Comparative study of sanctions for non-performance of contract.

Summary That sanctions for non-performance are a measure of the effectiveness of the contract, not its enforceability, is the main lesson of a comparative study of French, English and American contract law. The rule of enforceability does not mean that the contract must be performed. It means that its non-performance is legally sanctioned. And since article 1134 paragraph 1 of the Civil Code does not specify the type of sanction incurred, the rule cannot be the basis for the pronouncement of specific performance, still less for its alleged legal primacy. A sanction is not and cannot be more or less in conformity with the binding force, since all sanctions derive equally from it. Damages and rescission of the contract are no more contrary to the rule of binding force than is specific performance. Equal before article 1134 paragraph 1 of the Civil Code, the sanctions for non-performance of a contract are, on the other hand, of varying economic effectiveness, and this consideration may justify an articulation which binding force is incapable of founding. The cost of a sanction, and its ability to channel resources to those who value them most, are factors which determine their respective fields and regimes. The search for efficiency is susceptible to degrees. At the very least, it translates into the rejection of sanctions whose implementation is disproportionately costly in relation to the benefit they provide to the creditor. Pushed further, it leads to the recognition of a duty to minimise harm, which is capable of overturning the whole range of sanctions for non-performance of a contract.