specific performance

Which translation, when

Why

Specific performance sits at the edge of English remedies, equity grants it at the court’s discretion, damages remain the rule, and whole categories of contract rarely see it. German law starts from the opposite corner, § 241 Abs. 1 BGB entitles the creditor to the performance itself, the claim is the ordinary one, no discretion stands in the way, and enforcement follows through §§ 883 ff. ZPO, delivery and conduct each with its own writ. The asymmetry means the English term has no marked German counterpart, Erfüllung is simply what a creditor gets. A translation cannot fix that with vocabulary, it can only make sure the surrounding advice does not assume English scarcity, a German counterparty threatening an Erfüllungsklage is not making an exotic move, and a client told that performance is unlikely to be ordered has been advised on the wrong system.

Typical mistakes

• Spezifische Erfüllung and spezifische Leistung are word-for-word shadows, no German statute or judgment uses them, they exist only in translations.
• Aufführung belongs to the stage, and a raw engine will sometimes render specific performance as spezifische Aufführung, theatre in the middle of a remedies clause.
• Treating an Erfüllungsanspruch as a long shot imports the English discretion, in Germany the claim is the rule and needs no special justification.
• Nacherfüllung is not specific performance, § 439 BGB names the buyer’s cure remedy for defects, repair or replacement, a narrower and different claim.

What matters

Remedies advice for a contract that has gone German is where the inversion bites: the English client asks whether he can force the counterparty to perform, expecting the answer rarely. Under German law the honest answer is normally yes, § 241 Abs. 1 BGB, and the tactical picture flips, delay and defence look different when performance can simply be sued for.

Examples