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Volonté et exécution forcée de l’obligation

Abstract : Willingness and specific performance may seem opposed, because the first one refers to freedom while the second one to constraint. Yet, willingness and specific performance are strongly linked. Those links are not to be found in the grounds of the creditor’s specific performance right, even if the obligation on which this right is based comes from an agreement between the parties. While willingness is a criterion used to define specific performance, it especially expresses its influence when it comes to the regime of this sanction. Firstly, willingness influences, as a trigger, the implementation of the rights given by the law to the creditor in case of unperformed obligation. Secondly, it is likely to have a role to play upstream when parties contractually agree on an arrangement of the obligation specific performance’s right. This double influence of willingness on specific performance imposition is likely to affect both party interests and greater value and principles such as individual fundamental rights and freedoms and loyalty. A judicial assessment of willingness, which would highlight the limits of willingness influence, must be carried out. It would combine on the one hand the social utility of obligation - which is provided by specific performance - and freedom of contract with, on the other hand, fundamental rights and freedoms and loyalty. This study on specific performance, viewed from a willingness perspective, results in providing a framework for both the specific performance right and its contractual arrangement as well as a fair conciliation of those requirements.
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Guillaume Maire. Volonté et exécution forcée de l’obligation. Droit. Université de Lorraine, 2016. Français. ⟨NNT : 2016LORR0145⟩. ⟨tel-01752363⟩



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