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

In the basics of contract law, the principle is that the parties to the contract are required to fulfill their obligations and any change or withdrawal from the contract requires the agreement of the parties or the existence of one of the legal termination cases. Despite the fact that contracts are binding in some cases, the obligee may have the right to terminate the contract without the obligee's agreement, in order to avoid undue damages caused by the obligee's breach of contract. This right is called the right of initial termination of the contract. The right of early termination of the contract is a right that exists for the obligor without the prior obligation of the obligee to perform the obligation and obligate it to perform the same contract. This right is of special importance for the obligee because it gives him the right to waive his contract and release his contractual responsibilities if necessary. Iran's civil law is silent on the issue of termination for breach of contract, and according to Imami jurisprudence, the principle is that the right to terminate the contract is given to the obligee only with the agreement of the parties or the existence of one of the legal cases of termination. However, some jurisprudents, in certain cases, have believed in granting the right to early termination of the contract to the obligee, including the cases where the termination is justified, the following can be mentioned: if the obligee fulfills his obligation in a way to put the obligee at risk or if the obligee has a long-term delay in fulfilling his obligation. Among the jurists of Imamiyyah, there is no unanimous ruling on the execution of obligations or having the right to terminate, and in Iranian law, granting the right to early termination of the contract to the obligor, in order to protect his rights and interests and to reduce the amount of damage and to have proof of the negation of the damage is on the principle of necessity. It can be proved in some ways. For example, if the concluded contract contradicts the laws and regulations of the country, the obligee can have the right to terminate the contract early. According to international documents such as the Convention on the International Sale of Goods, the principles of the law of international commercial contracts, as well as the principles of the law of European contracts, the right of initial termination is accepted in the event of a fundamental breach of the main obligations. In the common legal system, the right to terminate the performance guarantee is a breach of contractual obligations, and the right to early termination of the contract to the obligee may be less seen due to the limitations that exist in these systems. In this system, due to the existence of strict laws in the case of keeping contractual obligations and adhering to them, the right of early termination of the contract to the obligee is less than in Imami jurisprudence and Iranian law. In the Roman-Germanic legal system, the right of early termination of the contract to the obligee depends on the terms of the contract and legal laws. The country may be restricted. In this legal system, more attention is paid to maintaining contractual obligations and communication with the obligee, and for this reason, the obligee's right to early termination of the contract is less than Imami jurisprudence and Iranian law. Paying attention to the comparative study of the feasibility of granting the right to early termination of the contract to the obligor, in Imami jurisprudence and Iranian law and common law and Roman-Germanic legal systems, it can be concluded that in these systems, the right of early termination of the contract to the obligee depending on the conditions of the contract and the legal laws of the country, they may have a more limited scope of implementation. In this research, the right of initial termination of the contract in Imami jurisprudence and Iranian law is compared to the common law and Roman-German legal systems with a case study of the laws of England as a subordinate country. The legal system of common law and France and Germany, two countries subject to the Roman-German legal system, have been comparatively examined. In English law, the right of initial termination is accepted in case of violation of obligations or the main conditions, and in French law, initial termination is also accepted in cases of violation. A serious obligation is subject to the obligee's notice, warning, and the expiration of the additional period. In German law, the exercise of the right of initial termination for the obligee is subject to the passage of time. A group has considered that the obligee is entitled to force the obligee to perform just by breaching the contract, which is the famous opinion of Imamiyyah jurists. Another group has preferred the right of rescission over coercion, and another group of jurists, like Imam Khomeini (may God bless him and grant him peace), have considered the obligee as benevolent in the acts of rescission or coercion, believing that the right of rescission and the right of coercion are the same. Various approaches have been adopted in Iran's laws, although the judicial procedure in this field is quite clear and gives priority to enforcement over termination of the contract.

Every day, several contracts are concluded in economic, commercial and political fields, the fulfillment and performance of which is not only a moral matter but also a social necessity. On the other hand, there is no doubt that religion has entered into some areas of law and has created differences between Muslims and non-Muslims. Although these differences can sometimes be questioned and criticized, but they have been reflected in Iran's Law according to Fiqh (Islamic Jurisprudence). The main question of this Article is whether this ideological difference has penetrated to the contracts or this field is free from religion interference. Islamic jurists unanimously consider it necessary to adhere to the contracts between Muslims and different sects of non-Muslims (even military enemies). Also they allow contract withdrawal only in special cases and under limited conditions. This Article shows that even the subject of the contract does not make a difference, whether it is related to economic, commercial and civil affairs or political affairs such as war and peace. Moreover it will be understood that breach of contract and unilateral withdrawal are so confined. Among the limited cases that breach of contracts would be justifiable; there is "reciprocal breach", which has been mentioned in Quran. This type of breach is recognized in international law and CISG, but not in Islamic Jurisprudence and Iranian contract law. Therefore Iran's Law is inefficient in this regard. In this Article the above mentioned breach will be recognized implicitly and it will be concluded that it might be necessary to consider "reciprocal breach" in Iranian contract law.

"Damages in lieu of performance" is one of the three types of damages for breach of contract provided by the German Civil Code. The main objective of this research is to examine this remedy in German law. Specifically, this study addresses the question of how, in a legal system that upholds the principle of contractual necessity and considers specific performance as the primary remedy for a breach of contract, damages can substitute for the actual fulfillment of the obligation. While the term "damages in lieu of performance" is not explicitly used in Iranian laws, certain instances of this type of damage have been explored in legal literature. By comparing these two concepts within the German and Iranian legal systems, it becomes evident that the German Civil Code provides precise and effective rules governing damages in lieu of performance, thereby offering a solid foundation for the comparative adaptation of such rules in Iranian law.

Failure to perform contractual obligations may be unintentional or intentional. Intentional breach represents the most severe form of contract violation, consequently leading to unique consequences not applicable in cases of unintentional breaches, among various legal systems. One of the significant effects of intentional breach within the framework of compensatory arrangements is the inability of the breaching party to rely on an exemption clause it has obtained as a contractual benefit. A party that intentionally and willingly fails to fulfill its obligations should not be allowed to escape the consequences of its deliberate harmful actions by seeking refuge in an exemption clause contained within the contract. This article employs a descriptive-analytical approach to examine the practical and significant impact of intentional breach on the validity of contractual exemption clauses from an objective perspective, within the regulatory framework and judicial practices of three major legal systems (Roman-Germanic, Common Law, and Islamic Law).

Self-help sales take as a guarantee of Breach of Contract without going to court. This institution based on the legal functionalism of and the psychological view to law of contract, so that by reducing the cost and time of compensating the victim and monitoring based on exchange, apply effective enforcement. If the self-help institution is accepted, we can consider it among the authorities and not the functions of the actor, unless in the cases that explicitly foreseen by the legislator. This article is an effort with the aim of removing the ambiguity of the nature of self-help sales, examining the scope and functions of its use in contractual relations and finally determining the position of this subject in Iran's legal system. The result was that according to the existing regulations and the basis of self-help sales, and with the rejection of the opinion that supports the application of the self-help system in all cases, this entitycan be applied only in movable property and specified cases and cases that have been agreed upon. In iranian law, the closest subject to selling self-help is the theory of representation. One of the most important functions of the self-help subject is harm reduction and economic analysis of rights.  The results of the mentioned studies and researches in Iran's legal system have been examined and analyzed and it has been shown that due to the existence of the aforementioned benefits and the acceptance of this subject in the case law, the legislator should formulate regulations in order to determine its territory and position.

In some cases, construction contracts are faced with contractor’s breach. Breach of the contract by the contractor has various forms, such as non-fulfillment of the obligation to construct or delay in its performance, as well as incomplete fulfillment of the obligation and non-completion of the building. But another form that is common in practice is to failure to comply with the characteristics and specifications of the contract. In the common law system, the remedy for this breach is initially damages, and different methods are used to evaluate it, such as paying the cost of cure or difference in value. In Iranian law, the remedy for breach of contract is specific performance, which has its own branches such as repair and replacement. The question is that, if specific performance requires the waste of resources, is it possible to avoid the specific performance and award damages instead? Using the analytical and inductive method, this research first examines the methods of assessing damages for non-conforming performance by the contractor in common law and then the remedy for this breach in Iranian law and tries to strengthen the possibility of paying damages instead of specific performance in some cases and to provide a standard for compensation.

Usually, the loss suffered for breaking the obligation is one of the responsibilities bases on contractual liability. Now, the key question concerns the profits that the wrongdoer has obtained. Can we say the party who breaks his obligation under the contract is liable because of his profits without any loss to the other party? Is he required to transfer the benefits to the other party? There have been disagreements on this question in Common Law private law. The essay with descriptive-analytical method searches the answer in Common Law, Iranian Law, and the Convention on International Sale of Goods (Vienna 1980). The results show although gain-based liability in Common Law contract law is seldom has been awarded by the courts and there are some barriers against it, but they can be eliminated by new bases. Considering traditional principles and rules, it is problematic to accept gain-based liability result of breaking the contract in Iranian law. Also, restitutionary liability can be only a way to calculate the loss of the party in the Vienna Convention.

Damages for breach of contract may pursue one of the two purposes to place the injured party in a position that he expected to from performance of the contract, or to place him or her in a position that he was in before the contract was entered into. In some decisions of Iranian courts, the purpose of damages for breach of contract is to place the injured party in a position he would have after the performance of the contract, but to achieve this goal, various principles such as the principle of full compensation and legitimate reliance and expectation have been resorted. This article, after mentioning and categorizing some decisions, seeks to explain that resorting to these principles is not immune to criticism and the necessary mechanisms to invoke them have not yet been developed in our country. Instead, two traditional principles of etlaaf (direct destruction) and tasbib (indirect destruction), with some qualifications, could be used in this regard.

In Iranian Law, the general rule is that damages for breach of contract are compensatory. However, punitive and deterrent damages are also regulated in some cases. Regarding the damages resulted from the contract, the issue of compensating the damages caused to the other party is a definite matter, but if the party in breach receives profits due to the breach of the contract (even if it causes damages to the other party or not), the restitution and claim of these profits is an ambiguous matter in Iranian Law. Considering that one of the important reasons for the breach of contract and the filing of numerous court cases as a result is the profiteering breach of the contract, in this article, while explaining the concept and explanation of the doctrine that governs the profits resulting from the breach of contract, conditions have been considered that these profits can be returned so that by punishing the violator of the contract, the violations that are not caused by the usual commercial hardships but with the purpose of gaining profit can be prevented. Currently, in Iranian Law, there is no place for gain-based damages, but there is a capacity to accept it, and it can be applied with a combination of conditions, these conditions are: 1. the violation must be intentional, 2. there must be an important and essential relationship between breach of contract and profit and, 3. absence of penalty clause in the contract.

In the Civil Code of the Islamic Republic of Iran, the damages caused by the breach of contract are predicted in Articles 226 to 230. In a legal sense, damage refers to either the incurred loss or the money awarded to compensate for damages, and in jurisprudential texts, it refers to “injuries”. The important point is to find the type of damages that can be recovered. This article focuses on the types and rules of recoverable damages in the breach of contract in jurisprudence and Iranian laws in terms of nature, cause, source, and time of loss occurrence and then they are adapted to French law with respect to its latest amendments. Material damages, moral damages, damages for loss of prospective, collateral damages, late payment damages, past direct or future certain to happen damages as well as delay penalty can be considered as recoverable damages in the breach of contract that are required to be explicitly specified by the legislator. Some of the recoverable damages found in the French legal system in the breach of contract is not predicted in the Iranian legal system, including “damages incurred due to trust” and “damages incurred due to expectation” or the issue of judicial adjustment regarding the “penalty clause”, which has been added to the new law in France, but does not exist in our law and should be added.

When a contract is not entered into the implementation stage or in the implementation of the work, it stops or does not comply with the contractual terms and conditions and the agreed specification is diverted, the magistrate at the beginning, the arrow is committed to understand and ask him about the breach of commitment and the cause of its deviation from the terms of the contract, so that one can predict his conviction from the beginning. In Iran's law, it is less attentive that the violation of the Treaty may be disabled for non-cooperation of the obligee, while the implementation of qualifier commitment may be on his cooperation. Where the obligee would have to deliver the project's location to establish a workshop, or the client will submit the principles of documents, information and witnesses ' names, or the disease that should be carried out by the doctor before the surgery, all the anath of the implementation of a commitment to the Obligee's cooperation. This cooperation can sometimes be defined as a verb, leaving the verb, submitting the goods or documents, providing services and information, resulting in a lack of cooperation, a contract with a challenge and a bug. Rationals and will logically and the implementation of the contract shall be subject to the obligee's cooperation, but the question is to mind whether this cooperation should be stipulated in the contract or a marriage is concluded or is considered as a contract of marriage and customary equipment. Unlike Iran's legal and judicial literature, the role of the obligee cooperation in European countries ' rights and European legal documents has been approved and various works have been predicted for his non-cooperation.  In this paper, in addition to the legal foundations of such a commitment, the various legal effects of its breach are investigated so that the sum of them can be explained most of the role of this cooperation.

One of the most important problems in the field of sports is the damage caused to the sports community, the financial system, and the international reputation due to the violation of contractual obligations or the termination of contracts in this field. This research aims to examine the root of the breach of contractual obligations, to guarantee its implementation, and finally, to point out the effect that such breach of obligations has on public rights. The definition of sports rights and sports contract should be mentioned, and then it will be discussed by examining the effects governing sports contracts and the origin of violations of such contracts, focusing on the contract between players and clubs, and as a case study, the standard contract of the English Premier League in the 2022-2023 season. The investigation of its dimensions should be deepened. The findings of this research show that the source of the violation of sports contracts between players and clubs is sometimes the inability of each of the parties and sometimes their refusal to fulfill contractual obligations. Due to the violation of the contract, various damages, both material and spiritual, are inflicted on the other party, which sometimes have an international aspect, all such damages will directly or indirectly affect the public interests and their material and spiritual rights, which is considered as a violation of citizenship rights.

Contractual liability in the strict sense of the word is the obligation to compensate for damages arised from breach of contract. The main question is about the nature and basis of this obligation. Shall we consider it as a form of compliance of the contract; meaning that promisor has to give the equivalent of the contract to aggrieved party and perform the contract indirectly; or shall it be considered a separate nature of the contract and as a compensation which is imposed by the law? In the past, western legal systems; specially in France, contended that the claim to compensate for damages is an alternative to the contractual obligation and presumed specific performance. But this view changed, so today, contractual liability like non-contractual liability is considered as a compensatory function, and its basis is considered to be in breach of the contractual obligation so it is separated from the main obligation of the contract. This different view leads to different effects; particularly it denies the the distinction between contractual and non-contractual liability and causes the unification of civil liability. This view corresponds to Islamic law rudiments. It seems that in the Iranian legal system- emanating from Islamic Law, both contractual and non-contractual liability have a same nature and subsequently there is no duality in civil liability. In the present study, we have tried to examine this issue in the Islamic and French law. An interpretion of Article 221 of Civil Code concludes our perspective on Iranian law.

Epidemic diseases have always been one of the major threats to human health; a recent example of this type of disease is Covid-19. This disease has created many problems in various fields, especially in the economic field; Contracts, as an essential tool of economic prosperity, were no exception to the impact of this ominous event. The widespread of the Covid-19 has led governments to adopt rules and regulations in various fields. These rules, which prevent the spread of the disease, cause the implementation of contractual obligations with long delays, the impossibility of fulfilling obligations that have been limited in time, and the cancellation of the purpose in some contracts or complex implementation. Such problems have caused much controversy. On the other hand, in every legal system, there are provisions in such incidents to the aid of judges, lawyers, and business people and to prevent or resolve disputes. This research attempts to review these legal solutions based on the contract principles, especially the principle of favor contracts.

Agreed Damage provision due to non-performance of a contract is one of the contractual sanction breaches that parties to a contract agree to. At the conclusion of a contract damage caused by violations, measured and calculated in accordance with different criteria, are agreed to on the basis that, if one of the parties violates the obligation they have been in charge of implementing they must pay agreed damages to the other party. In agreed damages provision, due to non-performance of the contract, the main aspect is subordinate to the main contract and extends irrevocable and non-revocable of the main contract to that. Of course, the agreed damages provision, are absolutely binding whether the main contract is revocable or irrevocable and as long as the revocable contract is not terminated, provision contained therein are enforced. Consequently, the implied terms of the original contract remain in force and until the original contract loses its validity. However, the condition for determining the contractual damages is the nature of the condition of the conditional act and sub-obligation. Although the condition of damages is a subordinate obligation and the condition of the contract, like other commitments and conditions, it is based on principles. Thus, as with the threefold theories of the basis of contractual obligation, the theory of the rule of will, the theory of moral obligation, and the theory of law, the same theories apply to the basis of the condition of damages. Of course, today, none of the three theories alone can be the basis for fulfilling a contractual obligation; Conditions, including the condition of contractual damages, each plays a role in creating their binding force to the degree of its importance. As the importance of the agreement of the will of the parties cannot be completely denied, but its role is not so limited. On the other hand, social needs do not cause the government to ignore the individual and his wishes in all cases, but the government intervenes in guiding and supervising contracts according to needs and will be ineffective if the agreement of the conflicting parties with social interests is reached. In addition, due to the influence of Iranian and Afghan civil law on Islamic jurisprudence, the basis of the obligation of the parties has a valuable face and the basis and principles of the obligation to implement contracts and conditions, including the condition of contractual damages are ethics, verses and traditions. The condition of determining the contract of damages causes the contractor to enforce the provisions of the condition in case of violation of the contract, and in case of violation of the provisions of the condition of the contract, he can request legal enforcement or termination of the contract from judicial authorities (Afghan law). In fact, the obligation to implement the provisions of the condition and the termination of the contract in the Afghan legal system are intertwined. As the contractor has the right to force or terminate the contract through the official authorities, but in Iranian law, the obligation to implement the provisions of the condition and the termination of the contract are mutually exclusive. In such a way that the conditional can terminate the contract only if it is not possible to implement the provisions of the condition. Otherwise, if conditional coercion is possible, the ground for termination will not be provided. On the other hand, termination is a non-judicial act due to non-implementation of the provisions of the condition in Iranian law, and the probationer can terminate the contract without going to court.

Awarding damages is one of the usual remedies for breach of contract. Theoretically, awarding damages may seek one of the two purposes placing the injured party in the actual position before the conclusion of contract or in the hypothetical position after enforcement of the contract. The first purpose is referred to as protecting negative interest and the second as positive one. They are also called as reliance interest and expectation interest, respectively. Practically, there are various approaches regarding which of them should be seek by awarding damages in legal systems. According an approach, which could be attributed to Roman-Germanic and Common Law systems and International and European documents, awarding damages seeks to protect the injured party’s positive or expectation interest, where compensating lost gain is one of the most elements. As regards Iranian legal system, paying attention to the fact that lost gains could not be recovered, it may be thought that it seek to protect negative or reliance interest. Yet, in numerous situations, the purpose of damages is to protect the injured party’s positive or expectation interest. The article is a scientific research paper, prepared in an analytic method.

In Common Law system, the aggrieved party could recover benefits delivered to the breaching party as remedy for breach of contract. In normal contract damages, the defendant must compensate the plaintiff for losses suffered as the result of breach; while restitution damages seeks to prevent unjust enrichment by the breaching party and serves this purpose by restoring the gains received by the defendant to plaintiff. In Iranian law, restitution arises in cases of voluntary or involuntary dissolution of contract and in some cases may serve as damages. The research reveals that, notwithstanding some differences in particulars, there many similarities between the two systems in the subject under discussion.