The Role of Exceptio non Adimpleti Contractus to Seek Specific Performance under a Mutual Obligation

The article addresses topical issues of regulation of counter-performance of obligations, formation of exceptio non adimpleti contractus in Roman private law in different periods, comparison of synallagmatic obligations with contractus innominati, burden of proof to seek specific performance under a mutual obligation, the formation of doctrinal positions of German scientists regarding the independence of each of the obligations that arise from the synallagmatic agreement. The court practice of applying paragraph 3 of Art. 328 of the Russian Civil Code and doctrinal positions on the substance of the requirements from the synallagmatic contract are studied. The author proposes a possible alternative model for regulating claims for the fulfilment of counter-obligation (de lege ferenda) and criticises the current model of the absence of claim before the fulfilment of one’s own obligation, which follows from a literal constriction reading of paragraph 3 of Art. 328.