By presenting historical materials, this volume elucidates the quandary of the law of obligations when it has to answer the question what a creditor eventually will acquire: damages or specific performance? In this respect it appears two principles continually compete for priority: ‘all obligations should be fulfilled in specie’ and ‘no-one should be compelled to act’. What settles the dilemma? Is it fidelity to the given word or human freedom? Seven contributions discuss features of this problem for various periods of time and jurisdictions: Roman law, Medieval learned law, early-modern Spanish doctrine, Roman-Dutch law, 19th century German law, developments in the Netherlands during the 19th and 20th centuries and contemporary Dutch law.
This book is a sequel to volume 71 of the same series (Specific Performance in Contract Law: National and Other Perspectives). It resulted from the co-operation between legal historians, participating in the programme ‘Contract law and law of obligations in general’ of the research school Ius Commune.
About this book:
‘[This book] works well as an edited collection and manages to convey the complexity of this legal institution with great effect. It also demonstrated how important an understanding of the history of legal doctrine is for the advancement of European legal history as an academic discipline.’
Paul J du Plessis in The Edinburgh Law Review 15 (2011) 145.
Introduction (p. 1)
Specific Performance in Roman law (p. 9)
Precise cogi, Enforcing Specific Performance in medieval legal scholarship (p. 21)
Specific Performance in Obligations to Do according to Early Modern Spanish Doctrine (p. 57)
Simon Groenewegen van der Made on the enforcement of obligationes faciendi (p. 81)
Industrialization and Specific Performance in the German Territories during the 19th Century (p. 97)
Coercive measures to enforce obligations under Dutch law (1838-1933) (p. 135)
Searching for a Legal Basis of Specific Performance in the Dutch Civil Code (p. 167)
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The ‘Ius Commune Europaeum’ series focuses on the common foundations of the legal systems of the Member States of the European Union. It includes horizontal comparative legal studies as well as studies on the effect of EU law, treaties and international regulation within the national legal systems. All substantive fields of law are covered.
The series is published under the auspices of METRO, the Institute for Transnational Legal Research at the Maastricht University.
Guidelines for the submission of a manuscript or proposal can be found here.
Prof. Dr. J. Smits (chair - Tilburg University, the Netherlands)
Prof. Dr. M. Faure (Maastricht University and Erasmus University Rotterdam, the Netherlands)
Prof. Dr. E. Vos (Maastricht University, the Netherlands).