B. Rules of Common law origin 1. Unified concept of breach In general the Principles and Scots law adopt a unified approach to breach or non-performance of contract; that is to say, the remedies apply to any failure to perform in accordance with the contract, whether by total or partial non-performance, delayed or late performance, or defective performance(see generally Chapters 8 and 9). This is essentially the approach of English law and indeed of modern French and Dutch law; however, results from delay or impossibility. This limitation has given rise to great difficulties t contrasts with German law, where remed ies for non-performance depend upon whether it Germany, only partially alleviated by the development in the courts of the further idea of positive breach of contract.27 Before the nineteenth century Scots law showed some signs of developing a similar idea of non-performance as either delay or impossibility, but this was given up largely under English influence. 28 Impossibility came to be treated quite separately from breach, under the head ing of frustration(another concept borrowed from English law) The Principles do not go quite this far: a concept of non-performance excused by an impediment beyond a partys control is deployed instead(Art 8: 108), and under this head, the remedies of specific performance and damages are precluded but those of withhold ing performance and termination(see below)are allowed. Apart from this, however, the Principles do not impose any requirement of fault before remedies for non-performance become available, and again this is akin to the position in Scots and English law. A final point under this heading is that the Principles follow Scots and English law in allowing the cumulation of remed ies so long as they are not incompatible with each other(Art 8: 102) Again there is a contrast with the German position under which, for example, an aggrieved party must choose between termination and restitution, on the one hand and damages protecting its expectation or performance interest on the other. 29 2. Repudiation as breach Breach of contract by repudiation-that is, refusal to perform includ ing anticipatory refusal before performance has fallen due-is an invention of English law which is not parallelled in the Continental systems. 30 A party may consequently be released from its contract by the refusal without having to wait to see whether or not it is fulfilled when performance is due. It nineteenth century,and it is recognised in several Articles of the Principles (e.g. Arts 8: doctrine of immense value in commercial situations which Scots law received in the late 9:101(2,9:201(2),9:304) 3. Self-help'remedies for non-performance Another distinctive characteristic of the English law of remedies for breach which has only 27For all the foregoing see Zweigert and Kotz, pp. 487-515 8See H MacQueen, "Remedies for breach of contract: the future develo pment of Scots law in its European and intemationalcontext, (1997)1 ELR 200-224, at p 203 sBGB§§325,326 30Treitel, Remedies, pp. 379-81B. Rules of Common Law origin 1. Unified concept of breach In general the Principles and Scots law adopt a unified approach to breach or non-performance of contract; that is to say, the remedies apply to any failure to perform in accordance with the contract, whether by total or partial non-performance, delayed or late performance, or defective performance (see generally Chapters 8 and 9). This is essentially the approach of English law and indeed of modern French and Dutch law; however, it contrasts with German law, where remedies for non-performance depend upon whether it results from delay or impossibility. This limitation has given rise to great difficulties in Germany, only partially alleviated by the development in the courts of the further idea of ‘positive breach of contract’.27 Before the nineteenth century Scots law showed some signs of developing a similar idea of non-performance as either delay or impossibility, but this was given up largely under English influence.28 Impossibility came to be treated quite separately from breach, under the heading of frustration (another concept borrowed from English law). The Principles do not go quite this far: a concept of non-performance excused by an impediment beyond a party’s control is deployed instead (Art 8:108), and under this head, the remedies of specific performance and damages are precluded but those of withholding performance and termination (see below) are allowed. Apart from this, however, the Principles do not impose any requirement of fault before remedies for non-performance become available, and again this is akin to the position in Scots and English law. A final point under this heading is that the Principles follow Scots and English law in allowing the cumulation of remedies so long as they are not incompatible with each other (Art 8:102). Again there is a contrast with the German position under which, for example, an aggrieved party must choose between termination and restitution, on the one hand, and damages protecting its expectation or performance interest on the other.29 2. Repudiation as breach Breach of contract by repudiation - that is, refusal to perform including anticipatory refusal before performance has fallen due - is an invention of English law which is not parallelled in the Continental systems.30 A party may consequently be released from its contract by the refusal without having to wait to see whether or not it is fulfilled when performance is due. It is a doctrine of immense value in commercial situations which Scots law received in the later nineteenth century, and it is recognised in several Articles of the Principles (e.g. Arts 8:105, 9:101(2), 9:201(2), 9:304). 3. ‘Self-help’ remedies for non-performance Another distinctive characteristic of the English law of remedies for breach which has only 27For all the foregoing see Zweigert and Kötz, pp. 487-515. 28See H L MacQueen, ‘Remedies for breach of contract: the future development of Scots law in its European and international context’, (1997) 1 ELR 200-224, at p. 203. 29BGB §§ 325, 326. 30Treitel, Remedies, pp. 379-81