automatic presumption of reciprocity (or mutuality), as in some of the national systems mentioned above (though there are three widely defined circumstances in which obligations will be taken to be mutual), and that where obligations are reciprocal the default position is that they must be performed simultaneously. Failure by A to effect a performance which requires to occur either simultaneously or before B’s performance triggers an entitlement on B’s part to withhold performance until the reciprocal performance due by A has occurred.43 Part of, as well as the whole of, a performance may be withheld if that is reasonable in the circumstances.44

The DCFR regime is consistent with the basic idea of the conditionality of a promise, that a promise may be made only on condition that the promisee also does something. It follows from that idea that if the promisee does not meet the condition, the promisor should not require to do what it has promised. The absence of any more extensive right to withhold performance (as in the BGB) is consistent with the idea that an unconditional promise must be performed regardless of any failings of the promisee.

3.  Specific performance

Any system claiming to place a high value on promises would, one would expect, ensure that there was a robust legal remedy available to compel performance by the promisor if such compulsion became necessary. Such a remedy – specific performance – one would expect to be available as of right, and not merely at the discretion of the courts, and would expect to be a primary and not simply a secondary entitlement of the promisee’s. One would also expect that the circumstances where judicially ordered performance was not granted would be limited to those cases where to order it would be impractical or impossible, such a practicability limitation not undermining the theory underpinning the remedy. All of such expectations flow from an understanding of the nature of promise as a commitment to performance, so that any system claiming to respect the nature of promise would thus be expected to ensure that, despite a breach of the duty to perform, promisors would still be expected to honour their obligations and be compelled to perform, where possible. Such compulsion is consistent with the promisor giving its pledged performance legal and not simply moral normative form.

43 DCFR Art. III.-3:401(1). 44 DCFR Art. III.-3:401(3).

The nature of specific performance as a discretionary remedy puts the spotlight firmly upon the courts: the way in which their discretion is exercised has the ability to champion promissory liability (if the ­remedy, when requested, is granted widely) or to marginalise it (if the remedy, when requested, is granted only sparingly). In this respect, one must take note of the established English judicial view that the remedy ought not to be granted whenever damages would be an adequate remedy. This has given rise, for instance, to a practice of granting the remedy in cases where delivery of unique goods (or land) is required, but of only awarding damages in the case of duplicate goods easily obtainable on the market. Such a distinction raises some rather under-explored assumptions about the idea of the ‘adequacy’ of a remedy. On one view, damages could be said always to be an inadequate, second-best, remedy, as self-evidently they merely substitute for the actual performance desired by the promisee, though such an attitude is clearly not shared by the courts.

Even where it is clear that, according to traditional ideas of adequacy, damages would not be adequate, sometimes courts have nonetheless refused the request for specific performance on the grounds that the order would have to be constantly supervised by the courts.50 This point was raised in the important case of Co-operative Insurance Society v. Argyll Stores (Holding) Ltd,51 where the order was refused. Though the case concerned the specific question of the enforcement of a so-called ‘keep-open’ provision in a lease, it is symbolic of the generally reserved attitude of English law to specific performance. The contrast between the decision and that in the similar fact Scots case Retail Parks Investments Ltd v. Royal Bank of Scotland plc (No. 2),52 discussed below, is marked.

In the Co-operative case, Lord Hoffmann explained the judicial concern about possible constant supervision as relating to the possibility that courts may have to give an indefinite series of rulings concerning compliance with a specific performance order. Such a possibility derives, in a case of a keep-open clause, from the fact that keeping a business open is an ongoing, rather than a one-off, matter. Yet the courts already require to ensure ongoing compliance with other orders, such as maintenance or child support orders, and perform this task without apparently insuperable difficulty. Lord Hoffmann also worried about difficulties relating to the precision required for drafting the order. Yet surely the real problem

50See for an older case stating this Powell Duffryn Steam Coal Co. v. Taff Vale Railway (1874) LR 9 Ch 331.

51 [1998] AC 1. 52 1996 SC 227, 1996 SLT 669.

is in testing whether there has been a breach of the order, not in drafting it. The wording of the order simply requires to mirror the term in the contract. If that term is itself somewhat vague, then naturally there may be difficulty in assessing whether there has been a breach of the order, but the correct response to a vaguely or widely drafted clause is, arguably, to allow the party bound by it a degree of discretion in its implementation. Consider the clause in the Co-operative case, which obliged the tenant to

keep the demised premises open for retail trade during the usual hours of business in the locality and the display windows properly dressed in a suitable manner in keeping with a good class parade of shops.

Lord Hoffmann worried that this clause said nothing about the level of trade, the kind of trade, and so forth. But this surely means no more than that the clause gives the tenant a wide discretion as to how to act, so that, so long as it stays within that wide discretion, it will not have breached the order. True, the clause does not say what ‘usual hours of business’ means, but again surely that gives the tenant a reasonable discretion on that matter. The tenant might decide to stay open from 7 a.m. to 8 p.m. six days a week, or only 9 a.m. to 5 p.m. five days a week, but so long as the hours chosen are similar to the hours of opening of other shops in the locality (especially the other units in the shopping centre) it surely ought to be the case that the order should not be seen as having been broken.

Lord Hoffmann also worried about yoking parties together who were now in a grudging contractual relationship, and one which might be causing loss to one of them through its continuation.53 But, as to the loss point, is this not a risk that all contracting parties take when then they contract? To release a party from such consequences is to excuse a party from the negative consequences of that risk, and to readjust the balance of risk in the relationship. If a party who has agreed to sell something at a price which turns out, by the date of performance, to be much lower than the market rate is held to that contract, why not also the tenant who has overestimated his ability to trade profitably?

Overall, Lord Hoffmann’s judgment fails to appreciate the inadequacy of the remedy of damages in the case, given the impossibility of calculating accurately the losses which might reasonably be contemplated by the parties as likely to flow from the throwing up of the lease by an anchor tenant, and thus the crucial importance to the landlord of that tenant remaining.

53  [1998] AC 1, see Lord Hoffmann, at paras. 15–16.