Janwillem Oosterhuis, SPECIFIC PERFORMANCE IN GERMAN, FRENCH AND DUTCH LAW IN THE NINETEENTH CENTURY: REMEDIES IN AN AGE OF FUNDAMENTAL RIGHTS AND INDUSTRIALISATION Leiden: Martinus Nijhoff Publishers (www.brill.nl), Studies in the History of Private Law vol 4, 2011. xxi + 635 pp. ISBN 9789004196056. €129.
| DOI | 10.3366/elr.2012.0108 |
| Author | John MacLeod |
| Pages | 285-286 |
| Published date | 01 May 2012 |
| Date | 01 May 2012 |
Specific performance (or implement) has long been the subject of thought-provoking scholarship but recent contributions suggest that the field is by no means moribund. If a criticism is to be made of the latest of these, it is that the title sells the range and depth of the study rather short. Its scope is not restricted to the nineteenth century and the analysis extends beyond substantive contract law to consider relevant aspects of property and civil procedure.
The work begins with a very helpful summary of the development of the law in this area from the
Subsequent chapters discuss the primacy of specific performance as a remedy for breach of contract, the rise of damages as the standard remedy in legal practice over the course of the nineteenth century and the exceptional cases where specific performance continued to be sought and granted. Each chapter takes the subject legal systems in turn and finishes with a comparative summary. These summaries are intelligible and useful even to those without the opportunity to engage with the very detailed treatment which has gone before.
One of the work's great strengths is engagement with materials other than the standard doctrinal writers and legislative provisions on rights arising from contracts. The exploration of the development of and debates around the consensualist system of transfer shows how a change to the theory of transfer can render specific performance essentially redundant in sale of specific goods, because the buyer can then rely on proprietary remedies to get the subjects. Discussion of procedural legislation and of the disjunction between it and the substantive law demonstrates that a notional right to specific performance may be frustrated by the absence of mechanisms to compel performance by a recalcitrant debtor. The law did, however, sometimes go further than might be expected in this area: as in eighteenth century Frisia and Holland, where a court officer could represent a man who refused to perform his duty to his betrothed by participating in the marriage ceremony in his...
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