جستجوی مقالات مرتبط با کلیدواژه « نقض تعهد » در نشریات گروه « فقه و حقوق »

The issues of obtaining objects in law are under the method of “fulfilment” of the obligation and the issues of obtaining of property in jurisprudence are under the method of the “delivery of property.” Law wants to obtain objects on the basis of “theory of commitment” and jurisprudence wants obtain property based on “theory of delivery.” The present method of performance at the law in order to achieve the right is the “fulfilment of obligation” according to these theories and the present method in jurisprudence in order to obtain property is the “delivery of property” according to these mentioned theories. Including that the law will solve the problems based on “violation and breach of commitment” and “subrogation in death” and jurisprudence will solve the problems based on “violation and breach of property” and the “existence of obligation” and each of which have different effects and verdicts. Therefore, the hierarch of Civil Code of the Islamic Republic of Iran, which is inspired by two sources of jurisprudence Fiqh (Arabic: فقه) and Roman law is like one person with two different personalities, because it has adopted Roman law in the case of “contracts and obligations in general,” and the basis is commitment and the basis is adoption in the case of “specific contract and the obligatory suretyship” that has been adapted from Jaʿfarī jurisprudence.

In this essay it has been studied that from the point of view of Iranian and Egyptian law and Islamic jurisprudence and with an analytical-descriptive method, on what basis and under what circumstances, arises the breach of the contract creates a right to compensation and the right of termination. In Egyptian law, after breaching an obligation, the oblige is free to keep the contract and receive damages or terminate it, while in Iranian law and Islamic jurisprudence, the first right available is the obligation of the obligor to fulfill his obligation. In Iranian law and Islamic jurisprudence, the right to terminate an agreement is the result of the failure of specific performance, not a confrontation of obligations or a fundamental breach. It is based on the rules of Tort, not breach of contract. Also, in Egyptian law, contrary to Iranian law and Islamic jurisprudence, one of the conditions for claiming damages or terminating a contract is to send a notice to the obligor to fulfill the obligation. Against Article 230 Iranian civil code, regarding on agreement on damages in Egyptian legal system courts have authority to adjust the agreed amount. . . . . . . . . . .

A breach of a contractual obligation can not only cause damage to an obligor but also cause damage to third parties. The damage resulting from breach of contractual obligations is mainly material or moral for which a contracting party can claim within the framework of contractual civil liability and a third party can claim in the realm of non-contractual civil liability. However, today there are also other types called pure economic losses have no material origin (property or body) and may cause by a third party or contracting party due to intentional or negligent breach of a contractual obligation by the obligor. In this type of loss, the liability of obligor toward obligee is less questionable but the liability of the obligor to a third party for these damages is discussed in legal regimes. In British Law, the liability of the contractor against a third party is exceptional while in Iranian law there is no general rule allowing a third party to sue contractual party for a breach of contract, however, the general duty of the contractual obligor to take care of the third party in the direction of the principle which can be invoked in the contract, and also the rules of civil liability, protect the legal rights of the injured party. It seems that despite the lack of an explicit text, its design is not far from the mind, this is what will be comparatively expressed in this article based on an inspiration of the provisions of British law.

In times of the breach of a legal or contractual obligation by the injuring party, the injured party should act as a reasonable person and take conventional steps to prevent avoidable damages. This duty begins when an obligation is breached and the promisor become aware of the breach of the obligation and is capable to mitigate the damages. Given the lack of explicit prediction for mitigation of damages in Iran’s law, naturally, the terms and procedures of mitigation of damages have not been clarified too. Under what circumstances, the duty to mitigation of damages is imposed on the injured party? If the injured party is incompetent, who will take the responsibility for mitigation of damages? Is it possible to enforce the rules of damages in cases of likely breach of contract? Is the obligation of the injured party to mitigate the damages an obligation to means or an obligation to ends? A Comparative study of the American law and these and similar questions can, while identifying its strengths and weaknesses, help the case law and the legislator in clarifying the mitigation of damages rule.

breach of contracts and damages which violate the violation is one of the most important issues in the implementation of contracts. One of the cases is the violation of a breach that violates the first contract on the side of the payment of the damages and gives the second contract a type of opportunism or opportunism. the main issue of this paper is investigating the nature and principles of " restitution of the interests caused by disgorgment in the rights of the united states and investigating its possible bases in iranian law and shiite jurisprudence as well as its effect on the commitment to contracts and to prevent effective contract violations. The article shows how the American justice policy is intended to prevent opportunism with the aim of preventing breach of obligations, which is alleged to be in compliance with the other three methods of compensation for damages in markets with stable fluctuations and economies that have underlying inflation. basics explain this method ethics, efficiency, corrective justice, and unjust theory. as stated in iranian law and imami jurisprudence, it is questionable to rely on the theory of having an unfair ownership, but it can be confirmed by citing the rule of rejection of system disorders in certain conditions.

Minimal contemplation of the institution of damages under Iranian legal and contractual liability systems is the reason leaves the constant temptation of a legal study (compared to other legal systems and the common experiences especially formed in the field of international trade). Consequently, review of the methods for evaluation of damages and reconsideration of the notions brought in modern world (with a glance at the economic requirements of the progressive countries such as Iran) seems inevitable.

This study attempts to reconsider, at the very first point, the concept of “actual harm” under the Iranian legal system (as well as the contractual liability system) which leaves a major impact on our economic ambiance. We, as the Iranian lawyers, are acquainted with the phrase “there remain the possibility for the actual harms only to be compensated” (or claimed to be compensated). In light of the modern world progresses (as well as the theories rendered during the same) and the complexities of the relations therein, we have to apparently reconsider the veracity of the said phrase. The point, in our view, is laid in our contemplation of the institution of damages as a remedy for breach which lead us to go beyond the restitution of the aggrieved party’s former status. This is, indeed, the role of economic notions in modern world which enables the similar construes.

During this article and having studied the methods of evaluating the damages caused by non-performance of the obligations in English legal system (as well as exploring the latest studies in this field) and also a number of most reputable international legal instruments such as United Nations Convention on International Sale of Goods, Undroit Principles of International Commercial Contracts, Principles of European Contract Law and Draft Common Frame of Reference, we tried to support a construe under Iranian law which goes beyond the current contemplations regarding the damages.

United Nations Convention on International Sale of Goods (“CISG”), having considered the methods for valuation of damages in Articles 75 and 76, has also invalidates both the subjective and objective tests in claiming the damages. In other words, the modern world necessitates to even remove the subjective test in the course of appraisal of damages (as referred in Article 76 of CISG). In addition, other major international instruments have almost paved the same path and approved the methods of “buying the goods in replacement” and “current price of the goods”. This point reveals when we come up with Article 7.4.13 of the Undroit Principles of International Commercial Contracts (“Unidroit”) and compare the same with Article 230 of IRI Civil Code. Thus, the institution of damages is mainly designed to cover the expectations of the parties before entering into a contract and we can, consequently, come to conclusion that “Restitution Basis”, as a minimal construe of the same, shall stand in exterior of the territory of damages.Analyzing the economic outcomes of “Restitution”, “Expectation” and “Reliance” methods as well as more recent theories such as “Incomplete Contracts” and “Efficient Breach” (besides the studies based on economic analysis of law during the years of 20th century), with due regard to the necessities of the local market and during the short term at least, we can rely on a justifiable basis like “Expectation”.

Taking the foregoing into account, we have to remark on a few points as follows:1) The legislator’s approach to the institution of damages shall be varied at the very first stage so as the efficiency of the contractual liability system be improved (in terms of legal view point and more particularly in terms of economic point of view). Providing a set of certain and practical methods for valuation of damages, empowers the parties to measure the risks (and the scope thereof) and cover the same through the means such as insurance. Accordingly, the proposed techniques by the international instruments are so close to our dominant notions under Iranian (and Fiqhi) framework. Having done the same, the given approach in our system will become more consistent with the prevailing methods in Common Law (realization of “Expectation Basis” as the pioneer ways suggested by the classic division of Fuller and Perdue).2) Concentration on the criminal feature of the liquidated damages assists us to guide the appetite of the legal system to Expectation and Reliance Basis as the real outcomes of the concept of damages while the Restitution Basis may be analyzed within the area of termination and the consequences thereof.3) Insofar as we know, the law on adjustment of the contractual terms has a major impact on modern theories raised in this respect. However, even if the re-negotiation of the said terms enables the parties to achieve a sort of post efficiency, this kind of adjustment would certainly damage the former distribution of the contractual risks as considered by the parties in prior. So, in order to design an efficient scheme for the parties, we have to consider (inasmuch as viable) the nature of the given risks and the manner to cover the same. By the way, comparing the effects of such studies with the key notions of the Iranian legal system, the economic impacts of the relevant methods on a progressive economy such as Iran shall not be ignored. That is the reason we propose not to copy the ultra-modern theories such as “Incomplete Contracts” and “Efficient Breach” and focus on the “Expectation Basis”.

As a rule of thumb, a person who is exposed to harm as a result of another harmful behavior must take standard steps to avoid avoidable harm. But sometimes obstacles and factors cause the obligation to be removed from the obligee, in other words, they prevent the fulfillment and establishment of the duty on the injured party. In different legal systems, cases such as the inability to deal with the damage, fulfillment of the same obligation, determination of the obligation and conflict of implementation of the rule of compensation with the damaged religious teachings and orders, save him from dealing with the damage and the right to claim damages. Do not lose yourself either. Since the rule of damages and the obstacles to its implementation are not explicitly provided in Iranian law, their comparative study with US law can identify its strengths and weaknesses, and with the help of judicial and legislative practice in explaining the rule of damages.

The technological progress has caused the states to deal with the ever-growing cyber-attacks. The most cyber-attacks that states usually face are Distributed Denial of Service Attacks. Since these attacks do not have any direct and immediate harms, they cannot be considered as use of force or armed attacks therefore states usually ignore to trace and identify the attackers. Since there are no explicit and direct rules for addressing cyber-attacks, in accordance with the regulations of current International Law, we come to the conclusion that some of these non-destructive cyber-attacks which are coercive can be counted as violation of the principle of non-intervention if those attacks are attributable to the states and consequently the international responsibility of those states can be brought up in competent international courts. In this essay the author endeavors to demonstrate not only the severe cyber-attacks violate the International Law obligations but also the non-destructive ones such as Distributed Denial of Service Attacks can breach International Law too.

There are different methods of compensating the promisee for the breach of obligation under the Shiite Jurisprudence, the Iranian Law, and some important international commercial mechanisms. These should be distinguished from preventive measures for avoiding obligation breach. The remedies stated in the Iranian Legal System and also the mechanisms mentioned above could regularly be categorized as “common remedies” and “special remedies.’ By common remedies one means those that have been set forth in the international mechanisms and the Iranian Law, such as requiring specific performance of an obligation. On the other hand, special remedies are those that have been laid down explicitly by international mechanisms and have not yet been incorporated into the Iranian Legal System, for instance the reduction in the price of goods. In addition, in some cases, several remedies arise as a result of the breach of contractual obligation which, regardless of their legal or contractual origin, some consistent ones could be implemented simultaneously. A majority of important international mechanisms such as the Convention on International Sale of Goods, the Principles of European Contract Law and still some others, have explicitly recognized the general rule of the cumulativeness of remedies for promisees. These are different from their Iranian counterparts. However, the approaches taken by the above mechanisms are not turned down by the Iranian Civil Code, as their content could be inferred from the wholeness and integrity of the mentioned law. The convincing reason here would lead us to agree with the cumulative remedies as the following in the Iranian legal system: the right to claim payment for delay in contract performance with the right to rescind the contract or the right to specific performance and also the cumulation of the right to claim non-performance compensation with the right to rescind the contract.

Provision has been divided into three parts in Shiite jurisprudence and civil law: provision of the adjective, result and act. Violation of the provision of the consequence is not possible, so there is no place there for guarantee, but what about violating the condition of the adjective and act? In case that the person who the provision is against violates the stipulation, is there any way to require him to it? If the person who the stipulation is for suffers damages, is there any way in jurisprudence and law for compensation? In this paper, we prove that civil law has predicted the right of cancelation for whom the stipulation is for if the condition of property is violated while in addition to the right to terminate there is still possibility of requiring the committed person to the stipulation. But in violation of the condition of the act, if it be material act, the legislature has considered two guarantees: compulsory or representative execution and the right of termination; if it is a negative legal act, there is the possibility of violation in the one hand, and the right of termination will be existed for who the stipulation is for, on the other hand.