Reparation in kind: a quest for a remedy for breach of contract

This research analyses reparation in kind as a form of compensation for (external) contractual harm. Therefore, it provides a general legal framework. It examines the concept, legal basis and legal regime (conditions and hierarchical relationship to other remedies). The analysis indicates that in addition to pecuniary compensation (i.e. damages), reparation in kind is a legitimate form of compensation. Although a legal provision does not (yet) formally confirm its existence, the current Belgian law of obligations provides sufficient legal basis. Unlike pecuniary compensation, reparation in kind is a lead for a less rigid and more creative method of compensation, which is sometimes more geared to the damage nature and/or the needs of (one of) the parties. At the same time, it follows the legal comparative trend. After all, modern civil codes understand the concept of compensation more broadly than pecuniary compensation, and thus make more way for alternative forms of damage repair in cases in which there is a need for this within society.

According to Belgian law, reparation in kind is to some extent still a blind spot. Within extra-contractual liability, reparation in kind has become a byword for numerous non-pecuniary measures, although these measures are not intended to compensate damage. Actual reparation in kind of extra-contractual damage is much rarer in legal practice. Also within Belgian contract law, reparation in kind is rarely applied. Compensation for breach of contract is almost automatically understood as pecuniary compensation (i.e. damages). This research goes beyond this dogma. Pecuniary compensation indeed offers several benefits, but that does not mean that the law should exclude reparation in kind. Although pecuniary compensation may remain quantitatively the most important type of compensation, it is very clear that reparation in kind has a full role to play within a modern legal system. The analysis shows prototype applications for which reparation in kind for the creditor, the debtor and sometimes for both, is a useful alternative to pecuniary compensation. The range of applications from foreign legal practice functioned as Leitmotiv. This research (re)appreciates reparation in kind. The consequence of an (extra)contractual liability system in which pecuniary compensation dominates ipso facto, is that there can exist an unacceptable tension between the legitimate needs of the parties and that what the general law of obligations can to offer.