Leiden Law Blog

‘Be careful what you wish for…’ - The limits of specific performance

Posted on by Thijs Beumers in Private Law
‘Be careful what you wish for…’ - The limits of specific performance

In Dutch law, specific performance is the primary remedy against a debtor’s breach of contract. This remedy entails the creditor’s right to force his debtor to perform the obligations as specified in the contract. It is readily available to creditors and there are not many restrictions to it in Dutch law. However, sometimes you should be careful what you wish for…

Kreuk thought he had concluded a contract with Vo, a modern artist. Vo would create a new work of art for him, which was to complement his collection in the City Museum of The Hague. A hall in this museum was reserved especially for this new work of art and the contract stated that it had to fill up this hall entirely. However, Vo merely provided an older and quite small work of art. Kreuk was not amused. In the Dutch courts, he sought specific performance of the agreement in order to remedy the artist’s alleged breach of contract. However, Vo denied that he had ever concluded a contract and Kreuk had to go to great lengths to prove the existence of their agreement. As many as three witnesses had to be heard before he succeeded in convincing the court that a contract had indeed been concluded, and breached, by Vo. The court then ordered specific performance.  

But how do you order an artist to create a work of art? The court visibly struggled with this task. On the one hand, it ensured that Vo retained his artistic licence. On the other hand, it also demanded that the new work of art was “hall-filling” and “customized for the especially reserved hall of the City Museum (par. 3.1.)” The court further decided that Vo had to keep in mind Kreuk’s wish for an artwork that was “impressive” and that he was not interested in “the interplay between a relatively small artwork placed in a large space” (par. 2.21)  Within these boundaries, Vo was obliged to make his new masterpiece. Last week, he came up with a new idea. Vo proposed writing, in large red letters, the following quote on one of the museum’s walls: “Shove it up your ass, you faggot.”

The possibility of deliberately unruly behaviour by the debtor and uncertainty about his exact obligations are two important reasons for an English court not to order specific performance. In English law, specific performance is a subsidiary remedy and has many restrictions. The bar of “constant supervision” and the bar of “uncertainty” are two of those. Specific performance can only be ordered by a court when the exact obligation is sufficiently clear. Furthermore, the order of specific performance must be easy to enforce and the debtor must not have the opportunity to deliberately frustrate it. In Co-operative Insurance Society Ltd v. Argyll Stores (holdings) Ltd, Lord Hoffmann made clear why these restrictions exist: “It is the possibility of the court having to give an indefinite series of such rulings in order to ensure the execution of the order which has been regarded as undesirable (p. 12)” It is undesirable when courts have to spend much effort and time ensuring that their orders of specific performance are fulfilled. Furthermore, Lord Hoffman argued that specific performance: “[…] yokes parties together in a continuing hostile relationship” and “[…] prolongs the battle (p. 15).” 

In light of this Dutch case, both restrictions seem to make a lot of sense. The battle between Kreuk and Vo continues, even after Kreuk, with much effort,  managed to obtain a court order. Although Dutch law does not pose similar restrictions to the remedy of specific performance, a creditor should take these practical limitations into consideration. In other words, be careful what you wish for: a legal right to specific performance only gets you so far. In practice, you might end up in an endless battle with an unwilling artist or with an indecent quote on your museum’s wall.

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