Specific Performance and Stadtrechte (Town Laws): Difference between pages

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by ''[[Jens Kleinschmidt]]''
by ''[[Andreas Thier]]''


== 1. Object and purpose ==
== 1. Conceptual definitions ==


With the state having a monopoly on the use of force, a creditor may not take matters into his own hands in the case of [[Non-Performance|non-performance]] and resort to self-help (but see [[Set-Off|set-off]]; [[Right of Retention|right of retention]]). Rather, the state makes him turn to the courts for help and initiate judicial proceedings, possibly followed by execution measures that are, again, supervised by the state. However, it needs to be determined which consequences the law attaches to the non-performance (or defective performance) of an obligation. First, does substantive law provide for a right to claim performance ''in specie'' of what has been promised? Secondly, will a court order for specific performance actually be executed? Enforcement ''in specie'' can rest on the idea that the debtor has promised a particular performance and the best way to keep this promise is to do what has been promised. Moreover, it can be easier and more practicable to determine the promised performance than to assess damages in lieu of performance. For, after all, an alternative route for substantive law would be to refer the creditor to payment of a sum of money as damages, or for procedural law to refuse the enforcement of a decree of specific performance. This approach could be justified by taking account of the debtor’s rights that are affected by coerced performance. While the payment of money only concerns the debtor’s patrimonial interests and is relatively easy to enforce, being compelled to do something or to refrain from doing something ''in specie'' affects the debtor’s personal liberty. Furthermore, coerced performance in kind does not always seem expedient. First, execution may be cumbersome (eg in the case of [[Recurring Obligations|recurring obligations]]). Secondly, a sum of money may be more useful for a creditor who is able to obtain a substitute performance on the market more quickly. Whether discharging a recalcitrant debtor with damages is also more efficient is widely assumed (theory of ‘efficient breach’), but has increasingly been called into question in recent times. In addition, to assume that the parties wanted such a ‘disjunctive’ obligation would run counter to their intentions.
The term ‘town law’ (''Stadtrecht'') encompasses different meanings in the context of European legal history: from a more technical perspective it designates all rules that apply only to a town and are thus distinct from the law of the land around this town. In terms of their binding force, town laws encompass a bundle of rights that are granted to the members of a municipality by a ruler as ''privileges''<nowiki>; they have been shown to exist since approximately the 12th&nbsp;century, when they were termed </nowiki>''libertates''. Apart from exemption from the law of the land and the conferring of individual rights (such as the guarantee of personal freedom or free disposition of land holdings) these kinds of ‘liberties’ also include the power (''iustitia'') to make laws and to enforce them. In that sense town law might be understood as the description of a special legal status of a municipality and its inhabitants, which characterized it as a ‘town in a legal sense’ (H Planitz). Town law also refers to the autonomous law making of an autonomous town corporation or its organ, ie its council; this type of town law was designated by expressions such as ''Willkür'', ''kore'', ''decreta'', ''statuta'', ''mandata'' or ''arbitria''. In terms of systematic classification, this kind of statutory law is related to customary law. The latter can evolve in a municipality and is, in that sense, also a type of town law. A last meaning of town law is revealed by the substantive content of rules for the internal legal order of municipalities. These rules (frequently called ''iura'' or ''ius civile'') deal particularly with matters of pri- vate law, criminal law, procedure, and later also all areas of municipal and police administration.  


== 2. Approaches in the national legal systems ==
== 2. Manifestations and contents of medieval town law ==


As obligations for payment of money due can, in principle, be specifically enforced everywhere, they may be left out of consideration in the following observations. For all other ‘non-monetary’ obligations, however, the approaches differ. In fact, specific performance of non-monetary obligations is traditionally regarded as one of a number of characteristic points on which English law and continental legal systems hold opposing views. Yet, classical [[Roman Law|Roman law]] had developed an answer which is not in line with modern continental thinking: ''omnis condemnatio pecuniaria''. Even if the Roman jurists, too, regarded fulfilment as the ultimate goal of an obligation, the debtor was only condemned to a sum of money in case of non-performance. While for obligations directed at the transfer of objects (''obligationes dandi''), performance in kind was already generally accepted in the [[Corpus Juris Civilis|''Corpus Juris Civilis'']], for obligations to do something (''obligationes faciendi''), the question of specific performance remained highly controversial in the centuries to come. Canonists, for whom every breach of contract was a sin, advocated a sweeping extension of the principle of performance in kind. For many others, however, condemnation of a debtor to do something was an inappropriate intrusion upon the debtor’s liberty. This was expressed in the maxim ''nemo potest praecise cogi ad factum''. Via Pothier, the idea found its way into Art&nbsp;1142 of the French [[Code Civil|''Code civil'']]. Until today, this provision leads to some uncertainty in French law about the range of obligations enforceable ''in specie''. In any event, it cuts off a corresponding right to performance in kind, for some obligations, already at the level of substantive law. The ultimate step was only taken by the German pandectists of the 19th&nbsp;century who generally regarded it as appropriate that creditors be entitled to performance ''in specie''. The right to specific performance was to become the ‘backbone of the obligation’ (Ernst Rabel). The possible conflict with the debtor’s liberty, on the other hand, was relegated to the rules on execution.
Viewed from the perspective of urban settlement developments, two regions can be distinguished in medieval Europe: in Italy and southern France the continuity of Roman ''civitates'' continued to exert its influence. North of the Alps and also in England, however, this tradition was not present; here, municipal settlements evolved frequently nearby bishop’s sees, royal palatinates or from fortified market places. Beginning sometime around the 12th&nbsp;century, existing and newly emerging settlements began to grow in size. This corresponded to the increasing long-distance trade and the ascension of universities which, however, found better conditions in the already urbanized regions of southern France and northern Italy than north of the Alps. It was against this background that town law would unfold its multiple dimensions, described above.


The solution in English law, by contrast, is less straightforward: in principle, non-performance of an informal promise makes the debtor liable to pay [[Damages|damages]]. Only exceptionally, where damages seem inadequate, may a court order specific performance (or, in the case of obligations to refrain from doing something, an injunction). In particular, a money payment is inadequate where damages would be only nominal, where the amount of damages is difficult to quantify, or where a satisfactory substitute is difficult to obtain, as is the case with land and ‘specific or ascertained goods’ (s&nbsp;52 Sale of Goods Act of 1979), but also for generic goods that are difficult to find on the market. Specific performance is described as a discretionary remedy, but a court will look to established principles derived from precedents in exercising its discretion. In particular, it will not order specific performance if this would unduly interfere with the debtor’s liberty (eg in contracts for personal services), or if it would require constant supervision by the court.
=== a) Town law: between privilege and autonomous rule making ===


The design of specific performance as an exceptional remedy has historical roots. Originally, the regular remedy for breach of a promise was, not unlike the approach under Roman law, payment of damages in money because the pertinent action of ''assumpsit'' had a ‘delictual’ basis: it had developed out of trespass. Where, however, the Chancellor, trained in canon law and supplementing the [[Common Law|common law]] with his jurisdiction based on [[Equity|equity]], found money to be inadequate to satisfy the interests of the creditor, he could order specific performance of what had been promised. This relationship between the two remedies survived the ‘fusion’ of common law and equity. Today, one may add other reasons for the character of specific performance as an exceptional remedy: the fact that a creditor is usually confined to damages can be explained as a consequence of his duty to mitigate his loss that permeates all remedies in contract law and that may require him to effect a cover transaction wherever reasonable. Furthermore, in many cases a court order for specific performance can only be enforced by drastic, quasi-criminal sanctions because a disobedient debtor will be held to be in contempt of court. The possibly disproportionate character of these sanctions may also explain why the courts have favoured damages as a remedy.
The origins of town law privileges go back to the Carolingian period. Since that time merchants had been granted royal protection in the form of privileges, for instance exemption from customs duties and freedom of trade, and they received preferential procedural treatment such as the exemption from ordeal by battle. Moreover, since Carolingian and particularly since Ottonian times, market privileges had been granted which would guarantee royal protection for the privileged market place, invest the privileged person(s) with the right of coinage for the respective market (so that revenues from currency exchanges could be drawn), and which would oblige all market actors to comply with the market rules. As first seen in the 11th&nbsp;century and as later routinely done in the 12th&nbsp;century, such concessions were extended to boroughs through wider-reaching liberties, including in particular the ''ius statuendi et iudicandi'', which formed the basis of autonomous rule-making and jurisdiction. In more than a few instances, existing local customs or rules, created by the burghers, were confirmed by municipal charters.


== 3. Convergence and remaining differences ==
Autonomously created town law, in German called ''Willkür'' (‘resolution’ (original etymological meaning); ‘arbitrariness’ (modern meaning)), ''Einung'' (‘union’) or ''Satzung'' (‘statute’), was grounded in the idea of the citizens’ association as a so-called ‘sworn union’ (''coniuratio''). Understood in Carolingian times as a potentially dangerous ‘conspiracy’ and therefore banned, associations created by oath became more frequent in the age of truces and king’s peaces beginning in the 10th&nbsp;century; they also came to exist as associations of merchants in the form of guilds. Here, the oath of allegiance to jointly enacted rules formed the basis of their validity. The strong presence of this kind of legitimation, which also reveals early modern ideas of a social contract, became particularly clear in the well-evidenced duty of town citizens to take the oath of citizenship anew every year (''coniuratio reiterata''). In the legal practice of towns, town law was frequently promulgated as the ‘union’ of the elected council, which would however evolve into an autonomous authority that from the 14th&nbsp;century claimed the power to decree governmental ‘precepts’.


Despite the different weight attached to specific performance, the practical results will often resemble each other. This is due to several factors: (i)&nbsp;In recent years, English law seems to have shifted from asking whether damages would be ‘inadequate’ to enquiring whether specific performance would be the ‘appropriate’ remedy, thereby treating specific performance with greater favour. Some authors even see a reversal of rule and exception on the horizon. This tendency is particularly apparent in the remedy of replacement of defective consumer goods in kind that, as a consequence of the transposition of the Consumer Sales Directive ([[Sale of Consumer Goods|sale of consumer goods]]; [[Supplementary Performance|supplementary performance]]) into English law, is also available with regard to the sale of generic goods. (ii)&nbsp;Modern French law generally accepts that the wording of Art&nbsp;1142 of the ''Code civil'' is too broad. Both case law and legal literature tend to regard performance in kind as the regular effect of an obligation. The ''Avant-projet de réforme du droit des obligations et de la prescription'' of September 2005 and all later reform drafts contain a rule that makes ''exécution en nature'' the general legal consequence of obligations to act or not to act, making payment of money the exception if specific performance fails. This tendency was fostered, at the level of execution, with the universal coercive technique of ''astreinte'' that had originally been developed by the French courts but has meanwhile found its way into the statute book and has also been imported by other legal systems. A court may add the order of an ''astreinte'', ie a penalty payment, or fine, for non-compliance, to virtually all judgments requiring performance ''in natura''. The amount of the ''astreinte'' does not depend on the damage the creditor may have suffered, but is fixed with regard to the recalcitrant debtor’s tenacity and his ability to perform. An ''astreinte'' puts indirect pressure to perform on the debtor as it is directed not against his person but only against his assets. It therefore constitutes a milder interference with the debtor’s liberty. Only in very few instances, such as performances of a highly personal (eg artistic) character, an ''astreinte'' is not available, and the creditor has to content himself with damages. It is to be noted that all ''astreinte'' payments go to the creditor and not to the state. Portuguese law, in its version of ''astreinte'', provides for the payments to be shared equally between the creditor and the state. (iii)&nbsp;While the creditor’s right to performance in kind is a comprehensive principle on the level of substantive law in Germany, certain qualifications have to be made when it comes to the level of execution. Here, §§&nbsp;887 and 888 of the Code of Civil Procedure distinguish between acts which can be performed equally well by somebody else and are therefore capable of substitute performance (''vertretbar'') and those which can be performed only by the debtor himself (''unvertretbar''). To be sure, certain acts or omissions that are ''unvertretbar'' can be enforced indirectly by means of a penalty payment. But, for instance, the provision of services that are ''unvertretbar'' is completely exempt from execution in order to avoid a disproportionate interference with the debtor’s personal liberty. Acts that are ''vertretbar'' are not enforced by coercive measures against the debtor but by substitute performance to be organized by the creditor. The debtor bears the cost of this substitute performance and is thus effectively released from his obligation by paying a sum of money. Substitute performance is also known to other legal systems, among them French law, where it can be ordered instead of a judgment for performance in kind backed by the order of an ''astreinte''. (iv)&nbsp;Lastly, the different approaches converge for very practical reasons: the creditor of a performance that is readily available on the market will hardly go through legal proceedings to obtain and enforce a court order for performance, but will instead liquidate any damages that may have arisen from a cover transaction.
Besides its normative status as precept or union, town law obtained a new quality compared to the law of the land: it was—similar to the law of the church ([[Canon Law|canon law]])—significantly characterized by written transmission, whereas oral custom had much more importance in rural areas and also in the context of [[Feudal Law|feudal law]]. Similar to canon law, positive town law was also easier to change and could thus be adjusted better to changing social and economic conditions. This evolutionary dynamic of town law was reflected in town law records from the 12th&nbsp;century onwards, and in its application. In the ''Stadtbücher'' (city records), initiated by town councils, emerging in the 12th&nbsp;century (''Schreinsbücher'' in Cologne, c 1130) and spreading particularly in the Hanse area ([[Hanseatic League and Pre-Modern Commercial Law|Hanseatic League and pre-modern commercial law]]), municipal statutes, acts of town administration and also citizens’ legal transactions (mainly pertaining to land holdings) were documented. In towns without this kind of officially ordered written records, ''Stadtrechtsbücher'' (records of town law) were created as private documentations of town law and legal practice, usually by town chroniclers (eg ''Freisinger Rechtsbuch'' of 1328 or ''Zwickauer Rechtsbuch'' of 1348). This type of writing was influenced in its origins by the efforts of learned lawyers to bring systematic order into the legal rules. Moreover, it shared the overall tendency towards written transmission of regional oral customary law, as represented particularly by the ''Sachsen''- and the ''Schwabenspiegel'', whose texts were frequently added to these ''Stadtrechtsbücher''.


However, these signs of convergence must not conceal the fact that important differences remain. On the continent, a creditor may, without more, sue for performance in kind. Under English law, by contrast, it is for the court to decide whether a creditor is in fact entitled to specific performance. Hence, the creditor runs the risk of being told by the court that he ought to have entered into a cover transaction. If conditions for a cover transaction have become less favourable, he has violated his duty to mitigate damages by insisting on specific performance and will not be awarded the full amount of damages. Finally, there is another (sometimes over-looked) conceptual difference between the continental and the English approach that also affects the enforcement of an obligation. It is the understanding on the Continent that a creditor of a contractual obligation has, at least in principle, the right to ask a court to order performance in kind simply by invoking a valid contract. If, on the other hand, specific performance is seen as a remedy for non-performance of a contractual obligation, as it is in England, then the creditor needs to show in addition that the debtor has failed to perform.
=== b) Town law families ===


== 4. Specific performance and its limits: the European and international model rules ==
Town law had binding force only within the town limits. But in many cases the texts or at least the content of individual town laws were adopted by other towns. This spread of town law texts principally took place through two mechanisms. (1)&nbsp;The transfer of one town law text to another town could happen as a result of a legislative act. This occurred mainly in the case of towns founded by a ruler who would expressly adopt the laws of another town as the basis for the law of the new town or who would simply refer to another town law. A typical example is a provision in the town law of Freiburg im Breisgau (1120) that disputes should be resolved not by ''arbitrium'' of the lord of the town, but by the law of Cologne and the general law merchant: ''non secundum ... arbitrium ... sed pro consuetudinario et legitimo jure omnium mercatorum precipue autem Coloniensium examinabitur judicio'' (''Tennenbach'' text of the town law of Freiburg, c&nbsp;5). (2)&nbsp;The transfer could also occur as a consequence of a request of a younger town to an older one regarding individual legal problems. This widespread practice resulted in the rise of filiations of town law texts and the emergence or consolidation of special instances such as the so-called ''Schöffenstühle''. Special authority was gained by the texts of town laws (as in the case of Lübeck, Magdeburg and Frankfurt) whose status was based on imperial privilege, and which could therefore claim a special legal status with the result that judgments based on these legal texts promised security against critical objections.


As a general rule, [[Principles of European Contract Law (PECL)]], [[UNIDROIT Principles of International Commercial Contracts (PICC)]] and the Draft [[Common Frame of Reference (CFR)|Common Frame of Reference]] (DCFR) provide for specific performance of monetary obligations, though—in contrast to many national legal systems—only to a limited degree if the counter-performance has not yet been effected. Performance in kind is also the starting point chosen for non-monetary obligations (Art&nbsp;9:102 PECL, Art&nbsp;III.-3:302 DCFR, Art&nbsp;7.2.2 UNIDROIT PICC). The model rules regard this claim for specific performance as a remedy and therefore as a sanction for the non-performance (or defective performance) of an obligation. This remedy is situated on the same level as other remedies (in particular, damages), provided their specific prerequisites are met ([[Non-Performance|non-performance]]). A claim for specific performance is excluded from the contract if the debtor’s non-performance is excused by a relevant impediment.
For the description of these phenomena, which mark an early but distinguished example of legal transfer ([[Reception|reception]]), a widely used, if sometimes disputed, nomenclature has evolved: a family of town law (''Stadtrechtsfamilie'') is the designation of those town laws that can be traced back to the text of a single town law as in the case of the ''Lübisches Recht'', derived from the law of Lübeck. The town where the respective law originated is called the ''mother town'', as was the case with Magdeburg as the point of origin for Magdeburg law, which spread mainly in eastern Europe. The recipient municipalities are called ‘daughter towns’.


In light of the different approaches in the national legal systems, the limits to a right to specific performance are of particular interest. While the DCFR differs in one important respect, PECL and UNIDROIT PICC contain the same five reasons to deny specific performance, though using different language. A party is not precluded from invoking any other remedy if it cannot obtain specific performance. (i)&nbsp;First, specific performance is not available if performance in kind would be unlawful or impossible. It does not matter whether performance is impossible for everyone or only for this particular debtor. (ii)&nbsp;Second, specific performance cannot be obtained where performance in kind would cause the debtor unreasonable effort or expense. What exactly is to be regarded as unreasonable is a matter to be decided by the courts. It is difficult to give more precise guidelines as the interests of the parties are valued differently in the different national legal systems. (iii)&nbsp;Third, specific performance is excluded where the performance consists in the provision of services, or work of a personal character, or depends upon a personal relationship (the wording of the DCFR is somewhat narrower so that it can be reconciled with the DCFR provisions on service contracts). This exception takes up the reservations against a disproportionate interference with the debtor’s personal liberty familiar both to common law and civilian systems. At least in the PECL and the UNIDROIT PICC, it is also founded on doubts as to the quality of enforced performance and on difficulties for the court to supervise the proper execution of its order. Consequently, the exception only covers performances that may not be delegated, in other words: performances that are ''unvertretbar''. If performance can be rendered by someone other than the debtor personally, any interference with his personal liberty can be avoided by means of substitute performance. (iv) The fourth and possibly most important exception is that PECL and UNIDROIT PICC refuse specific performance where the creditor may reasonably obtain performance from another source. This far-reaching exception concerns not only the delivery of generic goods but also the performance of other acts that can be performed equally well by someone else. Performance in kind is therefore excluded in most practically important cases. This exclusion is meant to take account of the common law reluctance towards granting specific performance where a cover transaction is possible and reasonable. However, the exception also purports to be acceptable to civil law jurisdictions for it is said merely to mirror the economic reality. A comparable rule has evolved in the Scots [[Mixed Legal Systems|mixed legal system]]. At the outset, the creditor decides whether he thinks that performance can reasonably be obtained from another source. If he chooses to insist on performance in kind, it is for the debtor to prove the existence of a reasonable alternative source. However, a creditor will only learn from the court whether he had in fact been entitled to specific performance. In practice, therefore, similar to the common law, the creditor is deprived of his freedom to opt for specific performance. This rule can be seen to conflict with the general availability of replacement in kind as a remedy under the Consumer Sales Directive. For this reason, Art&nbsp;III.-3:302 DCFR (to which Art&nbsp;IV.-4:201(a) refers in the sales context) contains the first three exceptions, but not this last one. Instead, the creditor is only indirectly prevented from requesting specific performance despite the availability of a reasonable cover transaction ‘without significant effort or expense’: if the creditor unreasonably insists on specific performance, a claim for damages will be reduced to the extent to which the creditor’s behaviour has increased the damage (cf the identical rule in Art&nbsp;8:202 of the [[Acquis Principles|''Acquis'' Principles]]). Moreover, the Comments to the DCFR indicate that the possibility of a cover transaction may be a relevant factor in deciding whether performance in kind would be unreasonably burdensome or expensive. (v)&nbsp;A fifth exception makes the creditor lose his right to claim specific performance if he fails to seek it within a reasonable time after he has, or should have, become aware of the non-performance. The creditor is thus deprived of any possibility to speculate unfairly at the debtor’s expense. (vi)&nbsp;Finally, it may be added that specific performance is excluded if the creditor has exercised a remedy that is inconsistent with performance of the obligation in kind, particularly if he has chosen to terminate the contract. However, the mere existence of a right of [[Termination of a Contract|termination of a contract]], or even the expiry of an additional period for performance fixed by the creditor (''Nachfrist''), does not prevent the creditor from requesting specific performance (Art&nbsp;III.-3:103(3) DCFR).
=== c) Substantive content of town law ===


The rules outlined above only concern the level of substantive law. Procedural law, and execution in particular, is still a matter for the national legal systems and therefore necessarily left out of consideration by the model rules. This may have several important consequences: (i)&nbsp;If a court orders a debtor to deliver generic goods ''in specie'' (eg because scarcity of the goods would render a cover transaction unreasonable), in Germany the judgment will be enforced by the enforcement officer (''Gerichtsvollzieher'') taking the goods away from the debtor. If he does not find the goods (as is most likely if they are scarce), the creditor has to be content with damages. In England, by contrast, the recalcitrant debtor is in contempt of court and thus compelled to go to the market and try to acquire the goods for the creditor if he wants to avoid the drastic sanctions for contempt. (ii)&nbsp;The mere existence of a court order of specific performance can positively affect the debtor’s willingness to perform. A system that excludes specific performance at the level of substantive law rather than at the level of execution proceedings (eg by refusing enforcement or relegating the creditor to substitute performance) may not benefit from this potential. (iii)&nbsp;Finally, differences between the various means of enforcing a judgment remain unresolved. In particular, this concerns the question whether penalty payments are available as a means of enforcement and, if so, who will receive these payments. In order to address it, the UNIDROIT PICC (unlike PECL and DCFR) encroach upon the law of execution. According to Art&nbsp;7.2.4, which is obviously modelled on the French ''astreinte'', a court that orders a party to perform may direct that this party pay a penalty if it does not comply with the order. This penalty payment goes to the creditor unless this would contravene mandatory provisions of the ''lex fori''.
Despite their broad variety and vast multiplicity, town laws have some common fields of application: essential was the individual freedom of citizens from any rule by outside powers. This becomes especially apparent in the principle ‘city air makes you free’; although the exact formulation of the original maxim is not known, its meaning and existence dates back to approximately 1150. In particular, this rule meant that peasants subjected to manorial jurisdiction were freed from the bonds of servitude and could even enter the association of citizens provided the seigneurial claim was not asserted for a given period of time (‘a year and a day’). Another defining element of town law was its provisions on the protection of the free disposal of property rights. In newly founded cities, the lord of the town often granted its inhabitants property in return for the payment of a low interest ([[Interest|interest]]). The needs of the urban property market led to the development of land registers and fostered the evolution of legal concepts concerning secured interests in land. This phenomenon demonstrates the importance of business-law related issues for the evolution of town law. This corresponds to the fact that in addition to contract law, the law of the guilds and the commercial law were of special importance in this context. The emergence of rules about foreclosure and bankruptcy completed this picture of a legal regime that even limited the medieval inequality of gender by re-evaluating the legal status of women in the context of economic activities so as to support urban economy.


== 5. Uniform law ==
Procedure formed another issue prominently featuring in town law. It frequently substituted the older traditions of purgative oath and ordeal with provisions on testimony and documentary evidence. Bans on violence and numerous criminal law rules served to keep the urban peace.


To date, EU private law regulates specific performance only in a fragmented way, and only concerning particular situations. The consumer’s primary right to the repair or replacement of defective goods in a [[Sale of Consumer Goods|sale of consumer goods]] has already been mentioned. Traces of a remedy of specific performance can also be found in Arts&nbsp;4(6) and (7) of the Package Travel Directive (Dir&nbsp;90/314) and in the various regulations on passengers’ rights (Art&nbsp;8 Reg&nbsp;261/2004 for air transport, Art&nbsp;16 Reg&nbsp;1371/2007 for rail transport, Art&nbsp;18 Reg&nbsp;1177/2010 for waterway transport, Art&nbsp;19 Reg&nbsp;181/2011 for bus and coach transport). Generally speaking, these instruments grant the traveller a right that the journey does in fact take place. Sometimes, the limits of specific performance (impossibility, unreasonable effort or expense) have also been regulated.
These developments were sometimes influenced by the [[Ius Commune|''ius commune'']]. [[Roman Law|Roman law]] found its way into ''Stadtrechtsbücher'' such as the Hamburg ''Ordeelbook'' (1270), and it was able to obtain strong influence when the position of the town clerk was occupied by learned jurists as in the case of Italian, southern and western German cities. At the turn of the late Middle Ages to the early modern period, Roman law gained additional weight in the so-called ‘town law reformations’, such as those occurring in Frankfurt (1609, 1678), Freiburg (1520) and Nuremberg (1478).


The CISG ([[Sale of Goods, International (Uniform Law)|sale of goods, international (uniform law)]]) generally provides for a remedy of performance ''in specie'' for both the seller and the buyer. Thus, it has decided to take the continental approach as its starting point. However, from the very beginning of the negotiations on the CISG, the different approaches were regarded as unbridgeable. As a compromise, Art&nbsp;28 CISG therefore contains a conflicts rule according to which a national court ‘is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by [the CISG]’. A similar safety valve for common law courts can be found in Art&nbsp;12(1)(c) of the Rome&nbsp;I Regulation (Reg&nbsp;593/2008): generally, the choice between specific performance and damages is a matter for the ''lex causae—''but only ‘within the limits of the powers conferred on the court by its procedural law’.
== 3. Town law in the modern age ==


A foreign judgment ordering specific performance will be enforced in another Member State under the Brussels&nbsp;I Regulation (Reg&nbsp;44/ 2001) with the means available in the respective Member State where enforcement is sought. This rule applies regardless of whether a court in the enforcement state would have ordered specific performance under similar circumstances. In addition, the creditor may choose to request the court in the Member State of origin to order a penalty payment (where such payment is available) and enforce this order in other Member States like a money judgment under the conditions provided by Art&nbsp;49 Brussels&nbsp;I Regulation (the details of this mechanism are highly controversial; see also Art&nbsp;67 of the Brussels&nbsp;I reform proposal, COM(2010) 748 final). The Joint ALI/UNIDROIT Working Group on Principles and Rules of Transnational Civil Procedure suggests a uniform provision on monetary penalties for non-compliance with a judgment in Rule 35.2.
During the early modern period, medieval traditions of town law continued to exercise their influence until the 18th&nbsp;century. Nevertheless, town law was now also shaped in the 16th&nbsp;and 17th&nbsp;centuries by ''Polizeiordnungen ''(‘police’ regulations), which dealt with all areas of economic and social life. Town law was an important factor in the introduction of the Reformation, which spread throughout central Europe mainly via towns and cities. The legal distinction between town and country remained unchanged throughout early modern times, even though the enlightened [[Codification|codifications]] of the late 18th&nbsp;and early 19th&nbsp;centuries brought the idea of legal equality to the fore; but it was only the constitutional state of the 19th&nbsp;century that would ultimately implement this ideal (while limiting at the same time municipal legal autonomy). The last vestiges of the remaining town law traditions were eliminated by the codifications of the late 19th&nbsp;century.


==Literature==
==Literature==
Guenter H Treitel, ''Remedies for Breach of Contract'' (1988) 43&nbsp;ff; Oliver Remien, ''Rechtsverwirklichung durch Zwangsgeld'':'' Vergleich—Vereinheitlichung—Kollisionsrecht'' (1992); Reinhard Zimmermann, ''The Law of Obligations'' (1996) 770&nbsp;ff; Marcel Fontaine and Geneviève Viney (eds), ''Les sanctions de l’inexécution des obligations contractuelles'' (2001); Yves-Marie Laithier, ''Étude comparative des sanctions de l’inexécution du contrat'' (2004); Nili Cohen and Ewan McKendrick (eds), ''Comparative Remedies for Breach of Contract'' (2005); Tilman Repgen, ‘§§&nbsp;362–371. Erfüllung’ in Mathias Schmoeckel, Joachim Rückert and Reinhard Zimmermann (eds), ''Historisch-kritischer Kommentar zum BGB'','' vol&nbsp;II''/''2'' (2007); Hannes Unberath, ''Die Vertragsverletzung'' (2007); Jan M Smits, Daniel Haas and Geerte Hesen'' ''(eds), ''Specific Performance in Contract Law. National and other Perspectives'' (2008); Axel Flessner, ‘Der Geld-Erfüllungsanspruch im europäischen Vertragsrecht auf den Stufen zum Gemeinsamen Referenzrahmen’ in ''Festschrift Eugen Bucher'' (2009) 145; Marc-Philippe Weller, ''Die Vertragstreue'':'' Vertragsbindung—Naturalerfüllungsgrundsatz—Leistungstreue ''(2009).</div>
Wilhelm Ebel, ''Der Bürgereid als Geltungsgrund und Gestaltungsprinzip des deutschen mittelalterlichen Stadtrechts'' (1958); Gerhard Dilcher, ‘Stadtrecht’ in Albrecht Cordes and others (eds), ''Handwörterbuch zur Deutschen Rechtsgeschichte'','' vol&nbsp;4'' (1990) cols 1863&nbsp;ff; Karl Kroeschell, ''Stadtrecht'','' -sfamilien''’ in ''Lexikon des Mittelalters'','' vol&nbsp;8'' (1997) col 24; Susan Reynolds, ''Kingdoms and Communities in Western Europe 900–1300'' (1997).</div>
 
'''Sources.''' For a collection of medieval town law texts see Friedrich Keutgen, ''Urkunden zur städtischen Verfassungsgeschichte'' (1899). For a survey of medieval town laws see Richard Schröder and Eberhard Freiherr von Künssberg, ''Lehrbuch der Deutschen Rechtsgeschichte'' (7th&nbsp;edn, 1932, reprinted 1965) 379&nbsp;ff, 1063&nbsp;ff; For town law reformations see Wolfgang Kunkel and Hans Thieme (eds), ''Quellen zur neueren Privatrechtsgeschichte Deutschlands'','' vol&nbsp;1''/''I ''(1938). For a collection with reference to the European context (still in the process of being developed) see ''Elenchus Fontium Historiae Urbanae'','' vols 1–3'' (1967–2005).</div>




[[Category:A–Z]]
[[Category:A–Z]]
[[de:Erfüllungsanspruch]]
[[de:Stadtrecht]]

Latest revision as of 18:39, 5 June 2025

by Andreas Thier

1. Conceptual definitions

The term ‘town law’ (Stadtrecht) encompasses different meanings in the context of European legal history: from a more technical perspective it designates all rules that apply only to a town and are thus distinct from the law of the land around this town. In terms of their binding force, town laws encompass a bundle of rights that are granted to the members of a municipality by a ruler as privileges; they have been shown to exist since approximately the 12th century, when they were termed libertates. Apart from exemption from the law of the land and the conferring of individual rights (such as the guarantee of personal freedom or free disposition of land holdings) these kinds of ‘liberties’ also include the power (iustitia) to make laws and to enforce them. In that sense town law might be understood as the description of a special legal status of a municipality and its inhabitants, which characterized it as a ‘town in a legal sense’ (H Planitz). Town law also refers to the autonomous law making of an autonomous town corporation or its organ, ie its council; this type of town law was designated by expressions such as Willkür, kore, decreta, statuta, mandata or arbitria. In terms of systematic classification, this kind of statutory law is related to customary law. The latter can evolve in a municipality and is, in that sense, also a type of town law. A last meaning of town law is revealed by the substantive content of rules for the internal legal order of municipalities. These rules (frequently called iura or ius civile) deal particularly with matters of pri- vate law, criminal law, procedure, and later also all areas of municipal and police administration.

2. Manifestations and contents of medieval town law

Viewed from the perspective of urban settlement developments, two regions can be distinguished in medieval Europe: in Italy and southern France the continuity of Roman civitates continued to exert its influence. North of the Alps and also in England, however, this tradition was not present; here, municipal settlements evolved frequently nearby bishop’s sees, royal palatinates or from fortified market places. Beginning sometime around the 12th century, existing and newly emerging settlements began to grow in size. This corresponded to the increasing long-distance trade and the ascension of universities which, however, found better conditions in the already urbanized regions of southern France and northern Italy than north of the Alps. It was against this background that town law would unfold its multiple dimensions, described above.

a) Town law: between privilege and autonomous rule making

The origins of town law privileges go back to the Carolingian period. Since that time merchants had been granted royal protection in the form of privileges, for instance exemption from customs duties and freedom of trade, and they received preferential procedural treatment such as the exemption from ordeal by battle. Moreover, since Carolingian and particularly since Ottonian times, market privileges had been granted which would guarantee royal protection for the privileged market place, invest the privileged person(s) with the right of coinage for the respective market (so that revenues from currency exchanges could be drawn), and which would oblige all market actors to comply with the market rules. As first seen in the 11th century and as later routinely done in the 12th century, such concessions were extended to boroughs through wider-reaching liberties, including in particular the ius statuendi et iudicandi, which formed the basis of autonomous rule-making and jurisdiction. In more than a few instances, existing local customs or rules, created by the burghers, were confirmed by municipal charters.

Autonomously created town law, in German called Willkür (‘resolution’ (original etymological meaning); ‘arbitrariness’ (modern meaning)), Einung (‘union’) or Satzung (‘statute’), was grounded in the idea of the citizens’ association as a so-called ‘sworn union’ (coniuratio). Understood in Carolingian times as a potentially dangerous ‘conspiracy’ and therefore banned, associations created by oath became more frequent in the age of truces and king’s peaces beginning in the 10th century; they also came to exist as associations of merchants in the form of guilds. Here, the oath of allegiance to jointly enacted rules formed the basis of their validity. The strong presence of this kind of legitimation, which also reveals early modern ideas of a social contract, became particularly clear in the well-evidenced duty of town citizens to take the oath of citizenship anew every year (coniuratio reiterata). In the legal practice of towns, town law was frequently promulgated as the ‘union’ of the elected council, which would however evolve into an autonomous authority that from the 14th century claimed the power to decree governmental ‘precepts’.

Besides its normative status as precept or union, town law obtained a new quality compared to the law of the land: it was—similar to the law of the church (canon law)—significantly characterized by written transmission, whereas oral custom had much more importance in rural areas and also in the context of feudal law. Similar to canon law, positive town law was also easier to change and could thus be adjusted better to changing social and economic conditions. This evolutionary dynamic of town law was reflected in town law records from the 12th century onwards, and in its application. In the Stadtbücher (city records), initiated by town councils, emerging in the 12th century (Schreinsbücher in Cologne, c 1130) and spreading particularly in the Hanse area (Hanseatic League and pre-modern commercial law), municipal statutes, acts of town administration and also citizens’ legal transactions (mainly pertaining to land holdings) were documented. In towns without this kind of officially ordered written records, Stadtrechtsbücher (records of town law) were created as private documentations of town law and legal practice, usually by town chroniclers (eg Freisinger Rechtsbuch of 1328 or Zwickauer Rechtsbuch of 1348). This type of writing was influenced in its origins by the efforts of learned lawyers to bring systematic order into the legal rules. Moreover, it shared the overall tendency towards written transmission of regional oral customary law, as represented particularly by the Sachsen- and the Schwabenspiegel, whose texts were frequently added to these Stadtrechtsbücher.

b) Town law families

Town law had binding force only within the town limits. But in many cases the texts or at least the content of individual town laws were adopted by other towns. This spread of town law texts principally took place through two mechanisms. (1) The transfer of one town law text to another town could happen as a result of a legislative act. This occurred mainly in the case of towns founded by a ruler who would expressly adopt the laws of another town as the basis for the law of the new town or who would simply refer to another town law. A typical example is a provision in the town law of Freiburg im Breisgau (1120) that disputes should be resolved not by arbitrium of the lord of the town, but by the law of Cologne and the general law merchant: non secundum ... arbitrium ... sed pro consuetudinario et legitimo jure omnium mercatorum precipue autem Coloniensium examinabitur judicio (Tennenbach text of the town law of Freiburg, c 5). (2) The transfer could also occur as a consequence of a request of a younger town to an older one regarding individual legal problems. This widespread practice resulted in the rise of filiations of town law texts and the emergence or consolidation of special instances such as the so-called Schöffenstühle. Special authority was gained by the texts of town laws (as in the case of Lübeck, Magdeburg and Frankfurt) whose status was based on imperial privilege, and which could therefore claim a special legal status with the result that judgments based on these legal texts promised security against critical objections.

For the description of these phenomena, which mark an early but distinguished example of legal transfer (reception), a widely used, if sometimes disputed, nomenclature has evolved: a family of town law (Stadtrechtsfamilie) is the designation of those town laws that can be traced back to the text of a single town law as in the case of the Lübisches Recht, derived from the law of Lübeck. The town where the respective law originated is called the mother town, as was the case with Magdeburg as the point of origin for Magdeburg law, which spread mainly in eastern Europe. The recipient municipalities are called ‘daughter towns’.

c) Substantive content of town law

Despite their broad variety and vast multiplicity, town laws have some common fields of application: essential was the individual freedom of citizens from any rule by outside powers. This becomes especially apparent in the principle ‘city air makes you free’; although the exact formulation of the original maxim is not known, its meaning and existence dates back to approximately 1150. In particular, this rule meant that peasants subjected to manorial jurisdiction were freed from the bonds of servitude and could even enter the association of citizens provided the seigneurial claim was not asserted for a given period of time (‘a year and a day’). Another defining element of town law was its provisions on the protection of the free disposal of property rights. In newly founded cities, the lord of the town often granted its inhabitants property in return for the payment of a low interest (interest). The needs of the urban property market led to the development of land registers and fostered the evolution of legal concepts concerning secured interests in land. This phenomenon demonstrates the importance of business-law related issues for the evolution of town law. This corresponds to the fact that in addition to contract law, the law of the guilds and the commercial law were of special importance in this context. The emergence of rules about foreclosure and bankruptcy completed this picture of a legal regime that even limited the medieval inequality of gender by re-evaluating the legal status of women in the context of economic activities so as to support urban economy.

Procedure formed another issue prominently featuring in town law. It frequently substituted the older traditions of purgative oath and ordeal with provisions on testimony and documentary evidence. Bans on violence and numerous criminal law rules served to keep the urban peace.

These developments were sometimes influenced by the ius commune. Roman law found its way into Stadtrechtsbücher such as the Hamburg Ordeelbook (1270), and it was able to obtain strong influence when the position of the town clerk was occupied by learned jurists as in the case of Italian, southern and western German cities. At the turn of the late Middle Ages to the early modern period, Roman law gained additional weight in the so-called ‘town law reformations’, such as those occurring in Frankfurt (1609, 1678), Freiburg (1520) and Nuremberg (1478).

3. Town law in the modern age

During the early modern period, medieval traditions of town law continued to exercise their influence until the 18th century. Nevertheless, town law was now also shaped in the 16th and 17th centuries by Polizeiordnungen (‘police’ regulations), which dealt with all areas of economic and social life. Town law was an important factor in the introduction of the Reformation, which spread throughout central Europe mainly via towns and cities. The legal distinction between town and country remained unchanged throughout early modern times, even though the enlightened codifications of the late 18th and early 19th centuries brought the idea of legal equality to the fore; but it was only the constitutional state of the 19th century that would ultimately implement this ideal (while limiting at the same time municipal legal autonomy). The last vestiges of the remaining town law traditions were eliminated by the codifications of the late 19th century.

Literature

Wilhelm Ebel, Der Bürgereid als Geltungsgrund und Gestaltungsprinzip des deutschen mittelalterlichen Stadtrechts (1958); Gerhard Dilcher, ‘Stadtrecht’ in Albrecht Cordes and others (eds), Handwörterbuch zur Deutschen Rechtsgeschichte, vol 4 (1990) cols 1863 ff; Karl Kroeschell, ‘Stadtrecht, -sfamilien’ in Lexikon des Mittelalters, vol 8 (1997) col 24; Susan Reynolds, Kingdoms and Communities in Western Europe 900–1300 (1997). Sources. For a collection of medieval town law texts see Friedrich Keutgen, Urkunden zur städtischen Verfassungsgeschichte (1899). For a survey of medieval town laws see Richard Schröder and Eberhard Freiherr von Künssberg, Lehrbuch der Deutschen Rechtsgeschichte (7th edn, 1932, reprinted 1965) 379 ff, 1063 ff; For town law reformations see Wolfgang Kunkel and Hans Thieme (eds), Quellen zur neueren Privatrechtsgeschichte Deutschlands, vol 1/I (1938). For a collection with reference to the European context (still in the process of being developed) see Elenchus Fontium Historiae Urbanae, vols 1–3 (1967–2005).

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