Enforced Performance in Common-Law Versus Civil Law Systems: An Empirical Study of a Legal Transformation
68 Pages Posted: 11 Dec 2018 Last revised: 22 Aug 2019
Date Written: December 2, 2018
Legal systems differ about the availability of specific performance as a remedy for breach of contract: While common-law systems deny specific performance in all but exceptional cases, civil-law systems generally award enforcement remedies subject to some exceptions. However, there is an ongoing debate about the extent to which the practices of litigants and courts actually reflect the doctrinal divergence. An equally lively debate revolves around the normative question: should the injured party be entitled to enforced performance or rather content herself with monetary damages. Very few studies have used qualitative methods, vignette surveys, or incentivized lab experiments to empirically study these issues, and none has quantitatively analyzed actual court judgments.
Against the backdrop of the comparative-law and theoretical debates, this article describes the findings of a quantitative analysis of judgments concerning remedies for breach of contract in Israel during a 69-year period (1948–2016). The judicial and scholarly consensus is that the Remedies Law of 1970 revolutionized Israeli law by turning enforced performance from a secondary, equitable relief to the primary remedy for breach of contract. We nevertheless hypothesized that no such revolution has actually occurred. In fact, neither the common wisdom that the resort to enforced performance has significantly increased following the 1970 Law, nor our skeptical hypothesis that no such increase has occurred, were borne out. According to our findings, the resort to enforced performance has actually decreased considerably after 1970.
We examine several explanations for this result, and show that this unexpected phenomenon is associated with the increasing length of adjudication proceedings. The theoretical and policy implications of these findings are discussed.
Keywords: remedies for breach of contract, empirical legal studies, Israeli law, efficient breach, civil law, common law, specific performance
JEL Classification: K, K12, K41
Suggested Citation: Suggested Citation