BREACH OF CONTRACT IN THE DUTCH ANTILLES (II)

November 02, 2009 4:45 AM

Entitlement to specific performance

Under the Netherlands Antilles Civil Code the demand for specific performance is not a remedy for breach of contract in a strictly legal technical sense. In this system the entitlement to specific performance is a consequence of the duty to perform a (contractual) obligation.

The contract itself, and not the breach of it, entitles the creditor to specific performance. If non–performance amounts to a breach of contract, i.e. meaning that a party does not perform though it should perform, the other party may be entitled to damages or termination of the contract.

However, in some cases, damages, including interests on money due, or termination, are only available to the creditor if the debtor is in default. Default arises if a contractual date for performance has lapsed or, e.g. in case of defective performance, if the debtor fails to remedy it within a period of time that the creditor has determined in writing.

Analytically, the non–performance of a contract assumes: (i) that a party has a contractual obligation; (ii) that the obligation has matured (i.e. the party must perform its obligation at this point in time); (iii) that the party has failed to perform its obligation, and (iv) that the failure to perform was not caused by the other party (or an event for which the other party bears responsibility).

Karel Frielink / Ursus van Bemmelen
Netherlands Caribbean Attorneys / Lawyers