(a) Uniqueness of the goods.

(b) The reason for this could be that the plaintiff will not be able to obtain a reasonable substitute if specific performance is not granted. If the goods are not unique, then damages will usually be a sufficient remedy.

Delivery of oil paintings, signed copies of books, goods having a value beyond their simple financial value (heirlooms). To the contrary, commodities and other interchangeable goods can be obtained elsewhere, so an order for specific performance would be impractical.

In respect of a monetary obligation, the remedy (damages) is effectively the same as requiring specific performance. With non-monetary obligations, requiring specific performance will entail a different act than claiming the remedy of damages.

In practice virtually nothing; however, performance of a monetary obligation is specific performance and damages is a remedy in kind.

(a) The general principle is that specific performance is required, subject to logical exceptions.

(b) The provision generally reflects the common law approach.

Claims for specific performance concerning the delivery of (unique) goods; claims for repair or replacement of non-conforming goods.

(a) A claim for performance under Article 46(1) CISG.

(b) Yes, reference was had to the UCC in determining whether or not there was a prima facie case for specific performance. The court found that a claimant need only allege the difficulty of a cover purchase to satisfy this. This is the intended application of Article 28 CISG.

Article 28 CISG leaves it to the otherwise applicable legal tradition (i.e., the laws of the deciding court) whether the default position (based on the common law’s reluctance) applies or whether the forum’s preference for specific performance prevails. It allows resolution of this issue on a case-by-case basis, instead of cutting off one type of performance entirely. While it is generally understood as following the civil law preference (see e.g. C 28-2), it allows parties to forego specific performance in practice, which the court in C 28-2 acknowledges. The court detailed the interplay between these options, but in the end left the question open for this case stating that in any event, even if Solea was subject to a duty to mitigate, it sufficiently did so.

- Specific performance is an equitable remedy compelling a party to perform their contractual obligations in kind (e.g., transferring land, delivering unique goods). It is typically reserved for cases where damages (money) are inadequate because the subject matter is unique. Payment of money is different. Courts often view an order requiring payment of the purchase price as simply enforcing a debt obligation. That is not “specific performance” in the strict sense, because money is fungible — damages can usually substitute for it. However, in C 28-2, the court simply found, based on Professor Jacob S. Ziegel’s observations: “whatever else it is, an action for the price is not an action for damages”, allowing it to leave the door open for Article 28.

(a)    Specific performance is more likely if the goods are unique (e.g., rare art, custom machinery).

For fungible goods or straightforward monetary obligations, damages are preferred.

(b)    Where a common law court might award damages instead of compelling payment, a civil law court would simply order the buyer to pay. This reflects a stronger commitment to pacta sunt servanda (“agreements must be kept”) in a dogmatic sense.