Article 48 — Non-Performance and Remedies

1. 1.

   Where the debtor fails to perform, the creditor may:

   1. Demand specific performance, where this is not impossible or disproportionately onerous.
   2. Claim damages for loss suffered as a result of the non-performance.
   3. Withhold the creditor’s own performance, where the obligations are reciprocal.
   4. Terminate the contract, where the non-performance is fundamental.
2. 2.

   Non-performance is fundamental where it substantially deprives the creditor of what the creditor was entitled to expect under the contract.

3. 3.

   Damages comprise the loss actually suffered and the gain of which the creditor was deprived, to the extent that such loss was foreseeable at the time of contracting.

4. 4.

   The creditor must take reasonable steps to mitigate loss. Loss that could have been avoided by reasonable measures is not recoverable.