Conditions for the specific implementation of contractual obligations (comparative study)

Abstract

Specific execution is the creditor’s way to implement his agreed-upon obligation with his debtor in kind if the latter does not do so voluntarily, and the judge cannot prevent him from exercising it as long as the conditions imposed by law are met. This right is established for the creditor in all types of obligations, whether it is an obligation to pay a sum of money or to transfer a real right or to perform an act or to refrain from an act. Between the adoption of specific execution as an original penalty under the Latin systems, and as a secondary penalty under the Anglo-Saxon systems, a question comes to our minds as to whether it is stipulated that the creditor has the right to request specific execution, and is he forced to do so? Meaning, in the event that the debtor does not carry out specific execution, is the creditor able to demand compensation at the outset? Or is it necessary to request specific execution, and if that is not possible, to demand compensation? What is the status of specific execution? Is specific execution considered an original or secondary penalty? Therefore, this study seeks to analyze and compare by presenting the texts of the Iraqi Civil Code No. 40 of 1951 and the French Civil Code of 1804 amended in 2016. English case law and international agreements, in order to know the extent of harmony and difference between them on the issue of the authenticity of specific execution under the legal systems mentioned above. In order to complete the idea, the concept of specific execution will be presented in the first chapter, in terms of its definition, conditions and place of specific execution. While in the second chapter we will explain the status of specific execution in the law and the judiciary on the various specific legal systems, while in the third chapter we will present the rules governing specific execution.