جستجوی مقالات مرتبط با کلیدواژه « خسارت قراردادی » در نشریات گروه « فقه و حقوق »

The Principle Pacta Sunt Servanda which results from the autonomy of will and intention of the parties to perform the contract is one of the fundamental principles governing contracts. A contract may be breached intentionally or frustrated by unwanted events like force majeure which causes the obligor to be exempted from performing the contract. These events are studied as excuses for the performing of the contract in different legal systems. But sometimes parties emphasize the performance of the contract so much that no reason, even legal, should permit nonperforming of the contract, as they want the contract to continue to be enforceable in any circumstance; For this purpose, the “Hell or High Water Clause” is included in the contract. In this article, we study the essence, foundations and effects of this clause in common law and the position of Iranian law in relation to it; The mentioned clause is enforceable in the common law, except in exceptional cases, and it is used and cited especially in commercial contracts. It seems that this clause is enforceable in Iranian law, provided that the contracting party has the knowledge and awareness and is capable of managing risk; so, this clause does not conflict with Iran's jurisprudence and legal foundations.

Problem; the liability for contractual consideration is one of the most important issues in synallagmatic contracts. The truth of “Exchange Liability” exists in all legal systems and it is discussed under a special title. Among these titles are "Theory of Cause" in the Civil Law system and "Exchange Liability" in Imamiyah jurisprudence. Exchange Liability and theory of Cause are both liabilities for contractual consideration, and they are rooted in agreement, but maybe, the conditions, jurisdiction and their effects are somewhat different in these two legal systems. The main issue in this research is what are the similarities and differences between “Exchange Liability” and "Theory of cause" in terms of conditions, scope, and effects?Aim; Therefore, the aim of this research is a comparative study of the conditions, jurisdiction, and effects of “Exchange Liability” and “The Theory of Cause.Method; This will be done in a descriptive and analytical method.Findings and conclusion; According to the findings of this research, despite the similarities between these two theories in the mentioned aspects, in terms of some works, including the amount of compensable damage, as well as the conditions and jurisdiction, significant differences between them are observed. For example, "Exchange Liability", unlike "theory of cause", is specific to synallagmatic contracts.

An appealing option in order to insure that parties to a contract adhere to their obligations and to clarify their goals in a more reliable manner is to stipulate a penalty clause or civil remedy in the contract. In this way, on the one hand, the obligor finds himself involved in legal effects and tries both to avoid the stigma of breaching the contract and to avoid the penalty, and on the other hand the obligee monitors the results of the contract with peace of mind and in case the other party breaches the contract, he is confident that he would be compensated for his loss by relying upon the mentioned penalty. Such a condition has a logical and rational basis and is not inconsistent with legal foundations and principles. On this basis, our legislator, apart from its recognition in general articles such as articles 10 and 219 of the Civil Code, clearly gave it legitimacy in article 230 of this Act. However, the serious question is, to what extent and to what amount do those who enter into contract have freedom of action to insert such a condition in it? Can they stipulate a penalty clause in a contract as much as they want, even if it is manifestly excessive in amount? The passage of time has shown that in dealing with certain examples the freedom to insert a penalty clause arising out of breach of contract in any amount is far from justice and fairness. In order to remove this concern, in the amendment of the Civil Code (2016) the French legislator, according to Article 1231-5 restrained and modified this condition based on custom, logic and justice.However, in our legal system, heedless of the unwelcome results of this condition, not only the judicial precedent was not revised, but according to the binding precedent No. 805 dated January 5, 2021, the ruling prescribed in Article 230 of the Civil Code was affirmed.

"Penalty" is a term that refers to the word "amount" mentioned in Article (230) of the Civil Code. In addition to giving the other party more reassurance regarding commitment to the contract, the parties to the contract cover all possible risks arising from breach of contract - whether the contract is not performed or its execution is delayed. The Supreme Court's uniform judicial precedent No. (805) on "Determining the penalty clause in Monetary Obligations" was approved by the Grand chamber in the last days of 1399 and immediately attracted the attention of lawyers and judges. The present article simultaneously critiques the "text" and "hypertext" of this uniform judicial precedent and finally concludes that the said opinion has no problems in terms of adhering to Article (230) of the Civil Code; However, citing Article (522) of the Code of Civil Procedure, It will not be true of all assumptions. Also in the hypertext review, the most important points about the effects and consequences of the uniform judicial precedent No 805 have been pointed out.

Remedies for breach of contractual obligations are among the most critical areas of contract law in every legal system. In German contract law, the right to receive specific performance is the first obligation of the debtor. If a debtor fails to do this obligation, the creditor has the right to claim compensation for the loss. Reviewing the conditions for a claim for damages shows that the notion of fault is still essential in the new German Civil Code. Causation and the predictability of loss, are some other notable rules for a claim for damages. The possibility of a claim for different contractual damages categorized by nature in this study includes damage to property, personal injury, consequential damages, expectation interests, reliance interests, the loss of opportunity, and the moral damages. The classification of Damages by cause includes Damages in lieu of performance, damages for delay in performance, and the simple damages that have great importance in the new German Civil Code. In this article, the claim for contractual damages and different types of damages also has been taking into account from the German legal precedent viewpoint. Since the use of legislative and judicial experience of the German legal system can identify gaps in the Iranian contract law, in various sections of the article, the comparison of these two legal systems has been considered in an analytical-descriptive manner.

Law and justice are closely linked, and decisions that do not conform to justice and fairness are not willingly executed, leading to resorting to all kinds of deceit to escape from it. The link between law and justice can be observed in many judicial decisions, and one of the manifestations of justice in judicial decisions is the lawsuit for damages by the plaintiff. Nowadays, in various contracts, especially commercial ones, the pledgee tries to put pressure on the pledger and to ensure that he she fulfills the pledge, sums of money are assigned to the pledge agreement as a consideration. In some cases, the pledgee, for various reasons, such as economic fluctuations or negligence and shortcomings, refuses to perform the contractual obligations (in part or in full), resulting in encountering an enormous amount of contractual loss, which sometimes exceeds the contract value. In this type of litigation, the role of judges and, in fact, the judgments are very strong and some courts consider the "principle of interpretation in the light of the whole contract", "the administration of justice and fairness as a rule" and "the illegality of the condition", deviating from Article 230 of the Civil Code and order payment of the obligation by modifying its amount or removing the above-mentioned condition and holding it in accordance with justice. In the present paper, several instances of judicial opinions are mentioned in this regard and their arguments are analyzed.

Sometimes the Promisor inflicts a damage to the promisee as a result of non-performance of the promise (Whether the act or omission) and the consequence of violation of this contractual liability is compensation. Sometimes the amount and method of compensation is determined by agreement of the parties (including agreement before occurrence of the damage or after it) in which the agreement is followed. But sometimes the amount and method of compensation is determined by the court and official experts; in these cases the place and time element is important, because on the one hand the promisee may fail to claim the compensation as soon as the damage is inflicted and a time elapses from infliction of the damage to delivering the petition, while in the meantime the value of money fluctuates. On the other hand, the verdict is not issued as soon as the petition is submitted. Sometimes the place of damage is different from the place of petition submission and judgment. Given the importance of this issue, this writing has comparatively between the Iranian and Egyptian law studied the methods of Contractual compensation and the time and place of its estimation and concluded that according to the Iranian law the time of assessment of the properties is the time of implementation of the final decree and its estimation place in moveable properties based on the time criterion is the place of implementation of the decree and in immoveable properties is their place. The Egyptian law has determined the day of issuance of the decree as the time of assessment and has no explicit statement about the place of moveable properties and has determined their location as criterion for immoveable properties. The criterion determined by the Iranian law is more appropriate, since it better fulfills the purpose of compensation.