Compelling the Performance of a Counter Obligation to Pay an Advance: A Critical Analysis of Judicial Practice

The article provides a critical analysis of judicial practice regarding the enforcement of a counter obligation to pay an advance. It examines the approach of the Russian Supreme Court, which restricts the recovery of prepayment, allowing it only in exceptional cases (e.g., when concluding a substitute transaction is difficult). The author questions the validity of this approach, highlighting its inconsistency with the principles of contractual freedom and specific performance. A comparative legal analysis of the regulation under the UN Vienna Convention, German, English, and U.S. law reveals alternative approaches to protecting the seller’s interests. The conclusion is drawn that the current judicial practice should be revised to ensure stronger protection of contractual obligations.