Enforcing a Contract in Japan: How Does an "Action for Performance" (給付の訴え) Work?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

In any commercial landscape, the sanctity of contracts is paramount. When a party fails to uphold its contractual obligations, businesses need effective legal mechanisms to seek redress. In Japan, the primary judicial tool for compelling a defaulting party to fulfill its contractual duties is the "Action for Performance," known as Kyūfu no uttae (給付の訴え). This type of lawsuit is fundamental to contract enforcement and represents a direct means of seeking the specific benefits promised under an agreement. Understanding its mechanics, scope, and limitations is vital for any entity doing business in or with Japan.

I. Understanding the "Action for Performance" (Kyūfu no uttae) in Japanese Law

A. Definition and Core Purpose

An Action for Performance is a lawsuit wherein the plaintiff requests a court judgment ordering the defendant to perform a specific act (an affirmative obligation) or to refrain from a specific act (a negative obligation, or an obligation of forbearance). The core purpose is the judicial realization of a creditor's (plaintiff's) claim (seikyūken 請求権) for a due performance from a debtor (defendant). This type of action has deep historical roots, traceable back to Roman law, and forms the bedrock of remedies for compelling compliance with legal duties.

A judgment in favor of the plaintiff in an Action for Performance typically grants the plaintiff the right to seek compulsory execution if the defendant does not voluntarily comply. This underscores its role as a direct pathway to tangible relief.

B. Legal Basis

The legal basis for an Action for Performance primarily stems from substantive civil law, particularly the law of obligations (saiken-hō 債権法) within the Japanese Civil Code (Minpō 民法). Contractual claims are a major source, but claims arising from torts (e.g., a claim for damages), unjust enrichment, or other grounds can also be pursued through an Action for Performance (specifically, for monetary compensation).

Article 414, Paragraph 1 of the Civil Code states that if a debtor fails to voluntarily perform an obligation, the creditor may file a claim for compulsory performance with the court, except where the nature of such obligation does not permit such compulsory performance. This provision directly links substantive rights to the procedural avenue of seeking performance through the courts.

II. Types of Performance Sought in Business Contracts

The nature of the performance sought can vary widely depending on the contractual terms.

A. Monetary Obligations (Kinsen kyūfu seikyū 金銭給付請求)

This is the most common type of performance sought. Examples include:

  • Payment of the agreed price for goods sold or services rendered.
  • Repayment of loans and accrued interest.
  • Payment of outstanding rent or lease fees.
  • Monetary damages for breach of contract, such as:
    • Damages for delay (chien baishō 遅延賠償): Compensation for losses incurred due to late performance.
    • Compensatory damages in lieu of performance (tenpo baishō 填補賠償): Compensation when performance has become impossible or the plaintiff no longer desires it and seeks monetary value instead.

Judgments for monetary obligations are generally straightforward to enforce through the seizure of the defendant's assets (e.g., bank accounts, real estate).

B. Delivery of Specific Assets (Tokuteibutsu no hikiwatashi seikyū 特定物の引渡請求)

Contracts often involve the transfer of specific, identifiable items.

  • Delivery of unique goods, such as custom-made machinery, artwork, or a particular piece of land.
  • Return of leased equipment upon termination of a lease.

For these claims, the asset must be clearly identified in the lawsuit and judgment. Enforcement involves the court bailiff taking possession of the asset from the defendant and delivering it to the plaintiff.

C. Performance of Specific Actions (Obligation of Action - Sakui gimu no rikō seikyū 作為義務の履行請求)

This category covers obligations requiring the defendant to actively do something other than paying money or delivering specific assets.

  • Obligation to provide a contracted service (e.g., software development, consulting).
  • Obligation to construct a building or facility as per a construction contract.
  • Obligation to repair defective goods.

Enforcing such obligations can be more complex than monetary claims. If the defendant refuses to perform:

  • Substitute Performance (Daitai shikkō 代替執行): If the action can be performed by a third party, the court may, upon the creditor's petition, issue an order authorizing the creditor to have a third party perform the obligation at the debtor's expense (Civil Code, Art. 414, Para. 2, first sentence; Civil Execution Act, Art. 171). The creditor can then sue for these expenses. This is applicable for "fungible" actions.
  • Indirect Compulsion (Kansetsu kyōsei 間接強制): For "non-fungible" actions (where the debtor's personal performance is essential and cannot be substituted), the court may order the debtor to pay a certain amount of money to the creditor for each day (or other period) of delay, or for each instance of non-compliance, until the obligation is performed (Civil Execution Act, Art. 172). This aims to psychologically compel performance. This is a key mechanism where specific performance by the particular debtor is desired.

However, claims for actions that are physically impossible, legally prohibited, or would impose a grossly unreasonable burden on the defendant may not be granted or enforced.

D. Obligation of Forbearance (Obligation of Inaction - Fusakui gimu no rikō seikyū 不作為義務の履行請求)

Contracts often include negative covenants, where a party agrees not to do something.

  • Enforcing non-compete clauses (kyōgyō hishi gimu 競業避止義務).
  • Enforcing confidentiality obligations (shuhi gimu 守秘義務).
  • Preventing unauthorized use of intellectual property or trade secrets.

If a defendant breaches an obligation of forbearance, the plaintiff can seek a court order demanding that the defendant cease the prohibited activity. If the defendant continues the violation, the court may, under the rules of indirect compulsion (Civil Execution Act, Art. 172, applied mutatis mutandis by Art. 173), order the defendant to pay a sum of money to the plaintiff for future breaches. Alternatively, the plaintiff may petition the court to, at the debtor's expense, remove the results of the act performed by the debtor in violation of the forbearance obligation (Civil Execution Act, Art. 171, Para. 1, referring to substitute performance). Damages for past breaches can also be claimed.

III. Key Requirements for a Successful Action for Performance

To succeed in an Action for Performance, the plaintiff must generally establish:

A. Existence of a Valid Claim (Seikyūken no sonzai 請求権の存在)

  • Proof of a valid and binding contract.
  • The defendant's specific obligation under that contract.
  • That the performance is due (bensai-ki no tōrai 弁済期の到来) – meaning the time for performance has arrived – unless it is an Action for Future Performance.
  • Fulfillment of any conditions precedent to the defendant's obligation to perform.

B. Identifiability of the Performance Sought (Kyūfu naiyō no tokutei-sei 給付内容の特定性)
The requested performance must be clearly and specifically identified in the complaint and, subsequently, in the judgment. An ambiguously defined obligation may render the claim non-actionable or the judgment unenforceable. For example, a claim to "provide adequate support" would likely be too vague without further contractual or contextual clarification.

C. Possibility of Performance (Kyūfu no kanō-sei 給付の可能性)
As a general rule, a claim for performance that is impossible (e.g., delivery of a unique item that was destroyed before the obligation arose through no fault of the debtor, or before the risk passed) cannot be sustained. The impossibility can be physical or legal. The timing of when the impossibility arose and the cause of impossibility are critical factors.

IV. The Special Case: Action for Future Performance (Shōrai kyūfu no uttae 将来の給付の訴え)

Article 135 of the Code of Civil Procedure allows for an Action for Future Performance, i.e., a claim for performance that is not yet due at the time of filing the lawsuit.

A. Rationale and Legal Basis
The rationale is to provide effective relief where circumstances indicate a high probability of future non-performance, thereby avoiding the need for multiple lawsuits or allowing the plaintiff to secure their rights preemptively.

B. The "Need for Advance Claim" Requirement (Arakajime sono seikyū o suru hitsuyō ga aru baai あらかじめその請求をする必要がある場合)
This is the key condition. Courts interpret this "need" strictly. It is not sufficient that future performance is merely anticipated. Typically, this need is recognized if:

  • The defendant has already defaulted on current obligations arising from the same legal relationship and explicitly or implicitly demonstrates an intent not to perform future obligations (e.g., repeated defaults on installment payments coupled with a declaration of inability or unwillingness to pay future installments).
  • The circumstances surrounding the defendant (e.g., financial distress, prior conduct) make it highly probable that they will not perform when future obligations fall due, and waiting would prejudice the plaintiff.
  • The obligation is for periodic payments (like rent or royalties under a long-term contract), and the defendant disputes the underlying obligation itself, making future defaults almost certain.

C. Application in Contract Enforcement
This can be used, for example, to secure a judgment for all future rent payments under a lease if the tenant has defaulted on several months' rent and denies the validity of the lease agreement. Similarly, if a buyer defaults on initial installments for goods and repudiates the contract, the seller might sue for the remaining future installments if the "need" criteria are met. The judgment will specify that future amounts become payable as they fall due.

V. From Judgment to Enforcement (Hanketsu kara kyōsei shikkō e 判決から強制執行へ)

A. Enforceability of the Judgment (Shikkō-ryoku 執行力)
A final and binding judgment obtained in an Action for Performance serves as an "enforceable title of obligation" (saimu meigi 債務名義). This document is the legal basis upon which compulsory execution procedures can be initiated.

B. Overview of Compulsory Execution Procedures (Minji shikkō tetsuzuki 民事執行手続)
If the defendant fails to comply with the judgment, the plaintiff can initiate separate civil execution proceedings under the Civil Execution Act (Minji Shikkō Hō 民事執行法). The specific procedures vary:

  • For Monetary Claims: Typically involves the attachment (sashiosae 差押え) and subsequent collection from the defendant's assets, such as bank accounts, receivables, salaries, or the forced sale (auction) of real estate or other valuable property.
  • For Delivery of Specific Movable Property: A court bailiff is empowered to seize the item from the defendant and deliver it to the plaintiff.
  • For Transfer of Real Estate: Procedures involve changing the official registration of title.
  • For Obligations of Action/Forbearance: As discussed earlier, substitute performance or indirect compulsion are the primary methods.

Civil execution is a distinct field of law, and successfully navigating its procedures often requires specialized legal assistance.

VI. Strategic Considerations for Businesses

  • Clarity in Contract Drafting: The foundation of effective enforcement lies in well-drafted contracts with clearly defined obligations, performance standards, and due dates. Ambiguity in contractual terms can significantly hinder an Action for Performance.
  • Evidence Preservation: Meticulous record-keeping is essential. This includes the contract itself, amendments, correspondence, proof of the plaintiff's own performance, and evidence of the defendant's non-performance or defective performance.
  • Timeliness: While statutes of limitation apply, promptly addressing non-performance can often prevent disputes from escalating or evidence from becoming stale.
  • Cost-Benefit Analysis: Litigation and subsequent enforcement can be time-consuming and costly. Businesses should always weigh these factors against the potential recovery and explore alternative dispute resolution methods like negotiation or mediation where appropriate.

Conclusion

The Action for Performance (Kyūfu no uttae) is the cornerstone of contract enforcement in Japan. It provides a direct judicial avenue for businesses to demand that their contractual counterparties honor their commitments. While the Japanese legal system strongly supports the principle of pacta sunt servanda (agreements must be kept), successfully utilizing an Action for Performance requires a thorough understanding of its procedural requirements, the specific nature of the obligation in question, and the subsequent enforcement mechanisms. Careful legal strategy, precise claim formulation, and robust evidentiary support are key to effectively compelling performance and upholding contractual rights in the Japanese legal system.