Discretionary power of the judge and the unenforceability of the contract - A study in Franco-German Comparative Law

How to measure a judge's power? This question is necessary, when it comes to comparing the extent of the powers of a judge in various given jurisdictions. It has to be noted, that the powers of a judge are gathered under diverse notions in national nlegal systems: successively, references are made to the sovereign judicial authority of the judge, the unfettered discretion of the lower courts, the authority to modify the legal situation, the discretionary power, the arbitrary power. The challenge in the comparison lies in the absence of a uniform measuring tool. On a supranational level, the English term Judicial discretion is very frequently the starting point for discussions and comparative analyses regarding the judge's power. This notion serves as criteria to measure the extent of the judge's powers in the respective legal systems. Discretionary power means the power given to the judge to choose between different decisions that are all conformable to law. The criterion of freedom of choice is in the center of the judge's discretionary power. The discretionary power is the most powerful authority of the judge. It is common sense that the judge has a discretionary power but the meaning of this term is differently interpretated by the national law, especially by the German and French law systems. This applies especially to the standards provisions or open-textured provisions : do they grant the judge a discretionary power? The answers vary from one system to the other, which has an impact on the image one has on the judge's powers. Once these misunderstandings are dispelled, it remains to determine the proportion this power has in the consequences of the non-performance of contract: specific performance, delay in execution, revision and termination.