27 Other remedies

In addition to the right to enforcement, the DCFR contains a full set of other remedies to protect the creditor in a contractual obligation: withholding of performance, termination, reduction of price and damages. The creditor faced with a non-performance which is not excused may normally exercise any of these remedies, and may use more than one remedy provided that the remedies sought are not incompatible.1. If the non-performance is excused because of impossibility, the creditor may not enforce the obligation or claim damages, but the other remedies are available.2. The remedy of termination provided in the DCFR is a powerful remedy which adds to the contractual security of the creditor faced with a fundamental non-performance by the debtor. The creditor knows that if the expected counter-performance is not forthcoming it is possible to escape from the relationship and obtain what is wanted elsewhere. However the powerful nature of the remedy is also a threat to the debtor's contractual security and, potentially at least, contrary to the idea of maintaining contractual relationships whenever possible. Termination will often leave the debtor with a loss (for example, wasted costs incurred in preparing to perform; or loss caused by a change in the market). The creditor should not be entitled to use some minor non-performance, or a non-performance that can readily be put right, by the debtor as a justification for termination. The rules governing termination therefore restrict termination to cases in which the creditor's interests will be seriously affected by the non-performance, while leaving the parties free to agree on termination in other circumstances.