Performance, Reasonableness, and Proportionality

Abstract The chapter examines how the protection of contractual performance and the role of reasonableness in the context of remedies have evolved in England and France over recent decades. While reasonableness remains central in the English law of remedies, over time greater protection has been afforded to contractual performance. In particular, there has been a notable trend towards recognizing that the promisee has an ‘interest in obtaining performance’ that is worthy of protection. However, the corresponding interest of the promisor in ‘rendering performance’ has rarely received attention and remains an underdeveloped concept. In France the commitment to performance remains strong, but reasonableness now plays a more prominent role in remedies law. Reasonableness, and the closely related concept of proportionality, were introduced to the provisions on remedies by the 2016 reforms of the contract law section of the Civil Code as limiting mechanisms to achieve greater balance between the competing interests of the parties. While these changes have brought about a rapprochement between English and French law, the contrast between them remains significant. The chapter observes that this is mainly due to the fact that the mitigation principle still plays a central role in English law, whereas it has no place in French law.