Civil Transactions Law (11): Specific Performance

• The Civil Transactions Law sets out the effects of obligations. Article 161 obligates the debtor to perform their obligation upon maturity. If specific performance imposes undue hardship on the debtor, the court may, at the debtor’s request, limit the creditor’s right to compensation only provided that doing so does not cause the creditor substantial harm.
• If the subject of the obligation involves an act that includes the delivery of a thing, the debtor is obliged to preserve the item until delivery. Should the debtor fail to deliver it and the item is lost or damaged, the debtor should be held liable, unless it is proven that the loss or damage would have occurred even if the item had been delivered to the creditor. However, if the obligation is merely to preserve the item, the debtor fulfills their obligation by exercising the care of an ordinary person, even if the intended result is not achieved—unless otherwise agreed. If the obligation is to achieve a specific result, fulfillment is not deemed complete unless that result is actually achieved.
• Where the obligation consists of performing an act, the following rules shall apply:

1. If the agreement stipulates, or the nature of the act requires, that the debtor personally perform the obligation, the creditor may refuse performance by a third party.
2. If the debtor fails to perform the obligation, the creditor may seek court authorization to perform the obligation at the debtor’s expense. In urgent cases, performance may be carried out without court authorization.
3. A court judgment shall be considered equivalent to the performance of the obligation if the nature of the obligation so requires.

• If the debtor is obligated to refrain from doing an act and breaches that obligation, the creditor may request the removal of the violation and, if necessary, seek compensation. The creditor may also request court authorization to carry out the removal at the debtor’s expense.

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