Under the Kuwaiti Civil Code, specific performance is the primary remedy for compelling a debtor to fulfill their obligation, and damages (substitute execution) are resorted to only when specific performance is impossible or at the creditor's request. Articles 198–210 govern these provisions.
Table of Contents
Concept and Importance
Specific performance is compelling the debtor to fulfill their obligation exactly as agreed — delivering the sold property, completing the work, refraining from a specific act. It is the primary and most complete remedy because it gives the creditor precisely what was contracted for.
- Gives the creditor the exact subject matter, not a substitute
- Has priority over damages under Kuwaiti law
- Applies to all obligation types: giving, doing, refraining
Conditions for Specific Performance
- Possibility: Performance must still be possible
- No undue burden: Performance must not impose an excessive burden on the debtor when damages would suffice
- Formal notice: The creditor must have given the debtor formal notice demanding performance
- Creditor's request: The creditor must expressly request specific performance
Specific Performance by Obligation Type
Obligation to Give (Transfer Ownership)
When a seller undertakes to transfer ownership of specific real or movable property, ownership passes by the contract itself. If the seller refuses delivery, they may be compelled by force.
Obligation to Do
If the debtor undertakes to do something (construction, manufacturing) and fails, the creditor may seek compulsion or third-party execution at the debtor's expense.
Obligation to Refrain
If the debtor breaches an obligation to refrain (non-compete), the creditor may demand removal of what was done in violation and compensation.
Astreinte (Coercive Penalty)
- Concept: A monetary amount the court orders for each day or period of delay in performance
- Nature: A coercive measure, not compensation — later converted to a final damages award
- Condition: The obligation must be personal, requiring the debtor's own involvement
- Liquidation: The astreinte is liquidated into final compensation reflecting actual damage
- Limitation: May not be imposed if third-party execution is possible
Third-Party Execution at Debtor's Expense
When the obligation to do does not require the debtor's personal involvement:
- The creditor may ask the court for authorization to have a third party perform the obligation at the debtor's expense
- In urgent cases, the creditor may execute directly without court authorization
- The creditor recovers execution costs from the debtor
- Example: having construction defects repaired by another contractor at the defaulting contractor's expense
Substitute Execution — Damages
Damages replace specific performance when:
- Impossibility: Specific performance has become impossible through the debtor's fault
- Creditor's choice: The creditor elects damages instead of specific performance
- Undue burden: The court finds specific performance excessively burdensome and damages sufficient
Damages Components
- Actual loss suffered by the creditor
- Lost profits denied to the creditor
- Moral damages if applicable
Damages Assessment
- Assessed by the court based on damage severity
- Parties may pre-agree on the amount (penalty clause)
- The court may modify the penalty clause
Impossibility of Specific Performance
- Physical impossibility: Destruction of the obligation's subject (e.g., fire destroying the sold goods)
- Legal impossibility: A law prohibiting performance
- Personal obligation: Performance requires the debtor's unique skills (artist, surgeon)
- Time-sensitivity: When timing is essential (organizing an event on a specific date)
In all these cases, the obligation converts to damages if impossibility is due to the debtor's fault.
Formal Notice Requirement
- Notice: A formal demand served on the debtor requesting performance
- Form: Official notice through a process server or any agreed method
- Exemptions: Not required if parties agreed to waive it, performance became impossible, or the debtor declared in writing they will not perform
Frequently Asked Questions
May the debtor force compensation instead of specific performance?
No — the debtor cannot impose compensation on the creditor when specific performance is possible and the creditor demands it. The choice belongs to the creditor.
What is the difference between astreinte and damages?
Astreinte is a temporary coercive measure to pressure the debtor into performing, later liquidated into a final amount, while damages are a final assessment of the creditor's actual harm.
Can specific performance and damages be combined?
Yes — the creditor may obtain specific performance plus damages for harm caused by the delay in performance.
Contract Enforcement and Compensation Advice
Enforcement cases require expertise in civil and commercial law. Attorney Meshari Obaid Al-Enezi — Yumnaak Law Firm — provides specialized representation in performance and compensation disputes. Contact us.
Disclaimer: This article is for legal education purposes only and does not substitute professional legal advice. Laws and judicial interpretations are subject to change.
