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=S=> BGB 281. 1 To the extent that the obligor does not render performance when it is due or does not render performance as owed , the obligee may , subject to the requirements of section 280 ( 1 ) , demand damages in lieu of performance , if he has without result set a reasonable period for the obligor for performance or cure . If the obligor has performed only in part , the obligee may demand damages in lieu of complete performance only if he has no interest in the part performance . If the obligor has not rendered performance as owed , the obligee may not demand damages in lieu of performance if the breach of duty is immaterial .
=S=> BGB 281. 2 Setting a period for performance may be dispensed with if the obligor seriously and definitively refuses performance or if there are special circumstances which , after the interests of both parties are weighed , justify the immediate assertion of a claim for damages .
=S=> BGB 281. 3 If the nature of the breach of duty is such that setting a period of time is out of the question , a warning notice is given instead .
=S=> BGB 281. 4 The claim for performance is excluded as soon as the obligee has demanded damages in lieu of performance .
=S=> BGB 281. 5 If the obligee demands damages in lieu of complete performance , the obligor is entitled to claim the return of his performance under sections 346 to 348.
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