Non-monetary relief for breach of contract: a European perspective on Chinese contract law

Abstract

To compensate for the loss caused by the non-performance, monetary damages are considered almost automatically. This article provides a broader perspective. Indeed, albeit monetary damages are and will always remain the most frequently awarded form of compensation, this comparative analysis reveals that non-monetary relief has a full role to play within a modern law of contract. Non-monetary relief is not to be confused with specific performance. Unlike specific performance, an order for non-monetary relief does not provide actual or full performance. Non-monetary relief provides rather, by way of compensation for the loss caused by the non-performance, an act different as agreed upon, aimed at placing the aggrieved party in as good a position as if the contract would have been fully performed. Under Chinese contract law, this alternative form of compensation is available yet remains underexplored. This article provides the legal framework and highlights the under-utilization of this remedy, identifying examples for which non-monetary relief is an appropriate alternative to monetary damages for breach of contract. It argues that in the twenty-first century, when sustainability is increasingly pursued as a matter of a guiding principle, the law of contract needs to be re-gigged up to reflect this trend. The availability of non-monetary relief can meet not only private interests, but can comply with public interests as well.