Specific performance, as established in article 830 of the Portuguese Civil Code, is a legal mechanism that allows the non-defaulting promissory party of a promise contract to judicially demand that the other party fulfill its obligation to execute the definitive contract. This right is an alternative to compensation for non-compliance and aims to ensure that the contractual promise is effectively fulfilled.
Legal Implications of Specific Performance
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Right of the Non-Defaulting Promissory Party:
The promissory party who did not default has the right to request the court to issue a judgment that produces the effects of the legal declaration that the defaulting party committed to perform. This means that the court may order that the definitive contract be executed, even against the defaulting party’s will.
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Alternative to Compensation:
Specific performance is an alternative to compensation for non-compliance. Instead of receiving monetary compensation, the non-defaulting promissory party may choose to demand the effective performance of the promised contract.
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Cases of Impossibility:
There are exceptions where specific performance cannot be requested, such as when the parties expressly agree that it will not be possible or when performance becomes impossible due to circumstances beyond the parties’ control, such as the sale of the promised property to a third party before registration of the specific performance action.
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Real Effectiveness:
Specific performance may be more complex when the promise contract does not have real effectiveness, i.e., when it is not registered and, therefore, is not opposable to third parties who acquire rights over the property. In this case, the promissory buyer’s credit right may conflict with a third-party acquirer’s real right.
Specific performance is an important legal instrument to ensure that contractual promises are fulfilled, providing an effective solution for the promissory party who wishes to see the definitive contract executed as agreed.