Solène Rowan, Remedies for Breach of Contract. A Comparative Analysis of the Protection of Performance, Oxford: Oxford University Press, 2012, 265 pp, hb £60.00.
| Author | Vanessa Mak |
| DOI | http://doi.org/10.1111/1468-2230.12077 |
| Date | 01 May 2014 |
| Published date | 01 May 2014 |
REVIEWS
Solène Rowan,Remedies for Breach of Contract. A Comparative Analysis of
the Protection of Performance, Oxford: Oxford University Press, 2012, 265 pp,
hb £60.00.
Solène Rowan’s monograph on remedies for breach of contract, with a focus on
the protection of performance, takes up an important discussion in contract law.
Performance would seem to be the central goal of any contractual agreement.
Promisor and promisee enter into an agreement because they wish to obtain a
performance from the other party, usually the delivery of a good or service in
exchange for an agreed price. Despite the apparent importance of performance
in such relationships, the strength of these obligations is put to the test in the
corresponding remedies. If the promisor does not (or does not satisfactorily)
perform, does contract law enable the promisee to obtain a remedy that equals
performance, or even the enforcement of the promised performance? As is
well-known, English law does not have a wholehearted commitment to pro-
tection of the so-called ‘performance interest’, ie the interest of the promisee in
obtaining the performance to which he is entitled under the contract. This is
reflected in the remedial scheme in contract law, in which specific performance
is available only at the discretion of the court and in which compensation
through damages is also subject to restrictions that may prevent a party from
obtaining full ‘cost of cure’ compensation.
Rowan takes up the argument at this point. The aim of her book is to assess
the commitment in English law to the performance interest by surveying its
contractual remedies. Two ancillary themes that are considered are the reasons
underlying the protection of the performance interest and how that protection
might be improved. All three themes, moreover, are approached through a
comparative analysis of French law. The value of this comparison, as is accepted
knowledge in comparative research, is to use the alternative system as a con-
trasting benchmark. The juxtaposition of English law and French law – the
latter a system that contains remedies which are more protective of the perfor-
mance interest – can provide useful insights on the justifications for a broader or
narrower commitment to the protection of performance. Moreover, though
Rowan understandably takes a tentative stand in this regard, the solutions found
in French law may inspire more performance-oriented solutions in English
law.
The book is a well-written and highly informative contribution to the
literature on remedies in contract law. By addressing the discourse on protec-
tion of the performance interest through a discussion of each type of contrac-
tual remedy, the reader gets a good overview not only of the extent to which
each remedy takes account of the protection of performance but also of the
wider themes running through the remedial regime in English contract law.
Rowan begins by discussing the specific enforcement and discharge of primary
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© 2014 The Authors. The Modern Law Review © 2014 The Modern Law Review Limited. (2014) 77(3) MLR 513–531
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
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