickett, 326 So. 2d 337 (La. 1976).
102. The court determined that the liquidated damages clause was inapplicable on its own terms. See id. at 339.
104. Austins of Monroe, Inc. v. Brown, 474 So. 2d 1383, 1388-1389 (La. Ct. App. 1985).
105. See id. at 1387-88.
106. See id. at 1388-89.
107. Quebec Civil Code, Art. 1601. All references to the Quebec Civil Code are from Henri Kélada, Code Civil du Québec (texte annoté) (1993 Carswell Pub.) [hereinafter Q.C.C.].
108. See Q.C.C., supra note 107, at art. 1602.
109. Varnet Software Corp. v. Varnet U.K. Ltd., 59 Canadian Patent Reporter 3d 29 (Court of Appeal 1994).
110. Nault v. Canadian Consumer Co. CTD  I.S.C.R. 553, 557-58.
111. See id. at 558.
112. See George Vlavianos, Specific Performance in the Civil Law: Mediating Between Inconsistent Principles Inherited from a Roman-Canonical Tradition via the French Astreinte and the Québec Injunction, 24 Rev. Gén. 515, 522-25 (1993).
113. See Rosalie Jukier, The Emergence of Specific Performance as a Major Remedy in Québec Law, 47 Revue du Barreau 47, 59 (1987).
114. Translation by Emily Marks, Latin student and Ellen Conrad, Latin professor.
115. See Jukier, supra note 113, at 57, 59.
116. See generally id. (explaining relevant cases).
117. See id. at 52-53. It is interesting to note that the remedy used to enforce specific performance is the common law injunction. Professor Jukier points out that this is one of the main reasons common law restrictions on specific performance are found in Quebec law. See id. at 52 (citing to Trudel v. Clairol Inc. of Canada,  2 S.C.R. 236).
118. See id. at 64-68 (explaining this recent trend and illustrative cases).
119. See, e.g., La. Civ. Code Ann. arts. 1758, 1986 (West 1995).
120. See Treitel supra note 47, at 63-68.
121. See Weathersby v. Gore, 556 F.2d 1247 (5th Cir. 1977).
122. See Walt, supra note 23, at 226.
123. See Mitchell & Hunt Cotton Co. v. Waldrep, 333 F. Supp. 1215 (N.D. Ala. 1974).
124. See Walt, supra note 23, at 227.