Monograph Series · Third series › Part V Enforcement and actual performance › III-34 · First edition
Performance Other Than Money: Delivery, Substitute Performance, and Indirect Compulsion
When a debtor refuses to perform the act a judgment ordered, how can the judgment be given practical effect?
Volume contents
Abstract
This volume asks how, when a debtor refuses to perform the act a judgment ordered, that act can be made a reality. The method of execution must be chosen to fit the nature of the performance. Delivery, substitute acts, declarations of intent, and indirect compulsion are not interchangeable sanctions. The path to relief opens where the requirements for, and a decision on, delivery, substitute performance, indirect compulsion, or execution of a declaration of intent suited to the nature of the performance are in place, and closes where the obligation is of a nature that cannot be carried out by the chosen method of compulsion, or where requirements such as the counter-obligation attached to a conditional declaration of intent remain outstanding. The six sections address, in turn, the nature of performance and methods of compulsion, actual delivery of movables, acts to be performed by another person in the debtor's place, advance payment of substitution costs, the end point of indirect compulsion, and judgments in lieu of a declaration of intent. The strongest counterargument is as follows. Methods that compel acts only the debtor can perform may infringe on personality and liberty. Urgent protection of rights and settlement negotiations are not addressed in this volume.
Synthetic case
The whole volume follows this invented case. It is not a real matter, and its facts are not legal findings.
Creditor A obtained a judgment ordering the delivery of a specific object and a declaration of intent by Defendant B, and asks whether both can be executed in the same manner.
6 sections and their questions
- 01The Nature of Performance and Methods of Compulsion
Can every performance be compelled in the same way?
20 min - 02Actual Delivery of Movables
After a judgment for delivery, who moves the object?
20 min - 03Acts to Be Performed by Another in the Debtor's Place
Can another person do what the debtor will not do?
21 min - 04Advance Payment of Substitution Costs
Who first provides the costs of substitute performance?
19 min - 05The End Point of Indirect Compulsion
Where monetary pressure is applied, is the original performance also completed?
20 min - 06Judgments in Lieu of a Declaration of Intent
If the debtor ultimately refuses to sign, is a change in rights also impossible?
19 min