Right to withhold performance under Ibero-American Law

Abstract

Modern practice shows that the most efficient remedies for breach of contract are still those that avoid the unnecessary transfer of assets among the parties. Thus, for example, the right to withhold performance protects one party from incurring unnecessary loss caused by performing his own obligation without receiving the counter-performance from the other party, likewise, the right to avoid the contract, even before the time of performance, if it becomes apparent that one of the parties will not duly fulfil his obligations, prevents expenses in an unnecessary continuation of a contract. As these remedies evidently oppose the core pacta sun servanda principle of contract performance, a revision of their notion, conditions and effects becomes necessary to understand the solutions proposed by the Ibero-American laws to the evident breach of one party’s obligation before performance is due. This article reviews the topic from a comparative approach.