Specific Performance in Contractual Liability

A Comparative Analytical Study

Abstract

No obligation exists unless it involves specific performance, and this performance relates to a specific object, whether fungible or of unique value, which the debtor is obligated to perform in kind. In this research, we discussed the conceptual framework of specific performance in contractual obligations involving fungible goods, whether goods or services, where performance undergoes modification or substitution after contractual liability is established, converting it to substitute performance (compensation). The legal ruling varies according to the nature of performance before and after the modification. The research also examined the close relationship between specific performance of fungible goods and contractual liability, especially in light of the principle "fungible goods do not perish." We focused on the problematic issue regarding the extent to which liability for performance of fungible goods is established under this principle. We concluded that liability does not arise if the principle is applied absolutely, while it is established if restricted to designated fungible items. This was based on a comparative analytical study between Iraqi, Egyptian, and Emirati laws, which required dividing the research into two sections: the first concerns the nature of specific performance of fungible goods, and the second examines the relationship between specific performance in obligations involving fungible goods and contractual liability.