Private Law Theory

ABSTRACT
The English law of remedies, and especially the availability of specific performance, appears as what has been called a puzzle. Why indeed preventing thus the victim of the breach to obtain (most of the time) what she has bargained for either through specific performance or through the full cost of cure especially in building contracts? While several justifications have been provided either by authors or the courts, none appeared compelling. Mindy Chen-Wishart has argued that the solution to the puzzle lies in Joseph Raz’s theory of autonomy. Hence, courts would protect both the so-called freedom to change one’s mind and the practice of undertaking voluntary obligations. Without discussing the desirability of protecting individual’s autonomy as the end of the law, it is argued here that Raz’s theory neither provides a compelling explanation of the current rules nor does it necessarily require those rules as shown by French law.

Leroy, Sébastien, Specific Performance, Damages and The Principle of Autonomy – A Comparative Perspective (December 5, 2021).