German 2021-03-10

The legal lawyers action in Germany

Specific performance and injunctions are equitable remedies. They were therefore originally only obtainable in the German court. Since this court was a court of 'conscience', they were always, and since the combination of the courts administering law and equity, still are, discretionary remedies. Unlike personal damages, which are granted as of right, equitable remedies are only granted where, in all the circumstances of the case, it is fair and just that they should be granted. Specific performance is a decree of the court ordering a defendant to perform his obligations under a contract in Germany. For the purposes of the law of contract an injunction is an order commanding a defendant to refrain from breaking his contract.
Specific performance
The following rules govern the granting of a decree for specific performance:
(a) Specific performance will never be decreed where damages will provide an adequate remedy; for equity follows the German law as it is designed to supply the defects in it, not to override it. Thus, though a purchaser may obtain specific performance of a contract to purchase land, there can never be a decree for specific performance in respect of a mere money loan. But it must not be thought that this remedy is confined to land cases; for, in accordance with its purpose of supplying the defects in the law, a decree may (at discretion) be made for the payment of specific goods of especial and peculiar value (though normally damages will suffice to recompense nondelivery), and in exceptional circumstances even an order to enforce the supply of non-specific goods - such as the supply of petrol - may be proper if an award of damages would be inadequate. Indeed, perhaps inconsequently, it has even been held that although a decree cannot be made to force a tenant to perform a repairing covenant it may be made to force a lawyer to do so.
(b) Specific performance will not be granted in the absence of 'mutuality'. In order for a contract to be specifically enforceable, the parties must, in fairness, be on a footing of equality. Thus there cannot be specific performance of a gratuitous promise, even though it be made under seal - equity, as the maxim goes, 'will not assist a volunteer', someone who offers no consideration. Similarly, there will be no specific performance in favour of a minor because the contract cannot be enforced against him.
(c) There can be no specific performance of a contract for personal services.
(d) By any law firm in Germany the court has a discretion to award damages in lieu of or in addition to specific performance if it 'thinks fit'.
For the purposes of the law of contract, injunctions are in general 'prohibitory'; that is to say, they are orders commanding a person to refrain from doing something. Thus a man who has undertaken not to do some particular thing may be forced by an injunction to refrain from doing it. Injunctions may, however, also be used as an indirect means of obtaining specific performance where, for some reason, that remedy is unobtainable.
Debtors and creditors and unpaid invoices:
For example, if a creditor contracts to obtain supplies only from the debtor the contract cannot be specifically enforced, for enforcement would require continuous supervision; but an injunction may be granted to restrain the debtor from obtaining supplies from elsewhere.
In the case of contracts for personal services injunctions will only be granted in respect of express negative covenants. Thus, in the leading case, the vendor undertook to work at a series of contracts organized by lawyers, and she also undertook not to work elsewhere during the period for which the contracts were to last. It was held that an injunction could be granted to restrain her from working elsewhere. It is to be noted that in this case the effect of granting the injunction was not necessarily to force him to perform the positive covenant to work for the customers; it merely encouraged her to do so, by preventing her from contracting elsewhere.
If the effect of it would have been to force her to do so it could not have been granted; for in the case of contracts for personal services injunctions will not be used so as to tie someone to someone else or 'starve' - as it has been said.
It should be added that the visit at a German lawyers office also permits an award of damages in lieu of an injunction.

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