Roman-Dutch law; modern German law
The controversy continued among the humanists as well as among the authors of the usus modernus pandectarum.1™ The rule of "nemo potest praecise cogi ad factum" dominated the discussions relating to obligationes ad faciendum.
It appears to have been widely accepted that a debtor cannot be forced to do something and that he is therefore able to discharge his obligation by paying damages (id quod interest). Ludovicus de Molina even referred to a communis opinio (of which he himself, however, disapproved).[3974] Via Pothier[3975] this doctrine found its way into art. 1142 code civil, which states: "Toute obligation defaire on de ne pas faire se resout en dommages et interets en cas d'inexecution de la part du debiteur."[3976]“* The actio empti,[3977] on the other hand, was likened by a majority of writers to the dare obligations; strictly speaking, to be sure, the vendor merely owed vacuam possessionem tradere, but this handing over was intended to transfer ownership and hence to constitute a datio in the technical sense of the word.[3978] As a result, it was widely recognized that the purchaser could insist on specific performance, as long as the vendor was still able to transfer the object: "non enim solvendo interesse liberari potuit, qui rei tradendae facultatem habuit." This is how the Hooge Raad van Holland, Zeeland en West-Vriesland put it very crisply.[3979]Roman-Dutch law generally took a remarkably progressive attitude.[3980] Few authors were prepared to follow Grotius when he stated that although by natural law a person who has promised to do something is bound to do it in case it admits of being done, he may, nevertheless, "nae 't burger-recht" effect his release by paying id quod interest.[3981] [3982] Only Voet took a similarly antiquarian line and regarded specific performance as both impossible and undesirable in cases of obligationes ad faciendum.Iyn Contrary to Grotius[3983] (but like Donellus before him),[3984] he viewed the vendor's duty under a contract of sale in the same light.[3985] By and large, however, Groenewegen's comment appears to be representative: "Hodie in omnibus faciendi obligationibus praecise ad factum cogi potest ncque solvendo interesse libcratur promisor, qui faciendi facultatem habet."144 If a creditor was thus given the right to claim specific performance (not only of obligationes ad dandum but also) with regard to facere obligations, then the same was bound to apply to the tradere obligations (such as the actio empti) which fell somewhere in between the two. "Senatus condemnatum civili custodia sistendum (quod gyselinge houden dicimus) pronunciavit, quoad rem tradidisset":[3986] [3987] this gives an impression of how a decree of specific performance was enforced. In Germany, the last vestiges of omnis condemnatio pecuniaria were ultimately overcome in the course of the 19th century; for the pandectists, this principle was merely a kind of historical reminiscence which they discarded without much ado.146 In modern German law, it is a matter of course that the parties to a contract are entitled to demand performance of their respective obligations in specie. "The effect of an obligation", says § 241 at the outset of Book II of the BGB, "is that the creditor is entitled to claim performance from the debtor." The implication is: specific performance.[3988] 6.
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